JANE DOE v. BLUE CROSS BLUE SHIELD HEALTHCARE PLAN OF GEORGIA INC (2026)

ORDER

This matter appears before the Court on Plaintiff's Motion for Leave to Submit Supplemental Evidence Regarding Pending Dispositive Motions (Doc. No. [62-1].¹

A review of the record shows that on July 3, 2024, Plaintiff, Jane Doe, filed this civil action against Defendant Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. (“Blue Cross”) under 29 U.S.C. §§ 1132(a), (e), (f) and (g) of the Employee Retirement Income Security Act of 1974 (hereinafter “ERISA”). Doc. No. [1].

In the Complaint, Plaintiff states that she is a “participant” in an employee welfare benefit plan (“Plan”), as defined by ERISA, 29 U.S.C. § 1002(7) under which she and her dependent minor daughter, M.Z., are entitled to health benefits. Id. ¶¶ 2, 8.² However, Defendant has denied benefits for IVIg infusion of Octagam for M.Z. Id. ¶ 31. Plaintiff's claim for relief is as follows. “Plaintiff requests Blue Cross approve and pay benefits for her daughter M.Z.'s treatment with IVIg infusions of Octagam.” Id. ¶ 11.

Since case filing, the Parties have engaged in extensive motions practice. See, e.g., Doc. Nos. [17]; [32]; [33]; [50].

The most recent (and possibly one of the most significant motions) is Plaintiff's Motion for Leave to Submit Supplemental Evidence Regarding Pending Dispositive Motions (Doc. No. [62]). In this Motion, Plaintiff “moves this Court for leave to submit supplemental evidence consisting of a June 9, 2026 approval letter issued by Defendant Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. (“Blue Cross”) approving Plaintiff's minor daughter M.Z. for coverage of the same IVIg treatment and based on the same diagnoses at issue in this litigation.” Doc. No. [62], 1.

On July 14, 2026, Defendant Blue Cross filed a response in opposition in which it recognized that “courts have counseled that a subsequent approval of [a] previously denied request in the ERISA context may impact the deference shown to an administrator's determination,” but also argued that the Court's review in this ERISA action should be limited to the administrative record. Doc. No. [63], 4 (citing Jett v. Blue Cross and Blue Shield of Ala., 890 F.2d 1137 (11th Cir. 1989)).

The Court notes that while the Jett case does provide a general rule that “the district court should limit its review to consideration of the material available to Blue Cross at the time it made its decision,” the Eleventh Circuit went on to hold that in the context of where the district court's review is under an arbitrary and capricious standard and should the plaintiff “wish to present additional information that might affect the determination of eligibility for benefits, the proper course would be to remand to Blue Cross for a new determination.” Id.; see also Harris v. Lincoln Nat'l Life Ins. Co., 42 F.4th 1292, 1296 (11th Cir. 2022) (“We limit review to the administrative record ‘[w]hen conducting a review of an ERISA benefits denial under an arbitrary and capricious standard’ because ‘the function of the court [in such a case] is to determine whether there was a reasonable basis for the decision, based upon the facts as known to the administrator at the time the decision was made.’³ Indeed, if the plaintiff in a case governed by the arbitrary and capricious standard wants to introduce ‘additional information that might affect the determination of eligibility for benefits, the proper course [is] to remand to [the administrator] for a new determination.’ ”) (citations omitted).

In light of this authority, as well as the authority that states that an administrator's reaching of “opposing conclusions on the basis of the same evidence,” would “seriously challenge[ ] the assumptions upon which deference is accorded to [the administrator's] interpretation of the plan,” the Court finds that remand is proper. Brown v. Blue Cross and Blue Shield of Ala., Inc., 898 F.2d 1556, 1569 (11th Cir. 1990) (overruled on other grounds by Metro. Life Ins. Co. v. Glenn, 554 U.S. 105 (2008)).

Defendant's technical arguments to the contrary are overruled. For example, to the extent that Defendant asserts authenticity and hearsay objections to the supplemental evidence, this Court has previously stated:

Courts may consider unauthenticated documents on a motion for summary judgment, however, “if it is apparent that they will be admissible at trial.” The Lamar Co., L.L.C. v. City of Marietta, Ga., 538 F.Supp.2d 1366, 1377 (N.D. Ga. 2008); see also Edwards v. Gwinnett Cnty. Sch. Dist., 977 F.Supp.2d 1322, 1329 (N.D. Ga. 2013); Federal Ins. Co. v. United Community Banks, Inc., No. 2:08–cv–0128–RWS, 2010 WL 3842359, at *8 (N.D. Ga. Sept. 27, 2010). “To meet [the authentication] standard [at trial], the proponent need only demonstrate a rational basis for its claim that the evidence is what the proponent asserts it to be.” Federal Ins. Co., 2010 WL 3842359, at *8 (quoting U.S. v. Coohey, 11 F.3d 97, 99 (8th Cir. 1993)).

Moore v. Nationwide Recovery Serv., Inc., No. 1:23-CV-3254-SCJ-JSA, 2025 WL 1272826, at *10 (N.D. Ga. Jan. 29, 2025), report and recommendation adopted, No. 1:23-CV-03254-SCJ, 2025 WL 1277847 (N.D. Ga. Mar. 13, 2025); see also Johnson v. Spalding Cnty., No. 24-13531, 2025 WL 1902434, at *1 (11th Cir. July 10, 2025) (“[T]he district court may consider a hearsay statement at the summary judgment stage ‘if the statement could be reduced to admissible evidence at trial or reduced to admissible form.’ ”) (citation omitted).

In light of this authority and after reviewing the documents at issue, the Court concludes that upon a proper foundation, it is apparent that the documents at issue could be admissible at trial (or reduced to some admissible form) if it were proper to hold a trial in this case. Therefore, the Court will consider Plaintiff's supplemental evidence.⁴

The reverse, however, is not true, to the extent that Defendant Blue Cross also seeks to supplement the record through the declaration of Thomas Jeffrey White as Defendant has cited no binding authority that permits a plan administrator to supplement the record at the district court or on remand. In Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1328 (11th Cir. 2001), the Eleventh Circuit did not permit an administrator's supplementation based on the plan's adequate opportunity to establish the administrative record prior to litigation, i.e., when it first considered the claim and upon the administrative appeal. This Court will draw guidance from the Levinson decision and GRANT Plaintiff's Motion to Exclude the Declaration of Thomas Jeffrey White and Exhibits (Doc. No. [50]). Similar to the Court in Levinson, this Court finds that through its consideration of the claim and administrative appeal, Defendant had “more than adequate opportunities to establish an administrative record,” prior to the commencement of this litigation. Levinson, 245 F.3d at 1328.

* * * *

In conclusion, for the foregoing reasons, Defendant's second Motion for Judgment on the Administrative Record (Doc. No. [32]) and Plaintiff's Motion for Summary Judgment (Doc. No. [33]) are DENIED without prejudice as premature and with leave to renew post-remand.

Plaintiff's Motion to Exclude the Declaration of Thomas Jeffrey White and Exhibits (Doc. No. [50]) is GRANTED.

Plaintiff's Motion for Leave to Submit Supplemental Evidence (Doc. No. [62]) is GRANTED. This case is hereby REMANDED to the Claim Administrator (Blue Cross Blue Shield Healthcare Plan of Georgia, Inc./ Anthem Blue Cross and Blue Shield)⁵ for consideration of the Plaintiff's supplemental evidence in Doc. No. [62] and a new benefits determination.

Pursuant to the Court's inherent authority to control the disposition of matters under its case assignment,⁶ the Clerk is DIRECTED to ADMINISTRATIVELY TERMINATE this civil action.⁷ Either party may file a motion to reopen at the conclusion of the remand process.

IT IS SO ORDERED this 28th day of July, 2026.

FOOTNOTES

1.   All citations are to the electronic docket unless otherwise noted, and all page numbers are those imprinted by the Court's docketing software.

2.   “Plaintiff's minor daughter is referenced only by her initials pursuant to Federal Rules of Civil Procedure 5.2. Plaintiff proceeds with a pseudonym in litigation to further comply with Rule 5.2 in protecting her child's identity from disclosure in this public filing.” Doc. No. [1], ¶ 1.

3.   In the case sub judice, Defendant acknowledges that the case is subject to an arbitrary and capricious standard. Doc. No. [63], 5; see also Doc. No. [34-1], 3 (citing Doc. No. [21-1], 121, AR 120 (“Reservation of Discretionary Authority ․ Anthem has complete discretion to interpret the Benefit Booklet. The Claims Administrator's determination shall be final and conclusive ․”); Id. (“Anthem is an independent corporation licensed to use the Blue Cross and Blue Shield names and marks in the State of Georgia.”); see also Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001) (“Because the policy gives the administrator discretion to determine eligibility for benefits, we must determine whether the administrator's decision was arbitrary and capricious.”); Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004) (“In contrast, where the administrator has discretion (i.e., applies his own judgment) in making plan decisions, we review under the arbitrary and capricious standard ․”) (citations omitted). Also, to the extent that the multi-step process found in the ERISA jurisprudence applies, skipping steps has been recognized. See Rubin v. Life Ins. Co. of N. Am., No. 24-10433, 2025 WL 689691, at *4 (11th Cir. Mar. 4, 2025) (“We are not bound to strictly follow this ordering, and may skip the first step where, as here, we conclude that [defendant] was ‘vested with discretion in reviewing claims.’ ”) (citation omitted).

4.   In an ERISA benefits denial case “in a very real sense, the district court sits more as an appellate tribunal than as a trial court.” Curran v. Kemper Nat.'l Servs., Inc., No. 04-14097, 2005 WL 894840, at * 7 (11th Cir. Mar. 16, 2005); see also Stewart v. KHD Deutz of Am. Corp., 75 F.3d 1522, 1527 (11th Cir. 1996) (“[N]o Seventh Amendment right to a jury trial exists in actions brought pursuant to ERISA.”).

5.   See AR 124 (“Anthem Blue Cross and Blue Shield was chosen to administer this Plan.”).

6.   See Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.”).

7.   See Steak-Out Franchising, Inc. v. Missouri Franchise Dev. Sys., LLC, No. 1:07-CV-260-TCB, 2008 WL 11336240, at *2 n.2 (N.D. Ga. May 22, 2008) (“Administratively closing a case is a docket control device used by the Court for statistical purposes and does not prejudice the rights of the parties to this litigation in any manner.”).

HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE