USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1253

RONALD J. TURNER, AS ADMINISTRATOR OF THE

ESTATE OF CHARLOTTE M. TURNER, AND INDIVIDUALLY,

Plaintiff, Appellant,

v.

FALLON COMMUNITY HEALTH PLAN, INC.,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Hill,* Senior Circuit Judge,

____________________

and Pollak,** Senior District Judge.

_____________________

____________________

Burton Chandler with

________________

whom

Seder & Chandler

_________________

was on

brief

appellant.
Daly D.E. Temchine with
__________________

whom Thomas I. Elkind and Epstein Bec

________________
____________

& Green, P.C. were on brief for appellee.

_____________

____________________

October 20, 1997

____________________

____________________

*Of the Eleventh Circuit, sitting by designation.

**Of the Eastern District of Pennsylvania, sitting by designation.

BOUDIN,

Circuit Judge.
_____________

Ronald

Turner,

on behalf

of

himself and

as administrator of

wife,

Charlotte Turner, brought

state

court

("Fallon").

coverage

and her

After

against

Fallon

The gravamen

the estate of

this suit

Community

was Fallon's

his deceased

in Massachusetts

Health

Plan,

refusal to

Inc.

provide

for a treatment regime proposed by Charlotte Turner

doctor to

the case

district

court

address her

was removed

granted

metastasized breast

to federal district

summary

judgment for

cancer.

court, the

Fallon,

and

Ronald Turner appealed.

The

pertinent facts are

Charlotte

Turner

was

disease was

at first

radiation.

In May

largely undisputed.

diagnosed with

treated by

breast

In 1991,

cancer.

surgery, chemotherapy

1993, tests showed

that the

The

and

cancer had

metastasized, was beyond

and

control by conventional

threatened Charlotte Turner

months.

Ronald Turner was

Charlotte

Fallon

Turner was

provided

with death within

employed by General

covered by

for

family

therapies,

the

12 to 18

Motors, and

health coverage

members

of

General

that

Motors

employees.

Fallon

is

health

provides

or reimburses

"Member

Handbook," which

member's]

various

maintenance

health care

is

medical

costs

for its

presented

contract with [Fallon],"

that

-2-2-

organization

as

members.

"part

describes in

Fallon

will

of

that

Its

[the

detail the

cover

for

beneficiaries.

Among the express exclusions set forth in the

__________

handbook was "bone

tumors

. .

. ."

oncologist at

Turner's

Dr. Ronald

of solid

Hochman, Charlotte

Fallon, nevertheless concluded

Turner's

that Charlotte

only hope was an autologous bone marrow transplant,

procedure

extracted,

marrow transplant for treatment

by which

stored and

the

patient's

own

then reintroduced

bone

marrow

after the

is

patient

receives high dosage chemotherapy.

Marrow is the source

of

vital white blood cells needed to fight infection and without

the transplant procedure, the high dosage

chemotherapy would

impair the bone marrow's ability to continue to produce white

blood cells.

In May

that she

1993, Fallon approved Charlotte Turner's request

be evaluated by

Dana Farber

Cancer Institute

for

possible participation in its bone marrow transplant program.

Fallon continued to assert that a bone

not a covered procedure for

solid tumor cancer but said that

if the treatment was recommended by

for

coverage

would

be

eligible for

the Dana

Dana Farber, the request

reviewed

Ultimately, Dana Farber concluded

not

marrow transplant was

Farber

further

by

Fallon.

that Charlotte Turner

protocol because

was

cancer

cells

had already been

detected in Charlotte

Turner's bone

marrow.

Charlotte

examination

for

Turner

then

asked

eligibility

-3-3-

to

Fallon

enter

to

cover

program

her

being

conducted by

program,

the Duke

Duke

reimplantation,

not

opinion."

only

removed

attempt to "purge" the

Fallon declined to

Charlotte

doctors at the

bone

In

this

marrow

for

in aid of high dosage chemotherapy, but also

employed procedures to

cancer cells.

University Medical Center.

marrow of its

cover the cost of a "third

Turner then

had

herself examined

Duke program who concluded that

eligible to

participate, subject

to further

cost of her

participation in

the program

1993, Charlotte

Turner and

by

she might be

testing.

The

was estimated

at

$100,000.

In July

Fallon to

pay for

August 1993,

her inclusion in

Fallon's Transplant

Charlotte Turner's

Dr. Hochman

the Duke

program.

Committee met to

request and the broader

asked

In

consider

question whether

coverage should be extended, on a case-by-case basis, to bone

marrow

transplants to treat solid tumor cancers either under

the Dana

Farber protocol or

the Duke program or

both.

Dr.

Hochman supported Charlotte Turner's application for coverage

to the Duke program.

The

Transplant

Committee

handbook

exclusion, it would

for

Dana

the

Farber

decided

that,

in the future

protocol

if

it

despite

extend coverage

concluded

particular case that

the treatment was critically

and showed

likelihood of

however,

a strong

that

the

Duke

program

-4-4-

success.

had

its

as yet

It

in

the

necessary

concluded,

produced

no

adequate

data

suggesting

likelihood

of

success,

therefore declined to

extend coverage for the

At Charlotte Turner's

request, Fallon's Grievance

held a

the

hearing in September

Transplant Committee,

Grievance Committee

Duke program.

1993 to review the

but in

upheld the

early

denial of

and

Duke program.

Committee

decision of

October 1993,

the

coverage for

the

Immediately after the Grievance Committee's decision

October 1993,

Charlotte Turner

underwent conventional

low-

dosage chemotherapy without bone marrow transplantation.

died on August 17, 1994.

Ronald

the Massachusetts superior

with breach of

claims.

in

She

Turner then brought suit in

court against Fallon

contract, wrongful death and

charging it

other state-law

Fallon removed the case to federal district court on

the ground that state-law claims were preempted under ERISA--

the

Employee

U.S.C.

Retirement

1001 et seq.
______

Income Security

See
___

Act

of

1974, 29

Metropolitan Life Ins. Co.

___________________________

v.

Taylor, 481 U.S. 58, 66-67 (1987).

______

Ronald Turner

delete

the state

responded by

claims

and to

amending

his complaint

substitute

a claim

to

under

ERISA.

The

amended single-count

Fallon's

denial of

coverage for

complaint

the

charged

Duke program

that

"denied

Charlotte of the rights and benefits due under the policy and

was arbitrary, illegal, capricious, unreasonable and not made

in good faith

and was a breach of

-5-5-

[Fallon's] fiduciary duty

which

it owed to

Charlotte."

The

complaint sought damages

and a trial by jury.

In

Ronald

March

1996,

Fallon

Turner opposed

the

moved

motion

for

and

discovery, which Fallon in turn opposed.

then ruled

that a civil

plan beneficiary

only

recover benefits due

summary

asked

The

words

for

further

district court

ERISA action could be

(in the

judgment.

of the

brought by a

statute)

to him under the terms of

"to

his plan, to

enforce his rights under the terms of the plan, or to clarify

his rights to

29 U.S.C.

future benefits under the terms

1132(a)(1)(B).

damage action was

Concluding that

not authorized by

that the case had to

of the plan."

Ronald Turner's

ERISA, the court

ruled

be dismissed and that further discovery

would be futile.

Ronald

sought

Turner

to amend

then

sought

the complaint

withdrawn state-law claims.

reconsideration

to

reassert the

and

also

previously

He argued that if ERISA provided

no federal remedy, it ought not be read to preempt his state-

law

claims.

the

state-law claims,

inferred

Alternatively, he urged that if ERISA preempted

or created

then

by

the

a federal

court

remedy

to permit

ought to

be

damages

for

wrongful withholding of treatment under the employee benefits

plan.

The district court wrote a thoughtful

these requests.

-6-6-

opinion denying

On this appeal, we begin with Ronald Turner's claim that

ERISA should be read

charged in

has

been

to confer a claim for damages where, as

the amended complaint, a beneficiary

denied "the

rights

and

benefits due

of the plan

under

the

policy" or has suffered "a breach of . . . fiduciary duty" in

the withholding of

those benefits.

ERISA is a comprehensive

federal statute that governs not only pension

plans but also

nonpension benefit plans, including the General Motors health

benefits plan at issue in this case.

ERISA

provisions.

sets

forth

29

U.S.C.

half

dozen

1132(a).

civil

Under

enforcement

the first

such

provision, a beneficiary may bring a federal civil action "to

recover

benefits due to him under the

terms of his plan, to

enforce his rights under the terms of the plan, or to clarify

his rights to

Id.
___

future benefits under the terms

1132(a)(1)(B).

secure benefits

The relief

under the

breach of the plan.

of the plan."

expressly provided

plan rather

than

is to

damages for

Here, treatment coverage is no longer of

any significance.

The other pertinent remedial provision authorizes

civil

action

by

equitable

beneficiary

relief" to

address

plan.

U.S.C.

enforce the

29

Court recently held in

(1996),

"to

that

this

obtain

other

violations

of

1132(a)(3)(B).

appropriate

ERISA

or

to

The Supreme

Varity Corp. v. Howe, 116 S. Ct. 1065

____________
____

provision

-7-7-

may

permit

equitable relief

against

a plan administrator

duty imposed

1075-79.

on such

But

for breaches of

administrators by ERISA.

this

provision

is

expressly

the fiduciary

See id. at
________

limited

to

providing equitable relief, and equitable relief is not being

sought in this case.

Ronald

Turner points

to

provision in ERISA that might

in this case.

ERISA

does

remedies

no

other

specific

arguably be brought into

In fact, the Supreme Court

not

create

compensatory

where an administrator

the benefits

Life Ins. Co.

______________

due under

473

or

of a plan

that plan.

v. Russell,
_______

remedial

See
___

U.S. 134

play

has stressed that

punitive

damage

fails to provide

Massachusetts Mut.
__________________

(1985); see also

_________

Drinkwater v. Metropolitan Life Ins. Co., 846

__________
___________________________

F.2d 821, 825

(1st Cir.), cert. denied, 488 U.S. 909 (1988).

____________

This is not a

minor

technicality:

coverage but

may

damage awards

also add

may increase

significantly

to the

effective

costs

of

coverage.

The lack of

not necessarily

regularly

an express damage

end

inferred

the story.

or

remedy under ERISA

The federal

created remedies

in

does

courts

the

have

shadow of

federal statutes, although the practice has waned somewhat in

recent

years.

See, e.g.,
__________

Transport Workers, 451

_________________

Northwest Airlines, Inc.

__________________________

U.S. 77, 94 (1981).

v.

But the Supreme

Court has adamantly ruled that ERISA's express remedies are a

signal to courts not to

create additional remedies of

their

-8-8-

own.

Russell, 473 U.S. at 145-48.

_______

20 F.3d

25, 31-33 (1st

See also Reich v. Rowe,

________ _____
____

Cir. 1994); Drinkwater, 846

__________

F.2d at

824.

In

the alternative, Ronald Turner argues that ERISA, if

it provides no

by

damage remedy of its own

implication, should

existing

state

at least

remedies.

not be

Absent

benefits plan like Fallon's

either expressly or

taken

to preclude

preemption,

health

could certainly be treated as

contract enforceable under state law and subject to the usual

contractual

remedies,

Depending on the

including

compensatory

jurisdiction, state law might

damages.

provide even

more substantial relief, including punitive damages.

ERISA

provision.

that

and

contains a

vague but

With exceptions

relate to

worded preemption

not relevant here,

the pertinent subchapter

all "State

broadly

laws insofar

any employee benefit

of ERISA shall

as they

may now

it provides

supersede any

or hereafter

plan" covered by ERISA.

29

U.S.C.

1144(a).

otherwise

to preclude

However

this

general

language

might

have been read, the Supreme Court has construed it

state claims

to enforce

rights under

an ERISA

plan or obtain damages for the wrongful withholding of

rights, Pilot Life Ins. Co.

____________________

v. Dedeaux, 481 U.S.

_______

those

41, 52-57

(1987), and this construction has been repeatedly followed.1

____________________

1See, e.g.,
_________

Ingersoll-Rand Co.
__________________

v. McClendon, 498
_________

U.S.

133, 144 (1990); Carlo v. Reed Rolled Thread Die Co., 49 F.3d
_____
__________________________
790, 794 (1st Cir. 1995); Rosario-Cordero v. Crowley Towing &
_______________
________________

-9-9-

The

Supreme Court has

preemption

by holding

that

sufficiently "related" to

De Buono v.
________

Ct.

recently set some

certain

state

new limits on

laws

were

ERISA to deserve preemption.

not

See
___

NYSA-ILA Medical & Clinical Servs. Fund, 117 S.

________________________________________

1747, 1752-53 (1997); California Div. of Labor Standards

__________________________________

Enforcement v. Dillingham Constr., N.A., 117 S. Ct. 832, 842

___________
_________________________

(1997).

attempt to

But

neither

of these

provide state remedies

cases

involved

a state's

for what is in

essence a

plan

administrator's

benefits.

refusal

to

pay

allegedly

promised

It would be difficult to think of a state law that

"relates" more closely

that affords

to an employee benefit

remedies for

the breach

plan than one

of obligations

under

that plan.

Ronald

Turner more or less admits that existing Supreme

Court precedent

is

against

federal cause of action and

But he

says that it

him, both

as

to

an

the preemption of state

is grossly unjust

to deny

implicit

claims.

any remedy,

either state or federal, to compensate in damages the victim,

family

promised

or

estate of

one

who

health-care benefits.

gap provides

a cruel

has

been wrongfully

denied

Further, he argues that this

incentive for

plan administrators

to

withhold treatment or delay it as long as possible, since the

____________________

Transp. Co., 46
____________

F.3d

120,

Trustees of Boston Univ.,

_________________________

126 (1st

Cir.

946 F.2d 960,

1995); Nash
____

964 n.8

v.

(1st Cir.

1991); Wickman v. Northwestern Nat'l Ins. Co., 908 F.2d 1077,

_______
___________________________
1082 (1st Cir.), cert. denied, 498 U.S. 1013 (1990).
____________

-10-10-

claim

for benefits may be mooted by the beneficiary's death.

There are in reality two quite different problems of law

and policy entangled

Turner

seeks

wrongfully

to

in this argument.

present

denied promised

is

the

The

case

benefits.

of

There

one that Ronald

beneficiary

is reason

doubt that that is the true problem in this case (a

____

to

point to

which we will return), but such cases are easy to imagine and

certain

and

to occur.

potent remedy

mitigate loss,

Compensatory damages are

that might

indeed

although the cost

a conventional

deter misconduct

of the plan would

and

also be

increased.

On the other hand, some might think it perverse to dwell

on damage remedies, which apply where the patient has died or

already suffered injury,

improve access

available

and might urge instead

to equitable
_________

under

ERISA,

benefits

while

the

Although

Ronald Turner

relief.

can address

patient is

This remedy,

still

says that

that courts

such

wrongful

alive

already

denial of

and unharmed.

judicial relief

is

readily frustrated by exhaustion of remedies rules, a failure

to exhaust is easily forgiven

is better than an

Portela-Gonzalez v.
________________

(1st

for good reason, and no reason

imminent threat to life or health.

E.g.,
____

Secretary of the Navy, 109 F.3d

______________________

74, 77

Cir. 1997); see also

________

DePina v. General Dynamics Corp.,

______
______________________

674 F. Supp. 46, 49 (D. Mass. 1987).

-11-11-

In all events,

debate whether

it is certainly a matter

a damage

remedy should

judicial interpolation or by Congress.

for reasonable

be added,

But only the

either by

Supreme

Court could alter the existing case law that precludes such a

remedy.

impact on

And

whether or not Congress ever

health care

in particular

thought about the

when it wrote

ERISA's

remedies and preemption provisions, Congress is well equipped

to revisit

the issue and

alter the statutory

language that

now stands as a bar.

Although

the

question

important one, it likely has

of

damages

remedy

is

an