IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARY SOENKSEN, )

)

Plaintiff, )

)

v. ) Case No. 12 C 2437

)

TAKEDA PHARMACEUTICALS NORTH )

AMERICA, INC. WELFARE PLAN, an )

Illinois corporation, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Mary Soenksen ("Soenksen") has sought discovery in her action challenging the 

denial by Takeda Pharmaceuticals North America, Inc. Welfare Plan ("the Plan") and Aetna Life 

Insurance Company ("Aetna") of Soenksen's claim for Plan benefits, and that request has 

triggered a full set (indeed, a good deal more than the usual full set) of memoranda dealing with 

the legal issues involved in that respect. Because the Plan-Aetna position reflects a bizarre 

notion of the meaning of "de novo" -- the standard that both sides agree is applicable to this 

Court's consideration of Soenksen's claim -- the motion is granted.

Ever since Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) ("Bruch") was 

decided, the conventional wisdom in ERISA benefits cases has been that appropriate plan 

language can limit the judicial consideration of administrative decisions on benefits to the 

question whether those decisions are arbitrary and capricious. But in Diaz v. Prudential Ins. Co. 

of Am., 424 F.3d 635, 637 (7th Cir. 2005) our Court of Appeals explained that in some situations 

Bruch teaches the application of de novo review instead, and the court therefore remanded the 
case for reconsideration in those terms. And when the District Court also got it wrong the 

second time around, Diaz II, 499 F.3d 640, 643 (7th Cir. 2007) reinforced Diaz I's earlier 

teaching.

Because the confusion that the two Diaz opinions sought to clear up appears to be 

contagious (or at least has reappeared in the Plan-Aetna submissions here), it is worth repeating 

the explanation in Diaz II. Here it is (499 F.3d at 643):

The district court's task in engaging in de novo consideration of the decision of 

the plan administrator is not the same as its job in reviewing administrative 

determinations on the basis of the record the agency compiled under the 

substantial evidence rule, as it might do in a Social Security benefits case. See 

Ramsey v. Hercules Inc., 77 F.3d 199, 205 (7th Cir. 1996). Some of the confusion 

in this area may be attributable to the common phrase " de novo review" used in 

connection with ERISA cases. In fact, in these cases the district courts are not 

reviewing anything; they are making an independent decision about the 

employee's entitlement to benefits. In the administrative arena, the court normally 

will be required to defer to the agency's findings of fact; when de novo

consideration is appropriate in an ERISA case, in contrast, the court can and must 

come to an independent decision on both the legal and factual issues that form the 

basis of the claim. What happened before the Plan administrator or ERISA 

fiduciary is irrelevant. See Patton v. MFS/Sun Life Financial Distributors, Inc.,

480 F.3d 478, 485-86 (7th Cir. 2007). That means that the question before the 

district court was not whether Prudential gave Diaz a full and fair hearing or 

undertook a selective review of the evidence; rather, it was the ultimate question 

whether Diaz was entitled to the benefits he sought under the plan. See Wilczynski 

v. Kemper Nat. Ins. Companies, 178 F.3d 933, 934-35 (7th Cir. 1999). 

Given that explanation, the proposed conclusion reached in the last sentence of the 

following excerpt from page 2 of the Plan-Aetna submission filed June 13, 20141 seems almost 

oxymoronic:

1 As an indication of the memorandum overload with which this Court has been favored, 

here is the caption of that most recent submission: Defendants' Response To Plaintiff's Second 

Supplemental Memorandum in Response To Defendants' Objection To Plaintiff's Request for 

Discovery [D/E 52].

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In Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 643(7th Cir. 2007), the 

Seventh Circuit stated that when de novo review is appropriate what happened 

before the plan administrator is irrelevant. The courts have made it clear that in a 

de novo review, the evidence concerning the administrative process is of no 

weight. See Kuznowicz v. Wrigley Sales Co., LLC, 2013 WL 4052381, at *13 

(N.D. Ill. August 12, 2013) (the court stated what happened before the plan 

administrator is irrelevant in a de novo review). Thus consistent with the case law 

of this circuit, it is Defendants' position that discovery in this case is unnecessary.

In this instance, however, the administrative treatment (or lack of treatment) of the views of 

Soenksen's treating physician Dr. Peter Allegretti particularly calls for fleshing out through 

further discovery,2 and further medical information that bears on whether Soenksen was or was 

not disabled when she applied for benefits also has potential to be useful. As stated at the outset, 

Soenksen's motion is granted, and this action is set for a next status hearing at 9 a.m. on 

August 28, 2014.3

__________________________________________

Milton I. Shadur

Senior United States District Judge

Date: July 8, 2014

2 In that respect, for example, two documents emanating from Dr. Allegretti and 

contained in the administrative record are puzzling in nature and require further elaboration or 

explanation or both.

3 If the parties run into further problems in connection with the scope of discovery, it 

may be appropriate to refer those to a Magistrate Judge to be decided by lot (the originally 

assigned Magistrate Judge, Honorable Martin Ashman, has passed away), for this Court is not in 

a position to engage in continuous monitoring. That however remains to be seem.

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