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MARRO v. K-III COMMUNS. CORP.

October 7, 1996

LOUIS MARRO, Plaintiff, against K-III COMMUNICATIONS CORPORATION, Defendant.


The opinion of the court was delivered by: GERSHON

 GERSHON, J.

 I.

 FACTS AND PROCEEDINGS

 Plaintiff suffers from a form of brain cancer. According to his treating physicians, his chances for long term survival are minimal without immediate treatment using high dosage chemotherapy. The chemotherapy proposed by Plaintiff's physicians requires autologous bone marrow transplantation with peripheral stem cell support.

 The issue between Plaintiff and Defendant involves payment for the chemotherapy drugs needed for the recommended treatment. Plaintiff is an insured participant and beneficiary of a benefits plan funded by Defendant, who is Plaintiff's employer. Defendant contracts with the Prudential Life Insurance Company of America (Prudential) for claims administration of its Plan.

 It is undisputed that Defendant's plan is subject to the Employee Retirement Income Security Act (ERISA). See 29 U.S.C. §§ 1001 et seq. Thus, Plaintiff may challenge Defendant's denial of coverage for the recommended treatment under 29 U.S.C. § 1132(a)(1)(B), which provides that a civil action may be brought by such a beneficiary

 
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 future benefits under the terms of the plan[.]

 See 29 U.S.C.A. § 1132(a)(1)(B) (West 1985); see also Kulakowski v. Rochester Hosp. Serv. Corp., 779 F. Supp. 710, 715-16 (W.D.N.Y. 1991).

 Plaintiff moves for preliminary relief requiring that his proposed treatment, high dosage chemotherapy in conjunction with autologous bone marrow transplantation with peripheral stem cell support, be precertified for benefits. In opposition to the motion for a preliminary injunction, Defendant has not disputed that Prudential acts as its agent in making coverage determinations regarding requests for benefits.

 On August 23, 1996, Prudential denied Plaintiff's application for precertification for high dosage chemotherapy. As grounds for its denial, Prudential stated, "We are unable to precertify this procedure which we consider not medically necessary and investigational, since such treatment is not yet recognized as safe and effective therapy for the diagnosis." Defendant's plan specifies that it does not cover charges which are "experimental" or "investigational"; and it defines those terms as follows:

 
"Experimental" and "Investigational" mean that the medical use of a service or supply is still under study and the service or supply is not yet recognized throughout the Doctor's profession in the United States as safe and effective for diagnosis or treatment.

 Plaintiff promptly appealed the denial of coverage. On September 9, 1996, Prudential denied his appeal, in part because it concluded that he had a low grade neoplasm. Plaintiff's treating physician then informed Prudential that, although Plaintiff had initially been diagnosed with a low grade neoplasm, he had later developed a high grade glioma. Plaintiff's attorney also submitted to Prudential a report from Plaintiff's physician referring to studies establishing the effectiveness of the proposed treatment, as well as copies of various medical studies on the use of autologous bone marrow transplants in the treatment of cancer. In addition, Plaintiff's attorney listed for Prudential the names and telephone numbers of eleven physicians from prominent medical establishments across the country who would attest to the acceptance of the recommended treatment.

 After Prudential failed to respond, Plaintiff, on October 2, 1996, submitted a proposed order to show cause seeking a preliminary injunction. After reviewing the proposed order to show cause, I directed Plaintiff's counsel to notify Defendant that a conference would be held regarding scheduling. Counsel appeared on October 3, 1996. Since, according to Plaintiff's papers, a decision was required by Monday, October 7, 1996, I advised counsel that I could conduct an evidentiary hearing over the weekend. Defendant's counsel reported that Defendant's doctors were out of state and their availability unknown. I suggested, given the exigencies of the situation, the possibility of proceeding by way of affidavits and asked counsel to confer regarding scheduling. Later that day, counsel returned to court with the following agreed upon schedule, which I approved: Defendant would submit its affidavits and brief by 5 p.m. on Friday, October 4, 1996, and Plaintiff would submit any reply papers by 9 a.m. on Monday, October 7, 1996. I scheduled oral argument for 11 a.m. on Monday the 7th.

 Defendant timely filed its papers. However, the papers consisted of a brief, an affidavit by Gary Weidy, Defendant's Vice President of Due Diligence and Benefits, relating facts said to establish an absence of conflict of interest in the decision-making process, and an affidavit from Dr. Nancy Czarnecki, a Senior Medical Director of Prudential who is head of the department which performs the precertification process for Prudential. Although Dr. Czarnecki attached various supporting papers including letters to Prudential from two outside doctors whose opinions Prudential relied upon in denying precertification, Defendant has not submitted an affidavit from either of these doctors, nor has Defendant indicated that it attempted to obtain affidavits from these doctors.

 II.

 ANALYSIS

 A. Preliminary Injunction Standard

 Because Plaintiff requests a preliminary injunction that would give him all the relief he seeks, and that relief is unlikely to be undone even if Defendant prevails at a trial on the merits, Plaintiff must meet a particularly high standard to prevail on his application for a preliminary injunction. See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). First, he must make a strong showing that he will suffer irreparable harm if he is not granted the preliminary injunction. See Pazer v. New York State Bd. of Law Examiners, 849 F. Supp. 284, 286 (S.D.N.Y. 1994) (citing Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. ...


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