October 22, 2017

Archives for May 16, 2016

Colorado Supreme Court: Announcement Sheet, 5/16/2016

On Monday, May 16, 2016, the Colorado Supreme Court issued seven published opinions.

People v. Harding

Liberty Mortgage Corp. v. Fiscus

People v. Penn

People v. Corson

In the Matter of the Title, Ballot Title and Submission Clause for 2015–2016 #63

People v. Ruch

In re People v. Roberson

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Defendant’s Testimony of Coercion Tells Only Half the Story so Polygraph Evidence Admissible in Rebuttal

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tenorio on Tuesday, December 29, 2015.

Daniel Tenorio’s 16-year-old niece reported that he had touched her intimately, so the Bureau of Indian Affairs began investigating him. Special Agent Travis LeBeaux interviewed the niece and other family members about the abuse, and later interviewed Tenorio, who denied the allegations. Agent LeBeaux asked Tenorio to take a polygraph, and he agreed, stating he had nothing to hide. Tenorio read and signed the consent, and FBI Agent Jennifer Sullivan administered the polygraph. She suspected he was untruthful and followed up with confrontational questions. Tenorio eventually confessed and wrote an apology letter to the victim, which included such statements as “I should not have grabbed her breast it was wrong,” and “I should not have grabbed her ass.” He was indicted on two counts of knowingly engaging in sexual contact.

Tenorio moved to suppress his confession as involuntary, but the district court denied his motion. Prior to trial, the government filed a motion in limine seeking to introduce evidence of the polygraph. Tenorio responded by moving to prevent admission of the test and results. The district court reserved a final ruling on the motion, warning that testimony regarding the polygraph would likely be overly prejudicial but noting it may revisit the issue depending on Tenorio’s testimony. During trial, Tenorio’s attorney questioned him about the apology letter, and Tenorio repeatedly claimed he only wrote down what the FBI agent told him to write. He also claimed he could not understand why the agent didn’t believe him. In response to the testimony, the government requested to be allowed to question Tenorio about taking and failing the polygraph. The district court found that Tenorio had opened the door to such questioning and allowed limited questioning regarding the voluntariness of the test. The court gave a limiting instruction at the close of the trial. Tenorio was convicted on both counts and appealed.

Tenorio contended the district court erred by admitting prejudicial evidence in violation of FRE 403 because the court did not weigh the prejudicial effect of the evidence. The Tenth Circuit disagreed. The Tenth Circuit relayed the history of the admissibility of polygraph evidence, remarking that United States v. Hall, 805 F.2d 1410 (10th Cir. 1986), set forth a per se rule that polygraphs are not admissible to show truthfulness. The Tenth Circuit noted the evolution of the rule following Daubert, but found that the rule does not apply when polygraphs are not admitted as evidence of truthfulness. The Tenth Circuit held in Hall and has continued to hold that when a defendant opens the door, evidence regarding polygraphs can be admitted as rebuttal evidence: “When a defendant says he was coerced but only tells half the story, rebuttal evidence necessarily impacts the credibility of that defendant’s testimony.” In this case, Tenorio opened the door to the polygraph questioning by repeatedly expressing confusion as to why the FBI agent did not believe him. The government was allowed to admit the polygraph evidence to provide balance to Tenorio’s testimony. The Tenth Circuit found that the district court carefully considered the prejudicial effect of the evidence and limited the potential prejudice by allowing only testimony regarding the fact of the polygraph and not the results, and by giving a similar limiting instruction.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Utah Products Liability Law Requires Defect to be Present at Time of Sale

The Tenth Circuit Court of Appeals issued its opinion in Birch v. Polaris Industries, Inc. on Wednesday, December 23, 2015.

Virl Birch purchased a 2011 Polaris RZR 800 off-road vehicle at the Victory Polaris dealership in St. George, Utah. In May 2011, he and his son took the vehicle for a ride and crashed, damaging the vehicle’s rollover protection system (ROPS). Moto Zoo Powersports in St. George estimated that repairing the ROPS and other damage would cost around $6,000. Unhappy with the figure, Mr. Birch contacted Skyler Damron, the Moto Zoo technician who had provided the estimate, about repairing the vehicle “off books” in Mr. Damron’s own garage. Mr. Damron agreed. Mr. Damron purchased a new roll cage for a 2008 Polaris RZR off Craigslist. Between 2008 and 2011, Polaris had made several changes to the design of the ROPS, and the ROPS for a 2008 RZR would not fit a 2011 RZR. Mr. Damron modified the ROPS so that it would fit Mr. Birch’s vehicle. In June 2012, Mr. Birch again crashed his vehicle. The ROPS buckled on impact, pinning him under it, and he died shortly thereafter.

Mr. Birch’s son and personal representative, Justin Birch, together with Mr. Birch’s wife and other two sons, brought suit against Polaris in the District of Utah, seeking damages for strict products liability, negligence, and breach of express and implied warranties. Under Utah state law, all three claims required proof that a product’s injury-causing defect existed at the time the product was sold. The district court set a December 16, 2013 deadline for amending pleadings and a fact discovery deadline of June 6, 2014. The parties engaged in substantial discovery, and on June 26, 2014, they jointly disassembled Mr. Birch’s vehicle, definitively discovering the modified roll cage.

On October 3, 2014, Polaris filed a motion for summary judgment on all plaintiffs’ claims. Polaris argued that Mr. Damron’s modifications had introduced into Mr. Birch’s vehicle a defect that had not previously existed, therefore plaintiffs’ claims were deficient as a matter of law. On October 31, 2014, plaintiffs filed both a response to the summary judgment motion and a request to amend the complaint. Plaintiffs sought to redefine the products at issue as both the 2011 Polaris RZR and the 2008 ROPS, and sought to add a claim that inadequate training was provided to Polaris service technicians. The magistrate judge denied plaintiffs’ motion in March 2015. On November 18, 2014, plaintiffs filed a Motion for Rule 56(d) Extension, requesting that the court delay ruling on the summary judgment motion so they could conduct more discovery regarding the replacement ROPS. The magistrate judge also denied this motion in March 2015. Plaintiffs promptly filed objections to the magistrate’s rulings.

The district court announced at the March 31, 2015 hearing that plaintiffs could not survive summary judgment because they could not prove “there was a defect in the product at the time and point of sale.” The district court pointed out that the case turned on the outcome of plaintiffs’ motion to amend. Evaluating the magistrate’s ruling under the “clearly erroneous or contrary to law” standard, the district court overruled plaintiffs’ objections. The district court found the magistrate judge had not clearly erred in finding plaintiffs failed to establish excusable neglect or good cause for their untimely motion to amend and had failed to file a proper motion for extended discovery. The court granted Polaris’ motion for summary judgment. Plaintiffs appealed, contending the district court applied the wrong standard and should instead have conducted de novo review. Plaintiffs also contended the court erroneously concluded they lacked sufficient justification for their delay in filing the discovery and amendment motions.

The Tenth Circuit first evaluated the legal standard, and found that the district court correctly applied the “clearly erroneous or contrary to law” standard to its review of the magistrate’s order. Because the ruling was non-dispositive and did not have an identical effect to a dispositive ruling, the district court correctly applied the “clearly erroneous” standard of review. Further, plaintiffs waived their right to argue for de novo review by affirming in district court that the “clearly erroneous” standard was applicable. The Tenth Circuit found no error in the district court’s application of the “clearly erroneous” standard.

Next, the Tenth Circuit considered whether the district court erred in denying the motion to amend. The Tenth Circuit noted that untimely filed motions to amend require a showing of good cause and the judge’s consent. In this case, the magistrate found that plaintiffs failed to establish excusable neglect or good cause for filing the motion to amend 11 months after the deadline to do so expired. The magistrate noted that even if the plaintiffs did not discover that the ROPS was intended for a 2008 model until the June 26, 2014 disassembly, there was no justification for the four-month filing delay after that time. The district court agreed with the magistrate that the plaintiffs failed to show adequate justification for the lateness of their motion to amend. The Tenth Circuit similarly found that plaintiffs asserted no justification in their appeal briefs for the months-long delay. The Tenth Circuit ruled that the district court’s Rule 16 analysis was not an abuse of discretion.

Turning next to the motion for additional discovery, the Tenth Circuit again found no error in the district court’s denial. Again, the magistrate found that plaintiffs failed to establish good cause and excusable neglect due to its months’ long delay in filing its request for further discovery. The Tenth Circuit found no error, agreeing with the district court that the plaintiffs were not entitled to F.R.C.P. 56(d) relief because they failed to submit a sufficiently detailed affidavit.

Finally, the Tenth Circuit affirmed the district court’s grant of summary judgment to Polaris. The Tenth Circuit found that the district court correctly concluded there was no genuine dispute that the product as sold did not contain an injury-causing defect. Plaintiffs could not prevail under Utah products liability law because the defect was not present in the vehicle at the time of sale.

The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 5/13/2016

On Friday, May 13, 2016, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Donaldson

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.