IN THE UNITED STATES DISTRICT COURT 

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

_____________________________________ 

 : 

MICHELE RICCI : 

 : CIVIL ACTION 

 Plaintiff, : 

 : 

 v. : 02-CV-4330 

 : 

AETNA, INC. d/b/a AETNA U.S. : 

HEALTHCARE and AETNA LIFE : 

INSURANCE COMPANY : 

 : Electronically Filed 

 Defendants. : 

___________________________________ :

DEFENDANT’S RESPONSE TO PLAINTIFF’S 

STATEMENT OF UNDISPUTED FACTS

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

(“Aetna”), by and through its undersigned counsel, hereby submits this Response to Plaintiff’s 

Statement of Undisputed Facts: 

 1. Aetna agrees that Plaintiff brought an action pursuant to ERISA and 

Pennsylvania’s Bad Faith statute, and that Exhibit “A” is a true and correct copy of Plaintiff’s 

Amended Complaint. However, Aetna specifically disputes the legal conclusion contained in 

paragraph 1 that ERISA provides for civil remedies in the amount of $100.00 per day in addition 

to other penalties. ERISA only provides for a civil remedy of $100.00 per day where the 

Plaintiff requests documents from the Plan Administrator, and those documents are not produced 

within 30 days. 29 U.S.C. §1132(a)(2)(B). Plaintiff has made no allegation that she requested 

plan documents from the Plan Administrator, Quest Diagnostics, or that such documents were 

not produced. Further, Quest Diagnostics is not a party to this case. Thus, this provision has no 

application to this case. 

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 2. Admitted. 

 3. Admitted. 

 4. Admitted. 

 5. Admitted. 

 6. – 7. Admitted. In addition, attached as Exhibit “A” to Aetna’s Statement of 

Undisputed Facts is the version of the Plan applicable at the time that Plaintiff’s benefits were 

terminated. 

 8. Aetna disputes this paragraph. Plaintiff, if disabled, was entitled to receive 

benefits under the terms of the Plan, until the Plan required a termination. Assuming that 

disability continues, Plaintiff’s benefits could be terminated if, for example, her disability was 

due, to any extent, to a mental condition, regardless of whether or not she remains disabled. The 

claim could be terminated if Plaintiff refused to comply with requests for independent medical 

examinations, or provide appropriate medical information, regardless of whether or not she 

remains disabled. The Plan offers many scenarios where a person who is still disabled may 

nevertheless have their benefits terminated. 

 9. – 14. Admitted. 

 15. Aetna disputes Plaintiff’s characterization of this contract term. Section 9 states: 

“The terms and provision of this Contract [the Administrative Services Contract between 

MetPath Inc. and Aetna] shall be construed and enforced according to the laws of the State of 

Connecticut.” The Contract says nothing about the laws applicable to determinations made 

under the terms of the Long Term Disability Plan, because, as a matter of law, ERISA would 

preempt Connecticut law on those issues. 

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 16. Assuming that Plaintiff is referring to Exhibit “B,” Aetna refers the Court to 

Exhibit “A” to Aetna’s Statement of Undisputed Facts, which contains essentially the identical 

language. 

 17. – 20. Admitted. 

 21. Admitted with the addition that Dr. Schwartz is a psychiatrist. 

 22. Admitted with the addition that Plaintiff saw Dr. Youakim one time only for a 

sleep study, and that Plaintiff saw Dr. Goldberg five (5) times in 1995, and at no time thereafter 

during her certified period of disability. 

 23. Aetna disputes this paragraph. Aetna did not “hand pick” its medical experts. To 

the contrary, with respect to Independent Medical Examinations (“IME”), Aetna worked with 

independent contractors, who selected the physician to conduct the examination and scheduled 

the appointment. AR 133 – 35, 480, 503, 511, 527, 529, 539, 540, 559, 561, 573, 584, 589, 597, 

613, 636, 644. In addition, with respect to the records review, Aetna worked with an 

independent contractor who selected the physicians to review the documents. AR 448. 

 24. Aetna admits that the physicians listed either reviewed Plaintiff’s medical records 

or conducted an independent medical examination of Plaintiff. However, Aetna did not select 

those physicians to undertake the review. See response to paragraph 23 above. 

 25. Admitted. 

 26. Aetna disputes some of the allegations of this paragraph. Dr. Bonner is not a 

psychiatrist. Aetna admits the balance of the allegations of this paragraph. 

 27. Admitted, with the addition that Dr. Kemler was a physician who worked for 

Aetna as an independent contactor to assist with Aetna’s review of medical evidence received 

with respect to claims for benefits. 

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 28. Aetna disputes this paragraph. Dr. Kemler was an independent contractor for 

Aetna. 

 29. Aetna disputes this paragraph, and specifically takes issue with Plaintiff’s failure 

to provide Dr. Kemler’s exact language to this Court. Dr. Kemler noted in March of 1997 that 

the case was confusing because of conflicting medical evidence regarding the origin of 

Plaintiff’s disability. AR 310. He notes that Plaintiff has “subjective” symptoms of CFS, and 

requests an IME. Id. In December of 1998, Dr. Kemler noted that there were two opposing 

opinions on whether Plaintiff could return to work, and therefore recommended another IME. 

AR 328. In May of 2000, Dr. Kemler concluded that Plaintiff could return to work. AR 351. In 

January of 2001, Dr. Kemler concluded that if Plaintiff’s blood tests as recommended by Dr. 

Korzeniowski were negative then Plaintiff was not disabled. AR 384. These statements are not 

“equivocal” at all. Dr. Kemler reviewed the medical evidence before him and concluded that 

Plaintiff was not disabled. 

 30. Aetna disputes the allegations of this paragraph. Dr. Stumacher stated that 

Plaintiff conformed to the standard CDC criteria for CFS “at least by history.” He stated: “her 

present subjective and objective status are somewhat clouded by her second trimester 

pregnancy.” AR 331. He found continuation of disability justified, until reevaluation after the 

birth of her child. 

 31. Aetna disputes the allegations of this paragraph. Aetna forwarded a request to 

NMR for a medical records review. NMR selected Dr. Moyer and Dr. Slack to review the claim. 

AR 143, 144. 

 32. Admitted. 

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 33. Aetna disputes the allegations of this paragraph. Dr. Korzonioski concluded that 

“She [Plaintiff] voices numerous complaints that are consistent with the ‘syndrome’ of chronic 

fatigue, but there is no objective data to support the diagnosis.” AR 370. Dr. Korzoniowski then 

stated that if certain objective blood tests were normal, Plaintiff was not disabled. Id. Dr. 

Korzoniowski stated that she expected those tests would be normal, indicating her belief that 

Plaintiff did not have Chronic Fatigue Syndrome. 

 34. – 35. Admitted. 

 36. Aetna disputes the allegations of this paragraph. Dr. Schwartz did not state that 

the “condition” to which he was referring was CFS. 

 37. Plaintiff refers to a writing. Aetna admits that these are the words used to define 

“sequelae” in the Webster’s II Medical Dictionary. 

 38. Plaintiff refers to a writing. Aetna admits these are the words used to define 

“cause” in Webster’s II New Collegiate Dictionary. 

 39. Admitted. 

 40. Aetna disputes the allegations of this paragraph. Ms. Tedeschi terminated 

Plaintiff’s claim based on the following: “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 terminated as of July 1, 2001.” AR 222. 

 41. Aetna disputes the allegations of this paragraph. Aetna followed up with Dr. 

Korzeniowski’s recommendation by requesting the test results from Plaintiff’s treating 

physician, her psychiatrist Dr. Schwartz. Dr. Schwartz had not performed those blood tests, and 

did not perform them or refer Plaintiff to a physician to perform them pursuant to Aetna’s 

request. 

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 42. – 44. Admitted. 

 45. Admitted, with the exception that there is no emphasis in the original document. 

AR 249. 

 46. – 49. Admitted. 

 50. Admitted. 

 51. Admitted with the addition that Ms. Tedeschi testified that she sent all medical 

information to a nurse or a doctor to review, in this case, Dr. Kemler. Deposition of Michelle 

Tedeschi at p. 86. Dr. Kemler’s conclusions and recommendations are then included in the file 

and in the computer screens for Ms. Tedeschi to review. See e.g., AR 23, 102, 114, 148. 

 52. Admitted. 

 53. Aetna disputes the allegations of this paragraph. The allegation includes no 

citation to the record. Ms. Tedeschi terminated Plaintiff’s claim based on the following: “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 

terminated as of July 1, 2001.” AR 222. 

 54. Admitted, with the addition that Plaintiff was not under the care of any other 

physician at the time her benefits were terminated. 

 55. Aetna disputes the allegations of this paragraph. Plaintiff includes no citations to 

the record to support these allegations. Further, because Plaintiff never received regular medical 

treatment for CFS, there is no way of knowing whether or not Plaintiff’s condition changed 

during her certified period of disability. 

 56. – 58. Admitted. 

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 59. Aetna admits that Ms. Williams testified that the basis for terminating Plaintiff’s 

benefits was the fact that she received no treatment for her physical condition of CFS, and that 

she had exhausted any benefits for a mental / nervous condition. Aetna disputes the allegations 

that none of the medical records supports disability due to a mental disorder. The record is 

replete with citations to Plaintiff’s depression and somatoform disorder (see e.g., AR 4, 23, 48, 

66, 94, 112, 164, 298300, 301, 303), and Plaintiff was treated for the entire certified period of 

disability by a psychiatrist. 

 60. Admitted. 

 61. Admitted. 

 62. Admitted with the addition that Ms. Williams testified that she reviewed the entire 

file as part of her appeal, including all of Dr. Kemler’s notes and other medical information 

contained therein. Deposition of Tammy Williams at p. 12. 

 63. Aetna disputes the allegations of this paragraph. Ms. Williams testified that she 

probably looked the term up at the time, that she could not remember its exact meaning at the 

time of the deposition, and that it referred to “part of” her condition. Deposition of Ms. Williams 

at p. 13. Ms. Tedeschi testified that she did not know the meaning of the term at the time of the 

deposition. Deposition of Ms. Tedeschi at p. 99. She was not asked, and she did not testify as 

to whether she would have looked up the term at the time of the termination. The records show 

that the term was unreadable to her at the time she received the note from Dr. Schwartz, but she 

used the word “part” in describing his statement. AR 186. Both Ms. Williams and Ms. Tedeschi 

understood that Dr. Schwartz was stating that there was a psychological or psychiatric “part” of 

her CFS, and that he was only treating that part of her disability. 

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 64. Aetna disputes the allegations of this paragraph regarding what Ms. Williams 

knew in December of 2001. Ms. Williams testified that were psychiatric diagnoses in the file, 

and that she would have reviewed the entire file in reviewing Plaintiff’s appeal. Deposition of 

Ms. Williams at p. 12. The remainder of this paragraph is admitted. 

 65. Admitted. 

 66. Aetna disputes the legal conclusions contained in this paragraph. Aetna filed a 

Motion to Dismiss raising and preserving objections to Plaintiff’s ERISA and bad faith claims, 

and those paragraphs and counts of the complaint are thus not admitted. Further, Aetna has filed 

a Motion for Enlargement of Time to file its Answer, based on the close timing of the Court’s 

Order denying an appeal of the Court’s ruling on the Motion to Dismiss, and the scheduling of 

deadlines for dispositive motions. Filing the answer will work no prejudice on Plaintiff, because 

all of Aetna’s defenses are preserved in its Motion to Dismiss. Further, under these 

circumstances, Aetna’s Motion for Summary Judgment serves as a responsive pleading. Aetna 

hereby incorporates by reference its Motion for Enlargement of Time and accompanying 

Memorandum of Law as if more fully set forth. 

 67. – 72. Aetna disputes the legal conclusions of these paragraphs. There is no cite 

to the record, and certainly the paragraphs do not contain factual allegations as required by the 

Court’s Order. Further, Aetna incorporates by reference its Motion for Summary Judgment 

which demonstrates that Aetna properly applied the terms of the Plan to Plaintiff’ claims, and 

that Pennsylvania’s “bad faith” statute has no application to this case as it is preempted by 

ERISA. Aetna also refers the Court to paragraph 66 above. 

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 Respectfully submitted, 

OF COUNSEL: /s/ Patricia C. Collins________________________ 

ELLIOTT REIHNER 

SIEDZIKOWSKI & EGAN, PC PATRICIA C. COLLINS 

 Union Meeting Corporate Center V 

 925 Harvest Drive 

 Blue Bell, PA 19422 

 977-1000 

DATED: September 5, 2003

Case 2:02-cv-04330-TJS Document 36 Filed 09/05/2003 Page 9 of 10
CERTIFICATE OF SERVICE

 I, Patricia C. Collins, Esquire, hereby certify that on this date I served the 

foregoing upon the following and in the manner indicated below: 

Via First Class Mail, Postage Prepaid 

Theodore A. Schwartz, Esquire 

1620 Locust Street 

Philadelphia, PA 19103-6392 

 /s/ Patricia C. Collins 

 Patricia C. Collins, Esquire 

DATED: September 5, 2003 

 

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