Mealey's Elder Law
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April 27, 2022
2nd Circuit: Panel To Decide Nursing Home Dismissal Motion Of COVID Death Appeal
BROOKLYN, N.Y. — The Second Circuit U.S. Court of Appeals on April 12 lifted the stay of an appeal pending a son’s reinstatement of a state court wrongful death suit against a nursing home where his father contracted COVID-19 and died after the son filed a new state court suit instead of reinstating, ruling that the nursing home’s April 11 motion to dismiss will be heard by a three-judge panel.
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April 27, 2022
Hawaii Panel: Changing Grandparents’ Visitation ‘Would Be Harmful’ To Children
HONOLULU— A Hawaii appellate court on April 14 affirmed an order denying a father’s request to limit Colorado maternal grandparents’ visitations, finding that the grandparents satisfied the standard that their grandchildren would experience “significant harm” if the father’s modification requests were granted.
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April 21, 2022
9th Circuit Panel Denies Care Facility’s Rehearing Request In COVID Death Suit
SAN FRANCISCO — A panel of the Ninth Circuit U.S. Court of Appeals on April 18 denied a joint request from a long-term care facility, its owner and its staff physician for panel rehearing and rehearing en banc after affirming a district court’s order remanding to state court a wrongful death suit filed by the family of a man who died in the facility after contracting COVID-19.
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April 21, 2022
California Panel: Retirement Benefit Suit’s Evidence Doesn’t Support Vested Right
SAN JOSE, Calif. — A California appellate panel on April 19 reversed a trial court’s determination that retired county employees who sued the county after it stopped providing them with benefits under the Public Employees’ Medical Hospital Care Act (PEMHCA) were entitled to lifetime insurance premiums equal to active employees’ premiums, finding that the retirees’ admissible evidence did “not support a finding of an implied vested right.”
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April 21, 2022
Citing Tax Exempt Status, High Court Says Puerto Rico Not Entitled To SSI
WASHINGTON, D.C. — A divided U.S. Supreme Court ruled April 21 that a decision by Congress to deny Puerto Rico residents access to Supplemental Security Income (SSI) benefits does not violate the equal-protection component of the due process clause.
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April 19, 2022
9th Circuit Panel Denies Nursing Home’s Rehearing Request In COVID Death Suit
SAN FRANCISCO — A panel of the Ninth Circuit U.S. Court of Appeals on April 18 denied a nursing home’s request for panel rehearing and rehearing en banc after affirming a district court’s order remanding to state court a wrongful death suit filed by the family of a man who died in a nursing home after contracting COVID-19.
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April 19, 2022
Hillstone Accused Of Age Biased Hiring In EEOC Complaint
NEW YORK — A complaint filed April 14 in a federal court in New York accuses Hillstone Restaurant Group Inc. of failing to hire qualified applicants who were 40 and older for front-of-house positions at two New York City locations due to their age.
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April 19, 2022
2nd Circuit Asked To Rehear Row Over Pension Plan Reinterpretation Of ‘Retires’
NEW YORK — Arguing that a Second Circuit U.S. Court of Appeals panel’s ruling creates a circuit split and is in “direct conflict” with several decisions and violates Employee Retirement Income Security Act regulations, participants in a defined-benefit multiemployer pension plan on April 15 sought rehearing and rehearing en banc of a dispute over reinterpretation of “retires” that resulted in stoppage of their early retirement benefits.
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April 15, 2022
9th Circuit Affirms Summary Judgment, Says Medicare Act Preempts State Law Claims
SAN FRANCISCO — A Ninth Circuit U.S. Court of Appeals panel on April 13 affirmed a district court’s grant of summary judgment to a health insurance company in a suit filed by the wife of a deceased Medicare patient against the company regarding its administration of her deceased husband’s Medicare Advantage (MA) plan, finding that the Medicare Act’s “express preemption provision” barred her state law claims.
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April 14, 2022
Mississippi High Court: Handwriting Must Be Proven If Witnesses To Will Are Absent
JACKSON, Miss. — If no subscribing witnesses are available, “a will proponent must prove the handwriting of the testator and at least two subscribing witnesses,” the Mississippi Supreme Court ruled March 17, reversing an appellate court and affirming a chancery court’s dismissal of a petition to probate a will.
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April 12, 2022
Federal Judge Allows Experts In Fiduciary Duty Breach Case Against Caretaker
PORTLAND, Maine — A woman employed as a seasonal home caretaker facing allegations that she took advantage of an aging man’s cognitive decline and stole money lost her bid to exclude two experts when a Maine federal judge on April 7 found that the testimony of the accountant and the neuropsychologist is admissible.
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April 12, 2022
6th Circuit Affirms Summary Judgment For Target In Age Discrimination Suit
CINCINNATI — The Sixth Circuit U.S. Court of Appeals on April 7 affirmed a district court’s order granting summary judgment to Target Stores Inc. in a suit filed by a former employee claiming gender, race and age discrimination under Title VII and the Age Discrimination in Employment Act (ADEA), finding that the former employee failed to establish a “prima facie case for reverse gender discrimination” and failed to provide evidence of racial and age discrimination.
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April 12, 2022
Spousal Privilege Bars Some Deposition Questions In Nursing Home Negligence Suit
ALBANY, N.Y. — A plaintiff suing her deceased father’s nursing home for negligence and civil rights violations was entitled to raise the spousal or marital privilege in response to deposition questions over conversations she had with her husband, a New York federal magistrate judge ruled April 7, mostly denying the facility’s operator’s motion to compel.
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April 11, 2022
Allstate Retirees Argue ERISA Limitations Period In Benefits Termination Petition
WASHINGTON, D.C. — Allstate Insurance Co. retirees on March 28 asked the U.S. Supreme Court to review a decision in which their Employee Retirement Income Security Act challenge to termination of a life insurance benefit was denied, arguing that the wrong limitations period was applied and that their fraud claims should have been analyzed under an “in equity” standard.
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April 11, 2022
State High Court: Trust Interest Reverted To Surviving Son Upon Brother’s Death
NEW ORLEANS — The Louisiana Supreme Court on March 25 reversed an appellate court’s decision determining that a deceased son’s interest in his deceased father’s testamentary trust vested in the son’s legatee, the fiancee of the deceased son, finding that under the father’s will establishing separate trusts for his two sons, the surviving son had a vested interest in his deceased brother’s trust because his brother died without descendants.
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April 11, 2022
Alabama High Court Affirms Judgment For Decedent’s Son In Will Contest
MONTGOMERY, Ala. — The Alabama Supreme Court on March 18 affirmed a circuit court’s judgment on behalf of a decedent’s son in his action contesting his father’s purported will naming the decedent’s brother as the sole beneficiary of the estate, finding that the lower court had subject matter jurisdiction over the estate administration and the will contest and did not err in entering a judgment on the jury verdict in favor of the son.
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April 07, 2022
9th Circuit Lets Facility Appeal Class Certification In Insufficient Staffing Suit
SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals on April 1 granted the owners of a chain of assisted living facilities permission to appeal a lower court’s November certification of a class in a suit accusing the chain of failing to adequately staff its facilities.
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April 07, 2022
California Panel Remands For New Trial On Vicarious Liability In Elder Abuse Suit
LOS ANGELES — After rehearing, a California appellate court on April 5 again affirmed a multimillion-dollar jury award to two women who were sexually assaulted by a hospital employee while they were patients at a psychiatric hospital after the women petitioned for rehearing, but unlike in its earlier opinion affirming the trial court’s judgment, reversed and remanded for a new trial on the issue of respondeat superior and ratification, finding sufficient evidence for a jury to determine that the employee was acting within the scope of his employment when he assaulted the women.
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April 07, 2022
Judge Reduces Jury’s $15.3 Million Award In Georgia Nursing Home Death Suit
LAWRENCEVILLE, Ga. — A Georgia state court judge on March 18 reduced a jury’s $15.3 million total damages award to $6.4 million to comply with Georgia’s $250,000 punitive damages cap in a negligence and wrongful death suit filed against a skilled nursing facility by a deceased former resident’s daughter.
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April 07, 2022
6th Circuit Refuses To Dismiss Appeal Of Nursing Home COVID Death Remand Ruling
CINCINNATI — Citing the U.S. Supreme Court’s ruling in BP P.L.C. v. Mayor and City Council of Baltimore that identifying 28 U.S. Code Section 1442 as a ground for removal renders a lower court’s remand order reviewable on appeal, the Sixth Circuit U.S. Court of Appeals on March 25 refused to dismiss an appeal of a district court’s order remanding to state court a COVID-19-related negligence and wrongful death case against the owners, operators and managers of a nursing home.