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.).
WASHINGTON, D.C. — An arbitration clause containing no delegation of gateway questions to arbitrator means a court, not an arbitrator, decides arbitrability, Archer and White Sales Inc., a dental product company, argues in its respondent brief filed Oct. 13 in the U.S. Supreme Court, adding that incorporation of American Arbitration Association (AAA) rules doesn’t change anything (Henry Schein Inc. v. Archer and White Sales Inc., No. 19-963, U.S. Sup.).
FRESNO, Calif. — A federal judge in California in an Oct. 9 text-only order stayed briefing on a nursing home’s motion to dismiss a wrongful death suit against it until he has ruled on the plaintiffs’ motion to remand the case, noting the “considerable overlap” of the motions, specifically, that both “address the question of the extent to which plaintiffs' state law claims of elder abuse and negligence implicate the federal Public Readiness and Emergency Preparedness Act (‘PREP Act’)” (Jaime Gonzalez, et al. v. Redwood Springs Healthcare Center, et al., No. 20-1260, E.D. Calif.).
NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Oct. 13 granted the Texas Department of Criminal Justice’s (TDCJ) emergency motion to stay a permanent injunction that had been scheduled to take effect Oct. 14 following a district court’s findings in a class complaint that insufficient actions were taken to protect inmates housed in a Texas prison primarily for elderly individuals and those with health issues from the novel coronavirus (Laddy Curtis Valentine, et al. v. Bryan Collier, et al., No. 20-20525, 5th Cir., 2020 U.S. App. LEXIS 32325).
ATLANTA — The 11th Circuit U.S. Court of Appeals should hold that a Title VII of the Civil Rights Act of 1964 violation may be established where a personnel action is tainted by retaliation even without a but-for showing and should remand a retaliatory hostile work environment claim for reconsideration in light of an intervening decision in Monaghan v. Worldpay US, Inc., a Veterans Affairs pharmacist argues in her Oct. 8 supplemental opening brief following the court’s grant of rehearing (Noris Babb v. Secretary, Department of Veterans Affairs, No. 16-16492, 11th Cir.).
WASHINGTON, D.C. — The U.S. Department of Labor’s Occupational Safety and Health Administration announced Oct. 9 that it has cited 62 establishments due to violations related to the novel coronavirus since the start of the pandemic and has proposed penalties totaling $913,133.
SAN FRANCISCO — A putative class complaint alleging age and gender discrimination by Facebook Inc. in the purported exclusion of financial services advertisements from female and older users of the social network was dismissed Oct. 2, with a California federal magistrate judge finding that the lead plaintiff failed to plead the necessary injury-in-fact to establish standing under Article III of the U.S. Constitution (Neuhtah Opiotennione v. Facebook Inc., No. 19-7185, N.D. Calif., 2020 U.S. Dist. LEXIS 184367).
WASHINGTON, D.C. — The Equal Employment Opportunity Commission on Oct. 9 published a notice of proposed rule-making (NPRM) to outline steps taken during the conciliation process in light of the U.S. Supreme Court’s ruling in Mach Mining, LLC v. EEOC and asks the public to comment on the proposal within the next 30 days.
CHICAGO — Work performed in Canada on which no Social Security taxes are paid is not “employment” as defined in Section 410(a)(C) of the Social Security Act, and the totalization agreement between the United States and Canada doesn’t affect the application of the Windfall Elimination Provision (WEP) to Social Security benefits being collected by a class of dual citizens who are also receiving benefits under equivalent Canadian plans, a split Seventh Circuit U.S. Court of Appeals panel ruled Oct. 5 (Lorraine Beeler, et al. v. Andrew M. Saul, et al., No. 19-2099, 7th Cir., 2020 U.S. App. LEXIS 31614).
BOSTON — An assisted living facility resident was entitled to pursue a complaint for discovery to explore the viability of potential negligence claims over a fall that she experienced, a Massachusetts appellate panel ruled Oct. 5, reversing a lower court’s dismissal and deeming the matter not moot under the statute of limitations or in light of the resident’s subsequent death (Kenneth F. Atchue v. Benchmark Senior Living LLC, et al., No. 19-P-125, Mass App., 2020 Mass. App. LEXIS 153).
WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 denied a petition for a writ of certiorari filed by employers challenging a Seventh Circuit U.S. Court of Appeals' order to continue providing health insurance benefits for retirees and their families (Signode Industrial Group LLC, et al. v. Harold Stone, et al., No. 19-1334, U.S. Sup., 2020 U.S. LEXIS 4074).
WASHINGTON, D.C. — The U.S. Supreme Court on Oct. 5 declined to review whether a Florida agency's decision to revoke the license of a rehabilitation center where eight residents died in the wake of Hurricane Irma violated due process (Rehabilitation Center at Hollywood Hills LLC v. Florida Agency for Health Care Administration, No. 19-1400, U.S. Sup.).
WASHINGTON, D.C. — In a Sept. 29 holding, a District of Columbia federal judge granted the Social Security Administration dismissal of allegations that it unlawfully applied the Windfall Elimination Provision (WEP) to the Social Security benefits of a group of dual citizens (William Turnbull, et al. v. Nancy Berryhill, No. 16-1750, D. D.C., 2020 U.S. Dist. LEXIS 178775).
CHICAGO — A federal judge in Indiana did not err in finding that the Federal Nursing Home Reform Act (FNHRA) does not confer a private right of action and, therefore, does not support a nursing home resident's claim for violation of his civil rights, the facility, its owner and the company that manages and operates it tell the Seventh Circuit U.S. Court of Appeals in a Sept. 29 appellee brief (Gorgi Talevski v. Health and Hospital Corporation of Marion County, et al., No. 20-1664, 7th Cir.).
JACKSON, Tenn. — Finding no evidence that the daughter of a nursing home resident had "actual or apparent authority" to sign an arbitration agreement, a Tennessee appeals court on Sept. 17 affirmed a lower court's decision to deny the facility's motion to compel arbitration in a wrongful death suit (Manley v. Humboldt Nursing Home, Inc., No. W2019-00131-COA-R3-CV, Tenn. App., 2020 Tenn. App. LEXIS 418).