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Doe v. Blue Cross & Blue Shield United of Wisconsin

April 29, 1997




Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 C 1084 Thomas J. Curran, Judge.

Before POSNER, Chief Judge, and FLAUM and EVANS, Circuit Judges.

POSNER, Chief Judge.



The plaintiff was enrolled in an employee welfare benefit plan offered and funded by his employer (Aurora), administered by a health insurer (Blue Cross), and governed by ERISA. In 1989 he underwent psychiatric treatment for which the plan initially paid, but it stopped paying early in 1990 and later that year formally denied coverage. On September 27, 1994, he brought this suit against the employer and the insurer under 29 U.S.C. sec. 1132(a)(1)(B) to recover benefits allegedly due him under the plan. The district judge granted summary judgment for the defendants on the ground that the suit was brought too late.

The plaintiff is proceeding under a fictitious name because of fear that the litigation might result in the disclosure of his psychiatric records. The motion to proceed in this way was not opposed, and the district judge granted it without comment. The judge's action was entirely understandable given the absence of objection and the sensitivity of psychiatric records, but we would be remiss if we failed to point out that the privilege of suing or defending under a fictitious name should not be granted automatically even if the opposing party does not object. The use of fictitious names is disfavored, and the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts. See United States v. Microsoft Corp., 56 F.3d 1448, 1463-64 (D.C. Cir. 1995) (per curiam), and cases cited there, and our recent dictum in K.F.P. v. Dane County, 1997 WL 157262 at *2 (7th Cir. Apr. 4, 1997). Rule 10(a) of the Federal Rules of Civil Procedure, in providing that the complaint shall give the names of all the parties to the suit (and our plaintiff's name is not "John Doe"), instantiates the principle that judicial proceedings, civil as well as criminal, are to be conducted in public. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 and n. 17 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 386 n. 15 (1979). Identifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.

There are exceptions. Records or parts of records are sometimes sealed for good reasons, including the protection of state secrets, trade secrets, and informers; and fictitious names are allowed when necessary to protect the privacy of children, rape victims, and other particularly vulnerable parties or witnesses. But the fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems. "John Doe" suffers, or at least from 1989 to 1991 suffered, from a psychiatric disorder --obsessive-compulsive syndrome. This is a common enough disorder -- some would say that most lawyers and judges suffer from it to a degree -- and not such a badge of infamy or humiliation in the modern world that its presence should be an automatic ground for concealing the identity of a party to a federal suit. To make it such would be to propagate the view that mental illness is shameful. Should "John Doe" 's psychiatric records contain material that would be highly embarrassing to the average person yet somehow pertinent to this suit and so an appropriate part of the judicial record, the judge could require that this material be placed under seal.

On August 17, 1990, Blue Cross informed the plaintiff that it would not pay for his psychiatric treatment rendered after December 1, 1989. The suit seeks benefits, in excess of $30,000, for the period between December 1989 and May 31, 1991. The employee benefit plan provides, however, that "no legal action may be commenced . . . later than three (3) years from the time written proof of loss was required to be filed. Written proof of loss must be filed within ninety (90) days of the date of service. This means that any legal action must be commenced within thirty-nine (39) months of the first date of services on which the action is based." The district judge concluded that the last day on which the plaintiff could sue for the full benefits that he was seeking to recover was March 1993, 39 months after the first date (sometime in December 1989) on which the services for which he is seeking benefits were rendered, and that the last day on which he could sue for anything was August 29, 1994, 39 months after the final date (May 31, 1991) on which services for which he is seeking benefits were rendered.

The plan also contains a provision, however, that no suit may be brought until the "completion of the ERISA claim appeal process," which is to say until the exhaustion of the plaintiff's internal remedies. Even without this provision, the plaintiff, as a matter of the federal common law of ERISA, would be required to exhaust his ERISA-required internal remedies, 29 U.S.C. sec. 1133(2); 29 C.F.R. sec. 2560.503-1(g), before being allowed to sue. Wilczynski v. Lumbermens Mutual Casualty Co., 93 F.3d 397, 401-02 (7th Cir. 1996); Powell v. A.T.&.T Communications, Inc., 938 F.2d 823, 825-26 (7th Cir. 1991); Communications Workers of America v. American Tel. & Tel. Co., 40 F.3d 426, 431-32 (D.C. Cir. 1994); Makar v. Health Care Corp., 872 F.2d 80, 82-83 (4th Cir. 1989); John H. Langbein & Bruce A. Wolk, Pension and Employee Benefit Law 732-34 (2d ed. 1995). So if the internal appeals process took more than 39 months, the plaintiff would be barred from suing even though the plan forbade him to sue earlier. Less dramatically, if the internal appeals process is at all protracted, the plaintiff's time for suing may be substantially compressed. The process was protracted in this case, not winding up until September 25, 1991. But that still left 17 months within which the plaintiff could sue yet his entire claim still be within the 39-month limitation.

The plaintiff points out correctly that ERISA does not contain a statute of limitations for suits to recover benefits and that the practice of the federal courts when a federal statute contains no limitations period is to borrow the limitations period in the most nearly analogous state or federal statute of limitations. He says that the most analogous statute of limitations is Wisconsin's statute of limitations for suits on a written contract, since all the parties are citizens of Wisconsin, the services for which the plaintiff is claiming benefits were almost certainly rendered there (although the record is silent on the point), the suit was brought there, and the employee benefit plan both is a contract and is written. That statute of limitations is six years, Wis. Stat. sec. 893.43, and the plaintiff claims that because the plan is in the form of an insurance policy, Wisconsin law forbids the six years' being shortened in the contract, Wis. Stat. sec. 631.83(3)(a), and that this prohibition must be borrowed for use in this ERISA suit along with the limitations period itself.

We may assume without having to decide both that the six-year statute of limitations is the right one to borrow and that under Wisconsin law it cannot be shortened by the agreement of the parties. The latter assumption is particularly dubious, because Aurora's employee benefit plan was self-funded; Blue Cross, though an insurer, was acting merely as the plan administrator. No matter; the prohibition against shortening is not binding in an ERISA suit, so the Wisconsin statute of limitations falls out of the case.

The question what limitations principles shall govern the borrowed limitations period is in the first instance one of federal law, to be decided in accordance with the policies discernible in or imputable to the federal statute for which the state limitations period has been borrowed. West v. Conrail, 481 U.S. 35, 39-40 (1987); Hemmings v. Barian, 822 F.2d 688, 690 (7th Cir. 1987); McIntosh v. Antonino, 71 F.3d 29, 36 (1st Cir. 1995). It is true that in the case of tolling principles (principles that allow a plaintiff to sue after the statutory period has expired), the principles and the period must ordinarily be borrowed from the same law. Hardin v. Straub, 490 U.S. 536, 539 (1989). But the reason is that the length of the limitations period and the liberality of the tolling provisions are interdependent: liberal provisions offset a short period, and illiberal ones offset a long one. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64 (1975); Lewellen v. Morley, 875 F.2d 118, 120-21 (7th Cir. 1989); Hemmings v. Barian, supra, 822 F.2d at 691. Although it could be argued that the longer the limitations period, the more sense it makes to allow the parties to shorten it by contract, this is a weaker interdependence. So the cases that we have cited do not require us to borrow Wisconsin's rule against shortening.

Besides the tolling exception, there are cases in which the federal statute for which the period is being borrowed is agnostic about the limitations principles, so the court borrows the principles and the period from the same state law. Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1205 (7th Cir. 1992), appears to have been such a case. Such cases are not a real exception to the rule we've been expounding. They just illustrate the common situation in which the correct federal common law rule to adopt in order to decide the particular case is the local state's rule. The decision to adopt it cannot be made without consideration of the policies behind the federal statute. State law doesn't apply of its own force to a suit based on federal law -- especially a suit under ERISA, with its comprehensive preemption provision. (True, there is an exception to ERISA preemption for insurance, 29 U.S.C. sec. 1144(b)(2)(A), but it is inapplicable here, since, as we mentioned, Blue Cross, though an insurer, was merely administering a self-funded plan, which is not an insurance policy for purposes of the exception. See 29 U.S.C. sec. 1144(b)(2)(B); FMC Corp. v. Holliday, 498 U.S. 52, 61 (1990); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45 (1987); Smith v. Blue Cross & Blue Shield United, 959 F.2d 655, 657 (7th Cir. 1992).) To commit ourselves to every incidental feature of the borrowed statute of limitations without considering whether the policies of ERISA would be advanced or retarded by contractual limitations periods would be to grope in the dark -- as well as to risk creating a national crazy quilt of ERISA limitations law, with contractual limitations enforceable in some states but not in others, contrary to the uniformitarian policy of the statute. Buckley Dement, Inc. v. Travelers Plan Administrators of Illinois, Inc., 39 F.3d 784, 789 (7th Cir. 1994); Hammond v. Fidelity & Guaranty Life Ins. Co., 965 F.2d 428, 429-30 (7th Cir. 1992).

The dominant view in contract law is that contractual limitations periods shorter than the statute of limitations are permissible, provided they are reasonable. This is true both in general, United Commercial Travelers v. Wolfe, 331 U.S. 586, 608 (1947); Union Automobile Indemnity Ass'n v. Shields, 79 F.3d 39, 41 (7th Cir. 1996); Taylor v. Western & Southern Life Ins. Co., supra, 966 F.2d at 1203-05, and with specific reference to insurance contracts. 1 Calvin W. Corman, Limitation of Actions sec. 3.2.3, p. 179 (1991). If the contractually compressed ...

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