Kazda v. Aetna Life Insurance Company, No. 3:2019cv02512 - Document 99 (N.D. Cal. 2022)

Court Description: ORDER GRANTING CLASS CERTIFICATION by Judge William H. Orrick granting 80 Motion to Certify Class. Further Case Management Conference set for 5/31/2022 02:00 PM via Videoconference. Case Management Statement due by 5/24/2022. (jmd, COURT STAFF) (Filed on 4/26/2022)

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Kazda v. Aetna Life Insurance Company Doc. 99 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 1 of 20 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHALA KAZDA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 19-cv-02512-WHO ORDER GRANTING CLASS CERTIFICATION v. AETNA LIFE INSURANCE COMPANY, Re: Dkt. Nos. 80, 81, 84, 89, 90 Defendant. 12 13 Plaintiff Michala Kazda seeks certification of a class of people covered by Employee 14 Retirement Income Security Act (“ERISA”) health plans administered by defendant Aetna Life 15 Insurance Company (“Aetna”) whose claims for liposuction treatment of their lipedema were 16 denied as cosmetic. Her motion is GRANTED. Kazda has standing to seek declaratory and 17 injunctive relief requiring Aetna to reprocess the class members’ previously denied claims and 18 notify them of its policy change. Her claims are typical. She is an adequate representative. She 19 has also sufficiently alleged questions common to the class—namely, whether Aetna had a policy 20 or practice of denying these claims as cosmetic—that will drive the resolution of this matter. And 21 although the class is small, given the circumstances of this case, certification is appropriate. 22 Certification is also appropriate under Rule 23(b)(1)(A), as separate suits would risk establishing 23 incompatible standards of conduct for Aetna, and Rule 23(b)(2), as the relief sought is appropriate 24 for the class as a whole. 25 BACKGROUND 26 Kazda suffers from advanced lipedema, a rare condition that involves an abnormal buildup 27 of fat tissue, typically in the lower body. Mot. for Class Certification (“Mot.”) [Dkt. No. 80] 1:21- 28 23, 2:17-19. People with lipedema experience symptoms including “disproportionately large, Dockets.Justia.com Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 2 of 20 1 column-like legs, and disproportionate hips, stomach[es] or buttocks.” Id. at 2:19-21. As 2 lipedema progresses, patients become “increasingly heavy in the lower body,” causing “pain, 3 mobility problems, joint disorders, and other physical problems that prevent patients from 4 engaging in the activities of daily living.” Id. at 2:21, 3:11-13. United States District Court Northern District of California 5 A surgery called “tumescent liposuction” or “suction lipectomy” is the “only effective 6 treatment for the pain and immobility caused by lipedema.” Id. at 3:14-15. During the procedure, 7 a surgeon uses a vacuum-like instrument to remove excess fat tissue from the patient. Id. at 3:18- 8 19. Doing so “allows patients to gain mobility, reduce or eliminate pain, and lead a productive 9 life.” Id. at 3:20-21. 10 Aetna health plans include a general exclusion for “cosmetic services and plastic surgery,” 11 described as “[a]ny treatment, surgery (cosmetic or plastic), service or supply to alter, improve or 12 enhance the shape or appearance of the body.” Id. at 3:24-27 (citing in part Ex. 1 at 8, Ex. 7 at 71- 13 2 to 72). The plans separately define “cosmetic” as “[s]ervices, drugs or supplies that are 14 primarily intended to alter, improve or enhance your appearance.” Id. at 3:27-4:1 (citing in part 15 Ex. 1 at 9). 16 Aetna also uses what are known as Clinical Policy Bulletins (“CPBs”), which are “extra- 17 contractual written directives on coverage positions Aetna takes with respect to commonly 18 encountered treatments.” Id. at 4:3-5. CPBs are published online so members know about 19 Aetna’s coverage positions. Id. at 4:6-7. They are also provided to Aetna’s medical directors, 20 who use them in making coverage decisions. Id. at 4:7-8. 21 Two CPBs are relevant to lipedema and the matter at hand. As published in 2015 and 22 effective through April 2020, CPB 0211 (titled “Abdominoplasty, Suction Lipectomy, and Ventral 23 Hernia Repair”) stated that “Aetna considers abdominoplasty, suction lipectomy, or 24 lipoabdominoplasty cosmetic.” Id. at 4:23-25 (citing Ex. 11 at 220). It did not list any exceptions. 25 See id. CPB 0031 (“Cosmetic Surgery”) includes the following language: 26 27 28 Aetna plans exclude coverage of cosmetic surgery that is not medically necessary, but generally provide coverage when the surgery is needed to improve the functioning of a body part or otherwise medically necessary even if the surgery also improves or changes the appearance of a portion of the body. 2 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 3 of 20 1 2 3 4 5 Id. at 4:11-17 (citing in part Ex. 10 at 207). CPB 0031 then lists procedures that are “considered 6 medically necessary when criteria are met,” including “lipectomy or liposuction and autologous 7 fat grafting,” but only for breast reconstruction. Id., Ex. 10 at 208-09. 8 United States District Court Northern District of California This policy statement supplements plan coverage language by identifying procedures that Aetna considers medically necessary despite cosmetic aspects, and other cosmetic procedures that Aetna considers not medically necessary. Please note that, while this policy statement addresses many common procedures, it does not address all procedures that might be considered to be cosmetic surgery excluded from coverage. Kazda was covered under an Aetna health insurance plan through her husband’s employer, 9 the benefits of which were self-insured by the employer. Id. at 8:10-12. After Kazda was 10 diagnosed with Stage 3 lipedema, she requested in writing that Aetna provide coverage for 11 tumescent liposuction and related procedures. Id. at 8:18-21. Aetna denied the request in a letter 12 dated April 25, 2018, which read in part: 13 14 15 16 We reviewed information received about your condition and circumstances. We used the Clinical Policy Bulletin (CPB): Cosmetic Surgery. Based on CPB criteria and the information we have, we are denying coverage for this procedure. This procedure is meant to improve appearance, not to correct a physical problem that affects your daily activities. Id. at 8:23-27 (citing Ex. 2). Internal notes showed that Aetna relied on CPB 0031 and CPB 0211 17 in denying Kazda’s claim because “Aetna considers suction lipectomy cosmetic.” Id. at 9:1-4 18 (citing in part Ex. 60). 19 Kazda appealed Aetna’s decision through her surgeon. Id. at 9:5-6. Aetna denied the 20 appeal in a letter dated June 5, 2018, which stated in part: 21 22 23 24 25 26 The basis for this determination is Aetna considers suction lipectomy cosmetic. Therefore the denial remains upheld. This decision was made utilizing Aetna’s Clinical Policy Bulletins, Abdominoplasty, Suction Lipectomy, and Ventral Hernia Repair and Aetna’s Clinical Policy Bulletin: Cosmetic Surgery. Id. at 9:6-17 (citing Ex. 63). Kazda appealed again via a phone call on October 24, 2018. Id. at 9:18-19. In a letter dated five days later, Aetna denied the additional appeal. Id. at 9:19-20. It read: 27 28 We are upholding the previous decision to deny the request for coverage of suctionassisted lipectomy of the right hip and leg. The reason for this determination is 3 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 4 of 20 coverage for medical necessity is not met. Aetna considers this procedure cosmetic for this location. 1 2 Id. at 9:21-24 (citing Ex. 5). 3 Kazda filed this class action lawsuit against Aetna on May 9, 2019, alleging that it 4 improperly denied claims for surgical treatment of lipedema as cosmetic. Dkt. No. 1. She brought 5 two claims under ERISA, denial of plan benefits and breach of fiduciary duty, and sought in part a 6 clarification of rights and injunctive relief. See id. at 7-8 (asserting claims under 29 U.S.C. § 7 1132(a)(1)(B) and (a)(3)). After I granted Aetna’s motion to dismiss without prejudice, Kazda 8 filed an amended complaint bringing the same claims. Dkt. No. 34. United States District Court Northern District of California 9 After Kazda brought suit, Aetna revised CPB 0211. Mot. at 8:3-5. The new CPB 0211, 10 published on August 28, 2020, specifically mentions lipedema. Id. at 8:5-7 (citing in part Ex. 57 11 at 613). It states: 12 Aetna considers water-assisted liposuction medically necessary in persons with pain and disability from lipedema who have failed to respond to three or more months of conservative management (compression or manual therapy) and who meet the following diagnostic criteria for lipedema. 13 14 15 Id., Ex. 57 at 613. It then lists criteria including medical history and physical examination 16 findings. Id. at 613-14. The revised CPB 0211 also specifies that “Aetna considers suction 17 lipectomy cosmetic for indications other than lipedema.” Id. at 614. According to Kazda, Aetna 18 has not notified putative class members of the change or reprocessed their previously denied 19 claims. Mot. at 8:7-8. 20 Kazda filed this motion for class certification on December 7, 2021. Dkt. No. 80. 21 22 23 LEGAL STANDARD I. STANDING The Article III case or controversy requirement limits federal courts’ subject matter 24 jurisdiction by requiring, among other things, that plaintiffs have standing to sue. See Lujan v. 25 Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must demonstrate 26 that she has “suffered a concrete and particularized injury that is either actual or imminent” (an 27 injury-in-fact), that “the injury is fairly traceable to the defendant” (causation), and that “it is 28 likely that a favorable decision will redress that injury” (redressability). See Massachusetts v. 4 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 5 of 20 1 EPA, 549 U.S. 497, 517 (2007). Standing is an issue distinct from the merits of a claim, and 2 therefore “does not require analysis of the merits.” Maya v. Centex Corp., 658 F.3d 1060, 1068 3 (9th Cir. 2011). Although the jurisdictional issue of standing “can be raised at any time,” it is 4 determined as of the commencement of a suit. Center for Biological Diversity v. Kempthorne, 588 5 F.3d 701, 707 (9th Cir. 2009); Lujan, 504 U.S. at 570 n.5. “In a class action, this standing inquiry focuses on the class representatives.” See NEI 6 7 Contracting & Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc., 926 F.3d 528, 532 (9th Cir. 8 2019). “[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of 9 a case or controversy with the defendants, none may seek relief on behalf of himself or any other 10 United States District Court Northern District of California 11 member of the class.” O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (citations omitted). II. FEDERAL RULE OF CIVIL PROCEDURE 23 12 Federal Rule of Civil Procedure 23 governs class actions. “Before certifying a class, the 13 trial court must conduct a rigorous analysis to determine whether the party seeking certification 14 has met the prerequisites of Rule 23.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 15 (9th Cir. 2001), amended by 273 F.3d 1266 (Dec. 14, 2001). The burden is on the party seeking 16 certification to show that these prerequisites have been met. See Wal-Mart Stores, Inc. v. Dukes, 17 564 U.S. 338, 350 (2011). 18 Certification under Rule 23 is a two-step process. See Fed R. Civ. P. 23. The party 19 seeking certification must first satisfy the four requirements of Rule 23(a): numerosity, 20 commonality, typicality, and adequacy. Specifically, Rule 23(a) requires a showing that: 21 22 (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; 23 24 25 26 27 28 (3) the claims or defenses of the representative parties are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). The party seeking certification must then establish one of three grounds set forth in Rule 5 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 6 of 20 1 23(b). Kazda seeks certification under Rule 23(b)(1) and 23(b)(2). Mot. at 10:8-9. A class action may proceed under Rule 23(b)(1) if “prosecuting separate actions by or 2 3 against individual class members would create a risk of: 4 (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or 5 6 (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not party to individual adjudications or would substantially impair or impede their ability to protect their interests.” 7 8 9 Fed. R. Civ. P. 23(b)(1). A class may also proceed under Rule 23(b)(2) if “the party opposing the class has acted or United States District Court Northern District of California 10 11 refused to act on grounds that apply generally to the class, so that final injunctive relief or 12 corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 13 23(b)(2). In considering class certification, the court accepts as true the complaint’s substantive 14 15 allegations, but “need not accept conclusory or generic allegations regarding the suitability of the 16 litigation for resolution through class action.” Hanni v. Am. Airlines, No. C-08-00732-CW, 2010 17 WL 289297, at *8 (N.D. Cal. Jan. 15, 2010). The court may also “consider supplemental 18 evidentiary submissions of the parties.” Id. The court’s “rigorous” class-certification analysis 19 may “entail some overlap with the merits of the plaintiff’s underlying claim.” See Dukes, 564 20 U.S. at 351. However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries 21 at the certification stage.” Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 22 (2013). “Merits questions may be considered to the extent—but only to the extent—that they are 23 relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. 24 DISCUSSION 25 26 I. MOTION FOR CLASS CERTIFICATION Kazda seeks certification of the following class: “All persons covered under ERISA health 27 plans, self-funded or fully insured, that are administered by Aetna and whose claims for 28 liposuction treatment of their lipedema were denied as cosmetic.” Mot. at 9:26-28. 6 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 7 of 20 1 2 United States District Court Northern District of California 3 A. RULE 23(A) 1. Typicality and Adequacy “The test of typicality is whether other members have the same or similar injury, whether 4 the action is based on conduct which is not unique to the named plaintiffs, and whether other class 5 members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 6 F.2d 497, 508 (9th Cir. 1992); see also Fed. R. Civ. P. 23(a)(3). Kazda’s claims and defenses are 7 typical of the class because they have suffered the same or similar injury (their claims for 8 liposuction treatment for their lipedema were denied as cosmetic) that arise from the same alleged 9 course of conduct (Aetna’s policy or practice of excluding such claims as cosmetic). 10 To determine adequacy, courts evaluate whether the named plaintiffs and their counsel 11 “have any conflicts of interest with other class members” and whether they will “prosecute the 12 action vigorously on behalf of the class.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th 13 Cir. 2011). There is no indication of any conflicts of interest, nor that Kazda and her counsel— 14 who has experience with insurance and class action litigation—will not prosecute this action 15 vigorously. See Mot. at 18:18-21. 16 Aetna argues that Kazda is an inadequate and atypical class representative because she 17 lacks standing to pursue injunctive relief. See Oppo. [Dkt. No. 85] 13:24-16:22. It contends that 18 Kazda cannot show: (1) that she is threatened by a repetition of the injury alleged (denial of her 19 claim under Aetna’s former policy) or (2) that she would qualify for the coverage she now seeks 20 on behalf of the class (under Aetna’s new policy). See id. 21 It is helpful to clarify the type of injunctive relief that Kazda pursues. The amended 22 complaint sought three injunctions: one requiring Aetna to “retract its internal coverage 23 guidelines, or Clinical Policy Bulletins, that erroneously classify tumescent liposuction as a 24 ‘cosmetic’ procedure”; another requiring Aetna to “reform its claims adjudication process so as to 25 adjudicate future claims without the erroneous ‘cosmetic’ denial basis under appropriate and valid 26 medical criteria and to reevaluate and reprocess prior denials without the erroneous ‘cosmetic’ 27 denial basis under appropriate and valid medical criteria”; and a third requiring Aetna to “provide 28 notice of the reformation of its claims adjudication process for such claims in the form and manner 7 United States District Court Northern District of California Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 8 of 20 1 required by ERISA to all class members.” See First Am. Compl. (“FAC”) [Dkt. No. 34] ¶ 60. 2 Aetna’s revision of CPB 0211 to include an exception for lipedema surgery appears to 3 have rendered the first injunction (requiring Aetna to retract its CPBs) and the first half of the 4 second injunction (requiring Aetna to reform its adjudication process) unnecessary. See id. Kazda 5 acknowledges that Aetna revised CPB 0211, and does not allege that it is ignoring the new version 6 in adjudicating new claims for lipedema surgery. See generally Mot. In her motion for class 7 certification, she describes the injunction sought as an “order that Aetna reprocess these previously 8 denied requests under appropriate medical necessity criteria.” Id. at 2:1-3; see also Reply [Dkt. 9 No. 87] 11:27-12:1 (asserting that she has “standing to seek injunctive relief requiring Aetna to 10 notify class members its coverage position has changed and to properly re-review her claim for 11 lipedema surgery (and that of the putative class members).”). In other words, the injunctive relief 12 that Kazda now seeks is retrospective. See Des Roches v. Cal. Physicians’ Serv., 320 F.R.D. 486, 13 507-11 (N.D. Cal. 2017) (distinguishing between a retrospective “reprocessing injunction” and a 14 prospective injunction requiring the defendants to stop using the challenged guidelines). 15 Aetna is correct that, to the extent that Kazda still sought prospective relief, she has not 16 sufficiently shown a sufficient likelihood that she will again be wronged in a similar way. When a 17 plaintiff seeks prospective injunctive relief, she must demonstrate that she has suffered or is 18 threatened with a concrete and particularized harm and there is a “sufficient likelihood” that she 19 “will again be wronged in a similar way.” Bates v. United Parcel Serv., 511 F.3d 974, 985 (9th 20 Cir. 2007) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). Kazda has not done 21 this, particularly since Aetna revised CPB 0211. 22 Kazda does, however, have standing to pursue the injunction for reprocessing (and notice) 23 because it functions as a form of retrospective relief and because the harm that existed at the time 24 Kazda filed suit (the denial of her claim) persists today. 25 Des Roches is instructive. The Hon. Lucy H. Koh held in that case that the plaintiffs 26 lacked standing to pursue prospective relief, as they had not demonstrated a sufficient likelihood 27 that the defendants would return to old guidelines in the future. See 320 F.R.D. at 511. There too 28 the defendants had revised the guidelines at issue after the suit was filed. See id. at 495, 510. But 8 United States District Court Northern District of California Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 9 of 20 1 the court found that the reprocessing injunction—requiring the defendants to reprocess denied 2 claims—an appropriate basis for class certification under Rule 23(b)(2). Id. at 508-09. The 3 retrospective injunction posed no issue in terms of standing. 4 Moreover, the Ninth Circuit has expressly held that reprocessing is the usual remedy in 5 these types of cases. In Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability 6 Income Plan, 85 F.3d 455, 456 (9th Cir. 1996), the court held that when an “administrator 7 construes a plan provision erroneously, the court should not itself decide whether benefits should 8 be awarded.” Instead, it “should remand to the administrator for it to make that decision under the 9 plan, properly construed.” Saffle, 85 F.3d at 456. Relying on Saffle, courts within this circuit have 10 held that reprocessing injunctions warrant class certification under Rule 23(b)(2). See, e.g., Des 11 Roches, 320 F.R.D. at 508; Ballas v. Anthem Blue Cross Life & Health Ins. Co., No. CV-12- 12 00604, 2013 WL 12119569, at *13 (C.D. Cal. April 29, 2013). In addition to relying on Saffle for 13 certification under Rule 23(b)(2), the Ballas court noted that “[m]andating reevaluation by 14 Anthem of class members’ claims would be a form of relief [the plaintiff] has standing to pursue.” 15 Id. at n.62. Kazda too has standing to pursue this form of relief. 16 This does not require Kazda to show that her claim would in fact be covered under the new 17 guidelines. As the Ninth Circuit said in Saffle: “the court should not itself decide whether benefits 18 should be awarded.” 85 F.3d at 456. 19 In sum, Kazda has sufficiently shown that she has standing to seek an injunction requiring 20 that Aetna reprocess the denied claims at issue and provide notice to affected class members. She 21 has otherwise satisfied typicality and adequacy under Rule 23(a)(2). 22 23 2. Commonality Rule 23(a)(2) also requires “questions of law or fact common to the class.” Fed. R. Civ. P. 24 23(a)(2). A plaintiff must show that the class members suffered the same injury, meaning their 25 claims “depend upon a common contention” that is of such a nature that “determination of its truth 26 or falsity will resolve an issue that is central to the validity of each [claim] in one stroke.” See 27 Dukes, 564 U.S. at 349-50. The plaintiff must demonstrate not merely the existence of a common 28 question, but “the capacity of a class-wide proceeding to generate common answers apt to drive 9 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 10 of 20 1 the resolution of the litigation.” Id. at 350 (citation omitted). To satisfy Rule 23(a)(2), “even a 2 single common question will do.” Id. at 359. According to Kazda, common issues include “whether Aetna’s coverage position prior to 3 4 August 2020”—that is, “denying requests for Lipedema Surgery as ‘cosmetic’”—was incorrect, 5 and “whether it should be required to give notice and reprocess all previously denied lipedema 6 surgery requests using appropriate medical necessity coverage.” Mot. at 12:26, 13:20-22. Aetna first argues that it “never had a uniform policy, formal or informal, of denying United States District Court Northern District of California 7 8 claims for lipedema surgery on a categorical basis.” Oppo. at 18:2-3. In support, it offers the 9 declaration of Robert McDonough, Aetna’s senior director of clinical policy research and 10 development, who stated that neither CPB 0211 nor CPB 0031 “specifically addressed lipedema 11 or lipedema surgery and neither precluded coverage for lipedema surgery where medically 12 necessary.” Id. (citing McDonough Decl. at 6).1 Aetna also points to the language of the two 13 CPBs, which “never even mentioned the word ‘lipedema’ at all until March 2019.’” Id. at 18:3-5 14 (citing in part Exs. H, I). True, CPBs 0031 and 0211 did not expressly include the word “lipedema” (at least, before 15 16 0211 was revised). But they do mention suction lipectomy and declare the procedure cosmetic. 17 See Oppo., McDonough Decl., Ex. H (listing suction lipectomy as “cosmetic in nature”), Ex. I 18 (stating that “Aetna considers . . . suction lipectomy . . . cosmetic”). CPB 0031 states only one 19 20 21 22 23 24 25 26 27 28 Kazda objects to McDonough’s declaration and argues that I should disregard it. See Dkt. No. 88. The objection is overruled. To start, Civil Local Rule 7-3(c) requires that any evidentiary objections to the opposition be included within the reply brief or memorandum. Civil Local Rule 7-3(c). Moreover, the Ninth Circuit has recognized that “[n]umerous district courts in this circuit have long concluded that it is appropriate to consider evidence at the class certification stage that may ultimately be inadmissible.” Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1004 n.2 (9th Cir. 2018). 1 Kazda also objects to Aetna’s response to her objection, Aetna’s response to a declaration that Kazda attached to her reply, and Aetna’s supplemental declaration in support of its opposition. See Dkt. Nos. 91, 92, 94. Although Local Rule 7-3(d)(1) permits Aetna to file an objection to new evidence submitted in the reply, the rest of the filings, including Kazda’s objection, were improper. The Local Rules require that “[o]nce a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval.” Civil Local Rule 7-3(d). The parties did not seek, let alone obtain, my approval before these filings. Although these materials did not factor into my analysis, the parties are directed to review the Northern District of California’s Civil Local Rules to ensure compliance moving forward. 10 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 11 of 20 1 exception for lipectomy or liposuction “considered medically necessary when criteria are met:” 2 breast reduction. See id., Ex. H. It also clarifies that “while this policy statement addresses many 3 common procedures, it does not address all procedures that might be considered to be cosmetic 4 surgery excluded from coverage.” Id. Per this language, the list of procedures was not exhaustive. 5 Whether lipedema was specifically mentioned is therefore not dispositive. United States District Court Northern District of California 6 Aetna next argues that it had no categorical policy for determining claims for lipedema 7 surgery because it “assessed each claim individually and based upon the member’s clinical 8 information.” Oppo. at 18:20-21. In support, it points to the approval of approximately one-third 9 of the claims it received for lipedema surgery between January 2015 and August 2020. Id. at 10 18:18-20 (citing McDonough Decl. at 13). In the “vast majority of cases” where it did deny 11 claims, Aetna contends, it did so after requesting additional information or a conference with the 12 medical provider. Id. at 18:22-25. 13 This is also not persuasive, as courts within this circuit have recently rejected arguments 14 that approval of insurance claims defeats commonality. See Des Roches, 320 F.R.D. at 499 (“the 15 proposed class consists only of patients whose claims were denied”) (emphasis in original); see 16 also Hendricks v. Aetna Life Ins. Co., 339 F.R.D. 143 (C.D. Cal. 2021). In Hendricks, the court 17 held that even though Aetna had approved a lumbar surgery in some instances, the plaintiffs had 18 presented evidence showing that it was the company’s policy to deny coverage for the surgery 19 because it was “experimental or investigational,” satisfying commonality. 339 F.R.D. at 148-49. 20 Aetna’s policy descriptions stated that it did not generally cover “experimental or investigational” 21 devices or procedures” and a CPB articulated that it considered the surgery “experimental or 22 investigational.” Id. at 149. Moreover, the court held, Aetna denied the plaintiffs’ requests for the 23 surgery “solely on the ground” that it was “experimental or investigational.” Id. 24 Similar to Hendricks, Kazda has sufficiently shown, at least for the purposes of class 25 certification, that Aetna considered suction lipectomy a cosmetic procedure and denied class 26 members’ claims on those grounds. CPB 0031 and 0211 expressly state this. Aetna cited these 27 CPBs when denying Kazda’s claim, as well as those of other class members. This evidence 28 undermines Aetna’s argument that it had no categorial or uniform policy denying claims for 11 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 12 of 20 1 lipedema surgery as cosmetic. Whether Aetna in fact had such a policy or practice is a common 2 question that, answered one way or another, will drive the resolution of the litigation. 3 4 2019 WL 7050114, at *3 (Dec. 23, 2019), where the court had the benefit of a more robust 5 evidentiary record—submitted on two rounds of class certification briefing as well as cross- 6 motions for summary judgment—in deciding that the evidence did not demonstrate that an 7 insurance company applied a uniform standard or approach to the claims at issue. Given the 8 posture of this case (only the briefing on class certification, where “free-ranging merits inquiries” 9 are inappropriate), Kazda has shown enough with regard to Aetna’s policies and practices to 10 11 United States District Court Northern District of California This case also differs from Condry v. UnitedHealth Grp., Inc., No. 17-CV-00183-VC, 12 satisfy commonality. See Amgen, 568 U.S. at 466. 3. Numerosity Finally, Rule 23(a) requires that a class be “so numerous that joinder of all members is 13 impracticable.” Fed. R. Civ. P. 23(a)(1). Numerosity is a case-specific inquiry; there is “no magic 14 number required.” See Crosby v. Cal. Physicians’ Serv., 498 F. Supp. 3d 1218, 1229 (C.D. Cal. 15 2020); see also In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 350 (N.D. Cal. 2005) 16 (“Plaintiffs do not need to state the exact number of potential class members, nor is a specific 17 number of class members required for numerosity.”). “As a general matter, however, courts have 18 found that classes of 20 are too small, classes of 20-40 may or may not be big enough depending 19 on the circumstances of each case, and classes of 40 or more are numerous enough.” Crosby, 498 20 F. Supp. 3d at 1229 (quotation marks and citations omitted). 21 When the proposed class is “not very numerous,” courts consider factors including the 22 geographic diversity of class members, the ability of individual claimants to bring separate suits, 23 and whether injunctive or declaratory relief is sought in determining whether joinder is 24 impracticable and a class proceeding preferred. See Escalante v. Cal. Physicians’ Serv., 309 25 F.R.D. 612, 618 (C.D. Cal. 2015). When plaintiffs seek injunctive and declaratory relief, “the 26 numerosity requirement is relaxed and plaintiffs may rely on the reasonable inference arising from 27 plaintiffs’ other evidence that the number of unknown and future members of the proposed 28 subclass is sufficient to make joinder impracticable.” Nightengale v. U.S. Citizenship & Immigr. 12 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 13 of 20 1 Serv., 333 F.R.D. 449, 457 (N.D. Cal. 2019) (citation omitted). The parties dispute the size of the class. According to Kazda, it stands at “at least” 25 2 3 people, based on information provided by Aetna. Mot. at 10:18-21. She specifically cites a denial 4 spreadsheet, showing 30 members whose lipedema surgery requests were denied as cosmetic (25 5 of whom had ERISA plans), as well as testimony from McDonough authenticating the 6 spreadsheet. See Reply at 2:6-13 (citing Mot., Ex. 7 at 116-119; Ex. 15). Aetna offers several numbers, none of which are 25. See Oppo. at 22:15-20. It begins United States District Court Northern District of California 7 8 with 31 denied claims, which it reduces to 18 after eliminating “claims where a lipedema 9 diagnosis was only questionable.” See id. at 22:15-20 n.21. Of those 18, Aetna argues that five 10 are no longer Aetna members (and thus lack standing for prospective injunctive relief) and two 11 were covered under non-ERISA plans (and thus would not be part of the proposed class). Id. at 12 22:17-20. Using this math, Aetna arrives at a putative class of “only 11 members.” Id. at 22:20. 13 Aetna relies on another declaration from McDonough in arriving at these numbers. See id. at 14 22:15-20 (citing McDonough Decl. at 14). And even considering the claims with a “questionable” 15 lipedema diagnosis, Aetna argues that the class still falls short. See id. at 22:20 n.21. Of those 31 16 denied claims, Aetna contends that six involved non-ERISA plans and 10 more involved claimants 17 who are no longer covered by Aetna, leaving a class of 15 members. See id. A closer look at the claims excluded for “questionable” lipedema diagnoses shows that in 18 19 many, a lipedema diagnosis was clearly mentioned.2 Claim 2C states that “this request is for a 20 suction lipectomy for lipedema,” and that it was denied as cosmetic under CPB 0031 and 0211. 21 See Oppo., Ex. T-2C at 2905. Claim 3C lists lipedema under “pertinent past medical 22 history/comorbidities” and cites CPB 0211 in denying the request for coverage of suction assisted 23 lipectomy See id, Ex. T-3C at 2602-03. Claim 8C explicitly lists the claimant’s “diagnosis of 24 lipedema” and cites CPB 0031. See id., Ex. T-8C at 3808-09. In all, lipedema is mentioned in 10 25 26 27 28 McDonough identified the denied cases “where lipedema cannot be confirmed” as: 2C, 3C, 8C, 10C, 16C, 17C, 1F, 2F, 3F, 4F, 8F, 9F, and 10F. See Oppo., McDonough Decl. at 14. The referenced files are covered by one of the motions to seal granted later in this Order. I will describe them here in order to address the numerosity argument, and because the information cited does not reveal specific identifying information about any individual. 13 2 United States District Court Northern District of California Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 14 of 20 1 of the 13 cases that Aetna excluded. See id, Ex. T-10C at 2967 (“referred from [redacted] office 2 for liposuction evaluation for early stage lipedema”); Ex. T-1F at 3918 (describing claimant as 3 having “lipedema and lymphedema”); Ex. T-2F at 3315 (“Patient presents today for consultation 4 of lipedema . . . was recently diagnosed in June with this condition.”); Ex. T-3F at 3556 (“DX: 5 LIPEDEMA”); Ex. T-4F at 3020 (“referred for liposuction for evaluation to treat lipidema [sic]”); 6 Ex. T-8F at 2667 (“dx of lipedema, stage 1”); Ex. T-9F at 3255 (“dx of ‘lipedema’”). Another 7 claim, 10F, states that the claimant was treated for “lipo-lymphaedema [sic]”, which Kazda 8 contends is considered “stage 4 lipedema.” See id., Ex. T-10F at 3360; see also FAC at ¶ 10. 9 Because it is unclear how the lipedema diagnoses in these 11 claims were questionable, I will 10 include them in my count of potential class members, bringing Aetna’s number up to 29 claims. 11 Of those 29 claims, Aetna contends that six include non-ERISA plans that would not be 12 covered by the class: 3C, 9C, 10C, 11C, 4F, and 9F. See Oppo. at 22 n.21. That brings the class 13 size down to 23. Aetna’s argument that 10 other claimants should be excluded because they are 14 no longer Aetna members is not persuasive. Aetna focuses solely on whether “former plan 15 members lack standing for prospective relief.” See Oppo. at 22 n.20 (emphasis in original). But, 16 as explained above, Kazda seeks retrospective relief on behalf of the class: a reprocessing of the 17 previously denied claims. Aetna cites no authority in arguing that former Aetna members lack 18 standing for retrospective relief. See id. 19 The bottom line is this: the class size appears to be either 25 members (using Kazda’s 20 number) or 23 (using Aetna’s, with some adjustments). This is smaller than what one might 21 imagine when thinking of class action litigation. But given the particular circumstances of this 22 case, numerosity is satisfied. Kazda seeks declaratory and injunctive relief, triggering the more 23 relaxed standard. While joinder of 23 to 25 people might not be impossible, it would be 24 impracticable, given the likely geographic diversity of class members covered by a nationwide 25 insurance provider. And, as in Escalante (where a 19-member class was approved), certification 26 “would be in the interests of judicial economy.” See 309 F.R.D. at 618. Kazda seeks declaratory 27 relief and an injunction requiring Aetna to provide class members notice of the changes to its 28 claims adjudication process and to reprocess their previously denied claims. Resolving these 14 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 15 of 20 1 issues on a class-wide basis would spare other courts the time and resources of having to decide 2 them. Given the strain on our federal court system, the opportunity to avoid duplicative suits— 3 even 23 to 25 of them—is welcomed. 4 For all of these reasons, Kazda has met the requirements of Rule 23(a) by showing 5 numerosity, commonality, typicality, and adequacy. The first step in class certification is fulfilled. 6 7 Now to the second step: Rule 23(b). 8 Rule 23(b)(1)(A) allows class certification if “prosecuting separate actions by or against 9 United States District Court Northern District of California B. RULE 23(B) individual class members would create risk of inconsistent or varying adjudications with respect to 10 individual class members that would establish incompatible standards of conduct for the party 11 opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). “The phrase ‘incompatible standards of 12 conduct’ refers to the situation where ‘different results in separate actions would impair the 13 opposing party’s ability to pursue a uniform continuing course of conduct.’” Zinser v. Accufix 14 Res. Inst., Inc., 253 F.3d 1180, 1193 (9th Cir. 2001) (citation omitted). 15 Although much of the analysis above focused on the nature of the injunctive relief that 16 Kazda seeks, her FAC also includes a request for an order declaring that Aetna’s denials of her 17 and the class members’ claims “were wrong and improper.” FAC at ¶ 60. And the reprocessing 18 injunction requested includes an order that Aetna reevaluate the previously denied claims “under 19 appropriate and valid medical criteria.” Id. 20 As Kazda notes, there is a “very real risk that different courts might order divergent or 21 even conflicting relief.” Mot. at 19:17. The Des Roches court articulated the same concern: 22 without a class action, there was “a risk that in issuing individual injunctions, different courts 23 would come to different conclusions about what generally accepted standards require.” 320 24 F.R.D. at 507. The risk is that different courts might come to different conclusions about whether 25 Aetna’s denial of claims was in fact “wrong and improper” as well as what “appropriate and valid 26 medical criteria” entails. This could “establish incompatible standards of conduct,” impairing 27 Aetna’s ability to act uniformly moving forward. See Fed. R. Civ. P. 23(b)(1)(A). Certification is 28 therefore appropriate under Rule 23(b)(1). 15 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 16 of 20 It is also appropriate under Rule 23(b)(2).3 A class may proceed under Rule 23(b)(2) if United States District Court Northern District of California 1 2 “the party opposing the class has acted or refused to act on grounds that apply generally to the 3 class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the 4 class as a whole.” Fed. R. Civ. P. 23(b)(2). The focus in a Rule 23(b)(2) class “is not on the 5 claims of the individual class members, but rather whether [the defendant] has engaged in a 6 common policy.” In re Yahoo Mail Litig., 308 F.R.D. 577, 599 (N.D. Cal. 2015). 7 Kazda has sufficiently alleged, at this point, that Aetna had a policy and practice of 8 denying claims for lipedema surgery as cosmetic, as explained above. And courts have recognized 9 that class certification is appropriate under Rule 23(b)(2) when the plaintiff seeks a reprocessing 10 injunction, as Kazda does. See, e.g., Des Roches, 320 F.R.D. at 508-09 (collecting cases). This is 11 true of one of the cases that Aetna cites in opposing certification under Rule 23(b)(1), Ballas. See 12 Oppo. at 24:21-25:9. Although the Ballas court denied certification under Rule 23(b)(1), it held 13 that certification was appropriate under Rule 23(b)(2) because the plaintiffs “seeks an injunction 14 that would deliver the same relief to every class member”: one directing the insurance company to 15 reevaluate previously denied claims. 2013 WL 12119569, at *12-14. The same is true here. 16 Certification is therefore also permitted under Rule 23(b)(2). Having met the requirements set forth in Rule 23, Kazda’s motion for class certification is 17 18 GRANTED. II. 19 The parties filed four motions to seal in connection with the motion for class certification. 20 21 MOTIONS TO SEAL See Dkt. Nos. 81, 84, 89, 90. A party seeking to seal court records must overcome a strong presumption in favor of the 22 23 public’s right to access those records. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 24 1092, 1096 (9th Cir. 2016). Under Ninth Circuit law, a party must demonstrate “compelling 25 reasons” to seal motion-related filings where “the motion at issue is more than tangentially related 26 27 28 3 Because certification is appropriate under Rule 23(b)(1)(A) and 23(b)(2), I need not determine whether it would also be appropriate under Rule 23(b)(1)(B). Only one of three subsections of Rule 23(b) must be satisfied in order for a class to be certified. See Fed. R. Civ. P. 23(b). 16 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 17 of 20 1 to the underlying cause of action.” Id. at 1096-99. Courts within this circuit apply this standard to 2 motions to seal documents relating to class certification. See Adtrader, Inc. v. Google LLC, No. 3 17-CV-07082-BLF, 2020 WL 6391210, at *2 (N.D. Cal. March 24, 2020) (collecting cases). 4 5 Cty. for Auto Safety, 809 F.3d at 1097 (citing Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 6 (1978)). The Ninth Circuit has given examples, such as “when a court record might be used to 7 gratify private spite or promote public scandal, to circulate libelous statements, or as sources of 8 business information that might harm a litigant’s competitive standing.” Id. 9 United States District Court Northern District of California What constitutes a compelling reason is “left to the sound discretion of the trial court.” Under this district’s Local Rules, sealing requests must also be narrowly tailored to seek 10 sealing only of sealable material. See Civ. L.R. 79-5(c). “Reference to a stipulation or protective 11 order that allows a party to designate certain documents as confidential is not sufficient to 12 establish that a document, or portions thereof, are sealable.” Id. 13 The parties seek to seal numerous exhibits (and portions of documents referencing those 14 exhibits) that fall into three primary categories: Kazda’s medical records, third party medical 15 records, and internal Aetna documents that it contends contain confidential and competitive 16 business information. See generally Dkt. Nos. 81, 84, 89, 90. 17 A. KAZDA’S MEDICAL RECORDS 18 The requests to seal Exhibits 59, 60, and 61 (filed with the motion for class certification); 19 Exhibits 1 and 7 of the Austin declaration (filed with the opposition); and Exhibit 89 (filed with 20 the reply) are GRANTED. See Dkt. Nos. 81, 84, 89. These exhibits contain Kazda’s personal 21 health information, which courts in this district recognize as meeting the compelling reasons 22 standard. See Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., No. 12-CV-03844-JST, 23 2015 WL 984121, at *6 (N.D. Cal. March 24, 2015) (sealing exhibits “because they relate to 24 personal health issues”); see also Ortiz v. City & Cty. of San Francisco, No. 18-CV-07727-HSG, 25 2020 WL 2793615, at *9 (N.D. Cal. May 29, 2020) (“The court agrees that health records properly 26 meet the compelling reasons standard.”). Kazda’s personal health information is found throughout 27 these documents, which warrants sealing the exhibits in their entirety. 28 However, Aetna’s request to seal Exhibits 2 and 4-9 of the Austin declaration are 17 United States District Court Northern District of California Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 18 of 20 1 DENIED, as are the requests to seal portions of the opposition that reference these exhibits. See 2 Dkt. No. 84. It appears that Aetna seeks to seal these exhibits in their entirety. While some 3 portions of the documents reference Kazda’s personal health information, they also discuss other 4 topics. The request is not narrowly tailored to seek sealing only of sealable material. See Civil 5 L.R. 79-5(c); see also Icon-IP Pty Ltd., 2015 WL 984121, at *6 (declining to seal a deposition 6 transcript because in addition to referencing personal health issues, it included “extensive 7 discussion of unrelated topics” and thus was not narrowly tailored.). 8 I will consider a more tailored motion to seal, which Aetna may file within fourteen days 9 of the issuance of this Order. Until that deadline has passed and I have reviewed any motion that 10 is filed, the court will not unseal these exhibits. Should Aetna file another motion, it should attach 11 a version of the opposition highlighting the portions for which sealing is sought as required by 12 Local Rule 79-5(e)(2). 13 B. THIRD PARTY MEDICAL RECORDS 14 The request to seal Exhibits 17, 19, 21, 23, 30, 64, 66, 68, 70-73, 75, 78, and 83-85 15 (attached to the class certification motion) and Exhibits S and T (attached to the opposition) is 16 GRANTED. See Dkt. Nos. 81, 83. All but one of these exhibits are internal Aetna files with 17 notes about third-party claims. (Exhibit 75 is an appeal of Aetna’s denial of coverage that 18 includes a detailed case history of the claimant). These documents not only contain personal 19 health information but that of third parties, disclosure of which would cause a serious invasion of 20 privacy. See Icon-IP Pty Ltd., 2015 WL 984121, at *6 (finding that there were compelling reasons 21 to seal exhibits relating to personal health issues “because disclosure would cause a serious 22 invasion of the privacy of a third party.”). Although the names of the third parties are redacted, 23 the files contain detailed information about their medical issues, treatment, and the timeline for 24 which they sought coverage that could allow for their identification. This detailed information is 25 contained throughout the documents, which warrants sealing them in their entirety. 26 The request to seal portions of the documents that reference these exhibits is GRANTED 27 in part for the same reason and because the parties have narrowly tailored their requests to cover 28 only sealable material. For clarity, that includes: Lines 5:19-6:1, 6:4-6:12, 6:15-18; 6:19-26; 7:218 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 19 of 20 1 6, and 15:27-16:26 of the class certification motion, and Paragraph 18 of the Davis declaration 2 (Dkt. No. 81-4). Beyond this, the request to seal portions of documents that reference these 3 exhibits is DENIED. The remaining portions do not discuss the sealed exhibits in the same 4 amount or level of detail as to allow for the identification of any particular person. United States District Court Northern District of California 5 The request to seal Exhibits 16, 18, 20, 22, 24-29, 31-49, 65, 67, 74, and 76-77 (also 6 attached to the class certification motion) is also DENIED. See Dkt. Nos. 81, 83. These exhibits 7 are letters from Aetna denying third-party claims for coverage. Unlike the Aetna files, the letters 8 do not include detailed information (including specific personal health information) that allow for 9 the identification of any person. The names and other identifying information of the claimants are 10 redacted, and the letters appear to largely use the same or similar language in denying the claims. 11 The redactions should adequately protect any privacy concerns. 12 For the same reasons, the request to seal portions of documents that reference these 13 particular exhibits is DENIED. That includes: Lines 5:11-14, 6:2-6:4, 6:18-19, and 6:27-28 of the 14 class certification motion, and Lines 189:17-25 of the McDonough deposition (Dkt. No. 81-5). 15 Finally, the request to seal Exhibit E to the Aetna’s supplemental declaration is DENIED. 16 See Dkt. No. 90. While some portions of the deposition testimony reference the personal health 17 information of third parties, the deposition also covers other topics. The request is therefore not 18 narrowly tailored to seek sealing only of sealable material. Again, I would consider a more 19 narrow request, which Aetna must file within fourteen days of the issuance of this Order. 20 C. OTHER AETNA RECORDS 21 The request to seal Exhibits 52, 54, 55, 58, and 82 (attached to the motion for class 22 certification) and Exhibits G and L (attached to the opposition) is GRANTED. Most of these 23 exhibits are internal Aetna documents related to the implementation of the CPBs, including 24 meeting minutes for its policy council, emails, and training materials. Aetna has satisfactorily 25 shown that these exhibits contain non-public information about Aetna’s business practices that, if 26 disclosed, could prejudice or harm Aetna by providing its competitors with information about 27 Aetna’s specific claim-handling policies. See Google Inc. v. Eolas Tech. Inc., No. 15-CV-05446- 28 JST, 2016 WL 9243337, at *2 (N.D. Cal. March 22, 2016) (sealing information about “non-public 19 Case 3:19-cv-02512-WHO Document 99 Filed 04/26/22 Page 20 of 20 1 business practices, including internal organizational and operational details.”). If Aetna’s 2 competitors were to receive this information, it could compete for Aetna customers by 3 distinguishing the way they handle similar claims. Similarly, disclosing Exhibit 58, which is a 4 masters service agreement between Aetna and a customer, could harm Aetna by providing other 5 customers with access to the specific terms of this particular agreement. 6 The requests to seal the portions of documents that reference these materials are also 7 GRANTED. This includes: Lines 7:16-20 and 8:1-3 of the class certification motion, Page 151 of 8 the McDonough deposition (Dkt. No. 81-5), and Lines 5:11-14 of the McDonough declaration 9 (Dkt. No. 84-3).4 CONCLUSION 10 For the reasons stated above, Kazda has satisfied the requirements for class certification United States District Court Northern District of California 11 12 under Rule 23. The following class is certified: 13 All persons covered under ERISA health plans, self-funded or fully insured, that are administered by Aetna and whose claims for liposuction treatment of their lipedema were denied as cosmetic. 14 15 Kazda is appointed class representative and her counsel class counsel. 16 17 A Case Management Conference is set for May 31, 2022, at 2:00 p.m. A Joint Case Management Statement is due by May 24, 2022. 18 19 IT IS SO ORDERED. Dated: April 26, 2022 20 21 William H. Orrick United States District Judge 22 23 24 25 26 27 28 4 To the extent I referenced any of the sealed documents in this Order, it was necessary to explain the analysis (particularly concerning numerosity). I did so in a manner that avoided disclosing personal health or proprietary business information. 20

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