Mealey's Elder Law

  • December 05, 2019

    8th Circuit Upholds Ruling For Law Firm In Case Over Mandatory Retirement Age

    ST. LOUIS — An equity partner failed to show that a law firm’s requirement that partners retire at age 70 violates the Age Discrimination in Employment Act (ADEA) as the equity partner wasn’t an “employee,” an Eighth Circuit U.S. Court of Appeals panel ruled Dec. 3, noting that the status of an equity partner was one of first impression for the court (Joseph S. von Kaenel v. Armstrong Teasdale, LLP, No. 18-2850, 8th Cir., 2019 U.S. App. LEXIS 35854).

  • December 04, 2019

    Illinois Appellate Panel Revives Nursing Home Suit, Finds Claims Not Time-Barred

    CHICAGO — An Illinois appellate panel on Nov. 27 reversed the dismissal of a personal injury action against a nursing home filed by the administrator of a resident’s estate, disagreeing with the ruling in Giles v. Parks, on which the trial court relied to determine that the claims were untimely (Radoslaw Mickiewicz v. Generations At Regency, LLC, et al., No. 1-18-1771, Ill. App., 1st Dist., 2019 Ill. App. Unpub. LEXIS 2185).

  • December 03, 2019

    Judge Preliminarily Approves Class Settlement With Florida Assisted Living Facilities

    MIAMI — A federal judge in Florida on Nov. 13 granted preliminary approval of a settlement to resolve claims that Brookdale Senior Living Inc. misrepresented the way it determines staffing needs at its assisted living facilities in the state and preliminarily certified a settlement class, finding that resolution by class action is “superior to other available methods for the fair and efficient adjudication” of the controversy (Julie Goddard, et al. v. Brookdale Senior Living Inc., No. 17-cv-60664, S.D. Fla.).

  • December 03, 2019

    Georgia Judge: Jury Verdict Not Inconsistent; Challenge Waived

    MARIETTA, Ga. — A Georgia judge on Nov. 14 entered judgment in favor of a son who prevailed at a recent jury trial on allegations that a nursing home, a hospice care provider and their employees contributed to the wrongful death of his mother (Gary Alexander v. American Grace Healthcare Services Inc., et al., No. 15-A-2421-5, Ga. State, Cobb Co.).

  • December 02, 2019

    2nd Circuit Affirms Dismissal Of Discrimination Suit For Lack Of Evidence

    NEW YORK — The Second Circuit U.S. Court of Appeals on Nov. 22 upheld the dismissal of an age and disability discrimination lawsuit saying two former U.S. Postal Service employees failed to make a prima facie case that their employers discriminated against them due to their age or retaliated when they complained about ill treatment (Mary Hatch v. Postmaster General Megan J. Brennan, No. 18-2387, 2ndCir., 2019 U.S. App. LEXIS 34840).

  • November 27, 2019

    Judge: Woman Failed To Show Habeas Relief For Herself, Her Elderly Mother

    PHILADELPHIA — A federal judge in Pennsylvania on Nov. 18 found that habeas relief does not apply to a woman who is challenging a guardianship decision concerning her elderly mother because she is not in custody, that the woman, as a non-attorney, cannot proceed on behalf of her mother and that a state trial judge is protected by judicial immunity (Mary Bush, et al. v. Judge Katherine B.L. Platt, No. 19-4414, E.D. Pa.).

  • November 26, 2019

    W.Va. High Court Remands Visitation Rights Case, Cites Lack Of Evidentiary Hearing

    CHARLESTON, W.Va. — West Virginia’s Supreme Court of Appeals on Nov. 19 reversed and remanded an order granting visitation rights to grandparents, directing the family court to remedy a “concerning” court record that it said lacked sufficient evidence for a proper ruling (Meagan S. v. Terry S., et al., No. 18-0764, W.Va. Sup. App., 2019 W. Va. LEXIS 596).

  • November 25, 2019

    VA Secretary To U.S. Supreme Court: ADEA Requires But-For Showing

    WASHINGTON, D.C. — The text of Age Discrimination in Employment Act (ADEA) Section 633a(a) and U.S. Supreme Court precedent require that an employee alleging age discrimination must show that bias was the but-for cause of the action he or she is challenging, the secretary of Veterans Affairs argues in his Nov. 22 respondent brief filed in the U.S. Supreme Court (Noris Babb v. Robert Wilkie, No. 18-882, U.S. Sup.).

  • November 19, 2019

    Divided Oregon Appellate Court Affirms That ‘Children’ In Will Excludes Stepchildren

    SALEM, Ore. — The majority of the en banc Oregon Court of Appeals on Nov. 14 affirmed a probate court’s ruling that the term “my children” in a woman’s will did not refer to her stepchildren; however three judges dissented, agreeing with the stepchildren that the use of the term in the will is ambiguous (Sandra Garcia, et al v. Sheila Rose Clark, No A16588, Ore. App., 2019 Ore. App. LEXIS 1491).

  • November 15, 2019

    California Panel:  No Arbitration In Nursing Home Wrongful Death Case

    RIVERSIDE, Calif. — Noting that it disagreed with both the trial court’s reasoning and the respondent’s argument on appeal, a California appellate panel in a Nov. 12 unpublished opinion nevertheless affirmed an order denying the petition of a nursing home licensor and owner to compel arbitration in a wrongful death case based on the doctrine of implied findings (Jose Duran Padilla, et al. v. Knolls West Post Acute, LLC, et al., No. E072025, Calif. App., 4th Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 7473).

  • November 14, 2019

    U.S. Supreme Court Won’t Review ADEA Protection For Applicants

    WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 7 denied a petition for a writ of certiorari filed by a job applicant who was denied an interview based on his excessive years of experience and argued that his age bias claim was erroneously rejected by a divided en banc Seventh Circuit U.S. Court of Appeals (Dale E. Kleber v. CareFusion Corporation, No. 18-1346, U.S. Sup.).

  • November 14, 2019

    Pennsylvania High Court Clarifies Scope Of Orphans’ Court Property Appeals

    HARRISBURG, Pa. — In an Oct. 31 holding in a dispute between heirs, the Pennsylvania Supreme Court held that an interest in real or personal property is appealable as of right under Pennsylvania Rule of Appellate Procedure 342(a)(6), Pa. R.A.P. 342(a)(6), and that failure to file an immediate appeal results in waiver of a later challenge (In re Estate of Sophia M. Krasinski, No. 40 WAP 2018, Pa. Sup., 2019 Pa. LEXIS 6119).

  • November 14, 2019

    Marketing Company, Owner Indicted For Scheme To Defraud Elderly Patients

    AUGUSTA, Ga. — A man and his marketing company were indicted in federal court in Georgia on Nov. 7 for engaging in a scheme in which they paid illegal kickbacks to workers who solicited elderly patients for medically unnecessary genetic testing that was then fraudulently billed to Medicare (United States v. Patrick Siado, et al., No. 19-cr-149, S.D. Ga.).

  • November 13, 2019

    HHS Secretary: No Protected Interest For Class Over Medicare Hospital Designation

    HARTFORD, Conn. — The secretary of Health and Human Services in an Oct. 31 post-trial brief tells a Connecticut federal court that a class of Medicare recipients have no protected property interest and no “state action” concerning the classification of their hospital services under Medicare rules (Christina Alexander, et al. v. Alex M. Azar II, No. 11-1703, D. Conn.).

  • November 13, 2019

    Class Complaint Alleges Age, Sex Discrimination In Facebook Financial Ads

    SAN FRANCISCO — A putative class action filed Oct. 31 in California federal court alleges that Facebook Inc. has facilitated and encouraged financial services providers to discriminate in violation of California’s Unruh Civil Rights Act by specifically targeting their advertisements to exclude women and older people from receiving them (Neuhtah Opiotennione v. Facebook Inc., No. 3:19-cv-07185, N.D. Calif.).

  • November 12, 2019

    Panel Vacates Ruling In Will Contest, Remands For Undue Influence Determination

    PHILADELPHIA — A lower court erred failing to qualify a nurse as an expert in caring for Alzheimer’s and dementia patients and in failing to find that a woman suffered from a weakened intellect in the period leading up to the execution of her will, a Pennsylvania Superior Court panel found Nov. 7, vacating a lower court’s ruling in a will contest and remanding for the court to determine whether the will proponents can establish the absence of undue influence (Estate of Stella Fabian, No. 2804 EDA 2018, Pa. Super, 2019 Pa. Super. LEXIS 1109).

  • November 12, 2019

    State Agency: Garnishments Are Included When Calculating Medicaid Liability

    WASHINGTON, D.C. — The Indiana Family and Social Services Administration (FSSA) tells the U.S. Supreme Court in a response brief filed Nov. 8 that it does not need to review a state appeals panel’s ruling that a Medicaid agency can include garnishments to a man’s income when calculating how much he is required to pay for nursing home services, explaining that the decision does not conflict with federal law (Lance Patterson v. Indiana Family and Social Services Administration, No. 19-181, U.S. Sup.).

  • November 07, 2019

    Georgia Panel Vacates, Reverses Rulings In Nursing Home Wrongful Death Action

    ATLANTA — A trial court erred in dismissing as improper parties two nursing home companies from a negligence, premises liability and wrongful death suit without allowing the administrator of the decedent’s estate to conduct discovery because its ruling constituted an award of summary judgment to the companies, a Georgia appellate panel held Nov. 4, reversing in part and vacating in part (Donna Andrews v. Blue Ridge NH Associates, LLC, et al., No. A19A1916, Ga. App., 1st Div., 2019 Ga. App. LEXIS 667).

  • November 07, 2019

    5th Circuit Affirms Dismissal Of Wrongful Death Suit Against Assisted Living Facility

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Nov. 4 affirmed the dismissal with prejudice of a wrongful death suit against an assisted living facility, finding that the decedent’s family’s second amended complaint was “insufficient to support a plausible inference” that the facility’s administration of an antipsychotic drug was the likely cause of the woman’s fatal pneumonia (Mack Peterson, et al. v. Silverado Senior Living, Incorporated, No. 19-20072, 5th Cir., 2019 U.S. App. LEXIS 33082).

  • November 07, 2019

    11th Circuit Finds Secretary’s Comparators In Bias Suit Were Insufficient

    ATLANTA — A school secretary whose job required her to be at her desk during her entire shift couldn’t point to other workers without that requirement as comparators, an 11th Circuit U.S. Court of Appeals panel ruled Nov. 5, affirming a summary judgment ruling for the employer on race and age bias claims (Anita Smith v. Vestavia Hills Board of Education, No. 18-11626, 11th Cir., 2019 U.S. App. LEXIS 32997).