United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge
the Court is Plaintiff Becky Harding's motion to compel
and memorandum regarding the scope of discovery . For the
reasons set forth below, Plaintiff's motion to compel
 is granted in part and denied in part.
Becky Harding was an operations analyst for PrivateBancorp,
Inc. (“Private Bank”) from August 2003 through
June 2012. [1, ¶ 7.] On August 13, 2011, Plaintiff
allegedly became disabled as a result of degenerative joint
disease in her knees, rheumatoid arthritis, degenerative disc
disease, and other impairments. Id. ¶ 8.
Through her employment with Private Bank, Plaintiff received
short-term and long-term disability coverage and life
insurance that was issued, underwritten, and administered by
Defendant Hartford Life and Accident Insurance Company.
Id. ¶ 9. Except for a period when Plaintiff
returned to work, Defendant paid Plaintiff short-term and
long-term disability benefits and provided for the
continuation of her life insurance benefits. On March 14,
2014, Defendant terminated Plaintiff's long-term
disability payments and life insurance premium waiver.
Id. Plaintiff appealed this decision, but Defendant
declined to overturn its denial of benefits. Id.
¶ 12. This suit followed.
asserts a claim under 29 U.S.C. § 1132(a)(1)(B) of the
Employee Retirement Income Security Act of 1974
(“ERISA”) for recovery of long-term disability
benefits, declaratory relief that these benefits are to
continue, and waiver of premium benefits for her life
insurance and supplemental life insurance. [16, at 2.] In
connection with this claim, Plaintiff has sought two
depositions. The first is of Dr. Julia Ash, M.D., an
independent medical consultant retained by Professional
Disability Associates (whom Defendant retained) to review
Plaintiff's medical records. [20, at 3.] The second is of
Mary Roman, a claim manager who rendered the decision denying
Plaintiff's claim on appeal. Id. Defendant
opposes both depositions.
ERISA cases, “a denial of benefits challenged under
§ 1132(a)(1)(B) is to be reviewed under a de
novo standard unless the benefit plan gives the
administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms
of the plan.” Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). “If such
discretion is granted, court review is under the arbitrary
and capricious standard.” Schultz v. Aviall, Inc.
Long Term Disability Plan, 670 F.3d 834, 837 (7th Cir.
2012); see also Raybourne v. Cigna Life Ins. Co. of
N.Y., 576 F.3d 444, 449 (7th Cir. 2009) (noting that
“the arbitrary-and-capricious standard * * * is
synonymous with abuse of discretion” for ERISA claims).
These different standards of review inform the scope of
permissible discovery. Where the arbitrary and capricious
standard is used, discovery is generally not permitted. See
Semien v. Life Ins. Co. of N. Am., 436 F.3d 805,
813- 14 (7th Cir. 2006); Dennison v. MONY Life Ret.
Income Sec. Plan for Employees, 710 F.3d 741, 747 (7th
Cir. 2013) (explaining that there has been a
“softening, but not a rejection, of the standard
announced in Semien”). If de novo
review applies, discovery may be available but is not
guaranteed. Patton v. MFS/Sun Life Fin. Distribs.,
Inc., 480 F.3d 478, 490 (7th Cir. 2007).
parties agree that de novo review applies here. [20,
at 1-3; 22 at 2-3; 16, at 3.] Under this standard, a court
“makes an independent decision about how the language
of the contract applies to those facts” and the case
“should be conducted just like contract
litigation.” Krolnik v. Prudential Ins. Co. of
Am., 570 F.3d 841, 843 (7th Cir. 2009). Nevertheless,
the Court has “discretion to ‘limit the evidence
to the record before the plan administrator, or * * * [to]
permit the introduction of additional evidence necessary to
enable it to make an informed and independent
judgment.'” Patton, 480 F.3d at 490
factors are relevant to the district court's decision,
the most central being the court's need to hear the
evidence in order to make an informed evaluation of the
parties' claims and defenses * * *, which will obviously
depend on the nature of the claims and whether the
administrative record was ‘relatively undeveloped'
with respect to those claims.” Id. at 490-91.
Other relevant factors include “whether the evidence
the parties seek to introduce would concern plan terms or
historical facts concerning the claimant, whether the plan
administrator faced a conflict of interest and * * * whether
the parties had a chance to present their evidence in the
ERISA administrative proceeding.” Id. at 491.
“[N]o factor is necessarily determinative.”
Id. In weighing these factors, “[a] court
should not automatically admit new evidence whenever it would
help to reach an accurate decision.” Id. at
492. Discovery should be allowed “only where the
benefits of increased accuracy exceed the costs.”
proposes to depose Dr. Ash “to determine the nature and
extent of her qualifications, any economic or other biases
that may have influenced her opinions, and the basis of her
opinions.” [20, at 3.] Likewise, she seeks to depose
Ms. Roman “to determine the nature and extent of her
qualifications to render a disability benefit determination,
any economic or other bias Ms. Roman may have had, and
whether Ms. Roman adjudicated Plaintiff's claim appeal in
accordance with” the appropriate standards.
Id. at 3-4. While these deposition topics are
similar, they implicate different concerns regarding the
appropriate scope of discovery.
Ash's medical report is part of the evidence that the
Court will consider in connection with its de novo
review. As courts have explained, a physician's potential
biases and conflicts of interest “could directly affect
the Court's decision whether [Plaintiff] is or was
actually disabled” because they bear on the credibility
and reliability of her medical opinions. Borich v. Life
Ins. Co. of N. Am., 2013 WL 1788478, at *5 (N.D. Ill.
Apr. 25, 2013); accord Grant v. Standard Ins. Co.,
2013 WL 2434698, at *1 (N.D. Ill. June 4, 2013)
(“Evidence of a doctor's potential bias,
however, is relevant because it goes to the credibility of
the [physician's reports], which [the court] will
consider when [it] make[s its] independent assessment as to
whether Plaintiff is entitled to [long-term disability]
benefits.”); Gavin v. Life Ins. Co. of N. Am.,
2013 WL 2242230, at *2 (N.D. Ill. May 21, 2013) (“To
the extent Defendants intend to rely on the medical opinions
of the four subpoenaed doctors to prove that [plaintiff] is
not entitled to [long-term disability] benefits, the
doctors' potential financial bias or conflict of interest
in issuing their medical opinions is a relevant factor for
this court to consider.”). “In other words, Dr.
[Ash's] report ‘is relevant not only to
Defendant's denial of Plaintiff's claim but also to
the merits of that claim.'” Yasko v. Reliance
Standard Life Ins. Co., 2012 WL 4797795, at *2 (N.D.
Ill. Oct. 9, 2012). Defendant does not represent that it will
forgo reliance on Dr. Ash's medical opinions. “It
would be unfair for the Court to allow [Defendant] to rely on
medical opinions without giving [Plaintiff] the opportunity
to seek discovery regarding those opinions and to discredit
them if they are the product of bias.” Borich,
2013 WL 1788478, at *5.
offers three reasons that this discovery should be denied,
none of which is persuasive. First, Defendant points out that
some courts have, in their discretion, declined to allow
medical consultant discovery, but none of these cases is
directly on point. [22, at 4-7 (citing Estate of Blanco
v. Prudential Ins. Co. of Am., 606 F.3d 399 (7th Cir.
2010); Novak v. Life Ins. Co. of N. Am., 956
F.Supp.2d 900 (N.D. Ill. 2013); Ehas v. Life Ins. Co. of
N. Am., 2012 WL 5989215 (N.D. Ill. Nov. 29, 2012); and
Ball v. Standard Ins. Co., 2011 WL 2708366 (N.D.
Ill. July 8, 2011)).] In Blanco, the Seventh Circuit
affirmed the district court's decision to exclude at
trial affidavits that the plaintiff submitted from his own
physicians-a circumstance unlike a request to take
discovery of a defendant's medical
consultant. 606 F.3d at 402-404. Similarly, Defendant
emphasizes that the plaintiff in Nowak was precluded
from submitting an affidavit from her own pain specialist
because she failed to “identify a specific aspect of
her treatment that is not adequately discussed in the files
already contained within the administrative record, ”
which (again) is not the same as seeking to depose a
defendant's medical consultant. 956 F.Supp.2d at 913. In
Ehas, the court rejected additional discovery of
physicians and the claim administrator, but did so only
because, in that case, “these requests go to any
potential conflict of interest and the motive of the
administrator” (not the physician). 2012 WL
5989215, at *11 (emphasis added); Gavin, 2013 WL
2242230, at *3 (distinguishing Ehas). In
Ball, the court found that inquiries into the
physicians' opinions were irrelevant because the court
would “weigh all of the medical evidence [itself] and
not rely on the opinions of the consulting physicians.”
2011 WL 2708366, at *2. Defendant has not suggested that the
Court should ignore Dr. Ash's report and look exclusively
at Plaintiff's medical records alone, and thus
Ball's fact-specific holding has persuasive less
Defendant argues that the administrative record is
comprehensive, contains Plaintiff's medical records, and
should not upset the default that “extra-record”
discovery is “limited” to the
“‘rare' case.” [22, at 6 (citing
Patton).] Neither side submits a copy of the
administrative record, but the Court is skeptical that all of
the evidence related to Dr. Ash's biases and conflicts is
contained in the record itself. Regardless, Patton
explained that it was “[r]eversals” of district