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. :

_________________________________________ :

PLAINTIFF’S RESPONSE TO DEFENDANT, AETNA, INC., D/B/A AETNA U.S.

HEALTHCARE AND AETNA LIFE INSURANCE COMPANY’S MOTION TO AMEND

THIS COURT’SMARCH12, 2003 INTERLOCUTORY ORDER TO CERTIFY PURSUANT

 TO 28 U. S. C. § 1292 (b)

Admitted with clarification. Plaintiff, Michele Ricci, by and through her counsel, admits that

the Court’s Order of March 12, 2003 should be amended to certify the case for appeal, for the

reasons set forth in Defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance

Company’s Memorandum of Law attached to its Motion, and the reasons set forth in Plaintiff’s

accompanying Memorandum of Law which is incorporated herein by reference as if the same were

set forth herein at length. 

WHEREFORE, Plaintiff, Michele Ricci,requests this Court to enter the Order proposed by

Defendant, Aetna, and to grant such other relief as the Court deems just and appropriate. 

RESPECTFULLY SUBMITTED:

M. MARK MENDEL, LTD.

BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 KENNETH B. GREAR, ESQUIRE

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Attorneys for Plaintiff

DATE: ____________________

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 1 of 6
 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. :

_________________________________________ :

 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S RESPONSE

 TO DEFENDANT, AETNA, INC., D/B/A AETNA U.S. HEALTHCARE AND AETNA LIFE

 INSURANCE COMPANY’S MOTION TO AMEND THIS COURT’S MARCH 12, 2003 

 INTERLOCUTORY ORDER AND TO CERTIFY PURSUANT TO 28 U. S. C. § 1292 (b)

I. FACTS/LEGAL ARGUMENT

The facts relevant to Defendant, Aetna’s Motion and this response are adequately set forth

in Defendant, Aetna’s Motion and do not need to be repeated here. However, since the filing of

Defendant’s Motion, both counsel for Defendant, Aetna, and the Plaintiff have discovered that there

are no cases pending before the Court of Appeals for the Third Circuit on the issue of ERISA

Preemption of Bad Faith Claims and further the only case at the trial court level is in the Eastern

District of Pennsylvania and that involves the case of Rosenbaum v. Unum Life Insurance Co., 2002

WL 1769899 (E.D. Pa. July 29, 2002). It has come to Plaintiff’s counsels’ attention that after

discussion with Plaintiff’s counsel in the Rosenbaum matter, there is a Motion for Reconsideration

on Judge Newcomer’s original Opinion pending before Judge Newcomer. Plaintiffs’ counsel have

been informed that it is very unlikely that any appeal will occur if the Judge rules in favor of the

Defendant because unlike the present case, Rosenbaum involves two insurance policies, one which

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 2 of 6
is governed by ERISA and involves the preemption issue and the other which is a private insurance

policy in which the Bad Faith claim is not being contested. Therefore, it appears as if the present

case is the only matter that exists in the Third Circuit at least at the Trial Court level in the Eastern

District of Pennsylvania where the issue of ERISA preemption of Bad Faith claims is ripe for

appellate review. Finally, the test used to determine whether or not a particular state law “regulates

insurance” so as to be saved from ERISA preemption, commonly known as the McCarran-Ferguson

factors, has been rejected by the Supreme Court of the United States in the case of Kentucky

Association of Health Plans, Inc. v. Miller, 536 U.S. 956, 122 S. Ct. 2657 (April 2, 2003) and

replaced with a two (2) part test to determine whether or not a state law is saved from preemption

under ERISA. A true and correct copy of this Opinion is attached hereto, made part hereof and

marked as Exhibit “A”. 

Although the Plaintiff by and through her counsel are in disagreement with Defendant

Aetna’s position on the applicability of the Rosenbaum v. Unun Life Insurance Company Opinion

authored by the Honorable Clarence C. Newcomer, it is this very disagreement as well as for the

reasons set forth above, that the Plaintiff is not disputing Defendant Aetna’s attempt to have this

Court amend the Interlocutory Order entered on March 12, 2003 to certify this case pursuant to 28

U.S.C. § 1292 (b) to the Court of Appeals for the Third Circuit for review since the March 12, 2003

Order involves a controlling question of law as to which there are substantial grounds for a

difference of opinion and that an immediate appeal from that Order may materially advance the

ultimate termination of this litigation.

II. CONCLUSION

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 3 of 6
Therefore, for all of the foregoing reasons, Plaintiff, Michele Ricci, requests this Honorable

Court to enter a proposed Order attached to Defendant, Aetna’s Motion to amend and to grant such

 -2-

other relief as the Court deems just and appropriate.

M. MARK MENDEL, LTD.

BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 KENNETH B. GREAR, ESQUIRE

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Attorneys for Plaintiff

DATE: ____________________

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 4 of 6
 -3-

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 5 of 6
 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. :

_________________________________________ :

 CERTIFICATION OF SERVICE

I, Kenneth B. Grear, Esquire, hereby certify that a true and correct copy of Plaintiff, Michele

Ricci’s Response and Memorandum of Law in Support thereof to Defendant, Aetna, Inc., d/b/a

Aetna U. S. Healthcare and Aetna Insurance Company’s Motion to Amend the Interlocutory Order

of March 12, 2003 to certify for appeal pursuant to 28 U.S.C. § 1292 (b), was filed with the Court

and mailed on May 15, 2003 by United States Postal Service, First Class Mail, Postage Prepaid to

counsel for Defendant as follows:

 Patricia C. Collins, Esquire

 Elliott, Reihner, Siedzikowski & Egan, P.C.

 Union Meeting Corporate Center V

 P.O. Box 3010

 925 Harvest Drive

 Blue Bell, PA 19422

M. MARK MENDEL, LTD.

BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 KENNETH B. GREAR, ESQUIRE

 1620 Locust Street

 Philadelphia, PA 19103-6392

DATE: ____________________ Attorneys for Plaintiff

G:\tas\Ricci\PLEADING S\PDF DOCU MEN TS\Plaintiff Response Defendants Motion Amend Interlocutory Order-5-15-03.wpd

Case 2:02-cv-04330-TJS Document 25 Filed 05/15/2003 Page 6 of 6