Deversv.Carpenters Health & Welfare Tr. Fund for Cal.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIAAug 7, 2019
Case No. 18-cv-04215-EMC (N.D. Cal. Aug. 7, 2019)

Case No. 18-cv-04215-EMC

08-07-2019

JESSICA A. DEVERS, Plaintiff, v. CARPENTERS HEALTH AND WELFARE TRUST FUND FOR CALIFORNIA, et al., Defendants.


ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR JUDGMENT

Docket Nos. 35-36

Plaintiff Jessica Devers has filed suit against two affiliated entities, namely, the Carpenters Health & Welfare Trust Fund for California ("Carpenters Trust Fund") and the Carpenters Funds Administrative Office of Northern California, Inc. ("Carpenters AO"). The Carpenters Trust Fund and the Carpenters AO shall hereinafter be referred to collectively as "Carpenters."

The Carpenters Trust Fund is an employee welfare benefit plan within the meaning of ERISA, and the Board of Trustees for the Carpenters Trust Fund has delegated administration of benefit claims to the Carpenters AO. Ms. Devers is a beneficiary of the Carpenters Trust Fund. Ms. Devers filed the instant ERISA lawsuit against Carpenters after a request for benefits was denied. More specifically, Ms. Devers asked that coverage be provided for a prescription drug known as Chemet, which she asserts is the only effective way of treating skin lesions she has as a result of Grover's disease. That request for coverage was denied. Ms. Devers now challenges that denial.

Currently pending before the Court are two motions: (1) Carpenters' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and (2) Ms. Devers's motion for judgment pursuant to Federal Rule of Civil Procedure 52. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby DENIES Carpenters' motion and GRANTS Ms. Devers's.

I. FACTUAL & PROCEDURAL BACKGROUND

The Summary Plan Description ("SPD") and Rules and Regulations ("R&R") for the Carpenters Trust Fund can be found at Exhibit 1 to the Price Declaration.

The Price Declaration refers to the R&R as the "Plan Rules." See Price Decl. ¶ 4.

The SPD notes, in relevant part, as follows:

• "Only the full Board of Trustees is authorized to interpret the Plan. The Board has discretion to decide all questions about the Plan, including questions about your eligibility for benefits and the amount of benefits payable to you." Price Decl., Ex. 1 (SPD at 2).

• "A pre-service claim is a request for authorization of care or treatment that requires approval in whole or in part before the care or treatment is obtained (also called Utilization Review ('pre-authorization' or 'pre-certification')." Price Decl., Ex. 1 (SPD at 81) (emphasis added).

• The purpose of the Utilization Review Program is "to help control increasing health care costs by avoiding unnecessary services or services that are more costly than others that can achieve the same result." Price Decl., Ex. 1 (SPD at 56).

• Under the Plan, " prior approval of services is required for the following: . . . certain prescription Drugs (must be approved by the Plan's pharmacy benefit manager)." Price Decl., Ex. 1 (SPD at 81) (emphasis in original); see also Price Decl., Ex. 1 (SPD at 61) (stating that "[c]ertain drugs require Utilization Review" by the pharmacy benefit manager, also known as "PBM"). Express Scripts is the Plan's pharmacy benefit manager (also known as "PBM"). See Price Decl., Ex. 1 (SPD at 61).

• "Off label use of drugs (for an indication other than described in the FDA approved
drug label) will be allowed if prior approval is first obtained from the PBM." Price Decl., Ex. 1 (SPD at 63).

• "To request Utilization Review of a drug, your Physician should call Express Scripts . . . ." Price Decl., Ex. 1 (SPD at 63); see also Price Decl., Ex. 1 (SPD at 82) (stating that "your Physician [should] call Express Scripts . . . to obtain pre-authorization for any Drug requiring Utilization Review").

• "If you disagree with the decision made on your Physician's request for Utilization Review, you may appeal it." Price Decl., Ex. 1 (SPD at 63).

• Appeals of pre-service claim denials that involve "prescription drugs should go to the pharmacy benefit manager (Express Scripts)." Price Decl., Ex. 1 (SPD at 86). As part of the review process, "[a] different person will review the appeal than the person who originally made the initial adverse benefit determination on the claim," and "[t]he reviewer will not give deference to the initial adverse benefit determination." Price Decl., Ex. 1 (SPD at 86). In addition, "[t]he Board [of Trustees for the Carpenters Trust Fund] may grant a personal hearing to receive and hear any evidence or argument you believe cannot be presented satisfactorily by correspondence." Price Decl., Ex. 1 (SPD at 86). "If the claim was denied on the basis of a medical judgment (such as a determination that the treatment of service was not Medically Necessary . . . ), a health care professional who has appropriate training and experience in a relevant field of medicine will be consulted." Price Decl., Ex. 1 (SPD at 86). The appeal will be decided "within 30 days of receipt of the appeal." Price Decl., Ex. 1 (SPD at 92) (emphasis omitted).

• "For any claims asserted under the Plan or against the Fund or the denial of a claim to which the right to review has been waived, the decision of the Board or its designated Appeals Committee with respect to a petition for review is final and
binding upon all parties, subject only to any civil action you may bring under ERISA. Following issuance of the written decision of the Board on an appeal, there is no further right of appeal to the Board or right to arbitration." Price Decl., Ex. 1 (SPD at 87).

For purposes of this order, the Court need not address the lack of any explanation as to what factors may be considered by the PBM in determining whether the off-label use should be approved.

In turn, the R&R provides, in relevant part, as follows:

• "The Board of Trustees has the exclusive right and discretion to construe and interpret the Plan and is the sole judge of the standard of proof required in any claim and the application and interpretation of the Plan. Any dispute as to eligibility, type, amount or duration of benefits or any right or claim to payments from the Fund will be resolved by the Board or its duly authorized designee under and pursuant to the provisions of the Plan and the Trust Agreement, and its decision is final and binding upon all parties, subject only to judicial review as may be in harmony with federal labor law." Price Decl., Ex. 1 (R&R, Article 9, § 9.01(a)).

• Prescription drug benefits are addressed in Article 5 of the R&R. See Price Decl., Ex. 1 (R&R at 129). Section 5.04 addresses exclusions from prescription drug coverage. Of particular note, § 5.04(j) provides that no benefits will be provided for "[a]ny Drugs not reasonably necessary for the care or treatment of Illness or Injury." Price Decl., Ex. 1 (R&R, Article 5, § 5.04(j). Section 5.04(l) provides that no benefits will be provided for "[m]edications with no federal Food and Drug Administration (FDA) approved indications. Off label use of prescriptions (for an indication other than described in the FDA approved drug label) will be allowed if prior approval is first obtained from the Pharmacy Benefit Manager." Price Decl., Ex. 1 (R&R, Article 5, § 5.04(l)).

It appears that, on November 17, 2017, Ms. Devers (or her doctor) made a request to obtain Chemet under the employer welfare benefit plan (i.e., the Carpenters Trust Fund). On November 26, 2017, the request for coverage was denied. The denial letter, issued by Express Scripts, stated as follows:

As we informed your doctor, we are unable to approve this request
for the following reason(s):

• Coverage of the requested medication is provided for acute lead poisoning, acute arsenic intoxication/poisoning, or acute mercury intoxication/poisoning. Coverage cannot be authorized at this time.

In accordance with your plan provisions for drug coverage, a review has been performed. The review uses the plan's rules and is based on FDA-approved prescribing and safety information, clinical guidelines and uses that are considered reasonable, safe and effective. . . .

You or your representative may appeal this decision . . . .

Please send your appeal request in writing to: ATN: CLINICAL APPEALS DEPARTMENT EXPRESS SCRIPTS
Price Decl., Ex. 2 (CarpH&WID_000234).

For purposes of this order, the Court assumes that Express Scripts's denial clearly communicated that it was predicated on the § 5.04(l) exclusion - i.e., that the denial was not in any way ambiguous as to its basis. See Price Decl., Ex. 1 (R&R, Article 5, § 5.04(l)) (providing that no benefits will be provided for "[m]edications with no federal Food and Drug Administration (FDA) approved indications" and "[o]ff label use of prescriptions (for an indication other than described in the FDA approved drug label) will be allowed if prior approval is first obtained from the Pharmacy Benefit Manager"); see also 29 C.F.R. § 2560.503-1(g)(1) (providing that notification of an adverse benefit determination "shall set forth, in a manner calculated to be understood by the claimant - (i) The specific reason or reasons for the adverse determination; (ii) Reference to the specific plan provisions on which the determination is based;" etc.).

On December 8, 2017, Ms. Devers lodged an appeal with Express Scripts. In her appeal, Ms. Devers explained that she first developed skin lesions in 1995 and that, in 2000, she was diagnosed with Grover's disease, also known as "transient acantholytic dermatosis." Price Decl., Ex. 2 (CarpH&WID_000231). She tried many treatments but none proved effective - e.g., one treatment was "very painful" and would provide only "6 to 8 weeks of relief until the lesions returned." Price Decl., Ex. 2 (CarpH&WID_000231). "In 2005, Dr. Paul Dantzig, in conjunction with Columbia University, published a paper connecting mercury toxicity with Grover's disease," Price Decl., Ex. 2 (CarpH&WID_000231), and therefore Ms. Devers tried Chemet as a treatment for her skin lesions in 2006. Her skin healed but, "[o]ver time, it became apparent that the healing was not permanent" and thus she had to "periodically retreat with Chemet," approximately 2-4 times a year. Price Decl., Ex. 2 (CarpH&WID_000231-32). In or about 2012, Ms. Devers also used Chemet to treat a skin problem that appeared to be unrelated to Grover's disease. See Price Decl., Ex. 2 (CarpH&WID_000232) (referring to a "new condition" that "was not Grover['s] disease"). Ms. Devers had a urine test at that time "to see what the Chemet was pulling out" and learned that she had a high level of lead. Price Decl., Ex. 2 (CarpH&WID_000232). Ms. Devers stated that she "cannot have healthy skin without periodic treatments with Chemet" and indicated that she takes the "drug as seldomly as possible to address" the heavy metals in her body (i.e., mercury and lead). Price Decl., Ex. 2 (CarpH&WID_000232).

According to Carpenters, Express Scripts received the appeal on December 13, 2017, and denied it on December 15, 2017. See Price Decl., Ex. 3 (CarpH&WSuppD_000009). In the denial, Express Scripts stated that "[a] panel (consisting of a medical director and two licensed clinical pharmacists who were not involved in the prior determination) has reviewed [the] appeal" and,

[a]s we informed your doctor, we are unable to approve this request for the following reasons(s):

• Coverage of the requested medication is provided for acute lead poisoning, acute arsenic intoxication/poisoning, or acute mercury intoxication/poisoning. Coverage cannot be authorized at this time. The information provided on level 1 appeal indicates that the [sic] you have an acute exposure to mercury and lead in the form of painful skin conditions including Grover's disease. However, this does not meet the above conditions for coverage.

In accordance with your plan provisions for drug coverage, a review has been performed. The review uses the plan's rules and is based on FDA-approved prescribing and safety information, clinical guidelines and uses that are considered reasonable, safe and effective. . . .

This is a final and binding decision. Our decision does not reflect any view about the medical appropriateness of the medication. The ultimate decision on your medical care must be made by you and your physician. This appeal decision only determines what, if any, of the service or supply is payable under the terms of your plan's benefit.

. . . . Under Section 502(a) of ERISA, you . . . have the right to bring a civil action if your final appeal is denied. You should carefully review the terms of your Summary Plan Description (SPD) to see if there is a specific time within which a civil action must begin.
Price Decl., Ex. 3 (CarpH&WSuppD_000009).

As above, for purposes of this order, the Court assumes that Express Scripts's denial clearly communicated that it was predicated on the § 5.04(l) exclusion.
Also, for purposes of this order, the Court assumes that Express Scripts denied the appeal for reasons beyond the mere fact that the use was off label. If Express Scripts could deny prior approval simply because a use was off label, then there would no reason to have a provision in the plan stating that offlabel use would require prior approval.

Although the denial of the appeal by Express Scripts indicates that it was issued on December 15, 2017, it appears that Ms. Devers never received a copy of the denial. For example, on December 21, 2017 (i.e., almost a week after the denial of the appeal), Ms. Devers sent an email to Carpenters, stating that she was writing to "clarify that I submitted information to you regarding coverage of Chemet as part of my appeal to the Trustees. Please add this note to the information previously submitted and please proceed with the appeal." Price Decl., Ex. 2 (CarpH&WID_000229). Ms. Devers also sent a separate email to Carpenters on December 21, 2017, stating that "I am hoping that we can talk next week. I need to understand the timing of this process and why my next step is if you deny coverage." Price Decl., Ex. 2 (CarpH&WID_000205) (emphasis added). Finally, Ms. Devers sent an email to Carpenters on January 3, 2018, noting that she would be sending information from her doctor's office and providing other information from her pharmacist, which she asked to be "add[ed] . . . to my appeal." Price Decl., Ex. 2 (CarpH&WID_000202). These emails all indicate that Ms. Devers was under the impression that her appeal was still pending (i.e., had not been denied).

Ms. Devers's doctor's office provided a letter dated January 3, 2018, from a nurse practitioner (as the treating physician had passed away), stating that Ms. Devers "requires Chemet for her medical care. She tried many additional and alternative treatments over many years, before Dr. Dantzig published his research. There is no other treatment that is effective in controlling her Grover's disease." Price Decl., Ex. 2 (CarpH&WID_000200).

Moreover, the record suggests that Carpenters did not receive a copy of Express Scripts's denial of the appeal either. Notably, Carpenters did not initially provide a copy of the denial of the appeal to Ms. Devers as part of the administrative record. See Price Decl. ¶ 5 (noting that Exhibit 2 is the administrative record which was provided as part of the initial disclosures; Express Scripts's denial of the appeal is found in Exhibit 3). According to Carpenters, in March 2019, when a mediation was taking place during this litigation, it noticed for the first time that

there was no documentation that Express Scripts . . . had received or heard an appeal on Ms. Devers' initial claim. There was also no record of Express Scripts processing or ruling on an appeal by Ms. Devers in The Fund's files. I thought this was odd, given the fact that Express Scripts was given the authority under the Plan Rules to process and make decisions regarding claims and appeals of denial of prescription drug benefits under the Plan. I therefore requested that Express Scripts send us any and all documents (if any) they had regarding an appeal Ms. Devers made after they denied the claim in this case.

Express Scripts forwarded to the Fund Office documents pertaining to an appeal that Ms. Devers filed after her initial claim was denied. . . . The decision denying the appeal and the reasons for that denial was [sic] sent only to Ms. Devers and her doctor. The Fund did not have copies of the appeal decision in its custody when it proceeded to hear Ms. Devers['s] appeal on January 11, 2018.
Price Decl. ¶ 6.

On January 11, 2018 (i.e., several weeks after the December 15 denial of the appeal by Express Scripts), a hearing panel for the Carpenters Trust Fund held a hearing on Ms. Devers's appeal. See Price Decl., Ex. 2 (CarpH&WID_000175). Then, on the same day, the Carpenters AO issued a letter regarding the appeal, stating as follows:

The Trustees have carefully considered all the comments, documents, records and other information provided and applied the terms of the Plan that apply to your request for review. For the reasons set out below, the Trustees have determined that the benefits being requested are not covered by the Plan, and accordingly, the decision following review is that your request for Request [sic] to obtain prescription drug, Chemet must be denied, subject to reconsideration.

Specific Reason for Denial

No benefits will be provided for any Drugs not reasonably necessary for the care and treatment of illness or injury.

Applicable Plan Provisions

5.04.j, Plan A[]

. . . .

This decision on review is the Plan's final decision. You have the right to bring a civil action under ERISA Section 502(a) provided
civil action is taken within two years of the date of this benefit denial.
Price Decl., Ex. 2 (CarpH&WID_000190).

As noted above, § 5.04(j) provides that no benefits will be provided for "[a]ny Drugs not reasonably necessary for the care or treatment of Illness or Injury." Price Decl., Ex. 1 (R&R, Article V, § 5.04(j)).

In July 2018, Ms. Devers initiated the instant action.

II. DISCUSSION

A. Legal Standard

As an initial matter, the Court bears in mind that it has two different procedural motions before it: (1) Carpenters' motion for summary judgment pursuant to Rule 56 and (2) Ms. Devers's motion for judgment pursuant to Rule 52.

Rule 56 provides that a "court shall grant summary judgment if the movant shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue of fact is genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]." Id. at 252. At the summary judgment stage, evidence must be viewed in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the nonmovant's favor. See id. at 255. Where a defendant moves for summary judgment on a claim for which the plaintiff has the burden of proof, the defendant may prevail simply by pointing to the plaintiff's failure "to make a showing sufficient to establish the existence of an element essential to [the plaintiff's] case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Rule 52 concerns, inter alia, findings and conclusions by a court in the context of a bench trial. It provides in relevant part as follows: "In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately." Fed. R. Civ. P. 52(a)(1). In Kearney v. Standard Insurance Co., 175 F.3d 1084 (9th Cir. 1999), the Ninth Circuit indicated that, where there is an ERISA dispute, a trial based on the administrative record alone may be conducted. That is,

the district court may try the case on the record that the administrator had before it. This is vastly less expensive to all parties, accomplishes the policies enacted as part of the statute, and
also gives significance, which would otherwise largely evaporate, to the administrator's internal review procedure required by the statute.
Id. at 1095; see also id. at 1094 (stating that "[a] full trial de novo in any ERISA dispute where there was a genuine dispute of fact as to whether the individual qualified for a benefit would undermine" the policies underlying ERISA; "[t]he means that suggests itself for accomplishing trial of disputed facts, while preserving the value of the fiduciary review procedure, keeping costs and premiums down, and minimizing diversion of benefit money to litigation expense, is trial on the administrative record, in cases where the trial court does not find it necessary under Mongeluzo to consider additional evidence"). "In a trial on the record, but not on summary judgment, [a] judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true." Id. at 1095. B. Standard of Review

In Mongeluzo, the Ninth Circuit "held . . . that the district court had discretion to allow evidence that was not before the plan administrator 'only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review.'" Kearney, 175 F.3d at 1090.

Whether the Court is considering Carpenters' summary judgment motion or Ms. Devers' request for a trial based on the administrative record, the parties agree that the Court evaluates Carpenters' substantive decision to deny benefits for an abuse of discretion. See Defs.' Mot. at 4 (noting the parties' "stipulat[ion] that the District Court in this case should use the abuse of discretion standard in reviewing the decision that Defendants reached in denying Plaintiff's claim for the drug").

Under this deferential standard, a plan administrator's decision "will not be disturbed if reasonable." This reasonableness standard requires deference to the administrator's benefits decision unless it is "(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record."
Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012). There is also an abuse of discretion if a decision is rendered "without any explanation." Johnson v. Trs. of W. Conference of Teamsters Pension Tr. Fund, 879 F.2d 651, 654 (9th Cir. 1989).

The above applies where an ERISA plaintiff is challenging a substantive decision to deny. However, an ERISA plaintiff may also claim an abuse of discretion based on the failure of a plan or plan administrator to follow applicable procedures as provided for under ERISA. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 959 (9th Cir. 2006) (stating that, "when a decision by an administrator utterly fails to follow applicable procedures, the administrator is not, in fact, exercising discretionary powers under the plan, and its decision should be subject to de novo review," but "[l]esser irregularities . . . do not remove the decision from abuse of discretion review"), abrogated on other grounds by Metro Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). Cf. Dimery v. Reliance Standard Life Ins. Co., 597 F. App'x 408, 409 (9th Cir. 2015) (stating that "ERISA procedural violations do not alter the standard of review unless the violations cause the beneficiary substantive harm"); Gatti v. Reliance Std. Life Ins., 415 F.3d 978, 985 (9th Cir. 2005) (stating that "procedural violations of ERISA do not alter the standard of review unless those violations are so flagrant as to alter the substantive relationship between the employer and employee, thereby causing the beneficiary substantive harm"). For a procedural violation, a remand to the plan is the typical remedy. See Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1035 (9th Cir. 2006) (stating that "the usual remedy for a violation of § 1133 [which governs claims procedure] is 'to remand to the plan administrator so the claimant gets the benefit of a full and fair review'"). C. Reason for Denial of Ms. Devers's Claim for Benefits

The threshold dispute between the parties is why Ms. Devers's claim for benefits was denied on appeal, thus raising the question which body issued the final decision.

• According to Ms. Devers, her appeal was denied because Carpenters determined that Chemet was not a medical necessity, as the Trustees found on January 11, 2018. See Price Decl., Ex. 1 (R&R, Article 5, § 5.04(j)) (providing that no benefits will be provided for "[a]ny Drugs not reasonably necessary for the care or treatment of Illness or Injury"); the final decision was issued by the hearing panel for the Carpenters Trust Fund.

• According to Carpenters, the appeal was denied because Ms. Devers's use of Chemet was "off label," and, on December 15, 2017, Express Scripts (on behalf of Carpenter) did not give prior approval to the off-label use. See Price Decl., Ex. 1
(R&R, Article 5, § 5.04(l)) (providing that no benefits will be provided for "[m]edications with no federal Food and Drug Administration (FDA) approved indications" and "[o]ff label use of prescriptions (for an indication other than described in the FDA approved drug label) will be allowed if prior approval is first obtained from the Pharmacy Benefit Manager"). Carpenters thus contends Express Scripts rendered the final decision.
In sum, Ms. Devers deems the final decision of Carpenters to be the Trustees' denial of her appeal on January 11, 2018, whereas Carpenters argues that the Trustees' denial should, in effect be ignored, given that Express Scripts issued its final denial of the appeal several weeks earlier on December 15, 2017.

The Court rejects Carpenters' position. Even assuming that Ms. Devers's appeal would ordinarily have been decided by Express Scripts, see Price Decl., Ex. 1 (SPD at 86) (stating that appeals of pre-service claim denials - where the claim involves prescription drug benefits - "should go to the pharmacy benefit manager (Express Scripts)"), the Trustees (for whatever reason) did not find out about Express Scripts's denial of the appeal and, instead of instructing Express Scripts to rule on Ms. Devers's appeal, decided to address the appeal themselves - as they were entitled to do under the SPD and R&R. See, e.g., Price Decl., Ex. 1 (SPD at 86) (providing that "[t]he Board may grant a personal hearing to receive and hear any evidence or argument you believe cannot be presented satisfactorily by correspondence"); Price Decl., Ex. 1 (SPD at 2) (providing that "[t]he Board has discretion to decide all questions about the Plan, including questions about your eligibility for benefits and the amount of benefits payable to you"); Price Decl., Ex. 1 (R&R, Article 9, § 9.01(a)) (providing that "[a]ny dispute as to eligibility, type, amount or duration of benefits or any right or claim to payments from the Fund will be resolved by the Board or its duly authorized designee under and pursuant to the provisions of the Plan and the Trust Agreement"). Therefore, only evidence that was considered by the Trustees, as the ERISA decisionmaker, counts as being part of the administrative record. See Kearney, 175 F.3d at 1090-91 (stating that, "[i]f a court reviews the administrator's decision, whether de novo . . . or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review"). Here, the Trustees, as the ERISA decisionmaker, did not consider Express Scripts's denial of the appeal (indeed, did not even know about it at the relevant time), and thus Express Scripts's denial of the appeal cannot be a part of the administrative record. In short, Express Scripts's denial of Ms. Devers's appeal is immaterial and her appeal was ultimately denied by the Trustees based on the Trustees' finding that Chemet was not a medical necessity (i.e., Ms. Devers's position). Only the Trustees' decision is subject to review herein. D. Medical Necessity

The Court now turns to the issue of whether the Trustees' decision was reasonable. See Stephan, 697 F.3d at 929 (stating that the "reasonableness standard requires deference to the administrator's benefits decision unless it is '(1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record'"). Under the ERISA regulations, where there is an "adverse benefit determination by a group health plan" and the "determination is based on a medical necessity . . . exclusion or limit," "either an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the claimant's medical circumstances, or a statement that such explanation will be provided free of charge upon request" is required. 29 C.F.R. § 2560.503-1(g)(1)(v)(B). The SPD contains a similar provision. See also Price Decl., Ex. 1 (SPD at 85) (providing that "the specific reason(s) for the [adverse benefit] determination" must be provided; also providing that, "if the determination was based on the absence of medical necessity . . . , a statement that an explanation of the scientific or clinical judgment for the determination is available upon written request at no charge").

In the instant case, the Trustees' denial of the appeal did not provide an explanation of the scientific or clinical judgment for the determination as required by law and the SPD. Such a substantial procedural violation constitutes an abuse of discretion, see Abatie, 458 F.3d at 959, for which remand would normally be warranted. See Chuck, 455 F.3d at 1035. However, the Court sees no value in remanding to the plan given the specific circumstances at hand. More specifically, there is no evidence in the record upon which the Trustees could rely to support a ruling against Ms. Devers. There is nothing in the administrative record to support the conclusion of no medical necessity. On the other hand, the record contains concrete evidence supporting Ms. Devers's position that Chemet was in fact medically necessary. This includes the Dantzig paper connecting mercury toxicity with Grover's disease; the results of a urine test (indicating a high level of heavy metals); a letter from Ms. Devers's doctor's office stating that "[t]here is no other treatment [i.e., other than Chemet] that is effective in controlling [Ms. Devers's] Grover's disease," Price Decl., Ex. 2 (CarpH&WID_000200); and the plan's prior coverage of Chemet. Based on the record, the Trustees' finding that Chemet was not a medical necessity was unreasonable whether under de novo or abuse of discretion review. Ms. Devers is thus entitled to benefits under the plan.

While the denial of the appeal did state, in general terms, that "[y]ou are entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to your claim for benefits," Price Decl., Ex. 2 (CarpH&WID_000190), the denial did not specifically state that Ms. Devers could get a copy of the explanation of the scientific or clinical judgment for the determination. --------

The Court orders the parties to meet and confer to see if they can reach agreement on the exact award of benefits due under the plan. During the meet and confer, the parties should also discuss the issue of attorney's fees. Finally, during the meet and confer, the parties should discuss injunctive relief. The Court notes that, although Ms. Devers requested an injunction at the hearing with respect to her claim for breach of fiduciary duty (and the Court indicated its inclination to grant relief), her motion did not expressly address the claim for breach of fiduciary duty nor did expressly request injunctive relief. See, e.g., Pl.'s Mot. at 13 (asking "for an award of benefits" as well as "prejudgment interest, attorneys fees and costs," but not mentioning injunctive relief). Moreover, to the extent Ms. Devers is simply asking for an order requiring Carpenters to comply with ERISA and its regulations (as she stated at the hearing), "obey-the-law" injunctions are generally disfavored. See, e.g., EEOC v. AutoZone, Inc., 707 F.3d 824, 841-42 (7th Cir. 2013) (discussing concerns with "[a]n injunction that does no more than order a defeated litigant to obey the law" - e.g., overbreadth and vagueness, although adding that such an injunction may be appropriate in certain circumstances, for instance, "where the evidence suggests that the proven illegal conduct may be resumed").

III. CONCLUSION

For the foregoing reasons, the Court denies Carpenters' motion for summary judgment and grants Ms. Devers's motion for judgment. With respect to Ms. Devers's motion, the necessary findings of fact and conclusions of law are embedded in the discussion above; however, for the sake of clarity, the Court reiterates as follows.

• Carpenters ultimately denied coverage based on lack of medical necessity.

• Carpenters' decision failed to comply with 29 C.F.R. § 2560.503-1(g)(1)(v)(B) and the SPD.

• There is no evidence in the administrative record to support a lack of medical necessity. In contrast, the only evidence in the administrative record establishes that Chemet was medically necessary for Ms. Devers.

• The Court therefore holds that Carpenters erred, under either de novo review or review for abuse of discretion, in denying coverage for Chemet.

• Ms. Devers is entitled to benefits.

As discussed above, the parties are to meet and confer to address remaining issues. The parties shall report back on their meet and confer within three weeks of the date of this order.

This order disposes of Docket Nos. 35 and 36.

IT IS SO ORDERED. Dated: August 7, 2019

/s/_________

EDWARD M. CHEN

United States District Judge