UNITED STATES COURT OF APPEALS For the Fifth Circuit ___________________________

No. 96-30601 Summary Calendar __________________________

CONNIE DONALDSON, wife of/and JOHN DONALDSON,

Plaintiffs-Appellants,

VERSUS

LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY D/B/A BLUE CROSS BLUE SHIELD OF LOUISIANA

Defendant-Appellee. ___________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (94-CV-1821-F) __________________________________________ December 30, 1996 Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

PER CURIAM:*

Connie D. Donaldson and John D. Donaldson, the appellees, were

participants in an employee welfare benefit plan issued through Mr.

Donaldson’s employer, Jones Brothers Supply, Inc. Blue Cross Blue

Shield, the appellant, issued a group medical benefits policy

covering that plan. Mrs. Donaldson was covered under the policy

issued by Blue Cross Blue Shield effective April 1, 1993.

On July 5, 1993, Mrs. Donaldson sought emergency treatment in

* Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to this Rule, the Court has determined that this opinion should not be published. the East Jefferson Emergency Room for severe epigastric pain

radiating to her back, nausea, and vomiting. She relayed to the

treating physician that she had been experiencing intermittent

abdominal pain which felt like “gas” over the past 11 months, just

two months after she delivered a baby. She was diagnosed with

gallstones by the use of ultrasound, but her symptoms subsided and

she was discharged. On July 8, 1993, Mrs. Donaldson again went to

the emergency room with similar pain, nausea and vomiting. The

pain subsided and she was once again discharged. On July 13, 1993,

Mrs. Donaldson was readmitted and Dr. Richard Karlin performed an

endoscopic cholecystectomy (surgical removal of the gallbladder).

Blue Cross denied coverage claiming that Mrs. Donaldson’s illness

fell under the pre-existing condition exclusion of the Blue Cross

policy.

Dr. Richard M. Karlin, Mrs. Donaldson’s treating physician,

submitted a letter stating that Mrs. Donaldson was a woman who had

no proven history of gall stones and that her condition was not

pre-existing. Dr. William M. Meyers, her emergency room physician,

wrote a letter clearly stating that Mrs. Donaldson’s gall bladder

symptoms arose shortly before her hospitalization. Blue Cross

still denied coverage. The Donaldsons filed suit and the case was

removed under the Employee Retirement Income Securities Act of

1974,

, et seq. The plaintiffs then moved for

summary judgment. A hearing took place on May 3, 1995, wherein Magistrate Judge

Ivan Lemelle of the Eastern District of Louisiana, granted

plaintiffs’ motion and remanded the case to Blue Cross for further

investigation into the existence of a pre-existing condition.

On remand, Blue Cross’s Medical Director, Dr. J.G. Gengelbach

reviewed the claim and affirmed the denial of coverage. Dr.

Gengelbach’s conclusion was based on the assertion that pregnant

patients “generally” become symptomatic after delivery and that

this appeared to be the case with Mrs. Donaldson. No further

investigation was conducted by Blue Cross.

The plaintiffs then filed a motion for summary judgment and

Blue Cross filed a cross motion for summary judgment. A hearing

was held before Magistrate Judge Lemelle on May 1, 1996. On June

12, 1996, he granted plaintiffs’ motion and denied Blue Cross’s

motion.

Upon applying the applicable standard of review and reviewing

the facts in the record as well as the parties’ briefs, we find

that, under the law, the lower court did not err in granting

plaintiffs’ summary judgment or awarding attorney’s fees.

AFFIRMED.