Strauss v. Premera Blue Cross

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If) CLERKS OFFICE \
This opinion was
filed for record
OffRSE COURT,31^ OF VVA3Hi?JQT0fl at ^^FA^on 0^.3 a?/ q
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Susan L. Carlson
ciik/F jusricM Supreme Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JOHN STRAUSS and MICHELLE
STRAUSS,husband and wife, and their
marital community. NO. 95449-6

Petitioners,
EN BANC
V.

PREMERA BLUE CROSS,
Filed 0 3 2019
Respondent.

STEPHENS, J.—John and Michelle Strauss challenge the Court of Appeals

decision affirming summary dismissal of their action against Premera Blue Cross,

which arises out of the denial of coverage for proton beam therapy(PBT) to treat

John Strauss's prostate cancer. At issue is whether the Strausses have established

the existence of a genuine issue of material fact regarding PBT's superiority to

intensity-modulated radiation therapy (IMRT), thereby demonstrating that proton

beam therapy is "medically necessary" within the meaning of their insurance
Strauss v. Premera Blue Cross, 95449-6

contract. We hold that they have, and we therefore reverse the Court of Appeals'

decision and remand for a jury trial on the disputed facts.

FACTS

John Strauss was diagnosed with prostate cancer in September 2008. He is

insured under a Premera health insurance policy that covers "medically necessary"

treatment, defined as treatment conducted "[i]n accordance with generally accepted

standards of medical practice... and not more costly than an alternative [treatment]

... at least as likely to produce equivalent therapeutic or diagnostic results." Clerk's

Papers(CP)at 212. After consulting with Dr. David Bush, Strauss elected to pursue

PBT. Dr. Bush recommended PBT over IMRT because, although no clinical trials

directly compared the two forms oftreatment, he believed that PBT resulted in fewer

adverse side effects for the majority of patients.

On November 12, 2009, Strauss sought preauthorization from Premera to

undergo PBT rather than IMRT,but Premera denied the request on the ground PBT

was not"medically necessary" within the meaning ofthe policy. CP at 243. Strauss

twice unsuccessfully pursued internal appeals of this decision with Premera. At

Strauss's request, Premera sought an external review in July 2010, which upheld the

denial of coverage. Meanwhile, Strauss completed PBT in April 2010.

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Strauss v. Premera Blue Cross, 95449-6

The Strausses subsequently filed this action in superior court, seeking

recovery for the cost of PBT, as well as insurance bad faith damages and treble

damages for violation of the Consumer Protection Act, chapter 19.86 RCW. The

parties stipulated that PBT is costlier than IMRT and is at least as effective in treating

prostate cancer. But Premera moved for summary judgment on the ground that the

Strausses could not meet their burden to show PBT was "medically necessary" under

the insurance plan. CP at 37-38. The parties agreed that PBT would qualify as

"medically necessary" ifit resulted in fewer adverse side effects compared to IMRT;

Premera argued that the Strausses had failed to raise a genuine issue as to that fact.

CP at 40.

Acknowledging the absence of clinical studies directly comparing the two

therapies, the Strausses relied on declarations from two board-certified radiation

oncologists who opined that PBT would likely lead to fewer side effects because it

irradiates a smaller amount of healthy tissue. Premera responded that these expert

opinions did not constitute "credible science" and that, in the absence of

"randomized controlled trials," the Strausses' arguments about side effects "rely

entirely on conjecture, theory, and inadmissible cross-study comparisons." CP at

19. Premera did not move to exclude any of the Strausses' expert declarations,

however. Instead, it discounted those declarations on their merits, arguing that, even

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Strauss v. Premera Blue Cross, 95449-6

if one were to credit nonrandomized studies, some of those studies show that PBT

may be equivalent to or worse than IMRT in terms ofside effects. Premera admitted

that developments in radiation therapy, generally, have been aimed primarily at

reducing incidental radiation to healthy tissue. But it cited publications, by the

National Comprehensive Cancer Network and two other professional organizations,

stating that there is currently no clear evidence that PBT has any advantages over

IMRT. When it moved for summary judgment dismissal, Premera relied solely on

these publications and the federal district court's decision in Baxter v. MBA Group

Insurance Trust Health & Welfare Plan, 958 F. Supp. 2d 1223(W.D. Wash. 2013),

which it characterized as involving facts "almost identical" to this case. CP at 37.

The superior court granted Premera's motion.

The Court of Appeals affirmed, even though it acknowledged that the record

contained conflicting evidence on the question of side effects, the sole issue before

the superior court on Premera's motion for summary judgment. Specifically, the

court stated, "[T]he record establishes there are peer-reviewed medical studies that

show the side effects of PBT may be superior to IMRT and other peer-reviewed

medical studies that show the side effects ofIMRT maybe superior to PBT." Strauss

V. Premera Blue Cross, 1 Wn. App. 2d 661, 683, 408 P.3d 699 (2017). It then

concluded that, because the record contained conflicting evidence on this issue, PBT

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Strauss v. Premera Blue Cross, 95449-6

and IMRT were equivalent treatments as a matter of law,"absent clinical evidence

directly comparing [them]." Id. at 683-84. We granted Strauss's petition for review.

Strauss v. Premera Blue Cross, 190 Wn.2d 1025 (2018).

ANALYSIS

We review summary judgments de novo. Ranger Ins. Co. v. Pierce County,

164 Wn.2d 545, 552, 192 P.3d 886(2008)(citing City ofSequim v. Malkasian, 157

Wn.2d 251, 261, 138 P.3d 943 (2006)). '"Summary judgment is appropriate when

"there is no genuine issue as to any material fact and ... the moving party is entitled

to a judgment as a matter of law.'"" Id. (alteration in original)(quoting Locke v.

City of Seattle, 162 Wn.2d 474, 483, 172 P.3d 705 (2007)(quoting CR 56(c))).

"When determining whether an issue of material fact exists, the court must construe

all facts and inferences in favor of the nonmoving party." Id. (citing Reid v. Pierce

County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998)).

As noted, there is no dispute that PBT costs more than IMRT and is equally

effective in curing prostate cancer. Nor is there any dispute over the meaning ofthe

insurance contract provision at issue here: for purposes of this appeal, the parties

agree that PBT is "medically necessary" if it results in fewer side effects than IMRT.

Thus, the sole question presented in this case is whether the Strausses raised a

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Strauss v. Premera Blue Cross, 95449-6

genuine issue of material fact as to PBT's relative superiority, in terms of side

effects, to IMRT.

Generally speaking, expert opinion on an ultimate question offact is sufficient

to establish a triable issue and defeat summary judgment. Eriks v. Denver, 118

Wn.2d 451,457, 824 P.2d 1207(1992)(citing Zamon v. McDonnellDouglas Corp.,

91 Wn.2d 345, 352, 588 P.2d 1346(1979)). However,"speculation and conclusory

statements will not preclude summary judgment." Volk v. DeMeerleer, 187 Wn.2d

241, 277, 386 P.3d 254 (2016)(citing Eicon Constr., Inc. v. E. Wash. Univ., 174

Wn.2d 157,169,273 P.3d 965 (2012)). "The expert's opinion must be based on fact

and cannot simply be a conclusion or based on an assumption if it is to survive

summary judgment." Id. (citing Melville v. State, 115 Wn.2d 34, 41, 793 P.2d 952

(1990)).

Evaluating the declarations on summary judgment, the Court of Appeals

concluded that the record contained conflicting evidence on the issue ofside effects:

"the record establishes there are peer-reviewed medical studies that show the side

effects of PBT may be superior to IMRT and other peer-reviewed medical studies

that show the side effects ofIMRT may be superior to PBT." Strauss, 1 Wn. App.

2d at 683. Yet, it concluded that PBT and IMRT were therefore equivalent

treatments as a matter oflaw,"absent clinical evidence directly comparing [them]."

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Strauss v. Premera Blue Cross, 95449-6

Id. at 683-84. In other words, the Court of Appeals held that the Strausses were

required to provide evidence in the form of randomized clinical trials in order to

defeat summary judgment. Id.

This holding was error. Requiring expert medical opinion testimony to be

based on a specific type of research goes beyond the court's limited role at the

summary judgment stage, which is simply to decide whether a trial is unnecessary.

See Reese v. Stroh, 128 Wn.2d 300, 307, 907 P.2d 282(1995)(trial court erred by

excluding medical expert testimony solely because it was not based on "statistically

significant studies" directly supporting expert's opinion). Indeed,Premera seems to

concede this point in some ofits briefing. See Premera Blue Cross's Resp.to Amicus

Br. of Wash. State Ass'n for Justice Found, at 4("[i]t is correct... that head-to-head

clinical trials are not required as a basis for medical opinion testimony [and that a]

doctor ... could opine based on his own observation"). There is no dispute that the

Strausses' experts were qualified to testify, only a dispute as to the weight or

credibility of their opinion testimony. The credit to be given to any witness's

testimony, including expert opinion testimony, is quintessentially a matter for the

trier of fact to determine. Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136,

146, 341 P.3d 261 (2014); see also Anderson v. Akzo Nobel Coatings, Inc., 172

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Strauss v. Premera Blue Cross, 95449-6

Wn.2d 593, 606, 260 P.3d 857 (2011) ("Evidentiary rules provide significant

protection against unreliable, untested, or junk science.").

Premera urges this court to embrace the United States District Court's

decision in Baxter and uphold summary dismissal. The insurance contract at issue

in Baxter had a "medical necessity" definition identical to the provision at issue in

this case. Baxter, 958 F. Supp. 2d at 1228-29. Like the Strausses, the plaintiff in

Baxter argued that the plan covered PBT "despite the lack of randomized clinical

trials comparing [PBT]to other forms of radiation therapy for treatment of prostate

cancer," because observational studies and theoretical models supported PBT's

superiority. Id. at 1232. The defendant-insurer countered that PBT was definitely

costlier than IMRT and had not been proved more effective. Id. at 1230. The court

ultimately agreed with the insurer, finding that, where "[n]o study cited by either

party provides statistically significant evidence that one therapy is superior to the

other," the plaintiff had not met his burden to prove PBT was "medically necessary."

Id. at 1238.

While the Court of Appeals found Baxter persuasive,^ we do not. The Baxter

court, considering cross motions for summary judgment on very similar facts.

'See Strauss, 1 Wn. App. at 683-84 (citing Baxter as the sole source of authority
for the conclusion that "reasonable minds could only conclude that absent clinical evidence
directly comparing PBT and IMRT,the treatments are equivalent").

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Strauss v. Premera Blue Cross, 95449-6

acknowledged that the evidence before it, in the form of observational studies,

theoretical models, and expert opinion, supported both parties' arguments. 958 F.

Supp. 2d at 1236-38. From this conflicted record, it erroneously concluded that PBT

and IMRT are therefore equivalent treatments as a matter oflaw, neither superior to

the other in terms of side effects or secondary malignancy. Id. at 1237 ("the Court

concludes that the record demonstrates that IMRT and [PBT] provide equivalent

cancer treatment with comparable side-effects"). In reaching that conclusion, the

court weighed the credibility of conflicting medical studies and essentially rejected

all of them;

While Plaintiff points to observational studies demonstrating that proton
therapy may slightly reduce certain side-effects in some situations, it appears
that it is just as likely to increase other side effects. . .. Plaintiff focuses on
studies involving mathematical modeling that show that the long-term risk
of developing a secondary malignancy may be higher with [PBT]. . . .
Defendants focus on comparative studies that show that other side-effects,
including gastrointestinal side-effects may be slightly more severe with
[PBT]. ... No study cited by either party provides statistically significant
evidence that one therapy is superior to the other.

Id. at 1237-38. This analysis reflects a weighing of conflicting evidence and is

exactly what the Court of Appeals did in this case.^ This is inappropriate at the

^ See id. at 683 (holding Dr. Laramore's expert opinion is insufficient to create a
genuine issue of material fact because "Dr. Laramore admits his opinion that PBT is
superior for the risk of contracting secondary cancers is 'theoretical' ...[and he] based his
opinion on the side effects from radiation to the rectal wall on one medical study"). It is
not clear why the court believed that an expert's inferences are insufficient if drawn from
a single study, but the questions begged by that conclusion—e.g., how many studies are

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Strauss v. Premera Blue Cross, 95449-6

summary judgment stage. Grove, 182 Wn.2d at 146. We decline to follow Baxter

and instead adhere to settled summary judgment principles under Washington law.

The trier offact, not the court, must determine whether PBT has a superior side effect

profile, making it "medically necessary" within the meaning ofthe insurance policy.

CONCLUSION

Because there is conflicting evidence in the record regarding the "medical

necessity" element ofthe Strausses' coverage claim, the trial court erred by granting

Premera's motion for summary judgment dismissal. We reverse the Court of

Appeals and remand to the trial court for further proceedings consistent with this

opinion.^

required to make an inference credible?—illustrate the manner in which the court assumed
the fact finder's role.
^ The Strausses have also requested attorney fees on appeal, but until coverage is
determined, this request is premature.

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Strauss v. Premera Blue Cross, 95449-6

WE CONCUR:

tuAA^ \ CC

16

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Strauss v. Premera Blue Cross

No. 95449-6

MADSEN,J.(dissenting)—The majority holds that the trial court erred in

granting insurer Premera Blue Cross summary judgment dismissal of John and Michelle
Strauss's insurance bad faith claim. I disagree. The summary judgment mechanism was

designed to address needless and costly trials where, after viewing the plaintiffs
assertions most favorably, reasonable minds could not differ as to the existence of

debatable facts. I agree with the Fifth Circuit Court of Appeals that "summary judgment

is appropriate in any case 'where critical evidence is so weak or tenuous on an essential
fact that it could not support a judgment in favor of the nonmovant.'" Little v. Liquid Air

Corp., 37 F.Bd 1069, 1075 (5th Cir. 1994){oyiotmg Armstrong v. City ofDallas, 997 F.2d

62,67(5th Cir. 1993)). "If the nonmoving party fails to meet [his] burden, the motion

for summary judgment must be granted." Id. at 1076. Fairness and judicial economy

require as much because "every hour of litigation is costly both to the parties and the

taxpayers, and the expense should not be incurred needlessly." Fontenot v. Upjohn Co.,

780 F.2d 1190, 1195 (5th Cir. 1986). As the Fifth Circuit court explained, noting the

backlog of cases and the high cost of litigation,
No. 95449-6
Madsen, J., dissenting

A plaintiff should not be required to wait indefinitely for a trial when the
defendant has a meritless defense that can be resolved on motion for
summaryjudgment. Nor should a defendant be required to bear the
uimecessary costs of delay and trial to defend against a claim that has no
merit. Neither party should be required to bear the costs of trying all of the
issues in a case when some can and should be resolved on summary
judgment. Nor is it fair to require other cases to languish on the district
courts' trial dockets because of cases that present no genuine questions of
material fact....
Notwithstanding the long history ofsummary judgment procedure,
some parties will always complain that summaryjudgment unfairly
deprives a party of the right to have the case heard by the trier of fact. No
one, however, should be heard to question the fairness ofrequiring a party
to meet basic evidentiary and procedural burdens in the trial of a case.
Summaryjudgment requires no more. If, after adequate time for discovery,
a party cannot produce proof that it has facts to support its case, then the
case should be resolved at that point, and this is true irrespective ofthe type
of case.

Little, 37 F.3d at 1076. Moreover, the Supreme Court has explained that when the

summaryjudgment movant has carried its burden,"its opponent must do more than

simply show that there is some metaphysical doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d

538 (1986). "[T]he nonmoving party must come forward with 'specific facts showing

that there is a. genuine issuefor trial.^" Id. at 587(quoting FED.R. CiV.P. 56(e)).^

"[The] purpose ofsummary judgment is to 'pierce the pleadings and to assess the proof

in order to see whether there is a genuine need for trial.'" Id.(quoting Fed. R. CiV.P.

56(e) advisory committee's note to 1963 amendment). "Where the record taken as a

whole could not lead a rational trier of fact to find for the nonmoving party, there is no

'Our equivalent state rule contains the same requirement. See CR 56(e).

2
No. 95449-6
Madsen, J., dissenting

'genuine issue for trial.'" Id. First Nat'l Bank ofAriz. v. Cities Serv. Co., 391

U.S. 253, 289, 88 S. Ct. 1575, 20 L. Ed. 2d 569(1968)); cf. Cash & Henderson Drugs,

Inc. V. Johnson & Johnson, 799 F.3d 202,209(2d Cir. 2015)(the summary judgment

phase is particularly important in antitrust matters because ofthe high cost of antitrust

litigation and its potential chilling effect on the market as a whole).

This court has made clear that while "a court must deny summaryjudgment when

a party raises a material factual dispute[, t]he legal inquiry shapes what is a material

fact." Smith v. Safeco Ins. Co., 150 Wn.2d478,485-86, 78 P.3d 1274(2003)(citation

omitted). Here, the majority reverses because it says that "the Court of Appeals held that

the Strausses were required to provide evidence in the form of randomized clinical trials

in order to defeat summary judgment." Majority at 7. That is not a fair characterization

ofthe Court of Appeals' decision. Fairly read, the Court of Appeals held that under the

record before the trial court, the Strausses did not(and could not) meet their burden. I

agree with that conclusion.

The Strausses (hereafter Strauss) sued Premera Blue Cross for breach of contract,

bad faith, and violation of the Consumer Protection Act, chapter 19.86 RCW,contending

that Premera's "denial [of insurance coverage] was without reasonable justification and

therefore in bad faith."^ Clerk's Papers(CP)at 8. "If the insured claims that the insurer

denied coverage unreasonably in bad faith, then the insured must come forward with

^ John Strauss chose to pursue, and sought coverage for, a radiation treatment called proton beam
therapy(PBT),rather than pursuing intensity modulated radiation therapy(IMRT),for his
prostate cancer. The parties agree that either therapy is effective for treating prostate eaneer, but
PBT is more costly.
No. 95449-6
Madsen, J., dissenting

evidence that the insurer acted unreasonably." Smith, 150 Wn.2d at 486. "The

policyholder has the burden of proofi, and t]he insurer is entitled to summaryjudgment if

reasonable minds could not differ that its denial of coverage was based upon reasonable

grounds." Id.

Here, Premera's denial-of-coverage decision was reviewed, scrutinized, and

upheld on three separate requests for appeal by Strauss. Those reviews were performed

by two different independent radiation oncologists and an independent review

organization selected by the Washington State Office of the Insurance Commissioner. In

light of such extensive review and consistent result, in my view, reasonable minds could

not differ regarding the reasonableness ofPremera's denial-of-coverage decision.

Further, the majority, noting the trial court's "limited role at the summary

judgment stage," see majority at 7, relies on the general rule that an expert opinion is

sufficient to raise a material fact question adequate to defeat summary judgment. See id.

at 6(citing Eriks v. Denver, 118 Wn.2d 451, 457, 824 P.2d 1207(1992)). While in many

cases this may be true, speculation and conclusory statements do not raise a question of

material fact and will not preclude summary judgment. Volk v. DeMeerleer, 187 Wn.2d

241, 277, 386 P.3d 254(2016). "The expert's opinion must be based on fact and cannot

simply be a conclusion or based on an assumption if it is to survive summary judgment."

Id.', see also Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886(2008)

(the nonmoving party may not rely on speculation or argumentative assertions that

unresolved factual issues remain). In Volk, this court also "reject[ed] the view that there
No. 95449-6
Madsen, J., dissenting

are differing standards ofspeculation permitted at the summary judgment and evidentiary
phases." 187 Wn.2d at 276 (emphasis added). Speculation is always speculation.
Here, as discussed below, Strauss's experts acknowledge that their opinions on the

superiority of proton beam therapy(PBT)as to side effects are no more than

assumptions, theories, and speculations. Under these circumstances, I disagree that a

material fact question is present in this case.

This court construes insurance policies as contracts. Quadrant Corp. v. Am. States

Ins. Co., 154 Wn.2d 165, 171, 110 P.3d 733 (2005). "[I]f the policy language is clear and

unambiguous, we must enforce it as written." Id. Here, the insurance policy in question

covers radiation therapy services, but only if the services provided are, in "our

[(Premera's)]judgment,""medically necessary." CP at 177, 186. The policy defines

"medically necessary" as those "covered services ... that a physician, exercising prudent

clinical judgment, would provide to a patient" for the treatment of a disease, and that are

•In accordance with generally accepted standards of medical
practice;
•Clinically appropriate, in terms of type, frequency, extent, site and
duration, and considered effective for the patient's illness, injury or
disease; and
•Not primarily for the convenience of the patient, physician, or other
health care provider, and not more costly than an alternative service
. . . at least as likely to produce equivalent therapeutic or diagnostic
results as to the diagnosis or treatment of that patient's illness,
injury or disease.
For these purposes, "generally accepted standards of medical practice"
means standards that are based on credible scientific evidence published in
peer reviewed medical literature generally recognized by the relevant
medical community, physician specialty society recommendations and the
views of physicians practicing in relevant clinical areas and any other
relevant factors.
No. 95449-6
Madsen, J., dissenting

Id. at 212(emphasis added). There is no dispute that both PBT and intensity modulated
radiation treatment(IMRT)provide effectual treatment to arrest Strauss s prostate cancer.

There is also no dispute that PBT is more expensive than IMRT. Accordingly, if Strauss
cannot show that PBT is otherwise superior to IMRT,i.e., that PBT has a superior side

effects profile, he has failed to show that PBT is medically necessary for coverage

purposes. See Overton v. Consol. Ins. Co., 145 Wn.2d 417,431-32, 38 P.3d 322(2002)
("The burden first falls on the insured to show its loss is within the scope ofthe policy's

insured losses."). Accordingly, Strauss bears the burden to show that his PBT treatment

was medically necessary.

At this summary judgment stage, Strauss must meet his burden to create a genuine

issue of material fact regarding the medical necessity ofPBT treatment to forestall

summary judgment. He has not done so. "An issue of material fact is genuine if the

evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party."

Keck V. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080(2015). In other words, there is a

genuine factual dispute "where reasonable minds could differ on the facts controlling the

outcome ofthe litigation." Ranger, 164 Wn.2d at 552. In my view, as noted, reasonable

minds could not differ here. This is not the typical battle-of-the-experts case where

opposing views can claim legitimate support in the relevant scientific, medical, or expert

communities. Here, there is no dispute in the radiation oncology community that PBT is

not a medically necessary treatment for prostate cancer. Nor is PBT a new technology. It
No. 95449-6
Madsen, J., dissenting

was first used in the 1950s. CP at 421. It is, however, a more expensive form of

radiation therapy.

The National Comprehensive Cancer Network(NCCN), an alliance of leading

cancer centers across the country, drafts guidelines for the treatment of cancer. Id. at

416-18, 420. These "guidelines are developed based on testing, and evidence through

panels of expert physicians in the field of cancer treatments and reflect a consensus

reached by these physicians on current approaches and standards for the treatment of

cancer." Lucas v. Texas Int'I Life Ins. Co., No. CIV-11-163-FHS, 2012 WL 6000306, at

*2(E.D. Okla. Nov. 30, 2012)(court order). NCCN guidelines are "the standard of care

for the treatment of cancer." Id. NCCN's Clinical Practice Guidelines in Oncologyfor

Prostate Cancer conclude that "there is no clear evidence supporting a benefit or

decrement to [PBT] over IMRT for either treatment effieaey or long-term toxicity." CP

at 368(NCCN Guidelines 2015). NCCN's patient guidelines similarly note that "[t]o

date, research hasn't shown that[PBT] is any better or worse for treating cancer or

causing side effects." Id. at 482.

Similarly, the American Society for Radiation Oncology(ASTRO)publishes a

model policy on PBT. Concerning the treatment for prostate cancer, ASTRO concludes,

"There is no clear evidence that[PBT]for prostate cancer offers any clinical advantage

over other forms of definitive radiation therapy." Id. at 642. ASTRO recommends PBT

serve as a primary treatment for prostate cancer "only . . . within the context of a

prospective clinical trial or registry." Id. at 368, 642.
No. 95449-6
Madsen, J., dissenting

Likewise, the Agency for Healthcare Research and Quality(AHRQ),part ofthe

United States Department of Health and Human Services, also publishes guidelines on

PBT for cancer treatment. Id. at 646-50. These guidelines are a "synthesis of currently

accepted approaches to management, derived from a review of relevant scientific

literature." Id. at 648. The AHRQ guidelines state,"Members ofthe working group do

not currently recommend that patients with prostate cancer ... be referred for [PBT], due

to an insufficient evidence base." Id. at 648. Accordingly, the record before the trial

court can be construed only to reflect a clear consensus within the oncological

community that PBT is not a medically necessary treatment for Strauss's prostate cancer.

Further, as noted, the equivocal opinions offered by Strauss from the physician

providing Strauss the PBT treatments at Loma Linda (Dr. David Bush) and Strauss's

expert(Dr. George Laramore), in my view, do not create a fact question in light ofthe

strong consensus in the radiation oncology community as discussed above. The record

shows that at deposition when Dr. Bush was asked,"As between IMRT and [PBT], is it

your opinion that there is a difference in these side effects?" id. at 905, he responded,

"[T]hat's a hard question to answer. There's data to support, I think, both sides." Id. Dr.

Bush further opined, regarding the state of evidence suggesting that side effects are

substantially less with PBT,"I would say the evidence as of today is not as strong as we

would like to see." Id. In light of such ambivalence, I agree with Premera that the

provision of such an equivocal opinion is insufficient to forestall summary judgment. See

Premera Blue Cross's Suppl. Br. at 16 (citing Bickoffv. Wells Fargo Bank, NA,705 F.
No. 95449-6
Madsen, J., dissenting

App'x 616,618(9th Cir. 2017), for the proposition that "equivocal and speculative
statements" are insufficient to defeat a summary judgment motion).

Similarly, Dr. Laramore conceded that his conclusion that PBT has fewer side
effects is "theoretical," based on "assumptions" and "infer[ences]" drawn from the

literature. CP at 657; see also id. at 1342(Laramore report acknowledging "there have

not been direct randomized trials ... but rather one must review the literature to infer the

advantages and disadvantages"(emphasis added)). Further, Laramore's report, submitted
in response to Premera's summary judgment motion, acknowledges that PBT treatments
for prostate cancer results in higher radiation doses to hip joints than IMRT treatments.

Id. at 1348. In my view, on this record, the equivocal opinions offered by Strauss do not

overcome the clear consensus among the radiation oncological community that PBT is

not medically necessary for the treatment of prostate cancer like Strauss's. Accordingly,

on this record, the trial court did not err in granting Premera summary judgment. See

Meyer v. Univ. of Wash., 105 Wn.2d 847, 852, 719 P.2d 98(1986)("nonmoving party in

a summary judgment may not rely on speculation [or] argumentative assertions that

unresolved factual issues remain"); Kyreacos v. Smith, 89 Wn.2d 425,429, 572 P.2d 723

(1977)("Facing a motion for summary judgment, a party cannot rely upon speculation

and allegations to meet contrary facts.").

Finally, the majority dismisses Baxter v. MBA Group Insurance Trust Health &

Welfare Plan, 958 F. Supp. 2d 1223(W.D. Wash. 2013), but I agree with the federal

district court's opinion. In Baxter, the United States District Court for the Western
No. 95449-6
Madsen, J., dissenting

District of Washington addressed the same PBT coverage issue presented here, which

turned on the same poliey language defining "medically necessary." See id. at 1228-29.

Like Strauss, the plaintiff in Baxter chose PBT treatment at Loma Linda, and like

Strauss's case here, his elaim and appeals were denied on the basis of his policy's

"medically necessary" requirement because the '"clinical outcomes with this treatment

[(PBT)] have not been shown to be superior to other approaches including intensity

modulated radiation therapy (IMRT)."' Id. at 1225. The plaintiff in Baxter submitted

letters from his treating physician at Loma Linda and Dr. Laramore, the same expert that

Strauss relies on here. Id. at 1226.

The federal district court granted summary judgment to the insurer, concluding as

a matter of law that PBT was not "medically necessary" under the policy. The district

court held, "Plaintiff has not met his burden to show that there is a genuine issue of

material fact whether proton therapy is superior to IMRT. The current non-randomized

observational studies demonstrate that proton therapy provides equivalent treatment to

IMRT in terms of caneer control and side-effects." Id. at 1237. In reaching its

conclusion, the federal district court held that

inconsisteneies in the eurrent observational studies eomparing [PBT] with
other modalities of treatment for prostate eancer are consistent with the
NCCN's conclusion that the use of[PBT] is not recommend[ed] for routine
use in the treatment of early stage prostate cancer at this time "sinee clinical
trials have not yet yielded data that demonstrates superiority to, or
equivalence of,[PBT] and conventional external beam for treatment of
prostate cancer."

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No. 95449-6
Madsen, J., dissenting

Id. The district court found that "[n]o study cited by either party provides statistically

significant evidence that one therapy is superior to the other." Id. at 1238.

As Premera correctly points out, Baxter is based on equivalent medical evidence

presented in this case, from "the same clinic that treated Strauss and from the same expert

that Strauss presents, and applied the same [policy] definition of'medically necessary' at

issue here." Premera Blue Cross's Suppl. Br. at 19. I agree thai Baxter is properly

decided and persuasive in this case. Like the insured in Baxter, Strauss "has not met his

burden to prove that[PBT] was covered under the relevant policy language." Baxter, 958

F. Supp. 2d at 1238.

In sum, based on this record and for the reasons discussed above, in my view, the

trial court did not err in granting summary judgment to Premera. Accordingly, I dissent.

11
No. 95449-6
Madsen, J., dissenting

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