Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 1 of 10
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`ROBERT S. GIANELLI, #82116
`JOSHUA S. DAVIS, #193187
`ADRIAN J. BARRIO, #219266
`GIANELLI & MORRIS, A Law Corporation
`550 South Hope Street, Suite 1645
`Los Angeles, CA 90071
`Tel: (213) 489-1600; Fax: (213) 489-1611
`rob.gianelli@gmlawyers.com
`joshua.davis@gmlawyers.com
`adrian.barrio@gmlawyers.com
`
`Attorneys for Plaintiff
`MARY CALDWELL,
`on behalf of herself and all others
`similarly situated
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`Case No.: 4:19-cv-2861
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`CLASS ACTION
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`COMPLAINT FOR BENEFITS,
`DETERMINATION OF RIGHTS
`AND BREACH OF FIDUCIARY
`DUTY UNDER ERISA
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`MARY CALDWELL, on behalf of
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`herself and all others similarly situated,
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` Plaintiff,
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`v.
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`UNITEDHEALTHCARE INSURANCE )
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`COMPANY; UNITED HEALTHCARE )
`SERVICES, INC.,
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` Defendants.
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`_________________________________
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 2 of 10
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`Plaintiff, Mary Caldwell (“Plaintiff”), on behalf of herself and all others
`similarly situated, herein sets forth the allegations of her Complaint against Defendants
`UnitedHealthcare Insurance Company and United HealthCare Services, Inc.
`INTRODUCTION
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`1.
`Defendants UnitedHealthcare Insurance Company and United HealthCare
`Services, Inc. ("hereinafter "United") is in the business of insuring and/or
`administering health insurance plans (both fully insured and self-insured), most of
`which are employer-sponsored and governed by the Employee Retirement Income
`Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. (“United plans”).
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`2.
`Plaintiff brings this action to address United’s practice of improperly
`denying claims for surgical treatment of lipedema made by patients under United
`plans. As set forth below, United denies claims for the surgical treatment of lipedema
`on the basis they are "unproven." Lipedema is a rare condition that is chronic,
`progressive, painful, and immobilizing. It involves an abnormal buildup of adipose
`(fat) tissue, usually in the lower body but sometimes in the arms. Often misdiagnosed
`as obesity or lymphedema, lipedema primarily affects women. Surgical treatment of
`lipedema is not unproven It is the only available therapy for this condition and has
`been the subject of various studies that show its beneficial effect.
`JURISDICTION AND VENUE
`This action is brought under 29 U.S.C. §§ 1132(a), (e), (f) and (g) as it
`3.
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`involves claims by Plaintiff for employee benefits under employee benefit plans
`regulated and governed by ERISA. Subject matter jurisdiction is predicated under
`these code sections as well as 28 U.S.C. § 1331 as this action involves a federal
`question.
`The Court has personal jurisdiction over Defendants because ERISA
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`4.
`provides for nationwide service of process, and each Defendant has minimum contacts
`with the United States. 29 U.S.C. § 1132(e)(2).
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`5.
`The claims of Plaintiff and the putative class arise out of policies
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 3 of 10
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`Defendants issued, administered, and/or implemented in this District. Thus, venue is
`proper in this judicial district pursuant to 29 U.S.C. § 1132(e)(2) (setting forth special
`venue rules applicable to ERISA actions).
`THE PARTIES
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`6.
`Plaintiff was at all relevant times covered under an employee benefit plan
`regulated by ERISA and pursuant to which Plaintiff is entitled to health care benefits.
`Plaintiff resides in Alameda County which is located within this District.
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`7.
`United is a corporation with its principal place of business in Minneapolis,
`Minnesota. United administers and makes benefit determinations related to ERISA
`health care plans around the country.
`SUBSTANTIVE ALLEGATIONS
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`Lipedema.
`A.
`Lipedema is a rare condition that is chronic, progressive, painful, and
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`immobilizing. It involves an abnormal buildup of adipose (fat) tissue, usually in the
`lower body but sometimes in the arms. Often misdiagnosed as obesity or lymphedema,
`lipedema primarily affects women. Symptoms of lipedema include disproportionately
`large, column-like legs, and disproportionate hips, stomach or buttocks. As lipedema
`progresses, patients become increasingly heavy in the lower body and expanding fat
`cells interfere with the pathways of lymphatic vessels. It is estimated that lipedema
`affects nearly 11% of the adult female population
`9.
`One of the most common misconceptions about patients with lipedema is
`that they suffer, instead, from lifestyle- or diet-induced obesity. Although some
`patients with lipedema may also have obesity and although the obesity may influence
`the lipedema subcutaneous adipose tissue, lipedema is a mutually exclusive diagnosis
`and should be considered as such. Unlike obesity, the adipocyte hypertrophy and
`swelling associated with lipedema are resistant to change with diet and exercise or
`bariatric surgery and caloric restriction.
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 4 of 10
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`10. There are four stages of lipedema: Stage 1 in which there is a normal skin
`surface with enlarged hypodermal adipose tissue; Stage 2 with indentations of the skin
`and underlying adipose tissue similar to a mattress containing larger mounds of
`adipose tissue that grow as non-encapsulated masses, lipomas and angiolipomas; Stage
`3 where large extrusions of tissue (skin and adipose tissue) cause gross deformations
`especially on the thighs and around the knees. Lymphedema, where lymph fluid
`develops dependently on the feet and hands increasing cranially due to dysfunctional
`lymphatics, can develop during any stage of lipedema, and is called lipolymphedema
`or Stage 4 lipedema.
`11. As lipedema progresses, it causes pain, mobility problems, joint disorders,
`and other physical problems that prevent patients from engaging in the activities of
`daily living.
`12. The only effective treatment for the pain and immobility caused by
`lipedema is a specialized form of liposuction. This is different from the techniques
`used for cosmetic liposuction. During this procedure, a solution is injected into the
`targeted areas. The solution contains epinephrine to help reduce bleeding, bruising, and
`swelling and lidocaine as a local anesthetic. The surgeon uses a gentle, vacuum-like
`instrument to remove excess fat. The removal of this tissue allows patients to gain
`mobility, reduce or eliminate pain, and lead a productive life.
`B. United’s wrongful denial of lipedema surgery claims.
`13. United plans exclude from coverage those medical services that United
`considers are "unproven.”
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`14.
`“Unproven” is defined in United plans as services:
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`[T]hat are determined not to be effective for treatment of the medical
`condition and/or not to have a beneficial effect on net health outcomes
`due to insufficient and inadequate clinical evidence from well-conducted
`randomized controlled trials or cohort studies in the prevailing published
`peer-reviewed medical literature.
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`///
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 5 of 10
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`15. United has followed a consistent practice of denying claims for
`specialized liposuction to treat advanced lipedema in arms, legs, and other body parts
`on the basis the treatment is “unproven” pursuant to the above-referenced standardized
`definition.
`16. Contrary to United’s position, specialized liposuction to treat the
`symptoms of lipedema is not unproven. It is the only available therapy for this
`condition and has been the subject of various studies that show its beneficial effect. It
`is routinely performed at Standford University Medical Center and other leading
`medical facilities.
`C. United’s denial of Mary Caldwell’s claim.
`17. At all relevant times, Plaintiff Mary Caldwell was covered under an
`ERISA health plan through her employer.
`18. Plaintiff was diagnosed with Stage 3 lipedema. Her advanced lipedema
`has caused her pain, immobility, and other problems.
`19. Plaintiff requested that United provide coverage for specialized
`liposuction to treat her advanced lipedema. Her physician submitted information to
`United setting forth Plaintiff's diagnosis and the proposed treatment.
`20. On November 28, 2017, United sent a letter to Plaintiff denying coverage
`for the proposed surgery stating that "these procedures are not proven to be helpful for
`people with your condition. Your plan does not cover for unproven services."
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`21. Plaintiff appealed this decision.
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`22. On June 1, 2018, United denied the appeal. United stated that:
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`[T]he clinical information and the peer-reviewed literature do not support
`the use of the service requested in your type of case. The service requested
`is an unproven service under the plan.
`23. Specialized liposuction is the only effective treatment for the pain,
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`immobility and other problems that result from advanced lipedema. In coming to its
`"unproven" position, United has ignored clinical evidence and various studies
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 6 of 10
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`demonstrating that the surgery is effective and necessary for the treatment of the
`disabling effects of lipedema.
`CLASS ACTION ALLEGATIONS
`24. Plaintiff brings this action on behalf of herself and all others similarly
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`situated as a class action pursuant to Federal Rules of Civil Procedure Rule 23.
`Pursuant to Rule 23(b)(1) and (b)(2), Plaintiff seeks certification of the following class:
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`All persons covered under ERISA health plans, self-funded or fully
`insured, that are administered by United and whose claims for specialized
`liposuction for treatment of their lipedema were denied as unproven.
`25. Plaintiff and the class members reserve the right under Federal Rule of
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`Civil Procedure Rule 23(c)(l)(C) to amend or modify the class to include greater
`specificity, by further division into subclasses, or by limitation to particular issues.
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`26. This action has been brought and may be properly maintained as a class
`action under the provisions of Federal Rules of Civil Procedure Rule 23 because it
`meets the requirements of Rule 23(a) and Rule 23(b)1 and (b)(2).
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`A. Numerosity.
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`27. The potential members of the proposed class as defined are so numerous
`that joinder of all the members of the proposed class is impracticable. While the
`precise number of proposed class members has not been determined at this time,
`Plaintiff is informed and believes that there are a substantial number of individuals
`covered under United plans who have been similarly affected.
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`B. Commonality.
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`28. Common questions of law and fact exist as to all members of the proposed
`class.
`Typicality.
`C.
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`29. The claims of the named Plaintiff are typical of the claims of the proposed
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`class. Plaintiff and all members of the class are similarly affected by United’s wrongful
`conduct.
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 7 of 10
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`D. Adequacy of representation.
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`30. Plaintiff will fairly and adequately represent and protect the interests of
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`the members of the proposed class. Counsel who represent Plaintiff are competent and
`experienced in litigating large and complex class actions, including class actions
`against health plans such as United.
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`E.
`Superiority of class action.
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`31. A class action is superior to all other available means for the fair and
`efficient adjudication of this controversy. Individual joinder of all members of the
`proposed class is not practicable, and common questions of law and fact exist as to all
`class members.
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`32. Class action treatment will allow those similarly situated persons to
`litigate their claims in the manner that is most efficient and economical for the parties
`and the judicial system. Plaintiff is unaware of any difficulties that are likely to be
`encountered in the management of this action that would preclude its maintenance as a
`class action.
`Rule 23(b) requirements.
`F.
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`Inconsistent or varying adjudications with respect to individual members
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`of the class would establish incompatible standards of conduct for United.
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`34. Adjudications with respect to individual class members would be
`dispositive of the interests of the other members not parties to the individual
`adjudications or would substantially impair or impede their ability to protect their
`interests.
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`35. United has acted or refused to act on grounds generally applicable to the
`class, thereby making appropriate final injunctive relief or corresponding declaratory
`relief with respect to the class as a whole.
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 8 of 10
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`FIRST CLAIM FOR RELIEF
`DENIAL OF PLAN BENEFITS AND FOR CLARIFICATION OF RIGHTS
`UNDER AN ERISA PLAN [29 U.S.C. § 1132(a)(1)(B)]
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`36. Plaintiff and the class members repeat and re-allege each and every
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`allegation set forth in all of the foregoing paragraphs as if fully set forth herein.
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`37.
`29 U.S.C. § 1132(a)(1)(B) entitles Plaintiff to recover benefits due and to
`enforce and clarify her rights to the benefits at issue.
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`38. As set forth above, United has followed a practice of denying claims for
`specialized liposuction for the treatment of lipedema on the basis the treatment is
`unproven and excluded from coverage.
`39. Pursuant to its practice, United denied Plaintiff’s request for liposuction
`surgery to treat the symptoms of her lipedema on the basis the treatment is unproven.
`Contrary to United’s position, specialized liposuction to treat the symptoms of
`lipedema is not unproven. It is the only available therapy for this condition and has
`been the subject of various studies that show its beneficial effect. It is routinely
`performed at Standford University Medical Center and other leading medical facilities.
`40. Plaintiff has exhausted her administrative remedies, as alleged above.
`41. Based on the foregoing, Plaintiff and the class members seek the payment
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`of medical expenses, interest thereon, a clarification of rights, and attorney fees.
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`SECOND CLAIM FOR RELIEF
`BREACH OF FIDUCIARY DUTY AND EQUITABLE RELIEF UNDER AN
`ERISA PLAN [29 U.S.C. § 1132(a)(3)]
`42. Plaintiff and the class members repeat and re-allege each and every
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`allegation set forth in all of the foregoing paragraphs as if fully set forth herein.
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`43. As alleged herein, United has acted as an ERISA fiduciary with respect to
`the administration and claims decisions under United plans and, in particular, has acted
`as an ERISA fiduciary in denying claims for liposuction to treat lipedema, as alleged
`herein.
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`44. United improperly denied Plaintiff’s and the class members’ claims for
`liposuction treatment of lipedema in beach of its fiduciary duties, as alleged herein.
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 9 of 10
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`45. Pursuant to 29 U.S.C. § 1132(a)(3), Plaintiff and the class members seek
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`declaratory, equitable and remedial relief as follows:
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`a.
`An order declaring that United’s denials of claims for liposuction
`treatment for advanced lipedema are wrong and improper;
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`b.
`An injunction requiring United to reevaluate and reprocess
`Plaintiff’s and class members’ claims without the erroneous denial basis under
`appropriate and valid medical criteria;
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`c.
`An injunction requiring United to provide notice of the reevaluation
`and reprocessing in the form and manner required by ERISA to all class members;
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`d.
`An accounting of any profits made by United from the monies
`representing the improperly denied claims and disgorgement of any profits;
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`e.
`Such other equitable and remedial relief as the Court may deem
`appropriate; and
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`f.
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`Benefits denied in an amount to be proven at trial, including interest;
`A clarification of rights to future benefits under the plan for all class
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`Attorneys' fees in an amount to be proven.
`REQUEST FOR RELIEF
`Wherefore, Plaintiff and the class members pray for judgment against United as
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`follows:
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`1.
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`2.
`members;
`Injunctive and declaratory relief, as described above;
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`3.
`An accounting of any profits made and retained through the improper
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`4.
`denial of claims and disgorgement of any profits;
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`5.
`Attorneys' fees; and
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`6.
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`proper.
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`DATED: May 23, 2019
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`Case 3:19-cv-02861-WHA Document 1 Filed 05/23/19 Page 10 of 10
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`Such other equitable and remedial relief as the Court may deem just and
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`GIANELLI & MORRIS
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`By:
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`/s/ Adrian J. Barrio
`ROBERT S. GIANELLI
`JOSHUA S. DAVIS
`ADRIAN J. BARRIO
`Attorneys for Plaintiff
`MARY CALDWELL
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