Disability claimants often attack the ERISA plan’s expert medical reviewer as biased, sometimes seeking discovery in an attempt to show bias.

Here’s a new case that highlights what can happen in a de novo review case: No discovery about a medical expert allowed.

Shaikh v. Aetna Life Ins. Co., 2019 WL 1571876 (N.D. Cal. April 11, 2019)(In de novo review case, the Court denied discovery related to alleged bias of medical reviewers).

FACTS: Plaintiff Shaikh sought ERISA-governed long term disability benefits. He alleged the independent reviewer retained by Aetna was biased and sought limited discovery about the medical reviewer including: (a) total annual compensation Aetna paid the medical reviewer from 2007; (b) the number of hours per week the medical reviewer actually treats patients (rather than performs record reviews).

ISSUE: Was Aetna compelled to answer discovery about the medical reviewer?


  1. New evidence may be considered by a court performing de novo review only in “exceptional circumstances.” Op. at 2.
  2. “‘It makes little sense to allow broad and costly discovery when the court’s review of the merits is limited to the administrative record (except in narrow circumstances where additional evidence is necessary to conduct an adequate de novo review).’”  Op. at 2.
  3. ”[S]everal district courts in this circuit have held that the mere fact a physician receives compensation from a plan administrator for performing medical reviews is insufficient by itself to be probative of bias.” Op. at 3 (emph. added).
  4. “Permitting the requested discovery in this case is inconsistent with the limitations [the Ninth Circuit] contemplates on extra-record evidence in de novo cases.” Op. at 4.