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MCDONALD v. DAMIAN

July 15, 1999

ANNE MARIE MCDONALD AND FRANCIS X. MCDONALD
v.
JUDE DAMIAN, M.D., DAMIAN, OLEX & PACROPIS, J. BRIEN MURPHY, M.D., PLASTIC & RECONSTRUCTIVE SURGERY ASSOCIATES, LTD., SMITHKLINE BEECHAM CLINICAL LABORATORIES, HERBERT E. AUERBACH, D.O., ABINGTON MEMORIAL HOSPITAL, KEYSTONE HEALTH PLAN EAST, INDEPENDENCE BLUE CROSS, AND PENNSYLVANIA BLUE SHIELD.



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

BACKGROUND

On February 14, 1999, the McDonalds' filed suit against defendants Jude Damian, M.D. ("Damian"), Damian, Olex & Pacropis, P.C., J. Brien Murphy, M.D. ("Murphy"), Plastic & Reconstructive Surgery Associates, Ltd., SmithKline Beecham Clinical Laboratories, Herbert E. Auerbach, D.O. ("Auerbach"), Abington Memorial Hospital, Keystone Health Plan East ("Keystone"), Independence Blue Cross, and Pennsylvania Blue Shield. Anne Marie is a subscriber to an employer sponsored employee benefit plan that is serviced by Keystone. Anne Marie's primary care physician was Damian who is a member of Damian, Olex & Pacropis, P.C.

In January 1997, Anne Marie sought treatment from Damian for a back lesion. Damian referred Anne Marie to Murphy, a specialist in plastic and reconstructive surgery, to have the lesion removed. The slides of the lesion were routed to SmithKline Beecham Clinical Laboratories and Abington Memorial Hospital for pathological review. A biopsy revealed to Auerbach that the lesion was benign. No further follow up or treatment was recommended.

In May 1998, Anne Marie noticed a lump under her arm that was later diagnosed as malignant melanoma. Subsequently, an independent pathological review of the January 1997 lesion slides was performed at the University of Pennsylvania and revealed that the lesion was malignant. Anne Marie is now receiving invasive and intensive treatment.

DISCUSSION

Upon removing the case, the defendants*fn1 assert that the McDonalds' allegations arise under federal law because they in part seek damages for quantity of benefits due under Anne Marie's employee benefit plan. The McDonalds now move to remand asserting that the complaint does not allege federal claims because it seeks damages for lack of quality in the medical care Anne Marie received, not lack of benefits due under the plan.

I. Motion to Remand Standard

For the purposes of determining removal jurisdiction, a district court's assessment of whether the complaint raises a federal question is generally governed by the well-pleaded complaint rule, which requires that the court consider only allegations in the complaint, not matters raised in defense by the defendant. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 2846-2847 (1983), see also Metropolitan Life Ins. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546 (1987).

In Metropolitan Life, the Supreme Court recognized one corollary to the well-pleaded complaint rule, which provides that "Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life, 481 U.S. at 63-64, 107 S.Ct. at 1546-1547, accord Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. at 2854. The Supreme Court has determined that § 502(a)(1)(B) of ERISA's civil enforcement provisions falls within the complete preemption exception to the well-pleaded complaint rule.*fn2 Metropolitan Life, 481 U.S. at 64-65, 107 S.Ct. at 1546-1547. Accordingly, the question at issue is whether removal to federal court is proper because the McDonalds' claims fall within the complete preemption ambit of § 502(a)(1)(B) ERISA.

II. ERISA

In Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166 (3d Cir. 1997), the U.S. Court of Appeals for the Third Circuit distinguished the complete preemption doctrine (section 502(a)(1)(B) of ERISA) from ordinary preemption (section 514(a) of ERISA). Joyce, 126 F.3d at 170. The former doctrine is used for jurisdictional purposes where the latter merely constitutes a defense to a state law claim.*fn3 Id. at 170.

Section 502(a)(1)(B) provides that a participant or beneficiary may bring a civil action to recover benefits due him or her under the plan, to enforce his or her rights under the plan, or to clarify his or her rights to future benefits under the plan. 29 U.S.C. § 1132(a)(1)(B). In Dukes v. U.S. Healthcare, 57 F.3d 350 (3d Cir. 1995), the U.S. Court of Appeals for the Third Circuit determined that § 502(a)(1)(B) preempts only state law claims that allege a lack of quantity in services provided that membership in an ERISA plan entitles the participant to ...


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