*1 surе, ordinary lay person an be- probably plaintiffs’ exposure; fects of the and at- assumption tongue an that black gins tributing with causation on the basis of order of something gone wrong, but is evidence lay (jurors events—are the people reasons question something alike) here is what that is judges are advised to take ex- chargeable and whether is to the defen- guidance in pert drawing scientific conclu- Thomas, 400 dants’ actions. See N.W.2d sions. I believe our require courts should (rejecting argument at similar to an guidance. I respеctfully dissent. “injury plaintiffs’ suscep- because the all explanations,
tible to a number of required knowledge medical to dis-
cern.”). reliance, 20-21, at majority’s pages
on Dr. that pesticide Natzke’s statement
exposure tongue could cause black to show jury possess knowledge that the would Sherry DeLISLE, Plaintiff-Appellee, necessary to make a reliable attribution of First, persuasive. fault is not Dr. Natzke say ‘plaintiffs’ injuries does not LIFE SUN ASSURANCE CO. OF pesticides are the result of or even that CANADA, Defendant- pesticides tongue.
these could cause black Appellant. Second, only is there a lack of knowl- No. 08-1142. edge about, about how the condition comes reliance on Natzke’s per- statement would United States of Appeals, Court lay people mit to make a determination Sixth Circuit. about the cause of unfamiliar medical only post tempo- condition based on a hoc Argued: Oct.
ral connection and an abstract statement Decided and Filed: March aof risk of harm.
IV
We need look no further than this
case for an illustration of the concerns
underlying my belief that these standard require expert care and causation issues
explanation. The majority’s flaws
reasoning eliding the difficult scientific —
questions; conflating colloquial usage of “high
terms like “toxic” and dose” with
scientific conclusions about health ef- bismuth, containing Pepto- by plaintiffs cations such as OSHA document included in the Bismol; (4) regular use of mouthwash con- summary judgment record describes (5) taining oxidizing agents; drinking ex- diagnosis “Multiple their Chemical Sensi- cessive amounts of coffee or tea. See Alan "[tjhere tivities” admits that insufficient Carr, Hairy Tongue? What Causes Black relationship scientific evidence to confirm a Mayo Specialist, Clinic: Ask a Dental avail- possible symptoms.” between ... causes and http://www.mayoclinic.com/health/ able J.A. 564.
black-hairy-tongue/HQ00325. Similarly, an *3 Schmidtke,
ARGUED: Mark E.
Ogle-
tree, Deakins, Nash,
Stewart,
Smoak &
P.C., Chicago,
Illinois,
Appellant.
for
John
Conway,
P.C.,
J.
John
Conway,
J.
Detroit, Michigan,
Apрellee.
for
ON
BRIEF:
Schmidtke,
Mark E.
Ogletree,
Deakins, Nash,
Stewart, P.C.,
Smoak &
Illinois,
Chicago,
Black,
Brian D.
Ogletree,
Deakins, Nash,
Stewart, P.C.,
Smoak &
Greenville,
Carolina,
South
Appellant.
for
Conway,
P.C.,
John J.
Conway,
John J.
Detroit, Michigan, for Appellee.
BATCHELDER,
in a
MARTIN,
spinal
and or
fusion. DeLisle was involved
Before
DAUGHTREY,
in which
re-
second car crash
she
Judges.
Circuit
injured
spine
and suffered a closed
MARTIN, J.,
opinion
delivered
injury.
working
head
She continued
after
DAUGHTREY, J.,
court, in which
crashes,
the care of three
these
under
448-50),
BATCHELDER,
(pp.
J.
joined.
providers. They
healthcare
inсluded Dr.
dissenting opinion.
separate
delivered a
Ho, neurosurgeon,
Rudy,
doctor
osteopathy,
Cushing,
and Diane
a licensed
OPINION
professional counselor who treated DeLisle
JR.,
MARTIN,
F.
Circuit
BOYCE
“cognitive
therapy.”
behavioral
Judge.
*4
17, 2002, Krandall
April
On
fired DeLi-
the district
appeals
Defendant Sun Life
Life,
because,
reported
as it
to Sun
she
sle
of
court’s decision that Sun Life’s denial
job.”
doing
“she was not
her
The record
Plaintiff
disability benefits to
long-term
“not
does not reveal whether DeLisle
do-
arbitrary
capri-
and
Sherry DeLisle was
job”
injury
was relаted to
or sick-
ing her
agree
We
with the district court
cious.
unemploy-
ness.
filed for state
DeLisle
Life’s determination did not re-
that Sun
benefits,
in
stating
application
ment
her
principled
from a deliberate and
rea-
sult
that she was fired
to “lack
due
of work.”
AF-
process. Accordingly, we
soning
job
She worked at another
for about two
FIRM.
weeks,
fired, because,
but was
as she re-
ported
Cushing,
ground
she “held [her]
I.
may
about how
hours
would work.”
[she]
Sons,
Sidney
jewel-
a retail
Krandall &
December,
eight
In
about
months after she
er,
Sherry
as Director
employed
DeLisle
Krandall,
a
was fired from
DeLisle filed
January 1996 until
Operations
from
long-term disability
claim for
benefits with
Krandall, DeLisle
April 2002. While at
her claim with
supported
Sun Life. She
disability plan,
in
participated
its
attending
her medical records and five
by group policy
long
was funded
term
statements,
finding
all
physician
her dis-
disability
insurance issued
Sun Life.
performing
occupa-
abled from
her “own
policy, disability
occurred when:
Under
day of work
April
tion” as of
17—her last
Elimination Period and the
[Djuring the
at Krandall.
months,
Employee,
next
Sickness,
per-
Injury
or
is unable
In
the Sоcial
Administra-
and
form the Material
Substantial
that DeLisle was disabled
tion determined
Occupation. After
Duties of his Own
eligible
Security Disability
and
for Social
Disability
Total or Partial
benefits com-
payments
effective
Insurance
months,
for 24
paid
bined have been
this,
Despite
Life denied DeLi-
Totally
will continue to be
Employee
ap-
its decision on
upheld
sle’s claim and
perform
if
with
Disabled
he is unable
that she was “not covered”
peal, finding
continuity any
reasonable
Gainful Occu-
“ac-
because she was not
policy
under its
is or becomes rea-
pation for which he
tively
at work” when her
arose.
education, train-
sonably qualified
in
court
challenged
DeLisle
this
district
ing
experience.
or
502(a)(1)(B) of ERISA. 29
under Section
1132(a)(1)(B).
§
The district court
In
DeLisle was involved in a car U.S.C.
head, neck,
arbi-
crash,
inju-
decided that Sun Life’s denial was
suffering
and back
trary
and set aside its deci-
capricious
a full anteri-
and
ries for which she underwent
sion, ordering
granted
it to determine whether De-
judgment
DeLisle’s motion for
on
day
Lisle was disabled
Krandall
the administrative record on October
1Y,
fired
-Aрril
2007 because Sun Life’s denial of benefits
her—
capricious.
Delisle v.
court,
On remand from the district
Can.,
Assurance Co.
2007 WL
Life considered DeLisle’s medical evi-
(E.D.Mich.
2007).
Oct.
opinions
dence which included
from Dr.
district court sent
claim
back to
Ho, Cushing,
Rudy,
Dr.
all of whom
amount,
Sun Life to determine her benefit
in
had treated her
the months before her
pay
later ordered Sun Life to
firing.
gave
opinions
also
Sun Life
She
attorneys’
appeals.
fees. Sun Life now
Noomie,
about her condition from Dr.
Kerkar,
chiropractics,
doctor of
in
specializing
pain
medical doctor
man-
II.
Branca,
agement,
neuropsychol-
and Dr.
We “review de novo the decision
ogist.
providers diagnosed
Those
her as
judgment
of a district court
granting
an
inju-
suffering from: neck and low back
ERISA
action
based on
ad
ries,
disease,
including degenerative disc
MetLife,
ministrative record.” Glenn v.
(a
radiculopathy
resulting
condition
from
*5
(6th
Cir.2006),
461 F.3d
aff'd,
Met.
damage),
injury,
nerve
closed head
chronic
—Glenn,
U.S. -,
Ins.
v.Co.
Life
pain syndrome, post
syndrome,
traumatic
(2008).
If,
S.Ct.
pealed and Sun Life sent her medical rec- ords to three Dr. including more reviewers III. Johnston, Pies, neuropsychologist, psychiatrist, Corzatt, and Dr. an orthope- This Court considers several fac surgeon. dic Five of the six file reviewers reviewing tors in a plan administrator’s were regular independent contractors with decision, including the existence of a con Sun Life. After the gave reviewers interest, flict plan the administrator’s opinions, upheld Life their it its earlier consideration of the Social Ad denial. determination, ministration quality and the again
DeLisle sued Sun Life
quantity
under
and
of medical
opin
evidence and
502(a).
Here,
ERISA Section
The district court
ions. Id.
we also review Sun Life’s
from Krandall said
deny
that someone
ports
evidence
on non-medical
reliance
not
fired “because she was
DeLisle was
benefits.
job.” There is no further docu-
doing her
Interest
A. Conflict
from Krandall
explanation
mentation or
surrounding the
the circumstances
about
recently held
Court
Supreme
attorney’s characteriza-
Life’s
firing. Sun
for ERISA
interest exists
that a conflict of
“terminated for cause” discounts
tion as
plan
administrator
purposes where
conclusion that “she was
possible
claims, even
benefits
pays
evaluates
injury”
or
job”
“sickness
doing her
here,
is an
when,
the administrator
job’s]
perform
“to
[her
left her unable
and not the beneficia
company
insurance
duties.” Of
and material
substantial
Glenn,
2348-
128 S.Ct. at
employer.
ry’s
course,
job
her
ability to perform
weight to the conflict
give more
50. We
very
Life wanted the
question
was the
higher
suggest a
“where circumstances
medical file reviewers
answer. Without
deci-
affected
benefits
likelihood
more,
was fired
assertion that she
the bald
sion_”
may
A
af-
conflict
Id. at
incom-
gave the file
“for cause”
reviewers
ways.
in several
a benefits decision
fect
prejudicial informa-
plete
potentially
although
physi-
example,
treating
For
tion,
irrelevant to
should have been
cases,
in ERISA
apply
cian rule does not
DeLisle’s abili-
assessment of
impartial
acknowledged
has
Supreme
Court
particular day.
ty
perform
job
by benefits
repeatedly retained
“physicians
bias in the
an increased risk of
We find
to make
may
an incentive
plans
have
a conflict-
process
file review
when
medical
in order to save
‘not disabled’
finding of
information to
gives
administrator
ed
their
money
preserve
employers
their
independent contractor-consultants
regular
&
consulting arrangements.” Black
own
*6
negative
in a
the claimant
portrays
Nord,
Disability Plan v.
538 U.S.
Decker
improper communications
light. These
1034
822, 832,
155 L.Ed.2d
123 S.Ct.
suggest
“procedural unreasonableness”
(2003).
has observed
And our own Court
giving
in
more
the court
“justifies
which
de-
plan
administrator both
that when
Glenn, 128
weight
the conflict.” See
to
benefits,
pays
it has
claims and
cides
consider
properly
thus
S.Ct. at 2352. We
consul-
to contract with
“clear incentive”
to make a find-
the “incentive”
evidence of
that a
are “inclined to find”
tants who
determining
disabled” in
ing of “not
to
Kalish
is not
benefits.
claimant
entitled
arbitrary
Life’s decision
whether Sun
Assurance,
Mutual/Liberty
Liberty
Kalish,
from the Social Administration’s. sis for concluding that the administrator Hartford, Glenn, Whitaker v. 949 abused its discretion. See (6th Cir.2005). Nonetheless, the at Social Se- S.Ct. 2352.
curity Administration’s decision “is far Calvert, meaningless.” from 409 F.3d at Quality Quantity C. Although no technical there is re- of Medical Evidence quirement to explicitly distinguish a favor- evidence, In considering the medical we able every Social determination in first argument address Sun Life’s that the case, court impermissibly district shifted the (1) plan [i]f administrator encour- proof burden of to Sun Life to disprove ages applicant apply for Social as of In (2) Security disability payments; finan- support of its argument, points Sun Life cially applicant’s benefits from the re- the district court’s observation that Sun (3) ceipt Security; of Social and then Life’s file reviewers “cannot state conclu- explain why fails to taking position it is sively that not [DeLisle] was disabled on different from the on question SSA the Delisle, April 17.” 2007 WL disability, reviewing court should *10. While Sun Life is correct that DeLi- weigh this in favor of a finding that the sle proving carries the burden of her dis- capricious. decision was ability, the district court’s observation Servs., Kemper Bennett v. Nat’l 514 F.3d context, must be proper considered its Cir.2008). which was at the survey conclusion of its Here, the terms of Sun Life’s re- the medical evidence submitted both quired that apply DeLisle for Social Secu- context, In sides. it becomes clear that rity Disability benefits and to appeal the the district court’s properly observation is denial all “to administrative levels Sun characterized as an quali- evaluation of the necessary.” So, Life deems she was re- ty reasoning prоcess of the that Sun Life quired, merely encouraged apply. undertook and was not a burden shift. Sun Life also received a financial offset Notably, opinion the district court’s did not liability from future based on DeLisle re- rely any failure Life to disprove *7 ceiving Security Disability Social benefits. disability. Rather, DeLisle’s it concluded And none of the three denial letters Sun “given the [Sun consultants’ con- Life] Life sent DeLisle mentions her Social Se- cessions, the SSA determination of total curity determination as factor that Sun disability, and the inherent conflict in- of reaching Life considered in its own deter- terest, major factors to be considered Only mination. one of Sun Life’s file re- in fall favor of Plaintiff.” Id. acknowledged viewers even in report his
that he
aware
Security
was
of the Social
A court’s
review for
and
determination. Even though
capricious
Sun Life did
decision-making
in
“inherently
opinion
not have the
accompanying the
cludes some review of the quality and
award,
notice of
it still was well aware of quantity of the medical evidence and the
the uniform federal
applies
standard that
opinions on both
of
sides
the issues.” Mc
Security
Donald,
to Social
claims. Sun
si-
Life’s
“memory retrogression,”
personal
psychological, physiological,
Life’s reliance
Finally, we consider Sun
adjustments of severe limita-
and social
evidence,
specifically
on nоn-medical
Life, Dr.
In an interview with Sun
tion.”
until she
continued to work
fact DeLisle
explained
“although
Ho
fired,
only
months later
several
4/17/2002,
period
date is
recent-
claimed to be disabled. This Court
long
have been
before that.”
could
case where
em-
ly considered a similar
working, but later claimed
ployee stopped
including
experts,
Sun Life’s
*8
day
last
of
disabled on his
O’Connor,
Himber,
Dr.
that he was
Dr.
Dr. Pies and
Am.,
N.
Ins. Co.
Sarni,
work. Rochow
diagnoses,
with the
largely agreed
Cir.2007).
Rochow,
(6th
In
they
De-
en months after his had Life’s deniаl of long-term disabil- Nevertheless, lapsed. argued ity he that he interest, benefits. The conflict of im- day was on the last he proper disabled was work- communication from Sun Life’s at- ing employer. reviewers, for In affirming torneys his the to file and failure to district that court’s decision the denial of acknowledge the Social arbitrary and capricious, benefits was this in determination the face of substantial Court ‘logical observed that “there is no indicating medical evidence progres- the full incompatibility working between time sive nature of DeLisle’s show being and disabled from full working that Sun Life engage princi- did not in a ” (quoting time.’ Id. at 865 pled, Hawkins v. reasoning process. deliberative We Corp. Long-Term Disability First Union therefore conclude that Sun Life’s decision Plan, (7th Cir.2003)). 326 F.3d deny 918 long-term benefits was arbitrary The same is true here. capricious. and Accordingly, we AFFIRM judgment the of the district court. denial, support
In further of its points Sun Life out that Cushing’s treat DISSENT
ment notes state that DeLisle reported she personality was fired “based on issues vs. BATCHELDER, M. ALICE Circuit job performance.” report But this does Judge, dissenting. possibility not foreclose the that DeLisle dissent, I respectfully because I believe was day nonetheless disabled on the she that the district court apply failed to firing was fired or that the was related to appropriate “Where, standard of review. injury. her sickness or says Sun Life also here, an insurance administrator is employment DeLisle’s two-week else vested with interpret discretion to following where firing is evidence she plan, we review the denial of benefits un- April not disabled on It is not arbitrary der the capricious standard.” brief, reasonable to conclude from a ulti Am., Rochow v. Ins. N. Co. 482 mately work, attempt unsuccessful Cir.2007) F.3d 865 (citing Fire- DeLisle was not job disabled from her Bruch, stone Tire & Rubber Co. v. 489 day Krandall on the she was fired. Final 101, 115, U.S. 109 S.Ct. 103 L.Ed.2d ly, DeLisle’s application unemployment (1989)). “This standard ‘is the least listing benefits and “lack of work” as her demanding judicial form of review of ad- not, reason for Krandall firing her does ministrative action.... possible When it is the face of the substantial medical evi to offer a reasoned explanation, based on indicating dence suffering that she was еvidence, particular outcome, for a from a injury major traumatic head ” outcome capricious.’ is not time, depression at persua amount to Evans v. Corp., UnumProvident 434 F.3d sive evidence that DeLisle was able to (6th Cir.2006) (quoting Killian v. complete job duties of her Adm’rs, Inc., Healthsource Provident And especially this is pro true where the (6th Cir.1998)). “Conse- gressive diagnoses nature of her may have quently, a decision upheld will be ‘if it is made it difficult acknowledge for her to the result of a principled deliberate rea- her disability. soning process, and if it supported by *9 ” substantial evidence.’ Id. CONCLUSION Even highly under the deferential stan- Although the district court acknowl- review, dard of uphold we cannot edged Sun that presented Sun Life had sig-
449 conditions, that they all concurred in Lisle’s evidence of medical quantity nificant she evidence that insufficient was there the disability, no finding of itsof support 17, 2002. When April as of was disabled evi of this quality the discounted court determination, Sun that appealed DeLisle had difficul court the Specifically, dence. review physicians three additional Life had reviewing Life’s fact that ty the Sun with too, DeLi- agreed that They, records. the “veritable DeLisle’s conceded professionals finding support not did sle’s information nonetheless but afflictions” of cornucopia that court noted disability. The district of In not disabled. that she was concluded found consultants medical “[Sun Life’s] likely ex most opinion, “[t]he the court’s but, maladies many of [DeLisle’s] bases for was termination for DeLisle’s planation” examinations, conducting personal without of as a disabled result had become that she on of thesе maladies the effect discounted Un condition. deteriorating physical her Had inability [Sun to work. ability her or standard, arbitrary-and-capricious der major di- disputed consultants Life’s] reviewing for a however, improper it is this case physicians, of agnoses [DeLisle’s] sub or conflicting evidence weigh court to DeLisle result.” a different might reach plan that of for judgement stitute its until benefits plan claim for not file her did Tech v. United Gismondi administrator. termi- date of her months after the eight (6th 295, Cir. 298 nologies Corp., reviewing Life’s point, At that Sun nation. Acci & 2005); v. Whitaker Hartford medical rely to on available physicians had 947, Co., 949-50 404 F.3d Ins. dent not observe they could because records .2005). Cir it existed physical condition DeLisle’s sup- in the record evidence Substantial is no 2002. There April on or about was findings that DeLisle Life’s ports Sun professionals these that reason to conclude Kran- Sidney job from her terminated opinion reaching an capable of less were her unrelated to for reasons & Sons dall on those rec- disability based on DeLisle’s as of not disabled that she was health and making indepen- of they were ords than of her termination. the date may weight we Whatever diagnoses. dent her terminated day same Krandall The evidence, it Life’s give be inclined Di- therapist, DeLise told employment, ex- “a support reasoned was sufficient fired.” Cush- “got Cushing, that she ane long- Life’s denial of for Sun planation” firing *10 450 criteria; eligibility
under its own she did treating physician, case, in a may close not an accompanying opinion submit or finding ”); favor a of ‘disabled.’ see also anything else indicating the basis of the Williams, Eastover Mining Co. v. 338 SSA’s majority recog- decisiоn. As the (6th 501, Cir.2003) F.3d (“[Tjreating nizes, plan’s disability “the may criteria physicians may strong have pro-claimant Security differ from the Social Administra- biases and lack expertise by the held non- tion’s.” Majority Op. at 6. example, For doctors.”). treating Life, in its role as conclusion could SSA’s have been influ- administrator, weighed opinions of the greater enced treating deference to experts professionals sided with the physicians applies in the SSA context had retained. Given the substantial evi- but in ERISA actions. See Black & supporting dence a finding disability, of no Nord, Disability Decker Plan v. 538 U.S. DeLisle any has failed to show how conflict 822, 832-33, 123 S.Ct. 155 L.Ed.2d of interest caused Sun Life to abandon a (2003) (declining import to treating reasoned, decision-making process. physician rule from the Social Act I Accordingly, would REVERSE the ERISA). to judgment of the district court. Finally, the district court noted Life had conflict of interest in that it was
both administrator and insurer
and therefore had an deny incentive claim, especially given young
age. Fin., Inc., Calvert v. See Firstar Cir.2005). The Su
preme Court has declined to adopt a less- deferential standard of where a review Margarita DIAZ-ZANATTA, Luisa
conflict of interest exists:
the conflict is
Petitioner,
“but
among many
one factor
that a review
ing judge must take into account.” Metro
—
politan
Glenn,
Ins. Co. v.
U.S.
HOLDER, Jr.,
Eric
Attorney
H.
-,
2343, 2351, 171
128 S.Ct.
L.Ed.2d 299
General, Respondent.
(2008);
Calvert,
see also
disability, DeLisle’s treating physicians may
likewise have been to find a motivated
disability.
Decker,
See Black &
538 U.S.
(“[I]f
engaged by a plan may have an ‘incentive’ disabled,’ make a finding of ‘not so a notes ing’s recite session disability benefits. term job vs. issues personality was “based held that court also district representative A Krandall performance.” to the consideration give due failed DeLisle “was to Sun Life reported Security Administration’s Social doing her she was terminated to con a failure Although determination. state unem- application an job.” In determination is factor an SSA sider she benefits, stated that DeLisle ployment denial, Metro a claim Glenn reviewing due to “lack job at Krandall lost her Co., 461 F.3d Ins. politan Life employ- other DeLisle secured work.” — -, (6th Cir.2006), aff'd, U.S. over a later fired two weeks ment but (2008), “an 171 L.Ed.2d S.Ct. hours. about her work dispute not bound administrator ERISA re when determination investigation, an its SSA part own As under benefits viewing a claim for and rehabilita- physicians three Life had Whitaker, at 949. 404 F.3d plan,” medical ERISA review tion consultant only the case, submitted DeLisle In this Although professionals these records. disabled she was conclusion De- SSA’s diagnoses some agreed with