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Robertson v. Blue Cross & Blue Shield of Texas

United States District Court, D. Montana, Missoula Division

April 15, 2015


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For Lana V. Robertson, Plaintiff: Donald L. Harris, LEAD ATTORNEY, HARRIS & ASSOCIATES, PLLC, Billings, MT; Tucker P. Gannett, LEAD ATTORNEY, HARRIS & WARREN, P.L.L.P., Billings, MT.

For Blue Cross Blueshield of Texas, Defendant: Kimberly A. Beatty, Stanley T. Kaleczyc, LEAD ATTORNEYS, Daniel J. Auerbach, BROWNING KALECZYC BERRY & HOVEN, Helena, MT; Rebecca R. Hanson, LEAD ATTORNEY, PRO HAC VICE, FOLEY & LARDNER, Chicago, IL.

For Stallion Oilfield Holdings, Inc., Defendant: Michael S. Beaver, LEAD ATTORNEY, HOLLAND & HART, Greenwood Village, CO; Michael P. Manning, Shane Coleman, LEAD ATTORNEYS, HOLLAND & HART, Billings, MT.

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Plaintiff Lana Robertson (" Robertson" ) brings this action under the Employee Retirement Income Security Act (" ERISA" ) seeking a declaration that a medical procedure she needs is covered by her employer-sponsored health benefits plan. The parties have filed cross motions for summary judgment, addressing whether the claims administrator of the plan properly denied Robertson benefits according to the terms of the plan. (Docs. 35, 40, 45.)

The case, and the issues presented by the cross motions are troubling. What is placed at issue is the tension posed by the human person who is facing certain death in the absence of the treatment she needs, and an ERISA plan and administrator that resort to legalisms supported in some sense by the idea of the rule of law, to deny her a chance at life. Sadly, in this case and so many others decided pursuant to a law intended to protect employees, there seems to be little concern about the moral consequences of the denial of benefits. The decision in this case by the plan administrator is akin to the " death panels" of recent political history, panels ostracized and maligned for political purposes. Yet, the legalistic arguments, and the law, seem to dictate an untenable moral determination regarding the motions for summary judgment. Judge John T. Noonan Jr. of this Circuit noted aptly in Persons and Masks of the Law,[1] " Abandonment of the rules produces monsters; so does the neglect of persons." [2] To paraphrase Judge Noonan, at the intersection of the conflict between rules and persons, the process of the rule of law is to be understood. " A chief difficulty to understanding, however, is the presence of masks, formed by rules and concealing the person." [3] The legal reasoning justifying resolution of the pending motions is monstrous in its concealing the likely life ending consequences of applying rules and ignoring the person. However, for the reasons stated below, which sound in the legal rules of interpretation and not in equity, Robertson's motion is denied and Defendants' motions are granted.


Robertson is a participant in an employer-sponsored health benefits plan (" the Plan" ) established by Defendant Stallion Oilfield Holdings, Inc. (" Stallion" ). The Plan is regulated by ERISA, 29 U.S.C. § § 1001, et seq. Stallion is the Plan Sponsor and the Plan Administrator. Defendant Blue Cross and Blue Shield of Texas (" Blue Cross" ) is the Claims Administrator and the Claims Fiduciary. The Plan grants discretionary authority to Blue Cross to make all claim and appeal decisions under the Plan and to interpret the Plan's terms. Blue Cross is a division of Health Care Service Corporation (" Health Care Service Corp." ), a mutual legal reserve company that operates in several states. The Plan's governing instruments are comprised of the Plan Document, which establishes the Plan's general terms, the Health Program booklets, which contain the Plan's benefit provisions and are adopted from year to year by Stallion, and the Summary Plan Description, which is a summary of the material provisions of the Plan Document. Robertson is enrolled specifically in the Plan's Select Plan Managed Care PPO Program.

In July of 2011, Robertson was diagnosed with diffuse systemic sclerosis, a rare autoimmune disease that causes the

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skin and other connective tissues in the body to tighten and harden. BCAR 807.[4] Without treatment, the disease can attack tissues in internal organs and is fatal once it infiltrates the tissues of the lungs or heart. BCAR 197, 303. Robertson initially received drug-oriented treatment under the Plan, which was ineffective. BCAR 807. Her treating physician, Dr. Richard Burt, Chief of the Division of Immunotherapy at Northwestern University Feinberg School of Medicine in Chicago, therefore recommended she have a hemapoietic stem cell transplant (" the Procedure" ). BCAR 807-08.

On November 8, 2013, Robertson sought pre-approval from Blue Cross for the Procedure, specifically that she receive authorization to enroll in Dr. Burt's Food and Drug Association approved protocol, Randomized Study of Different Non-myeloblative Conditioning Regimens with Hematopoietic Stem Cell Support in Patients with Scleroderma. BCAR 25, 805-08. The protocol has a clinical trial identifier, NCT01445821. BCAR 807. Blue Cross denied preapproval, concluding that the Procedure is " experimental, investigational, and unproven." BCAR 25, 28-29. The denial letter stated, " Per the data in peer-reviewed medical literature, autologous stem cell transplant is not effective, reliable, and safe for auto-immune diseases, including systemic sclerosis." BCAR 28. The letter also advised that " [t]he criteria used in making the adverse determination was [Health Care Service Corp.] Medical Policy: Stem-Cell Transplant for Autoimmune Disorders." Id.

In early December, Dr. Burt appealed the decision on behalf of Robertson, asking that the denial be overturned and that Robertson be allowed to enroll in the clinical trial protocol. BCAR 25, 907-08. Robertson's appeal was reviewed by an independent review organization, which upheld Blue Cross's previous denial. BCAR 25, 42-43. The denial letter dated December 19, 2013, stated that the Procedure is " experimental, investigational and unproven." BCAR 42. The decision was based on the conclusion that " [t]he proposed transplant for the treatment of systemic sclerosis is part of a phase 3 randomized clinical trial and is therefore considered investigational." Id. The letter again referenced the Health Care Service Corp. Medical Policy and advised,

The source of screening criteria utilized as guidelines in making this determination was Blue Cross and Blue Shield of Texas Medical Policy Guidelines, which are developed by the Blue Cross and Blue Shield of Texas Medical Division and which take into consideration views of the state and national medical communities, the guidelines and practices of Medicare, Medicaid, or other government-financed programs, and peer reviewed literature.


Robertson submitted her final appeal on February 12, 2014, which included more than 300 pages of medical records, medical articles, physician letters, and other documents. BCAR 25-26, 113-421. Robertson's appeal was reviewed by a different independent review organization, which again upheld the denial of benefits. BCAR 26, 52-57. In its letter dated February 24, 2014, the review organization concluded " [t]he requested autologous stem cell transplant . . . is considered experimental/investigational based on the Medical Policy and applicable Plan language." BCAR 26, 52-57. The letter

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quoted the Health Care Service Corp. Medical Policy provision and the Plan's definition of experimental/investigational. BCAR 55. The letter also summarized the conclusion of a " recent review" that supports use of the Procedure but states that ongoing trials " will determine whether the benefits of [the Procedure] outweigh the risks." BCAR at 56.

Robertson sued Stallion and Blue Cross on September 6, 2014, claiming benefits under ERISA and seeking a declaration that the Plan provides coverage for the Procedure and attorneys' fees. (Compl., Doc. 1.)


I. Motions to Strike and Expedite

As a preliminary matter, Robertson has filed two motions to strike and two motions to expedite that are ripe for decision.

A. Motion to Strike Reply Brief

At the request of Robertson for an expedited briefing schedule during the preliminary pretrial conference, the Court entered an Order with the following briefing schedule:

IT IS ORDERED that Plaintiff's motion [for entry of judgment] (Doc. 24) is DENIED SUBJECT TO RENEWAL as a motion for ...

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