October 18, 2017

Archives for February 2017

Class Action Headaches: The Intersection of Mild Traumatic Brain Injury and Sports Concussion Litigation

Iron Mike Webster

“Iron Mike” Webster played for the Pittsburgh Steelers from 1974-1988 and the Kansas City Chiefs from 1989-1990, and played in 245 games during his career. He died at the age of 50 in 2002 from a heart attack. At his death, Iron Mike was suffering from dementia, self-mutilating, and living out of his pickup truck. A doctor named Bennet Omalu performed his autopsy, which showed chronic traumatic encephalopathy, or CTE. Dr. Omalu examined the remains of several other former NFL players who had similar symptoms to Iron Mike, including Terry Long, Andre Waters, and Justin Strzelczyk. He presented his findings to the NFL Commissioner, Roger Goodell, but was largely ignored until Chris Henry of the Cincinatti Bengals died in 2006 at age 26 due to CTE.

Will Smith and Alec Baldwin starred in a December 2015 movie, “Concussion,” which detailed Dr. Omalu’s findings and his struggle to be taken seriously by the NFL. In April 2015, a federal district court judge approved a class-action settlement of former NFL players for long-term neurological problems associated with repeated concussions. All eligible retired former NFL players will receive a baseline neuropsychological and neurological examination, and additional medical testing, counseling, or treatment if they are diagnosed with moderate cognitive impairment. The settlement also provides for monetary awards, conceivably into the millions of dollars, for diagnoses of certain neurocognitive diseases or impairments, such as ALS, Parkinson’s disease, Alzheimer’s disease, or certain levels of dementia. Fewer than 200 retired NFL players have opted out of the settlement.

Other sports organizations have filed class actions, as well. A number of former college athletes have filed suit against the NCAA, alleging long-term injuries from concussions experienced while playing NCAA sports. The U.S. Soccer Federation, U.S. Water Polo, the NHL, and the World Wrestling Federation have also been the subjects of concussion-related lawsuits. Many states, including Colorado, have passed measures intended to protect young athletes from second-impact syndrome, a rare and potentially fatal consequence of repeated concussions.

Reid Neureiter of Wheeler Trigg O’Donnell has researched concussion litigation extensively. On Thursday, March 9, from noon to 1 p.m., he will present “Concussions in the Courts,” a one-hour lunch program to highlight the continuing litigation between athletes and athletic organizations. Register by calling (303) 860-0608 or by clicking the links below.

 

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CLE Program: Concussions in the Courts

This CLE presentation will occur on March 9, 2017, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Supreme Court: Announcement Sheet, 2/27/2017

On Monday, February 27, 2017, the Colorado Supreme Court issued six published opinions.

In re Goodman v. Heritage Builders, Inc.

In re Ferrer v. Okbamicael

Reyna-Abarca v. People

Scott v. People

Zubiate v. People

People v. Zadra

Summaries of these cases are forthcoming.

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

Colorado Court of Appeals: Fine to Employer for Workers’ Compensation Insurance Lapse Unconstitutional As Applied

The Colorado Court of Appeals issued its opinion in Dami Hospitality, LLC v. Industrial Claim Appeals Office on Thursday, February 23, 2017.

Dami Hospitality, LLC, operates a motel in Denver, Colorado. For a period in 2006, Dami failed to carry workers’ compensation insurance. It paid the $1,200 fine and obtained insurance. In 2014, the Division of Workers’ Compensation informed Dami that it was again without workers’ compensation insurance and had been for periods during 2006 and 2007, as well as from September 2010 through the date of the division’s notice. Dami admitted receiving the Division’s June 28, 2014, notice, but denied receiving a notice the Division contended it had mailed four months earlier. Dami obtained the necessary insurance by July 9, 2014, but did not otherwise respond to the Division’s letter.

The Division imposed a fine of $841,200 based on C.R.S. § 8-43-409(1)(b)(II) and 7 CCR 1101-3 (Rule 3-6). Dami’s owner, Soon Pak, sent a letter to the Director captioned “Petition to Review,” asking the Director to reconsider the fine. Ms. Pak claimed that she relied on her insurance agent to obtain the necessary insurance and believed the hotel’s insurance policies contained workers’ compensation coverage. She also asserted that the fine was more than her business grossed in a year and it would bankrupt both the hotel and her individually. Ms. Pak’s insurance agent also submitted a letter claiming personal responsibility for the lapse in coverage. In a supplemental order, the Director again ordered Dami to pay the fine, asserting that the previous lapse in coverage should have put Dami on notice as to the need for insurance.

Dami appealed to the Industrial Claim Appeals Panel, which ruled that the Director had failed to consider the factors in Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo. App. 2005), to protect against constitutionally excessive fines. On remand, without taking additional evidence, the Director reinstated his original fine, concluding that Rule 3-6 inherently incorporated the Associated Business Products factors. Dami again appealed, but this time ICAO upheld the Director’s order. Dami appealed to the Colorado Court of Appeals.

The court of appeals first considered whether Dami was deprived of procedural due process. Dami argued that notice by mail was unreasonable, and that a hearing should have been held before the fine was imposed. The court of appeals disagreed. Dami did not request a prehearing conference when it received the first notice of the lapse in insurance, and Dami did not show that the address the Division had on file was incorrect. Therefore, the court found that Dami was not denied procedural due process.

Dami next contended that the $841,200 fine was constitutionally excessive in violation of the Eighth Amendment. Dami argued that section 8-43-409 is unconstitutional on its face because the General Assembly removed a penalty cap in 2005 and failed to impose a statutory deadline for notice of missing insurance coverage, which therefore granted the Director “complete discretion regarding the timing of notice and thus the size of the fine.” The court of appeals found no facial constitutional error, noting that other penalty statutes have been upheld despite a lack of cap or statutory deadline.

However, the court of appeals agreed with Dami that the penalty was unconstitutional as applied because the Director abused his discretion in applying the Associated Business Products factors to Dami’s situation. Dami also argued that the fine is grossly disproportionate both to its ability to pay and to the harm caused by the lack of workers’ compensation insurance. It asserts the Director should also have considered its ability to pay when weighing the constitutionality of the fine. The court of appeals again agreed that the fine was unconstitutional as applied.

The court of appeals evaluated whether Eighth Amendment protections apply to corporations, and determined that Dami’s status as a corporation did not deprive it of Eighth Amendment protections. The court cited Citizens United for the premise that individual constitutional protections can apply to corporations.

Evaluating the particular fine, the court of appeals determined that the Director abused his discretion in imposing the fine because he did not make specific findings regarding the Associated Business Products factors. The court of appeals found that the uncontroverted facts put Dami at the low end of the reprehensibility scale, since Ms. Pak relied on her insurance agent to supply all necessary insurance coverage and the agent admitted he had not informed Ms. Pak about workers’ compensation insurance. The court also found that because Dami had not had a single workers’ compensation claim in its existence and it had fewer than ten employees, there was no actual harm from Dami’s lack of workers’ compensation insurance and low risk of potential harm. The court noted that the record lacked any evidence of comparable fines because the Division failed to supply it, but the information Dami supplied showed that in FY 2006-2007 the total amount of fines for failure to carry insurance “would be $200,000.” The court of appeals also recognized that the Director should have considered Dami’s ability to pay before imposing the fine.

The court of appeals remanded for reconsideration of the excessive fine in light of the Associated Business Products factors.

SB 17-062: Prohibiting Institutions of Higher Education from Limiting Students’ Free Speech

On January 13, 2017, Sen. Tim Neville and Rep. Stephen Humphrey introduced SB 17-062, “Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education.”

The bill prohibits public institutions of higher education (public institution) from limiting or restricting student expression in a student forum. ‘Expression’ is defined to mean any lawful verbal or written means by which individuals communicate ideas to one another, including all forms of peaceful assembly, protests, speaking verbally, holding signs, circulating petitions, and disstributing written materials. ‘Expression’ also includes voter registration activities but does not include speech that is primarily for a commercial purpose.

A public institution shall not subject a student to disciplinary action as a result of his or her expression. A public institution shall not designate any area on campus as a free speech zone or otherwise create policies that imply that its students’ expressive activities are restricted to a particular area of campus. Additionally, a public institution shall not impose restrictions on the time, place, and manner of student speech unless such restrictions are reasonable, justified without reference to the speech’s content, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information or message.

The bill states that it does not grant other members of the college or university community the right to disrupt previously scheduled or reserved activities in a portion or section of the student forum at that scheduled time. Additionally, the bill clarifies that it is not to be interpreted as preventing the public institution from prohibiting, limiting, or restricting expression that is not protected under the 1st Amendment.

A student who has been denied access to a student forum for expressive purposes may bring a court action to recover reasonable court costs and attorney fees.

The bill was introduced in the Senate and assigned to the Education Committee. It was amended in committee, and was again amended on Second and Third Reading in the Senate. It passed the Senate and was introduced in the House and assigned to the State, Veterans, & Military Affairs Committee.

Tenth Circuit: Unpublished Opinions, 2/27/2017

On Monday, February 27, 2017, the Tenth Circuit Court of Appeals issued four published opinions and two unpublished opinions.

Peterson v. Creany

United States v. Workman

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

Colorado Court of Appeals: No Error in Joining Trials Where CRE 404(b) Would Have Allowed Admission of Other Act Evidence

The Colorado Court of Appeals issued its opinion in People v. Raehal on Thursday, February 23, 2017.

Bradford Steven Raehal was living in the basement of S.F.’s family home when he was arrested for failing to register as a sex offender. Shortly after his arrest, S.F. reported that Raehal had sexually assaulted him on multiple occasions and had taken pictures of the assaults with a grey or silver digital camera. A search executed pursuant to a warrant found the digital camera, which contained previously deleted images of Raehal assaulting S.F.

J.H., another minor who lived at S.F.’s house, first denied that Raehal had assaulted him, but later reported three separate incidents of abuse. Although the incidents differed from the incidents with S.F., both boys reported that Raehal gave them video games and rubbed lotion on their backs before the assaults, which occurred in the same location for both boys.

At first, the trials for the acts on S.F. and J.H. were separate, but the district court joined the trials over defense counsel’s objection. A jury convicted Raehal of two counts of sexual assault on a child by one in a position of trust (one for acts against S.F. and one for acts against J.H.), two counts of sexual assault on a child as part of a pattern of abuse (one for acts against S.F. and one for acts against J.H.), and two counts of sexual exploitation of a child for the possession and production of sexually exploitative material relating to the pictures taken of S.F. In a separate proceeding, he was adjudicated a habitual sex offender against children. The trial court designated him a sexually violent predator and sentenced him to 112.5 years to life.

On appeal, Raehal first contended that the trials were improperly joined. Although he admitted that S.F.’s testimony would have been admissible under CRE 404(b) in J.H.’s trial, he argued the photos depicting the assaults of S.F. would not have been admissible. The court of appeals found no abuse of discretion. The court disagreed that the photographs should have been separately analyzed, and found the Spoto test inapplicable because the photos were admitted to corroborate S.F.’s testimony, not to prove a common scheme or plan. The court of appeals similarly found no error in the court’s failure to give a limiting instruction as to the photos, finding that any error could not have cast serious doubt on the reliability of the convictions.

Raehal next contended that the contents of the digital camera should have been suppressed because the examination of the camera occurred outside the 14-day window in the search warrant. The court of appeals again disagreed, finding that the camera was seized within the time limit and was not altered between the seizure and examination, so there was no error.

Raehal also contended that evidence of his prior assault of two other boys should have been rejected under CRE 404(b), but the court of appeals again disagreed, finding that although the prosecutor’s statements were somewhat misleading, there was no doubt that Raehal was convicted of only one charged offense.

Finally, Raehal argued, and the prosecution conceded, that the trial court erred in finding him a sexually violent predator without making specific findings. The court of appeals remanded for further findings on the sexually violent predator designation.

The court of appeals affirmed in part, reversed in part, and remanded for further proceedings.

SB 17-035: Increasing Penalties for Tampering with Oil and Gas Equipment or Facilities

On January 11, 2017, Sen. Jerry Sonnenberg introduced SB 17-035, “Concerning Tampering with Equipment Associated with Oil and Gas Gathering Operations.”

There is a current crime of tampering with equipment associated with oil or gas gathering operations. The bill includes placing another at risk of death or serious bodily injury as part of the crime and increases the penalty from a class 2 misdemeanor to a class 6 felony.

The bill was introduced in the Senate and assigned to the Agriculture, Natural Resources, & Energy Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading. The bill was amended on Second Reading and laid over.

SB 17-061: Requiring School Districts to Distribute Mill Levy Revenue to Charter Schools

On January 13, 2017, Sens. Angela Williams & Owen Hill and Rep. Lang Sias introduced SB 17-061, “Concerning Distribution of Additional Operational Funding to Charter Schools.”

Beginning in the 2017-18 budget year, the bill requires a school district to distribute revenue it receives from ongoing local property tax mill levies equally, on a per-student basis, to the school district charter schools. Under specified circumstances, the school district may distribute the revenue using a different calculation. The bill does not require a school district to redistribute to charter schools any amount of the mill levy revenue that it distributed in budget years before the 2017-18 budget year.

The bill directs the department of education to calculate a mill levy equalization payment for each institute charter school in the amount of the per pupil share of the mill levy overrides of an institute charter school’s accounting district. The state will pay the mill levy equalization amounts, subject to annual appropriations.

The bill was introduced in the Senate and assigned to the Education Committee. It was amended in committee and referred to the Senate Committee of the Whole for Second Reading. It was amended on Second Reading and re-referred to the Appropriations Committee.

HB 17-1167: Requiring Existing Businesses to be Included in Business Improvement Districts

On February 6, 2017, Rep. Timothy Leonard and Sen. Tim Neville introduced HB 17-1167, “Concerning a Requirement that a Business Improvement District Include Existing Businesses.”

A business improvement district (district) is a type of special district created within a municipality to fund certain types of improvements that will, among other things, promote the continued vitality of existing business areas within the municipality. The law currently allows a municipality to include areas in a district that do not have any existing businesses. The bill requires these areas to have existing businesses.

The bill was introduced in the House and assigned to the Business Affairs and Labor and Appropriations committees. It was postponed indefinitely by the House Business Affairs and Labor Committee.

Tenth Circuit: Unpublished Opinions, 2/24/2017

On Friday, February 24, 2017, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Ward v. Denver Sheriff Department

Burks v. Raemisch

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

SB 17-102: Prohibiting Use of Student Information Collected by School Service Providers

On January 27, 2017, Rep. Rachel Zenzinger and Sen. Brittany Pettersen introduced SB 17-102, “Concerning Prohibitions Affecting the Student Information that School Service Providers Collect.”

The bill defines ‘classification information’ as information that identifies the citizenship status or religion of a student or the student’s family. The bill prohibits a school service contract provider from collecting, using, or sharing classification information. With regard to existing statutory exceptions that allow a school service contract provider to share or sell certain student personally identifying information, the bill prohibits the sharing or sale of classification information.

The bill was introduced in the Senate and assigned to the Education Committee. The committee voted to postpone the bill indefinitely.

SB 17-107: Creating Performance Indicator for Schools Regarding Art Performance

On January 27, 2017, Sen. Michael Merrifield and Rep. Barbara McLaughlin introduced SB 17-107, “Concerning Measures to Reward Public Education Entities that Provide Student Access to Arts Education Programs.”

Under current law, the accreditation for school districts and the state charter school institute (institute) and the level of performance for public schools is based on the attainment of specified performance indicators. The bill creates an additional performance indicator that measures the degree to which a public school, a school district, or the institute provides access to courses or educational programs in dance, drama and theater, music, and visual arts. The state board of education must adopt rules by which a public school, a school district, or the institute will receive additional credit toward the accreditation or performance ratings based on the arts performance indicator.

The bill was introduced in the Senate and assigned to the State, Veterans, & Military Affairs and Appropriations committees. It passed through the State, Veterans, & Military Affairs Committee with no amendments and was referred to Appropriations.