July 15, 2018

Archives for August 5, 2011

Governor Hickenlooper Announces New Board and Commission Appointments

On Friday, August 5, 2011, Governor John Hickenlooper announced his appointments to several more Boards and Commissions.The appointments were made to the Hospital Provider Fee Oversight and Advisory Board, the CoverColorado Board of Directors, the Colorado HIV/AIDS Care and Prevention Coalition, and the Western Interstate Commission on Higher Education.

The Hospital Provider Fee Oversight and Advisory Board is responsible for working with the Department of Healthcare Policy and Financing and the Medical Services Board to develop the hospital provider fee model, monitor implementation of HB 09-1293, help with preparation of annual reports on the program, and ensure that the Medicaid and CHP+ eligibility expansions are implemented as intended. The new members appointed are:

  • Peggy Jordan Burnette, of Denver, to serve as an employee of a hospital in Colorado; term to expire May 15, 2012.
  • Michelle Lynn Joy, of Sterling, to serve as an employee of a rural hospital in Colorado; term to expire May 15, 2015.

The CoverColorado Board of Directors works to provide access to health insurance to approximately 2,500 Coloradans through the CoverColorado program. Recipients are considered “high-risk” and not covered by other insurance companies due to pre-existing health conditions. The members appointed are:

  • Gary S. Carolson, of Castle Rock, reappointed to represent individuals who are currently insured under the program; term to expire July 1, 2015.
  • Carrie S. Etherton, of Denver, to serve as an individual who is currently insured or who has been insured under the program; term to expire July 1, 2015.
  • Christopher Jon Miller, of Denver, to serve as a representative of an insurance carrier; term to expire July 1, 2013.
  • Keith Evans, of Lonetree, to serve as a representative of insurance carriers; term to expire July 1, 2014.

The Colorado HIV/AIDS Care and Prevention Coalition serves as an expert resource for providing advice and information to the Colorado Department of Public Health and Environment on issues, trends, needs, and resources pertaining to HIV/AIDS in the promotion of effective HIV prevention and care programs. The Coalition will advise CDPHE on both scientific and policy issues, including those related to treatment and access to medical care for persons in Colorado living with HIV/AIDS. The Coalition replaced the Colorado Advisory Council on AIDS, which expired at the end of 2008. The members appointed, with terms to expire Feb. 27, 2014, are:

  • Analee T. Beck of Pueblo.
  • Carroll Avon Watkins Ali of Denver.
  • Carolyn T. Lease of Denver, reappointed.
  • Roseann Grace Prieto of Aurora, reappointed.
  • Peter L. Ralin of Denver, reappointed.
  • Mary Beth Luedtke of Grand Junction, reappointed.

The Western Interstate Commission for Higher Education is composed of three members each from fifteen Western states. The commission studies the needs of professional and graduate educational facilities in the region, the resources for meeting such needs and the long-range effects of the commission’s findings on higher education. Each state’s commissioners submit a report to their Governor and General Assembly. The new members are:

  • Demetri E. “Rico” Munn of Denver; term to expire March 28, 2013.
  • Lt. Gov. Joseph A. Garcia, of Pueblo, to serve as a representative of educators engaged in the field of higher education; term to expire March 28, 2014.
  • Dr. Dene Kay Thomas of Durango; term to expire March 28, 2015.

The full press release from the Governor’s Office concerning these board and commission appointments can be found here.

Judge Robert E. Blackburn Appointed as Member of the U.S. District Court for Colorado’s Disciplinary Panel

On Wednesday, August 3, 2011, the Chief Judge of the United States District Court for the District of Colorado appointed Judge Robert E. Blackburn as the third and final member of the court’s Disciplinary Panel. Blackburn fills the vacancy on the Panel that occurred with the resignation of Judge Walker D. Miller.

The Disciplinary Panel is the judicial body with jurisdiction over and responsibility for discipline of members of the court’s bar. The Panel is composed of three district judges; Chief Judge Wiley Y. Daniel and Judge Philip A. Brimmer also sit on the Panel.

Amy Bellman: So Your Hotel Guest Is Permitted To Use Medical Marijuana . . .

Medical marijuana has been legal in Colorado since voters passed Amendment 20 in 2000.  As of June 2011, the Colorado Department of Public Health and Environment (“CDPHE”) had issued over 125,000 ID cards under the Medical Marijuana Registry program.  CDPHE statistics indicate that those holding ID cards are primarily male, have an average age of 40, and are far more likely to suffer from muscle spasms (20%) or severare pain (94%) than from cancer (2%) or glaucoma (1%).

CDPHE statistics do not discuss the travel habits of those holding ID cards.  But presuming that the muscle spasms subside enough to allow for some rest and relaxation, a person holding a medical marijuana ID card may presume that he can smoke on hotel/timeshare resort property.  If the hotel or timeshare resort is in Colorado, here are a couple things for the operator to consider when faced with this scenario.

It Is Unlikely that the DOJ Would Pursue an Americans With Disabilities Claim if a Hotel/Timeshare Resort Prohibited a Guest from Smoking Medical Marijuana

Many hotels and timeshare resorts are concerned that they could be subject to ADA liability for prohibiting a guest from smoking medical marijuana.  Although this issue is not entirely free from doubt, the Department of Justice (“DOJ”) (the agency that enforces the ADA) has issued two memos (one in October 2009 and the other in June 2011) generally addressing medical marijuana laws.  In the 2009 memo, the DOJ took the position that although medically prescribed marijuana is still an illegal drug under federal law, it is not going to waste resources chasing small-time legitimate medical users in states where such use is permitted.  In the 2011 memo (issued only one month ago), the DOJ reiterates that it won’t pursue small-time legitimate users, but warns that it will prosecute large scale, commercial medical marijuana growers.  Based on these memos, we think it unlikely that the DOJ would pursue a course of action that would require hotels and timeshare resorts to accommodate this activity, absent special circumstances.

Under Colorado Law, Hotels & Timeshare Resorts Are Not Required to Accommodate a Guest’s Use of Medical Marijuana

The Colorado Clean Indoor Air Act, which prohibits smoking in certain public places and gives owners/managers the right to prohibit smoking in their facilities, does not distinguish the smoking of medical marijuana from the smoking of cigarettes, cigars, pipes or other tobacco products.  Accordingly, managers of hotels and timeshare properties should be free to prohibit the smoking of medical marijuana in the same way that they prohibit the smoking of tobacco products.

In addition, FAQs published on CDPHE’s website provide that a patient is only legally permitted to smoke medical marijuana in his or her home; it is illegal to smoke medical marijuana in plain view of, or in a place open to, the general public.  Presuming that the resort does maintain a public designated smoking area, the CDPHE policy would not permit guests to smoke medical marijuana in that area.

Amy Bellman is an associate at Baker Hostetler who focuses her practice on both real estate and hospitality law. She contributes to the firm’s Hospitality Lawg, where this post originally appeared on August 1, 2011.

Dinner in White: Bringing Paris to Denver for a “Secret” Fundraising Evening

The Denver Bar Association Young Lawyers Division would like to let you in on the “secret.” On Saturday, August 13, 2011, a Parisian tradition is coming to Denver for a magical evening in white under the stars.

Modeled after the Diner Blanc in Paris, the “Dinner in White” is a whole new way of conducting a fundraising event. Word about this unique gathering is spread solely by word of mouth and social media – no invitations are sent and the location of the dinner is kept top secret until one hour prior. Guests dress in all white, prepare a picnic dinner, and await the call at 6:00 pm revealing the secret location in Denver. Upon arrival, you will be dazzled and entertained. Sip on a French cocktail, shop in the Parisian marketplace, take a spin on the dance floor, do a bit of networking, or relax under the glow of the night.

Tickets are $50 per person (must be 21 to attend) and includes drinks and dessert. Purchase your tickets at www.dinnerinwhite.com.

The Dinner in White is hosted by the AMC Cancer Fund and all proceeds benefit the University of Colorado Cancer Center.

Directive Concerning Public Access to Court Records Revised by Colorado Supreme Court

The Colorado Supreme Court has issued a revised Chief Justice Directive, which was adopted and effective as of August 1, 2011. The changes reflect amendments made by the Public Access Committee.

The purpose of CJD 05-01 is to provide reasonable access to court records while simultaneously ensuring confidentiality in accordance with existing laws, policies, and procedures. In addition, the directive is intended to:

  • provide direction to Judicial Branch personnel
  • promote the accuracy and validity of the information in court records that is released to the public
  • provide guidance regarding the content of the Judicial Branch web sites

Click here to review the public access policy in its entirety.

Tenth Circuit: Unpublished Opinions, 8/4/11

On Thursday, August 4, 2011, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Unpublished

Gallegos v. Bravo

Murray v. Rudek

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: In Prozac Wrongful Death Case, Expert Witness Properly Excluded but the Request for Additional Time to Name a New Expert Should Have Been Granted

The Tenth Circuit Court of Appeals issued its opinion in Rimbert v. Eli Lilly and Co. on Wednesday, August 3, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner’s father, shorty after beginning to take Prozac, killed his wife and himself. Petitioner brought a wrongful death action against Respondent, the manufacturer of Prozac. Respondent moved for summary judgment to exclude the testimony of Petitioner’s sole expert witness on the question of causation; the motion was denied by the district court judge who was initially assigned the case. The case was thereafter reassigned, and Respondent moved for reconsideration of the prior rulings and the second district court judge granted the motion to exclude the expert witness. Petitioner then immediately moved for a new scheduling order allowing him time to name a new expert, which the district court denied. The district court then entered summary judgment for Respondent, “concluding that, without the expert’s testimony, [Petitioner] could not put forth any evidence Prozac caused [his] father to commit the murder-suicide.” Petitioner appeals the order excluding the testimony of his expert witness and he also appeals the order denying additional time to name a new expert and the resulting entry of summary judgment for Respondent.

The Court found no abuse of discretion in excluding the expert witness. “[I]t was not ‘manifestly unreasonable’ for the district court to, upon being assigned a new case, independently assure itself of the expert’s reliability and to fulfill its gatekeeper function.” Additionally, Respondent was free to request reconsideration of the initial judge’s rulings. However, the Court agreed with Petitioner regarding his request for additional time to name a new expert. At the time of the request, there was no longer any impending trial date or pretrial schedule remaining that would have been disrupted; accordingly, Respondent would not have been prejudiced by a new scheduling order “in the sense of being unable to mount a defense against the new expert’s testimony,” and extra expense alone is not the type of prejudice contemplated when denying such an order.

“[T]he district court was not faced with a case that had proceeded normally, and the unique circumstances presented called for flexibility in the discovery schedule. In light of the procedural oddities of the case . . . and the district court’s unorthodox consideration of the motion for a new scheduling order as if it had been made at a prior date when the case was in a vastly different posture, [the Tenth Circuit was] left with the ‘definite and firm conviction’ that disallowing [Petitioner]’s request for additional time to name a substitute expert was an abuse of discretion.”