Opinion
CAUSE NO. IP99-1081-C-T/K, IP 99-1081-C-T/G.
June 8, 2004
ENTRY ON SUMMARY JUDGMENT MOTIONS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Sandra Schuchman had ovarian cancer. She first was treated with surgery and chemotherapy and then was treated with high dose chemotherapy ("HDC") and autologous stem cell rescue ("ASCR"). Sadly, despite these treatments, the cancer ultimately took her life. The matters underlying the issues in this case have undoubtedly caused great heartache for Ms. Schuchman's family. Even judges are moved to express sympathy in situations like this. See Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405, 1407 (7th Cir. 1994). Nonetheless, the legal issues presented must be decided on their objective merits rather than by compassion.
HDC and ASCR have been described as follows:
HDC involves administering the chemotherapeutic agents used in standard chemotherapy, but at higher dosages. While HDC is more effective at killing the cancer, it is also more likely to kill the patient's stem cells, the cells which generate white blood cells, the primary component of the body's immune system. To mitigate the potential damage to the patient's immune system, doctors extract (the technical term is "harvest") some of the patient's stem cells prior to administering HDC. This harvesting process, referred to as autologous stem cell rescue (ASCR), is accomplished by one of two methods: autologous bone marrow transplant support (ABMT), in which the stem cells are harvested from the patient's bone marrow, and peripheral stem cell rescue (PSCR), in which stem cells are harvested from the patient's blood stream. Under either procedure, the harvested stem cells are frozen and stored until the HDC is complete, at which time the stem cells are reintroduced into the patient.Smith v. Office of Civilian Health Med. Program of the Uniformed Servs., 97 F.3d 950, 951 (7th Cir. 1996). It seems that the latter method was used in the treatment for Ms. Schuchman. ( See, e.g., App. Tab C at TR00961 (request for authorization and approval for treatment, dated March 2, 1998, from Michele Donato, M.D. referring to "peripheral blood stem cells" and "peripheral blood stem cell collection"); id. at TR01000 (Protocol referring to collection of blood stem cells and autologous peripheral blood stem cell transplantation)). Thus, the court refers to the treatment for which benefits are sought as HDC/PSCR.
The Schuchmans sought coverage for the HDC/PSCR under a group health insurance policy issued by Trustmark Insurance Company (the "Plan"). Trustmark denied coverage on the basis that the HDC/PSCR was not medically necessary under the terms of the Plan. The Schuchmans filed suit in Texas, and Trustmark filed this action seeking a declaratory judgment that it properly denied coverage. The Texas action was consolidated with this one. Because Ms. Schuchman had the HDC/PSCR treatment at the Schuchmans' own expense, the issue is whether Schuchman is entitled to benefits for that treatment under the terms of the Plan and whether Trustmark should be estopped from denying coverage for that treatment. Schuchman advances claims based on the denial of benefits for other claims allegedly unrelated to the HDC/PSCR.
The court has held that the policy issued by Trustmark to SARCO, the employer of Ms. Schuchman's husband Barry Schuchman, was an employee benefit plan under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., that Trustmark has standing to bring this action and this court has subject matter jurisdiction over this action.
Despite the Schuchmans' unfortunate plight, the facts and law lead inevitably to the conclusion that Trustmark's decision to deny claims for benefits for the HDC/PSCR and related lodging, meals and transportation was not arbitrary and capricious and Trustmark is not estopped from denying benefits for those claims. Therefore, Schuchman's motion for summary judgment will be denied and Trustmark's motion for summary judgment will be granted.
I. FACTS
At all relevant times Barry Schuchman was employed by SARCO. Trustmark issued a group health insurance policy to SARCO effective June 1, 1996 (the "Plan"). The policy is a health benefit plan under the ERISA. At all times relevant, Mr. Schuchman and Sandra Schuchman, his wife, were covered under the Plan.
A true and correct copy of the Plan is part of the Administrative Record in this case which can be found at Tab C to the Appendix of Evidence in Support of Trustmark's Motion for Summary Judgment. Under the terms of the Plan, "Benefits are payable for Covered Charges as provided herein." (Trustmark's App., Tab C at TR01139.) The Plan defines "Covered Charges" in relevant part as "That part of expense incurred which a person would be required to pay in the absence of insurance and which: is for Medically Necessary care of a Covered Condition[.]" ( Id. at TR01139.) "Medically Necessary" is defined in relevant part as follows: "Means that a service, drug, or supply is necessary and appropriate for the diagnosis or treatment of a Sickness or Injury in accordance with generally accepted standards of medical practice in the U.S. at the time the service, drug or supply is provided." ( Id. at TR01141.) This definition further states: "A service, drug, or supply shall not be considered as Medically Necessary if it "is investigational, Experimental, or for research purposes" or "involves a service, supply or drug not approved for reimbursement by the Health Care Financing Administration." ( Id.) "Experimental" is defined by the Plan to mean "a service, drug or supply not accepted or approved by the Health Care Financing Administration as beneficial for the diagnosis or treatment of the Sickness or Injury." ( Id. at TR01140.) The Plan provides that "Benefit payment is subject to the determination by us that the service, drug or supply is Medically Necessary." ( Id. at TR01141.)
Citation to the Administrative Record is to "App. Tab C at TRXXXXX."
The Plan states that "The Company has full, exclusive and discretionary authority to determine all questions arising in connection with this Contract including its interpretation." (App. Tab C at TR01176.) "Company" is defined as "Trustmark Insurance Company (Mutual)." ( Id. at TR01139.) Trustmark administered the Plan with respect to claims for benefits. (August 7, 2001 Entry at 5.) Trustmark decides all claims for benefits under the Plan including appeals and has final decision-making authority on all claims. ( Id. at 6.)
In August 1997 Sandra Schuchman was diagnosed with advanced stage ovarian cancer, a solid tumor, for which she received surgical treatment and chemotherapy. Trustmark paid claims for expenses related to that chemotherapy.
In January 1998, Ms. Schuchman underwent a medical procedure which revealed microscopic adenocarcinoma, and, as a result, she had an additional course of chemotherapy. Trustmark paid claims related to this chemotherapy.
In late February 1998, Ms. Schuchman sought a second opinion regarding her ovarian cancer at the University of Texas M.D. Anderson Cancer Center (the "Cancer Center"). On February 27, 1998, she consulted with Michele Donato, M.D., at the Cancer Center regarding high-dose chemotherapy and bone marrow transplantation using stem cells. (App. Tab C at TR00964-TR00966.) On March 3, 1998, the Cancer Center submitted a facsimile transmission to Trustmark requesting precertification coverage for high dose chemotherapy and stem cell support for Ms. Schuchman. ( Id. at TR00959-TR00968.) The request included a letter from Dr. Donato, a summary of the procedure and the physician's notes concerning Ms. Schuchman.
On March 4, 1998, Trustmark requested additional information from the Cancer Center to assist it in making a benefit determination regarding the "proposed Bone Marrow Transplant" for Ms. Schuchman, including: (1) "The Protocol under which treatment is being given," (2) "The Institutional Review Board Documents relating to the Protocol," (3) "The Informed Consent relating to the evaluation and treatment," (4) "A Narrative Summary of the patient's evaluation and treatment, (5) "All Medical Records relating to the evaluation and treatment to date," and (6) "any additional information which is pertinent and would assist in making a benefit determination." (App. Tab C at TR00971.) The Cancer Center responded on March 10, 1998, by sending to Trustmark a facsimile transmission which included clinical notes and test reports for Ms. Schuchman, the Protocol for the Phase I Study of Autologous Stem Cell Transplantation with High-Dose Alkylating Agents in Combination with Topotecan for High-Risk or Recurrent Ovarian Cancer ("Phase I Study"), and the Informed Consent. ( Id. at TR00973-01018.) The objective as stated in the Protocol is: "[T]o determine the maximum tolerated dose of topotecan when used in combination with high-dose alkylating agents in patients with high risk advanced stage ovarian cancer or recurrent disease." ( Id. at TR00989; see also id. at TR00992, TR01004.)
The Informed Consent referred to participation in "clinical research" and a "clinical trial." ( Id. at TR01012.) The purpose of "this clinical research study" was stated in the Informed Consent as "to find the highest safe dose of the drug topotecan that can be given with high-dose chemotherapy to patients with advanced ovarian cancer." ( Id.) The Informed Consent addressed the potential benefits of the treatment as follows: "High dose chemotherapy may cause more tumor shrinkage than standard doses of the drugs. There may be no benefits at all for patients in the study." ( Id. at TR01015.) It stated that "This treatment will be administered under the above numbered, titled and described clinical research protocol at this institution[,]" and that "participation in this clinical research study is voluntary." ( Id. at TR01015.) The Informed Consent contained a line for the signature of the participant, above which was written, "I consent to participate in the research and have received a copy of the consent form." ( Id. at TR01018.)
On March 16, 1998, Trustmark requested from the Cancer Center additional information regarding the "proposed BMT" for Ms. Schuchman, namely "copies of X-rays and copies of the original path[ology] reports for all tests done" to complete its review. (App. Tab C at TR01026) On March 18, 1998, the Cancer Center sent additional information to Trustmark in response to its request. ( Id. at TR01028-TR01042.) On March 20, 1998, Trustmark contacted Grace Powers Monaco at the Medical Care Ombudsman Program seeking three independent reviewers for the urgent review of Ms. Schuchman's case. ( Id. at TR01049.) The Program selected three independent medical reviewers, all of whom had extensive experience in oncology and ovarian cancer. ( Id. at TR01052-TR01053.)
On March 23, 1998, Trustmark sent a letter to the three expert oncologists, enclosing Ms. Schuchman's medical records, the Protocol of the Phase I Study and the Informed Consent. Trustmark requested the experts to respond to several questions to assist it in determining whether the proposed "high dose chemotherapy with autologous bone marrow transplant (or stem cell rescue)" treatment for Ms. Schuchman was medically necessary. (App. Tab C at No. TR01054-TR01059.) Among them were the following:
1) Are the drugs, therapies or treatments required and appropriate for the care of the sickness?
. . .
3) Are they deemed to be experimental, educational, or investigational in nature . . .?
4) Are they furnished in connection with medical or other research?
5) Is the consent form to be signed by the patient one that would indicate or imply that the therapy being performed is a basis for research or investigation?
( Id. at TR01054-TR01055.)
Joyce Ann O'Shaughnessy, M.D., a board certified oncologist, responded to Trustmark's inquiry. In response to the first question, she answered:
No, although there are some published data suggesting clinical benefit with HDC/ASCR for patients such as Ms. Schuchman, I do not believe that there is a consensus in the medical or gynecologic oncology community regarding the effectiveness of HDC/ASCR for advanced and recurrent ovarian cancer patients. . . .
. . . I do not think that the health benefits of the proposed therapy are scientifically known for patients such as Ms. Schuchman and therefore I do not think the proposed therapy is required for her.
(App. Tab C at TR01061-TR01062.) Dr. O'Shaughnessy responded in the affirmative to the third question: "Yes, I considered HDC/ASCR for advanced ovarian cancer to be investigational because it is not possible to estimate with confidence the improvement in clinical benefit that would be expected with this therapy compared with standard therapy." ( Id. at TR01063.)
Maurie Markman, M.D., Director of the Cleveland Clinic Cancer Center and Chairman of the Department of Hematology and Medical Oncology, also responded to Trustmark's inquiry. She gave the following response to Trustmark's first question: "The proposed treatment program is experimental in this clinical setting. There is currently no evidence that the high does chemotherapy strategy being proposed by the physicians is superior in efficacy to more conventional treatment programs employing the lower dose[.]" (App. Tab C at TR01067.) Dr. Markman repeatedly indicated that the proposed therapy "is experimental in nature." ( Id.; see also id. at TR01068 ("the proposed treatment is highly experimental in nature".) In response to the third question, she stated, "Yes. In fact, the role of high dose chemotherapy in ovarian cancer is currently being examined in a randomized controlled clinical trial being conducted by the National Cancer Institute to determine if there is any role for the strategy in the management of ovarian cancer." ( Id. at TR01068).
Dr. Susan Honig, M.D., of the Division of Oncology Drug Products of the Food and Drug Administration, also provided to Trustmark her opinions regarding the proposed high dose chemotherapy and peripheral stem cell transplant for Ms. Schuchman. She responded to the first question in part by stating: "There is no evidence of benefit for this [ABMT or peripheral stem cell transplant] procedure in women who are chemoresistant or who have failed multiple regimens. . . . In ovarian cancer, the use of a single transplant cycles remains investigational." (App. Tab C at TR01072.) She added that the use of high-dose chemotherapy and transplant in ovarian cancer is "investigational." ( Id. at TR01072, TR01073.)
All three experts, Dr. O'Shaughnessy, Dr. Markman and Dr. Honig, concluded that HDC/PSCR was being furnished in connection with medical or other research. ( Id. at TR01063 (noting "the proposed therapy would be administered as part of a Phase I clinical research study"), TR01068, TR01073 (referring to the protocol and informed consent).) They agreed that the Informed Consent indicated or implied that the therapy was being performed as a basis for research or investigation. ( Id. at TR01063, TR01068, TR01073.) In addition, they indicated that the consensus of opinion among experts was that further studies or clinical trials of the proposed therapy were necessary to determine, among others, the efficacy or efficacy compared to standard treatment. ( Id. at TR01064, TR01068, TR01073.)
On April 2, 1998, Trustmark sent a letter to the Cancer Center responding to its request for a pretreatment determination of benefits for Ms. Schuchman. The letter indicated that after reviewing the documentation provided by the Cancer Center, Trustmark has "determined that this proposed course of treatment is not covered" by the Plan and "no benefits would be payable." (App. Tab C at TR01076, TR01079.) The letter indicated that the documentation used by Trustmark in making its decision included "the patient's medical records, the consent form, and the protocol for the procedure, and the insurance contract providing coverage for patient, Sandra, through her husband's employer, Sarco." ( Id. at TR01076.)
Trustmark indicated that in making its decision, it relied on the Plan language stating that for a claim to be covered, the treatment must be "Medically Necessary," the Plan definitions of "Medically Necessary" and "Experimental," as well as the opinions of its medical directors and the three outside experts that the proposed treatment did not meet these coverage requirements. ( Id. at TR01076-TR01078.) The decision stated:
* In the Medicare Coverage Issues Manual which is published by the Health Care Financing Administration, coverage of Autologous Bone Marrow Transplantation (ABMT) is specifically excluded for solid tumors, except neuroblastoma. Therefore, the treatment does not meet the requirement by Medicare/the Health Care Financing Administration."
* The National Cancer Institute is supervising several several (sic) clinical trials to evaluate the potential opportunity presented by ABMT in treatment of ovarian cancer. A randomized Phase II study . . . of high dose chemotherapy and stem cell rescue for patients with persistent or relapsed ovarian cancer following cisplatinbased therapy has recently been completed by the National Cancer Institute-supported Southwest Oncology Group (SWOG). No results are available from this trial. In addition, the Gynecologic Oncology GROUP (GOG) has recently begun a Phase II study of HDC/ASCR versus standard salvage therapy for patients with surgically persistent or relapsed ovarian cancer. However the data from these and other large, national clinical trials is currently insufficient to draw any conclusions as to its effectiveness and whether or not it is better than standard therapy.
* The Informed Consent indicates on its first page that under the heading of DESCRIPTION OF RESEARCH, the purpose of the study reads: "The goal of this clinical research study is to find the highest safe dose of the drug topotecan that can be given with high-dose chemptherapy (sic) to patients with advanced ovarian cancer." The patient is clearly informed that she is participating in clinical research with no guarantees as indicated on page 43, under POTENTIAL BENEFIT. It reads "High dose chemotherapy may cause more tumor shrinkage than standard doses of the drug." which is a positive statement. However the next sentence informs the patient that. . . . "There may be no benefits at all for patients in the study."
(App. Tab C. at TR01077-TR01078.) Trustmark noted that the consensus of the medical consultants was that the proposed treatment was "investigational and experimental in nature." ( Id. at TR01078.) It reasoned: "The treatment will be performed under a clinical research study to determine if the protocol is more effective than standard treatment. The consent form confirms the investigational nature of the treatment. It remains completely unknown whether this treatment has additional benefits." ( Id.) Thus, Trustmark determined that the proposed treatment did not meet the Plan definition of "Medically Necessary" as required for coverage.
On April 8, 1998, the Cancer Center appealed Trustmark's denial of coverage. The appeal urged reconsideration of the determination that the proposed treatment is investigational and experimental. The Cancer Center cited and provided copies of two reports which it argued established that the treatment was not experimental.
On April 21, 1998, Trustmark denied the appeal, citing the expert's opinions that the proposed treatment was considered investigational and experimental in nature and was furnished in connection with medical or other research. Thus, Trustmark concluded "the proposed high dose chemotherapy treatment is not Medically Necessary as required under the terms of the [Plan]." (App. Tab C at TR01117.)
II. DISCUSSION
This case comes before the court on Trustmark's motion for summary judgment and Schuchman's motion for summary judgment. Trustmark contends that the record establishes that it did not act arbitrarily and capriciously in denying Schuchman's claim for benefits so it is entitled to summary judgment on the ERISA denial of benefits claim. It also contends it should be granted summary judgment on the federal estoppel claim because Schuchman cannot establish all the elements of that claim. Trustmark argues that Schuchman's other allegations are unsupported and insufficient to create a triable issue. For his part, Schuchman argues that the Plan is ambiguous and therefore, benefits were wrongfully denied. He also argues that the Plan does not give Trustmark discretion to interpret its terms. Next, he contends that Trustmark wrongfully denied benefits. Lastly, Schuchman contends that there is a genuine issue of material fact regarding his estoppel claim.
Schuchman did not file a separate motion for summary judgment as required by Local Rule 7.1 and did not comply with Local Rule 56.1.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). This standard applies when the parties file cross-motions for summary judgment. Int'l Bhd. Elec. Workers, Local 176 v. Balmoral Racing Club, Inc., 293 F.3d 402, 404 (7th Cir. 2002). When considering a cross-motion for summary judgment, the court views the record in the light most favorable to the party opposing the motion under consideration. Id.; Metro. Life Ins. Co. v. Johnson, 297 F.3d 558, 561 (7th Cir. 2002). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323.
Schuchman claims that Trustmark seeks a partial summary judgment. The court agrees. Though Trustmark states that it seeks summary judgment with respect to "all outstanding claims" and "all claims in this lawsuit" (Trustmark's Mot. Summ. J. at 1, 3), the basis for its motion is that it properly determined that the HDC/PSCR treatment was not covered and properly denied benefits for that treatment. However, Schuchman also brings claims against Trustmark arising from its alleged improper denial of claims for treatment purportedly unrelated to HDC/PSCR, claims for breach of fiduciary duties, failure to disclose and failure to supply requested information, and failure to provide a proper denial letter and sufficient notice of appeal rights under 29 U.S.C. §§ 1021(a), 1024(b), 1109, 1132(c) and 29 C.F.R. § 2560.503-1. ( See Def.'s First Am. Original Answer Counterclaim at 6-7 ¶ 10 at 23-24 ¶¶ 55-56.) Neither Trustmark's motion nor its supporting papers fairly inform that it is seeking summary judgment on these other claims. Furthermore, Trustmark has not identified any of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which demonstrate an absence of a genuine issue as to any material fact regarding the claims which are unrelated to HDC/PSCR.
A. ERISA CLAIM
In Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court held that "a denial of benefits challenged under [ERISA] 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." Id. at 115. If the plan confers such authority, then a denial of benefits is to be reviewed under the deferential arbitrary and capricious standard. See Militello v. Central States, Southeast Southwest Areas Pension Fund, 360 F.3d 681, 685 (7th Cir. 2004); Hess v. Hartford Life Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001). A plaintiff must present specific evidence of a conflict of interest to warrant a more stringent standard of review. See O'Reilly v. Hartford Life Acc. Ins. Co., 272 F.3d 955, 960 (7th Cir. 2001); Mers v. Marriott Int'l Group Acc. Death Dismemberment Plan, 144 F.3d 1014, 1020 (7th Cir. 1998). That an administrator is also the insurer of the plan, by itself, does not constitute a conflict of interest. See Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1108 (7th Cir. 1998).
Schuchman's claim that the Plan does not confer discretion to interpret the terms of the Plan is contradicted by the Plan's language. The Plan expressly states: "The Company [Trustmark] has full, exclusive and discretionary authority to determine all questions arising in connection with this Contract including its interpretation." This provision clearly confers discretionary authority on Trustmark to construe the terms of the Plan. See, e.g., Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 408 (7th Cir. 2004) (stating that the grant of discretionary authority could hardly be "clearer" where the policy at issue said: "In making any benefits determination under the Policy, the Company shall have the discretionary authority both to determine your eligibility for benefits and to construe the terms of the Policy."); Ross v. Ind. State Teacher's Ass'n Ins. Trust, 159 F.3d 1001,1008 (7th Cir. 1998) (discretionary authority to interpret plan clearly conferred by the following: "The Plan Administrator shall have the right to interpret the terms and provisions of the Benefit Plan and to determine any and all questions arising under the Benefit Plan or in connection with the administration of the Benefit Plan, including, without limitation, the right to remedy or resolve possible ambiguities, inconsistencies, or omissions, by general rule or particular decision.")
The Fourth Circuit reached the same conclusion regarding identical language in an unpublished decision. Lewis v. Trustmark Ins. Co. (Mutual), No. 98-2493, 182 F.3d 908 (July 12, 1999) (per curiam).
Therefore, Trustmark's decision to deny benefits is reviewed under the arbitrary and capricious standard. Schuchman has not produced specific evidence to raise a reasonable inference of a conflict of interest, so heightened scrutiny of the decision is not warranted simply because Trustmark is the insurer of the Plan. See O'Reilly, 272 F.3d at 960; Cozzie, 140 F.3d at 1108.
Even if Trustmark is not a plan administrator, it is a fiduciary of the Plan. ( See August 7, 2001 Entry at 37.) The arbitrary and capricious standard of review applies if discretion is conferred on the administrator or fiduciary. See Bruch, 489 U.S. at 115.
Under the arbitrary and capricious standard, a benefits decision "should not be overturned as long as (1) it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, (2) the decision is based on a reasonable explanation of relevant plan documents, or (3) the administrator has based its decision on a consideration of the relevant factors that encompass the important aspects of the problem." Hess, 274 F.3d at 461 (quotation omitted). Thus, the benefits decision should not be overturned unless it is "downright reasonable." Carr v. Gates Health Care Plan, 195 F.3d 292, 294 (7th Cir. 1999); see also Bruch, 489 U.S. at 111.
Schuchman first contends that the claim for benefits should not have been denied because the Plan language, specifically, the terms "investigational," "for research purposes" and "experimental" in the definition of "Medically Necessary" are ambiguous. He maintains that these definitions are contained in exclusions so that it is Trustmark's burden to prove that they are applicable. This is incorrect as the definitions are within the Comprehensive Medical Benefit Section rather than the Exclusions section. (App. Tab C. at TR01139, TR01146.) Thus, Schuchman has the burden of proving that his claims are covered by the Plan. See Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405, 1408 (7th Cir. 1994).
He also argues that HDC/PSCR is neither a drug, service nor supply, such that the "Medically Necessary" provision and the definition of "Experimental" are inapplicable. Trustmark's construction of these provisions to apply to the HDC/PSCR treatment is not unreasonable, however. See Carr, 195 F.3d at 294.
According to Schuchman, "investigational" and "for research purposes" should have been defined by the Plan and the absence of such definitions create inherent ambiguities. He also argues that his interpretation of these terms is reasonable and that the term should be interpreted in his favor under the doctrine of contra proferentum. However, the rule of contra proferentum has no application where, as here, the plan administrator or fiduciary has discretion to interpret the terms of the plan. See Ross, 159 F.3d at 1011. It is simply incorrect to suggest that this court has ruled that the doctrine of contra preferentum applies as a matter of law in this action. ( See Entry at 71-72 (stating that the doctrine "may be" applicable)). Moreover, when the plan does not specifically define a term and gives the plan administrator discretion to interpret the plan, the definition given by the administrator, if reasonable, binds the court. See James v. General Motors Corp., 230 F.3d 315, 317-18 (7th Cir. 2000); Ross, 159 F.3d at 1010-12. Though "investigational" and "for research purposes" may be susceptible to more than one meaning, it cannot be said that Trustmark's interpretation of these phrases is unreasonable.
Schuchman's reliance on the alleged definition of "investigational" as meaning "limited by federal law to Investigational Use" is misplaced. The quote is taken out of context — from an exclusionary provision stating that no benefits would be paid for "any drug labeled `Caution: Limited by Federal Law to Investigational Use' or experimental drugs." (App. Tab C at TR01154.) The use of "investigational" in this provision does not make the term ambiguous in the definition of "Medically Necessary".
Schuchman argues that the phrase "for research purposes" indicates that the drug, service or supply must only be used for research. He cites no authority to support his interpretation. But even if this were a reasonable interpretation, the court is bound by Trustmark's interpretation, provided it is reasonable. See James, 230 F.3d at 317-18; Ross, 159 F.3d at 1010-12. Trustmark interpreted "for research purposes" to mean that the HDC/PSCR was "furnished in connection with medical or other research," including that it was "performed under a clinical research study to determine if the protocol is more effective than standard treatment," as shown by Trustmark's questions to the medical experts and its decision denying benefits. This is a reasonable interpretation. Though the HDC/PSCR treatment was hoped to have (and may have had) a therapeutic purpose, the record overwhelmingly reveals that the treatment was provided to Ms. Schuchman in connection with medical research and as part of a clinical research study. The Protocol and Informed Consent confirm this to be the case, and the three expert oncologists all agreed.
The cases cited by Schuchman are readily distinguishable. The protocol at issue in Nichols v. Trustmark Ins. Co. (Mutual), 1 F. Supp. 2d 689 (N.D. Ohio 1997), was described as "more of a treatment plan than a bona fide research protocol." Id. at 699. The Protocol in this case appears to be a bona fide research protocol, and appears to be much more than a treatment plan. (App. Tab C at TR00987-01011.) In addition, the Informed Consent in this case clearly references participation in clinical research. ( Id. at TR01012.) Moreover, a treatment which is not considered research with respect to one type of cancer may be considered research with respect to another. Nichols involved HDC/PSCR treatment for breast cancer, rather than ovarian cancer, as did Simac v. Health Alliance Medical Plans, Inc., 961 F. Supp. 216 (C.D. Ill. 1997), whereas, Ms. Schuchman was treated for ovarian cancer. Furthermore, neither Nichols nor Sluiter v. Blue Cross Blue Shield of Michigan, 979 F. Supp. 1131 (E.D. Mich. 1997), was an ERISA case in which the administrator's decision was subject to deferential review, as it is here.
Schuchman maintains that by requesting additional medical information and the advice of the expert oncologists before deciding that the HDC/PSCR procedure was not covered, Trustmark's actions reveal that the procedure was not excluded because it was "for research purposes" or was "investigational". If it were, so the argument goes, the denial would have been automatic upon the request for precertification. This is a bizarre and unavailing argument and amounts to chastizing Trustmark for seeking information upon which to base an informed benefits decision.
Regarding "Experimental," which term is expressly defined by the Plan, Schuchman maintains that this term is nonetheless ambiguous. Trustmark's interpretation of "service, drug or supply" to include the HDC/PSCR treatment is not unreasonable. That the chemotherapy drugs themselves may be accepted or approved by the HCFA for the treatment of ovarian cancer is not decisive because it is the high dosage of those drugs which renders the HDC experimental. Schuchman maintains that the definition of "Experimental" is ambiguous because there is no listing by the HCFA of services, drugs or supplies it has accepted or approved as beneficial for the diagnosis or treatment of sicknesses or injuries. However, Trustmark's interpretation of this provision as requiring coverage (or reimbursement) under Medicare is not unreasonable. It is argued that the definition of "Experimental" required Trustmark to show that HDC/PSCR was not accepted or approved by HCFA as beneficial for the care or treatment of ovarian cancer in Ms. Schuchman. This argument is rejected. A reasonable construction of the Plan does not require that this term must be so narrowly interpreted.
Schuchman relies on the Schedule of Benefits' provision which states that transplants will be paid "100%." (App. Tab C at TR01195.) But he ignores the Plan provision stating that " Covered Charges incurred for organ or bone marrow transplant procedures" ( id.) (emphasis added) are paid at 100% as well as the definition of "Covered Charges" as "That part of expense incurred which a person would be required to pay in the absence of insurance and which: . . . is for Medically Necessary care[.]" ( Id. at TR01139.) Thus, it must be determined that a transplant is "Medically Necessary" in order for there to be coverage.
Schuchman also relies on the inclusion as "Covered Charges" of "All related expenses incurred for transplants, other than Approved Transplant Services, which are not Experimental up to the maximum shown in the Schedule of Benefits. . . ." ( Id. at TR01144.) He argues that Ms. Schuchman's transplant fell under the "other than Approved Transplant" category, so that benefits should have been paid as related expenses incurred for other transplants. This argument ignores the requirement that the transplant not be "Experimental." He further relies on the absence of HDC/PSCR in the Plan Exclusions section, but cites no authority for the proposition that any treatment or procedure not specifically listed in the Exclusions is therefore covered by the Plan.
It is claimed that Schuchman's HDC drugs meet the definition of "Covered Charges" in the Prescription Drug Benefit ("PDB") section of the Plan and that the terms of that section "control over any other conflicting terms and conditions of the policy." (Schuchman's Resp. Br. at 15.) Schuchman, however, cites nothing in the Plan or any other authority to support his claim. Nor does he point to any terms or conditions elsewhere in the Plan which he contends conflict with a term or condition in the Prescription Drug Benefit section. He also ignores the provisions of the PDB section which state "This Benefit is made part of the Comprehensive Medical Benefit Section. It is subject to all its terms and provisions except as herein stated" and "The Company will pay for Covered Charges incurred for covered Drugs[.]" (App. Tab C at TR01153.) Thus, it is not sufficient that Ms. Schuchman's HDC drugs were prescribed by her physicians and legally available only by prescription. Under the Comprehensive Medical Benefits Section, "Benefits are payable for Covered Charges" ( id. at TR01139), and "Covered Charges" is, among others things, "[t]hat part of expense incurred which . . . is for Medically Necessary care[.]" ( Id.) Thus, it must be determined that the HDC is "Medically Necessary" in order for benefits to be payable under the Plan.
Schuchman, for the first time, attempts to separate the HDC from the PSCR of the HDC/PSCR treatment, arguing that the expenses for the chemotherapy drugs should have been covered. This attempt fails because the record reveals that HDC and PSCR are intertwined as part of the treatment provided Ms. Schuchman, with the PSCR as the support treatment for the HDC. For example, the Cancer Center's appeal of Trustmark's decision to deny benefits states that the issue is "whether Ms. Schuchman is a candidate for high dose chemotherapy with PBSC rescue," and that "Ms. Schuchman can be expected to benefit for (sic) high dose chemotherapy and stem cell bone marrow support." (App. Tab C at TR01082, TR01083.) In addition, Dr. Honig in discussing HDC specifically referred to "transplant support". ( Id. at TR01072.)
Even assuming that standard chemotherapy would be covered under the Plan, as in Peruzzi v. Summa Medical Plan, 137 F.3d 431, 435 (6th Cir. 1998), it is the high dosage of chemotherapy which led Trustmark to the conclusion that the HDC/PSCR was not "Medically Necessary." For example, Trustmark's decision quotes language from the Informed Consent that "The goal of this clinical research study is to find the highest safe dose of the drug topotecan that can be given with high-dose chemptherapy (sic) to patients with advance ovarian cancer." (App. Tab C at TR01078.) It also quotes the following language from the "Potential Benefits" section of the Informed Consent: "High dose chemotherapy may cause more tumor shrinkage than standard doses of the drugs. There may be no benefits at all for patients in the study." ( Id. at TR01078, TR01015.) The three expert oncologists opined that the HDC for advanced ovarian cancer patients was investigational or experimental and gave opinions which support Trustmark's conclusion that the HDC was investigational or experimental and thus, not "Medically Necessary." ( Id. at TR01061-TR01064; TR01067-68; TR01070-TR01074.) If the HDC was not "Medically Necessary," then the supportive PSCR was not "Medically Necessary" either. See Peruzzi, 137 F.3d at 435 (stating that the "reinfusion of bone marrow cells is performed only to counter the effects of this toxicity [of the HDC]").
It is contended by Schuchman that Trustmark has the burden of proof and that it operated under a conflict of interest in making the benefits decision. Schuchman really seems to be challenging the appropriate standard under which Trustmark's decision is reviewed. As explained, its decision is subject to the arbitrary and capricious standard. Regarding a conflict of interest, because Schuchman has offered no specific evidence of bias, the court does not presume that there is a significant bias and will not consider the presence of a conflict of interest in deciding whether Trustmark's benefits decision was arbitrary and capricious. See, e.g., O'Reilly v. Hartford Life Acc. Ins. Co., 272 F.3d 955, 960 (7th Cir. 2001).
According to Schuchman, Trustmark did not provide a full and fair review. Schuchman initially challenges whether Trustmark discharged an alleged duty to develop the administrative record. He cites no authority to establish the existence of such a duty in the ERISA context, nor identifies any records or other documents which he or the Cancer Center were prevented from submitting to Trustmark for consideration, or which Trustmark ignored. The record discloses that after receiving some information from the Cancer Center, Trustmark requested additional information from the Center to assist it in its decision, and information was provided by the Center. Schuchman offers no authority for the proposition that Trustmark had a duty to contact Dr. Donato, and it is now clear that it was not required to give great deference to her opinions, see Black Decker Disability Plan v. Nord, 538 U.S. 822, 832-33 (2003) (holding ERISA does not require plan administrators to give special deference to the opinions of treating physicians).
He claims that the administrative record does not contain Ms. Schuchman's complete medical records, but offers no evidentiary support for this claim. In any event, he has not shown that he or anyone else on Ms. Schuchman's behalf attempted to submit other medical records. Nor has he identified any medical record not in the Administrative Record which may have made a difference in Trustmark's decision.
Though Schuchman challenges the independence of the three expert oncologists, he fails to offer any evidence to raise a reasonable inference that they had any actual bias against Schuchman. He moves to strike the experts' reports and any documents referring to their opinions. (Schuchman's Resp. Br. at 30.) The motion is DENIED because the experts' opinions are not subject to hearsay rules or the requirements of Rule 26(a) of the Federal Rules of Civil Procedure. They are part of the administrative record upon which Trustmark based its decision to deny benefits to the Schuchmans.
The court notes a conflict in the local rules regarding motions to strike evidence submitted in connection with summary judgment. Local Rule 56.1(f) states that disputes regarding the admissibility of evidence should be addressed in the summary judgment briefs, whereas, Local Rule 7.1(a) provides that a motion to strike "shall be accompanied by a separate supporting brief."
Further, Schuchman claims that Trustmark did not provide the experts with any of the documents it had received from Dr. Donato, but the correspondence to the experts indicates that Trustmark forwarded "the medical records, a consent form and protocol relating to the above named patient [Sandra Schuchman] and the proposed autologous bone marrow harvest followed by high dose chemotherapy with autologous bone marrow transplant (or stem cell rescue)." (App. Tab C at TR01054.) It is argued that the experts did not consider any of the information presented by Dr. Donato in her appeal of the decision denying benefits, but her appeal simply establishes a difference of opinion among medical experts as to the investigational and experimental nature of the HDC/PSCR treatment of ovarian cancer.
Schuchman claims that the entire process was tainted because Trustmark misidentified the procedure to Ms. Monaco of the Medical Care Ombudsman Program as BMT rather than HDC/PSCR. It is apparent from the expert's correspondence, however, that they each understood that the proposed treatment for Ms. Schuchman included HDC, the component of the treatment which Trustmark concluded was not "Medically Necessary" under the terms of the Plan. There is no indication that any of the experts' opinions were misdirected by an impression that the support therapy provided to Ms. Schuchman was ABMT rather than PSCR. As well, Schuchman is critical of Trustmark because it did not provide the outside expert reviewers with the specific Plan language at issue and on which it based its decision. Though the questions asked of the experts do not mirror the Plan language, they do reflect an interpretation of the Plan language, and it cannot be said that this interpretation by Trustmark is unreasonable.
Schuchman maintains that Trustmark never responded to Dr. Donato's "facts and opinions" in her April 8, 1998 letter appealing the decision to deny benefits. However, it is undisputed that Trustmark on April 21, 1998, responded to Dr. Donato's appeal letter, giving reasons for its decision and citing the outside experts' opinions that the proposed treatment was considered investigational and experimental in nature and furnished in connection with medical or other research. Dr. Donato and Trustmark's medical director and the three expert oncologists had differing opinions about whether the HDC/PSCR treatment for Ms. Schuchman's ovarian cancer was investigational and experimental in nature. Yet, Schuchman has not shown that Trustmark's reliance on the opinions of its medical director and three experts over Dr. Donato's opinion was unreasonable. Though Schuchman describes his counsel's May 12 letter as an appeal of the denial of Dr. Donato's appeal, it seems that the letter was a demand for payment rather than an appeal of the benefits decision. (App. Tab C at TR01119-TR01130.)
It is claimed by Schuchman that Trustmark failed to comply with the Plan's provision stating that where precertification of a transplant procedure is denied, notice of a right to a second opinion would be given. ( Id. at TR01145.) However, it is undisputed that the PSCR is a support procedure for the HDC. ( See Schuchman's Resp. Br. at 27.) Trustmark apparently treated the HDC/PSCR as one treatment, which is a reasonable interpretation of the Plan. See Peruzzi, 137 F.3d at 435 (stating that the "reinfusion of bone marrow cells is performed only to counter the effects of this toxicity [of the HDC]"). Therefore, it cannot be said that Trustmark's conclusion that the HDC/PSCR treatment was not within "Approved Transplant Services" for which there was a right to a second opinion was arbitrary and capricious. Schuchman further contends that Trustmark wrongfully denied $10,000 in benefits for expenses for lodging, meals and transportation incurred by the Schuchmans in connection with the HDC/PSCR transplant services. Under the Plan, benefits were to be paid "for expenses incurred for Approved Transplant Services. . . ." (App. Tab C at TR01145.) If it was determined that the HDC/PSCR treatment was not within "Approved Transplant Services," then the provision for benefits for these expenses was inapplicable as well.
This argument is at odds with his argument that the transplant fell under the "other than Approved Transplant" category since the right to a second opinion is provided only for transplant procedures which come within the Plan definition of "Approved Transplant Services."
The court cannot conclude that Trustmark's denial of Schuchman's claim for benefits was arbitrary and capricious or unreasonable. In making its benefits decision, Trustmark reviewed the documentation provided by the Cancer Center in support of its request for a pretreatment determination of benefits. These documents included Ms. Schuchman's medical records, the Informed Consent form, and the Protocol for the Phase I Study. In order to decide whether the HDC/PSCR treatment was covered under the Plan, Trustmark consulted the Plan language, specifically including the language which makes payment of benefits subject to a determination that the treatment is "Medically Necessary," as well as the Plan definitions of "Medically Necessary" and "Experimental." The Plan defines "Medically Necessary" in relevant part as "Means that a service, drug, or supply is necessary and appropriate for the diagnosis or treatment of a Sickness or Injury in accordance with generally accepted standards of medical practice in the U.S. at the time the service, drug or supply is provided." (App., Tab C at TR01141.) The definition continues: "A service, drug, or supply shall not be considered as Medically Necessary if it" "is investigational, Experimental, or for research purposes" or "involves a service, supply or drug not approved for reimbursement by the Health Care Financing Administration." ( Id.) The Plan defines "Experimental" as "a service, drug or supply not accepted or approved by the Health Care Financing Administration as beneficial for the diagnosis or treatment of the Sickness or injury." ( Id. at TR01140.)
In order to determine whether HDC/PSCR was "Medically Necessary" for Ms. Schuchman under the terms of the Plan, including whether the treatment met the Plan definitions of "Medically Necessary" and "Experimental," Trustmark consulted three independent expert oncologists. Drs. O'Shaughnessy and Honig indicated that HDC/PSCR for ovarian cancer was investigational and Dr. Markman indicated that it was experimental. The experts were of the opinion that the Informed Consent indicated or implied that the treatment was being performed as the basis for research or investigation. They further indicated that the consensus of opinion among experts was that further studies or clinical trials were necessary to determine the efficacy of the HDC/PSCR treatment or its efficacy as compared to standard treatment. Thus, the expert oncologists concluded that the HDC/PSCR treatment was investigational or experimental and furnished in connection with research. The journal articles submitted by the Cancer Center in support of its appeal of the denial of benefits confirm this. ( See, e.g., App. Tab C at TR01092 (referring to clinical trials in ovarian cancer), TR01095 ("There is suggestion that dose intensity affects outcome in diseases such as . . . ovarian cancer."), TR01106 ("data suggest that high-dose therapy may be of value in improving the prognosis of [ovarian cancer]")). Also in making its decision, Trustmark relied on the Medicare Coverage Issues Manual published by the HCFA which specifically excluded ABMT for solid tumors, except neuroblastoma; the existence of several clinical trials to evaluate the use of HDC/ASCR in treating ovarian cancer; and the language of the Informed Consent, which indicated that the HDC/PSCR would be provided in a "clinical research study" and that "[t]here may be no benefits at all for patients in the study." (App. Tab C at TR01077-TR01078.)
Trustmark's denial letter indicated it relied on this information, and Trustmark cites to an HCFA Coverage Issues Manual, but the court has been unable to find the manual in Trustmark's Appendix. However, Schuchman does not dispute that such coverage is excluded from reimbursement by HCFA. Even if there was a dispute over the HCFA's approval for reimbursement for ABMT for ovarian cancer, Trustmark had a reasoned basis for concluding that the proposed treatment for Ms. Schuchman was investigational, experimental or for research purposes, and thus, not medically necessary under the Plan.
Thus, the record reveals that Trustmark consulted the Plan language itself, Ms. Schuchman's medical records, and consulted its medical directors and three independent expert oncologists in order to determine whether the HDC/PSCR treatment for Ms. Schuchman would be "Medically Necessary" under the Plan. This was a reasonable means of making the benefits decision. The experts, all accomplished in the field of oncology, provided opinions which support Trustmark's conclusion that the HDC/PSCR was not "Medically Necessary" under the Plan and therefore support Trustmark's decision to deny benefits.
Accordingly, the court cannot find that the decision to deny benefits for the HDC/PSCR treatment was arbitrary and capricious. Trustmark should be GRANTED summary judgment on the claims for benefits for the HDC/PSCR treatment. As well, it should be GRANTED summary judgment on the claim for benefits for meals, lodging and transportation for expenses incurred in connection with the HDC/PSCR treatment.
B. ESTOPPEL CLAIM
Schuchman asserts a federal estoppel claim against Trustmark, alleging that Trustmark is estopped from denying benefits for the HDC/PSCR under the Plan. Trustmark contends that Schuchman cannot prevail on the estoppel claim because it made no written misrepresentations to the Schuchmans regarding the scope of benefits under the Plan and the Schuchmans could not have reasonably relied on the alleged misrepresentations.
Even assuming that estoppel might apply with respect to the Plan which is governed by ERISA, see Helfrich v. Carle Clinic Ass'n., P.C., 328 F.3d 915, 918 (7th Cir. 2003) (stating "Whether, and to what extent, estoppel is available with respect to welfare benefit plans under ERISA is an issue on which the judiciary has not come to rest"), cert. denied, 124 S. Ct. 924 (2003); Davis v. Combes, 294 F.3d 931, 939 (7th Cir. 2002) (noting that the Seventh Circuit "has only gone so far as to hold that it [estoppel] might apply to an unfunded, single-employer welfare benefit plan"), Schuchman has come forward with insufficient evidence to create a triable issue on his estoppel claim. "The elements of ERISA-estoppel are: (1) a knowing misrepresentation by the defendant; (2) in writing; (3) with reasonable reliance by the plaintiff on the misrepresentation; (4) to the plaintiff's detriment." Int'l Union of United Auto., Aerospace Agric. Implement Workers of Am. v. Rockford Powertrain, Inc., 350 F.3d 698, 705 (7th Cir. 2003) (quotation omitted); see also Davis, 294 F.3d at 939.
Schuchman first contends that Trustmark should be estopped from denying coverage because denying coverage was not actuarially sound. He cites no controlling authority either in his response to the summary judgment motion or in his brief in support of discovery on the actuarial facts to even suggest that an estoppel claim could be based on actuarial unsoundness. It should be noted that Schuchman states that the Second Circuit "has found that state law requiring [sound actuarial principles] may be the factual basis for an estoppel claim," (Br. Supp. Discovery Actuarial Facts at 3), but Gerosa v. Savast Co., 329 F.3d 317 (2nd Cir. 2003), which is cited as support, says no such thing. Estoppel was not an issue addressed by the Gerosa decision. As well, he cites no admissible evidence to raise a reasonable inference that the Plan was not based on sound actuarial principles. Expert testimony seems necessary to prove this claim, but Schuchman has offered none and has not identified any expert who might offer such evidence, even if this case were to reach trial.
It is argued that Trustmark made oral misrepresentations to Mr. Schuchman upon which he relied, including that "its premiums were based on the type of benefits being provided under the Schedule of Benefits, which included payment of transplants at 100% with no exclusions." (Schuchman's Resp. Br. at 42.) As Schuchman himself acknowledges, in Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 588 (7th Cir. 2000), the Seventh Circuit clarified that "oral representations of an ERISA plan may not be relied upon . . . when the representation is contrary to the written terms of the plan and those terms are set forth clearly." This principle applies in this case because the terms of the Plan are not ambiguous. The Schedule of Benefits provided for the payment of benefits " For Covered Charges for organ or bone marrow transplant procedures" (App. Tab C at TR01137) and "Covered Charges" is defined by the Plan as including "[t]hat part of expense incurred which . . . is for Medically Necessary care[.]" ( Id. at TR01139.) This language of the Schedule of Benefits and Comprehensive Medical Benefits Section is clear and unambiguous: only expenses incurred for medically necessary transplant procedures are covered for benefits under the Plan.
Schuchman asserts that "at the time of renewal, Trustmark made representations . . . that the premiums were being increased because of the claims that Trustmark had incurred for Ms. Schuchman's HDC-PSCR." (Schuchman's Resp. Br. at 44.) He also asserts that "Trustmark told Schuchman that it included claims from Mrs. Schuchman's bone marrow transplant of approximately $250,000.00 as costs incurred by the Plan and therefore Trustmark calculated a rate increase in the premiums" and "Trustmark also represented . . . that the premiums were increased because his wife's transplant claims had been paid." ( Id.) These oral misrepresentations (Schuchman alleges that he relied on the representations by Lonnie Nefounce, an insurance agent for Trustmark and that Nefounce made certain representations regarding payment of claims and premiums (Schuchman Aff. ¶ 3)) are insufficient to support an estoppel claim because the alleged representations contradict the clear language of the Plan. See Bowerman, 226 F.3d at 588 ("oral representations of an ERISA plan may not be relied upon . . . when the representation is contrary to the written terms of the plan and those terms are set forth clearly.").
Schuchman has insufficient evidence to create a triable issue regarding whether Trustmark made a known misrepresentation in writing. The only written representation which Schuchman claims to have relied on is the Schedule of Benefits. He again argues that this provides for benefits for all bone marrow transplants with no any exclusions. Schuchman again ignores the Plan language necessitating that such transplants be found "Medically Necessary." To suggest that the Plan provides benefits for all claims simply because it was a "Comprehensive Major Medical Policy" is unreasonable and lacks in any legal support.
Even assuming that the alleged misrepresentations were made as asserted by Schuchman and that the Schuchmans relied on those representations to their detriment, the estoppel claim cannot survive summary judgment. This is because their reliance was not reasonable in light of the Plan's language providing for payment of benefits for "Covered Charges," which term is defined to include the requirement that the expense be "Medically Necessary," which term is defined to exclude any treatment which "is investigational, Experimental, or for research purposes[.]" (App. Tab C at TR01141.) Given this language, it was not reasonable for the Schuchmans to rely on any representation that benefits would be provided for the HDC/PSCR treatment because, at the very least, that treatment was investigational and provided for research purposes.
Finally, Schuchman maintains that Trustmark's motion for summary judgment should be denied on the estoppel claim because there is a material issue of fact. In a footnote spanning several pages, he identifies the asserted material factual issues. Trustmark objects to this presentation of the purported issues of material facts and, for good reason. As noted earlier, Schuchman has failed to comply with Local Rule 56.1. For example, he has not included a "Statement of Material Facts Not in Dispute" section in his brief as required by Local Rule 56.1(a), and he has not included a "Statement of Material Facts in Dispute" section required by Local Rule 56.1(b). Moreover, he has not sufficiently supported his asserted material issues of fact with appropriate citations to discovery responses, depositions, affidavits and other admissible evidence as required by the rule. Schuchman's belief that his presentation of the asserted factual issues is a more efficient presentation than is required by the local rule does not warrant deviation from the rule's requirements. His "motion" for leave to deviate from the rule's requirements (Schuchman's Resp. Br. at 2 n. 2) is DENIED as is his request for an extension of time to file a more complex statement of facts. It is noted that the argument and assertions in the footnote are not supported by any citation to admissible evidence. Furthermore, many of the alleged facts and assertions in the footnote simply rehash other arguments which have been rejected by the court in this entry and the footnote fails to raise a genuine issue regarding all elements of the estoppel claim.
Accordingly, the court finds that summary judgment should be GRANTED Trustmark on Schuchman's estoppel claim.
III. CONCLUSION
Trustmark's decision to deny the claims for benefits for the HDC/PSCR treatment for Ms. Schuchman and for related lodging, meals and transportation was neither arbitrary nor capricious and Schuchman has insufficient evidence upon which to reach trial on his federal estoppel claim. Therefore, the court finds that Trustmark's motion for summary judgment should be GRANTED and, correspondingly, Schuchman's motion for summary judgment should be DENIED.
This entry does not dispose of claims against Trustmark arising from its alleged improper denial of claims for treatment purportedly unrelated to HDC/PSCR, or the claims for breach of fiduciary duties, for failure to disclose and supply requested information, and for failure to provide a proper denial letter and sufficient notice of appeal rights under 29 U.S.C. §§ 1021(a), 1024(b), 1109, 1132(c) and 29 C.F.R. § 2560.503-1. ( See Def.'s First Am. Orig. Answer Counterclaim at 6-7 ¶ 10 at 23-24 ¶¶ 55-56.) The court will set a status conference to address these claims. Entry of judgment awaits disposition of these remaining claims.