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Fitts v. Unum Life Insurance Company of America

May 7, 2007

JANE FITTS, PLAINTIFF,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM

Jane G. Fitts, a former employee of the Federal National Mortgage Association ("Fannie Mae") diagnosed with bipolar disorder, brings this action against Unum Life Insurance Company of America ("Unum"), Fannie Mae's employee disability insurance provider. Fitts claims that Unum violated the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., because, after she left Fannie Mae on disability, Unum terminated long term disability payments to Fitts after twenty-four months under a provision of Unum's disability policy that so limits benefits for disabilities due to "mental illness."*fn1

Having previously determined that bipolar disorder is not included in the mental illness limitation of the policy, this court conducted an evidentiary hearing to determine (1) whether Fitts suffers from bipolar disorder as she claims or some other disabling disorder; (2) whether she is disabled; and (3) whether the cause of her disability is bipolar disorder. For the reasons set forth in the following findings of fact and conclusions of law, the court answers each question in the affirmative.

FINDINGS OF FACT

I. Fitts Has Bipolar Disorder

A. Definition of Bipolar Disorder

1. Bipolar disorder, also known as manic depressive illness, is a physiological brain disorder that can cause dramatic mood swings, bouts of depression and hyperactivity, unusual shifts in energy levels, and an inability to function. See Stedman's Medical Dictionary, 460, 508, 1061 (26th ed. 1995).

2. According to the diagnostic criteria in Diagnostic and Statistical Manual of Mental Disorders (4th ed. text rev. 2000) ("DSM-IV"), acknowledged by both parties as authoritative, the essential features of bipolar disorder include the occurrence of "manic episodes" or "mixed episodes" of mania and depression, as well as the occurrence of "major depressive episodes." DSM-IV at 382.

3. A "manic episode" is a distinct period of an abnormally and persistently elevated, expansive, or irritable mood disturbance, characterized by the persistence of at least three of the following symptoms: (1) inflated self-esteem or grandiosity; (2) decreased need for sleep; (3) more talkative than usual; (4) racing thoughts; (5) distractibility; (6) increase in goal-oriented activity (either socially, at work or school, or sexually) or psychomotor agitation; and/or (7) excessive participation in high-risk pleasurable activities (e.g., spending sprees, sexual indiscretions, or foolish business investments). DSM-IV at 362. A manic episode must be severe enough to cause marked impairment in occupational or social functioning, to require hospitalization, or to cause the individual to display psychotic features. Id.

4. A "major depressive episode" is a period of depression lasting at least two weeks which is characterized by at least five of the following symptoms nearly every day: (1) depressed mood; (2) markedly diminished interest or pleasure in activities; (3) significant weight loss or gain, or decreased appetite; (4) insomnia or excessive sleepiness; (5) psychomotor agitation or retardation (observable by others); (6) fatigue or loss of energy; (7) feelings of worthlessness or excessive or inappropriate guilt, which may be delusional; (8) diminished ability to think or concentrate, or indecisiveness; and/or (9) recurrent thoughts of death, suicidal thoughts, or a suicide attempt. DSM-IV at 356. The symptoms must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Id.*fn2

5. A "mixed state episode" occurs when a person experiences the symptoms of a manic episode and a major depressive episode every day for a week and the disturbance is sufficiently severe to cause marked impairment in occupational or social functioning, to require hospitalization, or the person displays psychotic features. DSM-IV at 365.

6. Bipolar disorder is a recurrent disorder in which a majority of patients experience chronic interpersonal or occupational difficulties between acute episodes. DSM-IV at 386. An individual is more likely to develop bipolar disorder if a family member has suffered from bipolar or depressive disorder, and studies have provided "strong evidence" of a genetic influence. Id. at 386. More than ten percent of those diagnosed with bipolar disorder commit suicide. Id. at 384. Other associated problems include occupational failure, episodic antisocial behavior, alcohol or substance abuse, anorexia or bulimia, attention-deficit disorder, panic disorder, social phobia or borderline personality disorder. Id. at 384, 394.*fn3

B. Fitts's Diagnoses of Bipolar Disorder

7. Fitts, now 57, has suffered from severe mood swings, depressive and manic episodes, suicide attempts, and an inability to function since at least 1995, according to her treating physicians and medical records. Dr. Suzanne J. Griffin, M.D., a Board-certified psychiatrist and certified psychopharmacologist, with more than twenty-five years of clinical experience, has treated Fitts for more than ten years and has diagnosed her as bipolar. Griffin Direct at 3--9; Pl's Ex. A (Griffin's C.V.); Tr. I 167:15--18.*fn4

8. Dr. Thomas Hyde, M.D., Ph.D., a neurologist and psychiatrist who has treated Fitts for more than seven years, has diagnosed her as bipolar. Hyde Direct at 3--8; Tr. I 121:12--15. Dr. Hyde is a Board-certified neurologist, a senior staff scientist in the neuropathology section of the brain disorders branch of the National Institute of Mental Health, and a clinician with more than eighteen years of experience. Pl.'s Ex. I (Hyde C.V.).

9. Dr. Frederick K. Goodwin, M.D., acknowledged by both parties as one of the world's leading authorities on bipolar disorder, see Tr. II 65:23--25 (Ratner), diagnosed her as bipolar after evaluating her in 1996 and 2006, Goodwin Direct. at 4. Dr. Goodwin, a medical doctor, research psychiatrist, and psycho-pharmacologist, is the co-author of one of the preeminent textbooks in the field of bipolar disorder, Manic-Depressive Illness (Oxford Univ. 1990). Goodwin Direct at 2--3.*fn5 He is a research professor in psychiatry at the George Washington University Medical Center and the former director of the National Institute of Mental Health. Pl.'s Ex. K (Goodwin Bio.). He has authored 460 publications, most of which concern bipolar disorder, and he currently treats more than 140 bipolar patients. Goodwin Direct at 2--3; Pl.'s Ex. K (Goodwin Bio.); Pl.'s Ex. L (Goodwin C.V.). In March 1996, prior to this insurance coverage dispute, Dr. Goodwin evaluated Fitts in a diagnostic and treatment consultation and diagnosed her as bipolar. Tr. I 17:16--20. Dr. Goodwin reevaluated Fitts in October 2006 to follow up on her treatment because she had decided to call him as a witness.

Tr. I 11:5--19, 12:10--13:6. He confirmed his earlier diagnosis that she had bipolar disorder. Tr. I 77:19--20. Dr. Goodwin testified that in October 2006,"[s]he had the same diagnosis that her psychiatrist had given her, Georgetown University had given her, Hopkins University had given her and three of [Unum's] experts had given her," all of which were bipolar disorder. Tr. I 16:23--17:13.

10. Treating physicians at Johns Hopkins Hospital and Georgetown University Hospital also diagnosed her as having bipolar disorder when she was hospitalized twice in 1997 and again in 2004. Pl.'s Ex. E at 4 (Hopkins Final Progress Note, 12/3/97); Pl.'s Ex G at 4 (Georgetown Discharge Summary 12/19/97); Pl.'s Ex. H at 4 (Georgetown Discharge Summary on 8/2/04).

11. By 1995, her treating physicians Dr. Bernard Vittone and Dr. Terence Ketter had diagnosed her as having bipolar disorder. Def.'s Ex. 27 (Vittone's Notes); Ex. 9 at 1 (Polk Letter).

12. In June 1995, Dr. William J. Polk, a psychiatrist and neurologist, conducted an evaluation of Fitts for her employer, Fannie Mae, in which he concurred with her physicians' diagnoses of bipolar disorders. Def.'s Ex. 9 at 1--2 (Polk Letter). After evaluating her personally and speaking with Dr. Ketter, Dr. Polk reported to Fannie Mae that he "agree[d] with the diagnosis of Bipolar Type II." Id. at 1. Dr. Polk observed that "[t]here have been repeated periods of sick leave related to a diagnosis of Bipolar Disorder Type II, for which she is currently in treatment with Dr. Terence Ketter." Id. at 2. He observed that she was "currently in a mixed state, including depression and periods of hypomania at the time of her outbursts." Id. Dr. Polk recommended that she be separated from Fannie Mae on disability.

C. Fitts's Family and Medical History Also Confirm her Diagnosis as Bipolar Disorder

13. Fitts's father and brother, both now deceased, suffered depression and likely had bipolar disorder. Def.'s Ex. 9 at 2 (Polk Letter); Tr. I 180:12--181:2. Her father died when she was ten; her older brother committed suicide around 1987. Tr. I 177:10--11; 180:3--6.

14. In 1988, Fitts (then thirty-nine years old) began receiving treatment from Dr. Ketter for mood disorder and major depressive episodes. Def.'s Ex. 26 (Ketter Notes).

Dr. Ketter later diagnosed her as bipolar. In 1993, he began treating her with lithium, a mood stabilizer used to treat bipolar disorder, which she discontinued later that year. Id. (4/20/93). In 1994, he prescribed Depakote, another mood stabilizer used to treat bipolar, after a severe episode which precipitated her departure from Fannie Mae. Id. (8/27/94).

15. In 1994, Fitts sent a "bizarre letter" to Fannie Mae's chief executive officer ("CEO") discussing a delusional romantic relationship which, among other things, gave him three "options": promote her, pay her off with a "golden parachute" or make her his "wife #3." Def.'s Ex. 25 (Haines Notes 11/15/95); Def.'s Ex. 26 (Ketter Notes 6/27/94). Following this incident, she was asked to take sick leave. Def.'s Ex. 26 (Ketter Notes 6/27/94).

16. Around the time of the incident, Fitts reported to Dr. Ketter that she believed that God messaged her when she saw the Fannie Mae CEO and that she "could see through his eyes into his soul." Def.'s Ex. 26 (Ketter Notes 7/12/94). She had apparently had an "obsession" with this delusional "preoccupation" for over a year. Id. Fitts also reported paranoid delusions that she had been "directed by the spirit," id. (7/12/94), and that the CEO was "orchestrating" the events leading to her departure, id. (7/22/94). Although Dr. Ketter first noted that he thought this was a "fantasy/obsession" rather than mania, id. (7/10/94), he repeatedly inquired whether Fitts was experiencing hypomania (which she denied), id. (7/22/94; 8/12/94) and he began discussions with her about whether lithium would be effective in treating her symptoms, id. (7/12/94).

17. Dr. Griffin testified that Fitts continued to have this delusion regarding the CEO over a number of months even after she left Fannie Mae, Tr. I 144:4--21, and she concluded that Fitts's delusion about the CEO was a result of a psychotic episode, Griffin Direct at 4. Dr. Griffin testified that Fitts has experienced numerous psychotic episodes, some of which she has observed. Tr. I 143:9--22. During these episodes, Dr. Griffin testified that Fitts "believed that she was communicating with God, that she was receiving messages from God, that demons were controlling her life, that she was cursed by God, that at one point, she was God." Tr. I 143:19--22. Her psychotic states continued until about 2000, when they stopped for about a three year period. Tr. I 145:3--12.

18. Fitts has experienced psychosis as recently as 2004, when Dr. Griffin observed that Fitts's mixed state of depression and hypomania "reached a crisis point and she became psychotic." Griffin Direct at 8. Griffin observed that "Jane was confused and agitated. Her speech was slurred. She was having panic attacks." Id. Griffin contacted Fitts's sister and arranged to have Fitts hospitalized at Georgetown. Id.

19. Dr. Griffin has personally observed Fitts in a hypomanic state, most recently in 1997. Tr. I 157:4--7. Since then, Fitts has had hypomanic symptoms, but not a full blown manic episode. Tr. I 157:8--13. Dr. Ketter also observed Fitts in several manic or mixed states, including a mixed episode in May 1995. Def.'s Ex. 26 (Ketter Notes 5/30/95).

20. Fitts has been repeatedly hospitalized for suicidal thoughts or behavior, in 1996, twice in 1997, in 1999 and again in 2004. Griffin Direct at 6--8; see Pl.'s Exs. B--G (hospital records of admissions for suicidal thoughts or attempts). In December 1996, for example, Fitts was hospitalized at Sibley Memorial Hospital for over a month after taking an overdose of medication in a suicide attempt. Pl.'s Ex. C (Sibley Clinical Resume 1/27/97). She has recurrent suicidal behavior and has frequently experienced suicidal thoughts. Tr. I 137:8--9.

21. Fitts has experienced major depressive episodes so severe that she was treated with electroshock treatment ("ECT"). During her hospitalization at Sibley in 1996, Fitts received ten treatments of ECT, and she continued with a course of periodic outpatient ECTs after her discharge through October of 1997. See Pl.'s Ex. C (Sibley Clinical Resume 1/27/97). 22. Fitts has taken numerous prescription medications for bipolar disorder since leaving Fannie Mae, including lithium, Depakote, Lamictal and other drugs aimed at stabilizing her mood. Tr. I 159:1--164:10. In December 2006, Fitts was taking Depakote (a mood stabilizer for bipolar patients), Nortriptyline (for depression), and Namenda (for memory loss). Griffin Direct at 9.

23. Fitts has physical manifestations associated with having bipolar disorder. She suffers from severe headaches which are caused by her bipolar disorder. Tr. I 181:17--18, 181:24--182:5; Hyde Direct at 4. She has complained of fatigue and rapid heart rate, two other physical symptoms associated with bipolar disorder. Goodwin Direct at 11. She suffers from memory loss and other cognitive deficits, caused by bipolar disorder, which have "continued to worsen over the years," in Dr. Hyde's observations. Tr. I 95:10--16; Tr. I 115:15--18.

24. There are numerous studies confirming the relationship between bipolar disorder and cognitive deficits. Tr. I 33:7--34:10 (Goodwin); Tr. I 122:1--5 (Hyde). Dr. Goodwin explained that bipolar patients suffer "brain damage . . . as a result of the episodes, particularly depressive episode where you get secretion of a lot of steroids that are toxic to the brain. And over time, the average bipolar patient loses intellectual function." Tr. I 42:5--10. He further explained that bipolar patients spend two-thirds of their illness time in depression . . .[and] most of the dysfunction from the bipolar comes from the depression side. And when you're depressed, you secrete corticosteroids, and those corticosteroids have been shown to be neurotoxic, both in human studies and animal studies, particularly damaging parts of the brain that involve memory and selective memory in deciding what's important to remember.

Tr. I 43:1--11. Dr. Goodwin testified that the loss of cognitive function and deterioration of the brain are documented in the Neurophysiology chapter of his authoritative book, Manic Depressive Illness. Tr. I 42:4--5, 12--19.

25. Fitts's treating physicians testified that, in recent years, depression has been Fitts's primary state. Griffin Direct at 5--6; Hyde Direct at 4. Dr. Goodwin testified that bipolar individuals spend most of their time in depression with some of the following symptoms:

Inability to stay asleep, waking up in the middle of the night, or in the opposite, wanting to sleep all the time, changes in sexual function, changes in appetite, all of these things normal people can experience, but the issue is duration. In the clinically depressed person those symptoms, those lack of functions go on relentlessly, week after week, month after month, year after year. And it's the relentlessness of it that moves it from a normal state, or depression as a symptom, into depression as a disorder.

Tr. I 79:8--16. Dr. Goodwin explained that the depressive episodes of bipolar patients are the cause of most of their dysfunction:

[T]he major issue for patients with bipolar disorder is the depressive phase. The major reason that their life gets off track is the depression. And with those depressions, of course, become considerable functional incapacity, some of which is the patient's depressive assessment of themselves. That is, they don't believe that they can do anything. And some it is that they really . . . have had a loss of function. Often depressed patients . . . will describe thinking as if they were trying to get through molasses, that their thinking process was so slow and so disorganized. Most people can recall their own experience with, you know, a depressive day here or there where you have no interest in things, you think everything is going to turn out terrible, your confidence is totally shot. But these are, in the normal range, exist for a day at a time. They usually relate to something that just happened to you in the environment.

Tr. I 78:15--79:7.

26. Fitts described her depressed state as follows: Since I was discharged from Fannie Mae, my life basically has ended. It has been hell. I have slipped into a deep, dark hole that I can't seem to get out of unless I'm in hypomania, and then I think I'm doing things that God tells me to do and that are the right course of action. I do them impulsively, and I don't realize what mistakes I've made until I crash back into a depression.

And when I am in a depression my thoughts are very negative and pessimistic. I feel like I am useless, like nothing I can do is right, every decision I make, whether it's in a hypomanic state or a depressed state, gets me deeper and deeper into the hole. I have tried cognitive therapy to turn around this negative thinking, but I don't really see the positives in my life that I can grab onto to turn anything around.

And I have lost the skills that are needed to be an attorney. I don't feel I have any talents. I'm not Van Gogh. And I don't have confidence anymore in my judgment or my abilities. And most of the time, my initial reaction is that I can't do things because I end up screwing up.

Tr. II 38:14--39:7. The court closely observed Fitts during the evidentiary hearing and her testimony on this subject is credible.

D. Unum's Witnesses Confirm that Fitts's Diagnosis is Bipolar Disorder

27. Unum's witness Dr. Richard Ratner, the only Unum witness to have evaluated Fitts in person, testified that, in his opinion, "Ms. Fitts suffers from a mood disorder and, more specifically, a Bipolar Mood disorder." Ratner Direct at 4; see also Tr. II 66:5--22. Dr. Ratner, a Board-certified psychiatrist, is a Clinical Professor of Psychiatry and Behavioral Sciences at George Washington University Medical School and has treated patients with bipolar disorder. Ratner Direct at 2; Def. Ex. 1 (Ratner C.V.); Tr. II 83:24-84:6. Dr. Ratner examined Fitts's medical records and met with her on three occasions in 2002. Tr. II 81:18--20.

28. Unum former medical director Dr. Robert A. Haines testified that, in his opinion, "the medical evidence supported the diagnosis of bipolar disorder and/or personality disorder, and that Fitts's capacity to work was impaired by these conditions." Tr. II 46:4--9. Dr. Haines, a Board-certified psychiatrist, was the medical director of Unum Life Insurance Company from 1992 to 2000, when he returned to clinical work in which he has treated patients with mood disorders. Def.'s Ex. 23 (Haines C.V.); Haines Direct at 2. Dr. Haines testified that he had not examined Fitts and that he could not make a definitive diagnosis. Tr. II 45:1--2; 48:8--9. He acknowledged, however, that he did not dispute Fitts's bipolar diagnoses from Dr. Griffin, Dr. Hyde, Dr. Goodwin, Johns Hopkins or Georgetown. Tr. II 47:6--48:7.

29. Unum's witness Dr. Angela Hegarty reviewed Fitts's records for Unum and made no diagnosis because she did not evaluate Fitts in person, but she acknowledged that her review revealed that Fitts had major depressive disorder. Tr. II 87:16--19; 88:13--17; 95:15--17. Dr. Hegarty is a Board-certified psychiatrist, forensic psychiatrist, and neurologist, who, at the time of the hearing, had just resigned her appointment as a clinical professor of psychiatry at New York University and the State University of New York at Stony Brook, pending an appointment as a clinical professor at Columbia University. Def.'s Ex. 3 (Hegarty C.V.); Tr. II 116:13--16. Dr. Hegarty acknowledged that it was "possible" that Fitts has bipolar disorder but that it was "unlikely." Tr. II 91:13--15. Dr. Hegarty testified that, in her review of the medical records, it appeared "very likely [Fitts] had some hypomanic symptoms," and that "a lot of her symptoms are better explained by a mixed episode," although she was unsure if Fitts had had a manic episode. Tr. II 95:10--13. Under the ...


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