March 30, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:13-cv-01103-WTL-TAB - William T. Lawrence, Judge.
Posner, Manion, and Hamilton, Circuit Judges.
Posner, Circuit Judge.
case is about fibromyalgia, "a common and chronic
disorder characterized by widespread pain, diffuse
tenderness, and a number of other symptoms. The word
'fibromyalgia' comes from the Latin term for fibrous
tissue (fibro) and the Greek [terms] for muscle
(myo) and pain (algia). …
[F]ibromyalgia can cause significant pain and fatigue, and it
can interfere with a person's ability to carry on daily
activities. … Scientists estimate that fibromyalgia
affects 5 million Americans age 18 or older." National
Institute of Arthritis and Musculoskeletal and Skin Diseases,
"Questions and Answers about Fibromyalgia, " July
(visited May 16, 2017, as were the other websites cited in
this opinion). "'Chronic' means that the pain
lasts a long time- at least 3 months or longer. Many people
experience fibromyalgia pain for years before being
diagnosed. 'Widespread' means that it is felt all
over, in both the upper and lower parts of the body. However,
many people with fibromyalgia feel their pain in specific
areas of their body, such as in their shoulder or neck. And
'Tenderness' means that even a small amount of
pressure can cause a lot of pain." Lyrica,
"Fibromyalgia [Frequently Asked Questions], "
further explained by the Mayo Clinic, "Fibromyalgia is a
disorder characterized by widespread musculoskeletal pain
accompanied by fatigue, sleep, memory and mood issues.
Researchers believe that fibromyalgia amplifies painful
sensations by affecting the way your brain processes pain
signals. Symptoms sometimes begin after a physical trauma,
surgery, infection or significant psychological stress. In
other cases, symptoms gradually accumulate over time with no
single triggering event. Women are much more likely to
develop fibromyalgia than are men. Many people who have
fibromyalgia also have tension headaches, temporomandibular
joint (TMJ) disorders, irritable bowel syndrome, anxiety and
depression." Mayo Clinic, "Fibromyalgia, "
used to be considerable skepticism that fibromyalgia was a
real disease. No more. See, besides the websites already
cited, Anne Underwood, "The Long Search for Fibromyalgia
Support, " New York Times, Sept. 23, 2009,
and Valencia Higuera, "Fibromyalgia: Real or Imagined?,
" Healthline Newsletter, Aug. 17, 2016, www.
finally the American College of Rheumatology offers the
following harrowing description of the disease:
"Fibromyalgia is a neurologic chronic health condition
that causes pain all over the body and other symptoms. Other
symptoms of fibromyalgia that patients most often have are:
Tenderness to touch or pressure affecting muscles and
sometimes joints or even the skin. Severe fatigue. Sleep
problems (waking up unrefreshed). Problems with memory or
thinking clearly. Some patients also may have: Depression or
anxiety. Migraine or tension headaches. Digestive problems:
irritable bowel syndrome (commonly called IBS) or
gastroesophageal reflux disease (often referred to as GERD).
Irritable or overactive bladder. Pelvic pain.
Temporomandibu-lar disorder-often called TMJ (a set of
symptoms including face or jaw pain, jaw clicking, and
ringing in the ears)." American College of Rheumatology,
"Fibromyalgia, " www.
Lilly and Company is a global pharmaceutical corporation
headquartered in Indianapolis. And it is familiar with
fibromyalgia because it markets a drug called Cymbalta (a
trade name for Duloxetine) for treating the disease. It has
retained an expert on fibromyalgia, Dr. Daniel Clauw of the
University of Michigan, a physician and professor of
rheumatology, to advise it on the disease, and he has pointed
out that many persons afflicted with fibromyalgia "end
up needing to stop working because of this condition"
and that the disease "is not only very common but is
typically also very disabling."
for background; now for the case:
Cathleen Kennedy, the plaintiff, was hired by Lilly in 1982
and rose rapidly, eventually becoming an executive director
in the company's human resources division, with a monthly
salary of $25, 011. But at the beginning of 2008 she was
forced to quit work because of disabling symptoms of
fibromyalgia. As a participant in the company's Extended
Disability Benefits plan, she requested benefits upon ceasing
to work, and effective May 1, 2009, was approved for monthly
benefits of $18, 972.44. Three and a half years later,
however, her benefits were terminated, precipitating this
suit by her against Lilly's self-funded Extended
Disability Plan based on the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001
et seq., which so far as pertains to this case sets
minimum standards for voluntarily established health and
pension plans in private industry. See Metropolitan Life
Insurance Co. v. Glenn, 554 U.S. 105, 115 (2008).
Lilly's disability plan has discretion to deny claims
that it deems not to meet its standard, but a reviewing court
will overturn a denial of benefits if the plan's decision
is unreasonable. Edwards v. Briggs & Stratton
Retirement Plan, 639 F.3d 355, 360 (7th Cir. 2011).
plan states that an employee has a "disability" if
unable "to engage, for remuneration or profit, in any
occupation commensurate with the Employee's education,
training, and experience." Kennedy's benefits were
revoked by Lilly's Employee Benefits Committee (the
administrator of the plan), on the ground that her
fibromyalgia was not disabling.
district judge granted summary judgment in favor of Ms.
Kennedy and awarded her $537, 843.81 in past benefits
(benefits she should have received but did not) and
pre-judgment interest, and in addition the judge ordered
Lilly to reinstate Kennedy's disability benefits
retroactive to December 2012 and resume the payment of her
monthly benefits. Lilly based its unsuccessful case in the
district court on evidence presented by a number of doctors
(oddly not including Dr. Clauw), but the evidence turned out
to be a hodgepodge. For example, Lilly sent Kennedy to be
examined by a Dr. Schriber in Dayton, Ohio, more than 100
miles from Kennedy's home in Indianapolis. The doctor
conducted a physical exam of her that lasted all of five
minutes. He testified that the "American College of
Rheumatology does not consider fibromyalgia to be disabling
on a long-term basis." That, as we know from our earlier
quotation from the ACR is false; and Lilly itself appears not
to have relied on Dr. Schriber's opinion in its decision
to terminate Kennedy's benefits.
psychiatrist named Dr. Osman advised Lilly that Kennedy
"from a psychiatric standpoint … has no
restrictions or limitations, " but based this on her
having been diagnosed with Major Depressive Disorder and
Anxiety Disorder rather than with fibromyalgia, a disease
about which as a psychiatrist he could not be expected to
offer an authoritative opinion; apparently he offered
no opinion. Another psychiatrist, Dr. Goldman,
opined similarly. And a urologist, Dr. Davi, after reviewing
Kennedy's medical records, told Lilly that she ...