The opinion of the court was delivered by: Juan R. Sanchez, J.
Plaintiff Kristopher Churchill asks this Court to certify a class of
individuals who received insurance from, or whose benefit plans were
managed by, Cigna Corporation or its subsidiaries (Cigna),*fn1
and who were harmed by Cigna's policy of denying benefits for
certain types of treatment for Autism Spectrum Disorder (ASD).
Churchill proposes two distinct subclasses. Subclass A would consist
of individuals whose claims for Applied Behavior Analysis (ABA) or
Early Intensive Behavioral Treatment (EIBT)*fn2 were
denied by Cigna on the grounds that such treatments are investigative
or experimental. Subclass B would consist of individuals who did not
make a claim to Cigna for ABA or EIBT to treat ASD "in light of"
Cigna's policy not to cover these types of treatments. For the
following reasons, this Court will certify a portion of Churchill's
proposed Subclass A, but will not certify proposed Subclass B.*fn3
Churchill received health insurance for himself and his family under a certification of group health coverage issued by Cigna prior to 2010.*fn5 Churchill's son suffers from ASD and received ABA at the Mariposa School to treat his disorder. When Churchill made an insurance claim to Cigna to cover his son's ABA, Cigna denied the claim pursuant to its Medical Coverage Policy, which provides that ABA is "experimental, investigational or unproven" for the treatment of ASD, and as such is excluded from the Plan's coverage. See Pl.'s Mot. for Class Certification Ex. 1 (Cigna Medical Coverage Policy). The Cigna Medical Coverage Policy applies to all standard benefit plans, although it may be superceded by the policies set forth in individual plans. Id. at 2.
ABA, which was developed approximately 40 years ago, is "a discipline concerned with the application of behavioral science in real-world settings such as clinics or schools with the aim of addressing socially important issues such as behavior problems and learning." Pl.'s Mot. for Class Certification Ex. 3 at 1 (the Kennedy Krieger Institute's overview of ABA and summary of scientific support). While ABA therapy encompasses a broad range of techniques, certain features are common to all ABA-based treatment, including "the objective measurement of behavior, precise control of the environment, and use of procedures based on scientifically established principles of behavior." Id. Many researchers support the use of ABA to treat ASD, including the American Academy of Pediatrics, which has declared ABA "the most efficacious psychosocial treatment for autism." Id. at 2.
On January 14, 2011, Churchill filed his First Amended Complaint, alleging Cigna improperly denied insurance benefits to cover his son's ABA treatment in violation of § 502(a)(1)(B) of the Employee Retirement Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B) and (a)(3). Churchill sought benefits due under the Plan pursuant to § 1132(a)(1)(B) and equitable relief pursuant to § 1132(a)(3). Five days later, Churchill filed a motion to certify this case as a class action, proposing the following two subclasses:
Subclass A: All individuals who, on or after November 24, 2004, were enrolled in a plan administered by a CIGNA Defendant, or insured under health insurance coverage offered by a CIGNA Defendant in connection with a plan, and who made a claim or make a claim for Applied Behavior Analysis and/or Early Intensive Behavioral Treatment for Autism Spectrum Disorder which was denied on the grounds that such treatment is deemed by a CIGNA Defendant to be investigative or experimental.
Subclass B: All individuals who, on or after November 24, 2004, were enrolled in a plan administered by a CIGNA Defendant, or insured under health insurance coverage offered by a CIGNA Defendant in connection with a plan, and who did not make a claim for Applied Behavior Analysis and/or Early Intensive Behavioral Treatment for Autism Spectrum Disorder in light of Defendants' policy that such treatment is deemed to be investigative or experimental.
Excluded from the subclasses are Defendants, any parent, subsidiary, affiliate, or controlled person of Defendants, as well as officers, directors, agents, servants or employees of Defendants, and the immediate family member of any such person. Also excluded is any judge who may preside over this case or any person [who] has already settled a claim for either of these therapies with a Defendant.
Pl.'s Proposed Class Certification Order 1-2. On June 24, 2011, this Court held a hearing to determine whether class certification was appropriate. At that time, plaintiffs' counsel conceded that Churchill's benefits plan was no longer administered by Cigna.
On July 14, 2011, Churchill sought to amend his Complaint to add two additional class representatives, Luis Rolando and Parthiv Rawal, who are fathers of children with ASD and were denied ABA benefits by Cigna. Both Rolando and Rawal are current members of plans administered by Cigna.*fn6 DISCUSSION
Class certification is appropriate when it "saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701(1979)). A party seeking to certify a class action must first meet the four requirements of Fed. R. Civ. P. 23(a): (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact common to the class; (3) the claims or defenses of the representative party must be typical of those of the class; and (4) the representative party must fairly and adequately protect the interests of the class. These requirements are generally referred to as numerosity, commonality, typicality, and adequacy.
A party who satisfies the Rule 23(a) prerequisites must then meet the requirements of one of the subsections of Rule 23(b). Here, Plaintiffs seek certification under Rules 23(b)(2) and (3). Rule 23(b)(2) allows certification when the opposing party "has acted or refused to act on grounds that apply generally to the class." Rule 23(b)(3) allows certification when the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
First, this Court must address whether the Rule 23 elements are satisfied for proposed Subclass A. The first Rule 23(a) requirement, numerosity, is fulfilled when the class is sufficiently large such that "joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met." Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001). In determining whether joinder is impracticable, a court should consider (1) the size of the potential class; (2) the geographic location of proposed class ...