United States District Court, D. Connecticut
RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO.
C. Hall United States District Judge
Christopher Meidl (“Meidl”) brings this class
action against the defendants, Aetna, Inc. and Aetna Life
Insurance Company (collectively, “Aetna”), for
denying insurance coverage of Transcranial Magnetic
Stimulation (TMS) as a treatment for depression. See
generally Corrected Amended Class Action Complaint
(“Corr. Am. Compl.”) (Doc. No. 112). Meidl
asserts that Aetna improperly developed and implemented a
policy to deny TMS coverage on the grounds that TMS was an
experimental and investigational treatment. See
Plaintiff's Memorandum in Opposition to Defendants'
Motion for Summary Judgment (“Pl.'s Mem.”)
(Doc. No. 159) at 1. In doing so, Aetna allegedly violated
the Employee Retirement Income Security Act (ERISA), 29
U.S.C. § 1102, et seq., by (1) breaching its
fiduciary duties of prudence and loyalty, and (2) wrongfully
denying claims for TMS benefits. Id.
brings these ERISA claims on behalf of a class of
participants and beneficiaries in plans administered by Aetna
who were denied health insurance coverage for TMS between
September 3, 2009, and July 29, 2016 (the “TMS
Class”). See Ruling on Motion for Class
Certification and Motion to Seal (“Class Certification
Ruling”) (Doc. No. 114) at 1-2. On May 4, 2017, the
court certified the TMS Class to seek retrospective equitable
relief, primarily in the form of an order requiring Aetna to
reprocess class members' requests for TMS coverage that
it had previously denied. See id. at 6, 52.
now moves for summary judgment. See generally Motion
for Summary Judgment (“Defs.' Mot.”) (Doc.
No. 132). For the following reasons, Aetna's Motion for
Summary Judgment is denied.
insurance plans contain provisions excluding coverage of
treatments determined by Aetna to be experimental or
investigational. Defendants' Local Rule 56(a)1 Statement
(“Defs.' L.R. 56(a)1”) (Doc. No. 155) at
¶ 30; Plaintiff's Local Rule 56(a)2 Statement
(“Pl.'s L.R. 56(a)2”) (Doc. No. 160) at
¶ 30. The plans classify a treatment as
“experimental and investigational” if any of the
following criteria are satisfied:
(1) The treatment is “[n]ot approved by the U.S. Food
and Drug Administration (FDA) to be lawfully marketed for the
(2) There are “insufficient outcomes data from
controlled trials published in peer-reviewed literature to
substantiate its safety and effectiveness for the illness or
(3) The treatment is “[s]ubject to review and approval
by any institutional review board for the proposed
(4) The treatment is “[t]he subject of an ongoing
clinical trial that meets the definition of a Phase 1, 2 or 3
clinical trial set forth in the FDA regulations, regardless
of whether the trial is actually subject to FDA
Pl.'s Mem. at 4; see also Defs.' L.R. 56(a)1
at ¶¶ 31, 32; Pl.'s L.R. 56(a)2 at ¶¶
the Class Period (September 3, 2009, to July 29, 2016), Aetna
classified TMS as an experimental and investigational
treatment for depression on the grounds that “its value
and effectiveness ha[d] not been established” through
reliable clinical research. Pl.'s L.R. 56(a)2 at ¶
51; Defendants' Memorandum in Support of Motion for
Summary Judgment (“Defs.' Mem.”) (Doc. No.
154) at 1. Aetna codified this determination in its Clinical
Policy Bulletin 469 (“CPB 469”). See
Defs.' L.R. 56(a)1 at ¶ 1; Pl.'s L.R. 56(a)2 at
¶ 1; Pl.'s Mem. at 1; Defs.' Mem. at 1. As
support for designating TMS as an experimental and
investigational treatment, CPB 469 provided a
“background section” that summarized and
discussed various scientific studies on the effects of TMS on
depression. See Pl.'s Mem. at 6.
least once a year, Aetna's policy team updated CPB 469 to
reflect new research on TMS' effectiveness. See
Defs.' L.R. 56(a)1 at ¶ 2; Pl.'s L.R. 56(a)2 at
¶ 2. Throughout the Class Period, however, CPB 469
consistently concluded that:
[T]he available peer-reviewed medical literature has not
established the effectiveness of TMS in the treatment of
major depression . . . . More research is needed to ascertain
the roles of various stimulation parameters of [TMS] for its
optimal outcome as well as its long-term effectiveness in the
treatment of depression . . . .
E.g., Defendants' Exhibit 14 (“DX
14”) (Doc. No. 135-7) at 1059 (August 21, 2009, version
of CPB 469); Defendants' Exhibit 15 (“DX 15”)
(Doc. No. 135-8) at 1036 (August 3, 2010, version of CPB
469); Defendants' Exhibit 62 (“DX 62”) (Doc.
No. 135-48) at 988 (August 12, 2011, version of CPB 469);
Defendants' Exhibit 64 (“DX 64”) (Doc. No.
135-50) at 936 (March 15, 2012, version of CPB 469);
Defendants' Exhibit 65 (“DX 65”) (Doc. No.
135-51) at 890 (October 11, 2013, version of CPB 469);
Defendants' Exhibit 19 (“DX 19”) (Doc. No.
135-12) at 684 (October 23, 2015, version of CPB 469).
who was enrolled in a plan administered by Aetna, was denied
TMS coverage. See Defs.' L.R. 56(a)1 at ¶
36; Pl.'s L.R. 56(a)2 at ¶ 36. On January 21, 2016,
Meidl initiated this action on behalf of all enrollees who
were denied TMS benefits by Aetna on the grounds that the
treatment was experimental and investigational. See
Corr. Am. Compl. at ¶¶ 88-92. On May 4, 2017, the
court granted in part and denied in part Meidl's Motion
for Class Certification. See Class Certification
Ruling at 52-53. Pursuant to Federal Rules of Civil Procedure
23(b)(1) and (b)(2), the court certified a class consisting
of all participants or beneficiaries in ERISA plans
administered by Aetna who, on the basis of CPB 469's
classification of TMS as an experimental and investigational
treatment, were denied coverage of TMS to treat depression
during the Class Period. Id. at 52. The TMS Class,
which includes “both persons whose post-service claims
for reimbursement were denied and persons whose pre-service
requests that Aetna confirm coverage for TMS were denied,
” was permitted to seek retrospective injunctive
relief, including an order to reprocess previously denied
requests for TMS coverage. See id. at 6, 52.
motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of
material fact in dispute and that the party is entitled to
judgment as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); Wright v. N.Y. State
Dep't of Corr., 831 F.3d 64, 71-72 (2d Cir. 2016).
Once the moving party has met its burden, the nonmoving party
“must set forth specific facts showing that there is a
genuine issue for trial, ” Anderson, 477 U.S.
at 256, and present “such proof as would allow a
reasonable juror to return a verdict in [its] favor, ”
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.
2000). “An issue of fact is genuine and material if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Cross Commerce
Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d
assessing the record to determine whether there are disputed
issues of material fact, the trial court must “resolve
all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought.” LaFond v.
Gen. Physics Servs. Corp., 50 F.3d 165, 175 (2d Cir.
1995). “Where it is clear that no rational finder of
fact ‘could find in favor of the nonmoving party
because the evidence to support its case is so slight,'
summary judgment should be granted.” F.D.I.C. v.
Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)
(quoting Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)). On the
other hand, where “reasonable minds could differ as to
the import of the evidence, ” the question must be left
to the finder of fact. Cortes v. MTA N.Y. City
Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d
has pled four counts under ERISA. In Count One, he alleges
that Aetna violated ERISA's fiduciary standards under
section 1104(a) of title 29 of the United States Code.
See Corr. Am. Compl. at ¶¶ 97, 98; 29
U.S.C. § 1104(a) (requiring “a fiduciary [to]
discharge his duties with respect to a plan solely in the
interest of the participants and beneficiaries . . . and for
the exclusive purpose of providing benefits to participants
and their beneficiaries”). In Count Two, he asserts
that Aetna violated the terms of the class members'
insurance plans by improperly denying insurance claims for
TMS on the basis of CPB 469. See Corr. Am. Compl. at
¶¶ 103, 104. Meidl brings Count One for breach of
fiduciary duty and Count Two for denial of benefits pursuant
to section 1132(a)(1)(B), which authorizes a participant or
beneficiary in an ERISA-covered plan to bring a civil 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.” See Corr. Am. Compl. at
¶¶ 94, 103. In Counts Three and Four, Meidl asserts
breach-of-fiduciary-duty claims for injunctive and equitable
relief under section 1132(a)(3), which authorizes a
participant or beneficiary in an ERISA-covered plan to
“(A) enjoin any act or practice which violates any
provision of this subchapter or the terms of the plan, or (B)
to obtain other appropriate equitable relief (i) to redress
such violations or (ii) to enforce any provisions of this
subchapter or the terms of the plan.” See id.
at ¶¶ 107-15. Meidl asserts Counts Three and Four
“only to the extent that the Court finds that the
injunctive . . . [and] equitable relief sought to remedy
Counts I and/or II are unavailable pursuant to 29 U.S.C.
1132(a)(1)(B).” Id. at ¶¶ 108, 111.
Meidl also acknowledges that Counts Three and Four are based
on the same conduct that underpins Count Two. See
id. at ¶¶ 108, 112.
response, Aetna advances three arguments for why summary
judgment is warranted in its favor. Defs.' Mem. at 10.
First, Aetna argues it is entitled to summary judgment
because there is no basis in the administrative record for
concluding that CPB 469 arbitrarily and capriciously
classified TMS as experimental and investigational during the
Class Period. Id. at 11. Second, Aetna argues that
the class action fails as a matter of law because the TMS
Class cannot satisfy the required elements for injunctive
relief. Id. at 34. Third, Aetna argues that summary
judgment is warranted as to particular segments of the TMS
Class, namely: (1) class members who received “off
label” TMS, and (2) class members whose claims are time
barred by the contractual limitations periods in their ERISA
plans. Id. at 36. Below, the court addresses each of
these arguments in turn.
deciding whether summary judgment is warranted because there
is no issue of material fact as to whether Aetna violated
ERISA by developing and applying CPB 469 to deny TMS benefits
during the Class Period, the court addresses several
preliminary issues relating to (1) the appropriate standard
of review under ERISA, and (2) the scope of the
ERISA Standard of Review
is no dispute that Meidl's denial-of-benefits claims
should be reviewed under the deferential “arbitrary and
capricious” standard. See Pl.'s Mem. at
11; Defs.' Mem. at 8. Where, as here, the ERISA plan
“gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to
construe the terms of the plan, ” courts apply the
arbitrary and capricious standard to actions challenging a
denial of benefits under section 1132(a)(1)(B). Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989); see also Defs.' L.R. 56(a)1 at ¶ 33
(providing examples of class members' plans that
expressly vest Aetna with discretionary authority to make
the parties disagree as to the appropriate standard of review
for Meidl's breach-of-fiduciary-duty claims. Meidl
asserts that these claims warrant de novo review.
See Pl.'s Mem. at 11. Aetna, on the other hand,
argues that the arbitrary and capricious standard applies
because the breach-of-fiduciary-duty claims arise out of
Aetna's decision to deny TMS benefits. See
Defendants' Reply Memorandum in Support of Motion for
Summary Judgment (“Defs.' Reply Mem.”) (Doc.
No. 157) at 2-3.
John Blair Communications, the Second Circuit drew a
distinction between denial-of-benefits claims that are
reviewed for abuse of discretion and breach-of-
fiduciary-duty claims that warrant a stricter standard of
review (i.e., ERISA's “strict prudent
person standard”). See John Blair Communications,
Inc. Profit Sharing Plan v. Telemundo Grp., Inc. Profit
Sharing Plan, 26 F.3d 360, 369-70 (2d Cir. 1994). While
the former concern “whether the trustees have correctly
balanced the interests of present claimants against the
interests of future claimants," the latter concern
whether the trustees have sacrificed the interests of
beneficiaries to advance the interests of non-beneficiaries.
Id. at 369 (quoting Struble v. New Jersey
Brewery Employees' Welfare Trust Fund, 732 F.2d 325,
333-34 (3d Cir.1984)). In other words, the court limited the
application of the arbitrary and capricious standard to
conduct that involves the “mere balancing of interests
among claimants through the payment or non-payment of certain
the Supreme Court in Varity cautioned against
allowing plaintiffs to repackage a simple denial-of-benefits
claim as a breach-of-fiduciary-duty claim through artful
pleading. See Varity Corp. v. Howe, 516 U.S. 489,
514-15 (1996). Recognizing the potential advantages that
plaintiffs gain from bringing a breach-of-fiduciary-duty
claim, the Varity court stressed that
“characterizing a denial of benefits as a breach of
fiduciary duty does not necessarily change the standard a
court would apply when reviewing the administrator's
decision to deny benefits.” Id. at 514.
Accordingly, lower courts have routinely rebuffed
litigants' attempts to dress up simple denial-of-benefits
claims as breach-of-fiduciary-duty claims. See,
e.g., Harrow v. Prudential Ins. Co. of Am.,
279 F.3d 244, 252-53 (3d Cir. 2002) (rejecting
plaintiff's attempts to circumvent an exhaustion
requirement through “artfully pleading benefit claims
as breach of fiduciary duty claims”); Rothwell v.
Chenango Cty. N.Y.S.A.R.C. Pension Plan, No.
3:03-CV-00637 (GLS), 2005 WL 2276023, at *4-5 (N.D.N.Y. Sept.
19, 2005) (dismissing breach-of-fiduciary-duty claims that
were duplicative of plaintiff's denial-of-benefits
claim); Spann v. AOL Time Warner, Inc., 219 F.R.D.
307, 322 (S.D.N.Y. 2003) (holding that plaintiff's
breach-of-fiduciary-duty claim did not provide an independent
basis for relief where the claim was derivative of
plaintiff's denial-of-benefits claim); Fitch v. Chase
Manhattan Bank, N.A., 64 F.Supp.2d 212, 228-29 (W.D.N.Y.
1999) (concluding that plaintiff's
breach-of-fiduciary-duty claim was precluded by a duplicative
denial-of-benefits claim); Asbestos Workers Syracuse
Pension Fund by Collins v. M.G. Indus. Insulation Co.,
875 F.Supp. 132, 138-39 (N.D.N.Y. 1995) (applying the
arbitrary and capricious standard where the fiduciary's
decision “was intended to benefit the plan
participants, ” even though the decision also
“balance[d] the interests of plan participants and a
case, Meidl's breach-of-fiduciary-duty claims are
entirely duplicative of his denial-of-benefits claims because
they all arise from the same underlying conduct, namely:
Aetna's development and implementation of a policy that
denied coverage for TMS on the grounds that the treatment was
experimental and investigational. See Corr. Am.
Compl. at ¶ 98 (“Aetna violated [its fiduciary
duties] by adopting and implementing a policy to deny
coverage for TMS based on the experimental and
investigational exclusions under its plans[.]”). Meidl
does not point to any other conduct as the basis for his
suit. See Transcript, September 20, 2018, Oral
Argument (“Tr.”) (Doc. No. 167) at 47:1-6.
Instead, he attempts to distinguish his breach-of-fiduciary