IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHELE RICCI : CIVIL ACTION

6103 WALNUT AVENUE :

MERCHANTVILLE, NJ 08109 :

:

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY :

980 JOLLY ROAD :

BLUE BELL, PA 19422 : NO.

AMENDED COMPLAINT

 AND

 DEMAND FOR JURY TRIAL

Plaintiff, Michele Ricci, by and through her attorney,Theodore A. Schwartz, Esquire,

hereby makes a claim for damages against the Defendant and, in support thereof, avers the

following:

 STATEMENT OF JURISDICTION

1. Plaintiff, Michele Ricci, is an adult individual and citizen of the State of New

Jersey, residing at the above captioned address. Further, at all times relevant hereto, Ricci

was a citizen of the Commonwealth of Pennsylvania at 22 Yale Square, Morton, PA 19070.

2. Defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance

Company at the above captioned address, is a corporation or other business entity registered

to do business in Pennsylvania and does so at the above captioned address. Further, Aetna,

Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company, maintains its

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corporate headquarters at 151 Farmington Avenue, Hartford, Connecticut 06156-2970.

Defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company will

be hereinafter referred to as defendant “Aetna”.

3. At all times relevant and material hereto, defendant, Aetna, appeared to be

acting by and through its agents, servants, employees, representatives and/or independent

contractors, who were engaged in its business and within the course and scope of their

employment and/or in the furtherance of defendant, Aetna’s business.

4. By virtue of the diversity of citizenship of the above parties to this litigation,

and the fact that the sum in controversy set forth in the foregoing Factual Background, is in

excess of Seventy-Five Thousand ($75,000.00) Dollars, Plaintiff is advised, believes and,

therefore, avers that this Honorable Court has original jurisdiction of this action pursuant to

28 U.S.C.A. § 1332 et. seq. Alternatively, this Honorable Court has original jurisdiction of

this action pursuant to 28 U.S.C.A. § 1331 because of the application of Federal Law under

the Employee Retirement Income Security Act, 29 U.S.C.A. § 1132 et. seq.

 FACTUAL BACKGROUND

5. On or about January 26, 1996 and for a period of time prior thereto, Plaintiff,

Michele Ricci, hereinafter referred to as “Ricci”, was an employee of Covance Incorporated.

6. On or about January 26, 1996 Ricci was an insured on a long term disability

contract of insurance provided by Aetna and made available to her through her employer,

Covance, which provided a monthly benefit for total disability benefits of approximately

One Thousand Seven Hundred Six Dollars and Twenty-Five ($1,706.25) Cents per month

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to Ricci for a maximum period of entitlement expiring on the day Ricci would attain the age

of sixty-five (65), if Ricci became disabled under the terms and conditions of the insurance

contract. A true and correct copy of the contract of insurance in effect as of January 26,

1996 cannot be attached to this Complaint as an Exhibit because the contract is in the

possession of defendant, Aetna, despite a demand by Ricci through counsel to acquire the

contract, defendant, Aetna, has not tendered the contract.

7. In January of 1995, while in the employ of Covance, Ricci began to develop

a physical condition known as Chronic Fatigue Syndrome, also known as Myalgic

Encephalomyelitis. 

8. Ricci’s Chronic Fatigue Syndrome progressed to a point that she developed

extreme fatigue and other debilitating aliments making it extremely difficult for her to work

on a daily basis rendering her disabled pursuant to the terms of Aetna’s long term disability

contract.

9. As a result, on or about January 26, 1996 Ricci applied for long term disability

benefits under the Aetna contract of insurance. A true and correct copy of Aetna’s required

application form entitled “LTD/PTD Attending Physician’s Statement” is attached hereto,

made a part hereof and marked as Exhibit “A”.

10. On May 15, 1996 Ricci’s application for long term disability benefits under the

Aetna contract, was accepted and a determination was made that Ricci was totally disabled

from her usual occupation according to the terms of the insurance contract. A true and

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correct copy of the May 15, 1996 letter from defendant, Aetna, to Ricci is attached hereto,

made a part hereof and marked as Exhibit “B”.

11. Plaintiff believes and therefore avers that the contract of insurance hereinbefore

referred to provided that Aetna pay long term disability benefits to Ricci unless “if after the

first twenty-four (24) months of disability benefits, it is determined that your disability is

caused by a mental condition, then your period of disability will end.” Thus, the contract

of long term disability insurance provided by Aetna to Ricci was premised upon the fact that

being eligible for benefits after the first twenty-four (24) months, Ricci would need to be

disabled based on a physical condition.

12. Defendant, Aetna, paid Ricci long term disability benefits from January 26,

1996 up to and including July 1, 2001. 

13. Throughout the period of time between January 26, 1996 and July 1, 2001,

Plaintiff was treated and evaluated on a continuous basis by Stephen L. Schwartz, M.D. who

confirmed the diagnosis of Chronic Fatigue Syndrome and disability. Further, during the

abovementioned period of time, Ricci was subjected to multiple independent medical

evaluations, paid for and procured by defendant, Aetna, the results of which confirmed the

diagnosis of Ricci’s Chronic Fatigue Syndrome and disability. An example of one such

independent medical evaluation report is authored by Russell J. Stumacher, M.D. and dated

January 29, 1999, a true and correct copy of which is attached hereto, made a part hereof

and marked as Exhibit “C”.

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14. Notwithstanding the above, on or about June 28, 2001 defendant, Aetna,

indicated that as of July 1, 2001, it would discontinue paying disability benefits to Ricci

under the policy saying that “Since you are being treated by Dr. Schwartz for a

psychological/psychiatric condition, and you are not being treated by a physician for a

physical disability, your long term disability benefits will terminate as of July 1, 2001.”

15. Defendant, Aetna, upon procured medical opinions and independent medical

evaluations and through its own practices denied benefits to Ricci without any reasonable

basis, willfully, wantonly, in bad faith and in reckless indifference to the existence of

Ricci’s serious, debilitating and permanent physical condition known as Chronic Fatigue

Syndrome rendering her disabled and unable to be employed, when defendant, Aetna, knew

that Ricci’s Chronic Fatigue Syndrome was caused by a physical condition. A true and

correct copy of the June 28, 2001 letter denying/terminating long term disability benefits as

of July 1, 2001 is attached hereto, made a part hereof and marked as Exhibit “D”.

16. On or about August 15, 2001 Ricci appealed defendant, Aetna’s June 28, 2001

determination to deny/terminate long term disability benefits. A true and correct copy of

the August 15, 2001 letter regarding Ricci’s wish to appeal this determination is attached

hereto, made a part hereof and marked as Exhibit “E”.

17. As part of the letter dated August 15, 2001, the Plaintiff submitted as an

enclosure, specifically an August 14, 2001 letter from Stephen L. Schwartz, M.D., in which

Dr. Schwartz stated, inter alia, “my care of her has been directed to the sequelae of her

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Chronic Fatigue condition”, “my treatment has been directed at the secondary symptoms,

as opposed to the basic disorder, her Chronic Fatigue, which is a complex condition

representing an, as yet, inadequately explained physical medical disorder.” SeeExhibit “E”.

18. On November 19, 2001, defendant, Aetna, mailed Ricci’s counsel a letter with

attachments indicating that the attachments represented all the documents that defendant,

Aetna, used in making their claim determination to deny/terminate long term disability

benefits to Ricci. A true and correct of the November 19, 2001 letter and attachment is

attached hereto, made a part hereof and marked as Exhibit “F”.

19. On December 19, 2001, defendant, Aetna, despite its knowledge and

possession of medical proof to within a reasonable degree of medical certainty indicating

that Ricci’s Chronic Fatigue Syndrome condition was caused primarily by a physical

condition and contained secondary mental sequelae without any reasonable basis, willfully,

wantonly and recklessly upheld its complete denial/termination of Ricci’s long term

disability benefits. A true and correct copy of the December 19, 2001 letter is attached

hereto, made a part hereof and marked as Exhibit “G”.

20. At all times relevant and material hereto, defendant, Aetna, has denied

coverage and refused to honor its contract of insurance with Ricci when Aetna knew or

should have known that Ricci’s disability was caused by a physical condition known as

Chronic Fatigue Syndrome and not a mental condition.

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21. At all times relevant and material hereto, and for a long time prior thereto,

Plaintiff, Ricci, has duly performed all the terms and conditions of said policy on her part

to be performed.

FIRST CLAIM FOR RELIEF

 PLAINTIFF, MICHELE RICCI VS. AETNA, INC., D/B/A U.S. HEALTHCARE

 AND AETNA LIFE INSURANCE COMPANY

 (BAD FAITH)

22. Plaintiff incorporates herein by reference the allegations set forth in paragraphs

1 through 21, as if the same were set forth herein at length.

23. By reason of the foregoing false, deceptive, fraudulent and outrageous conduct

with the dishonest purpose to deny long term disability benefits to Plaintiff, Ricci,

defendant, Aetna, has acted contrary to medical evidence showing a physical disorder, and

continues to act with ill will and frivolous refusal to pay long term disability benefits,

constituting bad faith declared unlawful under Pennsylvania’s Bad Faith Statute, § 42

Pa.C.S.A. § 8371; common law/statutory bad faith under Connecticut law; and common

law/statutory bad faith under New Jersey law entitling Ricci to punitive damages, court

costs, attorneys fees and interest on the amount of the claim equal to the prime rate of

interest plus three percent (3%) from July 1, 2001 through the present and on a monthly

basis going forward until Plaintiff attains the age of sixty-five (65).

WHEREFORE, Plaintiff, Michele Ricci, demands judgment against the defendant,

Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company, jointly and

severally, for compensatory and punitive damages in an amount in excess of Seventy-Five

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Thousand ($75,000.00) Dollars, plus attorneys fees, costs, expenses and interest from July

1, 2001 through the present and on a monthly basis going forward up to when Plaintiff,

Ricci, attains the age of sixty-five (65).

 SECOND CLAIM FOR RELIEF

 PLAINTIFF, MICHELE RICCI VS. AETNA, INC., D/B/A U.S. HEALTHCARE

 AND AETNA LIFE INSURANCE COMPANY

 (VIOLATION OF ERISA , 29 U.S.C.A. §§ 1001 et. seq.)

24. Plaintiff incorporates herein by reference the allegations set forth in paragraphs

1 through 23, as if the same were set forth herein at length.

25. As a consequence of defendant, Aetna’s conduct described above, defendant,

Aetna, has violated the provisions of the Employee Retirement Income Security Act

(ERISA), 29 U.S.C.A. §§ 1001 et. seq. in general, and as a result, Ricci is entitled to the

remedies set forth specifically in 29 U.S.C.A. § 1132 (a) (1) (A) and (B) et. seq. and any

other section of ERISA providing for civil remedies.

WHEREFORE, Plaintiff, Michele Ricci, demands judgment in her favor against

defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company,

jointly and severally, for compensatory, incidental and punitive damages in an a mount in

excess of Seventy-Five Thousand ($75,000.00) Dollars, plus attorneys fees, expenses, costs

and interest from July 1, 2001 through the present and on a monthly basis until Plaintiff,

Ricci, reaches the age of sixty-five (65), and any other relief provided under ERISA. 

 

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 THIRD CLAIM FOR RELIEF

 PLAINTIFF, MICHELE RICCI VS. AETNA, INC., D/B/A U.S. HEALTHCARE

 AND AETNA LIFE INSURANCE COMPANY

(VIOLATION OF ERISA , 29 U.S.C.A. § 1132(c)(1) through (7)

26. Plaintiff incorporates herein by reference the allegations set forth in

paragraphs 1 through 25, as if the same were set forth herein at length.

27. As a consequence of defendant, Aetna’s conduct described above, defendant,

Aetna, has violated the provisions of the Employee Retirement Income Security Act

(ERISA), 29 U.S.C.A. §§ 1001 et. seq. in general, and as a result, Ricci is entitled to the

remedies set forth specifically in 29 U.S.C.A. § 1132 (c) (1) through (7) providing for civil

remedies in the amount of One-Hundred Dollars (100.00) per day in addition to the other

penalties provided therein.

WHEREFORE, Plaintiff, Michele Ricci, demands judgment in her favor against

defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company,

jointly and severally, for compensatory, incidental and punitive damages in an a mount in

excess of Seventy-Five Thousand ($75,000.00) Dollars, plus attorneys fees, expenses, costs

and interest from July 1, 2001 through the present and on a monthly basis until Plaintiff,

Ricci, reaches the age of sixty-five (65), and any other relief provided under ERISA. 

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 M. MARK MENDEL, LTD.

 BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 ATTORNEY I.D. NO. 09256

 KENNETH B. GREAR, ESQUIRE

 ATTORNEY I.D. NO. 81608

 ATTORNEYS FOR PLAINTIFF

 1620 LOCUST STREET

 PHILADELPHIA, PA 19103-6392

 TELEPHONE NO. (215) 732-7200

 FAX NO. (215) 546-3277

DATE: _________________

F:\RICCI.AC

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