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ERISA VICTORY AGAINST AETNA IN A MEDICAL BENEFITS CASE

In Williams v. Aetna Life Ins. Co., 13-CV-241-KKC, 2014 WL 5063660 (E.D. Ky. Oct. 8, 2014), the Plaintiff, Ms. Williams, had been a premature infant who spent 9 ½ weeks in the neonatal intensive care unit and was then at home on a ventilator until about 20 months of age. Ms. Williams subsequently developed problems from the respiratory syncytial virus (“RSV”) at age 2 and now, at 24 years old, suffers from selective antibody deficiency. Selective antibody deficiency is a condition where Ms. Williams' immune system fails to make antibodies appropriately. Selective antibody deficiency is treated with intravenous immunoglobulin or “IVIG” therapy. IVIG treatment for selective antibody deficiency is medically necessary, in accordance with generally accepted standards, clinically appropriate, and not primarily for the convenience of the patient. Without IVIG therapy, this lack of antibody replacement results in chronic respiratory infections, including pneumococcus or bronchiectasis, the former of which can kill a person within 6 hours, the latter of which leads to continued lung deterioration and death generally 20 years or so younger than the anticipated life span of an individual. IVIG therapy is given intravenously. Ms. Williams has a central veinous access device which her physicians use to infuse the IVIG into her body. The process takes about 3 hours. Ms. Williams' IVIG treatment cost about $5,000 per infusion, which occurs on a monthly basis. Fortunately for Ms. Williams, her parents were able to bear the approximately $60,000.00 yearly cost of the treatment during the litigation or she would have died years ago.

Prior to Aetna's involvement in this matter, Ms. Williams had health coverage under the National Rural Electric Cooperative Association (“NRECA”) through its self-funded Group Benefits Program. When Ms. Williams developed selective antibody deficiency she made a claim for intravenous immunoglobulin (“IVIG”) treatment which had begun on March 12, 2009. On July 23, 2009, and again on December 16, 2009, the NRECA denied coverage because it concluded IVIG was not medically necessary. The NRECA had initially misdiagnosed Ms. Williams with common variable immune deficiency instead of selective antibody deficiency. I filed suit for Ms. Williams against the NRECA on July 10, 2010, and the matter eventually resolved through settlement. Indeed, the NRECA never seriously disputed the medical necessity of IVIG treatment, as one of their own medical consultants eventually admitted in a November 3, 2009, report to the NRECA that “[t]he lack of antibody response to pneumococcal vaccination raises the possibility of selective antibody deficiency which is an acceptable indication for IVIG.” Notably, the evidence submitted by Ms. Williams to the NRECA was also submitted to Aetna.

Immediately after the settlement with NRECA, Ms. Williams' health coverage with Aetna began on January 1, 2011, as the employer of her father switched from a self-funded plan to one insured by Aetna. Unfortunately, Aetna's claims management was even worse than the NRECA's. Aetna failed to gather or examine relevant evidence. Initially, Aetna did not review Ms. Williams' laboratory data that it had in its possession since July 13, 2011, until July 3, 2013, which was at least a cause of Aetna's admitted misdiagnoses of Ms. Williams for almost two years. Additionally, Aetna failed to review most of Plaintiffs' submitted evidence until July 3, 2013, almost two-and-a-half years after Ms. Williams' January 4, 2011, initial claim. Second, Aetna's acknowledgement that it changed its decision rationale between its initial and final decision was established. Indeed, Aetna specifically admitted that all previous denial rational prior to its final denial of July 8, 2013, concerned its position that intravenous immunoglobulin (“IVIG”) therapy was experimental and investigational and had nothing to do with periodic trial discontinuation of IVIG therapy, the rationale used in its final denial. Finally, Aetna based its decision on a selective review of the evidence, refusing to timely credit the key opinions of Ms. Williams' treating physicians or rebut their opinions in any fashion whatsoever. Aetna did not dispute those physicians' opinions that circumstances were not appropriate to decrease or stop the IVIG therapy because Ms. Williams' lung function would deteriorate, she could die within six hours of an overwhelming pneumococcal infection or she could develop bronchiectasis, which is not curable, and would cause continued deterioration of her lungs at a relatively rapid rate such that she would die by the age of 50 or so. Indeed, not only did Aetna fail to rebut the evidence submitted by Ms. Williams, it eventually agreed with it.

Accordingly, Chief Judge Karen Caldwell found that Aetna's refusal to pay for Plaintiff's intravenous immunoglobulin treatment for her selective immunodeficiency condition was arbitrary and capricious because, among other things, Aetna changed its rationale for denying coverage from “experimental or investigational” to “failure to conduct a trial discontinuation of treatment” and Aetna did not meaningfully investigate the claim. It was a complete victory for our client.

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Seth Holliday

As a partner at the McMahan Law Firm, LLC, D. Seth Holliday litigates disability, health and life insurance claims on behalf of individuals who have been wrongfully denied their benefits. He is also dedicated to representing the seriously injured in personal injury litigation. Regarding private insurance benefits, Mr. Holliday has sued such insurance companies as Unum, Hartford, Prudential, Standard, Guardian/Berkshire, Cigna, MetLife, Aetna, Liberty Mutual, Mass-Mutual, and others that have denied individuals their private disability insurance (called “long-term disability” or “LTD”), life insurance or health insurance claims. His track record here is superb, and he obtains excellent results for his clients. Mr. Holliday is one of only a handful of attorneys across the United States who practices heavily in these areas. He has represented well over two thousand claimants at Social Security hearings and has a very high success rate. Attorney Holliday is a 1996 graduate of Washington University School of Law and he initially practiced in Chicago, Illinois. There, in the personal injury context, he had a principal role in obtaining three awards which were confirmed by the local jury verdict reporter as being the highest on record in the State of Illinois in their respective category. Attorney Holliday has been a leader in prominent organizations. He is a former member of the Board of Governors of the Tennessee Association for Justice, past-chair of the Disability Law Section of the American Association for Justice, past-chair of the TBA's Disability Law Section of the Tennessee Bar Association, and past-president of the Chattanooga Trial Lawyers Association. These are all associations of lawyers who advocate on behalf of injured or disabled individuals. Mr. Holliday has lectured regularly on disability issues to other attorneys and has also taught trial advocacy at the DePaul University College of Law in Chicago and business law at Chattanooga State Technical Community College in Tennessee. Additionally, Mr. Holliday provides free legal services to a variety of charitable organizations in the Chattanooga area, including the Chattanooga Community Kitchen and Legal Aid of East Tennessee. He is a two-time past recipient of the Pro Bono Excellence Award. Mr. Holliday is a former member of the board of directors for Hospice of Chattanooga, having served as chairman of its governance committee and as a member of its executive and finance committees. PRACTICE AREAS Social Security disability Health and life insurance claims Administrative law Personal injury claims Long-term disability and ERISA claims Insurance litigation Disability law BAR ADMISSIONS Illinois, 1996 U.S. District Court, Northern District of Illinois, 1996 Tennessee, 2003 U.S. District Court, Eastern District of Tennessee, 2004 U.S. District Court, Middle and Western Districts of Tennessee, 2008 U.S. Court of Appeals for the 6th Circuit, 2009 U.S. District Court, Middle District of Georgia, 2010 Georgia, 2013 U.S. District Court, Northern District of Georgia, 2015 CERTIFICATIONS Certified as a Specialist in Social Security Disability Law by the National Board of Social Security Disability Advocacy. HONORS AV® Distinguished™ Peer Review Rated by Martindale-Hubbell® Legal Aid of East Tennessee Pro Bono Excellence Award EDUCATION J.D., Washington University School of Law, 1996 B.A, Millsaps College, 1991 PROFESSIONAL ASSOCIATIONS National Association of Social Security Claimants' Representatives American Association of Justice Tennessee Bar Association Tennessee Association of Justice Chattanooga Trial Lawyers Association SOCIAL MEDIA AVVO Linkedin Facebook ADJUNCT PROFESSOR Chattanooga State Technical Community College, spring 2008 DePaul University College of Law, fall 1999 SEMINARS Moderator - Social Security Disability and ERISA Law Sections Presentation American Association for Justice Annual Convention 2012 Moderator - Disability Benefits Forum Tennessee Bar Association CLE Seminar 2011 Speaker - What Trial Lawyers Need to Know About Subrogation and Offsets in Long Term Disability & Social Security Kentucky Justice Association CLE Seminar 2010 Speaker - Interplay Between Social Security Disability and Long-Term Disability Arkansas Trial Lawyers Association CLE Seminar 2010 Speaker - Ethical Considerations for Social Security Disability Attorneys Tennessee Bar Association CLE Seminar 2009 Speaker - Social Security Disability: The Basics and Beyond Tennessee Association for Justice CLE Seminar 2008 Speaker - Social Security Disability National Business Institute CLE Seminar 2007 Speaker - Social Security Disability National Business Institute CLE Seminar 2006

Excellence

Seth has always been compelled to excel, whether it meant earning his Eagle Scout as a teenager, participating in theater, debate and varsity football in high school, his Rhodes Scholar candidacy in college, or opening his own law firm. He also perseveres in situations others might shy away from, whether it involves sky-diving, rappelling down a mountain, white-water rafting, participating in marathons and triathlons, writing a novel, or lecturing nationally to large audiences about the vagaries of ERISA.

Committed

Seth is committed to serving disabled individuals. He is proud of his work in prominent organizations such as the American Association for Justice (AAJ), the Tennessee Bar Association (TBA) and Hospice. Seth is past-Chair of both AAJ's & TBA's Disability Law Sections, past-President of the Chattanooga Trial Lawyers Association, a 2-time recipient of the Pro Bono Excellence Award, and a 7 year member of the Board of Directors for Hospice of Chattanooga.