NOT PRECEDENTIAL
            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                         No. 15-1012
                        _____________

                     LINDA S. SKELCY,
                  Individually and as General
               Administrator and Administrator ad
         Prosequendum of the Estate of James T. Skelcy,
                                              Appellant

                               v.

                 UNITEDHEALTH GROUP, INC;
             OXFORD HEALTH INSURANCE, INC;
  DENISE BEIGHE, M.D., individually and as an employee/agent
of Medical Evaluations Specialists, Inc.; MEDICAL EVALUATION
  SPECIALISTS, INC.; DENNIS SANDOVAL, M.D., individually
 and as an employee/agent of UnitedHealth Group; GAIL WILDER,
M.D., individually and as an employee/agent of UnitedHealth Group
                        _______________


         On Appeal from the United States District Court
                  for the District of New Jersey
                    (D.C. No. 3-12-cv-01014)
            District Judge: Hon. Anne E. Thompson
                        _______________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                     September 18, 2015

  Before: FISHER, CHAGARES, and JORDAN, Circuit Judges.

                   (Filed: September 22, 2015)
                                      _______________

                                         OPINION
                                      _______________

JORDAN, Circuit Judge.

       Appellant Linda Skelcy, in her individual capacity and as the administratrix of the

estate of her husband, James Skelcy, asks us to reverse an order of the United States

District Court for the District of New Jersey dismissing her complaint against Medical

Evaluation Specialists, Inc. (“MES”) and Dr. Denise Beighe, M.D (“Dr. Beighe”).

Because we agree with the District Court that neither MES nor Dr. Beighe owed a duty of

care to Mr. Skelcy, we will affirm.

I.     BACKGROUND

       A.     FACTUAL BACKGROUND1

       In July of 2007, Mr. Skelcy was diagnosed with dermatomyositis, a connective

tissue disease. Later, he was diagnosed with interstitial lung disease (“ILD”), as a

secondary condition. At all relevant times, Mr. Skelcy was covered by a health insurance

policy issued by UnitedHealth Group, Inc. (“UnitedHealth”), by and through Oxford

Health Insurance, Inc. (“Oxford”).

       Mr. Skelcy was first treated with various first-line medications, but they proved

ineffective. Then, in August 2009, his treating rheumatologist prescribed Rituximab



       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       1
         We recount the facts as alleged by the non-movant, Mrs. Skelcy, accepting them
as true. Fowler v. UPMC Shadyside, 

, 210 (3d Cir. 2009).



                                         2
(“Rituxan”), a common next-step therapy. UnitedHealth and Oxford (collectively “the

UnitedHealth Defendants”) approved and covered Mr. Skelcy’s Rituxan treatments

without delay or question. Mr. Skelcy received two doses of the drug, to which he

responded very well. In fact, he responded so positively that he was able to maintain

remission of his dermatomyositis and ILD for almost one full year with those two doses

of Rituxan.

      In July 2010, his symptoms returned. His treating rheumatologist immediately

prescribed another dose of Rituxan, which was scheduled to be administered later that

month. But, two days before the scheduled treatment, the UnitedHealth Defendants had

still not approved the dose of Rituxan. Mr. Skelcy’s treating rheumatologist therefore

faxed a letter of medical necessity to Oxford expressing Mr. Skelcy’s urgent need for a

dose of Rituxan or an intravenous immunoglobin (“IVIG”) infusion. The imminent need

for one of the treatments was or should have been immediately apparent to the

UnitedHealth Defendants, given Mr. Skelcy’s deteriorating condition and prior response

to Rituxan. Nevertheless, on the same day that they received the fax, the UnitedHealth

Defendants denied the claim for Rituxan or an IVIG infusion. Mr. Skelcy’s treating

rheumatologist had numerous follow-up conversations with the UnitedHealth

Defendants’ representatives in which he explained the need for treatment.   He also

immediately responded by filing an “Expedited Utilization Review Appeal,” as permitted

by Mr. Skelcy’s insurance policy.

      Within two days of receiving the clinical information necessary to process the

expedited appeal, the UnitedHealth Defendants transmitted the appeal to MES for a peer




                                        3
review assessment. MES assigned Dr. Beighe, a rheumatologist located and licensed in

Arizona, to provide the peer review assessment of the expedited appeal.2 After

reviewing the materials provided by Mr. Skelcy’s treating rheumatologist, including

medical records indicating that Mr. Skelcy had previously responded well to Rituxan,

Dr. Beighe stated in her peer review assessment that, “[t]his type of therapy is not [the]

standard of care for this disease” and “[t]his specific therapy is not [the] standard of care

for this patient’s disease.” (App. at 49.) Dr. Beighe further specified that there was

inadequate medical literature to conclude that Rituxan was effective in treating




       2
        To determine whether the prescribed treatment was medically necessary for
Mr. Skelcy, Dr. Beighe was presented with seven questions upon which to base her
review:
       1.     Is this an FDA approved use of the requested medication(s)/service(s)?
       2.     Is this type of therapy “standard of care” for this disease/disease state?
       3.     Is this specific therapy “standard of care” for this patient’s disease/disease
              state?
       4.     Is the clinical data from the prevailing peer-reviewed published medical
              literature adequate to conclude that the requested medication(s)/service(s) is
              effective in treating the member’s condition? [I]f no- please go to question
              5.
       5.     Are there at least two articles in the peer-reviewed literature that show that
              the proposed therapy is more likely to benefit the member than the standard
              of care, or other available therapies?
       6.     Are alternative therapies possible?
       7.     Is there sufficient data for your opinion?
(App. at 128-29.) The questions do not require or even encourage the reviewing
physician to take a member’s specific condition, treatment history, or a treating
physician’s recommendations into account. Dr. Beighe was instead asked simply to
answer the non-specific, generic questions about the disease with which Mr. Skelcy was
afflicted.



                                         4
Mr. Skelcy’s condition, but she also concluded that “IVIG would be [the] standard of

care at this point for the member.” (Id.)

       The next day after receiving Dr. Beighe’s assessment, the UnitedHealth

Defendants again denied the request to treat Mr. Skelcy with Rituxan or an IVIG

infusion. In an internal memorandum, the UnitedHealth Defendants stated, “[a] board

certified rheumatologist has reviewed the request and has [determined] that the request

for Rituxan should be denied as unproved. The clinical data from the prevailing peer

reviewed published medical literature is not adequate to conclude that the requested

medication is effective in treating the member’s condition.” (App. at 50.) Despite

Dr. Beighe’s specific recommendation in favor of an IVIG infusion, the UnitedHealth

Defendants did not approve that therapy.

       Approximately two weeks after the denial of Mr. Skelcy’s expedited appeal, his

treating rheumatologist faxed a letter to the UnitedHealth Defendants pleading that

Mr. Skelcy had received Rituxan in August 2009 “with excellent response,” and stating

that the “patient is a father, is a husband, and the main bread winner of his family” and

that “[a] further deterioration of his condition … is imminent.” (App. at 50-51.) On

August 9, 2010, thirty-two days after receiving Mr. Skelcy’s claim for treatment, the

UnitedHealth Defendants reversed their decision and approved the Rituxan treatment.

The record reveals no explanation for their tragically belated change of heart. Within 36

hours of the UnitedHealth Defendants’ decision to approve the Rituxan treatment,

Mr. Skelcy died. The Union County Medical Examiner’s Office determined that the




                                       5
cause of death was chronic dermatomyositis, interstitial pulmonary fibrosis,

endomyocardial fibrosis, and cardiac arrhythmia.

       B.     PROCEDURAL HISTORY

       Mrs. Skelcy filed her First Amended Complaint on April 13, 2012, asserting, inter

alia, claims for negligence and negligence per se against MES and Dr. Beighe. On June

29, 2012, MES and Dr. Beighe filed a motion to dismiss all claims against them,

advancing three arguments: (1) neither owed a duty of care to Mr. Skelcy; (2) the statute

underlying the negligence per se claims did not impose a duty upon them; and (3) the

court lacked personal jurisdiction over Dr. Beighe. Mrs. Skelcy responded by filing a

motion for leave to file a Second Amended Complaint, withdrawing the negligence per se

claims. She also opposed MES’s and Dr. Beighe’s motion to dismiss the negligence

claims.

       The District Court granted MES’s and Dr. Beighe’s motion to dismiss, reasoning

that “there is both a lack of a demonstrable duty to Mr. Skelcy on the part of [MES or

Dr. Beighe] and of causation.” (Id. at 22.) The Court said that, because neither MES nor

Dr. Beighe had a special or contractual relationship with Mr. Skelcy, “there exists no

grounds for traditional medical malpractice [or negligence] claims against Dr. Beighe” or

MES. (Id.) Moreover, given that neither MES nor Dr. Beighe set the standard for review

in the UnitedHealth Defendants’ treatment approval process or made the final judgment

on treatment certification, the District Court found no “sufficient nexus between the

actions of [MES or Dr. Beighe] and Mr. Skelcy’s death.” (Id.) The District Court also

denied Mrs. Skelcy’s motion to amend her remaining claims against MES and




                                        6
Dr. Beighe, stating that any motion to amend the remaining negligence claims would be

futile.3

           The claims against the remaining defendants survived and the case proceeded

through discovery. It was ultimately closed on December 5, 2014, pursuant to a

settlement between Mrs. Skelcy and those defendants, thereby rendering the dismissal of

Mrs. Skelcy’s claims against MES and Dr. Beighe a final order subject to appeal. Mrs.

Skelcy then timely appealed.

II.        DISCUSSION4

           The District Court dismissed Mrs. Skelcy’s claims against MES and Dr. Beighe

because it found as a matter of law that neither defendant owed her a duty of care and

also that she failed to demonstrate that their negligence, if any, caused Mr. Skelcy’s

death. Because we agree that neither defendant owed Mr. Skelcy a duty of care, we do

not reach the second basis for the District Court’s ruling.

           “The fundamental elements of a negligence claim are a duty of care owed by the

defendant to the plaintiff, a breach of that duty by the defendant, injury to the plaintiff

proximately caused by the breach, and damages.” Robinson v. Vivirito, 

, 124



        The District Court, having disposed of Mrs. Skelcy’s claims against MES and
           3

Dr. Beighe on Rule 12(b)(6) grounds, did not address Dr. Beighe’s argument that she was
not subject to the Court’s personal jurisdiction.
           4
          The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a dismissal under
Rule 12(b)(6). Pearson v. Sec’y Dep’t of Corr., 

, 601 (3d Cir. 2015). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007)).



                                         7
(N.J. 2014). The existence of a duty and the scope of that duty are generally questions of

law for the court to decide. Carvalho v. Toll Bros. & Developers, 

, 212

(N.J. 1996). “[W]hether a duty exists is ultimately a question of fairness. The inquiry

involves a weighing of the relationship of the parties, the nature of the risk, and the public

interest in the proposed solution.” Reed v. Bojarski, 

, 443 (N.J. 2001)

(internal quotation marks omitted). “A duty is said to arise out of the existence of a

relationship between the parties such that social policy justifies its imposition.” 

marks omitted). Whether a physician owes any duty to an individual

who is the subject of a peer review assessment as part of that individual’s claim for health

insurance coverage is a question that has not been addressed by the New Jersey Supreme

Court. We must therefore “predict how the New Jersey Supreme Court would rule if

presented with this case.” Repola v. Morbark Indus., Inc., 

, 489 (3d Cir.

1991).

         Mrs. Skelcy relies on a small set of cases to argue that, “under New Jersey law, no

traditional doctor-patient relationship or special duty is required to maintain a cause of

action for negligence against a physician … .” (Opening Br. at 14.) She asserts that,

given the broad duty of care imposed upon physicians under New Jersey law, MES and

Dr. Beighe owed her husband a duty of care, even though no privity or doctor-patient

relationship bound him to them.

         The first case presented as support is Beadling v. Sirotta, 

(N.J.

1964). George Beadling had applied for a job as a machinist. His would-be employer

scheduled a pre-employment physical, which included a chest x-ray. Dr. Sirotta, the




                                          8
radiologist who examined Beadling’s x-ray, detected a lung abnormality that he believed

was evidence of active tuberculosis. Dr. Sirotta told Beadling that something was

generally amiss with the x-ray, but he did not reveal any details of the condition to

Beadling. Instead, Dr. Sirotta disclosed those details to the would-be employer who

decided not to hire Beadling. Dr. Sirotta did, however, subsequently communicate with

Beadling’s treating physicians, who were able to resolve the illness. Nevertheless, after

undergoing a series of tests at the hospital and six weeks’ home confinement, Beadling

sued numerous parties, including Dr. Sirotta who had failed to immediately inform him

of his malady. Dr. Sirotta defended on the ground that he had no physician-patient

relationship with Beadling, and, therefore, no corresponding duty. The Supreme Court of

New Jersey rejected Dr. Sirotta’s absolute claim that the absence of a physician-patient

relationship forecloses the existence of any duty, stating, “[w]hether or not a physician-

patient relationship exists, … a physician in the exercise of his profession examining a

person at the request of an employer owes that person a duty of reasonable care.” 

But the Beadling court did not define the scope of a physician’s duty of reasonable

care to an examinee because, “even assuming a duty was owed to [Beadling] to examine

and report with reasonable care,” the court found “no evidence of its breach” since Dr.

Sirotta’s post-examination communications had been instrumental in helping Beadling’s

treating physicians head off the tuberculosis. 

       Mrs. Skelcy next relies on Ranier v. Frieman, 

(N.J. Super. Ct.

App. Div. 1996). The plaintiff in that case, Penice Ranier, claimed that his ability to

work had been compromised by deteriorating vision, so he applied for social security




                                       9
disability benefits. In July 1992, the Department of Labor referred Ranier to

Dr. Frieman, a board-certified ophthalmologist. Dr. Frieman examined Ranier and, in his

report, described the examination as a “normal ocular examination,” diagnosed myopia

(nearsightedness) and presbyopia (farsightedness), and opined that there was a possibility

of malingering. 

Based on Dr. Frieman’s report, the disability claim was

rejected. A few months later, Ranier’s vision problems persisted. After visiting his own

ophthalmologist, a brain tumor was discovered in his optic chiasm, which was the cause

of his declining eyesight. Ranier sued Frieman, claiming that he had negligently failed to

find the tumor. Frieman moved for summary judgment. He argued that, since he was

retained by the Department of Labor to examine Ranier on its behalf and to report only to

it, there was never a physician-patient relationship between him and Ranier, and, thus, he

owed no duty to Ranier to render a professionally reasonable diagnosis. The New Jersey

Superior Court rejected Dr. Frieman’s argument. Relying on Beadling, the Ranier court

recognized that “a professional’s duty of care is owed not only to his patient or client but

also to those third parties who will foreseeably and reasonably rely on his skill and care

in the performance of a particular professional undertaking.” 

And, on the

facts presented, the Ranier court concluded that, because Ranier had “relied, both

reasonably and foreseeably, on the examining physician’s diagnosis,” Dr. Frieman had a

duty, “as a matter of fairness,” to Rainier as well as to the Department of Labor to make a

professionally reasonable and competent diagnosis. 

Skelcy buttresses her argument that New Jersey law would impose a

duty of care on MES and Dr. Beighe by relying upon Reed v. Bojarski, 

                                        10
(N.J. 2001). Like Beadling and Ranier, Reed called upon a New Jersey court to further

define the boundaries of the duty of care that a physician owes to an examinee. In that

case, the decedent, Arnold Reed, underwent a pre-employment physical examination.

The would-be employer had contracted with Environmental Medicine Resources, Inc.

(“EMR”) to perform the examination. EMR subcontracted with Life Care Institute, Inc.

(“Life Care”) to perform physicals and medical imaging services, including evaluations

of pre-employment x-rays. Dr. Bojarski, an employee of Life Care, conducted Reed’s

physical. A radiologist who examined Reed’s chest x-ray told Dr. Bojarski that Reed had

a widened mediasternum, which may be an indicator of lymphoma, including Hodgkin’s

disease. Dr. Bojarski subsequently sent the x-ray, along with the rest of Reed’s

examination package to EMR. Reed stated in his report to EMR that the x-ray was

“abnormal,” but he made no reference to the widened mediasternum. Two days after

Dr. Bojarski sent his report to EMR, the radiologist gave Dr. Bojarski a written report on

Reed’s x-ray, recommending a follow-up CT scan, but Dr. Bojarski never conveyed that

suggestion or the report to EMR. About six months later, Reed was admitted to the

hospital and, after a chest x-ray showed a large mass in his mediasternum, he was

diagnosed with Stage IIB Hodgkin’s disease. He died eight months later. Reed’s widow

sued Dr. Bojarski and Life Care. At trial, the judge instructed the jurors that, if they

found that it was reasonable for Dr. Bojarski to forward the materials concerning Reed to

EMR and rely on EMR’s contractual obligation to independently review the materials

and inform Reed of any adverse findings, then they could not find Dr. Bojarski negligent.

With that instruction, the jury unanimously found for Dr. Bojarski. The New Jersey




                                         11
Supreme Court reversed. It held that, while a pre-employment examination does not

establish a traditional physician-patient relationship, the examination still creates a

relationship “in which a physician is expected to exercise reasonable care commensurate

with his expertise and training, both in conducting the examination and in communicating

the results to the examinee.” 

That is so, the court explained, because “the

patient is entitled to rely on the physician to tell him of a potential serious illness if it is

discovered. Any reasonable person would expect that and the duty to communicate with

a patient who is found to be ill is non-delegable.” 

those cases,5 Mrs. Skelcy argues that MES and Dr. Beighe owed her

husband a duty of care. In fact, she says, “[t]his matter presents a more compelling



       5
         Mrs. Skelcy also briefly cites a somewhat related collection of cases in which
New Jersey courts have held a professional liable to non-client third parties who
reasonably and foreseeably relied on the professional’s skill and care in the performance
of a professional undertaking. See Snyder v. Am. Ass’n of Blood Banks, 

,
1054 (N.J. 1996) (holding that the American Association of Blood Banks owes a duty of
ordinary care to persons receiving blood or blood products from its members, including
the plaintiff who had no direct contact with the defendant but who contracted AIDS from
a tainted unit of blood collected by one of its members); Petrillo v. Bachenberg, 

, 1361-62 (N.J. 1995) (holding that an attorney for a seller of real estate has a duty
not to provide misleading information to potential buyers who the attorney knows, or
should know, will rely on that information); Carter Lincoln-Mercury, Inc., Leasing Div.
v. EMAR Grp., Inc., 

, 1297-99 (N.J. 1994) (holding that an insurance
broker engaged to obtain insurance on behalf of a prospective insured owes a duty to a
loss-payee subsequently named on the acquired policy to place the insurance with a
financially stable insurance carrier); H. Rosenblum, Inc. v. Adler, 

, 154 (N.J.
1983) (holding the auditor of a corporation liable to all those whom the auditor should
reasonably foresee as recipients from the audited company of its financial statements for
its proper business purposes, provided that the recipients rely on the statements pursuant
to those business purposes), superseded by statute, N.J. Stat. Ann. 2A:53A-25, as
recognized in Cast Art. Indus., LLC v. KPMG, LLP, 

(N.J. 2012); Safer v.
Estate of Pack, 

, 1192 (N.J. Super. Ct. App. Div. 1996) (holding that a




                                            12
context to impose a duty of reasonable care upon a physician, than the pre-employment

examination context of Reed, Beadling and Ranier.” (Opening Br. at 19). In those cases,

the purpose of the physician’s examination was not to affect medical treatment but to

determine fitness for employment. Here, she argues, MES and Dr. Beighe were

delegated a much weightier responsibility – reviewing and influencing whether a patient

would have coverage for treatment or a procedure, potentially preempting a treating

physician’s opinions and interfering with patient care. Mrs. Skelcy contends that often

only a physician in Dr. Beighe’s position will have the requisite expertise to perform an

independent review to decide the ultimate outcome of an insurance claim. And, she

continues, the peer review that Dr. Beighe undertook caused the arbitrary denial of a

proven treatment for Mr. Skelcy’s deteriorating condition, which was a substantial factor

in causing his death. According to Mrs. Skelcy, “[a]bsent the imposition of a duty upon

the reviewing physician in this context, arbitrary coverage decisions will no doubt

continue to result in the grave consequences underlying the current matter.” (Opening

Br. at 22.) Therefore, she says, the public policy principles inherent in analogous New

Jersey cases strongly suggest that a duty should be imposed on MES and Dr. Beighe in

this case. Furthermore, she points out, unlike the pre-employment examinees, “Mr.

Skelcy pa[id] premiums in exchange for coverage of medically necessary treatments with

the expectation that treatment would not be arbitrarily withheld.” (Id. at 20.)




physician has a duty to warn a patient’s immediate family members of avoidable harm
from genetically transmissible diseases).



                                        13
       We sympathize with Mrs. Skelcy and share the sense of injustice prompted by the

UnitedHealth Defendants’ decision to delay her husband’s treatment until it was too late

to save his life. That does not mean, however, that, under New Jersey law, either MES or

Dr. Beighe owed a duty of care to her husband.6 The cases cited by Mrs. Skelcy

demonstrate how New Jersey courts have liberally, but not heedlessly, extended remedies

to non-patients injured by the actions or inaction of physicians. Mrs. Skelcy is correct

that a traditional doctor-patient relationship or special duty is not required to maintain a

cause of action for negligence against a physician in New Jersey, but we think she is

likely wrong that New Jersey courts would impose a duty on facts such as the ones here.

There is a clear and common thread running through Beadling, Ranier, and Reed that is

absent here – each of those cases involved personal interactions with or affirmative acts

by a physician that induced the injured party to foreseeably and reasonably rely on the

physician to discover or disclose serious illnesses. While none of those cases found that a

physician-patient relationship existed, they each relied upon the existence of some

“relationship between the parties” that could be inferred from the parties’ interactions and

that entitled the injured party to rely on the physician’s competency. 

(internal quotation marks omitted).

       The facts of this case are different in at least two significant ways. First,

Mr. Skelcy had absolutely no interaction of any kind with Dr. Beighe. In fact, he

apparently had no awareness that Dr. Beighe even existed, let alone that she was

       6
         Our holding is strictly limited to the claims contained in Mrs. Skelcy’s
complaint. We do not opine whether entities and physicians could be liable as aiders and
abettors in a scheme designed to deny insurance claims in bad faith.



                                          14
performing services connected to his insurance claim. All Dr. Beighe did in connection

with Mr. Skelcy’s case was to review medical records and answer questions posed by the

UnitedHealth Defendants. That difference undermines Mrs. Skelcy’s claims against

MES and Dr. Beighe, since Reed was clear that the “non-delegable duty” of care owed by

a physician stems from the trust a patient places in the doctor after a relationship arises

through personal interactions, in that case a physical examination. Id.; see also Nolan v.

First Colony Life Ins. Co., 

, 86 (N.J. Super. Ct. App. Div. 2001) (holding that

Reed’s reasoning has little purchase in a “commercial setting” where a healthcare

professional reviewed a plaintiff’s blood test results but did not form a relationship of

“trust or reliance” with the injured party). Second, even assuming that Mr. Skelcy relied

on Dr. Beighe’s professional competence, which he did not, it was not the sort of reliance

that New Jersey courts have protected in the past. In Beadling, Ranier, and Reed, New

Jersey courts protected a person’s ability to safely rely on a physician’s implied or

express representations when making medical decisions, such as selecting an appropriate

course of treatment. But the reliance interest claimed here is completely distinct.

Mr. Skelcy did not rely on Dr. Beighe to help him understand his physical condition or

determine an appropriate course of treatment; if he had relied on Dr. Beighe at all, it was

to help him get reimbursed for his desired course of treatment.

       We thus doubt that the New Jersey Supreme Court would recognize a duty of care

on these terribly sad facts.




                                           15
III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s dismissal of the

claims against MES and Dr. Beighe.




                                       16