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Mealey's Elder Law

February 15, 2023
Delaware Federal Judge Denies Dismissal Of COVID Death Suit, Says No PREP Act Bar

WILMINGTON, Del. — A Delaware federal judge denied a nursing home’s dismissal motion in a wrongful death and negligence suit against it filed by the family of a former resident who died after contracting COVID-19 there, finding that because the family’s claims do not relate to using a “covered countermeasure,” such as masks or vaccinations, their claims are not barred under the Public Readiness and Emergency Preparedness (PREP) Act.
February 14, 2023
Ohio Panel Modifies Grandparent Visitation Ruling To Dismissal Without Prejudice

TOLEDO, Ohio — An Ohio appellate court affirmed a lower court’s dismissal of a grandparent visitation complaint for lack of standing but vacated the determination that the dismissal was made “on the merits and with prejudice,” finding that nothing in Ohio statutory law regarding grandparent visitation “precludes a subsequent petition where the first complaint was dismissed for want of standing.”
February 14, 2023
Restaurant Chain Settles Age Bias Class Suit For $2.15 Million

RIVERSIDE, Calif. — A $2.15 million settlement to be paid by Lazy Dog Restaurants LLC to end a class lawsuit accusing the restaurant chain of discriminating against applicants 40 years of age and older for front-of-the-house positions was granted final approval by a federal judge in California.
February 10, 2023
Denial To Compel Arbitration Affirmed For Failure To Pay Indigent Decedent’s Fees

SANTA ANA, Calif. — A California appellate court affirmed a lower court order denying a nursing home’s petition to compel arbitration in an elder abuse suit filed against it by the estate of a man who died after residing there, finding that the lower court correctly applied case law to require the nursing home to pay arbitration costs for the indigent decedent, thereby making the nursing home’s refusal to pay the costs a denial of its petition.
February 10, 2023
Pennsylvania Panel Affirms Total Impairment Finding In Octogenarian Guardianship

PHILADELPHIA — A Pennsylvania appellate court affirmed a lower court’s guardianship appointment of an 80-year-old man, finding that the man’s “total incapacity” was “properly determined” by “clear and convincing evidence” that was supported by testimony of a geriatric psychiatrist who evaluated the man.
February 09, 2023
Georgia Panel Remands For Fact-Finding On Appointing Son As Guardian For Retiree

ATLANTA — Finding that a lower court failed to establish reasons, a Georgia Court of Appeals panel vacated and remanded to “prepare appropriate findings of fact to support” the decision to appoint a son as his father’s guardian but affirmed the lower court’s order not appointing the man’s wife as his guardian.
February 09, 2023
Panel Says Expert Report Lacks Causation In Negligence Suit Against Nursing Home

TYLER, Texas— A Texas appellate court reversed and remanded an order denying a nursing home’s dismissal motion and overruling its objections to an estate representative’s expert report in a negligence suit filed against the nursing home after a woman died there, finding that the lower court erred because the report failed to show the expert’s qualifications or causation between the purported injury and death.
February 08, 2023
Bid And Valuation Production Ordered In DUFTA Suit Concerning LTC Insurer

WILMINGTON, Del. — Finding bid and valuation documents “relevant to Plaintiffs’ claims and proportional to the needs of the case,” a Delaware Chancery Court vice chancellor granted a motion to compel their production in a putative class suit alleging fraudulent transfers from an insurance subsidiary on which more than 1 million policyholders depend for long-term care (LTC) insurance disability benefits.
February 08, 2023
6th Circuit: GM Worker Failed To Show Unknown Medical Issues Caused Firing

CINCINNATI — A worker whose medical conditions were not discovered until after she was fired due to attendance issues failed to show that her termination constituted age, disability or gender bias or violated the Employee Retirement Income Security Act, a Sixth Circuit U.S. Court of Appeals panel ruled Feb. 7.
February 02, 2023
Magistrate Denies Relator’s Motion For Protective Order In FCA Suit Over CMS Bids

LOUISVILLE, Ky. — A Kentucky federal magistrate judge denied a relator’s motion for a protective order regarding an expert’s supplemental deposition in a False Claims Act (FCA) suit alleging that Humana Inc. knowingly submitted false bids to the Centers for Medicare and Medicaid Services (CMS), resulting in overpayment to Humana, finding that the relator failed to show that “good cause exists for a protective order limiting the scope” of the deposition.
February 02, 2023
California Jury Awards $25M In Punitive Damages Against Care Home For Elder Abuse

WALNUT CREEK, Calif. — A California state court jury awarded $25 million in punitive damages, plus $5.9 million in compensatory damages, against a skilled nursing facility and its corporate owners in a suit filed against them by the family of a former resident alleging elder neglect, custodial negligence, constructive fraud, violations of the Patients’ Bill of Rights and wrongful death after the man acquired pressure sores and died almost a year later.
January 31, 2023
4th Circuit Hears Case Over Whether Facebook Housing Ads Were Age Discriminatory

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals heard oral arguments from a group of property management companies and a woman who sued them over online advertisements that purportedly discriminated on the basis of age, considering whether to affirm a trial court’s dismissal of the suit for lack of standing.
January 30, 2023
Respondents Tell High Court Anti-Cutback Rule Doesn’t Apply To Pension Dispute

WASHINGTON, D.C. — Arguing in part that the Employee Retirement Income Security Act’s anti-cutback rule “only applies to accrued benefits and no accrued benefit arose here,” respondents on Jan. 27 urged the U.S. Supreme Court to deny certiorari in a dispute over a reinterpretation of “retire” that stopped early retirement pension benefits for some plan participants.
January 30, 2023
Illinois Panel Affirms Order Requiring Attorney To Return POA Fees To Estate

OTTAWA, Ill. — An Illinois appeals court affirmed a lower court judgment for the Illinois attorney general, who intervened in a probate dispute opposing the decedent’s executor’s request to retain power of attorney (POA) fees paid by the estate, finding that the lower court correctly determined that the executor’s claim for POA fees, for which he was required to file a claim with the probate court, is now time-barred, while making “one small correction” to deduct $600 in pre-death work from the amount the executor is required to refund to the estate.
January 27, 2023
Judge Rules On 1st Amendment Row Over Unlicensed Advice From ‘End-Of-Life Doulas’

SACRAMENTO, Calif. — A California federal judge granted in part a summary judgment to a nonprofit providing “end-of-life doula” counseling in its free speech and due process violation suit against the California Cemetery and Funeral Bureau, enjoining the bureau from citing Full Circle for offering free advice without a license and finding that despite conflicting messages, the bureau conceded “that it has no important or compelling interest in regulating that speech.”
January 25, 2023
6th Circuit Affirms Remand, Says No PREP Act Support For COVID Death Suit Removal

CINCINNATI —The Sixth Circuit U.S. Court of Appeals affirmed a district court’s order remanding to state court a COVID-19-related negligence and wrongful death case against a nursing home and entities owning or operating it, finding that the nursing home and related entities failed to meet the burden to show that the Public Readiness and Emergency Preparedness (PREP) Act supports removing the claims to federal court.
January 19, 2023
Panel Affirms Judgment, Finds Suit Not Stayed By GAL Appointment In Other Case

SAN JOSE, Calif. — A California appellate court affirmed lower court orders finding in favor of a man’s guardian ad litem (GAL) in two fraud suits against the GAL and other defendants, finding that the appointment of a GAL in his marriage dissolution case did not require a stay in any other case.
January 17, 2023
U.S. High Court Will Review Putative Class Property Seizure Case By Elderly Woman

WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 13 granted the petition for a writ of certiorari filed by a Minnesota woman who was 93 when her home was seized and argues in her putative class case that the seizure of the full equity of a residence by Minnesota tax authorities where the tax debt owed was less than the property was sold for is improper.
January 13, 2023
Judge Dismisses Suit Against Maryland AG, Cites ‘Vexatious Litigation’ In Will Row

GREENBELT, Md. — A Maryland federal judge dismissed a decedent’s former daughter-in law’s complaint against the Maryland attorney general, a county register of wills and attorneys after she was forced to return over $1 million in funds to the decedent’s estate in separate litigation, finding that the register of wills and attorney general are immune pursuant to the 11th Amendment to the U.S. Constitution and that res judicata bars the claims against the attorneys.
January 12, 2023
Petition For Cert Filed In Denial Of Disability Benefits Under Social Security Act

WASHINGTON, D.C. — A petition for writ of certiorari was filed with the U.S. Supreme Court challenging the Sixth Circuit U.S. Court of Appeals’ decision upholding the determination of an administrative law judge (ALJ) that a man seeking disability insurance benefits and supplemental security income through the Social Security Administration (SSA) did not have a disability under the terms of the Social Security Act.
January 11, 2023
11th Circuit Affirms Judgment In Estate Appeal, Cites No Wrongful Foreclosure

ATLANTA — The 11th Circuit U.S. Court of Appeals affirmed a district court’s summary judgment for a mortgagee in a wrongful attempted foreclosure suit filed by an estate against its reverse mortgage lender, finding that because the mortgagee’s publication of a foreclosure notice in a local paper was not intentional, but “merely mistaken,” it did not meet the knowing and intentional standard under Georgia law to recover damages for wrongful attempted foreclosure.
January 11, 2023
Expert Correctly Excluded In Wrongful Death Suit, Utah Appeals Court Says

SALT LAKE CITY — A trial court did not err in excluding an expert retained by the estate of a man whom it alleges died as a result of negligence by a nursing home, a Utah appeals court ruled, also finding that because the estate failed to establish medical causation, summary judgment was also appropriate.
January 10, 2023
11th Circuit Finds No Error In Allowing Expert Testimony In Insurance Fraud Case

ATLANTA — A district court did not err in admitting expert opinion testimony against a man convicted for his role in a $37 million health care fraud scheme that began in 1998 and involved bribing physicians to have patients entered into a network of assisted living facilities and skilled nursing facilities that he owned, the 11th Circuit U.S. Court of Appeals ruled, rejecting each of the man’s other arguments for reversal.
January 10, 2023
Panel Rules On Grandparent Visitation, Considers Genetic Testing Showing Paternity

COLUMBUS, Ohio — An Ohio appellate court affirmed in part a lower court order adopting a magistrate’s decision to add a paternal grandmother as a party in a case where her son was seeking to establish paternity regarding a minor child, finding that the lower court did not abuse its discretion in adding the grandmother as a party to the case because genetic testing showed that her son was the child’s father.
January 10, 2023
Judge Refers Fraud Case For Settlement In Siblings’ Tussle Over Aunt’s Annuity

NEW HAVEN, Conn. — A federal judge on Jan. 9 issued a docket entry order referring a case for settlement after issued a partial grant of a woman’s request for prejudgment remedy four days earlier in the woman’s fraud suit against her brother, alleging that he deprived her of her beneficiary status under their aunt’s annuity, finding that the woman’s facts and evidence sufficed to show probable cause of her brother’s intentional conduct.