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Mealey's Elder Law

  • March 07, 2025

    10th Circuit Finds Expert Did Not Support Causation; Summary Judgment Affirmed

    DENVER — A representative of an estate’s named experts in a suit against a skilled nursing facility failed to show that the facility’s actions caused one of its residents to fall, the 10th Circuit U.S. Court of Appeals held, affirming a district court’s summary judgment award and ruling that the court did not err in failing to hold a hearing to consider the experts’ admissibility under Daubert v. Merrell Dow Pharmaceuticals Inc.

  • February 28, 2025

    2nd Circuit: Section 1782 Discovery Request Broad, Peripheral To Probate Suit

    NEW YORK — A Second Circuit U.S. Court of Appeals panel affirmed a trial court’s denial of a man’s foreign discovery request under U.S. Code Title 28, Section 1782, finding no abuse of discretion in its holding that the requested materials were only peripherally related to the remaining issue in a Brazilian probate proceeding and an “extremely broad” fishing expedition for an as-yet-unfiled criminal suit over his brother’s alleged hiding of assets.

  • February 26, 2025

    Unanimous U.S. Supreme Court Holds Voluntary Dismissal Is ‘Final Proceeding’

    WASHINGTON, D.C. — Voluntary dismissal of a case without prejudice under Federal Rule of Civil Procedure 41(a) is a “final proceeding” that qualifies for Federal Rule of Civil Procedure 60(b) relief, the U.S. Supreme Court ruled Feb. 26, reversing the judgment of the 10th Circuit U.S. Court of Appeals in an age bias case.

  • February 19, 2025

    After Voluntary Dismissal By Insurers’ Receiver, Judge Tosses $300M Ponzi Case

    MIAMI — After a receiver for insolvent insurers and related entities filed a notice of voluntary dismissal, a Florida federal judge issued a docket-only entry dismissing without prejudice Wells Fargo in the receiver’s suit alleging that Wells Fargo aided and abetted fraud in a “massive” Ponzi scheme purportedly orchestrated by owners of insurers, some of which are now in receivership, resulting in elderly investor victims losing more than $300 million after scheme operators sold them promissory notes secured by collateral in stranger-oriented life insurance policies (STOLIs).

  • February 18, 2025

    Survivors Appeal Qualified Immunity Ruling In COVID-19 Nursing Home Deaths Case

    CAMDEN, N.J. — The survivors of former nursing home residents who died from COVID-19 filed a notice of appeal to the Third Circuit U.S. Court of Appeals seeking review of a decision by a New Jersey federal court that New Jersey’s governor and public health commissioner are entitled to qualified immunity in their handling of the COVID-19 pandemic with respect to nursing homes and granting the officials’ motion to dismiss.

  • February 14, 2025

    Insurer’s Dismissal Motion Partially Denied In Suit Alleging It Illegally Employs AI

    MINNEAPOLIS — A federal magistrate judge in Minnesota on Feb. 13 granted in part and denied in part an insurer’s motion to dismiss a class complaint alleging it illegally uses artificial intelligence (AI) to deny elderly insureds medically necessary care based on a model that the insurer knows “has a 90% error rate,” allowing breach of contract and breach of implied covenant of good faith and fair dealing claims to proceed.

  • February 12, 2025

    Panel Reverses Attorney Fees Award In Octogenarian’s Bad Faith Suit Over Hail Damage

    FORT WORTH, Texas — A Texas appeals panel reversed and remanded a trial court’s award of appellate attorney fees in favor of an octogenarian insured in her bad faith lawsuit seeking coverage for her roof damage caused by hail and wind and affirmed the remainder of the lower court’s judgment, finding that the evidence was sufficiently strong to support the jury's conclusion that the insurer knowingly took advantage of the insured’s “‘lack of knowledge, ability, experience, or capacity . . . to a grossly unfair degree.’”

  • January 24, 2025

    New Jersey State Officials Have Qualified Immunity For Orders Addressing COVID-19

    CAMDEN, N.J. — Concluding that that they were entitled to qualified immunity in their handling of the COVID-19 pandemic with respect to nursing homes, a New Jersey federal court granted a motion to dismiss by New Jersey’s governor and public health commissioner in a lawsuit by survivors of former nursing home residents who died from COVID-19.

  • January 24, 2025

    Panel Partly Reverses Ruling In Retirement Facilities’ Coronavirus Coverage Suit

    CHICAGO — An Illinois appellate court panel reversed a lower court’s dismissal of insureds’ claim against one insurer in their lawsuit seeking “Contaminated Food/Communicable Disease Coverage,” finding that the application of the policy’s “Pathogenic or Poisonous or Chemical Materials” exclusion “would completely eviscerate that coverage and render it illusory,” but otherwise affirmed the lower court’s ruling in the insureds’ lawsuit prompted by the losses incurred by their continuing care retirement facilities following the COVID-19 outbreak.

  • January 17, 2025

    Partial Dismissal Recommended In $300M Ponzi Fraud Case Involving Bank, Insurers

    MIAMI — A Florida federal magistrate judge issued a report and recommendation advising granting in part and denying in part motions to dismiss filed by Wells Fargo in a receivership case and a related putative class action alleging that Wells Fargo aided and abetted fraud in a “massive” Ponzi scheme purportedly orchestrated by owners of insurers, some of which are now in receivership, resulting in elderly investor victims losing more than $300 million after scheme operators sold them promissory notes secured by collateral in stranger-oriented life insurance policies (STOLIs).

  • January 14, 2025

    U.S. High Court Hears Arguments On Age Bias Case Status After Voluntary Dismissal

    WASHINGTON, D.C. — The U.S. Supreme Court heard arguments on Jan. 14 on whether voluntary dismissals under Federal Rule of Civil Procedure 41 are “final” and may be reopened under Federal Rule of Civil Procedure 60(b).

  • January 13, 2025

    10th Circuit: Worker Collective Failed To Show Age Bias With Policy Changes, RIF

    DENVER — Workers laid off from an aerostructure manufacturer as part of a reduction in force (RIF) failed to show that the company’s policy changes and statements and the manner in which the RIF was carried out constituted age discrimination, a 10th Circuit U.S. Court of Appeals panel ruled, affirming a trial court’s summary judgment ruling for the employer on the employee’s collective action claims.

  • January 09, 2025

    Hospice Provider Can’t Dodge Wiretapping, Privacy Lawsuit

    SACRAMENTO, Calif. — A customer of an end-of-life care provider sufficiently alleges that the company’s use of artificial intelligence (AI) software to record clients’ telephone conversations without their consent violated the California Invasion of Privacy Act (CIPA), a California federal judge found Jan. 8, denying the defendant’s motion to dismiss.

  • January 09, 2025

    Vice Chancellor Addresses Privilege Claims In DUFTA Case Discovery Dispute

    WILMINGTON, Del. — A Delaware Chancery Court vice chancellor ordered plaintiffs to produce some documents they had argued were privileged and to pay for additional depositions in a putative class suit over an alleged scheme to strip capital from an insurance subsidiary on which many policyholders depend for long-term care (LTC) disability benefits.

  • January 03, 2025

    7th Circuit Dismisses Insurer’s Appeal As Moot In Wrongful Death Coverage Suit

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on Jan. 2 dismissed as moot an insurer’s appeal in a dispute over coverage for an underlying wrongful death and negligence lawsuit arising from the death of an elderly assisted-living facility resident, finding that the dispute over the lower court’s stay order evaporated with the dismissal of the underlying action.

  • January 03, 2025

    11th Circuit Denies Rehearing In Remanded Assisted Living COVID Wrongful Death Case

    ATLANTA — The 11th Circuit U.S. Court of Appeals has denied an assisted living facility’s petition for panel rehearing or rehearing en banc of a split panel decision affirming a judgment of a Florida federal court remanding to state court a wrongful death lawsuit brought by the personal representatives of a woman who died from COVID-19 while under the care of the facility.

  • January 02, 2025

    Amicus, Company To High Court: Dismissal Pending Arbitration Was Not End Of Case

    WASHINGTON, D.C. — An employee’s voluntary dismissal of an age bias suit pending arbitration is not a “final” proceeding, the Chamber of Commerce of the United States of America argues in amicus brief supporting an energy company’s position that a trial court lacked jurisdiction over the employee’s Federal Rule of Civil Procedure 60(b) motion.

  • December 19, 2024

    Judge Orders Class Notified In $18.2M Settlement Of Senior Home Understaffing Suit

    SANTA ANA, Calif. — A California federal judge ordered that notification be issued to more than 4,100 class members comprising family members of former and current residents of care facilities after the court granted final approval of an $18.2 million settlement with the facilities’ operator, including $10.5 million in attorney fees, for claims that residents were harmed by understaffing in violation of California’s unfair competition law (UCL) and elder financial abuse law.

  • December 11, 2024

    Granite Installer Awarded Reduced Attorney Fees After Age Bias Verdict

    PITTSBURGH — A granite installer awarded nearly $80,000 for compensatory damages and front and back pay on age bias claims by a federal jury was awarded more than twice that in attorney fees and costs by a federal judge in Pennsylvania.

  • November 22, 2024

    New York Care Homes Sued By Attorney General Settle Medicare Fraud Suit For $45M

    NEW YORK — New York Attorney General Letitia James announced that multiple nursing homes and their owners and operators sued in the New York County Supreme Court have agreed to pay $45 million to settle a suit against them alleging understaffing and resident neglect, as well as fraud and misuse of Medicare and Medicaid funds.

  • November 20, 2024

    Split Panel Rules No Federal Question In Assisted Living COVID Death, Remand Proper

    ATLANTA — A split panel of the 11th Circuit U.S. Court of Appeals affirmed a judgment of a Florida federal court remanding to state court a lawsuit brought by the personal representatives of a woman who died from COVID-19 in an assisted living facility alleging that the facility failed to prevent the spread of COVID-19, finding that the Public Readiness and Emergency Preparedness (PREP) Act was not a complete preemption statute, nor was any other federal question invoked that would confer jurisdiction on the federal court.

  • November 15, 2024

    Jury Awards $2M In Negligence, Civil Rights Suit Against Decedent’s Care Home

    ALBANY, N.Y. — A New York federal court jury awarded $2 million to a plaintiff who sued her father’s nursing home and related parties for negligence and civil rights violations related to their alleged neglect that resulted in his death after the daughter purportedly found her father at the nursing home on the floor “gasping for breath” with staff not responding to her requests for help.

  • November 11, 2024

    Judge Tosses Breach Of Contract Suit Against MetLife Over $100,000 Lapsed Policy

    FLORENCE, S.C. — A South Carolina federal judge dismissed a breach of contract suit filed against Metropolitan Life Insurance Co. (MetLife) by a decedent’s son seeking death benefits under his father’s $100,000 life insurance policy which ended when his father retired, finding that the son’s breach of contract claim fails because agency granted to him by his father pursuant to a power of attorney (POA) ended upon his father’s death and therefore precluded the son from extending post-retirement coverage on his father’s behalf.

  • November 07, 2024

    9th Circuit Finds ‘Substantial Compliance’ With QDRO Specificity Requirement

    SAN FRANCISCO — Affirming summary judgment in an interpleader suit over a life insurance policy worth $493,000, a Ninth Circuit U.S. Court of Appeals panel said in an unpublished memorandum disposition that the lower court correctly held that a legal separation agreement (LSA) was a qualified domestic relations order (QDRO) under the Employee Retirement Income Security Act.

  • November 05, 2024

    Federal Judge Grants Skilled Nursing Facility’s Motion To Dismiss FNHRA Suit

    HAMMOND, Ind. — A federal judge in Indiana granted a skilled nursing facility’s motion to dismiss without prejudice a decedent’s relative’s lawsuit alleging that it violated the duties imposed upon it under the Federal Nursing Home Reform Act (FNHRA), allowing the plaintiff leave to amend her complaint within 14 days.