FILED
                           NOT FOR PUBLICATION
                                                                             JUN 22 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLA SAMMONS,                                   No.   16-35288

              Plaintiff-Appellant,               DC No. CV 15-1703 SI

 v.
                                                 MEMORANDUM*
REGENCE BLUECROSS BLUESHIELD
OF OREGON; OREGON BAKERS
UNION TRUST FUND; BOARD OF
TRUSTEES, OREGON BAKERS UNION
TRUST FUND,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted May 14, 2018
                                 Portland, Oregon

Before:      TASHIMA, McKEOWN, and PAEZ, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Plaintiff-Appellant Carla Sammons (“Sammons”) appeals from the

judgment entered in favor of Defendants-Appellees (“Defendants”). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Sammons was a beneficiary under a medical benefits plan governed by The

Employee Retirement Income Security Act (“ERISA”). Defendants are the plan’s

sponsor, administrator, insurer, and claims administrator. Sammons sought

reimbursement for an artificial disc replacement surgery (“the surgery”) that she

underwent to address her degenerative disc disease. Defendants denied coverage

for the surgery on the grounds that it fell under the plan’s “investigational”

exclusion. After a bench trial, the district court concluded that the surgery was not

covered, agreeing that it fell under the investigational exclusion.

      The parties agree that the denial of benefits is reviewed de novo because the

plan does not give the administrator discretionary authority to construe the plan

terms or determine eligibility for benefits. See Silver v. Exec. Car Leasing

Long-Term Disability Plan, 466 F.3d 727, 731 (9th Cir. 2006). “Where, as here, a

district court has conducted a de novo review of an ERISA plan administrator’s

decision, we review the court’s factual findings only to determine whether they are

‘clearly erroneous.’” Id. at 732–33 (quoting Kearney v. Standard Ins. Co., 175
F.3d 1084, 1094 (9th Cir. 1999) (en banc)).


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         1.    The plan language is unambiguous. See Deegan v. Cont’l Cas. Co.,

167 F.3d 502, 507 (9th Cir. 1999). To avoid the investigational exclusion, the

scientific evidence had to permit conclusions about the overall impact of the

surgery, such as its net effect on Sammons’ degenerative disc disease and her

quality of life, and had to show the effectiveness of the surgery as compared to

established alternatives. The unambiguous intent was thus to exclude a procedure

whose net impact remained uncertain.

         The plan contains no explicit time frame for when these metrics must be

shown. However, this does not mean there is no durational requirement, or that

conclusions about this particular surgery in the “short term” are sufficient. That

evidence shows a procedure to be beneficial some time after it is completed does

not mean that this evidence permits the conclusions required under the plan’s

terms.

         Indeed, the absence of an explicit time requirement here is by necessity. The

exclusion is written generally to apply to a breadth of procedures, each with its

own body of scientific evidence detailing when conclusions can be drawn about the

procedure’s effect on a patient’s overall health and when its performance can be

compared to established alternatives. The district court therefore correctly

concluded that the investigational exclusion unambiguously applies when a lack of


                                            3
evidence at a meaningful benchmark hinders the ability to draw these conclusions

required under the terms of the plan.

        2.    The district court’s finding that 5 years is the relevant benchmark for

this surgery was not clearly erroneous. This finding was based on the Defendants’

manual, which relied on medical evidence and the fact that the Food and Drug

Administration’s approval was conditioned on the submission of 5-year follow-up

data to evaluate the surgery’s long-term safety and efficacy. The district court’s

finding also relied on the opinion of an independent medical reviewer who

confirmed that, given the special nature of spinal surgery, the overall impact of this

surgery and its comparative efficacy remains unclear without reliable long-term

data.

        Sammons objects to the district court’s weighing of the evidence; however,

determining how to weigh evidence and resolve conflicts are within the province of

the court when it sits as fact finder. See Silver, 466 F.3d at 735; see also Kearney,
175 F.3d at 1095. Moreover, Sammons has not shown that the evidence submitted

by Defendants must categorically be afforded less weight because it relied on or

summarized scientific evidence, and was not itself scientific evidence as defined

under the plan. Regardless, Sammons fails to point to any evidence that she

submitted that directly rebuts the court’s finding.


                                           4
      Contrary to Sammons’ assertions, then, the district court did conduct a de

novo review; examining and relying on the evidence in the administrative record

submitted by the Defendants is not the same as deferring to the Defendants’

ultimate decision. Even after scrutinizing the record here, we are not left with a

definite and firm conviction that the district court committed an error of judgment

in finding that reliable evidence at 5 years is required to assess this surgery’s safety

and efficacy. See Silver, 466 F.3d at 733, 735. Instead, some of the scientific

evidence that Sammons submitted even seems to support this finding.

AFFIRMED.1




      1
           Because we affirm the district court’s judgment, we need not reach
Sammons’ claim that she is entitled to attorney’s fees.
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                                                                             FILED
Sammons v. Regence Blue Cross Blue Shield of Oregon, No. 16-35288
                                                                              JUN 22 2018
PAEZ, Circuit Judge, dissenting:                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

      We have firmly recognized that an “insurer should be expected to set forth

any limitations on its liability clearly enough for a common layperson to

understand; if it fails to do this, it should not be allowed to take advantage of the

very ambiguities that it could have prevented with greater diligence.” Kunin v.

Benefit Tr. Life Ins. Co., 910 F.2d 534, 540 (9th Cir. 1990). Thus, if “there exists a

reasonable interpretation of the [health insurance] Plan that covers [artificial disc

replacement], . . . the existence of such a reasonable interpretation means that, even

if contrary reasonable interpretations exist, a jury would be required to adopt the

one that favors coverage for the insured.” Simkins v. NevadaCare Inc., 229 F.3d
729, 737 (9th Cir. 2000).

      I agree with the majority that Regence’s interpretation of the plan

language—that artificial disc replacement (ADR) surgery is investigational until

and unless studies show success at five years out—is reasonable. But I part ways

with the majority because Regence’s interpretation is not the only reasonable

interpretation. A “person of average intelligence and experience” reading the plan

terms for their “ordinary and popular” meaning would not conclude that the plan

language here unambiguously conveys a specific long-term benchmark, let alone a

particular 5-year benchmark for spinal surgery. See Simkins, 229 F.3d at 734–35

                                           1
(citations and alterations omitted). I certainly cannot say that “any other

interpretation [besides Regence’s] would be strained” or would require “tortur[ing]

or twist[ing] the language of the policy.” Evans v. Safeco Life Ins. Co., 916 F.2d
1437, 1441 (9th Cir. 1990). Here, the plan language could reasonably be

interpreted to cover ADR, necessitating summary judgment in favor of

Sammons—not Regence.

      While Regence’s protests about the difficulty of drafting the investigational

language with greater specificity are well-taken, our case law squarely places that

burden on Regence, not on the insured. See Simkins, 229 F.3d at 736 (“If

NevadaCare wishes to exclude coverage of a procedure such as HDC/PSCR from

its insurance plans, it should do so conspicuously and unambiguously so a

reasonable insured can determine this fact by looking at her policy.”); see also

Heasley v. Belden & Blake Corp., 2 F.3d 1249, 1263 (3d Cir. 1993) (“[H]ad

Belden & Blake wished to limit the analysis this way, it could have so defined

‘experimental’ in the plan.”). Sammons could not have determined the lack of

coverage for ADR by reading her policy, and should not suffer for the challenges

Regence faces in drafting policy language. See Simkins, 229 F.3d at 736.

      Because I would reverse and remand to the district court with instructions to

enter summary judgment in favor of Sammons, I respectfully dissent.




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