May 21, 2019

Archives for August 21, 2013

Running Past Our Limits Update (Part 4): Find Your Placebo

rhodesLast summer I wrote a series on lessons we all can learn from marathon training. (You can find it in the archives.) This series responds to requests for an update.

My new AMT/Open Stride training got a boost when I surprised myself by going to an MS seminar and being glad I did. I’d gotten these invitations before and blew them off, but the topic was “dealing with MS through diet and exercise,” and I wanted to sharpen my edge.

What I got for starters was a surprising sense of community. It was odd to watch other people do the “get up from a chair” routine, and funny to hear a speaker talk about the characteristic MS “foot slap” and “toe stub.” We all laughed when another speaker acknowledged that EVERYONE views c-a-n-e as the “never-say-that-to-me-if-you-know-what’s-good-for-you” four-letter word. And it was good to know I’m not the only one who’s afraid I’ll get stopped for public drunkenness because of the way I walk sometimes. “Just use your cane,” someone said. “People will just assume you’re handicapped and not bother you.”

We weren’t just friends in that room, we were teammates with a common goal:  don’t give up. One woman whose symptoms had obviously gotten the best of her – she said she was on the anti-spaz drug, and was in one of those wheelchairs that holds you upright – won a door prize and took a loonnggg time to motor herself up to the front. We didn’t care, we just cheered. Plus, I saw “the look” on a couple faces. It’s my game face, the one I wear when I go to my workout. It was pretty scary – both to see it and to recognize it as my own.

The highlight for me came when a medical researcher talked about the placebo effect:  how people get well not from “real” treatment, but because they believe they will. “Find your placebo,” he advised. “if you think it will help you, it probably will.” I felt smug;  I’d already found mine. Is it crazy to believe that elliptical marathon training will get me across a finish line? No crazier than people getting better taking placebos. I’ll take another bottle of those, please, and I don’t care that they’re not covered by insurance.

I just finished a book called Mind Over Medicine: Scientific Proof That You Can Heal Yourself. The writer is Lissa Rankin, an M.D. who went kicking and screaming into non-traditional medicine after realizing that LOTS of people in placebo control groups get better. She realized that the typical attitude of “Isn’t that cute, those people got better taking sugar pills” misses what she ended up viewing as the mother lode.

Plus, she goes on to say, it’s not just what we believe, it’s also about making room in our lives for purpose and meaning, working with passion and living with joy, getting connected and making room for creative expression, and changing our circumstances when they turn toxic on us. All these things can heal both our bodies and our lives.

And our legal careers, too, I might add.

How about it? What’s your placebo for whatever is ailing you?

To be continued.

 

For more about Mind Over Medicine, see Dr. Rankin’s interview on The Good Life Project:  http://www.goodlifeproject.com/lissa-rankin-mind-medicine/.

 

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Colorado Court of Appeals: Unemployment Claimant’s Coworker Not Employer so Benefits Wrongly Awarded

The Colorado Court of Appeals issued its opinion in Yotes, Inc. v. Industrial Claim Appeals Office on Thursday, August 15, 2013.

Unemployment Compensation—Resignation—Personal Harassment—Delayed Employer Response to Employee Complaint— “Coworker” Vs. “Employer.”

In this unemployment compensation case, petitioner Yotes, Inc. (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) reversing a hearing officer’s decision and awarding unemployment compensation benefits to claimant under CRS § 8-73-108(4). The Court of Appeals set aside the order.

The hearing officer found that claimant resigned because he believed that employer was not acting quickly enough in responding to his complaint of sexual harassment from a coworker. The hearing officer also found that employer was taking the complaint seriously and claimant did not allow employer reasonable time to conduct an investigation and determine the appropriate action. Therefore, the hearing officer concluded that claimant was at fault for the separation and that a disqualification of unemployment benefits was warranted. The Panel reversed the hearing officer’s decision and awarded benefits to claimant.

Employer contended that the Panel erred when it awarded benefits to claimant under CRS § 8-73-108(4)(o). When an employee quits “because of personal harassment by the employernot related to the performance of the job,” benefits must be awarded to the employee. Here, claimant’s coworker was not an employer under the statute. Therefore, the Panel erred as a matter of law when it defined “employer” to include claimant’s coworker. Further, there was no evidence of personal harassment by employer. Because employer had indefinitely removed claimant from the adverse working conditions and claimant did not remain at the job long enough to learn whether the adverse conditions would be eliminated, claimant was not entitled to benefits. Accordingly, the Panel erred in awarding benefits to claimant and the order was set aside.

Summary and full case available here.

Colorado Court of Appeals: Records That Do Not Exist Cannot Be Produced for Purposes of CORA

The Colorado Court of Appeals issued its opinion in Mountain-Plains Investment Corp. v. Parker Jordan Metropolitan District on Thursday, August 15, 2013.

Colorado Open Records Act—Fee—Deposit—Privilege Log.

Plaintiffs Mountain-Plains Investment Corporation, John Robert Fetters, Jr., Joann Dransfeldt Fetters, A. Sue Fetters, and John R. Fetters III (collectively, Mountain-Plains) appealed the summary judgment entered in favor of defendant Parker Jordan Metropolitan District (District). The Court of Appeals affirmed in part and reversed in part.

Plaintiffs alleged a violation of the Colorado Open Records Act (CORA) after defendants refused to provide documents in response to two CORA requests until plaintiffs paid a fee to research, review, and make available the requested public records. Plaintiffs contended that the trial court erred in requiring the District to make some, but not all, e-mails concerning the stream development project available to plaintiffs for inspection and review. E-mails may be deemed public records if, like other writings, they were made, maintained, or kept by the government for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. Here, CliftonLarsonAllen LLP (Clifton)is a private entity that serves as the custodian of records for the District. Communications not received, possessed, or maintained by the District, through Clifton, are not public records. Therefore, the District could not produce what it did not possess.

Plaintiffs further contended that the trial court erred in ruling that the District did not violate CORA. The trial court weighed the cost to plaintiffs against the reasonable time for retrieving and reviewing the documents, and found the $25-per-hour fee to be reasonable. Additionally, charging an advance deposit in a reasonable amount was not a violation of CORA. Therefore, the trial court did not err when it found the District did not violate CORA by failing to respond to the CORA request without plaintiffs first paying a deposit.

The District contended that the trial court erred in holding that the $25-per-hour fee could not be assessed for time spent identifying and segregating privileged material. A custodian may charge a reasonable fee for retrieving and researching records, including the time it takes to identify and segregate records that need not be disclosed. Therefore, the trial court erred by not allowing the District to assess this fee when responding to plaintiff’s CORA request.

Plaintiffs asserted that the trial court erred in ordering that any expenses associated with producing a privilege log may be charged to plaintiffs. Because the District did not maintain a privilege log in its normal course of business, the District may charge an additional fee for the process of producing a privilege log. Furthermore, the $25-per-hour fee was reasonable for creating the privilege log, because it did not exceed the actual cost of generating the log.

Summary and full case available here.

Colorado Court of Appeals: Statute of Limitations for Escape Begins to Run When Defendant Returned to Colorado

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, August 15, 2013.

Escape—Statute of Limitations—Continuing Offense—Custody—Choice of Evils.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of escape. The Court of Appeals affirmed.

In 1973, defendant was convicted of second-degree murder and sent to prison. He escaped two years later and evaded authorities until 2007, when he was arrested and returned to custody in Colorado.

On appeal, defendant contended that the statute of limitations for escape barred his prosecution. The statute of limitations for escape is three years. The crime of escape under CRS § 18-8-208 is a continuing offense for purposes of the statute of limitations. Therefore, the statute of limitations does not begin to run so long as the illegal conduct was continuing. Accordingly, the statute of limitations did not begin to run until defendant was returned to custody in Colorado.

Defendant also argued that, even if escape is a continuing offense, he was “returned to custody” following his arrest in California in 1990 for public intoxication. The plain meaning of the word “return” indicates that an escape ends when a suspect is transferred to the custody of the jurisdiction from which he escaped. Therefore, because defendant was not returned to the custody of the Department of Corrections in Colorado until 2007, the statute of limitations did not begin to run until that time.

Defendant further contended that the trial court erred in not giving the jury an instruction on the “choice of evils” affirmative defense. Because defendant presented no evidence that he voluntarily submitted to authorities as soon as he reached a position of safety, this affirmative defense was not available to him.

Summary and full case available here.

Tenth Circuit: Declaratory Judgment for Insurer Based on Policy’s Malicious Prosecution Exclusion Reversed

The Tenth Circuit Court of Appeals published its opinion in Carolina Casualty Ins. Co. v. Nanodetex Corp. on Monday, August 19, 2013.

A few years ago the New Mexico Supreme Court recognized a new tort called “malicious abuse of process,” which subsumed the traditional causes of action for malicious prosecution and abuse of process. Nanodetex Corporation and two of its principals (the Insureds) were successfully sued for malicious abuse of process. They then sought indemnification from Carolina Casualty Insurance Company, which covered the Insureds under a management liability policy (the Carolina Policy). Carolina denied the claim, relying on an exclusion in the policy for losses arising from claims for “malicious prosecution.” It sought a declaratory judgment that it was not liable for the damages arising from the malicious-abuse-of-process judgment. On Carolina’s motion for summary judgment, the district court agreed with Carolina and also rejected the Insureds’ counterclaims. The Insureds appealed.

The Tenth Circuit reversed the declaratory judgment, holding that the term “malicious prosecution” in the exclusion did not encompass all claims of malicious abuse of process, but only claims whose elements are essentially those of the common-law cause of action for malicious prosecution. Because the judgment against the Insureds in the tort case was affirmed on appeal on a claim that was not substantially the same as common-law malicious prosecution, the exclusion in the Carolina Policy did not apply. The court reversed summary judgment for Carolina and remanded.

Tenth Circuit: Unpublished Opinions, 8/21/13

On Wednesday, August 21, 2013, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Keeler v. Aramark

Crownhart v. Suthers

Kaufman, Jr. v. Miller

Ultra Clean Holdings, Inc. v. TFG-California, L.P

Chrismon v. Astrue

United States v. Allison

Medina v. Weber

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

Colorado Court of Appeals: Reversal Required in Insanity Plea Case Because Competency Evaluation Report Statutorily Deficient

The Colorado Court of Appeals issued its opinion in People v. Presson on Thursday, August 15, 2013.

Murder—Competency Examination.

Defendant appealed the judgment of conviction entered on jury verdicts finding her guilty of first-degree murder after deliberation and felony menacing. She also appealed her convictions for possession of a weapon by a previous offender, attempted second-degree assault, and attempted escape, entered pursuant to her guilty plea. The Court of Appeals reversed and the case was remanded with directions.

After fatally shooting the victim, defendant entered a plea of not guilty by reason of insanity. After a sanity examination and an initial competency examination, the court ordered a second competency evaluation. Defendant refused to meet with the evaluator, Dr. Bradley. Dr. Bradley submitted a report to the court stating that although he had reviewed voluminous medical and other records, he lacked sufficient information to provide an opinion concerning defendant’s competency.

On appeal, defendant contended that reversal was required because Dr. Bradley’s competency evaluation report was statutorily deficient. Dr. Bradley’s report did not contain the statutorily required diagnosis, prognosis, and opinions. On receiving an incomplete second evaluation, a court is required to order (1) that the evaluator render an opinion based on the available information, if possible, despite the defendant’s noncooperation; or (2) that the defendant be returned to the appropriate facility for further observation so that a competency opinion can be rendered. In this case, Dr. Bradley stated that he had insufficient information from which to render an opinion, and the trial court declined to return defendant to the Colorado Mental Health Institute to complete the evaluation. This error was not harmless. Therefore, reversal was required. Thus, the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Erred in Including Statutory Penalty in Restitution Order

The Colorado Court of Appeals issued its opinion in People v. Russell on Thursday, August 15, 2013.

Restitution—Order—Unemployment Benefits—Statutory Penalty.

Defendant Beau Thomas Russell appealed the trial court’s restitution order, which included a mandated statutory penalty following his plea of guilty to one count of forgery. The Court of Appeals affirmed in part and reversed in part, and the case was remanded for further proceedings.

Russell’s plea resulted from his receipt of $3,321 of unemployment compensation benefits over a two-month period, after he falsely reported himself as unemployed to the Unemployment Benefits Division of the Colorado Department of Labor and Employment. Russell asserted that the trial court erred when it included the statutory penalty in the restitution order. The trial court could not impose the statutory penalty without proof of a correlation between Russel’s actions and the amount of the statutory penalty. Because there was no evidence in the record that the statutory penalty relates in any way to the cost of investigating Russell’s conduct, the trial court abused its discretion by including the statutory penalty in the restitution order. Therefore, the restitution order was reversed as to the penalty, and the case was remanded for the trial court to amend the order by deleting the 50% penalty amount from the restitution award. The order was affirmed in all other respects.

Summary and full case available here.

Tenth Circuit: Failure to Request Special Verdicts for Factual Contentions Waived Right to Challenge Sufficiency of the Evidence

The Tenth Circuit Court of Appeals published its opinion in Pratt v. Petelin on Monday, August 19, 2013.

Jennifer Pratt sued Joseph Petelin, M.D. for medical negligence. He had operated on Pratt and allegedly removed her entire thyroid and cancerous mass but ignored her post-operative complaints of still feeling a mass in her neck and other symptoms. He refused to order a scan for her so she arranged one on her own and a different surgeon removed her cancerous lymph nodes and thyroid mass. The district court submitted four factual theories of negligence to the jury in one instruction, which returned a general verdict against Dr. Petelin in the amount of $153,000.

Dr. Petelin appealed, claiming three of the four factual contentions submitted to the jury were unsupported by sufficient evidence. Dr. Petelin did not object to the first factual contention, that he failed to remove all thyroid tissue, including a cancerous mass. The Tenth Circuit distinguished this appeal from cases cited by Petelin where a new trial was ordered because a jury may have relied on an incorrect or unsupported legal theory. Here, the jury was given one correct legal theory — medical negligence — and given four possible bases for finding Petelin liable. Because Petelin did not request a special verdict form for each factual contention, he waived his right to challenge the sufficiency of the evidence. The burden is on the appellant to request a special verdict where insufficiency of the evidence is asserted regarding some, but not all, of the factual theories in a jury instruction. To hold otherwise would be unfair to plaintiffs as a new trial could have been avoided by the defendant requesting special verdicts. The court affirmed.

Tenth Circuit: Copyright Co-ownership Claim Barred by Statute of Limitations

The Tenth Circuit Court of Appeals published its opinion in Cooper v. NCS Pearson, Inc. on Monday, August 19, 2013.

Julia Copeland Cooper (Copeland) appealed from a grant of summary judgment dismissing on statute of limitations grounds her Copyright Act claims against NCS Pearson, Inc. for co-ownership of a psychological test. Copeland co-created a psychological test instrument called the Battery for Health Improvement (BHI) with Mark Disorbio, her husband at the time, and Daniel Bruns. Copeland is a physical therapist and Dr. Disorbio and Dr. Bruns are both clinical psychologists. After creating the BHI,  Copeland, Bruns, and Disorbio formed a corporation called Battery for Health and Illness, Inc. (BHI, Inc.). Bruns and Disorbio were the corporation’s directors and Copeland was its president and registered agent. In 1993, Bruns and Disorbio assigned their intellectual property rights in the BHI to the corporation. Each assignment stated that Dr. Bruns and Dr. Disorbio were the joint authors and owners of the BHI and the “absolute proprietor[s] of the copyright and all attendant intellectual property rights of the Work.”

Also in 1993, Bruns, Disorbio, and BHI, Inc. granted defendant’s predecessor corporation “all right, title, and interest” in the BHI, granting the right to publish and market the test in exchange for royalties. The Publication Agreement with NCS defined the “authors” of the BHI as Bruns, Disorbio, and BHI, Inc., and warranted that they “exclusively own all Intellectual Property Rights” in the BHI “and that no other person has an option, claim, or right” to the test. The Publication Agreement did not identify Copeland as an author. It was signed by Copeland for BHI, Inc., Bruns, Disorbio, and a representative of NCS.

The statute of limitations for claims under the Copyright Act is three years. The Tenth Circuit agreed with the district court that the 1993 Agreement placed Ms. Copeland on notice that her ostensible copyright co-ownership claim was in jeopardy and thereby started the statute of limitations running.

In 1996, NCS first published the BHI. The cover stated that it was “by” Dr. Bruns and Dr. Disorbio, “with contributions by” Ms. Copeland. She was also listed in the “About the Authors” section. NCS began to send royalty checks to BHI, Inc., to the attention of Copeland as president. She disbursed 50% of the money to Bruns and 50% to Disorbio.

Even if Copeland’s claims had not accrued in 1993, they accrued no later than 1996. Awareness that one is not being credited in the same manner as other authors starts the statute of limitations running for copyright co-ownership claims. Copeland was also aware in 1996 she was not receiving royalties but that Bruns and Disorbio were. Awareness that one is not receiving royalties also puts one on notice of the basis for a copyright co-ownership claim. Because Copeland did not bring her action until 2010, the court affirmed.

Tenth Circuit: Unpublished Opinions, 8/20/13

On Tuesday, August 20, 2013, the Tenth Circuit Court of Appeals issued four published opinions and eight unpublished opinions.

United States v. Hodge

Pierson v. Bassett

United States v. Rosario

United States v. Card

Adams v. Laramie County School District

Meek v. Jordan

United States v. Gauger

United States v. Ruiz-Arreola

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