CINCINNATI — A split Sixth Circuit U.S. Court of Appeals panel on Oct. 27 ruled that a penalty imposed by the Centers for Medicare & Medicaid Services (CMS) against a nursing facility for failure to consider increasing staff after patient falls increased was arbitrary and capricious because the facility was given no fair notice that it must make such considerations (Golden Living Center – Mountain View v. Secretary of Health and Human Services, et al., No. 19-3755, 6th Cir., 2020 U.S. App. LEXIS 33997).
OTTAWA, Ill. — A divided Illinois panel on Nov. 6 affirmed a lower court’s dismissal of a father’s petition to terminate visitation between his minor daughter and her grandmother, finding that the grandmother met her burden of demonstrating that termination of visitation would cause the child undue harm and that the trial court adequately weighed the presumption in favor of a fit parent’s decisions regarding grandparent visitation (Przemyslaw W. v. Nicole Antionette A., et al., No. 3-19-0734, Ill. App. 3rd Dist., 2020 Ill. App. Unpub. LEXIS 1879).
RIVERHEAD, N.Y. — Four New York justices, all 70 or older, and one attorney filed a complaint in a New York court on Nov. 5, alleging that the termination of their services, allegedly due to budgetary constraints, constitutes age discrimination and violation of the state constitution (Hon. Ellen Gesmer, et al. v. The Administrative Board of the New York State Unified Court System, et al., No. 616980/2020, N.Y. Sup., Suffolk Co.).
SYRACUSE, N.Y. — A federal judge in New York on Nov. 5 denied health care proxies’ motion for a temporary restraining order (TRO) to enjoin a hospital from removing a brain-dead woman from a ventilator and requiring it to provide the woman with additional life-sustaining care, finding that the plaintiffs have not shown a serious question on the merits on any of their claims (Carol Thomas, et al. v. Mohawk Valley Health System, et al., No. 20-1347, N.D. N.Y., 2020 U.S. Dist. LEXIS 206934).
ST. PAUL, Minn. — An employee of more than 40 years who was fired after allegedly making several mistakes failed to show that she was discriminated against due to her age or in retaliation for alleging age bias, an Eighth Circuit U.S. Court of Appeals panel ruled Oct. 23 (Julie McKey v. U.S. Bank National Association, No. 19-2638, 8th Cir., 2020 U.S. App. LEXIS 33398).
RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on Nov. 2 affirmed a district court’s ruling that a decedent’s wife and not the trustee of the decedent’s estate is entitled to the proceeds of the decedent’s 401(k) plan because the marriage was never declared void while the decedent was alive as required under applicable Virginia law (Lyon Shipyard 401[k] Plan et al., v. Minwer H. Subeh et al., No. 19-2013, 4th Cir., 2020 U.S. App. LEXIS 34544).
TAMPA, Fla. — A personal representative’s claims that a man’s death from COVID-19 was the result of nursing home negligence do not fall under the Public Readiness and Emergency Preparedness (PREP) Act, a federal judge in Florida found Oct. 29, remanding her suit to state court (Jessica A. Gunter v. CCRC OPCO-Freedom Square, LLC, et al., No. 20-1546, M.D. Fla., 2020 U.S. Dist. LEXIS 201622).
SAN FRANCISCO — A month after a California federal judge dismissed her lawsuit alleging age and sex discrimination in Facebook Inc.’s dissemination of financial services advertisements, a Washington, D.C., woman on Nov. 2 voluntarily dismissed her suit, opting against amending her putative class complaint against the social network (Neuhtah Opiotennione v. Facebook Inc., No. 19-7185, N.D. Calif.,).
WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 2 denied a petition for writ of certiorari, refusing to review whether a surviving spouse waived her rights to her spouse’s pension plan, governed by the Employee Retirement Income Security Act, pursuant to an antenuptial agreement signed by the husband and wife before their marriage (Zhiheng Sheng v. Daniel Michael Snyder, No. 20-188, U.S. Sup., 2020 U.S. LEXIS 5236).
WASHINGTON, D.C. — The U.S. Supreme Court on Nov. 2, on Justice Amy Coney Barrett’s first day hearing oral arguments, heard from attorneys representing a former railroad worker who was injured on the job and the U.S. Railroad Retirement Board on whether the denial of a worker’s request to reopen a benefits request under the Railroad Unemployment Insurance Act (RUIA) and the Railroad Retirement Act (RRA) is subject to judicial review (Manfredo M. Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup.).
NEW YORK — A federal judge in Connecticut incorrectly granted relief to Medicare beneficiaries placed on observation status after being admitted to the hospital as inpatients because they lack standing, improperly allowed the case to proceed as a class action and erred in concluding that the changed status constitutes a governmental deprivation of property, the secretary of Health and Human Services (HHS) tells the Second Circuit U.S. Court of Appeals in an Oct. 27 appellant brief (Lee Barrows, et al. v. Alex Azar, No. 20-1642, 2nd Cir.).
RALEIGH, N.C. — A federal judge in North Carolina on Oct. 21 denied class certification to residents of an assisted living facility who claim that the services the facility provides do not meet their needs, finding that individualized issues regarding injury predominate over common issues (William H. Bartels, et al. v. Saber Healthcare Group LLC, et al., No. 16-283, E.D. N.C., 2020 U.S. Dist. LEXIS 195281).
ATLANTA — Based on the U.S. Supreme Court’s limited consideration of a Veterans Affairs pharmacist’s claims, the 11th Circuit U.S. Court of Appeals is bound by Trask v. Secretary, Department of Veterans Affairs and must apply the but-for causation standard to federal-sector Title VII of the Civil Rights Act of 1964 retaliation cases, the VA secretary argues in an Oct. 22 supplemental brief filed in the appellate court, adding that even if the court is not bound by that ruling, the outcome would not change (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).
PASADENA, Calif. — A salesperson may proceed with his age bias claim against his former employer after offering sufficient evidence to create a credibility question concerning his performance problems that were cited as the reason for termination, a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 20 (Ronald Pineda v. Abbott Laboratories Inc., et al., No. 19-55019, 9th Cir., 2020 U.S. App. LEXIS 33044).
CINCINNATI — A trial court correctly applied the test for testamentary capacity to determine whether a woman with dementia had the mental capacity to designate a beneficiary for her individual retirement account, an Ohio appellate panel ruled Oct. 21, affirming the lower court’s grant of judgment in favor of her son (Kimberly Webb v. The Betty S. Anderson Children Trust, et al., No. C-190600, Ohio App., 1st Dist., 2020 Ohio App. LEXIS 3810).
WEST PALM BEACH, Fla. — A resident’s tort claims against a Florida nursing home related to injuries she sustained when the facility lost power to its air conditioning units during Hurricane Irma must be arbitrated, a state appellate panel affirmed Oct. 21, finding that the woman’s claims “relate to” the facility’s agreement to provide her with care and nursing services (Christine Cooper v. Rehabilitation Center at Hollywood Hills LLC, et al., No. 4D20-163, Fla. App., 4th Dist., 2020 Fla. App. LEXIS 14945).
HELENA, Mont. — The Montana Supreme Court on Sept. 22 ruled that a woman did not exceed her authority as power of attorney for her late husband and that he was mentally competent when he entered into the marriage the day before he died, upholding a lower court’s decision to confirm and admit to probate the decedent’s will and to appoint the wife as representative of the estate (In Re: Daniel Cook, No. 19-0525, Mont. Sup., 2020 Mont. LEXIS 2345).
SAN FRANCISCO — A split Ninth Circuit U.S. Court of Appeals panel on Oct. 13 denied a marine painting and sandblasting company’s petition for rehearing after a split panel ruled that its reduction of pension payments without bargaining violated the National Labor Relations Act (NLRA) and, on the same day, that the company filed notice of a pending Chapter 11 case (Delta Sandblasting Company, Inc. v. National Labor Relations Board, No. 18-73097, 9th Cir., 2020 U.S. App. LEXIS 32272).
OKLAHOMA CITY — In an Oct. 13 ruling, the Oklahoma Supreme Court upheld the denial by a trial court of an estranged wife’s request for a temporary restraining order (TRO) barring her children from assuming control of her late husband’s burial (Dayna Foresee v. Jeremy Foresee, et al., No. 118599, Okla. Sup., 2020 Okla. LEXIS 93).
LOS ANGELES — A nursing home, its owner and a doctor on Oct. 9 filed notices alerting a California federal court that they are appealing to the Ninth Circuit U.S. Court of Appeals the court’s order remanding a COVID-19 wrongful death and negligence suit against them to state court (Emma Martin, et al. v. Serrano Post Acute LLC, et al., No. 20-5937, C.D. Calif.).