FOR IMMEDIATE RELEASE, April 27, 2005
Contact: Jay Feldman, 202-543-5450
Supreme Court Affirms Right to Sue For Pesticide Harm

The Supreme Court today ruled that citizens damaged by pesticides have the right to sue companies of these toxic products, saying that federal pesticide law does not offer adequate protection from "manufacturers of
poisonous substances." Dow Chemical Company argued that, because its products are registered by EPA, chemical manufacturers should be shielded from litigation. The Bush Administration joined the case in
support of Dow.

Washington, DC, April 27, 2005 - In a landmark decision, the Supreme Court today upheld the rights of citizens to sue for damages caused by pesticides, after Dow Chemical Company and the Bush Administration
argued that the chemical industry should be shielded from such litigation. "This decision affirms a moral value that life is more precious than chemical company profits," said Jay Feldman, executive director of Beyond Pesticides, a Washington, DC-based environmental
group. The Bush Administration filed a brief in support of Dow Chemical, arguing against the rights of citizens who are poisoned or damaged from pesticide use.

The case, Bates et al v. Dow AgroSciences LLC, involves Texas peanut farmers, who argued that the Dow herbicide Strongarm (diclosulam) ruined their crops, but were prevented from suing after Dow successfully argued
in a lower District court that registration of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) insulates it from citizen suits, or preempts litigation. The Bush administration
weighed in the case on the side of Dow, officially reversing the position of the Clinton administration (see Etcheverry v. Tri-Ag Service, Bayer Corp, et al.). The Justice Department brief filed before the high court in late November, 2004 was designed to protect pesticide manufacturers when their products cause harm. Advocates cite that this position is contradictory to the administration's public support of states' rights.

The court decision reads, "The long history of tort litigation against manufacturers of poisonous substances adds force to the presumption against pre-emption, for Congress surely would have expressed its
intention more clearly if it had meant to deprive injured parties of a long available form of compensation." The decision continues, "Moreover,
this history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in distributing inherently dangerous items. Private remedies that enforce federal misbranding
requirements would seem to aid, rather than hinder, the function of FIFRA [the Federal Insecticide, Fungicide and Rodenticide Act]."

The Court criticized Dow and the Bush Administration's attempts to undermine public protection, stating, "Dow and the United States exaggerate the disruptive effects of using common-law suits to enforce the prohibition on misbranding. FIFRA has prohibited inaccurate
representations and inadequate warnings since its enactment in 1947, while tort suits alleging failure-to-warn claims were common well before that date and continued beyond the 1972 amendments. We have been pointed to no evidence that such tort suits led to a 'crazy-quilt' of FIFRA standards or otherwise created any real hardship for manufacturers or for EPA."

According to Beyond Pesticides, the court decision is extremely important because: (i) "Pesticides are registered by the Environmental Protection Agency under a risk assessment review process that implicitly
does not consider all aspects of potential harm," (ii) "The potential for court review of cases in which people are harmed creates a strong incentive for the development of safer products," and (iii) "The same companies or their trade associations, including Dow Chemical Company, that have successfully lobbied for weak national laws and standards do not want people who are harmed as a result to seek redress."

Beyond Pesticides joined an amicus brief in the case with Earthjustice, Defenders of Wildlife, Farmworker Justice Fund, Natural Resources Defense Council, Physicians for Social Responsibility, Public Citizen,
Sierra Club, and Trial Lawyers for Public Justice.

See decision at:
http://a257.g.akamaitech.net/7/257/2422/27apr20050800/www.supremecourtus.gov/opinions/04pdf/03-388.pdf
##

 

Editor's Former Nanny Settles Fumes Case in NY

USA: October 21, 2004

NEW YORK - A former nanny to Vogue editor Anna Wintour will receive $2.2 million for brain damage she suffered from breathing chemicals used to remove slogans painted on the editor's home by animal rights activists, according to details of a settlement announced.

The names of the individuals contributing to the settlement was sealed by the court but Carl Lustwig. the lawyer for nanny Lori Feldt, 31, said the money would fund an annuity that will pay her between $5 million and $6 million over several years.
Feldt went to work at Wintour's West Village home in mid-1997. A short time later anti-fur activists spray painted the entranceway, steps and sidewalk with red paint on Wintour's Sullivan St. residence.
Originally a $50 million lawsuit was filed in March 2000 naming as defendants Vogue owner Conde Nast and Riccardi Contracting, which was hired by the magazine to remove the paint. Wintour was not named as a defendant by Lustig.
On Dec. 2, 1997, while workers using paint thinner to clean up the graffiti mess, Feldt passed out inside Wintour's home. She was later found lying on the floor by a maid and taken to a hospital.
Her lawyer said that Feldt went from excellent health and leading an active life to suffering headaches, numbness in her face and hands, short-term memory loss and urinary incontinence.
Found at: http://www.planetark.com/dailynewsstory.cfm/newsid/27776/story.htm

Nurse wins latex glove appeal ~ Her solicitor Michael Antoniw added: "This is a landmark decision. Article at: http://news.bbc.co.uk/1/hi/wales/2499363.stm


LOS ANGELES (Reuters) - Entertainer Ed McMahon (news) reaped a $7 million settlement from several companies he sued for allowing toxic mold to overrun his Los Angeles home and kill his beloved dog, a national mold litigation magazine reported on Wednesday.

McMahon, who for years served as Johnny Carson (news)'s sidekick on NBC's 'The Tonight Show,' ended the lawsuit last month with all but one of the companies in confidential settlements that had been reported to total $230,000.

But earlier this week, a Los Angeles Superior Court judge ordered the settlement amounts made public, according to a report by COLUMN-Mold published by Harris Martin Publishing.

The hearing transcript showed that Travelers and American Equity Insurance companies and other related insurance entities settled with McMahon for more than $5 million. The rest of the sum was paid by four mold cleanup firms and two insurance adjusters, according to the transcript.
http://story.news.yahoo.com/news?tmpl=story&cid=765&ncid=787&e=6&u=/nm/20030508/people_nm/people_mcmahon_dc


Asbestos Case:
The Mt. View Moblie Home Estates, a sub-division located east of Globe, Arizona. (Gila County) Globe is a small mining town, 2 hrs NE of Phoenix and 2 hrs North of Tucson. The Mt. View Moblie Home Estates case set a precedent in that the 'victims' did not have to have contracted the resulting disease in order to be awarded damages and the case for damages was won based upon the 'risk' factors.
Dr. Gray is said to be very knowledgeable about the details involving the Mt.View Estates asbestos case and is considered to be one of the foremost experts in asbestos related illnesses. He is often asked to testify in MCS related cases.
He is also one the experts who's deposition really supported and helped the Ballard case, which was the big Mold case in Texas last year. Received this info from one of his clients.

Ballard Mold Case:
Farmers Insurance must cough up $32 million in Texas toxic mold verdict
By Vicki Lankarge
Insure.com
A jury has awarded an Austin, Texas, family $32 million, concluding that a Farmers Insurance Group subsidiary committed fraud by delaying and denying the family's home insurance claim for mold damage. Snip:
The Texas case is a legal landmark because it is the first time that a jury has awarded a homeowner damages in a mold case against an insurance company, rather than against a builder or building owners. Snip


N.C. Appeals Court
Comp Benefits Awarded For Asbestos In School Office
By Ertel Berry
The Court of Appeals has affirmed comp benefits to the family of a Wake
County school employee who died from lung cancer 14 years after working
in an office contaminated by asbestos.
The decision apparently marks the first time a state appellate court
has ruled passive exposure to asbestos in a school can support an
occupational disease award.

While asbestos-related occupational claims aren’t uncommon, most arise
in industries where the deadly substance is actively used as part of the work: asbestos manufacturing, shipbuilding or brake repair.
That wasn’t the case in Robbins v. Wake County Bd. Of Education (North
Carolina Lawyers Weekly No. 2-07-0955, 9 pages).

The decedent worked as a graphic artist for the school system, but the
appeals panel said her job title didn’t determine whether she was at an
increased risk for mesothelioma, a rare lung disease that almost never
develops without asbestos exposure.
Sufficient evidence supported the Industrial Commission’s conclusion
That the decedent’s four years of work in a converted school building built in 1946 — when asbestos was commonly used in floor tiles, insulation, plaster walls and ceilings — established a job link to her 1995 death, the court held.
The story was in the July 22 issue of North Carolina Lawyers Weekly.

Legal action. An individual won a monetary judgments in trial
court under the Americans with Disabilities Act because of
illnesses sustained from secondhand exposure to fragranced
products in the workplace. The case was upheld on appeal. (Web site) or Wilbert Bazert v. State of Louisiana, et al State of Louisiana Court of Appeals, 1st Cir"

Popcorn Liability Suit Ends in Settlement

U.S. National - AP

CARTHAGE, Mo. - A liability lawsuit against the manufacturers of an
artificial butter flavoring used at a popcorn plant has ended in a
settlement.


Attorneys for plaintiff Samantha Taffner and defendants International
Flavors and Fragrances and Bush Boake Allen Inc., which International
purchased in 2000, told Jasper County Associate Judge Stephen Carlton
they reached a deal Friday, after a 10-day trial.

Taffner, 28, is one of about 30 former workers at the Gilster-Mary Lee
Corp. plant in Jasper and their spouses who have sued the
manufacturers, claiming they should have known the chemical diacetyl,
used to make the butter flavoring, causes lung damage.

"The terms of the settlement are confidential, but my client is very
pleased that the settlement will allow her to take care of her health
and family in a way that will attempt to minimize future suffering,"
said Ken McClain, an attorney for Taffner.

Mike Patton, an attorney representing International Flavors, declined
to comment.

Court records say Taffner, a mother of two, worked at the plant from
1996 through 1998. She claimed that exposure to the chemical reduced
her lung capacity to 26 percent of normal and left her in need of a
lung transplant.

Attorneys for the two corporations have maintained that popcorn plant
officials were warned that the flavoring should be mixed in a
well-ventilated area and that a respirator should be worn when heating it.

In March, jurors awarded $20 million to a former plant worker and his
wife. The manufacturers have appealed. Confidential settlements were
reached in two other trials.

A new trial has been ordered in another case, which had ended with
jurors refusing to award any money to four workers.



Apartment Builders Ordered to Pay for Sick Syndrome, South Korea
24 Jun 2004

An apartment builder on Thursday was ordered to provide compensation
for a family who suffered from sick house syndrome for the first
time.

The Korean National Environmental Dispute Resolution Commission said
it ordered the builder to pay 3.03 million won in compensation to a
family living in Yongin, Kyonggi Province.

The parents filed a compensation suit after their seven-month-old
baby girl developed a severe type of skin disease right after moving
into the apartment in January of this year. The symptoms disappeared
when the family moved into a relative's house for a month.

The commission said that the family is eligible for compensation as
the apartment's indoor air quality exceeded international standards
and there are sufficient grounds to believe that it caused the
baby's symptoms.

Inspections found that formaldehyde levels in the apartment's living
room and individual rooms each measured at 151 and 147 milligrams
per cubic meter, both surpassing the permissible levels of 100 of
the World Health Organization and Japan.

The level of total volatile organic compounds (TVOC) were also
detected at 4,290 milligrams per cubic meter for the living room and
5,435 milligrams per cubic meter for the other rooms, far exceeding
Japan's standard level of 400 milligrams.
Continues HERE - The Korean Times
Found at: http://www.medicalnewstoday.com/medicalnews.php?newsid=9889


Alabama PCB Suits-$700 Million Settlement
SWEETER HOME ALABAMA
Alabama PCB Suits End in $700 Million Settlement

Monsanto Co. and its spin-off enterprise, Solutia, agreed yesterday
to pay $700 million to settle state and federal lawsuits concerning
five decades of PCB pollution in Anniston, Ala. From the 1930s to
the 1970s, Monsanto (and later Solutia) used a plant in Anniston to
produce PCBs, which are now banned in the U.S. because they are
associated with health problems ranging from learning disabilities to
cancer. The settlement involves two separate trials and more than
20,000 plaintiffs, who accused the companies of contaminating their
bodies and properties with PCBs. In addition to the monetary
settlement, the companies will fund an education trust, community
development, cleanup and remediation, and a clinic and research
facility in Anniston specializing in environmental medicine and
providing some free medical care.
straight to the source: Anniston Star, Jessica Centers, 21 Aug 2003
<http://www.gristmagazine.com/forward.pl?forward_id=1414>


UK Soldier Wins Landmark Gulf War Syndrome Case

LONDON (Reuters) - A British soldier suffering from a brittle bone
disease has won a landmark Gulf War Syndrome case after a tribunal ruled
that a cocktail of drugs given to him in 1991 should be blamed for his
illness. Alex Izett was never deployed in the Gulf, but his symptoms,
including fatigue and digestive and psychological problems, were
identical to those of some veterans of the war in which a U.S.-led
coalition drove Iraqi troops out of Kuwait. The ruling is seen as the
first recognition of the syndrome, which Britain's Ministry of Defence
says does not exist. The ministry said on Monday it had lost the case on
legal, not medical, grounds and that it had no plans to appeal.

The war pensions tribunal ruled in December that Royal Engineer Izett's
osteoporosis and other symptoms were caused by the injections, a cocktail
of chemical antidotes given to soldiers before the Gulf War. "The
tribunal finds that the appellant was vaccinated with a concoction of
drugs prior to planned deployment in the Gulf War. The concoction of
drugs caused osteoporosis" said the ruling, the publication of which was
delayed until after the latest war in Iraq.
at:http://www.reuters.co.uk/newsPackageArticle.jhtml?type=topNews&storyID=281308


Post: MCS Court Decisions
Posted by Eagle on 9/23/00
COURT DECISIONS - DISABILITY
MULTIPLE CHEMICAL SENSITIVITY

1. Marna Slocum v. Califano, US District Court
for District of Hawaii rules MCS is disabling and orders
DHEW to provide SS disability benefits 1979. (Decision
of Judge Samuell King that a resident of State of
Hawaii Marna Slocum and wife of retired United
State Secret Service Senior agent Frank Slocum suffered
severe Multiple Chemical sensitivity as result of
exposures to neurotoxic agents).


2. Creamer v. Callahan, No. 97-30040 KPN (D. Mass.)
Nov 5, 1997, SSA officially recognizes MCS “As medically
determinable impairment ” on agency wide basis. 31 October
1997 “the claimant has an anxiety disorder and multiple
chemical sensitivity” based on fact that that with the
latter based in part on the fact that “objective [qEEG]
evidence showed abnormal brain function when exposed to
chemicals” [1995, # 538-48-7517, ALS David J. Delaittre],
SSA agreed that ALJ’s “analysis was flawed with respect to
MCS”.
The Court ordered Commisioner to file supplemental
memorandum on SSA’s position with respect to MCS” which he
did –specifically stipulating that SSA “recognizes
multiple chemical sensitivity as medically determinable
impairment” (Oct 31, 1997). Consequently SSA refirmed
previous decision of Judge Samuell King (1979) in case of
State of Hawaii resident Marna Slocum.
3. Whillock v. Delta Air Lines, 926 f. Supp. 1555
(N.D. G.a. 1995, aff d 86 F. 3d. 1171 (11th Cir. 1996 )
The Court found that MCS might be a disability in the
meaning of ADA, since it substantially limit the plaintiff
in major life activity, including working.

4. Kyles v. Workers Compensation Appeals Board State
of California, No. A037375, 240 Cal. Rptr. 886, California
Board of Appeals, 1987.


5. SSA added in 1988 section on MCS (Environmental
Illness) to Program Operation Manual for SSA disability
determination - 68-0424500, Part 04, chapter 245, Section
24515.065, transmittal #12. 1988.

6 U.S. Court of Appeals in August of 1990 upholds
Kyles v. Workers Compensation Appeals Board State of
California, MCS as disabling condition in W.C. case.

7. Denise Kehoe v. Lockheed Sanders - NH Supreme Court
ruled in September 1994, that MCS is a qualification for
Workers Compensation benefits,

8. Denise Kehoe v. Lockheed Sanders - NH Supreme Court
on November 13, 1996 reaffirmed on second appeal of Kehoe
and ordered Board of Appeals to calculate the benefits for
Kehoe occupational injury diagnosed as MCSS which is more
likely than not that her exposure to toxic chemicals at
work contributed to, or aggravated her disabling condition.
9. Robinson v. Saif W.C. benefits on basis of MCS,

10. # case 264-65-5308, ALS Martha Lanpear claimant
suffered severe RADS secondary to MCS and that impairment
prevented her from performing more than a limited range of
light work .

11. # case 239-54-6581, ALS D. Kevin Dugan ruled that
impairement as result of pesticides poisoning “marked
sensitivity to airborne chemicals” which prevented her from
“performing any substantial gainful activity on a
sustained basis [1996] ”
12. # case 024-40-2499, ALS Lynette Diehl Lang
recognized that claimant suffered MCS and could not
tolerate chemical fumes at work as result of overexposure
to formaldehyde in state office building), as result of
which was awarded both disability benefits, and
supplemental security income,

13. # case 184-34-4849, ALS Robert Sears ruled that
claimant suffered from “extreme environmental
sensitivities” and particularly “severe intolerance to any
amount of exposure to pulmonary irritants”, June 11,
1996,

14. # case 246-98-4768, ALS Frank Armstrong classified
claimant as “dysautonomia triggered by multiple chemical
sensitivities” as severe and said it “it prevents claimant
from engaging in substantial gaining activity on ubstained
basis ” 18 March, 1997. 15. Koronock v. Harris, 648 F.2d
525, 9th Cir. 1980 ,
16. Kouril v. Bowen 912 F. 2d 971, 974 8th Cir 1990,

17. McCreary, Robery v. Industrial Commission of Arizona,
835 P. 2d 469, Arizona Court of Appeals 1992

18. Menendez v. Continental Ins. Co 515, So 2d 525. LA.
App 1 Cir,1987

19. Armstrong, Dan H v. City of Wichita No. 73038, 907 P.
2d 923, Kansas Court of Appeals

20. Harvey’s Wagon Wheel, Inc. Dba Harwey’s resort Hotel
v. Joan Amann, at al. No 25155, order dated Jan 25 1995,
Nevada Supreme Court, in an order dismissing the Casino’s
appeal of a district court rulling that reversed the
decision of an appeals officer had “Overlooked substantial
evidence offered by the [23] claimants that clearly
supported a casual relation between their work place
injuries [due to pesticide exposure] and their continuing
disabilities”.

21. Robinson’s v. Saif Corp. 69 OR App 534; petition for
review denied by 298 Ore. 238, 691 P .2d
482

22. Saif Corporation and General Tree v.Thomas F. Scott,
824 P. 2d 1188, Ore. App 1992,

23. Grayson v. Gulf Oil Co., 357 S.E. 2d 479, S.C. App.
1987

24. Hoyt, Virginia v. Safeway Stores, inc. Case 9203051.
Decision 95 - 0125, Alaska worker’s Compensation Board
1995, Sinnamon v. State of Connecticut, Dept of Mental
Health, 1 October 1993 Decision of Nancy A. Brouilett,
Compensation Commissioner, Acting fore the First District,
Conn. Workers Compensation Commission.
The commissioner, citing testimony from Dr. Mark Cullen,
among others, found “the great weight of medical evidence
supports the diagnosis of MCS syndrome casually related to
the Claimant’s exposure while in the course of her
employment” in the state office buildings with poor indoor
air quality.
She ordered payment of temporary disability benefits as
well as payment “for all reasonable and necessary
treatment of the Claimant’s MCS syndrome.”
25. O’Donnell v. State of Connecticut, Judical Department,
May 22 1996 Decision State of connecticut, Judical
Department, 22May 1996 Decision of Robert Smith Tracy,
Compensation Commissioner Foutrh District, Conn. Workers’s
Compensation Commission.
The Commissioner recognized MCS “caused by numerous
exposures to pesticides at work” ....and excerbrated by
repeated exposure to other odors and irritants at work” in
juvenile court building.

26. Saks v. Chargin Vly Exterminating Co Inc. No. 97-
310968, September 1997;

27. Kelvin v. Hewitt Soap Company , No. 95-599131, June
5, 1996, decision of District Hearing Officer Steven Ward,
recognizing claim of multiple chemical sensitivity as
“occupational disease ” contracted “In the course of and
arising out of employment”.

28. Elliot, Erica v. Lovelace Health Systems and Cigna
Associates Inc., No. 93 17355, Nov. 8, 1994, decision of
Rosa Valencia, Workers Compensation Judge, finding that
MCS was triggered by glutaraldehyde and Sick Building
Syndrome for which employer had been given timely notice.
Also supported Elliott’s to return to work in the
buildings that made her sick buildings asa “reasonable
under the circumstances for “500 weeks or until further
order of the Court”
29. National Academy of Science, Institute of Medicine, -
Report commissioned by the Department of Defense on the
Adequacy of the Comprehensive Clinical Evaluation Program;
A Focused Assessment, which devotes three pages to MCS, he
same as for CFS and Fibromyalgia.

All three “ill defined conditions”, as the Department of
Defense has characterized them, but actually fairly well
defined by operational criteria even if they “are
medically unexplained.”
The IOM commitee decided “to refer to this spectrum of
illnessess as medically unexplained symptom syndromes” and
it said that “despite the fact that they are medically
unexplained, they may cause significant impairment”. And
while it found that “Medically unexplained symptoms
syndromes are often associated with depression and
anxiety” it says “this does not imply that the syndromes
are psychiatric disorders.” 1998.

As a matter of law, medical opinions cannot be exclude from the jury's consideration. People v McDonald, supra,(1984) 37 Cal.3d 351, at 373, disapproved on other grounds in People v. Mendoza (2000) 23 Cal.4th 896 ("We have never applied the Kelly-Frye rule to expert medical testimony, even when the . . . subject matter is . . . esoteric . . . ." At 373.); People v. Cegers (1992) 7 Cal.App.4th 988 ("An expert may always give his opinion as to the cause of a particular injury or condition, and lack of absolute scientific certainty does not constitute a basis for excluding the opinion."); People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293-4 ("[A] medical diagnosis based on medical literature will not be viewed as a new scientific technique, but simply the development of an opinion from studies of certain types of cases."); People v. Bui (2001) 86 Cal.App.4th 1187 (toxicologist's opinion, based on two epidemiologic studies, that methamphetamine use can and did cause impairment of motor coordination not subject to Kelly-Frye); Wilson v. Phillips (1999) 73 Cal.App.4th 250 (psychologist's opinion as to causal connection between condition known as dissociative amnesia and accuracy of repressed memory not subject to Kelly-Frye); People v. Ward (1999) 71 Cal. App. 4th 368, 373 (expert psychiatric opinion based on application of Diagnostic and Statistical Manual of Mental Disorders criteria as to future dangerousness not subject to Kelly-Frye); People v. Luna (1988) 204 Cal.App.3d 726, 732-4 (medical opinion based on use of a medical device known as a colposcope not subject to Kelly-Frye); People v. Phillips (1981) 122 Cal.App.3d 69, 86-7 (medical opinion based on review of medical literature of subject's condition not subject to Kelly-Frye).
The opinions of medical experts in toxic tort cases that cancers, birth defects and other diseases have resulted from exposure to defendants' chemicals is not a subject for Kelly-Frye analysis and is not excludable under Kelly-Frye.
From: http://consumerlawpage.com/article/kelly-frye.htm

2nd Circuit Clarifies Rule on Evidence in ERISA Disability Cases
Conflicts alone not good cause for looking beyond the record
http://www.law.com/jsp/article.jsp?id=1100535344357


Mark Hamblett
New York Law Journal
11-17-2004

The standard under which a district court may consider evidence outside of the administrative record when reviewing a denial of disability benefits under the Employment Retirement Income Security Act of 1974 has been clarified by the 2nd U.S. Circuit Court of Appeals.

The circuit held that the "good cause" standard for going beyond the administrative record is not automatically triggered by a showing that the administrator who denied the benefits labored under a conflict of interest.

"We hold that a conflicted administrator does not per se constitute good cause, and caution district courts that a finding of a conflicted administrator alone should not be translated necessarily into a finding of good cause," the court said in Locher v. UNUM Life Insurance Company of America, 03-9229.

Marianne Locher worked as a legal secretary at the Chicago law firm Katten Muchin & Zavis, now Katten Muchin Zavis Rosenman. In early 1993, suffering from chronic fatigue syndrome, she failed to provide the proper documentation needed to have her employee classification changed from full time to part time.

Three months after her April 1993 departure from the firm, Locher applied to UNUM for disability benefits. The company denied her application and two appeals.

Locher filed an action in the Southern District. UNUM moved to limit the evidence at trial to the administrative record. The company objected to the testimony of an expert witness retained by Locher and a former co-worker from Katten Muchin.

Judge Laura Taylor Swain denied the motion, finding that "all persons involved in the initial and appellate review of Locher's claim under the Disability Plan were UNUM employees," that UNUM was a "conflicted administrator" within the meaning of 2nd Circuit case law on the subject and that UNUM had insufficient written procedures for reviewing claims.

Those findings led Swain to accept the outside testimony. The judge also stated that there was "per se 'good cause'" for going outside the administrative record.

After hearing the evidence, the judge ruled in favor of Locher, finding her disabled within the meaning of the policy and awarding her monthly benefits, attorney fees and costs.

The 2nd Circuit case law considered by Swain was DeFelice v. American International Life Assurance Co. of New York, 112 F.3d 61 (1997).

On Locher's appeal, 2nd Circuit Judge Chester J. Straub said the circuit was upholding Swain on her admission of the evidence and the grant of benefits but writing to clarify its holding in DeFelice.

In DeFelice, the circuit set forth the principle that district courts have the discretion to admit additional evidence but should not exercise that discretion absent good cause.

The DeFelice court, he said, "applied that principle by holding that 'upon de novo review, even purely factual interpretation cases may provide a district court with good cause to exercise its discretion to admit evidence not available at the administrative level if the administrator was not disinterested.'"

Straub said that in DeFelice the circuit found it significant that the "appeals committee that reviewed DeFelice's claim was comprised entirely of employees of the administrator, that there existed no established criteria for determining an appeal, and that the committee apparently had a practice of destroying or discarding all records within minutes after hearing an appeal."

Several courts in the circuit, including the district court in Mocher's case, have read DeFelice as holding "that an administrator's dual status as claims reviewer and claims payor is per se 'good cause' for allowing additional evidence upon a de novo review of factual issues," he wrote.

Not so, said the judge, because DeFelice was based on more than a conflict of interest -- it was also based on flawed procedures for claims determinations and appeals.

Having a per se rule, he said, "would effectively eliminate the 'good cause' requirement and the discretion afforded to district courts in deciding whether to admit additional evidence, because claims reviewers and payors are almost always either the same entity or financially connected in some other way."

And a per se rule, he said, "would also eliminate the appropriate incentive for a claimant to submit all available evidence regarding the claimant's condition to the insurance company upon first submitting a claim," thereby undermining the strong policy interests of "minimizing costs of claims disputes and ensuring prompt claims-resolution procedures."

Judges Roger J. Miner and Jose A. Cabranes joined in the opinion.

Elizabeth L. Koob of Koob & Magoolaghan represented Locher. Patrick W. Begos of Begos & Horgan represented UNUM.