July 18, 2019

Archives for September 2, 2013

Karen Ashby Selected for Judgeship on Colorado Court of Appeals

On Friday, August 30, 2013, Governor Hickenlooper announced his appointment of Hon. Karen Ashby to the Colorado Court of Appeals.

Judge Ashby is currently the Presiding Judge of the Denver Juvenile Court. Judge Ashby has been described as the go-to person on juvenile issues in Colorado. Prior to her appointment to the Denver Juvenile Court, Judge Ashby served as a judge on the Aurora Municipal Court bench, and worked for the Colorado State Public Defender’s Office. She also worked as an attorney in private practice.

Judge Ashby’s appointment to the Court of Appeals bench is effective October 1, 2013. She will serve a provisional term of at least two years until the next general election, when the voters will decide if she will be retained.

Comment Period Open for Changes to Federal Rules of Civil Procedure and Bankruptcy

The Judicial Conference Committee on Rules of Practice and Procedure has opened the public comment period for several proposed changes to the Federal Rules of Practice and Procedure. Comments must be submitted in writing by February 15, 2014. The changes affect the Federal Bankruptcy and Civil Procedure rules and the public comment period opened August 15, 2013.

The following rules and forms are affected by the proposed changes:

  • Bankruptcy Rules 2002, 3002, 3007, 3012, 3015, 4003, 5005, 5009, 7001, 9006, and 9009, and Official Forms 17A, 17B, 17C, 22A-1, 22A-1Supp, 22A-2, 22B, 22C-1, 22C-2, 101, 101A, 101B, 104, 105, 106Sum, 106A/B, 106C, 106D, 106E/F, 106G, 106H, 106Dec, 107, 112, 113, 119, 121, 318, 423, and 427.
  • Civil Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and Appendix of Forms.

The changes to the Civil Rules limit the number of presumptive depositions to five and limit other modes of discovery as well. The committee is particularly interested in receiving comments on the changes to Rule 37 regarding electronic discovery. Part of the proposed changes to Rule 37 would make it more difficult to get sanctions for ESI spoliation.

A PDF of the changes can be found here. Comments may be submitted to the Advisory Committees by mail or electronically, and will be reviewed then made part of the public record. To submit or view comments on the proposed Bankruptcy Rule changes electronically, see this Regulations.gov webpage.  To submit or view comments electronically on the proposed Civil Procedure Rule changes see this Regulations.gov webpage.

Tenth Circuit: Claims Against Drug Manufacturers Preempted, Time-Barred; State Law Would Not Impose a Duty to Consumers

The Tenth Circuit Court of Appeals published its opinion in Schrock v. Wyeth on Wednesday, August 28, 2013.

Susan and Steven Schrock filed suit against brand-name and generic manufacturers of the drug metoclopramide, alleging that Susan Schrock’s use of generic metoclopramide caused her to develop tardive dyskinesia, a neurological disorder characterized by involuntary body movements. The district court dismissed all claims in favor of the manufacturers in a series of orders. On appeal, the Schrocks challenged the dismissal of their claims against PLIVA USA, Inc. (“PLIVA”), Qualitest  Pharmaceuticals, Inc. (“Qualitest”), Schwarz Pharma, Inc. (“Schwarz”), and Wyeth, Inc. (“Wyeth”).

The court concluded that the Schrocks’ breach-of-warranty claims against PLIVA and Qualitest, the generic drug manufacturers, were preempted by federal law. The Schrock’s warranty claims were based on the theory that Qualitest provided improper descriptions or warnings in the labeling and packaging of metoclopramide or that the content of the metoclopramide Qualitest sold rendered it unreasonably dangerous or unmerchantable. In advancing their warranty claims, the Schrocks alleged that Qualitest had a duty under state law to alter either the composition or the labeling, as broadly defined by the FDA, of its generic metoclopramide. Because Qualitest could not have taken either action without violating federal law pursuant to Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct. 2466 (2013) and PLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2574 (2011), the court concluded these claims were preempted.

The Tenth Circuit also agreed with the district court that the Schrocks’ non-warranty claims against the generic manufacturers were barred by Oklahoma’s two year statute of limitations. Oklahoma follows the “discovery rule,” under which the statute of limitations in product liability cases does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action is brought and that the defendant caused it. It was undisputed that in May of 2005 Susan Schrock’s doctor informed her that metoclopramide was “quite possibly” responsible for her symptoms. Yet the Schrocks did not file suit until April 30, 2008, nearly three years later.

With respect to the Schrocks’ claims against Schwarz and Wyeth, name-brand manufacturers of metoclopramide, the Tenth Circuit was in accord with the district court’s determination that Oklahoma tort law would not provide a remedy. Given prior Oklahoma precedent and the clear consensus of courts in other jurisdictions, the court predicted that Oklahoma would not impose a duty on brand-name drug manufacturers to consumers of a generic manufacturer’s products. Schwarz and Wyeth did not owe a duty to the Schrocks because Susan Schrock used only generic versions of metoclopramide.

The court recognized the catch-22 situation in which existing jurisprudence placed the Schrocks and similarly situated consumers of generic drugs. The court stated if consumers of generic drugs are to obtain federal relief, it must come from Congress.


Tenth Circuit: Armed Bank Robbery Conviction Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Brooks on Thursday, August 29, 2013.

A jury convicted Anthony Brooks was convicted of armed bank robbery. He appealed his conviction, arguing that: (1) the evidence at trial was insufficient, as a matter of law, (2) the district court erred by admitting DNA evidence linking him to the crime scene; (3) the district court’s refusal to strike the testimony of the government’s expert witness constituted an abuse of discretion; (4) the district court abused its discretion by allowing the government to introduce evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery; and (5) the district court abused its discretion by denying Mr. Brooks’s motion for a new trial based on alleged juror misconduct.

The court found that the district court properly determined that the government established a sufficient foundation establishing a chain of custody for the DNA evidence. Finding no abuse of discretion, the court held the district court properly admitted the DNA evidence. The court also found that the district court did not abuse its discretion in allowing the testimony of the government’s expert witness. There was limited, if any, evidence that Mr. Brooks was prejudiced by the alleged discrepancy between the expert’s testimony and her report. The Tenth Circuit further held the district court did not err in admitting evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery. The possession of a large sum of cash at about the time of an offense may be considered as part of the circumstantial evidence where warranted by the particular facts involved. its probative value was not significantly diminished by the timing of the observations of his possession of the cash.

The court then turned to Mr. Brooks’ contention that insufficient evidence was produced at trial to support his conviction for armed bank robbery. Taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, the Tenth Circuit concluded a reasonable jury could find Mr. Brooks guilty beyond a reasonable doubt. There was ample evidence in the record from which a reasonable jury could have found, beyond a reasonable doubt, that Mr. Brooks committed the bank robbery charged in the indictment.

Mr. Brooks’ final argument was that the district court erred in denying him a new trial based on alleged juror misconduct. Mr. Brooks argued that Mr. Clark, the jury foreperson, lied by omission in failing to inform the court and the parties during voir dire that he was under investigation by the same federal agency that was prosecuting Mr. Brooks. Under McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), a litigant is entitled to a new trial in the face of allegations that a juror’s voir dire responses are untruthful when a party demonstrates that a juror failed to answer honestly a material question on voir dire, and then further shows that a correct response would have provided a valid basis for a challenge for cause. The district court found that while the second prong of the McDonough test may have been met, it found that the juror’s responses to be truthful and denied Mr. Brooks’ motion for a new trial. The Tenth Circuit found no clear error in the district court’s determination.