Free Objection - District Court of Arizona - Arizona

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B EGAM L EWIS M ARKS & W OLFE
A PROFESSIONAL ASSOCIATION OF LAWYERS

Elliot G. Wolfe State Bar #005521 BEGAM, LEWIS, MARKS & WOLFE, P. A. 111 West Monroe Street, Suite 1400 Phoenix, Arizona 85003-1787 (602) 254-6071 Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Mary O'Dowd ) ) Plaintiff, ) ) v. ) ) John Alden Health Insurance Co.; Fortis ) Health; Fortis, Inc.; Black Corporations I- ) II ) ) Defendants. ) ) ) )

NO. CIV-03-2383-PHX-MHM

PLAINTIFF S OBJECTIONS TO DEFENDANT S PROPOSED JUDGMENT

(Assigned to the Honorable Mary H. Murguia)

The plaintiff has filed a Proposed Judgment. The defendant has filed objections to the Plaintiff s Proposed Judgment, and a Proposed Judgment of its own. The plaintiff objects to the defendant s Proposed Judgment for the following reasons: 1. The first paragraph of defendant s Proposed Judgment attempts to

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improperly include a factual finding that would limit the basis for the court s grant of the plaintiff s Cross-Motion for Summary Judgment. It was not only the plaintiff s

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Case 2:03-cv-02383-MHM

Document 71

Filed 10/21/2005

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B EGAM L EWIS M ARKS & W OLFE
A PROFESSIONAL ASSOCIATION OF LAWYERS

surgeon, Dr. Volker Sonntag, who prescribed Jevity as medically necessary, but the plaintiff s gastroenterologist, Dr. I. Frederick Kenny, whose affidavit of medical necessity was part of the court record on Motion for Summary Judgment. 2. The second paragraph of defendant s Proposed Judgment would not

require the defendant to pay any interest or penalty for overdue payments that the vendor charges the plaintiff as a result of the defendant s improper refusal to make those payments when they were incurred and owed by the defendant. 3. The defendant s Proposed Judgment omits any attorneys fees and non-

taxable expenses, even though the plaintiff is entitled to such fees and costs under 29 U.S.C. § 1132(g)(1). See e.g., Schneider v. Wisconsin UFCW Unions and Employers Health Plan, 913 F. Supp. 2d 837 (E.D. Wis. 1998). 4. The defendant s Proposed Judgment does not include interest on the

Judgment, as required by law. DATED this 21st day of October, 2005. BEGAM, LEWIS, MARKS & WOLFE, P. A. By___/s/ Elliot G. Wolfe Elliot G. Wolfe 111 West Monroe Street, Suite 1400 Phoenix, Arizona 85003-1787 (602) 254-6071 Attorneys for Plaintiff __

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ORIGINAL electronically transmitted to the Clerk of the United States District Court on October 21, 2005.

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B EGAM L EWIS M ARKS & W OLFE
A PROFESSIONAL ASSOCIATION OF LAWYERS

COPY of the foregoing mailed this 21st day of October, 2005, to: The Honorable Mary H. Murguia UNITED STATES DISTRICT COURT 401 West Washington Phoenix, AZ 85003 Stephen M. Bressler Brenden J. Griffin LEWIS AND ROCA 40 North Central Avenue Phoenix, AZ 85004-5747 Attorneys for Defendant John Alden Life Insurance Company

/s/ Karen L. Ingles____________________

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Case 2:03-cv-02383-MHM