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I was wrong. Wrong about an important part of ObamaCare.
When I joined the Obama White House to advise the president on health-care policy as the only physician on the National Economic Council, I was deeply committed to developing the best health-care reform we could to expand coverage, improve quality and bring down costs. We worked for months to pass this landmark legislation, and I still count celebrating the passage of the Affordable Care Act with the president one balmy spring night in 2010 as one of my greatest Washington memories.
What I got wrong about ObamaCare was how the change in the delivery of health care would, and should happen. I believed then that the consolidation of doctors into larger physician groups was inevitable and desirable under the ACA. I joined my White House health-care colleagues – Ezekiel Emanuel and Nancy-Ann DeParle – in writing a medical journal article arguing that “these reforms will unleash forces that favor integration across the continuum of care.” We added that “only hospitals or health plans can afford to make the necessary investments” needed to provide the care we will need in a post-ACA world.
Well, the consolidation we predicted has happened: Last year saw 112 hospital mergers (up 18 percent form 2014). Now I think we were wrong to favor it.
I still believe that organizing medicine into networks that can share information, coordinate care for patients and manage risk is critical for delivering higher-quality care, generating cost savings and improving the experience for patients. What I know now, though, is that having every provider in health care “owned” by a single organization is more likely to be a barrier to better care.
Over the past five years, published research, some of it well summarized on a Harvard Medical School site, has indicated that savings and quality improvement are generated much more often by independent primary-care doctors than by large hospital-centric health systems.
Look at accountable-care organizations (ACOs), in which doctors and health-care providers come together to provide complete care for an individual and are compensated for keeping them healthy and generating savings. Based upon the latest data the Centers for Medicare and Medicaid Services has released, from 2014, independent physician-led ACOs, like the Rio Grande ACO on the Texas border, are outperforming ACOs from many of the most famous health systems. Johns Hopkins Hospital in Baltimore has been ranked as one of the top three health systems in the nation, but its ACO failed to achieve shared savings in 2014.
Small, independent practices know their patients better than any large health system ever can. They are going up against the incumbent and thus are driven to innovate. These small businesses can learn faster without holding weeks of committee discussions and without permission from finance, legal and IT departments to make a change.
In my White House days, we believed it would take three to five years for physicians to use electronic health records effectively. We were wrong about that too. At every opportunity, organized medicine has asked to delay and lower thresholds for tracking and reporting basic quality measures; yet they have no reason to delay.
In the ACOs run by Aledade, which advises small medical practices (I sit on its board), we have found that independent primary-care doctors are able to change their care models in weeks and rapidly learn how to use data to drive savings and quality. For small practices, it does not take years to root out waste, rewire referrals to providers who charge less but deliver more, and redesign schedules so patients can see their doctors more often to avert emergency-room visits and readmissions.
Recognizing the strength in the small practices, the federal government needs to write rules that make it easier for them to thrive under ObamaCare and don’t tip the scales toward consolidation. That means introducing payment models that limit losses for small providers to the Medicare dollars they receive rather than total spending, and which rely on multiyear benchmarks instead of single-year swings. It also means comparing small practices to other small ones—instead of to large health systems with large balance sheets—when determining if a practice deserves bonus payments for savings.
Large health systems deliver “personalized” care in the same way that GM can sell you a car with the desired options. Yet personal relationships of the kind often found in smaller practices are the key to the practice of medicine. They are the relationships that doctors want to forge with patients, and vice versa. It may sound old-fashioned, but what I have learned is that we do not need to sacrifice this unique feature of our health-care system as we move forward in adapting new value-based payment models and improving the health of patients.
Just months after the Affordable Care Act (ACA) survived a serious legal threat at the Supreme Court, a federal judge gave a boost Wednesday to what could be yet another a major court challenge to the healthcare law.
U.S. District Judge Rosemary Collyer decided House Republicans have standing to sue over their allegation that the administration is illegally spending money that Congress never appropriated for the law’s cost-sharing provisions. Those provisions include reduced deductibles, copays and coinsurance for many beneficiaries depending on income.
The judge also wrote, however, that the House does not have standing to sue over a separate allegation in the lawsuit that the administration had no right to delay the law’s employer mandate, which requires companies with 50 or more employees to provide coverage.
The administration also argued that the House shouldn’t be granted standing because the fight is essentially a political one.
House Speaker John Boehner (R-Ohio) issued a statement praising Collyer’s opinion. “The president’s unilateral change to Obamacare was unprecedented and outside the powers granted to his office under our Constitution,” Boehner said.
The U.S. Justice Department said it plans to appeal the decision.
Now that the case is moving forward, some experts say it could pose a significant threat to the law itself.
About 56% of Americans who receive coverage through the ACA’s insurance exchanges get cost-sharing reductions, lowering the amounts they pay out-of-pocket for deductibles, coinsurance and copayments, according to the CMS. That equals about 5.6 million people.
Without the reductions, “most of the people in the exchanges are not going to want to participate in the exchanges because most exchange participants are receiving cost-sharing subsidies,” said Michael Cannon, a director of health policy studies for the libertarian Cato Institute and a key influence behind the lawsuit that led to the Supreme Court’s King v. Burwell opinion in June. If many healthy people drop out of the exchanges because cost-sharing subsidies disappear, then premiums may rise for those left in the exchanges, he said.
It’s a concern that’s similar to the one many expressed in the debate about King v. Burwell. The challengers in that case argued that the law said insurance premium subsidies should only be available to Americans in states with their own exchanges. The Supreme Court, however, sided with the government in that case in a 6-3 decision that many experts say saved the overall law.
Tim Jost, a law professor at Washington and Lee University who supports the ACA, said healthcare could become unaffordable for many Americans if House Republicans prevail in this latest case.
“If the insurers are required to provide cost sharing reductions but not reimbursed, that’s going to cause very serious financial problems for the insurers, and if they cease to provide cost-sharing reductions, it’s going to cause very, very serious problems for a lot of Americans,” Jost said.
Then again, Jost said, if the House succeeds in the lawsuit, Congress might just have to appropriate the money for cost-sharing because it’s required under the law.
There are other reasons, too, that a Republican victory in the case might not shake the foundations of the law as much as a loss for the government in King v. Burwell would have.
Richard Kogan and Edwin Park of the left-leaning Center on Budget and Policy Priorities recently wrote that beneficiaries will continue to receive cost-sharing reductions regardless of the case’s outcome because they are an entitlement under the ACA.
If Congress refused to appropriate money for the reductions, insurers could then seek relief in the U.S. Court of Federal Claims and would likely win, Kogan and Park wrote.
Meanwhile, Collyer’s ruling on standing may get reversed on appeal before the lawsuit is decided.
Jost said her decision runs contrary to precedent. “She basically concludes that she’s in uncharted waters and can decide for herself what the law should be,” Jost said.
Kermit Roosevelt, a University of Pennsylvania constitutional law expert, said it’s difficult to predict how the case might unfold given that most similar questions haven’t made it past the hurdle of establishing standing. Roosevelt said the case might end up making new law.
Insurance premium subsidies will continue to flow to Americans in all states under the Affordable Care Act, the U.S. Supreme Court decided 6-3 in King v. Burwell on Thursday.
The justices sided with the Obama administration in the historic decision, saying the healthcare law allows Americans in all states—not just those that established their own exchanges—to receive the subsidies.
Chief Justice John Roberts and Justice Anthony Kennedy were the swing votes in the case, siding with the more liberal justices.
An estimated 6.4 million Americans receive the subsidies in the 34 states that don’t have their own exchanges, in many cases relying on them to afford their health insurance, according to HHS.
Many had worried a decision in the opposite direction would lead to a dramatic spike in the nation’s uninsured and the disintegration of the healthcare law itself.
The challengers in the case pointed to one part of the law that says subsidies are available only to those who enroll through an “exchange established by the state.” The federal government, however, argued that the law’s purpose is clear in allowing Americans in every state to be eligible for subsidies and that other parts of the law indicate that.
In siding with the Obama administration Thursday, the justices refused to consider the phrase “exchange established by the state” in isolation. Instead, they looked at the broader context and structure of the law.
“In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase,” Roberts wrote in the opinion.
The Internal Revenue Service has interpreted the law to allow subsidies in all states, but the four individual plaintiffs in the case said that interpretation was wrong. The Supreme Court, however, refused to entertain that idea in their opinion.
The justices declined to apply what’s known as the Chevron doctrine, an oft-cited precedent that says federal agencies must follow the letter of the law where the law is clear. Under the doctrine, if a law is ambiguous, courts must defer to a government agency’s reasonable interpretation of it.
The justices said in their opinion it’s extremely unlikely Congress would have delegated interpretation of the law to the IRS, so the Chevron doctrine wasn’t appropriate for this case.
“Had Congress wished to assign that question to an agency, it surely would have done so expressly … It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort,” Roberts wrote in the opinion.
Some had speculated that if the court had used the Chevron doctrine to decide the case—finding the language of the law ambiguous and allowing the IRS’ interpretation—future presidential administrations could have re-interpreted the statute and pulled the plug on subsidies.
Roberts didn’t seem to want to expose the law to that type of uncertainty by applying the Chevron doctrine, said Ankur Goel, a partner with McDermott Will & Emery who co-authored an amicus brief siding with the government on behalf of the American Public Health Association.
Last summer, a 4th U.S. Circuit Court of Appeals panel in Virginia unanimously ruled in favor of the administration in King v. Burwell, saying subsidies should be allowed in all 50 states.
Dissenting on the decision were Justices Antonin Scalia, Samuel Alito and Clarence Thomas.
Chip Kahn, CEO of the Federation of American Hospitals, called the decision “welcome news” in a statement Thursday.
The three dissenting justices, however, criticized the majority for performing “somersaults of statutory interpretation” in their dissent, written by Scalia.
Scalia argued that the phrase “established by the state” is clear. Context matters, he said, but should be used as a tool for understanding laws, “not an excuse for rewriting them.” He added that the context of the ACA actually undermines the majority’s reading.
But Tim Jost, law professor at Washington and Lee University and a prominent ACA proponent, countered that the majority made the only logical decision.
“It was obvious from the beginning that Congress intended the federally facilitated as well as state exchanges to grant premium tax credits, and if the court was willing to read the statute as a whole and not just focus on four words, it could not avoid that conclusion,” Jost said.
Others, however, agreed with Scalia.
“In the end, the court once again had to rewrite the plain text of Obamacare, in the words of Justice Scalia, to save the Affordable Care Act,” said Josh Blackman, an assistant professor at South Texas College of Law who filed an amicus brief in the case on behalf of the Cato Institute siding with the challengers.
Blackman added that it was curious that Roberts pointed out in his opinion that key parts of the law were written behind closed doors rather than through the traditional legislative process. Roberts also noted that much of the act was passed using a complex budgetary procedure known as reconciliation, which limited chances for debate and amendment.
President Barack Obama remains optimistic that the Affordable Care Act will remain the law of the land for years to come despite a pending Supreme Court decision that could derail the legislation.
Before the end of June, the high court is expected to issue a ruling in King v. Burwell, in which ACA opponents claim that only states with their own exchanges are eligible to receive subsidies. If the court rules against the administration, an estimated 6.4 million Americans in states using the federal exchange would lose subsidies totaling $1.7 billion, according to the Kaiser Family Foundation.
President Obama didn’t explicitly address the pending case during his remarks at the closing of the Catholic Hospital Association Conference, but spoke about the law being around for years to come, to the point that his own daughters would have coverage options after they turned 26.
He went on to say that most people who have obtained coverage as the result of the law are generally happy with their care and the premiums they pay, and noted they would have been as much as $1,800 more today had trends over the decade before the ACA passed continued.
“In the years to come, countless Americans who can now buy plans that are portable and affordable on a competitive marketplace will be free to chase their own ideas, unleash new enterprises across the country, knowing they’ll be able to buy health insurance,” Obama said.
The CHA, which is celebrating it’s 100th anniversary during this week’s conference, was one of Obama’s most reliable allies in getting the Affordable Care Act passed. During his speech, Obama said he could not have gotten the law passed without CHA President and CEO Sister Carol Keehan. Keehan wrote in a 2013 Modern Healthcare op-ed that the law would help Catholic systems advance their mission of caring for the underserved.
The burgeoning group of official and unofficial GOP presidential candidates all agree on one thing when it comes to healthcare policy: They really, really hate Obamacare.
But differences are emerging on the candidates’ approaches to strengthening the long-term finances of Medicare, with former Arkansas Gov. Mike Huckabee bucking Republican orthodoxy. That could become an important fissure in the GOP presidential primary campaign.
Some candidates, while providing few details, have offered clues on their vision for repealing and replacing the ACA. Sen. Marco Rubio (R-Fla.) has proposed a three-part plan including premium tax credits for individuals that he says would be comparable to the tax breaks for employer-based health plans.
He also backs a menu of long-standing conservative policy nostrums, including allowing insurers to sell plans across state lines and expanding health savings accounts.
But Bush’s tenure as a well-paid board member for Tenet Healthcare Corp.—which has strongly supported coverage expansion efforts under the ACA—has prompted skepticism among some conservatives about his anti-Obamacare bona fides. Bush stepped down from the board in December, when he began actively exploring a presidential campaign.
The GOP field, with two major exceptions, is also unified in rejecting the ACA’s Medicaid expansion. Louisiana Gov. Bobby Jindal and Wisconsin Gov. Scott Walker have boasted about their refusal to take the federal dollars, which hasn’t been broadly popular in their own states. In contrast, New Jersey Gov. Chris Christie and Ohio Gov. John Kasich supported Medicaid expansion in their states.
Differences also are emerging over Medicare. Christie has made major Medicare and Social Security restructuring the centerpiece of his agenda, proposing to gradually raise the Medicare eligibility age to 69 and hike premiums for seniors with incomes above $85,000. His proposal is seen as an effort to revive his scandal-marred presidential prospects, but it could alienate the GOP base of older voters.
Last month, Bush and Rubio also came out in favor of raising the retirement age for future Medicare beneficiaries. “The math is unmistakable,” Rubio said. Two other declared candidates, Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Texas), have long backed gradually raising the Medicare age. None of them have addressed the Congressional Budget Office’s 2013 finding that raising the Medicare age to 67 would have only a modest effect on the federal deficit because it would lead to higher spending on Medicaid and ACA premium subsidies.
But Huckabee has staked out a sharply different, populist stance on Medicare, vowing to protect the program from cuts. “I’ll never rob seniors of what our government promised them and even forced them to pay for,” he said last week.
That could cause headaches for other Republican candidates because most have embraced the ambitious entitlement restructuring agenda laid out by Rep. Paul Ryan (R-Wis.). Medicare is highly popular with voters, especially seniors, and Democrats effectively pummeled the GOP ticket of Mitt Romney and Paul Ryan on the Medicare issue during the 2012 president campaign.


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The controller will no longer process the personal data concerning you unless he can demonstrate compelling legitimate grounds for processing that outweigh your interests, rights and freedoms, or the processing is for the purpose of enforcing, exercising or defending legal claims. If the personal data relating to you are processed for the purposes of direct marketing, you have the right to object at any time to the processing of your personal data for the purpose of such advertising. This also applies to profiling insofar as it is associated with such direct mail.
In the event that you object to the processing for direct marketing purposes, your personal data will no longer be processed for these purposes.
Regarding the use of information society services, you have the option, irrespective of Directive 2002/58 / EC, to exercise your right to object through automated procedures that use technical specifications. You also have the right to object to the processing of personal data relating to you for scientific or historical research purposes or for statistical purposes under Article 89 (1) GDPR for reasons arising from your particular situation.
Their right of objection may be limited insofar as it is likely to render impossible or seriously affect the realization of research or statistical purposes and the restriction is necessary for the performance of research or statistical purposes.
You have the right to revoke your data protection declaration at any time. The legality of the processing carried out on the basis of the consent until the revocation is not affected by the revocation of the consent.
With regard to the cases mentioned in (1) and (3), the person responsible shall take appropriate measures to safeguard the rights and freedoms and their legitimate interests, including at least the right to obtain the intervention of a person on the part of the person responsible, own position and to challenge the decision.
The right to complain to a supervisory authority, in particular in the Member State of its residence, place of work or place of alleged infringement, is without prejudice to any other administrative or judicial remedy, if you consider that the processing of the personal data concerning you is against the DSGVO violates.

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Engle v. Liggett Group Inc.
Soffer v. R.J. Reynolds Tobacco Co.
Congratulations to Judge Suarez on his election to chief judge-elect! Coincidentally, the two opinions below were both authored by him.
Constr. Sys. of Am. v. Travelers Cas. & Sur. Co. of Am., 2013 Fla. App. LEXIS 12329 (Fla. 3d DCA August 7, 2013) involved a petition for certiorari in a seven-year-old suit where counsel inadvertently received privileged documents. A motion to compel return of the documents and a motion to disqualify the law firm were referred to a special magistrate.
The special magistrate issued a report and recommendation finding the documents constituted fact work product. However, he concluded the privilege had been waived and recommended denial of both motions. The trial court rejected the recommendation and granted the motions, concluding that no waiver had occurred and the possibility counsel had gained an unfair informational advantage from the disclosure required disqualification.
The opinion reviews the five-factor analysis established in prior cases: (1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosures; and (5) whether the overriding interests of justice would be served by relieving a party of its error.
G.E. v. Chuly Int'l, 2013 Fla. App. LEXIS 12334 (Fla. 3d DCA August 7, 2013) reversed an order denying GE’s motion for pre-judgment writ of attachment against Chuly’s property. GE had sued Millennium and a guarantor, but while the action was pending, the guarantor gave a $1.74 million loan to Chuly, a company owned by the guarantor’s then girlfriend. This loan was subsequently forgiven. When GE discovered this, it filed a verified motion for a prejudgment writ of attachment against Chuly for the amount of the Chuly loan and was willing to post a bond in excess of the amount it sought from Chuly. After an evidentiary hearing, the circuit court summarily denied GE's motion for prejudgment writ of attachment or garnishment.
In an action for relief against an allegedly fraudulent transfer sought pursuant to Chapter 726, Florida Statutes, a creditor may seek an attachment against the transferred asset. § 726.108(1)(b), Fla. Stat. (2013). Because the determination of actual fraudulent intent can be difficult, courts look to certain “badges of fraud” to determine whether the transfer was made with the intent to defraud creditors. Those “badges of fraud” are set forth in section 726.105, Florida Statutes (2013).
The record revealed that the transfer was made to an insider without adequate consideration; the transfer was concealed and it was made shortly before or shortly after a substantial debt was incurred. Chuly did not present sufficient evidence to rebut the initial presumption of fraudulent transfer. Further, GE asserted it would provide a bond in the amount of $3,200,000.00, more than twice the amount of the debt sought against Chuly. See § 76.12, Fla. Stat. (2013).
Juan Ramirez Jr. covers cases from federal circuit courts and the U.S. Supreme Court, in addition to opinions out of the Florida appellate courts, on his Civil Dispute Law Update blog. Coverage has also been extended to ADR cases.


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SPALDING LAUNDRY & DRY CLEANING v. DEPT. OF REV. OF KY.
Alexander v. Holmes County Bd. of Ed.
NATIONAL LABOR RELATIONS BOARD v. CLARK'S GAMBLE CORP.
Anderson's Black Rock, Inc. v. Pavement Co.
Conway v. California Adult Auth.
NATIONAL SMALL SHPT. CONF. v. MIDDLEWEST MTR. F. B.
Carter v. West Feliciana Parish Sch. Bd.
Sullivan v. Little Hunting Park, Inc.
NLRB v. J. H. Rutter-Rex Mfg. Co., Inc.
REEVES v. PACIFIC FAR EAST LINES, INC.
N.Y., NEW HAVEN & HARTFORD R. CO. FIRST v. U.S.

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On the agenda for Whitemarsh’s Zoning Hearing Board on Wednesday, November 7th at 7:00 p.m. is the proposal to build 75 townhomes at 901 Washington Street on the riverfront in Conshohocken (Whitemarsh Township).
ZHB#2018-26: 901 Washington Partners, LP, 901 Washington Street, Conshohocken, PA; Parcel #65-00-12672-00-7; Block 010 & 011; Units 026 & 039; HVY-Heavy Industrial District; RDD-1 Riverfront Development Overlay District Sub-district 1; Floodplain Conservation Overlay District; Riparian Corridor Conservation Overlay District. The Applicant is proposing to redevelop the property for 75 townhouses (single-family attached dwelling units) with parking beneath. The following relief is requested: 1. Special exception under § 116-166.A.(1) to permit waterrelated uses and activities such as marinas, docks, wharves and piers in the floodway. An emergency boat launch is proposed. 2. Variance from § 116-165. to permit structures within the Floodplain Conservation District that are not permitted under this section. 3. Variance from § 116-280.H to permit an exclusively residential development where a minimum of two percent (2%) of the footprint area of a residential development is required to contain a permitted nonresidential use. 4. Variance from § 116-281.A.(7)(a) to permit a building height of four habitable (4) stories above the floodplain where the maximum building height permitted for a single-family house is three (3) habitable stories above the floodplain. 5. Variance from § 116-281.A.(8) to permit impervious coverage greater than the permitted 75%, though the Applicant proposes to reduce impervious coverage from the previous existing condition of the Property. 6. Variance from § 116-281.A.(9) to permit the proposed area of riverfront open space to be included in the calculation of total tract area. This section requires riverfront open space to be netted out of the tract area when computing impervious and building coverages. 7. Variance from § 116-284.A. to permit a reduction in the required riverfront area of 150 feet, such that the area may be reduced to not less than 45 feet in width. This application was continued from the December 5, 2018 hearing. By e-mail dated January 4, 2019, the applicant’s attorney has requested a continuation until the February 6, 2019 meeting.
The meeting will be held at the Whitemarsh Township building at 616 Germantown Pike in Lafayette Hill.


The Bergmanns participated in a listed transaction promoted by KPMG, known as the Short Option Strategy. When the Bergmanns filed their amended return in March 2004, the IRS had already served KPMG with summonses targeted at KMPG’s promotion of the Short Option Strategy. As discussed in an earlier post, the Tax Court held that the Bergmanns failed to timely file a qualified amended return and thus were subject to the 20-percent accuracy related penalty. Under the regulations in effect when the taxpayers filed their return, the time for filing a qualified amended return terminated when “any person described in § 6700(a) (relating to the penalty for promoting abusive tax shelters) is first contacted by the Internal Revenue Service concerning an examination of an activity described in § 6700(a) with respect to which the taxpayer claimed any benefit on the return . . . .” Treas. Reg. § 1.6664-2(c)(3)(ii). The Tax Court rejected the Bergmanns’ argument that the promoter provision of the qualified amended return regulations required the IRS to establish that KPMG was liable for the § 6700 promoter penalty.
On appeal, the Bergmanns’ principal argument is that the Tax Court erroneously applied the current qualified amended return regulation rather than the regulation in effect when the amended return was filed. The current regulation, Treas. Reg. § 1.6664-2(c)(3)(i)(B), which applies to amended returns filed on or after March 2, 2005, treats as a terminating event the “date any person is first contacted by the IRS concerning an examination of that person under § 6700 . . . for an activity with respect to which the taxpayer claimed any benefit on the return,” rather than the date “any person described in § 6700(a)” is contacted. The Bergmanns acknowledge that their amended return would be untimely under the current regulations.
The Bergmanns argue that the Tax Court must have relied on the current regulations because its paraphrase of the regulation tracks the language of current regulation. In its brief, the Government argues that it was clear from both the post-trial briefing and the Tax Court’s decision that the Tax Court was fully aware of which regulation was controlling and in fact cited the correct version. The Government then argues that the Tax Court correctly interpreted the operative regulation. Because the terminating event is the “first contact” with the promoter, the timing should not turn on the ultimate results of the § 6700 investigation of the promoter. And, the Government argues, any ambiguity in the regulations should be resolved by deference to the agency’s interpretation of the regulation. The Treasury Decision accompanying the amended version of the promoter provision explained that the new language was intended to “clarify the existing rules,” and, specifically, that the language “clarifies that the period for filing a qualified amended return terminates on the date the IRS first contacts a person concerning an examination under section 6700, regardless of whether the IRS ultimately establishes that such person violated section 6700.” T.D. 9186, 2005-1 C.B. at 791-82. The taxpayers’ reply brief largely ignores the Government’s arguments. Oral argument has not yet been scheduled.


In the M&R in this case, the Honorable Dennis L. Howell, United States Magistrate Judge, analyzed the available record, including the disability decision from the State of North Carolina and the decision of the Administrative Law Judge (“ALJ”) (#15). Ultimately, Judge Howell recommended that the court grant defendant's Motion for Summary Judgment (#11).
Defendant has filed three objections to the M&R (#16). First, the magistrate judge held that recent evidence offered by plaintiff does not constitute the kind of new and material evidence that justifies further review by the Appeals Council. Plaintiff objects, arguing that the evidence is new and material and should be considered on remand. Second, the magistrate judge held that the ALJ properly considered mental impairments when formulating plaintiff's mental residual functional capacity (“RFC”). Plaintiff objects, arguing that the ALJ did not fully and properly assess plaintiff's mental RFC. Third, the magistrate judge held that the ALJ properly considered the medical opinions of record in determining plaintiff's RFC. Plaintiff objects, arguing that there are inconsistencies that the ALJ failed to explain and that the court is improperly relying on post hoc rationalizations instead of the record. The court considers defendant's objections below.
The Federal Magistrates Act of 1979, as amended, provides that “a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). However, “when objections to strictly legal issues are raised and no factual issues are challenged, de novo review of the record may be dispensed with.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). Similarly, de novo review is not required by the statute “when a party makes general or conclusory objections that do not direct the court to a specific error in the magistrate judge's proposed findings and recommendations.” Id. Moreover, the statute does not on its face require any review at all of issues that are not the subject of an objection. Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d at 200. Nonetheless, a district judge is responsible for the final determination and outcome of the case, and accordingly the court has conducted a careful review of the magistrate judge's recommendation, the ALJ's decision, and the record as a whole in determining whether plaintiff's objections are valid.
In his first objection, plaintiff asserts that the magistrate judge improperly held that new evidence offered by plaintiff did not warrant remand and review by the Appeals Council. The evidence in question pertains to the state of plaintiff's hip, as plaintiff argues that records from plaintiff's treating orthopedic surgeon and plaintiff's primary care provider shed further light on problems with plaintiff's hip that plaintiff argues are relevant to the findings of the ALJ and the Appeals Council. In the M&R, the magistrate judge found that the new evidence was not truly new and that remand was unnecessary.
Here, the court agrees with the magistrate judge's finding. Evidence is new if it is “not duplicative or cumulative” and material “if there is a reasonable possibility that the new evidence would have changed the outcome.” Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991); see also Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985). The “new” evidence offered by plaintiff concerning plaintiff's hip pain appears to be duplicative and cumulative. For example, plaintiff notes that the new evidence includes plaintiff's orthopedic surgeon opining that plaintiff may need to consider hip replacement in the future due to plaintiff's hip pain. But at the hearing with the ALJ, plaintiff already opined that he would be getting a hip replacement in the future, rendering it unclear what more this new evidence offers for review. Further, such evidence only reinforces that plaintiff's hip pain is short-term, or at the very least remediable, and neither short-term pain nor remediable pain warrant a finding of disability. See Bradley v. Ribicoff, 298 F.2d 855, 857 (4th Cir. 1962); 42 U.S.C. § 423(d)(1)(A). Finally, plaintiff has not shown that the evidence is material, or at least enough that there is a possibility the outcome would have changed. Even accepting that plaintiff's hip pain has worsened as described by the new evidence plaintiff offers, the ALJ's RFC appears to account for any worsening of hip pain by limiting plaintiff to “the full range of sedentary work, ” based in no small part on plaintiff's present hip pain. (Tr. 24-25.) At any rate, the court agrees with the magistrate judge's holding and finds no reason for remand on the basis of new evidence.
In his second objection, plaintiff asserts that the ALJ did not properly and fully assess plaintiff's mental RFC since the ALJ did not explain what effect plaintiff's limitations in concentration, persistence, and pace have on his RFC and his ability to stay on task. In the M&R, the magistrate judge found that the ALJ properly explained why plaintiff's depression was non-severe and did not create any work-related limitations for plaintiff's RFC.


On June 26, 2018, the New Jersey Supreme Court issued its long-awaited decision in Continental Insurance Company v. Honeywell International, addressing choice of law and whether there should be an equitable exception to the unavailability rule under New Jersey’s Owens-Illinois/Carter-Wallace long-tail allocation approach if an insured continues to manufacture and sell asbestos products after insurance for asbestos bodily injury claims became unavailable. Coughlin Duffy LLC represented plaintiff Continental Insurance Company, who had settled prior to the appeal.
The Court clarified the choice of law analysis applicable to insurance coverage disputes involving “nationwide products-liability claims spanning many years of product exposure rather than a single occurrence event.” Slip op. at 46. It held that the choice of law analysis for these claims should focus on the parties’ Restatement (Second) Conflicts of Laws §188 contacts with the respective states in relation to the Restatement §6 factors as “condensed” by Pfizer Inc. v. Employers Ins., 154 N.J. 187 (1998). In holding that New Jersey allocation law should apply, the Court minimized the importance of the place of contracting, and instead stressed the Insured’s principal place of business and domicile at the time the underlying claims were made, and the place of performance of the insurers’ defense and indemnity obligations. The Court rejected Travelers’ and St. Paul’s arguments that, upon finding an actual conflict exists, the choice of law analysis should commence with the presumption that the law of the place of contracting should govern, unless a competing state has a more compelling interest in the subject matter. The decision will be helpful for New Jersey domiciled insureds who seek to have New Jersey law apply to their products coverage actions.
The Court declined to adopt an equitable exception to Owens-Illinois’ unavailability rule, under which periods where insurance for the relevant risk was unavailable to the insured are excluded from the allocation block. Travelers and St. Paul had argued that Honeywell should be treated as self-insured from 1987, when excess insurance for its asbestos products became unavailable, through 2003, because Honeywell continued to manufacture asbestos-containing friction products from 1987 to 2003. The Court rejected that argument. The Court stressed that Honeywell was not asking the insurers to provide coverage for claims where the first exposure was after 1987. The Court characterized the insurers’ proposal to extend the allocation block as “a novel equitable exception … that would retroactively deprive parties of paid-for insurance coverage due to their post-coverage-period conduct,” slip op. at 55, and held that the insurers did “not present a proper factual basis to revisit the unavailability rule that is part of the coherent principles that comprise [New Jersey’s] allocation methodology.” Id. At 61-62.
Justice Albin filed a vigorous dissent to the Court’s ruling on the unavailability rule, noting that although Honeywell was seeking coverage for claims with first exposures before 1987, its manufacture and sale of asbestos products after 1987 increased the asbestos exposure of workers exposed before 1987, increasing the risk and severity of asbestos-related injury. Justice Albin characterized the majority’s decision as shifting the manufactures’ liability to its prior insurers and “incentiviz[ing] corporations to manufacture products that are dangerous, and even lethal …” Dissent at 11.
Although the Court’s decision on the unavailability rule is a setback for insurers, it should not come as a surprise given that New Jersey’s “pro rata by time and limits” allocation methodology is based on the degree of risk transferred and retained by the insured, and it incorporated the unavailability rule at its inception. The majority’s reasoning is closely tied to the policies and principles behind New Jersey’s unique allocation approach, rather than the language of the insurance policies. Therefore, the decision may have limited impact on other states looking at the unavailability rule. Courts applying a more traditional pro rata allocation method may find Justice Albin’s concerns, and the New York Court of Appeal’s policy-language based decision rejecting the unavailability rule in KeySpan Gas East Corp. v. Munich Reinsurance America, Inc., 31 N.Y.3d 51 (2018), more persuasive and relevant. With Honeywell and KeySpan, we have now heard from two of the three Northeastern state high courts considering the application and scope of the unavailability rule. Whether the third state, Connecticut, follows New York or New Jersey, or goes its own way, may be decided in the pending appeal of R.T. Vanderbilt Company, Inc. v. Hartford Accident & Indemnity Co., 171 Conn. App. 61 (App. Ct. 2018).


CITY OF HERMITAGE, et al, Defendants.
At the center of this case is a series of episodes involving the Plaintiff and his alleged desire to walk his dogs in and around Buhl Park and feed its wildlife. Buhl Park is a private reservelocated in the City of Hermitage, which is in Mercer County, Pennsylvania. The Plaintiff brings claims for violations of his rights under the First and Fourteenth Amendments, for an alleged conspiracy to violate those rights, along with a state law claim for assault and battery as to Defendant Roy Hamor.
All Defendants have moved for summary judgment. ECFNos. 115, 119, 123. The matters have been fully briefed, and oral argument held. For the reasons which follow, the motions for summary judgment as to all of the Plaintiffs claims based on federal law are granted. The motion as to the remaining state law claim for assault and battery against Defendant Hamor is denied without prejudice. As to that remaining claim, the Court's jurisdiction is based only on the exercise of supplemental jurisdiction, 28 U.S.C. § 1367(c)(3). Because that would be the only claim left in this case, and against only one Defendant (Hamor), that claim will be dismissed without prejudice for lack of subject matter jurisdiction, and the Plaintiff is free to pursue that claim in state court should he seek to do so, and to the extent permitted by state law.
The central events in this case unfolded from May, 2013 to October, 2014. On May 1, 2013, it appears that the Plaintiff got into a wrestling match with Defendant Hamor when Hamor allegedly saw that Plaintiff was feeding wildlife in the Park contrary to Park directives to the Plaintiff that he not do so. Plaintiff and Hamor each say that that grappling was the fault of the other. Based on what he saw when he was called to the scene, and what a third-party witness told him, the responding Hermitage Police Officer, Defendant Erickson, cited both of those actors for harassment and disorderly conduct under state law. ECF No. 125-1 at 5. It appears that Plaintiff was convicted at the local magistrate of harassment in November, 2013, but the charges were later withdrawn when an appeal was taken to the Court of Common Pleas of Mercer County, Pennsylvania. ECF No. 125-1 at 14.
On May 15, 2013, the Park sent the Plaintiff a certified letter advising him that he was barred from the Park due to his feeding of wildlife in the Park. That letter was returned from the postal service unclaimed, but the Park's Ranger, William Watson, asserts that he personally told the Plaintiff of his being barred on June 15, 2013. The Police Department had been provided with a copy of the May 15, 2013 letter on or about May 16, 2013.
On June 16, 2013, the Plaintiff was in the Park. As instructed by his Park superiors, Watson called the Hermitage Police via the County 9-1-1 Dispatch Center,  Officer Erickson was dispatched by County 9-1 -1, arrived, and cited the Plaintiff for trespass, but only after interviewing Watson and being told by Watson that he (Watson) had personally told the Plaintiff to stay out of the Park, and that the Plaintiff was then actually in the Park. At a local magistrate's hearing months later (in November, 2013), the Plaintiff was acquitted of that charge.
On September 25, 2013, the Plaintiff was again seen in the Park by Park officials. As they had been instructed to do by their Park superiors, they called the police. Defendant Officer DiLorenzo was dispatched to the scene, and cited the Plaintiff for trespassing. In November, 2013, the Plaintiff was acquitted of those charges at the local magistrate.
On September 17, 2014, the Plaintiff was cited for summary trespassing in the Park, and then again on October 6, 2014, each time by Defendant Rogerson. Those charges were withdrawn, but reinstituted as misdemeanor defiant trespass charges. In January, 2016, Plaintiff was convicted of the September, 2014 trespass charge, which conviction was then affirmed by the Pennsylvania Superior Court on appeal. ECF No. 116 at ¶ 37.
It is against this backdrop that this lawsuit unfo'ds. We'll consider the claims and the summary judgment motions as to the Defendants seriatim.
Defendants Fait and O'Mahony were at all relevant times management officials of the Park, and the Park only. ECF No. 116 at ¶¶ 18-19. They hold no governmental or political office in Hermitage, or seemingly anywhere else. The Plaintiff claims that they deprived him of Equal Protection of the law under the Fourteenth Amendment (Count II), retaliated against him for the exercise of his rights under the First Amendment (Count III) and also conspired with Hermitage officials to deprive him of those same federal rights (Count IV). The federal claims against these Defendants at Counts II and III facially fail because the record demonstrates that these Defendants simply are not state officials, which is ordinarily a fundamental predicate for asserting First and Fourteenth Amendment claims via 42 U.S.C. § 1983. See Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200 (3d Cir. 2009); Hessami v. Corp. o/Ranson, 170 F.Supp.2d 626 (N.D. W.Va. 2001). (First Amendment does not apply to private actors). The Plaintiff advances no record basis to conclude that the Park itself is a state entity, or should be treated as one in these circumstances, so their status with the Park does not clothe these Defendants with the mantle of "state actor" status.
The basis upon which the Plaintiff does seek to snag them with a "federal hook" comes at Count IV (and in parallel allegations at Counts II and III) that these Defendants supposedly conspired with Hermitage officials to work with those local governmental officials in depriving the Plaintiff of those federal rights. Goodson v. Maggi, 797 F.Supp.2d 624, 638 (W.D. Pa. 2011). But what the record shows is that what that these Park Defendants did was call the police when the Plaintiff was in the Park contrary to the orders of the Park officials. ECF No. 116 at ¶ 30.
Calling the police, rather than engaging in self-help, to report a violation of the law simply is not "state action", nor does it make the person calling the police a "state actor." Dickerson v. DeSimone, Inc., 2011 WL 3273228 at *2-3 (E.D. Pa. Aug. 1, 2011). As to the claimed conspiracy, the only thing that the record shows is that when Park officials met with Hermitage officials (at the Park offices, and at the request of Fait) in early September, 2014 to discuss with them how the Park should address the Plaintiffs repeated re-entry to the Park against the Park's wishes, the local government officials in attendance (the Hermitage City Manager and its Chief of Police, neither of whom is a Defendant here) advised the Park officials that the Park officials should not engage in self-help, but should call the Police for assistance. ECF Nos. 130 at ¶ 108, 133 at 8-10. Thus, the core of the Plaintiffs "conspiracy" allegation is that the Park officials called the local Police when they concluded that the Plaintiff was trespassing in the Park, that the local officials had advised the Park officials that the Park officials should call the police if they believed that the Plaintiff was so trespassing, and then when dispatched by the County 9-1-1 dispatch center,  the Police arrived, investigated,  and cited the Plaintiff. ECF No. 131 at 8.
That rather unremarkable effort to engage law enforcement by citizens who believe that the law needed to be enforced is not evidence of the requisite conspirational "meeting of minds, " Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008), aimed at the goal of depriving the Plaintiff of Constitutional rights, such as could cause these Park Defendants to be treated as "state actors." The Plaintiffs argument in support of his conspiracy claim is premised on his contention that by virtue of the Park officials meeting with the Hermitage Police officials in order to discuss the Plaintiffs being barred from the Park, by the Park anc the Police officials advising them that if they believed that occurred that they should call the police, there is sufficient record evidence of a "meeting of the minds" that they would work hand-in-hand for the purpose of depriving the Plaintiff of constitutional rights. But to make that leap would require rank speculation (especially as to any evidentiary link between the asserted conspiracy and the Police Officer Defendants) that is unsupported by record evidence of any such agreement. Kamanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1400 (D. Del. 1984), aff'd, 769 F.2d 152 (3d Cir. 1985). Summary judgment is therefore granted in favor of Defendants Fait eind O'Mahony, and against the Plaintiff, on all claims.
That leaves the federal claims against the City of Hermitage, the Hermitage Police Officer Defendants, and the claims against Kuster and Hamor. For somewhat different reasons, they also all fail, with the exception of the state law assault and battery claim against Hamor (Count VI), a participant in the May, 2013 physical dust-up with the Plaintiff.
These federal claims fail as to the local Police Officers because they had probable causeto conclude that the Plaintiff was committing a trespass when he was in the Park contrary to what they reasonably understood to be directions he had been given by the Park to stay out of the Park. If there was probable cause for those citations to issue, then the Plaintiffs First and Fourteenth Amendment retaliation and conspiracy claims fail as a matter of law as against all of them, and Plaintiff concedes as much. ECF No. 133 at 3. Hartman v. Moore, 547 U.S. 250, 263 (2006); see Posey v. Swissvale Borough, 2013 WL 989953, at *8 (W.D. Pa. March 13, 2013).