Disability claimants often attack the ERISA plan’s expert medical reviewer as biased, sometimes seeking discovery in an attempt to show bias.

Here’s a new case that highlights what can happen in a de novo review case: No discovery about a medical expert allowed.

Shaikh v. Aetna Life Ins. Co., 2019 WL 1571876 (N.D. Cal. April 11, 2019)(In de novo review case, the Court denied discovery related to alleged bias of medical reviewers).

FACTS: Plaintiff Shaikh sought ERISA-governed long term disability benefits. He alleged the independent reviewer retained by Aetna was biased and sought limited discovery about the medical reviewer including: (a) total annual compensation Aetna paid the medical reviewer from 2007; (b) the number of hours per week the medical reviewer actually treats patients (rather than performs record reviews).

ISSUE: Was Aetna compelled to answer discovery about the medical reviewer?

DISTRICT COURT HELD:  NO.

  1. New evidence may be considered by a court performing de novo review only in “exceptional circumstances.” Op. at 2.
  2. “‘It makes little sense to allow broad and costly discovery when the court’s review of the merits is limited to the administrative record (except in narrow circumstances where additional evidence is necessary to conduct an adequate de novo review).’”  Op. at 2.
  3. ”[S]everal district courts in this circuit have held that the mere fact a physician receives compensation from a plan administrator for performing medical reviews is insufficient by itself to be probative of bias.” Op. at 3 (emph. added).
  4. “Permitting the requested discovery in this case is inconsistent with the limitations [the Ninth Circuit] contemplates on extra-record evidence in de novo cases.” Op. at 4.

 

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Mike Reilly is a nationally recognized labor, employment and employee benefits attorney, named one of the “Top 100 Most Powerful Employment Attorneys in the Nation” for the past five consecutive years by Human Resource Executive®. He has decades of experience providing strategic employment advice, and has represented clients in more than 75 jury trials, arbitrations, bench trials and claims before the EEOC and Washington State Human Rights Commission.

Small and large employers retain Mike for his strategic advice and decades of experience in employment issues and litigation, business decisions and litigation avoidance. Mike provides advice in claims involving discrimination, retaliation, wrongful discharge, disability accommodation, ERISA and non-ERISA employee benefit claims, and wage/hour claims. He served as lead counsel in an employee raiding/trade secret case as reported in the Wall Street Journal, and defends employers in class action claims.

Mike’s remarks on employment issues have been quoted in NewsweekCorporate Legal TimesSeattle TimesEmployee Relations Law JournalPuget Sound Business JournalCFO.com, and other professional journals and management publications. Chambers USA’s Guide to America’s Leading Lawyers for Businessrates Mike in the top ranking (band one) for his work in labor and employment law, and has described him as “one of Seattle’s top-rate attorneys” who is “truly phenomenal [with] superb legal instincts” and “an amazingly assertive litigator.” His clients include Nordstrom, Seattle Seahawks, Home Depot, KeyBank, Starbucks, Fred Hutchinson Cancer Research Center, Red Robin and Seattle Chamber of Commerce, among others.