Filed: Feb. 24, 2020
Latest Update: Feb. 24, 2020
Summary: United States Court of Appeals For the First Circuit No. 19-1247 DENISE ARRUDA, Plaintiff, Appellee, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant, Appellant, NSTAR ELECTRIC AND GAS BASIC ACCIDENT INSURANCE PLAN, Defendant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge] Before Lynch, Stahl, and Lipez, Circuit Judges. Kristyn M. Kelley, with whom Allen N. David, Jane A. Horne, and Peabody & Arnold LLP were on brief,
Summary: United States Court of Appeals For the First Circuit No. 19-1247 DENISE ARRUDA, Plaintiff, Appellee, v. ZURICH AMERICAN INSURANCE COMPANY, Defendant, Appellant, NSTAR ELECTRIC AND GAS BASIC ACCIDENT INSURANCE PLAN, Defendant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge] Before Lynch, Stahl, and Lipez, Circuit Judges. Kristyn M. Kelley, with whom Allen N. David, Jane A. Horne, and Peabody & Arnold LLP were on brief, ..
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United States Court of Appeals
For the First Circuit
No. 19-1247
DENISE ARRUDA,
Plaintiff, Appellee,
v.
ZURICH AMERICAN INSURANCE COMPANY,
Defendant, Appellant,
NSTAR ELECTRIC AND GAS BASIC ACCIDENT INSURANCE PLAN,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Stahl, and Lipez,
Circuit Judges.
Kristyn M. Kelley, with whom Allen N. David, Jane A. Horne,
and Peabody & Arnold LLP were on brief, for appellant.
Mala M. Rafik, with whom Sarah E. Burns and Rosenfeld & Rafik,
P.C. were on brief, for appellee.
February 24, 2020
LYNCH, Circuit Judge. Zurich American Insurance Company
("Zurich") denied the claim of Denise Arruda ("Arruda") for death
benefits following the death of her husband Mr. Joseph Arruda in
a 2014 car accident. Zurich concluded, after reviewing the
extensive record, that his death was not independent of all other
causes and that it was caused or contributed to by his pre-existing
health conditions. As such, Zurich concluded the death was not
within the coverage clause of the policy and was within an
exclusion to the policy.
Arruda sued under 29 U.S.C. ยง 1132(a)(1)(B), alleging
that Zurich violated ERISA by unlawfully denying the insurance
benefits. Each party moved for summary judgment. The district
court entered summary judgment in Arruda's favor, holding that
Zurich's decision was arbitrary and capricious, reasoning that the
denial was not supported by substantial evidence. Zurich appealed.
We reverse the district court, holding that Zurich's decision to
deny the claim was supported by substantial evidence. We direct
entry of summary judgment for Zurich.
I.
A. The Accident
In May 2014, Mr. Arruda was 57 years old, employed as a
sales executive by Northeast Utilities/NStar Electric and Gas, and
covered under his employer's Basic Accident Policy (the "Policy")
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issued by Zurich for accidental death or injury. He designated
his wife as the beneficiary for any death benefits.
On the morning of May 22, 2014, Mr. Arruda drove
westbound on Route 9, a four-lane road in Hadley, Massachusetts,
on his way to a work event at the University of Massachusetts in
Amherst. At 9:39 a.m. his car crossed all lanes of traffic,
collided with a car traveling eastbound, then hit the curb, rolled
over, and landed on its wheels on the opposite side of the road.
Police and fire department officials, including paramedics, from
Hadley and Amherst arrived within ten minutes. Mr. Arruda was
briefly alive following the accident, but quickly succumbed to his
multiple injuries and was pronounced dead at the scene.
Arruda timely filed for accidental death benefits on
June 3, 2014.
B. The Terms of the Contract
Under Section XII of the Policy (General Policy
Conditions), Zurich has "the discretionary authority to determine
eligibility for benefits and to construe the terms of the plan."
Under Section V (Benefits), the Policy states that
Zurich will pay benefits "[i]f an Insured suffers a loss of life
as a result of a Covered Injury." As defined in Section III
(Definitions), a Covered Injury is "an Injury directly caused by
accidental means which is independent of all other causes."
(Emphasis omitted).
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Under Section VII (General Exclusions), the Policy does
not cover losses that are subject to one or more exclusions:
A loss will not be a Covered Loss if it is
caused by, contributed to, or results from
. . . illness or disease, regardless of how
contracted, medical or surgical treatment of
illness or disease; or complications following
the surgical treatment of illness or disease
. . . [or] being under the influence of any
prescription drug, narcotic, or hallucinogen,
unless such prescription drug, narcotic, or
hallucinogen was prescribed by a physician and
taken in accordance with the prescribed
dosage.
(Emphasis omitted).
C. Information Which Zurich Reviewed
In response to Arruda's claim, Zurich hired CS Claims
Group, Inc. ("CS Claims") to investigate and collect all records
relevant to the claim. CS Claims assembled Mr. Arruda's pre-
accident medical records from his primary care doctor, various
specialists, two hospitals, and his pharmacy. Zurich later had
these records examined by independent experts, including by a
forensic pathologist, Mark L. Taff, M.D. Dr. Taff concluded that
these medical records revealed that Mr. Arruda had suffered from
twenty-seven medical conditions from 2004 until his death. As
catalogued by Dr. Taff, the conditions evident from Mr. Arruda's
medical records included, among others: obesity, chronic
sinusitis, hypertension, a variant of hypertrophic cardiomyopathy
(heart enlargement associated with arrhythmias and heart failure),
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primary hyperaldosteronism, hypokalemia, a sedentary lifestyle,
depression, anxiety, dyslipidemia, diverticulosis, insomnia,
fatigue, paresthesia (tingling sensation in the peripheral
nerves), a history of myalgias (muscle pain and weakness) and of
bronchitis, kidney stones, and syncope (fainting spells).
The records also showed that in mid-January 2014, about
four months earlier than the accident, Mr. Arruda had an episode
in which he felt weak, vomited, and fainted. As a result, within
a few days of the incident he underwent surgery and had an
implantable cardioverter defibrillator ("ICD") placed in his
chest. The ICD monitored his heart rate and rhythm and could
administer electric shocks to restore normal heart rhythm if
necessary.
Andrew W. Sexton, D.O., an employee of the Commonwealth
of Massachusetts' Office of the Chief Medical Examiner, issued a
death certificate on May 22, 2014 saying the cause and manner of
Mr. Arruda's death were pending. Dr. Sexton also did the autopsy
on May 23, 2014. Dr. Sexton apparently finalized the autopsy
report on June 12, 2014 and concluded:
CAUSE OF DEATH: Hypertensive Heart Disease.
Contributory Factors: Upper Cervical Spine
Fracture due to Blunt Impact.
MANNER OF DEATH: Accident (Driver Involved in
a Motor Vehicle Collision with Rollover)
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These conclusions apparently did not include toxicology and
cardiac findings done after that date, although the report made
reference to their existence.1 However, no amended autopsy report
was ever found.
Dr. Taff later summarized the significant findings of
the autopsy report as follows:
1. Hypertensive cardiovascular disease
associated with cardiomegaly (an enlarged
heart weighing 530g; normal hearts usually
weigh no more than 420g), biventricular
hypertrophy (thickened right and left
ventricles), mild, non-occlusive (less
than 30% luminal narrowing)
arteriosclerotic triple coronary artery
disease, moderate atherosclerosis of
abdominal aorta, multifocal interstitial
myocardial fibrosis (abnormal scarring of
heart muscle) and an intact functioning
cardiac pacemaker/ICD defibrillator
implant.
2. Mild pulmonary edema (wet lungs due to an
abnormal increase of fluid).
3. Multiple blunt force impact injuries of the
head (multiple scalp bruises distributed
about the head and eyelids), neck
(fractured 1st cervical vertebra;
dislocated 3rd and 4th cervical vertebra
associated with a grossly normal appearing
cervical spinal cord), torso (multiple (10)
bilateral anterior rib and upper sternum
(breast plate) fractures) and upper and
lower extremities (multiple soft tissue
bruises).
4. Obesity (5'11"/216 lbs.).
5. Benign prostatic hypertrophy (BPH) due to
an enlarged prostate gland.
1 Like the district court, we decline "to read much into
this discrepancy as such." The latter two reports are part of the
record before Zurich and must be considered when assessing whether
Zurich had substantial evidence to support its decision.
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6. Hepatomegaly (enlarged soft liver weighing
2,050g; normal liver weight is up to about
1,700g).
7. Diffuse light purple congestion of face,
lips and mouth associated with petechial
(pinpoint) hemorrhages of right and left
lower conjunctiva (eyes) and lips.
During the autopsy, the ICD was surgically removed and sent to
Boston Scientific, the manufacturer, for analysis.
Mindy J. Hull, M.D., also of the Massachusetts Medical
Examiner's Office, completed a cardiac pathology report on January
12, 2015. The report found "mild coronary artery disease" and
"focal interstitial fibrosis of [the] lateral left ventricle." It
did not mention any evidence of an acute cardiac event.2
In conjunction with the Massachusetts Medical Examiner,
the Town of Hadley, Massachusetts, on June 9, 2014 issued a death
certificate with the same primary cause of death as in the autopsy
report, "hypertensive heart disease."
Various reports written by first responders to the scene
of the car accident were part of the record. A report completed
by paramedics from the Amherst Fire Department on the day of the
accident described the paramedics' efforts to save Mr. Arruda's
2 A blood toxicology report was completed on July 30, 2014
by the Massachusetts State Police's Forensic Services Group. It
showed that Mr. Arruda's blood had 17 ng/ml of Delta-9 THC (the
primary active ingredient in marijuana) and more than 40 ng/ml of
Delta-9 Carboxy THC, its inactive metabolite. While Zurich
independently found marijuana to be a contributing cause to the
death, we have no need to reach the issue and do not further
discuss the marijuana evidence or the parties' disputes about it.
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life and listed in the "Impressions" section "Primary: Cardiac
Arrest" and "Secondary: Motor Vehicle Accident[,] Trauma." An
Accident Report from the Hadley Police Department completed the
day after the accident described basic information about the
trajectory of the crash and recorded the contact information of
six witnesses.
The Massachusetts State Police completed an ACISS
Homicide/Death Report on August 25, 2014. It included information
the police gathered from the witnesses, including that Mr. Arruda
was briefly alive following the accident and was suffering from
multiple injuries, including an obvious neck injury. Before the
paramedics arrived, he "went into breathing distress and started
to seize" before losing consciousness. Based on the interviews
and preliminary autopsy reports, the State Police concluded that
Mr. Arruda "experienced some type of medical episode while driving
his vehicle."
The Massachusetts State Police also completed a
"Collision Analysis and Reconstruction Section Collision
Reconstruction Report" on February 28, 2015. The officer who wrote
the report ruled out various causes for the accident, including
poor road conditions, mechanical failure, engineering design flaws
in the road, speeding, and other drivers' error. He concluded
that Mr. Arruda "had suffered a catastrophic medical event which
caused him to be unable to control his vehicle."
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Zurich initially turned this material over to two
independent medical doctors for review, and later to a third
independent expert. The first was William W. Angell, M.D., whose
credentials are not in the record. Dr. Angell submitted his
opinion on July 6, 2015 in a short, two-paragraph statement which
was not on official letterhead. Dr. Angell stated: "[I]t would be
my opinion that Mr. Arruda experienced a cardiac event at the time
of the accident which resulted in his death and that the death was
not independent of an underlying medical condition as indicated in
the autopsy report." He did not further explain what he meant by
a cardiac event. He also did not explain his reasoning for this
conclusion but did state he had reviewed the file documents,
including the medical records, police reports, and Medical
Examiner reports. Later in the claims process, Zurich tried to
locate Dr. Angell but was not able to do so.
The second independent medical review for Zurich was
completed on November 30, 2015 by Michael D. Bell, M.D., a board-
certified specialist in both Anatomic and Clinical Pathology and
Forensic Pathology, licensed in New York and Florida. Dr. Bell
reviewed all of the medical and non-medical documentation. He was
asked specific questions and answered them as follows:
1. Did the deceased die from an accidental
bodily injury, independent of all other
causes? If so, please list all injuries
sustained.
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The crash and his death were caused by his
heart disease, whether it be due to
hypertension or a variant of [hypertrophic
cardiomyopathy]. However, based on the
autopsy results, the decedent's C1 left
posterior arch fracture was C3-C4 dislocation
with soft tissue hemorrhage at the injury
sites would be a contributory cause of death.
He had a C1 left posterior arch fracture and
C3-C4 dislocation with soft tissue hemorrhage
at the neck injury sites. He did not have a
visible spinal cord injury. While he had
multiple scalp bruising, he did not have a
skull fracture or cerebral, cerebellar or
brainstem injury. He had bruising of his
right arm, left hand, and both legs. The rib
fractures and chest bruising was believed to
be caused by resuscitative chest compressions.
2. Was the death caused by, contributed to or
the result of illness or disease? If so,
please list all medical conditions
contributing to death.
The crash and his death were caused by his
heart disease, whether it be due to
hypertension or a variant of [hypertrophic
cardiomyopathy]. He has been treated for
hypertension since at least 2008 and it has
been difficult to control. The most likely
mechanism of his crash and death is a
ventricular arrhythmia secondary to his heart
disease. He also has hyperaldosteronism,
which made controlling his blood pressure
difficult. However, the decedent's C1 left
posterior arch fracture and C3-C4 dislocation
with soft tissue hemorrhage at the injury
sites would be a contributory cause of death.
Based on all of this information, Zurich denied Arruda's
claim in a letter dated December 8, 2015. Zurich relied on two
different Policy clauses in its denial: the coverage grant was not
triggered because the death was not "independent of all other
causes" and the death was excluded from coverage because it was
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"caused by, contributed to, or results from" an "illness or
disease." The letter specifically highlighted the independent
medical reviewers' conclusions and the cause of death recorded on
the death certificate as determined by the Medical Examiner.
Arruda timely appealed Zurich's determination on January
29, 2016. As part of her appeal letter, she submitted a logbook
from Boston Scientific that recorded the information Mr. Arruda's
ICD captured about his heart's condition in the months leading up
to the accident.3 The logbook has three references to the date of
Mr. Arruda's death, May 22, 2014. The first is that at 8:23 a.m.
on May 22, 2014, seventy-five minutes before the accident, the
logbook has an entry for a successful "rhythm ID update." The
second is an "alert" from 2:24 p.m., approximately four and a half
hours after Mr. Arruda's death, saying "Ventricular Tachy mode set
to value other than Monitor+Therapy." The third is that the report
says it was "created" on May 22, 2014. The logbook has no record
of the cessation of Mr. Arruda's heart occasioned by his death.
Arruda did not submit anything to Zurich explaining how to
interpret the logbook, including anything to explain what "rhythm
ID update" means or the significance of seventy-five minutes
between that reading and his death.
3 She also submitted a transcript of a workers'
compensation hearing and a resulting settlement agreement under
which the employer agreed to accept liability for Mr. Arruda's
death and pay Arruda a lump sum settlement amount.
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On August 24, 2016, Arruda supplemented her appeal with
an independent medical review from Elizabeth A. Laposata, M.D.,
dated August 5, 2016, the first of two reports Dr. Laposata
submitted in support of her claim. Dr. Laposata is with Forensic
Pathology & Legal Medicine, Inc., of Providence, Rhode Island.
She is the former Chief Medical Examiner for the State of Rhode
Island and a Fellow of both the College of American Pathologists
and the American Society for Clinical Pathology.
In her first August 5, 2016 report, Dr. Laposata's main
conclusion was that Mr. Arruda did not experience "a natural death
at the wheel" with a resulting collision. The purpose of this
conclusion is unclear. Zurich's denial of benefits made no such
assertion. Neither Dr. Angell nor Dr. Bell had stated that Mr.
Arruda had experienced a natural death at the wheel. Indeed, Dr.
Bell expressly acknowledged that a severely injured Mr. Arruda was
alive when found after the accident.
Dr. Laposata's report also criticized the Medical
Examiner's conclusions as "incorrect" and inconsistent with the
death being "accidental," as the Medical Examiner's report had
concluded. She opined that "Mr. Arruda's correct cause of death
is neck injuries due to blunt force trauma in the circumstance of
a motor vehicle . . . collision with rollover." As to the question
of what had caused Mr. Arruda to crash, she stated: "The exact
reason Mr. Arruda traveled across several traffic lanes and into
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the other vehicle is unclear." She did note that "[o]nly seconds
of distraction or inattention to driving would be needed for his
car to move out of his lane of travel and into the far lane and
impact the second vehicle." She did not opine on whether Mr.
Arruda's pre-existing medical conditions either "caused or
contributed to" the crash.
Dr. Laposata commented on the logbook in her August 5,
2016 report. She wrote that since the ICD "showed no abnormal
heart rhythms recorded prior to the collision," the accident was
not caused by "incapacitation by heart disease." She did not say
explicitly that the absence of data showed that no abnormal heart
rhythm had occurred between 8:23 a.m. and the later time of the
accident. Nor did she explain the absence of a recording in the
logbook of the cessation of the heartbeat at death. Arruda never
submitted to Zurich any materials on proper interpretation of the
logbook entries, or lack of entries.
In response to Arruda's appeal, Zurich sought a third
independent medical review. It obtained a report dated January
16, 2017, apparently through a company named ExamWorks, from Dr.
Taff. Dr. Taff is a forensic pathologist and clinical associate
professor of pathology at Mount Sinai School of Medicine in New
York City. He had over thirty years' experience as a practicing
board-certified pathologist and had investigated dozens of fatal
motor vehicle accidents. He stated that the opinions he gave "are
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to a reasonable degree of forensic medical certainty" and were
based on his over thirty years of experience in the field.
In reaching his conclusions, Dr. Taff stated he had
reviewed and analyzed:
the 450-page file containing the following
documentary evidence: 1) Massachusetts Police
Investigative/Motor Vehicle Crash reports;
2) Joseph Arruda's (JA) autopsy, toxicology,
histology (microscopic examination of
tissues), cardiac pathology and death
certificate reports; 3) medical expert reports
prepared by Drs. Elizabeth Laposata, Michael
Bell and William Angell; 4) pre-mortem medical
records of Joseph Arruda dated 2004 - 2014;
5) news clips regarding the fatal motor
vehicle collision; and 6) testimonial
transcripts of multiple witnesses.
In his January 16, 2017 report to Zurich, Dr. Taff ruled out
several possible causes of the accident. Although Mr. Arruda had
suffered from depression and anxiety, Dr. Taff ruled out suicide
as a cause. He stated the State Police investigation did not
reveal any vehicle or environmental factors that would have
contributed to the crash. He noted that "[t]he issue of texting
while driving was not addressed in the police final reconstruction
report."
In response to the question "Was the accident caused by,
contributed to or resulted from an illness or disease (cardiac
event/heart disease)?", Dr. Taff answered:
The accident was caused by several possible
pre-existing illnesses or diseases, singly or
in combination, including: a) cardiac
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arrhythmia resulting from pre-existing heart
disease (hypertensive cardiovascular disease
or a variant of hypertrophic cardiomyopathy);
b) an adverse drug reaction for medications
prescribed for pre-existing illness or heart
disease; c) prescribed heart medication-
related blood pressure problems;
d) electrolyte imbalance (e.g. cardiac
arrhythmias related to low blood potassium
levels due to primary hyperaldoasteronism)
[sic]; e) muscle weakness related to low blood
potassium levels due to primary
hyperaldoasteronism [sic]; f) complications
of undiagnosed sleep apnea resulting in
falling asleep behind the wheel; and
g) temporary or intermittent cardiac
pacemaker failure.
Before giving the conclusion, he explained the basis for it:
Although JA died from multiple bodily injuries
sustained in a motor vehicle collision with
several rollovers, it is uncertain why he
suddenly and inexplicably veered off the
westbound side of Rte 9 into oncoming traffic
on the eastbound side. Based on JA's past
medical history, there are several possible
human factors, singly or in combination, that
triggered the pre-impact phase of the motor
vehicle collision, including a) long-standing
heart disease (hypertension and variant of
hypertrophic cardiomyopathy); b) medication-
related problems for treatment of JA's pre-
existing pathological conditions (sudden drop
or increase in blood pressure); c) recent
implantation of a cardiac pacemaker;
d) hypokalemia (low blood potassium levels
most likely due to pre-existing primary
hyperaldoasteronism [sic] contributing to
muscle weakness or a cardiac arrhythmia);
e) chronic insomnia (falling asleep behind the
wheel of a car); and f) breathing problems
(e.g. chronic sinusitis and heavy snoring).
Although JA was never diagnosed with sleep
apnea, several of his pre-existing
pathological conditions are known to cause
irregular sleeping patterns, breathing
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difficulties, chronic fatigue and obesity.
Based on the circumstances, there is a good
chance that JA fell asleep behind the wheel.
The above pre-existing medical conditions,
singly or in combination, could have set off
an acute medical crisis that resulted in JA's
sudden incapacitation behind the wheel of his
vehicle. According to several reports, post-
mortem analysis of JA's implantable ICD device
showed no evidence of an ante-mortem
arrhythmia. Based on the scene findings and
eyewitness accounts, JA was still alive for a
brief period of time after the collision and
rollovers. There is no way to scientifically
prove which human factor(s)/pre-existing
medical condition(s) occurred during the pre-
collision phase of the accident that resulted
in fatal bodily injuries.
As this language makes clear, he did consider the analysis of the
implanted ICD device in the logbook in reaching his conclusion.
In an addendum to her appeal, also considered by Zurich,
Arruda replied to Dr. Taff's report with a supplemental report
from Dr. Laposata dated April 14, 2017. It is this addendum which
is now at the core of Arruda's argument. The second Laposata
report stated:
There is no medical or scientific evidence to
support a conclusion that Mr. Arruda's death
due to injuries sustained in that motor
vehicle accident was "caused by, contributed
to, or results [sic] from illness or disease."
The Insurance Company misrepresents the
finding by Dr. Taff. Dr. Taff puts forward
"several possible human factors" noting Mr.
Arruda's medical conditions but concludes
"There is no way to scientifically prove which
human factor(s)/pre-existing medical
conditions occurred during the pre-collision
phase . . ." There is no evidence in the
material examined that demonstrates to a
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reasonable degree of medical certainty that
any of Mr. Arruda's medical conditions caused
or contributed to the accident. The
interrogation of his cardiac defibrillator
gives definitive proof that no cardiac
arrhythmia or event preceded the accident.
Additionally, Mr. Arruda never received a
doctor's restriction that would limit his
ability to operate a motor vehicle safely.
Trooper Sanford speculates that Mr. Arruda
"suffered a catastrophic medical event." He
is clearly not qualified to make such a
medical determination. Finally, the autopsy
ruled out any other disease processes that
would cause physical incapacitation at the
wheel.
It is a serious error to conclude that
the mere existence of medical diagnoses and
speculation as to what might happen given
these conditions equates with proof that a
medical event did occur prior to the accident.
Dr. Taff concludes that Mr. Arruda died from
a broken neck, spinal cord injury and
positional asphyxia, all injuries that
occurred due to the motor vehicle accident.
Mr. Arruda died from accidental bodily injury,
independent of all other causes.
(Alteration in original).
Zurich's appeals committee upheld the denial of benefits
to Arruda on May 11, 2017, identifying the same two Policy
provisions and specifically stating reliance on the accident
reconstruction report, the Commonwealth's autopsy report and death
certificate, and Zurich's three independent medical reviews. It
did not say it relied on the logbook. It acknowledged Dr.
Laposata's differing opinion. The appeals committee stated that
Arruda's claim would be denied because Mr. Arruda's death was not
- 17 -
"independent of all other causes" and was "caused by or resulted
from" his pre-existing medical conditions.4
D. Summary Judgment Reasoning of the District Court
The District Court concluded that Zurich's denial of
benefits was arbitrary and capricious. It provided two different
reasons for finding the denial arbitrary and capricious. The first
was that it understood Zurich to have concluded that Mr. Arruda's
"cause of death was heart disease." But, it reasoned, that
conclusion was contradicted by Drs. Taff and Laposata and that
Drs. Bell and Sexton "cite no evidence to support the conclusion
that heart disease was the cause of death, other than the fact
that Mr. Arruda had a history of heart disease." The second reason
was that it understood Zurich to have concluded only that "Mr.
Arruda's preexisting illness caused the accident," (emphasis
added), which then caused his death. The court relied on language
in Dr. Taff's opinion that he could not identify "which human
4 The issue of which party has the burden of proof once an
exclusion is invoked, given that both coverage and exclusions are
at issue, is immaterial here as our conclusion would hold
regardless. See Glista v. Unum Life Ins. Co., 378 F.3d 113, 131
(1st Cir. 2004) ("[T]raditional insurance law places the burden on
the insurer to prove the applicability of exclusions such as the
Pre-Ex Clause."). Regardless, under the arbitrary and capricious
standard, "the issue is only whether there is substantial evidence
in the record to support the administrator's determination."
Arruda v. Zurich Am. Ins. Co., 366 F. Supp. 3d 175, 182 n.1 (D. Mass.
2019). Zurich's decision is supported by substantial evidence as
to both the Policy exclusions and the definition of a covered loss
for coverage purposes.
- 18 -
factor(s)/pre-existing medical condition(s) occurred during the
pre-collision phase of the accident that resulted in fatal bodily
injuries." (Emphasis added). In the district court's view, the
record "does not provide evidence beyond the mere existence of
pre-existing illness." It agreed with Zurich that the logbook
evidence was inconclusive and that it was not the basis for
Zurich's denial.
The district court did not specifically focus on the
Policy's "contributed to" language or the insurer's reliance in
its denials on this language in referring to both the Policy and
the medical evidence. Nor did the court focus on the reasons
stated in the denial letter. Zurich's May 11, 2017 denial letter
says that there was medical evidence that the accident was
"contributed to" by pre-existing medical conditions or "was caused
by or resulted from illness [and] disease." In the letter, Zurich
cited Dr. Taff's conclusion that "Mr. Arruda died as the result of
accidental bodily injuries but they were contributed to by multiple
pre-existing illnesses or diseases."
This timely appeal followed.
II.
A. Standard of Review
We review a district court's grant of summary judgment
de novo. D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co.,
640 F.3d 27, 34 (1st Cir. 2011).
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Where, as here, the plan administrator is explicitly
given discretionary authority by the terms of the Policy, we ask
whether its decision is arbitrary and capricious or an abuse of
discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 111 (1989); Doe v. Standard Ins. Co.,
852 F.3d 118, 123 (1st
Cir. 2017). That is, we must defer where the "decision is
reasonable and supported by substantial evidence on the record as
a whole." McDonough v. Aetna Life Ins. Co.,
783 F.3d 374, 379
(1st Cir. 2015). "Substantial evidence" is "evidence reasonably
sufficient to support a conclusion." Doyle v. Paul Revere Life
Ins. Co.,
144 F.3d 181, 184 (1st Cir. 1998). Indeed, in Doyle,
this court cited to an administrative law case that used the
sufficiency of the evidence standard in administrative law for
guidance on how to determine what arbitrary and capricious means
in the ERISA review context.
Id. (citing Associated Fisheries of
Me., Inc. v. Daley,
127 F.3d 104, 109 (1st Cir. 1997)). Moreover,
"[s]ufficiency . . . does not disappear merely by reason of
contradictory evidence."
Id. The job of a court is not to decide
the "best reading" of the policy, O'Shea v. UPS Ret. Plan,
837
F.3d 67, 73 (1st Cir. 2016), but rather, to evaluate whether
Zurich's conclusion was "reasonable." Colby v. Union Sec. Ins.
Co. for Merrimack Anesthesia Assocs. Long Term Disability Plan,
705 F.3d 58, 62 (1st Cir. 2013).
- 20 -
Under this deferential standard, we hold that Zurich's
decision was reasonable, supported by substantial evidence, and
not arbitrary and capricious or an abuse of discretion.
B. Pre-Existing Medical Conditions as a Contributing Cause of
Death
The descriptions in the record before Zurich of the
causes that contributed to Mr. Arruda's death were all consistent
that his crash was caused, at least in part, or was contributed to
by his pre-existing medical conditions. Taking all of these
materials and medical opinions "as a whole," McDonough, 783 F.3d
at 379, Zurich's conclusion is not undermined because Dr.
Laposata's opinion differed. "[T]he existence of contradictory
evidence does not, in itself, make the administrator's decision
arbitrary." Vlass v. Raytheon Emps. Disability Tr.,
244 F.3d 27,
30 (1st Cir. 2001).
In fact, Dr. Laposata's first report was not
inconsistent with Zurich's ultimate conclusion that Mr. Arruda's
death was not "independent of all other causes." She only stated
that "Mr. Arruda was alive at the time of the crash" and did not
die "a natural death at the wheel." But that he was alive shortly
after the crash was never at issue.
The thrust of Dr. Laposata's second report was her
assertion that it was impossible to tell with "a reasonable degree
of medical certainty" that Mr. Arruda's pre-existing pathologies
- 21 -
contributed to his having the accident which resulted in his death.
But Zurich could reasonably rely on Dr. Taff's opinion "to a
reasonable degree of forensic medical certainty" that that is
exactly what happened. That Dr. Taff was reluctant to conclude
further exactly which of the many pre-existing pathologies, singly
or in combination with others, provided the precise contribution
does not negate his ultimate conclusion. Rather, it reinforces
the care with which he analyzed the data before reaching his
conclusion. That care is also evidenced by his exclusion of two
pathologies as contributions.
Nor was Zurich obligated to accept Arruda's view that
the medical opinions on which Zurich relied were nothing more than
speculation because they did not "provide evidence beyond the mere
existence of pre-existing illness." Dr. Taff's report, in
particular, carefully rules out other possible causes of the
accident, gives a detailed account of Mr. Arruda's medical history,
acknowledges potentially conflicting evidence, and comes to a
reasoned conclusion.
Arruda offers no support for her contention that Dr.
Taff needed to determine the precise mechanism or mechanisms by
which Mr. Arruda's pre-existing conditions contributed to Mr.
Arruda's car suddenly veering across multiple lanes of traffic and
his fatal car accident. It is sufficient that Dr. Taff reached a
firm conclusion to a reasonable degree of forensic medical
- 22 -
certainty, which was self-evidently reasoned, that some
manifestation(s) of Mr. Arruda's pre-existing conditions caused
him to have the accident that killed him. As is evident from the
passages of Dr. Taff's report excerpted above, Dr. Taff showed a
strong familiarity with the facts of the case and drew reasoned
conclusions by applying his medical expertise.
Arruda and her expert criticize Dr. Taff's report, in
particular, as engaging in speculation because of his use of
language such as "mostly likely," "a good chance," and "could
have." In leveling this criticism, they would have us ignore his
conclusions given "to a reasonable degree of forensic medical
certainty." Zurich could reasonably rely on that earlier language
and conclude it did not undercut the conclusion. According to
common dictionary definitions, "likely" establishes a probability.
Likely, Black's Law Dictionary (10th ed. 2009) ("Apparently true
or real; probable . . . [s]howing a strong tendency; reasonably
expected"); Likely, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/likely (last visited
Feb. 19, 2020) ("having a high probability of occurring or being
true: very probable"); see also Glista v. Unum Life Ins. Co., 378
F.3d 113, 127 (1st Cir. 2004) (citing a dictionary definition of
"treatment" while interpreting a policy clause in an ERISA case).
We have said that the arbitrary and capricious standard
has some "bite," McDonough, 783 F.3d at 379, but that does not
- 23 -
mean that an insurer cannot rely on a doctor's conclusion because
another doctor found his language not sufficiently precise.
We address our differences with the dissent.5 The
dissent relies heavily on the ICD logbook, but in doing so it
misstates how Zurich used the logbook and what the logbook showed.
Zurich did not rely on a particular interpretation of the logbook
to deny Arruda's claim and it does not rely on one now to support
its appeal. It is also untrue that the proper interpretation of
the logbook is undisputed.
Zurich never rested on the logbook to support its denial.
Indeed, Arruda's opening brief to this court argued that because
Zurich had not relied on the logbook to deny benefits it could not
later use the logbook entries to support its denial because Zurich
had not done so earlier. In its reply brief, Zurich argued that
it had not waived its right to argue that the arrhythmia logbook
was inconclusive and repeated that it did not rely on the
inconclusive logbook in denying benefits.
Zurich has explained why it did not rely on the logbook
to support its denial of her appeal. The proper interpretation of
the logbook, which contains many technical medical terms and
5 The dissent mischaracterizes Zurich's reasons for
denial. Zurich did not conclude that Arruda's claim was denied
because of "the mere existence of [Mr. Arruda's] pre-existing
illness." Neither Zurich nor any of its doctors so represented.
- 24 -
abbreviations, is contested. As the district court correctly held,
"the logbook does not bear all the weight Mrs. Arruda seeks to
place on it." Arruda maintains that the logbook must mean that
the ICD recorded any and all heart irregularities in real time up
through all events associated with the accident. Zurich reasonably
interpreted the logbook as inconclusive, and that view is supported
by the record. The logbook did not record anything after the last
"rhythm ID update" seventy-five minutes before the accident,
including by the fact that the logbook failed to record the
stopping of Mr. Arruda's heartbeat on his death, therefore
providing evidence it was not working properly.
The dissent, nonetheless, takes the position that Zurich
was compelled to accept Dr. Laposata's understanding of the
logbook. That is wrong for multiple reasons. That reading is not
unrebutted in the record. We have already pointed out deficiencies
in Dr. Laposata's opinion. The ICD captured only events which it
was programmed to capture. There is no evidence anywhere in the
record as to how the device was programmed.
Separately, two of Zurich's independent medical
reviewers, Drs. Bell and Taff, both considered the ICD evidence
and concluded that his death was caused or contributed to by
illness or disease, even assuming favorably to Arruda that the ICD
continued to record accurately. The dissent misses the point when
it insists the only possible pre-existing medical condition which
- 25 -
could have contributed to the event was a cardiac arrhythmia or
other cardiac event preceding the accident. Dr. Taff's opinion
lists at least seven different possible medical conditions that,
singly or in combination, caused or contributed to Mr. Arruda's
death. One of those was "heart disease," a broader term than
"heart attack" or "heart arrhythmia." Another was a "temporary or
intermittent cardiac pacemaker failure." The other pre-existing
conditions Dr. Taff specified were independent of heart attack or
arrhythmia. Dr. Taff did not have to provide further explanation
for how those conclusions are compatible with the logbook because
there is no evidence the ICD captured all seven of the possible
pre-existing causes set forth by Dr. Taff, and from the nature of
the device, it is clear that it could not.
At most, Dr. Laposata's view, summarized in her addendum
report, was that the ICD gives "proof that no cardiac arrhythmia
or event proceeded the accident." She did not say that it gave
proof that no pre-existing condition at all contributed to the
accident. Indeed, Zurich was entitled to consider, in finding the
logbook inconclusive, Dr. Laposata's earlier view that the ICD
showed no episodes of "sustained ventricular tachycardia and no
defibrillation discharges" and her expressed view that whatever
caused the accident could have occurred within the time frame of
mere seconds. (Emphasis added).
- 26 -
C. Zurich Was Not, In the Face of Medical Evidence to the
Contrary, Required to Accept Claimant's Evidence
Beyond this assessment of why the evidence supports the
denial, Arruda's premise is that judges may find insurers'
decisions as to benefits to be arbitrary even after the insurer
relied on several independent experts and a record such as this.6
Such a premise is in considerable tension with the standard of
review we use, which requires deference to the insurer's decision
under both Supreme Court and our circuit's precedent.7 See
Firestone, 489 U.S. at 111; see, e.g., Terry v. Bayer Corp.,
145
F.3d 28, 37 (1st Cir. 1998). Zurich's interpretation of the Policy
is "by no means unreasonable and so must prevail." Dutkewych v.
Standard Ins. Co.,
781 F.3d 623, 636 (1st Cir. 2015) (quoting
Wallace v. Johnson & Johnson,
585 F.3d 11, 15 (1st Cir. 2009)).
The Supreme Court reminded us in Conkright v. Frommert,
559 U.S. 506, 517 (2010), of the importance of giving deference to
6 Arruda cites Buffonge v. Prudential Insurance Co. of
America, 426 F.3d 20 (1st Cir. 2005), for the proposition that we
should carefully scrutinize the medical opinions for the allegedly
missing causation analysis. We disagree that Buffonge aids her.
In Buffonge, we held that the insurer's decision was arbitrary and
capricious because it relied on the opinion of an expert who had
clearly misrepresented the opinions of other experts, an error
that should have been obvious to the insurer on any reasonable
review of the
record. 426 F.3d at 28-29. No such evidence of
misrepresentation by any doctor is presented here; indeed, both
Dr. Taff and Dr. Laposata relied on the same information.
7 We certainly may not, as the dissent proposes, develop
our own theories not present in the record, like theorizing that
Arruda may have fallen asleep because of stress at work, to find
an insurer's decision arbitrary.
- 27 -
claims fiduciaries such as Zurich. As the Court noted, such
"[d]eference promotes efficiency by encouraging resolution of
benefits disputes through internal administrative proceedings
rather than costly litigation," "predictability, as an employer
can rely on the expertise of the plan administrator rather than
worry about unexpected and inaccurate plan interpretations that
might result from de novo judicial review," and "uniformity,
helping to avoid a patchwork of different interpretations of a
plan . . . that covers employees in different jurisdictions." Id.
We are aware that a few other circuits, in reviewing
whether something "contributed to" a covered loss under an
insurance policy, have chosen to adopt a "substantial factor" test
to aid their interpretation. Under the "substantial factor" test,
"a pre-existing infirmity or disease is not to be considered as a
cause unless it substantially contributed to the disability or
loss." Adkins v. Reliance Standard Life Ins. Co.,
917 F.2d 794,
797 (4th Cir. 1990) (emphasis added) (quoting Colonial Life & Acc.
Ins. Co. v. Weartz,
636 S.W.2d 891, 894 (Ky. Ct. App. 1982)); see
also Dixon v. Life Ins. Co. of N. Am.,
389 F.3d 1179, 1184 (11th
Cir. 2004); McClure v. Life Ins. Co. of N. Am.,
84 F.3d 1129, 1136
(9th Cir. 1996).8 The standard of review in this case, as all
8 The Tenth Circuit has adopted a "plain meaning" approach
instead of a "substantial factor" test. See Pirkheim v. First
Unum Life Ins., 229 F.3d 1008, 1010 (10th Cir. 2000). Again, we
rely on our own circuit law.
- 28 -
parties agree, is for abuse of discretion. In our view, the
substantial factor test is in tension with our circuit law on the
abuse of discretion test.
Further, as we have said, "our review of whether a plan
administrator abused its discretion does not require that we
determine either the 'best reading' of the ERISA plan or how we
would read the plan de novo." D & H Therapy Assocs., LLC, 640
F.3d at 35. Our existing circuit law addresses the appropriate
test for abuse of discretion review issues.
We also keep in mind the Supreme Court's admonition in
Conkright that, in passing ERISA, Congress desired "to create a
system that is not so complex that administrative costs, or
litigation expenses, unduly discourage employers from offering
ERISA plans in the first place." 559 U.S. at 517 (alterations and
internal quotation marks omitted).
III.
Zurich's determination that Mr. Arruda's death was
caused or contributed to by pre-existing medical conditions was
supported by substantial evidence and was not arbitrary or
capricious. We reverse and remand for entry of summary judgment
for Zurich. No costs are awarded.
-Dissenting Opinion Follows-
- 29 -
LIPEZ, Circuit Judge, dissenting. I agree with my
colleagues on the legal principles that govern our review in this
case. We part ways, however, in applying that law to the record
before us. Although the majority reasons otherwise, Zurich cannot
defend its conclusion that Mr. Arruda's heart disease or other
pre-existing conditions caused or contributed to his car accident
and death. As I shall explain, the record inescapably reveals
that Zurich denied Mrs. Arruda's claim for the reason aptly
described by the district court: "the mere existence of [Mr.
Arruda's] pre-existing illness." Arruda v. Zurich Am. Ins. Co.,
366 F. Supp. 3d 175, 186 (D. Mass. 2019). That flawed logic
produces an unjust result.
Because Zurich's decision is not supported by
substantial evidence, my colleagues err in reversing the district
court's judgment for Mrs. Arruda. I therefore respectfully
dissent.
I.
As the majority notes, following Mr. Arruda's death, his
ICD was removed and submitted to the manufacturer, Boston
Scientific, for analysis. The arrhythmia logbook report generated
by Boston Scientific -- i.e., the record of cardiac "events"
measured by the ICD -- shows no events after May 20, 2014, two
days before the car crash. The report also shows that a "Rhythm
ID Update" was completed about an hour before the crash, at 8:23
- 30 -
a.m. on May 22. Faced with these facts, Zurich argues on appeal
that the logbook functions in a particular way:
The Logbook last updated at 8:23 a.m. on the
day of the crash. The fact that the
defibrillator was intact and working at the
time of Mr. Arruda's death means that the
Logbook does not update continuously in real
time. The Logbook shows that Mr. Arruda did
not experience a cardiac event before 8:23,
but it is silent as to what happened in the
hour leading up to the 9:30 crash. It does
not even record the alleged seizure observed
by witnesses after the crash or that Mr.
Arruda's heart stopped beating shortly
thereafter.
Zurich's assertion that the logbook did not record continuously in
real time appears to be an attempt to support its suggestion that
Mr. Arruda experienced a cardiac event at the time of the crash
that had not yet been recorded. However, Zurich offers no
evidentiary support for its depiction of how the ICD operated.
In fact, none of the medical experts describe the ICD as
functioning in the way that Zurich argues. Nor do they place any
significance on the absence from the ICD logbook report of Mr.
Arruda's seizure or his heart stoppage. Four medical experts
rendered opinions about the accident, but only three mention the
ICD. And only one, Mrs. Arruda's expert, directly opines on the
meaning of the logbook report.
To be specific, one of Zurich's experts, Dr. Bell,
mentions the ICD itself, but not the logbook report. Dr. Bell
notes that "the ICD was normally working and not activated prior
- 31 -
to the crash" based on State Trooper William McMillan's paraphrase
of the autopsy results in an accident report. He then opines that
Mr. Arruda's "crash and his death were caused by his heart
disease." Another Zurich expert, Dr. Taff, states that,
"[a]ccording to several reports, post-mortem analysis of [Mr.
Arruda]'s implantable ICD device showed no evidence of an ante-
mortem arrhythmia." Despite his acknowledgement that there was no
evidence of an arrhythmia, Dr. Taff lists "cardiac arrhythmia
resulting from pre-existing heart disease" as one of the "several
possible pre-existing illnesses or diseases" that caused the
accident.
Mrs. Arruda's expert, Dr. Laposata, authored two reports
about the accident, the first before Dr. Taff rendered his opinion
and the second afterwards. In her initial report, Dr. Laposata
notes that "interrogation of the internal cardiac defibrillator
did not show any abnormal heart rhythms prior to the accident."
In her supplemental report, Dr. Laposata responds to Dr. Taff's
findings with an explicit opinion that "[t]he interrogation of
[Mr. Arruda's] cardiac defibrillator gives definitive proof that
no cardiac arrhythmia or event preceded the accident."9 There is
no evidence in the record rebutting that statement.
9The majority criticizes Dr. Laposata for not explicitly
stating in her first report that "the absence of data show[s] that
no abnormal heart rhythm had occurred between 8:23 a.m. and the
later time of the accident." Supra Section I.C. But that
- 32 -
II.
Zurich concluded that Mr. Arruda's death is not covered
under the Policy because it was "caused by, contributed to, or
result[ed] from . . . illness or disease," i.e., Mr. Arruda's heart
disease or some other pre-existing condition, and marijuana use.
There is not substantial evidence in the record to support either
factor.
A. Illness or Disease
Mr. Arruda's autopsy did not reveal evidence of a heart
attack or heart failure. Cf. Dixon v. Life Ins. Co. of N. Am.,
389 F.3d 1179, 1181 (11th Cir. 2004) (undisputed cause of driver's
death following car crash was "heart failure" where autopsy showed
"complete blockage of one of the main arteries that supplies blood
to the heart" and "no evidence of external injury"); Vickers v.
Bos. Mut. Life Ins. Co.,
135 F.3d 179, 180 (1st Cir. 1998)
(undisputed that fatal car crash was caused by driver's heart
attack where autopsy showed he had suffered an "acute coronary
insufficiency"). In an ordinary case, the absence of such physical
evidence may not be determinative because it does not rule out an
conclusion is implicit in her statement that interrogation of the
ICD showed no abnormal heart rhythms prior to the accident. If
Dr. Laposata understood the logbook report to be inconclusive as
to what happened after the Rhythm ID Update was recorded, she would
have said only that the ICD showed no abnormal heart rhythms prior
to 8:23 a.m. Both of Dr. Laposata's reports reflect her consistent
opinion that the logbook report shows no evidence of an arrhythmia
prior to the accident itself.
- 33 -
arrhythmia. But Mr. Arruda had an ICD, the very purpose of which
was to measure cardiac irregularities. The ICD logbook report is,
therefore, a critical piece of medical evidence that bears upon
the reasonableness of Zurich's decision.10
Mrs. Arruda submitted the logbook report to Zurich when
she appealed from its decision denying benefits, and she later
submitted the two expert reports by Dr. Laposata that discuss the
report. Yet Zurich did not mention the logbook report in its
letter denying Mrs. Arruda's appeal. Suggesting that somehow this
disregard is a factor in Zurich's favor, the majority emphasizes
that Zurich did not rely on the logbook report to deny Mrs.
Arruda's claim for benefits. Zurich's choice not to engage with
a critical piece of evidence does not weigh in its favor.
Recognizing the import of this failure, Zurich now argues belatedly
that the logbook report is "inconclusive," a position that my
colleagues insist is reasonable. Supra Section II.B. I disagree.
Dr. Laposata is the only medical expert who actually interpreted
the logbook report, and her unrebutted opinion is that the logbook
report "gives definitive proof that no cardiac arrhythmia or event
10
Although the district court expressed uncertainty about the
meaning of the "Rhythm ID Update," it concluded that the logbook
report "underscore[s]" the speculative nature of a conclusion that
heart disease was the cause of Mr. Arruda's death. Arruda, 366 F.
Supp. 3d at 185 n.4.
- 34 -
preceded the accident."11 If Zurich believed that the logbook did
not record cardiac irregularities in real time, and therefore it
had doubts about Dr. Laposata's interpretation, it should have
challenged her opinion with a second opinion. Zurich was not
entitled, however, to ignore the only medical expert
interpretation of the logbook report in the record and now, on
appeal, dismiss the significance of the logbook report with
conjecture about how it works.
The absence of any evidence of a heart attack, heart
failure, arrhythmia, or other cardiac event undermines the
reasonableness of Zurich's denial of benefits on that basis.
Nevertheless, the majority says that this focus on heart disease
"misses the point," citing to Dr. Taff's list of "possible medical
conditions that, singly or in combination, caused or contributed
to Mr. Arruda's death." Supra Section II.B. It is enough, the
majority says, that Dr. Taff reached a "self-evidently reasoned"
conclusion that "some manifestation(s) of Mr. Arruda's pre-
existing conditions" caused the accident. Id. What is a "self-
11The majority suggests that the opinions of Dr. Bell and Dr.
Taff rebut Dr. Laposata's conclusion about the significance of the
logbook report. They do not. Dr. Bell noted only that the ICD
was "normally working and not activated prior to the crash," and
Dr. Taff stated that "post-mortem analysis of [Mr. Arruda]'s
implantable ICD device showed no evidence of an ante-mortem
arrhythmia." Yet both experts then concluded that Mr. Arruda's
heart disease contributed in some way to the car crash, without
explaining how those conclusions are compatible with the absence
of any cardiac irregularity readings in the logbook.
- 35 -
evidently reasoned" conclusion? One that relies on purported logic
instead of evidence? One that posits that a man with so many pre-
existing conditions must have gotten into a sudden and unexplained
accident because of those conditions? That "reasoning" is nothing
more than speculation.
The majority emphasizes that Dr. Taff rendered his
opinion "to a reasonable degree of forensic medical certainty."
Supra Section II.B. His use of the phrase "reasonable degree of
forensic medical certainty," the indispensable ultimate assertion
in any testimony from a medical expert, has no talismanic
significance. Its probative force depends on the quality of the
evidence underlying it. Here that underlying evidence is
strikingly feeble. Dr. Taff lists a grab-bag of seven "possible"
causes. Included in the list are "cardiac arrhythmia," even though
the ICD had not recorded a cardiac event, and "complications of
undiagnosed sleep apnea resulting in falling asleep behind the
wheel." In fact, despite the absence of any medical history of
sleep apnea (hence Dr. Taff's reference to "undiagnosed sleep
apnea"), Dr. Taff suggests that Mr. Arruda fell asleep behind the
wheel:
Although [Mr. Arruda] was never diagnosed with
sleep apnea, several of his pre-existing
pathological conditions are known to cause
irregular sleeping patterns, breathing
difficulties, chronic fatigue and obesity.
Based on the circumstances, there is a good
- 36 -
chance that [Mr. Arruda] fell asleep behind
the wheel.
This "good chance" conclusion discomforts the majority. My
colleagues treat it as an unwelcome and irrelevant gloss on Dr.
Taff's obligatory "reasonable degree of forensic medical
certainty" observation. See supra Section II.B. They say that
Zurich could ignore it in favor of Dr. Taff's more congenial and
formally correct observation. But that "good chance" observation
reveals the speculative nature of Dr. Taff's opinion about the
relationship between Mr. Arruda's medical conditions and the
accident.
The inescapable fact is that many healthy people fall
asleep at the wheel while driving, and many sick people fall asleep
at the wheel while driving for reasons that have nothing to do
with their illness. Mr. Arruda left his home in Bristol, Rhode
Island, around 6:30 a.m. on the day of the accident to drive to
Amherst, Massachusetts, a distance of about 105 miles,12 for a work
event. At the time of the accident, Mr. Arruda was about ten
minutes from the University of Massachusetts Amherst,13 where the
12
Driving Directions from Bristol, RI, to Amherst, MA, Google
Maps, http://maps.google.com (search for "Amherst, MA"; then click
"Directions" and enter "Bristol, RI" as the starting point).
13
Driving Directions from 73 Russell Street, Hadley, MA, to
the University of Massachusetts Amherst, Google Maps,
http://maps.google.com (search for "University of Massachusetts
Amherst" and click on the first result; then click "Directions"
and enter "73 Russell Street, Hadley, MA" as the starting point).
- 37 -
event was being held. Perhaps he had a sleepless night because he
was worried about getting to the event on time. Even if Dr. Taff
is correct that Mr. Arruda fell asleep at the wheel (a speculative
conclusion in itself), there is as good a chance that he fell
asleep because of work anxiety as there is that he fell asleep
because of undiagnosed sleep apnea.
My colleagues suggest that the parties' dispute comes
down to a battle of the experts between Dr. Taff and Dr. Laposata.
See supra Section II.B. But that is not so. Indeed, on perhaps
the most essential point, the opinions of Dr. Taff and Dr. Laposata
are not in conflict. Dr. Taff acknowledges that "[t]here is no
way to scientifically prove which human factor(s)/pre-existing
medical condition(s) occurred during the pre-collision phase of
the accident." Dr. Laposata likewise observes that "[t]here is no
medical or scientific data to conclude that the accident was caused
or contributed to by Mr. Arruda's pre-existing medical
conditions." The two experts diverge, however, in their
willingness to speculate about what happened despite the lack of
supportive medical evidence.
Dr. Laposata does not purport to know what occurred prior
to the accident. Like Dr. Taff, she rules out several
possibilities, including a heart attack or other "acute natural
event incompatible with life" -- because the autopsy revealed no
evidence of such an event -- and "incapacitation by heart disease"
- 38 -
-- because the ICD logbook report "showed no abnormal heart rhythms
recorded prior to the collision." But she asserts that "[i]t is
a serious error to conclude that the mere existence of medical
diagnoses and speculation as to what might happen given these
conditions equates with proof that a medical event did occur prior
to the accident." I agree.
I recognize that Zurich does rely on other records, in
addition to Dr. Taff's report, to support the determination that
heart disease caused or contributed to Mr. Arruda's crash: the
autopsy report and death certificate prepared by Dr. Sexton, the
Massachusetts Collision Reconstruction Report completed by Trooper
Sanford, and the two other medical expert reports written by Dr.
Bell and Dr. Angell. Although this list gives the appearance of
substantiality, the appearance does not survive scrutiny.
The front page of Dr. Sexton's autopsy report reads, in
relevant part, as follows:
CAUSE OF DEATH: Hypertensive Heart Disease.
Contributory Factors: Upper Cervical Spine
Fracture due to Blunt Impact.
MANNER OF DEATH: Accident (Driver Involved in
a Motor Vehicle Collision with Rollover)
The death certificate also states that the immediate cause of death
was hypertensive heart disease.14 But, as the district court noted,
14 The copy of the death certificate reproduced in the
administrative record is illegible. Zurich, however, stated in
its letter denying Mrs. Arruda's claim for benefits that "[t]he
- 39 -
"Dr. Sexton's report was based solely on an examination of Mr.
Arruda, and did not include any examination of his defibrillator
device." Arruda, 366 F. Supp. 3d at 180. In addition, Dr. Taff
points out "discrepancies" in Dr. Sexton's preparation of the
autopsy report which "suggest that Dr. Sexton never took the
. . . cardiac findings into consideration before finalizing his
opinions about [Mr. Arruda]'s cause and manner of death." Dr.
Sexton's cause of death determination, which was reached without
consideration of all of the relevant medical evidence, is therefore
unreliable.
Trooper Sanford states in his accident report that Mr.
Arruda suffered from some kind of medical event that caused the
crash. That opinion is baseless. As the district court observed,
"[t]he record does not indicate Trooper Sanford has meaningful
medical training in this area." Id. at 185. Indeed, Zurich
appropriately concedes that the "State Police are not medical
experts and their opinions could not be the basis for a
determination that heart disease was the cause of death."
Dr. Bell opines in his medical expert report that Mr.
Arruda's
crash and his death were caused by his heart
disease, whether it be due to hypertension or
a variant of [hypertrophic cardiomyopathy].
However, based on the autopsy results, [Mr.
Death Certificate stated that the immediate cause of death was
Hypertensive Heart Disease."
- 40 -
Arruda's] C1 left posterior arch fracture and
C3-C4 dislocation with soft tissue hemorrhage
at the injury sites would be a contributory
cause of death.
He does not explain how or why he concludes that Mr. Arruda's heart
disease caused the car crash and Mr. Arruda's death. It appears,
however, that he relied on the flawed autopsy report.
Finally, the district court correctly found that Dr.
Angell's report is "unreliable" because his "credentials are not
contained in the record, and Zurich could not even identify [him]."
Id. In addition, his brief conclusory opinion provides no basis
for his findings.
In sum, the record lacks substantial medical evidence
that bridges the gap between Mr. Arruda's pre-existing conditions,
which he had been living with for years, and the cause of the fatal
car accident. Without more, Zurich's decision amounts to a denial
of benefits based on the mere existence of Mr. Arruda's pre-
existing conditions. But it is not enough to reason that an
indisputably sick man must have had the fatal car accident because
of his sickness. Zurich's denial of benefits based on Mr. Arruda's
medical conditions, singly or in combination, is not "reasonable
and supported by substantial evidence on the record as a whole."
See McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379 (1st Cir.
2015).
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B. Marijuana
Zurich's decision to rely on the narcotics exclusion is
unreasonable for similar reasons. Dr. Taff's assertion that the
marijuana in Mr. Arruda's system alone "would have impaired his
ability to operate his motor vehicle" is undermined by his
acknowledgement that "[r]esponses to marijuana vary from one
person to another and precise and predictable behavioral and
physiological reactions to the drug cannot be rendered." As the
district court correctly observed, "[t]here is no evidence in the
record regarding how the marijuana in Mr. Arruda's system may or
may not have impaired his driving and caused the car accident."
Arruda, 366 F. Supp. 3d at 187. Notably, the majority does not
even attempt to defend Zurich's reliance on the narcotics
exclusion.
III.
In rejecting the decision of the district court
overturning Zurich's denial of benefits, the majority questions
the "premise" that "judges may find insurers' decisions as to
benefits to be arbitrary even after the insurer relied on several
independent experts and a record such as this," observing that
"[s]uch a premise is in considerable tension" with the abuse of
discretion standard of review. Supra Section II.C. There is no
such tension here. We have said many times that a standard of
deference does not negate our obligation to ensure that
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"substantial evidence" underlies the decisions of insurance plan
administrators. The district court met that obligation and so
should we. Quantity is not a proxy for substance. Here, when the
450 or so pages15 of documentation reviewed by Zurich are fairly
examined, they are devoid of the substantial evidence required by
law to support Zurich's denial of benefits. I respectfully
dissent.
15 Dr. Taff noted that he reviewed a "450-page file" of
documentary evidence when he prepared his report.
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