Odom Hayes v. Blue Cross and Blue Shield of Texas, Inc., No. 3:2018cv00193 - Document 75 (S.D. Tex. 2020)

Court Description: MEMORANDUM OPINION AND ORDER granting 49 MOTION for Summary Judgment (Signed by Judge Jeffrey V Brown) Parties notified.(GeorgeCardenas, 4)

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Odom Hayes v. Blue Cross and Blue Shield of Texas, Inc. Doc. 75 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION March 04, 2020 David J. Bradley, Clerk No. 3:18-cv-0 0 193 LOUISE ODOM HAYES, PLAINTIFF, v. BLUE CROSS AND BLUE SHIELD OF TEXAS, INC. AND HEALTH CARE SERVICE CORPORATION, DEFENDANTS. MEMORANDUM OPINION AND ORDER J EFFREY VINCENT BROWN , U NITED STATES DISTRICT J UDGE . Plaintiff Louise Hayes-Odum 1 sued her form er health-insurance carrier, Blue Cross and Blue Shield of Texas, Inc., in state court in Brazoria County. Dkt. 1. In her lawsuit, Hayes-Odum contends Blue Cross breached its policy by failing to pay for Lum igan eye drops in a sufficient am ount to prevent deterioration of her vision. The case was rem oved to this court, Dkt. 1, and Hayes-Odum filed an am ended com plaint, Dkt. 14. The court has jurisdiction over this dispute because there is com plete diversity of the parties and the am ount in controversy exceeds $ 75,0 0 0 . See 28 U.S.C. § 1332 (establishing diversity jurisdiction); Coghlan v. Blue Cross Blue Shield of Texas, 1 The plaintiff was incorrectly nam ed as Louise Odom Hayes in her original petition. Dkt. 14. 1 Dockets.Justia.com No. CIV.A. H-12-270 3, 20 13 WL 150 711, at *2– 3 (S.D. Tex. J an. 14, 20 13) (holding Blue Cross is an unincorporated division of Health Care Service Corporation, a citizen of Illinois for diversity purposes); Dkt. 14 at ¶¶13, 18– 19 (Hayes-Odum seeks damages totaling $ 6,50 0 ,0 0 0 ). Blue Cross m oved for summ ary judgment, arguing that the evidence shows its determ ination of benefits was consistent with its contractual obligations to HayesOdum. Dkt. 49. Blue Cross further argues Hayes-Odum cannot prove causation because she has no expert medical testim ony to prove insufficient Lum igan eye drops caused the deterioration of her vision. Id. In her response to the m otion, Hayes-Odum objects to Blue Cross’s sum m ary-judgm ent evidence as lacking authenticity. Dkt. 54. Additionally, she argues Blue Cross breached its obligations to her by covering an am ount of Lumigan eye drops that was less than the industry standard and less than her prescription. Id. She also argues her testim ony and m edical records are sufficient to prove causation. Id. Blue Cross filed a reply to Hayes-Odum ’s response. Dkt. 56. Based on the pleadings; the m otion, response, and reply; the record; and the applicable law, the court will grant Blue Cross’s motion for sum m ary judgm ent. I. The court m ust decide whether Blue Cross is entitled to summ ary judgm ent on Hayes-Odum ’s breach-of-contract cause of action. The elem ents of breach of contract under Texas law are: “(1) the existence of a valid contract; (2) perform ance 2 or tendered perform ance by the plaintiff; (3) breach of the contract by the defendant; and (4) dam ages to the plaintiff resulting from that breach.” Crose v. Hum ana Ins. Co., 823 F.3d 344, 347 (5th Cir. 20 16). Blue Cross argues sum m ary judgm ent is proper because no evidence in the record raises a genuine issue of m aterial fact on two requisite elem ents: breach and causation. “Sum m ary judgm ent is required when ‘the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgment as a m atter of law.’” Trent v. W ade, 776 F.3d 368, 376 (5th Cir. 20 15) (quoting Fed. R. Civ. P. 56(a)). “A fact is ‘m aterial’ if its resolution in favor of one party m ight affect the outcom e of the lawsuit under governing law.” Sossam on v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 20 0 9) (citation om itted). “A genuine dispute of m aterial fact exists when the ‘evidence is such that a reasonable jury could return a verdict for the nonm oving party.’” Nola Spice Designs, LLC v. Hay del Enters., Inc., 783 F.3d 527, 536 (5th Cir. 20 15) (quoting Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 248 (1986)). “The m oving party ‘bears the initial responsibility of informing the district court of the basis for its m otion, and identifying those portions of [the record] which it believes dem onstrate the absence of a genuine issue of m aterial fact.’” Id. (quoting E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 20 14)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where the non-m ovant bears the burden of proof at trial, the m ovant m ay m erely point to the absence of 3 evidence and thereby shift to the non-m ovant the burden of dem onstrating by com petent sum m ary judgm ent proof that there is an issue of m aterial fact warranting trial.” Nola Spice, 783 F.3d at 536 (internal quotation m arks and citation om itted); see also Celotex, 477 U.S. at 325. “If the m oving party fails to m eet [its] initial burden, the m otion [for sum m ary judgm ent] m ust be denied, regardless of the nonm ovant’s response.” United States v. $ 92,20 3.0 0 in U.S. Currency , 537 F.3d 50 4, 50 7 (5th Cir. 20 0 8) (quoting Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994) (en banc)). When the m oving party has m et its Rule 56(a) burden, the nonm oving party cannot survive a sum m ary-judgm ent m otion by resting on the m ere allegations of its pleadings. The nonm ovant m ust identify specific evidence in the record and explain how that evidence supports that party’s claim. Baranow ski v. Hart, 486 F.3d 112, 119 (5th Cir. 20 0 7). “This burden will not be satisfied by ‘som e m etaphysical doubt as to the m aterial facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’” Boudreaux v. Sw ift Transp. Co., 40 2 F.3d 536, 540 (5th Cir. 20 0 5) (quoting Little, 37 F.3d at 10 75). In deciding a sum m ary-judgm ent m otion, the court draws all reasonable inferences in the light m ost favorable to the nonm oving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 20 0 8). But “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court m ay . . . consider the fact undisputed for purposes 4 of the m otion.” Fed. R. Civ. P. 56(e)(2). II. A. Evid e n tiary Is s u e s Hayes-Odum argues that Blue Cross cannot prevail on its m otion because it relies on the following im proper sum m ary-judgm ent evidence: (1) allegations in the pleadings and (2) exhibits that are “unauthenticated photocopies.” Dkt. 54 at 2, 5. Hayes-Odum argues Blue Cross has failed to prove the authenticity of its exhibits because they are not appended to an affidavit stating they are true and correct copies. Id. at 2. Accordingly, Hayes-Odum has requested that the court strike any portion of Blue Cross’ m otion that relies on the exhibits or on allegations in the pleadings. Id. While unverified allegations in pleadings generally are not sum m ary-judgment proof, a party m oving for summ ary judgm ent can cite the non-m ovant’s pleadings to describe the basis for its motion. W allace v. Texas Tech Univ., 80 F.3d 10 42, 10 47 (5th Cir. 1996); Isquith for & on Behalf of Isquith v. Middle S. Utilities, Inc., 847 F.2d 186, 194– 95 (5th Cir. 1988) (treating factual allegations in plaintiff’s com plaint as adm issions for purposes of considering defendants’ motion for sum m ary judgm ent). In this instance, the court has been sure to give any references to the pleadings in either Blue Cross’s or Hayes-Odum ’s briefing the proper evidentiary weight—no m ore and no less. Furthermore, Blue Cross has not relied on allegations in the pleadings for 5 sum m ary-judgm ent proof. To supports its argum ent that no genuine issue of m aterial fact exists on breach and causation, Blue Cross subm itted the following exhibits: (1) its expert’s report (Dkt. 50 ); (2) Hayes-Odum ’s responses and supplem ental responses to Blue Cross’s interrogatories (Dkt. 49-2 and 49-3); (3) a portion of Hayes-Odum ’s deposition transcript (Dkt. 50 -1); (4) correspondence from Hayes-Odum to Blue Cross (Dkt. 49-5); (5) a declaration from Blue Cross’s em ployee, Phillip Yoo, (the “Yoo Declaration”) with several of Blue Cross’s corporate docum ents attached (Dkt. 49-6); (6) a portion of Hayes-Odum’s treating physician’s deposition transcript (Dkt. 50 -2); and (7) correspondence from HayesOdum to the court (Dkt. 49-8). Hayes-Odum ’s second evidentiary argum ent is a blanket objection to the authenticity of all of Blue Cross’s exhibits. But her cursory objection fails to specifically explain why any of Blue Cross’s exhibits “cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2); Flores v. Harris, No. CV H-17-3817, 20 19 WL 3216581, at *3 (S.D. Tex. J uly 17, 20 19) (denying objections to sum m ary-judgm ent evidence as too conclusory); Hoffm an v. Bailey , 257 F. Supp. 3d 80 1, 824 (E.D. La. 20 17) (“It is not the Court's responsibility to comb through the record to determ ine the basis for [a party’s] cursory objections or to m ake arguments on [a party’s] behalf.”). The court overrules Hayes-Odum ’s evidentiary objections. 6 B. Bre ach Blue Cross argues there is no genuine dispute of m aterial fact that its determ ination of Hayes-Odum’s benefits for Lum igan eye drops was consistent with its contractual obligations to her. In 20 14, Hayes-Odum was covered under Blue Cross’s Select Choice Preferred Provider Organization plan, specifically policy num ber 0 0 0 174/ 893667371 (hereinafter, the “policy”). Yoo Declaration at ¶3. Attached to the Yoo Declaration as part of its sum mary-judgment proof, Blue Cross has subm itted the policy’s benefit booklet (Dkt. 49-6 at 7) as well as Blue Cross’s drug-dispensing limits (Dkt. 49-6 at 75) for 20 14. 1. The Policy According to the policy’s benefit booklet, Blue Cross has the right to determ ine the day-supply lim it for covered drugs, and benefits will be denied for drugs dispensed above the m axim um day-supply lim it. Dkt. 49-6 at 28. Blue Cross publishes the dispensing lim its that apply to all its insurance policies. Yoo Declaration at ¶6; Dkt. 49-6 at 75. The published dispensing lim it for Lum igan in 20 14 was 2.5 milliliters for every 30 days. Yoo Declaration at ¶9; Dkt. 49-6 at 92, 122. If an insured’s doctor prescribes a greater quantity of m edication than provided for in the dispensing lim its, the insured is responsible for the full cost beyond what the dispensing-lim it coverage allows. Dkt. 49-6 at 86, 98. In 20 14, Blue Cross’s pharm acy system was set up to allow a m aximum of 7.5 milliliters for 90 days for a m aintenance m edication such as Lum igan, consistent with the 7 published dispensing lim it. Yoo Declaration at ¶9; Dkt. 49-6 at 28 (allowing “[u]p to a 90 -day supply” for m aintenance drugs ordered through the m ail-order pharm acy). 2. FDA and m anufacturer guidance Blue Cross based its Lum igan dispensing limit on guidance from the Food and Drug Administration (“FDA”) and from Allergan, the drug’s m anufacturer. Yoo Declaration at ¶¶7– 9. The FDA’s recom mended dosage for Lumigan is one drop in each affected eye once daily in the evening. Yoo Declaration at ¶7; Dkt. 496 at 111– 12. More frequent adm inistration of Lumigan is not recomm ended. Id. at 112. According to Allergan, Lum igan dispenses approxim ately 30 drops per m illiliter. Yoo Declaration at ¶8; Dkt. 49-6 at 120 . Therefore, there are 75 drops in a 2.5-m illiliter bottle and 225 drops in a 7.5-m illiliter bottle of Lum igan. Id. at 120 – 21. In light of this guidance, Blue Cross set its dispensing limit for Lumigan at 2.5 m illiliters for 30 days, providing 75 drops (m ore than one drop per eye per day) for the tim e period. Yoo Declaration at ¶9. 3. Plaintiff’s covered Lum igan benefits The am ount of Lumigan that Blue Cross approved as a covered benefit for Hayes-Odum was consistent with the policy. On March 18, 20 14, Blue Cross approved Hayes-Odum ’s first 20 14 claim for Lum igan as a covered benefit. Yoo Declaration at ¶¶10 – 11. At that tim e, Blue Cross allowed 5 m illiliters of Lum igan, less than the dispensing limit of 7.5 milliliters for 90 days. Id. In other words, 8 Hayes-Odum was eligible for another 2.5 m illiliter of Lum igan for the 90 -day period from March 18 to J une 16. Id. On May 5, 20 14, Blue Cross covered 2.5 m illiliters of Lumigan, reaching the dispensing limit for the 90 -day period ending J une 16. Id. For the next two 90 -day periods—J une 16 to Septem ber 14 and Septem ber 14 to December 13—Blue Cross covered up to the dispensing lim it for Lum igan in several 2.5-milliliter doses: Plaintiff was dispensed 2.5 m illiliters of Lum igan on the following dates for the rem ainder of 20 14—J une 8, J uly 15, August 23, Septem ber 26, November 2 and Decem ber 6. Id. If an insured’s provider wants Blue Cross to cover m ore m edication than the dispensing lim it, Blue Cross allows the provider to submit a Quantity Exception Request to Blue Cross for consideration. Yoo Declaration at ¶12. Blue Cross received no calls from Hayes-Odum related to her Lum igan dosing and received no Quantity Exception Request from either Hayes-Odum or her provider. Id. at ¶13. As a result, it had no basis or opportunity to consider whether Hayes-Odum should receive Lumigan at quantities in excess of the dispensing limitation. Id. 4. No genuine dispute of m aterial fact on breach Blue Cross has m et its summ ary judgm ent burden to show no genuine dispute on breach. By covering 7.5 milliliters of Lum igan for each 90 -day period, Blue Cross com plied with the policy. Pena v. Assocs. Fin. Life Ins. Co., 77 F. App’x 259, 260 (5th Cir. 20 0 3) (affirm ing summ ary judgm ent where policy language was unam biguous). 9 Hayes-Odum contends Blue Cross breached the policy because (1) her doctor prescribed 5 m illiliters of Lum igan—an am ount she says is “universally accepted” under “pharm aceutical industry standards”—and (2) her new insurance carrier covers 5 milliliters of Lum igan. Dkt. 54 at 3– 4. Hayes-Odum does not cite to any proof in the sum m ary-judgm ent record to support her allegations or explain how her allegations constitute a breach of the policy’s term s. Hayes-Odum cannot survive sum m ary judgment by resting on m ere conclusory allegations and ignoring the policy’s express language; she m ust set forth specific facts supported by evidence showing the existence of a genuine dispute on whether Blue Cross breached the policy. See Gonzales v. AutoZone, Inc., No. CIV.A. H-0 9-40 54, 20 10 WL 410 2273, at *3– 4 (S.D. Tex. Oct. 18, 20 10 ) (granting sum m ary judgment for defendant when plaintiff did not m ake a coverage argument based on the contract’s term s); Baranow ski, 486 F.3d at 123 (holding plaintiff who failed to provide anything m ore than “bald and unsubstantiated allegations” in response to a sum m ary-judgm ent m otion could not succeed); Allen v. Jackson Cty ., Miss., 623 F. App’x 161, 162 (5th Cir. 20 15) (“failure to cite record evidence . . . dem onstrates that summ ary judgm ent was proper”). Therefore, Blue Cross’s uncontroverted evidence is sufficient to establish there is no genuine factual dispute as to whether Blue Cross breached the policy. Sum m ary judgm ent is proper on this elem ent alone. 10 C. Cau s atio n Hayes-Odum alleges insufficient Lumigan caused her eyesight to dim inish. Dkt. 54 at 6– 7. As her causation evidence, she points only to her own testim ony and her m edical records. Id. She argues her lay testim ony about the “obvious declination of her eyesight” along with her m edical records (which are not in the court’s record) showing her declining vision is sufficient evidence to survive sum m ary judgm ent. Id. Hayes-Odum’s references to her testim ony and the m edical records are not supported by com petent sum mary-judgment proof. Indeed, the only evidence concerning causation in the sum mary-judgment record is Blue Cross’s expert report. Dkt. 50 . For this reason alone, Hayes-Odum cannot survive sum m ary judgment on causation. See Baranow ski, 486 F.3d at 123; Allen, 623 F. App’x at 162. In any event, issues that are m edically com plicated require expert testim ony on causation. Renfro v. Hartford Underw riters Ins. Co., No. CIV. 3:0 6-CV-20 52K, 20 0 7 WL 2446281, at *2 (N.D. Tex. Aug. 29, 20 0 7). Evidence in the record establishes that the nature of Hayes-Odum’s vision issues is m edically com plicated. Dkt. 50 -2; Dkt. 50 . Accordingly, expert m edical testim ony is required to establish what caused her eyesight to diminish. See Renfro, 20 0 7 WL 2446281, at *2 (holding expert testim ony is required for m edically com plicated issues). Hayes-Odum has pointed to no expert medical testim ony to support causation. As Hayes-Odum is unable to raise a genuine issue of m aterial fact on the issue 11 of m edical causation, sum m ary judgment is appropriate for this reason as well. *** Blue Cross has established through its sum m ary-judgm ent evidence that Hayes-Odum cannot satisfy the breach elem ent of a breach-of-contract cause of action. Additionally, no com petent proof in the record establishes that HayesOdum ’s injuries were caused by insufficient Lumigan eye drops. Accordingly, the court grants Blue Cross’s m otion for summ ary judgm ent. Dkt. 49. SIGNED on Galveston Island on this, the 4th day of March, 20 20 . ______________________________ J EFFREY VINCENT BROWN UNITED STATES DISTRICT J UDGE 12

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