UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

RACHEL CONDRY, et al.,

Plaintiffs,

v.

UNITEDHEALTH GROUP, INC., et al.,

Defendants.

Case No. 17-cv-00183-VC 

ORDER RE MOTIONS FOR

SUMMARY JUDGMENT AND 

MOTION TO STRIKE

Re: Dkt. Nos. 100, 117, 120

Both the plaintiffs and the defendants have moved for summary judgment in this case. 

Additionally, the defendants have moved to strike certain expert testimony proffered by the 

plaintiffs. Summary judgment on Count One is granted to the named plaintiffs (less Rachel 

Carroll) on their claims against their respective claims administrators, UnitedHealthcare 

Insurance Company and United HealthCare Services, Inc. Summary judgment on Count Two is 

granted to Laura Bishop against UnitedHealthcare Insurance Company, and is granted to Jance 

Hoy against United Healthcare Services. Summary judgment is granted to the defendants on 

Count Two as to Felicity Barber and Rachel Condry. Summary judgment is denied to both sides

on Christine Endicott's claim under Count Two, and Rachel Carroll's claim under Count Five. 

Summary judgment is also denied for the Count Three claims. Summary judgment is granted to 

the defendants on Counts Four and Six. The motion to strike is denied as to the opinions of Ellen 

Chetwynd, and granted as to the opinions of Ellen Martin.

Coverage of Lactation Services Claim (Counts Two and Five)

Both parties move for summary judgment on the named plaintiffs' claims that the 

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defendants did not provide coverage for lactation support and counseling, as required by the 

Affordable Care Act and ERISA. See 42 U.S.C. § 300gg-13(a)(4); 29 U.S.C. § 1185d(a); 29 

C.F.R. § 2590.715-2713(a)(1)(iv). The plaintiffs argue that because the defendants lacked 

adequate in-network providers of lactation support and counseling, the defendants were 

required– yet failed – to reimburse the plaintiffs' out-of-network costs.

Four general points apply to all the plaintiffs with respect to their claims about the 

defendants' failure to provide lactation services:

1. As explained in response to the defendants' motion to dismiss, the Affordable Care 

Act's requirement that health insurers provide coverage for comprehensive lactation support and 

counseling is a requirement that women have meaningful access to those services. Illusory or de 

minimis access is not sufficient, and a woman does not have access to lactation support if she 

cannot practically find those services. See Briscoe v. Health Care Service Corp., 281 F. Supp. 

3d 725, 732 (N.D. Ill. 2017); but see York v. Wellmark, Inc., No. 4:16-cv-00627-RGE-CFB, 2017 

U.S. Dist. LEXIS 199888, at *15-16, *26-29 (S.D. Iowa Sep. 6, 2017).

2. The defendants attempt to draw a line between: (i) "preventative" lactation services;

and (ii) "diagnostic" lactation services. They argue that the latter need not be covered, because

the pertinent provisions of the Affordable Care Act only require coverage of "preventative" care. 

And they argue that most lactation services are "diagnostic" in the sense that they are given in 

response to a known problem. This argument might have some intuitive appeal using the 

colloquial definition of "preventative," but it is contrary to the statutory definition of 

"preventative," which is all that matters here. The Affordable Care Act requires that health plans 

provide coverage, without out-of-pocket costs, for "preventative care and screenings . . . 

provided for in [the Health Resources and Services Administration's] comprehensive guidelines."

42 U.S.C. § 300gg-13(a)(4). Those guidelines, in turn, define "comprehensive lactation support 

and counseling" as preventative care. Pls. Ex. 10, 2011 HRSA Recommendation. The 

guidelines do not carve out diagnostic services from the definition. Therefore, the statute 

requires coverage of lactation support regardless of whether a woman is receiving it in response 

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to symptoms. All such coverage is "preventative" as the statute uses that term.

The defendants' proposed parsing of the statute is also contrary to the purpose of its 

coverage requirement. Comprehensive lactation support and counseling was included as a form 

of preventative care based on the view that breastfeeding reduces the prevalence of a number of 

diseases in both children who breastfeed and mothers who breastfeed. Pls. Ex. 8, IOM, Clinical 

Preventative Services for Women: Closing the Gaps 110-11 (2011). It was further based on the 

view that mothers often stop breastfeeding when they experience difficulties. Id. at 111. 

UnitedHealthcare's limited view of the statute's coverage provisions would mean that mothers 

would stop receiving free lactation support and counseling exactly at the moment that they 

started experiencing the kinds of difficulties that lead mothers to stop breastfeeding.

3. The defendants argue that every member of their health plans had meaningful access 

to in-network lactation services because the defendants have contracted with a large number of 

pediatricians and OBGYNs in the plaintiffs' vicinity and these providers have the expertise to 

provide lactation services. Even assuming that some pediatricians, OBGYNs and their practices

provide comprehensive lactation support and counseling, this fact – absent evidence that 

pediatricians and OBGYNs in a particular plaintiff's vicinity were in fact providing those 

services to their patients and that the defendants made the plaintiff aware of that – does not 

create a genuine issue of fact as to whether a particular plaintiff had meaningful access to 

lactation support. 

4. The defendants submitted printouts of a number of hospital websites as part of their 

summary judgment motion. But as discussed at argument, this evidence is not admissible to 

show that those providers were offering comprehensive lactation support and counseling because 

there is no indication that the hearsay statements on those websites "could be presented in 

admissible form at trial." Fraser v. Goodale, 342 F.3d 1032, 1037 (9th Cir. 2003); see also

Redmond v. Teledyne Landis Mach., No. 5:15-CV-00646-MAD-ATB, 2017 WL 2465173, at *9 

(N.D.N.Y. June 7, 2017).

Against this general backdrop, the claims of the six named plaintiffs relating to the failure 

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to provide lactation services are resolved as follows:

Jance Hoy

Judgment on Jance Hoy's claim against United Healthcare Services, Inc. is granted to 

Hoy. Hoy sought help with lactation after her pediatrician told her that she needed to see an 

expert, and that the providers at his practice could not assist her. Pls. Ex. 47 at 85. Hoy could 

not find an in-network provider of lactation support and counseling on the UnitedHealthcare 

website, and a UnitedHealthcare employee confirmed this by phone but told her that 

UnitedHealthcare would not reimburse her. Pls. Ex. 47 at 124. The defendants offered no 

admissible evidence that in-network providers were available to Hoy. But after Hoy visited an 

out-of-network provider in September 2015, the defendants denied her claims. Defs. Exs. A-8, 

A-13. Because United Healthcare Services has presented no evidence that Hoy had in-network 

providers available to her, it was obligated to cover services provided by out-of-network 

providers without cost. See 29 C.F.R. § 2590.715–2713(a)(3)(ii).

Laura Bishop

Judgment on Laura Bishop's claim against UnitedHealthcare Insurance Company is 

granted to Bishop. Like Hoy, Bishop could not find an in-network provider of lactation support 

and counseling on the UnitedHealthcare website, and a UnitedHealthcare employee told her by 

phone that there were no in-network providers in her area. Defs. Ex. G-17 at 6-7; Defs. Ex. L-1. 

UnitedHealthcare Insurance offered no admissible evidence that there were in-network providers 

available to Bishop at the time she sought care.

Felicity Barber and Rachel Condry

Judgment on these plaintiffs' claims is granted to the defendants. Felicity Barber and 

Rachel Condry did not attempt to look for an in-network provider of lactation support and 

counseling before seeking care. Pls. Ex. 46 at 82; .Defs. Ex. G-15 at 6-7. And there is 

unrebutted evidence that UnitedHealthcare had lactation specialists near these plaintiffs. See 

Defs. Ex. I at ¶ 21; Defs. Ex. O at ¶¶ 7-10; Defs. Ex. O-1 at 15-16; Defs. Ex. O-3 at 23-25. On 

this evidentiary record, the defendants had no obligation to cover out-of-network care.

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Christine Endicott

Based on the limited evidence submitted by the parties, summary judgment is not 

appropriate for either side on this claim. Like Barber and Condry, Christine Endicott did not 

attempt to look for an in-network provider of lactation support and counseling before seeking 

care. See Defs. Ex. G-4 at 146, 148. And there is some evidence that defendants had at least one

in-network lactation specialist in Endicott's vicinity. See Defs. Ex. O at ¶ 5; see also Defs. Ex. 

D-9 at UHC_002422. But there is also some evidence that Endicott could not access lactation 

support and counseling when she sought care: When Endicott called UnitedHealthcare after first 

seeking care, she was told that "there is no coverage for services billed by a lactation specialist." 

Pls. Ex. 54 at UHC_002400, UHC_002402; see also Defs. Ex. M at ¶ 6.

Rachel Carroll1

On the limited evidence submitted by the parties, there is a material factual dispute as to 

whether Rachel Carroll could receive in-network care from Wee Steps at the time she sought 

out-of-network care. See, e.g., Defs. Ex. G-5 at 28, 89; Defs. Ex. G-16 at 6; Pls. Ex. 45 at 43, 64. 

The defendants argue that a nearby pediatrician, the Youth Clinic, had lactation consultants on 

staff. But Carroll could not receive services at this clinic without first becoming a patient of the 

clinic and scheduling an additional visit with the doctors there. Defs. Ex. G-5 at 89-90. Under 

these circumstances, the providers at the Youth Clinic were not lactation support and counseling 

providers that were available to Carroll. See Dkt. No. 137, Def's Not. of Errata at ¶¶ 4-5.

Claims Processing Claim (Count One)

When denying a claim for benefits, the defendants are required under ERISA to "provide 

adequate notice . . . setting forth the specific reasons for such denial." 29 U.S.C. § 1133; see also 

29 C.F.R. § 2560.503-1(g). ERISA also requires the defendants to provide plan beneficiaries 

 

1 Unlike the other plaintiffs, Carroll has not brought her claim under ERISA. Carroll has a health 

plan through Larimer County, Colorado, and plans for government employees are exempt from 

ERISA. See Roche v. Aetna, Inc., 681 F. App'x 117, 120 (3d Cir. 2017).

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with a "reasonable opportunity . . . for a full and fair review" of a denial of benefits. Id. "In 

simple English, what [section 1133] calls for is a meaningful dialogue between ERISA plan 

administrators and their beneficiaries." Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 

1463 (9th Cir. 1997). "If benefits are denied in whole or in part, the reason for the denial must 

be stated in reasonably clear language, with specific reference to the plan provisions that form 

the basis for the denial; if the plan administrators believe that more information is needed to 

make a reasoned decision, they must ask for it." Id. The plan administrators are required to 

"write a denial 'in a manner calculated to be understood by the claimant.'" Salomaa v. Honda 

Long Term Disability Plan, 642 F.3d 666, 680 (9th Cir. 2011).

UnitedHealthcare Insurance Company and United HealthCare Services breached their 

duty to provide adequate notices to Barber, Bishop, Condry, Endicott, and Hoy. The claims 

denials these defendants sent to plaintiffs Barber, Bishop, Condry, and Hoy were written in a 

way that made them virtually impossible to understand. Defs. Exs. A-9 at 2, B-4 at 2, and F-3 at 

2 (all stating: "This is not a reimbursable service. There may be a more appropriate CPT or 

HCPCS code that describes this service and/or the use of the modifier or modifier combination is 

inappropriate."); Defs. Ex. A-13 at 2 ("This service code is not separately reimbursable in this 

setting."); Defs. Ex. E-6 at 3 ("Your plan does not cover this non-medical service or personal 

item"); see also 29 C.F.R. § 2560.503-1(g)(1)(i)-(ii). And the claims denial sent to Endicott 

stated that UnitedHealthcare had asked for more information but did not receive it. Defs. Ex. D7 at 3. But UnitedHealthcare did not provide Endicott with any "description of any additional 

material or information necessary for the claimant to perfect the claim and an explanation of why 

such material or information is necessary." 29 C.F.R. § 2560.503-1(g)(1)(iii).

The defendants also appear to argue that the plaintiffs have improperly brought this claim 

under both sections 1132(a)(1)(B) and 1132(a)(3). But claims under both sections of ERISA 

"may proceed simultaneously so long as there is no double recovery." Moyle v. Liberty Mut. Ret. 

Ben. Plan, 823 F.3d 948, 961 (9th Cir. 2016); see also King v. Blue Cross & Blue Shield of 

Illinois, 871 F.3d 730, 747 (9th Cir. 2017).

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Thus, summary judgment on these claims is granted to Barber, Bishop, Condry, Endicott, 

and Hoy as to each plaintiff's claims administrator (UnitedHealthcare Insurance Company or 

United HealthCare Services, as the case may be). See Defs. Ex. A at ¶¶ 4, 8; Defs. Ex. B at ¶¶ 4-

5; Defs. Ex. D at ¶¶ 4-5; Defs. Ex. E at ¶¶ 4-5; Defs. Ex. F at ¶¶ 4-5. To the extent that equitable 

remedies may be shaped by the extent the defendants breached their statutory obligations, the 

plaintiffs can continue to litigate other claimed violations of section 1133. Cf. Blau v. Del Monte 

Corp., 748 F.2d 1348, 1353 (9th Cir. 1984) ("Ordinarily, a claimant who suffers because of a 

fiduciary's failure to comply with ERISA's procedural requirements is entitled to no substantive 

remedy."); see also Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d 621, 629-30 

(7th Cir. 2005).

Other Issues

Sex Discrimination (Count Four)

Judgment is granted to the defendants on this claim. First, the plaintiffs have offered no 

evidence that suggests the defendants intended to discriminate because of sex; thus, the plaintiffs 

cannot bring a claim on a disparate treatment of discrimination. Second, disparate impact claims 

on the basis of sex are not cognizable under section 1557. See Briscoe v. Health Care Serv. 

Corp., 281 F. Supp. 3d 725, 737-38 (N.D. Ill. 2017); 42 U.S.C. § 18116(a) ("The enforcement 

mechanisms provided for and available under such title VI, title IX, section 504, or such Age 

Discrimination Act shall apply for purposes of violations of this subsection."); see also 

Southeastern Pennsylvania Transp. Auth. v. Gilead Sciences, Inc., 102 F. Supp. 3d 688, 699 n.3 

(E.D. Pa. 2015). 

Unjust Enrichment (Count Six)

Judgment is granted to the defendants on Carroll's claim under Count Six. Although a 

claim for unjust enrichment can exist if the underlying contract is not valid because of fraud or 

illegality, here there is no contention that there is no valid contract between the plaintiffs and the 

defendants. Cf. Peterson v. AWJ Global Sustainable Fund, LP, No. 15-cv-00650-CRB, 2015 

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WL 5921225, at *5 (N.D. Cal. Oct. 11, 2015).

Joint Liability (Count Three)

It is not appropriate to summarily adjudicate at this time whether the defendants should 

be held jointly liable under section 1132(a)(3) for each other's fiduciary breaches. The plaintiffs 

do not contend that each UnitedHealthcare defendant is a cofiduciary of the other defendants. 

But, as was already explained in response to the defendants' motion to dismiss, ERISA allows a 

plaintiff to seek appropriate equitable relief from a nonfiduciary in some circumstances. Those 

circumstances include when that nonfiduciary has knowingly participated in a fiduciary's breach 

or has benefited from a known breach by a fiduciary. See Harris Trust & Savings Bank v. 

Salomon Smith Barney, Inc., 530 U.S. 238, 247-51 (2000). And the defendants have not argued 

that the plaintiffs lack sufficient evidence to go forward on this theory of joint liability.

Exhaustion of Carroll's Claims

UnitedHealthcare argues that Carroll cannot state a claim because she did not exhaust 

mandatory internal remedies before bringing suit. It is not disputed that Carroll did not appeal 

the denials of benefits she received from UnitedHealthcare. Nonetheless, summary judgment is 

not appropriate for two reasons. First, there is some evidence that UnitedHealthcare did not 

provide Carroll with "appropriate information" for appealing her claim. See Defs. Ex. C-1 at 

UHC_002348; Pls. Ex. 45 at 160 (Carroll testifying that UnitedHealthcare representative 

directed her to website to find appeals form, and that she could not find form on website). And 

although the denial of benefits stated that Carroll could appeal "by sending a written request and 

pertinent information" to the defendant, the explanations of why her claims were denied did not 

explain in a reasonably clear manner why her claims were denied. See Defs. Ex. C-04; Defs. Ex. 

C-05; see also 45 C.F.R. §§ 147.136(b)(3)(ii)(E)-(F) (noting that exhaustion is excused where a 

health plan fails to provide reasons for an adverse benefit determination). Second, exhaustion is 

not necessary where futile. Diaz v. United Agr. Employee Welfare Ben. Plan & Tr., 50 F.3d 

1478, 1485 (9th Cir. 1995); see also New Design Constr. Co. v. Harmon Contractors, Inc., 215 

P.3d 1172, 1180 (Colo. App. 2008). Here, there is significant evidence that the defendants had a 

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blanket policy of denying claims from out-of-network lactation consultants, and that any appeal 

of a decision to deny benefits would have certainly resulted in another denial. See, e.g., Pls. Ex. 

22 at UHC_056775, UHC_056778.

Motion to Strike

The motion to strike is granted in part and denied in part. Ellen Chetwynd's opinions 

plainly rebut opinions offered by the defendants' experts. See, e.g., Van Alfen v. Toyota Motor 

Sales, U.S.A., Inc., No. 10-ML-02151-JVSF-MOX, 2012 WL 12930456, at *2 (C.D. Cal. Nov. 9, 

2012). So do Ellen Martin's opinions. But Ellen Martin's opinion focuses almost entirely on 

interpretation of the Affordable Care Act's legal requirements. This is impermissible legal 

opinion. Thus, her opinion is stricken. See Hooper v. Lockheed Martin Corp., 688 F.3d 1037, 

1052 (9th Cir. 2012).

IT IS SO ORDERED.

Dated: June 27, 2018

______________________________________

VINCE CHHABRIA

United States District Judge

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