IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

 :

MICHELE RICCI, : CIVIL ACTION

 Plaintiff, :

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY, : NO. 02-CV-4330

 Defendants. :

_________________________________________ :

SUPPLEMENTAL MEMORANDUM 

OF PLAINTIFF IN SUPPORT OF HER MOTION 

FOR SUMMARY JUDGMENT AND IN OPPOSITION 

TO THE MOTION OF DEFENDANT AETNA FOR SUMMARY JUDGMENT,

TOGETHER WITH REQUEST FOR REMOVAL OF CASE FROM CIVIL SUSPENSE

Plaintiff, by and through her undersigned attorneys, hereby files this Supplemental

Memorandum as above captioned, as follows:

1. With respect to the removal of this case from civil suspense, plaintiff agrees

with the position taken by defendants, in that there is no reason for this action to be in the

status of civil suspense any longer now that the Third Circuit has decided the case of Barber

v. Unum. Regrettably, it does not appear that plaintiff is entitled to bad faith punitive

damages against defendants in this matter, pursuant to the aforesaid precedent. Since the

plaintiffs in the Barber case have not filed any appeal in this matter to the United States

Supreme Court, the matter constitutes stare decisis, which issue was the subject of the

deferral order by this Court.

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2. On the merits of the matter regarding entitlement of plaintiff to disability

insurance benefits from defendant AETNA, certain factual and legal truisms are patently

present, enumerated as follows:

a. Substantial medical evidence exists which supports a diagnosis of

plaintiff Michelle Ricci’s condition as Chronic Fatigue Syndrome, not

only through the consistent reports of Stephen Schwartz, M.D.,

plaintiff’s treating physician, but also through the seven physicians who

examined plaintiff Michelle Ricci at the request of defendant Aetna

over the years.

b. It is undisputed by the parties that Chronic Fatigue Syndrome is a

“physical condition” within the meaning of the Aetna policy, and also

within the parameters of the applicable medical literature.

c. The sole reason why the benefits of plaintiff Michelle Ricci were

terminated by Aetna had to do with the substance of treatment of Dr.

Schwartz of Ms. Ricci, somehow justifying Aetna to conclude that he

was treating her for a “psychological condition”, rather than adhering

to the correct interpretation of their own disability policy; that is, that

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Chronic Fatigue Syndrome is indeed a physical condition which has

psychological sequelae, which condition does not fall within any of the

termination provisions of the Aetna disability policy. To the Contrary,

Aetna’s sole reason for the termination of Ms. Ricci is that Aetna was

of the opinion that Dr. Schwartz’ statement that he was treating her for

“psychological sequelae” of this physical condition, fell within the

termination provisions of their policy which allows Aetna to terminate

after twenty four months if the condition is caused to any extent by a

psychological condition. There is no question that this disability of Ms.

Ricci was not caused by any psychological condition; the disability of

Ms. Ricci was caused by Chronic Fatigue Syndrome, which is a

physical condition. Aetna’s play on words and attempts at written

gymnastics with words, attempt to obfuscate the plain meaning of the

policy. Aetna has a problem with the people who drafted the wording

of this termination provision; it should not have a problem with the

plaintiff, who clearly qualifies for these disability payments, because

her condition was caused by a physical condition.

d. This conclusion is buttressed by the fact that the two Aetna employees

who decided that she was not entitled to disability benefits admitted

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that they did not know, nor did they even attempt to ascertain the

meaning of the word “sequelae”, before denying this unfortunate lady

her disability benefits. It is difficult to believe that the Congress, in

their infinite wisdom, would deny bad faith benefits to a plaintiff under

these difficult and aggravating circumstances; nevertheless, the law is

what it is, and plaintiff therefore requests full enforcement of the

aforesaid policy against Aetna.

e. Defendants Aetna, at this late date, cannot invent any other reasons for

termination of plaintiff, including failure to procure blood tests, that

were neither suggested in its original termination letter nor in their

motion for summary judgment, but are now suggested for the first time

in its supplemental memorandum of law. Defendants should be

equitably estopped from pursuing any defense other than this alleged

defense of a “psychological condition”.

3. In conclusion, for all of the foregoing reasons, as well as the reasons set forth

in plaintiff’s motion for summary judgment, her brief in support of the motion, and her

opposing brief to defendant’s motion for summary judgment, together with plaintiff’s

statement of undisputed facts, plaintiff respectfully requests that this court remove this case

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from civil suspense, and enter an order in favor of the plaintiff and against defendants, fully

enforcing the terms and conditions of plaintiff’s disability policy with defendant , and

ordering defendants to pay all benefits due and owing to her under said policy, together with

counsel fees to be awarded to counsel for plaintiff and such other relief that this Honorable

court deems just, necessary and proper.

RESPECTFULLY SUBMITTED

 M. MARK MENDEL, LTD.

 BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 Attorney I.D. No 09256

 Attorney for Plaintiff

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Telephone No. (215) 732-7200

 Fax No. (215) 546-3277

Dated: May 25, 2005

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