RAMOS, District Judge.
Plaintiff S.M.
Presently before the Court are the parties' cross-motions for summary judgment, both made pursuant to Federal Rule of Civil Procedure 56, and Plaintiff's motion to sever. See Docs. 66, 67. For the reasons discussed below, Plaintiff's motion for summary judgment is DENIED, and Defendants' motion for summary judgment is GRANTED. Plaintiff's motion to sever is DENIED.
The following facts are undisputed except where otherwise noted.
In September 2008, Plaintiff was diagnosed with non-Hodgkins lymphoma. Defs.' Counterstatement Facts, Doc. 80 at ¶ 2. Since then, she has been treated by Dr. Janet Cuttner ("Dr. Cuttner"), an oncologist at Mount Sinai Hospital. Id. at ¶ 3. As part of Plaintiff's treatment, she has been treated with a drug called Rituxan.
In August 2011, Dr. Cuttner diagnosed Plaintiff with an upper respiratory infection; the following month, Plaintiff was diagnosed with severe pneumonia. Id. at ¶¶ 6-7. In response, Dr. Cuttner prescribed Intravenous Immunoglobulin ("IVIG") treatment in the form of the drug Gamunex. Pl.'s Counterstatement Facts, Doc. 77 at ¶ 11. Gamunex consists of a solution containing antibodies to help fight infections. Id. at ¶ 12. It is used to treat, inter alia, autoimmune and immune deficiency disorders and may be administered to increase the gammaglobulin levels in patients with immune deficiencies, such as those whose immune systems are compromised as a result of undergoing chemotherapy. Id. at ¶ 12; see also Doc. 80 at ¶ 10. The instant litigation concerns Oxford's
In 2011, Plaintiff was covered by an Oxford healthcare plan entitled Freedom Plan Metro ("the Plan") which qualified as "an employee welfare benefit plan" as defined by ERISA, 29 U.S.C. § 1002(1).
After a member receives an initial adverse determination, she may challenge the administrator's determination by utilizing what the Plan refers to as the Utilization Review ("UR") Appeals process. Oxford 000162. The UR Appeals process provides for either "two levels of internal review" or "one level of internal [r]eview and one level of [e]xternal [r]eview by an outside clinical reviewer." Id. The Plan states that medical necessity determinations which result in a denial will be made by "appropriate clinical personnel," specifically, a "clinical peer reviewer." Oxford 000159. Although the Plan does not define who constitutes a clinical peer reviewer for the purposes of an initial adverse determination, it does provide a definition with respect to an internal appeal. When an internal UR Appeal is involved, a clinical peer reviewer is either: "a Physician with a current and valid non-restricted license to practice medicine;" or "a health care professional (other than a licensed Physician). . . in the same professional and same or similar specialty as the Provider who typically manages the medical condition or disease[.]" Oxford 000162. Requests that are eligible for an external appeal "will be randomly assigned to a Certified External Appeal Agent[.]" Oxford 000167. At the external appeal level, a clinical peer reviewer is a licensed Physician who "is board certified or board eligible in the same or similar specialty as the Provider who typically manages the medical condition or disease, or provides the health care service or treatment under Appeal;" and "has been practicing in such an area of specialty for a period of at least five years and is knowledgeable about the Health Care Service or treatment under Appeal." Oxford 000162.
Under the Plan, a member is responsible for providing, "to the extent possible, information that [Oxford] professional staff need in order to care for" the member. Oxford 000185, 000223; see also Doc. 77 at
Plaintiff's request for Gamunex coverage was also governed by Oxford's specific policy on IVIG treatment coverage.
On September 15, 2011 Dr. Cuttner submitted Plaintiff's first request for coverage of Gamunex treatment to Oxford. Doc. 80 at ¶ 13. On the same day, Oxford requested additional information from Plaintiff to process her claim. Doc. 80 at ¶ 12. In a letter dated September 16, 2011, Oxford informed Plaintiff of its decision to deny coverage. Doc. 77 at ¶ 14, Doc. 80 at ¶ 13. The letter explained that Oxford usually covers IVIG treatment for certain types of problems, such as an immune deficiency, and for repeat bacterial infections. Oxford 000075. It also stated that a member's doctor must show that the patient "cannot make antibodies against immunizations or common bacteria." Id. The letter concluded, "[t]he information sent in does not show that you meet these criteria." Id. The medical necessity determination was made by one of Oxford's medical directors, Dr. Bruce Lundblad. Doc. 80 at ¶ 13. Plaintiff requested an expedited appeal of the decision on September 19, 2011. Doc. 77 at ¶ 15.
Dr. Lundblad called Dr. Cuttner on September 21, 2011. Doc. 77 at ¶ 16, see also Doc. 80 at ¶ 16. Based on his conversation with Dr. Cuttner, Dr. Lundblad changed his initial determination to allow for coverage of Plaintiff's Gamunex treatment. Id. at ¶ 19. In Dr. Lundblad's notes contained
On November 22, 2011, Dr. Cuttner's office requested an extension of Oxford's coverage of Plaintiff's IVIG treatment until September 19, 2012. Doc. 77 at ¶ 23, see also Doc. 80 at ¶ 23. The following day, Oxford sent a letter to Plaintiff requesting additional information regarding her current medical condition. Id. at ¶ 24. On December 5, 2011, Dr. Cuttner's office sent Oxford a facsimile containing the following documents: (1) Dr. Cuttner's progress notes from September 13, 2011 to November 29, 2011; (2) lab test results from June, September and November 2011; and (3) explanations and impressions of Plaintiff's CT scan in September 2011.
On December 7, 2011, Dr. Cuttner's responded to Oxford's second request for information by resubmitting the same medical records, along with a letter from Dr. Cuttner. See Oxford 000363-000374. In her letter, Dr. Cuttner stated that Plaintiff was diagnosed with an upper respiratory infection in August 2011, and "very severe pneumonia" in September 2011. P00024. Dr. Cuttner wrote that Plaintiff was successfully treated with antibiotics and received Gamunex treatment since October 2011. Id. Plaintiff's doctor confirmed that her pneumonia had resolved
That same day, Dr. Lundblad determined that Plaintiff's IVIG treatment was not medically necessary.
In a letter dated December 8, 2011, Oxford informed Plaintiff of its denial. Oxford 000093. The letter stated that IVIG treatment is covered for specific types of problems such as immune deficiency and repeat infections. Id. However, a member's doctor is required to show that the patient "cannot make antibodies against immunizations or bacteria" and that the patient's problem "has not fully resolved." Id. The letter concluded, "[t]he information
On December 19, 2011 Plaintiff requested an expedited appeal of Dr. Lundblad's denial of coverage. Doc. 77 at ¶ 39. In connection with Plaintiff's request, Dr. Cuttner's office sent Oxford a twenty-two page facsimile containing the previously forwarded medical records, Dr. Cuttner's letter of December 7, 2011, Oxford's November 23, 2011 information request, handwritten notes and prior facsimile cover sheets. Id. By letter dated December 21, 2011, Oxford informed Plaintiff of its decision to uphold the initial adverse determination, stating that the basis for its conclusion that it was not medically necessary was a lack of "supporting data regarding ability to produce function antibody [sic] in response to a vaccine challenge." Doc. 80 at ¶¶ 31-34. Plaintiff's IAR indicates that Plaintiff's appeal was reviewed and denied by Oxford medical director Dr. Helga Bahr. See Oxford 000015, 000346-49.
On January 10, 2012, Plaintiff requested an external review of Oxford's denial of coverage for Plaintiff's IVIG treatment with the New York State Department of Financial Services. Doc. 77 at ¶ 41. That same day, an entity certified by the State of New York to conduct external appeals, which the parties refer to as "MCMC," submitted a request to Oxford for the production of documents relevant to Plaintiff's denial of coverage. Doc. 80 at ¶ 38. An Oxford employee named Margaret Williams ("Williams") responded to MCMC's request via letter dated January 10, 2012, which included a summary of events, Plan documents, and correspondence regarding Plaintiff's coverage denial and appeal. Id. at ¶ 39. On January 13, 2012, MCMC reviewed Oxford's denial of coverage for Plaintiff's Gamunex treatment.
According to documentation provided by MCMC, a physician certified in internal medicine with a subcertification in hematology conducted the external review. Oxford 000122. The reviewer's areas of expertise included leukemia/lymphoma treatment and chemotherapy treatments/side effects. Id. The external reviewer upheld Oxford's denial of coverage, stating:
Oxford 000124. The external reviewer also indicated that Plaintiff's medical records and accompanying information were sufficient to determine whether the Plan should cover the treatment she was seeking. Oxford 000123.
On January 11, 2013, approximately one year after Plaintiff's appeal was denied, Dr. Cuttner submitted another request for coverage of Plaintiff's Gamunex treatment, which included a letter from Dr. Cuttner indicating that Plaintiff's disease "recently transformed to a more aggressive lymphoma" and that she would be receiving "combination chemotherapy" which would "put her at risk of severe infections." Nguyen 2d. Aff., Ex. A; see also Doc. 80 at ¶¶ 68, 70. An Oxford medical director named Dr. Hui approved coverage for a limited amount of time, citing Plaintiff's history of pneumonia, her low IgG levels and chemotherapy treatment.
On May 10, 2012, Plaintiff filed a complaint against Defendants in the Supreme Court of the State of New York, New York County. Defs.' Joint Notice Removal, Doc. 1, Ex. A. Plaintiff alleged three causes of action consisting of fraud, deceptive trade practices, and unjust enrichment. Id. On June 14, 2012, Defendants removed the state action to this Court on the basis of federal question jurisdiction, alleging that it was preempted by ERISA. Doc. 1 at 1-2. On August 4, 2012, Plaintiff filed a motion to remand this action back to state court. Pl.'s Mot. Remand, Doc. 17. On March 22, 2013, the court denied Plaintiff's motion.
On April 29, 2013, Plaintiff filed an Amended Complaint, challenging the denial of benefits under ERISA § 502(a)(1)(B), which provides that a plan beneficiary or participant may bring an action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." Am. Compl., Doc. 26. She additionally seeks redress under ERISA § 502(c), which applies penalties for an administrator's refusal to supply requested information. Id. The Amended Complaint may also be generously construed as seeking redress for breach of fiduciary duty under ERISA § 502(a)(3).
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y.2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009)). A fact is "material" if it might affect the outcome of the litigation under the governing law. Id.
The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the burden of proof at trial would fall on the movant, that party's "own submissions in support of the motion must entitle it to judgment as a matter of law." Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir. 1998). Conversely, "[w]hen the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim." Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.2009) (citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548). If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548).
In deciding a motion for summary judgment, the Court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)) (internal quotation marks omitted). However, in opposing a motion for summary judgment, the nonmoving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is "some metaphysical doubt as to the material facts." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotation mark omitted). To defeat a motion for summary judgment, "the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, Inc.,
The same legal standard applies when analyzing cross-motions for summary judgment. See Schultz v. Stoner, 308 F.Supp.2d 289, 298 (S.D.N.Y.2004) (quoting Aviall, Inc. v. Ryder Sys., Inc., 913 F.Supp. 826, 828 (S.D.N.Y.1996)). "[E]ach party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir.2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.1981)). The Court is not required to grant summary judgment in favor of either moving party. See id. (citing Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)).
In ERISA actions challenging the denial of benefits, "the general practice is to treat the parties' submissions as cross-motions for summary judgment, and, if summary judgment is denied because material facts are in dispute, to conduct a `bench trial' with the Court acting as the finder of fact." Kagan v. Unum Provident, 775 F.Supp.2d 659, 672 (S.D.N.Y. 2011) (citing Fairbaugh v. Life Ins. Co. of N. Am., 737 F.Supp.2d 68, 79 n. 9 (D.Conn. 2010)). Put simply, a motion for summary judgment "provides an appropriate vehicle whereby the Court can apply substantive ERISA law to the administrative record." Gannon v. Aetna Life Ins. Co., No. 05 Civ. 2160(JGK), 2007 WL 2844869, at *6 (S.D.N.Y. Sept. 28, 2007). "In such an action `the contours guiding the court's disposition of the summary judgment motion are necessarily shaped through the application of the substantive law of ERISA.'" Alfano v. CIGNA Life Ins. Co. of New York, No. 07 Civ. 9661(GEL), 2009 WL 222351, at *12 (S.D.N.Y. Jan. 30, 2009) (quoting Ludwig v. NYNEX Serv. Co., 838 F.Supp. 769, 780 (S.D.N.Y.1993)).
"ERISA does not set out the applicable standard of review for actions challenging benefit eligibility determinations." Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002) (quoting Zuckerbrod v. Phoenix Mut. Life Ins. Co., 78 F.3d 46, 49 (2d Cir.1996)) (quotation marks omitted). However, the Supreme Court has held that "a denial of benefits challenged under [ERISA] § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When such discretionary authority is reserved, a court "will not disturb the administrator's ultimate conclusion unless it is `arbitrary and capricious.'" Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 82 (2d Cir.2009) (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 441 (2d Cir.1995)). The plan administrator bears the burden of proving that the arbitrary and capricious standard of review applies. Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir.1999) (citing Sharkey v. Ultramar Energy Ltd., Lasmo plc, Lasmo (AUL Ltd.), 70 F.3d 226, 230 (2d Cir. 1995)). Here, the parties agree that that the arbitrary and capricious standard of review is appropriate.
The parties agree that "Plaintiff enrolled in a . . . Plan . . . covered by Oxford Health Insurance, Inc. [Oxford]." Doc. 77 at ¶ 1. However, Defendants argue that the other parties—Oxford LLC, United Healthcare, and UnitedHealth—are not proper defendants in this case because there is a lack of privity between Plaintiff and these three defendants. Defs.' Mem. L. Supp. Mot. Summary J., Doc. 68 at 1 n. 1. Plaintiff counters that the name "UnitedHealthcare Group Inc." is "featured prominently" on the Plan. Pl.'s Mem. L. Opp., Doc. 84 at 13. However, there is no indication that any of the Defendants in this case operate under the name "UnitedHealthcare Group Inc." She further maintains that Oxford is a wholly owned subsidiary of UnitedHealth, "operating as Oxford solely for the purposes of using the Oxford brand." Id.
Simply stated, Plaintiff has not established that any Defendant other than Oxford is subject to suit under ERISA. Defendants' corporate disclosure statement reveals that Oxford, Oxford LLC, and United Healthcare are all wholly owned subsidiaries of UnitedHealth. Doc. 8. Generally, "a parent corporation and its subsidiary are regarded as legally distinct entities and a contract under the corporate name of one is not treated as that of both." Carte Blanche (Singapore) Pte., Ltd. v. Diners Club Int'l, Inc., 2 F.3d 24, 26 (2d Cir.1993) (citing 1 Fletcher Cyc. Corp. § 43 (perm. ed.1990)). As a matter of contract law, New York courts will only pierce the corporate veil to "prevent fraud or other wrong, or where a parent dominates and controls a subsidiary." Id. Plaintiff does not ask the Court to pierce the corporate veil. Nor does she provide evidence to support her claim that "[a]ll defendants administer the claims jointly and all are directly liable." Doc. 77 at ¶ 1. Instead, she assumes that UnitedHealth Group Inc. and all of its subsidiaries must be held jointly liable, simply due to their corporate relationship and the fact that a United Healthcare logo appears on the Plan.
Plaintiff has failed to adequately allege claims against Oxford LLC, United Healthcare, or UnitedHealth. Therefore, these parties must be dismissed from the case.
"If a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that
Under Glenn, a court must engage in a two-part inquiry. The first step requires determining whether the "plan administrator both evaluates claims for benefits and pays benefits claims." Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133, 138 (2d Cir.2010) (quoting Glenn, 554 U.S. at 112, 128 S.Ct. 2343). Next, a court should ask "how heavily to weigh[ ] the conflict of interest thus identified, considering such circumstances as whether procedural safeguards are in place that abate the risk[.]'" Id. (quoting Glenn, 554 U.S. at 117, 128 S.Ct. 2343). In sum,
Glenn, 554 U.S. at 117, 128 S.Ct. 2343 (internal citations omitted). Since determining whether the denial of benefits is "tinged" by a conflict of interest is "distinct from the reasonableness of the plan administrators' decision, the district court will not be confined to the administrative record." Zervos v. Verizon New York, Inc., 252 F.3d 163, 174 (2d Cir.2001).
As to the first step of Glenn's two-pronged test, the parties agree that Oxford both evaluates and pays benefits claims. Doc. 75 at 10; Doc. 79 at 9. Where the "evaluation of claims is entrusted (at least in part) to representatives of the entities that ultimately pay the claims allowed[,]" it "is precisely the type of interest conflict to which Glenn applies." Durakovic, 609 F.3d at 139.
The Parties fail to address the second prong in their briefs. However, the evidence shows that the appeals process was structured in such a way, and that Oxford took affirmative steps, to reduce the risk of bias. Specifically, the administrative record reveals that Oxford undertook various attempts to contact Dr. Cuttner's office seeking more information and that Dr. Lundblad made efforts to speak directly with Dr. Cuttner on more
Furthermore, while Oxford's initial determination was made by Dr. Lundblad, his decision was reviewed and affirmed at the first-level appeal phase by a different physician and medical director, Dr. Bahr. See Oxford 000015. Plaintiff's second-level appeal was reviewed externally by yet another physician, at her specific request, who upheld Dr. Lundblad's determination. See Oxford 000122. Courts have typically credited an administrators' assignment of separate individuals to process a beneficiary's appeal as signaling an effort to reduce potential bias and promote accuracy. See Wedge v. Shawmut Design & Const. Grp. Long Term Disability Ins. Plan, 23 F.Supp.3d 320, 336 (S.D.N.Y.2014) (observing that "the review [of the plaintiff's appeal] was conducted by different individuals than those who made the initial determination to deny Plaintiff's benefits"); Siegel v. Hartford Life Ins. Co., No. 10 Civ. 4285(DRH)(ETB), 2012 WL 2394879, at *16 (E.D.N.Y. June 25, 2012) (noting, in part, that the insurer "assigned separate individuals to process her [the beneficiary's] appeal").
Finally, an administrator's initial decision to award benefits may be viewed as further evidence of an absence of bias because such a decision cuts against its financial interest. Siegel, 2012 WL 2394879, at *17 (citing Bendik v. Hartford Life Ins. Co., No. 03 CIV. 8138(LAP), 2010 WL 2730465, at *5 (S.D.N.Y. July 12, 2010) aff'd, 432 Fed.Appx. 24 (2d Cir. 2011)) (an administrator's decision to pay short-term disability benefits, but deny long-term disability benefits diminishes the importance of a conflict of interest). The fact that Dr. Lundblad approved coverage of Plaintiff's IVIG treatment for three months after speaking with her treating physician suggests that his decision to not extend coverage beyond that time period was not driven by Oxford's financial interest. See Oxford 000019-20.
In terms of proving a structural bias, Plaintiff contends that Oxford has a "history of biased claims," pointing to three cases in which courts in this circuit ruled against Oxford in cases challenging its denial of benefits. Pl.'s Mem. L. Supp. Mot. Summary J., Doc. 75 at 22-23. However, in one of the cases Plaintiff cites, the court did not undertake a conflict of interest analysis. Scalamandre v. Oxford Health Plans (N.Y.), Inc., 823 F.Supp. 1050, 1059 (E.D.N.Y.1993). Instead, it applied the de novo standard of review only after finding that the explicit terms of the plan at issue did not grant Oxford discretion to construe the insurance contract. Id. The other two decisions Plaintiff cites did indeed result in a finding of bias on behalf of Oxford warranting de novo review. See Demonchaux v. Unitedhealthcare Oxford, No. 10 Civ. 4491(DAB), 2012 WL 6700017, at *6-8 (S.D.N.Y. Dec. 20, 2012) ("Plaintiff has provided a good deal of evidence that Defendant's conflict of interest actually affected its decision[.]"); Schwartz v. Oxford Health Plans, Inc., 175 F.Supp.2d 581, 591 (S.D.N.Y.2001) (same).
Given Oxford's efforts to reduce the risk of bias in this case, and prior decisions in which Oxford's determinations were deemed not to have been tainted by conflict, the Court finds that there is an insufficient basis to infer "a history of biased claims administration" on the part of Oxford here. See Burgio v. Prudential Ins. Co. of Am., No. 06 Civ. 6793(JS)(AKT), 2011 WL 4532482, at *8 (E.D.N.Y. Sept. 26, 2011) (stating that the court "is reluctant to infer an improper motive on the strength of the outcome of other cases" where there are a number of conflicting decisions in which the insurer's denial of benefits has been both reversed and upheld).
Ultimately, "[n]o weight is given to a conflict in the absence of any evidence that the conflict actually affected the administrator's decision." Durakovic, 609 F.3d at 140. In support of Plaintiff's contention that her claim was actually affected by a conflict of interest, she points to several irregularities to argue that Oxford's conflict of interest "led to a result-driven conclusion." Doc. 75 at 11. Plaintiff's strongest points are made in relation to (1) Dr. Lundblad's failure to consider the fact that she was being treated with Rituxan, and (2) Oxford's subsequent approval of IVIG treatment in 2013. Yet even these arguments are ultimately unavailing.
First, Plaintiff suggests that Defendants deliberately "walled off" Dr. Lundblad from knowing that she was being treated with chemotherapy in the form of the drug Rituxan. Doc. 75 at 15-16. In arguing why knowledge of her Rituxan treatment would be relevant, Plaintiff cites an excerpt of Rituxan's medication guide, which indicates that some patients who receive the drug develop low antibody levels which may lead to serious infections.
In any event, Plaintiff has failed to show that Oxford purposely blocked off Dr. Lundblad from learning about her course of treatment or that, had he known, the outcome would have necessarily been different. As Dr. Lundblad testified, the issue of whether a member is undergoing chemotherapy or Rituxan treatment is not in and of itself part of the criteria that Oxford considers pursuant to its policy on approving coverage of IVIG treatment. See Berg. Decl., Ex. 9 at 88:7-17; see also Nguyen Aff., Ex. C. He also maintained that Plaintiff's Rituxan treatment "was not a detail that was needed" to make his determination. Berg. Decl., Ex. 9 at 99:4-5. There is thus no basis to conclude that Dr. Lundblad's lack of awareness of Plaintiff's Rituxan treatment is probative of bias resulting from a conflict of interest.
Plaintiff cites Oxford's decision to approve Gamunex treatment in 2013 as further evidence of a demonstrated conflict of interest.
However, the letter Dr. Cuttner submitted on January 10, 2013 in connection with Plaintiff's 2013 claim contrasts sharply with the letter she sent in connection with Plaintiff's 2011 request for continuation of coverage. In 2011, Dr. Cuttner's letter stated that Plaintiff's pneumonia had been successfully treated with antibiotics, her gammaglobulin levels were normal, and that it would be "important" for Plaintiff to
It bears noting that Dr. Lundblad also granted Plaintiff an initial approval, which covered three months of IVIG treatment, based on similar information.
Plaintiff also claims Oxford deliberately assigned Dr. Lundblad to evaluate her claim even though he was purportedly: (1) unqualified to make a medical necessity determination about Gamunex; (2) not Dr. Cuttner's clinical peer; (3) ignored the fact that Plaintiff's condition was life-threatening; and (4) failed to consult with oncologists made available to him by Oxford. Doc. 75 at 11. However, the Court finds these allegations to be either inaccurate or insufficient to support an inference that a conflict influenced Oxford's reasonable interpretation of Plaintiff's claim. Regardless of Dr. Lundblad's qualifications, his determination was affirmed by two other physicians including an external reviewer who is indisputably Dr. Cuttner's clinical peer. See Oxford 000015, 0000122. Furthermore, Plaintiff has failed to introduce evidence showing that such a decision was required to be undertaken by a reviewer with specialized credentials.
As to Plaintiff's assertion that Dr. Lundblad was not a "clinical peer" and ignored Plaintiff's "life threatening" condition in violation of Oxford's own policy, her argument is premised on an erroneous interpretation of the Plan and a misapprehension of Dr. Lundblad's deposition testimony. See Doc. 75 at 11. The Plan provides that adverse medical necessity determinations can only be made by a "clinical peer reviewer." Oxford 000159. While Plaintiff appears to interpret this term literally—i.e., that the reviewer be a clinical peer of the treating doctor—the
Plaintiff contends that "Dr. Lundblad has never injected Gamunex, he did not know who manufactured it, and he did not know when it received FDA approval." Doc. 75 at 12 (citing Berg. Decl. Ex. 9 at 19:3-7). She also notes that Dr. Lundblad "had no idea what S.M.'s IgM levels were in September 2011, or even what the normal range of IgM levels are generally." Id. (citing Berg. Dec. Ex. 9 at 30:4-8). However, Plaintiff cites portions of Dr. Lundblad's deposition testimony that do not support these assertions. Dr. Lundblad simply stated that he "did not recall" Plaintiff's IgM levels prior to September 2011 and that he did not know the normal range for IgM levels "off the top of [his] head." See Berg. Decl. Ex. 9 at 19:3-7. Dr. Lundblad also did not know who manufactures
Finally, Plaintiff claims that Dr. Lundblad ignored the process that he was required to follow, which purportedly compelled him to wait four to six weeks for S.M.'s clinical test results reflecting her IgG and IgM levels without Gamunex, or temporarily denying coverage for four to six weeks until further testing could be done. Doc. 75 at 18. Yet, Oxford's second request for additional information explicitly asked for "documentation of impaired antibody production to specific antigens and history of recurrent infections."
"The administrative record consists of the documents before the claims administrator when the decision regarding benefits was made."
Typically, district courts "have emphasized a plaintiff's burden to allege facts, with sufficient specificity, that would support the existence of `good cause' permitting the admission of additional evidence beyond the administrative record." Krizek v. Cigna Grp. Ins., 345 F.3d 91, 98 n. 2 (2d Cir.2003) (citing Hotaling v. Teachers Ins. & Annuity Ass'n of Am., 62 F.Supp.2d 731, 738 (N.D.N.Y.1999)) (refusing to expand the administrative record where the plaintiff "fail[ed] to allege, with any specificity, whether `good cause' exists sufficient to permit the introduction of additional evidence"). A court's discretion "should not be exercised in cases where a party fails to demonstrate, beyond mere speculation or conjecture, that the `administrative record is inadequate to conduct a proper review of the administrative decision.'" Hotaling, 62 F.Supp.2d at 738 (quoting DeFelice v. Am. Int'l Life Assur. Co. of New York, 112 F.3d 61, 65 (2d Cir.1997)). Good cause may be found "when the procedures employed in arriving at the claim determination were flawed, and when an insurer's claimed reason for denying a claim was not stated in its notices to the claimant." Biomed Pharm., Inc. v. Oxford Health Plans (N.Y.), Inc., 831 F.Supp.2d 651, 658-59 (S.D.N.Y.2011) (citing Locher, 389 F.3d at 295). Such circumstances are not present here and, accordingly, the administrative record will not be expanded.
Both parties operate under the erroneous assumption that this Court has already expanded the administrative record to include Dr. Lundblad's deposition testimony.
Plaintiff also seeks to introduce the Rituxan medication guide and Plaintiff's 2013 IAR. Doc. 86 at 8-9. The Rituxan information that Plaintiff seeks to introduce simply describes the medication and its potential side effects. Berg. Decl., Ex. 19. It does not establish that Plaintiff was being treated with Rituxan at the time or that she was experiencing a side effect.
A similar analysis applies to Plaintiff's 2013 IAR. The Court referenced the 2013 IAR in connection with the conflict of interest analysis, as is allowed. As the Court previously determined, the report itself, along with Dr. Cuttner's associated submissions, establish that Plaintiff's medical condition declined between 2011 and 2013, justifying Oxford's approval of coverage for Gamunex two years later. See supra Part III.B.i.; see also OHP 000011; Nguyen 2d. Aff., Ex. A. Given the fact that the 2013 IAR does not evidence any major procedural irregularities, the Court will not expand the administrative record to include it.
Plaintiff objects to the inclusion of three medical articles that Defendants seek to introduce.
The scope of review under the arbitrary and capricious standard is narrow. Celardo v. GNY Auto. Dealers Health & Welfare Trust, 318 F.3d 142, 146 (2d Cir.2003) (citing Peterson v. Cont'l Cas. Co., 282 F.3d 112, 117 (2d Cir.2002)). "[D]enials may be overturned ... only if the decision is `without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Fay, 287 F.3d at 104 (quoting Kinstler, 181 F.3d at 249). "Substantial evidence" is "such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [administrator and] ... requires more than a scintilla but less than a preponderance." Celardo, 318 F.3d at 146 (quoting Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.1995)) (internal quotation marks omitted). The Second Circuit has stressed that courts are "not free to substitute [their] own judgment for that of the [plan administrator] as if [they] were considering the issue of eligibility anew." Id. (quoting Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir.1995)).
As noted, the Plan provides that Oxford has discretion to deny coverage for any health care service that it determines, in its "sole judgment," to not be medically necessary, as that term is defined by the Plan. See Oxford 000228; see also Doc. 77 at ¶ 3. The Plan states that Oxford may "adopt reasonable policies, procedures, rules, and interpretations to promote the orderly and efficient administration [of the Plan] ... with which Members shall comply." Oxford 000227. Courts have held that this exact "discretionary language" grants Oxford the right to establish guidelines, such as the IVIG policy, to assist with benefits determinations. See Stern, 2013 WL 3762898, at *8 (citing Krauss, 517 F.3d at 622).
It is indisputable that Plaintiff and her oncologist failed to provide Oxford with the information necessary for it to determine that she met the criteria. For an initial request for IVIG treatment, Oxford's IVIG policy states that the documentation required includes office notes indicating the failure of conventional therapy and "clinically significant functional deficiency of humoral immunity as evidenced by documented failure to provide antibodies to specific antigens and a history of recurrent infections," among other information. P-00050. For the continuation of therapy, a member must submit additional information, including documentation of an objective response to therapy and that "the medical condition under treatment has not fully resolved[.]" Id.
Although Plaintiff questions whether she was initially granted coverage for Gamunex as an "exception" to Oxford's IVIG policy, see Doc. 77 at ¶ 32, Doc. 84 at 7, it appears clear that Dr. Lundblad approved coverage of the treatment for three months in spite of the fact that the documents submitted by Dr. Cuttner lacked information as to whether Plaintiff could make antibodies against immunizations or common bacteria. See 000075. In his notes, Dr. Lundblad specifically indicated that "[f]or renewal or continuation, additional clinical information will be required."
Plaintiff maintains that Defendants fundamentally misunderstand the use of Gamunex in non-Hodgkins lymphoma patients. In her briefing, she explains that, "[i]n cancer patients, the injections are given precisely because the patient is unable to produce gammaglobulin naturally, as the cancer patient's immune system is, by definition, deficient." Doc. 75 at 17-18. Plaintiff believes that her claim was denied because IVIG treatment "does not cure the immune system deficiency permanently[.]" Id. at 18. Consequently, she argues that requiring data regarding her ability to produce functional antibodies in response to a vaccine challenge, is "nonsense" because it requires a "miracle." Id. However, Plaintiff appears to misapprehend the nature of the information required under the policy. Under Oxford's IVIG policy, a claimant must demonstrate a documented "failure to produce antibodies to specific antigens." See P-00050 (emphasis added); see also Oxford 000093. Plaintiff's argument is premised on the erroneous assumption that she was required to prove that she could produce antibodies in response to antigens and is therefore based on a misreading of the policy.
Plaintiff further argues that the denial of benefits was arbitrary and capricious because Defendants "ignored" the "life-threatening nature" of her condition, including her non-Hodgkins lymphoma and chemotherapy treatment. Doc. 86 at 3. However, the materials Dr. Cuttner submitted in connection with her request for continuation of coverage contained no indication that she was prescribing Gamunex as part of Plaintiff's cancer treatment or in an attempt to mitigate any side-effects caused by Rituxan. See Oxford 000364-000374. Other than a document containing the word "CHEMO" with "yes" circled next to it, the Court is unable to discern whether Plaintiff was a cancer patient undergoing chemotherapy treatment at that point in time. See id. Nothing in Dr. Cuttner's letter to Oxford indicates that she was prescribing Gamunex in connection with Plaintiff's non-Hodgkin's lymphoma or associated chemotherapy treatment. See Oxford 000364.
Defendants point to several pieces of evidence in the administrative record adequate to support Oxford's conclusion that Gamunex was not medically necessary. First, Dr. Cuttner's letter informed Oxford
Defendants ask the Court to give the external reviewer's decision to uphold Oxford's denial of benefits "substantial deference." Doc. 68 at 19-20. In support of this argument, Defendants cite a decision issued by a district court in the Southern District of Florida. Id. at 19. In Alexandra H. v. Oxford Health Ins., Inc., the court determined that New York's external appeal law is not preempted by ERISA and that, given that the external review decision is binding, it "requires a plan to divest its discretion in favor of the external reviewer's decision."
As a preliminary matter, the Court notes that the external reviewer's decision to uphold the denial of benefits was reasonable.
A claim for breach of fiduciary duty under ERISA typically falls under 29 U.S.C.A. § 1104(a)(1)(B), which requires plan fiduciaries to discharge their duties "solely in the interest of the participants and beneficiaries" and "with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims." ERISA § 1132(a)(1)(B) only allows for relief under the Plan's terms as found by the court; "a court may not `reform' the plan or provide other equitable relief under this section." Miller v. Int'l Paper Co., No. 12 Civ. 7071(LAK)(JLC), 2013 WL 3833038, at *3 (S.D.N.Y. July 24, 2013) (citing CIGNA Corp. v. Amara, 563 U.S. 421, 131 S.Ct. 1866, 1876-77, 179 L.Ed.2d 843 (2011)). In contrast, ERISA § 502(a)(3) allows a "participant, beneficiary, or fiduciary" to bring a civil action seeking "(A) to enjoin any act or practice which violates any provision of [ERISA] or the terms of [a] [benefit] plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA] or the terms of [a] plan." This provision has been interpreted as creating a cause of action for claims that a fiduciary has violated ERISA by "providing false or misleading information regarding benefits or... has failed to provide notices that are required by statute." Miller, 2013 WL 3833038, at *3 (internal citations omitted).
Plaintiff fails to identify the statutory basis that is the predicate for her breach of fiduciary duty claim. The Amended Complaint merely asserts that "Defendants owed S.M. a fiduciary duty in determining the medical necessity of S.M.'s treatment in accordance with the Plan" and that they breached their fiduciary duties "by putting their own interests ahead of Plaintiff's." Am. Compl. ¶ 47. In its prayer for relief, the Amended Complaint requests a "[d]eclaration that Defendants have breached their fiduciary duties under the Plan by employing a sham appeal process." See Am. Compl. However, in her moving papers, Plaintiff asks the Court to either allow her to proceed with a fraudulent concealment claim against Defendants or find that they breached their fiduciary duty under ERISA by failing to provide the external reviewer with Plaintiff's 2011 IAR. Doc. 75 at 21. Plaintiff alleges that Williams, the Oxford employee who prepared the materials submitted to the external reviewer, omitted and misrepresented several pieces of information in her submissions to MCMC. Id. at 20. Plaintiff further requests the Court to "reform the terms of the plan to require Oxford always to provide all Individual Authorization Reports to external reviewers;" or to enjoin Defendants from excluding production of the report to external reviewers. Besides the fact that this allegation
"Injunctive relief is generally appropriate only when there is an inadequate remedy at law and irreparable harm will result if the relief is not granted." Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 103 (2d Cir.2005). In order to obtain injunctive relief under ERISA § 1132(a)(3), a plaintiff must show irreparable harm and the inadequacy of legal remedies. Id. (citing Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 68 (2d Cir.1999)). Here, as in Nechis, Plaintiff cannot satisfy the conditions required for injunctive relief as any harm to her can be compensated by money damages that would allow her to recover the value of benefits wrongly denied. In an affidavit submitted to the Court, one of Plaintiff's counsel of record states that "[f]rom December 2011 to February 2012, S.M. was treated with 3 injections of Gamunex[,]" which she and her husband paid for out-of-pocket. Matays Aff. ¶ 4. Plaintiff does not cite any damage that she suffered as a result of discontinuing her Gamunex treatment in February 2012.
The only arguably equitable relief that the Amended Complaint seeks consist of: (1) a permanent injunction enjoining Defendants from denying Plaintiff from "learning the basis of, including the identity and qualifications of, the doctors defendants rely on in reaching `not medically necessary' conclusions[;]" and (2) a declaratory judgment requiring Defendants to "disclose the monetary relationship between Oxford/UnitedHealth and any private company purporting to conduct an external appeal[.]" Am Compl. However, Plaintiff never claims that Oxford denied her this information. Plaintiff was indeed provided with the basis for Oxford's medical necessity determination and informed of her right to obtain a copy of the clinical review criteria free of charge in both of the letters she received from Oxford. See Oxford 000094-95, 000101-03. The first letter notifying Plaintiff of Oxford's initial adverse determination provided Dr. Lundblad's name and phone number, indicating that if Plaintiff's provider had any questions regarding the decision,
Plaintiff's papers also demand "disgorgement from defendants of all ill-gotten gains, and to prevent defendants' unjust enrichment." Doc. 75 at 23-24. Specifically, Plaintiff is seeking restitution of her premium payments from December 2011 through December 2012 totaling $71,607.68. Id. First, the Court has already determined that Oxford's denial of coverage was not arbitrary and capricious; there is, therefore, no factual basis for the claim. Second, in Nechis, the Second Circuit determined that the plaintiff was not entitled to the disgorgement of premiums she paid for health care coverage under § 502(a)(3) of ERISA. 421 F.3d at 103-104.
Putting Plaintiff's demands for relief aside, Plaintiff has not shown that Oxford breached its fiduciary duties to her at any point in time. "A fiduciary breaches his § 1104 duty to a plan participant by preventing or interfering with the receipt of benefits to which the participant is entitled." Blatt v. Marshall & Lassman, 812 F.2d 810, 813 (2d Cir.1987). The administrative record supports the conclusion that Oxford conducted a thorough and fair review of Plaintiff's claim, which included various requests for additional information, phone calls with Plaintiff's provider, and an internal appeal that was ultimately upheld by an external reviewer. See P00040-41, Oxford 000019-21, 000124. As to Williams' conduct, which is discussed more thoroughly below, Plaintiff has failed to raise an inference of wrongful conduct, let alone fraud. Nor does Plaintiff allege that Williams was performing anything other than a ministerial task when she responded to MCMC's request. "[A]llegations regarding the negligent and even the intentionally poor performance of administrative tasks cannot suffice to constitute breaches of fiduciary duties[.]" Forgione v. Gaglio, No. 13 Civ. 9061(KPF), 2015 WL 718270, at *10 (S.D.N.Y. Feb. 13, 2015) (citing Bell v. Pfizer, Inc., 626 F.3d 66, 74 (2d Cir.2010) ("Falling outside these limits [of the term `fiduciary'] are plan employees who perform ministerial tasks with respect to the plan, such as the application of rules determining eligibility for participation, preparation of plan communication materials, the calculation of benefits, and the maintenance of employee records.")). "Finally, where a plaintiff asserts a breach of fiduciary [duty] claim based on a material misrepresentation or omission, the plaintiff must establish detrimental reliance." Bell, 626 F.3d at 75 (citing King v. Pension Trust Fund of the Pension Hospitalization & Benefit Plan of the Elec. Indus., 131 Fed.Appx. 740, 742 (2d Cir.2005)). As explained below, Plaintiff has failed to allege or show detrimental reliance. This, in addition to the fact that Plaintiff does not seek appropriate equitable relief under § 1132(a)(3), justifies dismissal of any breach of fiduciary duty claims that Plaintiff is attempting to assert.
Plaintiff asks the Court to sever her claims for fraudulent concealment, empanel a jury, and hold a trial. Doc. 75 at 21. However, the Amended Complaint makes no mention of a fraudulent concealment claim, which Plaintiff raises solely in her moving papers. On January 10, 2012, MCMC submitted a request to Oxford for "all relevant medical records and treatment
Doc. 75 at 20. Plaintiff also notes that Oxford's submission failed to include her 2011 IAR. Id. at 19. Defendants argue that Plaintiff is attempting to "assert a fraud claim on summary judgment and circumvent Rules 15(a) and 9(b) of the Federal Rules of Civil Procedure." Doc. 87 at 9-10. They further contend that Plaintiff's fraudulent concealment claim is preempted by ERISA. Doc. 79 at 23.
There are three independent bases to deny Plaintiff's request. First, Plaintiff's motion must be denied because the court has already determined that, to the extent Plaintiff "only challenges a medical necessity determination that was required under the terms of an ERISA-regulated plan," her claims are preempted because Defendants' "actions implicate no other independent legal duty."
Plaintiff's motion to sever may also be denied on the basis that she did not allege a fraudulent concealment claim in the Amended Complaint. Nor will the Court sua sponte grant Plaintiff leave to amend where she has not requested it.
Finally, to the extent the basis for the proposed claim is contained in Plaintiff's summary judgment papers, it is evident that her allegations are insufficient to state a claim. Under Federal Rule of Civil Procedure 9(b), claims for fraud, including claims for fraudulent concealment, must "state with particularity the circumstances constituting fraud or mistake." Fed.R.Civ.P. 9(b). Under New York law, which Plaintiff invokes, fraudulent concealment requires proof of: "(1) failure to discharge a duty to disclose; (2) intention to defraud, or scienter; (3) reliance; and (4) damages." Ferring B.V. v. Allergan, Inc., 932 F.Supp.2d 493, 511 (S.D.N.Y. 2013) reconsideration denied, No. 12 Civ. 2650(RWS), 2013 WL 4082930 (S.D.N.Y. Aug. 7, 2013) (quoting TVT Records v. Island Def Jam Music Grp., 412 F.3d 82, 91 (2d Cir.2005)). In her papers, Plaintiff has failed to adequately allege reliance or damages. She provides no indication that either she or MCMC reasonably relied on Defendants' alleged misrepresentations and omissions.
Plaintiff's characterization of Williams' submission to the external reviewer as "fraudulent" is meritless. As a preliminary matter, Plaintiff fails to cite any authority for the proposition that Oxford was required to provide the IAR. Plaintiff's claim that Williams' representation that coverage was approved for three months as an exception "appears nowhere in the contemporaneous evidence" is inaccurate. On December 7, 2011, Dr. Lundblad wrote in Plaintiff's IAR, "[p]reviously approved for 3 months as an exception in the setting of a life threatening pneumonia." Oxford 000020. The only apparent reason for Plaintiff contesting this statement is because Oxford did not directly inform her that it was granting coverage as an exception to its policy. That in itself does not make Williams' statement misleading or untrue. The fact that Plaintiff's own doctor did not cite her Rituxan treatment as a justification for prescribing Gamunex casts further doubt on the implication that Williams actively concealed the fact that Plaintiff underwent Rituxan therapy. Lastly, the external reviewer stated that he had sufficient information to make a determination. Oxford 000123.
Plaintiff's motion to sever is denied.
ERISA § 502(c) provides:
29 U.S.C. § 1132(c) (emphasis added).
The Amended Complaint states that Defendants "failed or refused" to respond to Plaintiff's January 10, 2012 letter requesting information in a timely manner. Am. Compl. at ¶ 43(c). Plaintiff's January 10, 2012 letter asked Oxford to produce certain records, including "all notes or other instruments prepared" by the reviewing physicians and "any and all materials that the previously referenced physician[s] relied upon" in analyzing Plaintiff's request for coverage. P-00042. Plaintiff's papers clarify that Defendants failed to timely produce the following items: (1) Dr. Lundblad's receipt of Dr. Cuttner's December 2011 facsimile; (2) the complete file of the information Williams submitted to MCMC; and (3) five IARs. Doc. 86 at 15. Plaintiff indicates that Defendants finally produced (1) the 2011 facsimile on December 13, 2013, (2) the file Williams submitted on December 12, 2013, and (3) one of the IARs on April 1, 2014. Id. Plaintiff also objects to the fact that Defendants have introduced the three medical journal articles as part of the administrative record after Plaintiff demanded that they confirm that the entire administrative record had been produced on December 12, 2013. Id. Consequently, Plaintiff calculates statutory penalties totaling $79,500. Id.
Plaintiff has not demonstrated that she is entitled to penalties under 29 U.S.C. § 1132(c). In determining whether Plaintiff is entitled to a statutory award, the Court may consider whether Plaintiff was prejudiced by Oxford's alleged failure to respond. See Grohowski v. U.E. Sys.,
A plaintiff's request for attorney's fees in an ERISA action is governed by 29 U.S.C. § 1132(g)(1), which provides: "[i]n any action under this subchapter ... the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." An ERISA plaintiff "must show `some degree of success on the merits' before a court may award attorney's fees under § 1132(g)(1)[.]" Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 255, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) (quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983)). "A claimant does not satisfy that requirement by achieving `trivial success on the merits' or a `purely procedural victor[y],' but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a `lengthy inquir[y] into the question whether a particular party's success was `substantial' or occurred on a `central issue.'" Id. (quoting Ruckelshaus, 463 U.S. at 688 n. 9, 103 S.Ct. 3274).
Plaintiff has not achieved any success on the merits. Therefore, she is not entitled to attorney's fees or costs.
For the reasons set forth above, Plaintiff's Motion for Summary Judgment is DENIED and Defendant's Motion for Summary Judgment is GRANTED. Plaintiff's motion to sever is DENIED. The Clerk of the Court is respectfully directed to terminate the motions, Docs, 66, 67, and to close this case.
It is SO ORDERED.
Plaintiff also points to the fact that Dr. Lundblad was purportedly unaware of Oxford's urgent care policy. See Doc. 75 at 14. However, Oxford's urgent care policy is separate from its policy concerning medical necessity determinations and is not at issue in this case. Compare Oxford 000154-000155 (detailing Oxford's urgent care policy), with Oxford 000159-000160 (describing Oxford's policy on medical necessity determinations).
N.Y. Ins. Law § 4910(b)(1).
See Doc. 75 at 19. However, the exhibit Plaintiff cites, which consists of MCMC's request for information, fails to include this quoted language. See Berg. Decl., Ex. 12.
