United States District Court, D. Montana, Great Falls Division
LANCE R. GORDON and RONI A. GORDON, Plaintiffs,
NEW WEST HEALTH SERVICES, and its related affiliates, subsidiaries, and successors, Defendants.
Morris, United States District Court Judge
West has filed a Motion to Deny Class Certification before
the close of class discovery and before Plaintiffs
affirmatively moved to certify a class. (Doc. 49.) New West
has also filed a Motion to Strike Plaintiff's
Supplemental Briefing. (Doc. 66.) Gordon has filed a Motion
for Class Certification. (Doc. 79.)
Roni A. Gordon works as an employee of the Billings Clinic
and Lance and Roni Gordon were insured for health care under
New West Health Services Billings Clinic plan in 2010 and
2011. (Doc. 35 at 2; Doc. 50 at 8.) The policy under which
the Gordons were insured remained in effect at the time that
they made a claim to New West on behalf of their minor son.
(Doc. 35 at 3-4.) The policy provides criteria for what it
considers to be medically necessary treatment. (Doc. 35 at
4.) The Gordons' attending physician recommended
inpatient detoxification therapy, but New West denied the
claim based upon its determination that inpatient
detoxification was not medically necessary. Id.
admitted their minor son to Rocky Mountain Treatment Center
on May 6, 2010, for inpatient treatment. Plaintiffs' son
continued with inpatient treatment until discharge on June 4,
2010. Id. at 5. Plaintiffs asked for reconsideration
of the denial. New West refused. Plaintiffs exhausted all
administrative remedies available to them through the
Billings Clinic Plan. Id. at 6. Plaintiffs filed
their Second Amended Complaint on September 18, 2015. (Doc.
35.) Plaintiffs' Second Amended Complaint contains three
counts: (1) Request for Declaratory Relief, (2) Civil
Enforcement Claims under 29 U.S.C. § 1132(a)(1)(B) and
§ 1132(a)(3), and (3) Class Action. (Id.)
of the Federal Rules of Civil Procedure governs class
actions. A party seeking to certify a class action must meet
the four requirements of Rule 23(a) and at least one of the
subsections of Rule 23(b). Rule 23 provides more than
“a mere pleading standard, ” and the plaintiff
“must be prepared to prove” that it can satisfy
each of the Rule 23 requirements. Wal-Mart Stores, Inc.
v. Dukes, 131 S.Ct. 2541, 2551 (2011). District courts
have broad discretion to determine whether a class should be
certified. A.F. ex rel. Legaard v. Providence Health
Plan, 300 F.R.D. 474, 479 (2013).
attempt to bring this action, in Count III of their Second
Amended Complaint, pursuant to the provisions of Federal Rule
of Civil Procedure 23(a) and 23(b)(2), as a class action for
themselves and as representatives of, and on behalf of, all
other persons similarly situated. (Doc. 35 at 15.) Plaintiffs
allege that New West follows a common policy and practice of
systematically denying substance abuse and mental health
treatment in violation of the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of
2008 (“the Federal Parity Act”) and Montana State
Parity laws. 42 U.S.C.A. § 300gg-26 (West); Mont. Code
Ann. § 33-22-701, et seq. (West). Plaintiffs allege
further that New West uniformly employs the use of
impermissible criteria for treating addiction cases in
violation of state and federal parity laws.
request that this Court declare that New West wrongfully has
engaged in an unlawful pattern and practice of denying the
class of Alcohol, Mental Illness, and Drug Addiction
benefits. Plaintiffs seek an injunction from this Court that
would order New West to reopen and properly adjust the class
members' claims for Alcohol, Mental Illness, and Drug
Addiction benefits using criteria that pass muster under the
Federal Parity Act. (Doc. 35 at 16-20.) Plaintiffs further
request that the Court order New West to reimburse the
members of the class for the money that they paid for such
benefits that New West should have paid, and to disgorge any
money that New West earned from the profits that it obtained
from its unlawful conduct. Id.
The Putative Class
Gordons originally proposed the following class for
All beneficiaries as such term is used under the provisions
of 29 U.S.C. §1002(8) of “ERISA plans” as
that term is defined under the provisions of 29 U.S.C.
§1002(1) for which Defendant provided insurance services
known as “New West Health Plan” for such ERISA
Plans in which beneficiaries have made application for
treatment for mental health, alcohol, chemical, and/or drug
abuse and/or addiction; who were in need of alcohol and/or
drug treatment; and, who were denied said benefits by
Defendant on the grounds that said treatment was not
(Doc. 35 at 15-16.) The Gordons defined the class more
specifically after further discovery.
have identified a uniform policy applied by New West-the use
of the Milliman guidelines in determining medical
necessity-that they allege lends a common factual and legal
issue to the class. (Doc. 80 at 19-21.) The putative class
contains all New West insurees who submitted and were denied
claims for substance abuse treatment on the basis of the
Milliman guidelines. Plaintiffs claim that only the ASAM
guidelines can be used for this purpose under Montana law, to
the exclusion of the Milliman guidelines. Id.
Gordons' putative class contains 37 members. (Doc. 80 at
16.) New West denied benefits completely to some of these
class members and partially denied benefits to some (e.g.
approved for a shorter duration residential or inpatient
program than was claimed). (Doc. 85 at 13.) Only a portion of
the 37 putative members submitted a claim for the type of
residential treatment that the Gordons claim on behalf of
their son. Id. The remainder of the class submitted
claims for either detox treatment or inpatient treatment.
Class Action Requirements
may certify a class when certification would conserve the
resources of the court and the parties by permitting a common
issue to be litigated in an economical fashion under Rule 23.
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147,
155 (1982) (quoting Califano v. Yamasaki, 442 U.S.
682, 701 (1979)).
seeking to certify a class action must meet the four
requirements of Federal Rule of Civil Procedure 23(a): (1)
the class must prove so numerous that joinder of all members
would be impracticable; (2) there must exist questions of law
or fact common to the class; (3) the claims or defenses of
the representative party must prove typical of those of the
class; and (4) the representative party must fairly and
adequately protect the interests of the class. Courts
generally refer to these requirements as numerosity,