April 20, 2019

Archives for July 28, 2015

Memorial Service Held for Hon. Scott T. Erickson

On Monday, July 27, 2015, a memorial service was held for Hon. Scott T. Erickson at the top of the gondola in Telluride, followed by an open house at Alpine Chapel. Judge Erickson, a county court judge in San Miguel County, died last week at age 53 after a battle with cancer. He was well liked in the legal community and his greater Telluride community.

Judge Erickson was appointed to the San Miguel County Court in 2012 where his docket consisted of traffic, misdemeanor, civil cases under $15,000, small claims, and temporary restraining orders. Prior to his appointment, he had been in private practice in Telluride, where he concentrated on civil litigation, business law, and real estate transactions. He had also been a municipal judge in Ophir and Rico. He received his law degree from the University of Denver Sturm College of Law and his bachelor’s degree from North Park University in Chicago.

The Colorado State Judicial Branch announced that applications are being accepted for the vacancy on the San Miguel County Court bench. Eligible applicants must be qualified electors of San Miguel County and must have graduated high school or attained the equivalent. Application forms are available on the State Judicial website and from the ex officio chair of the Seventh Judicial District Nominating Commission, Justice Brian Boatright. Applications must be received no later than 4 p.m. on August 10, 2015, and anyone wishing to nominate another must do so no later than 4 p.m. on August 3, 2015.

Tenth Circuit: No Error for Court to Find One Side’s Expert Witnesses More Persuasive

The Tenth Circuit Court of Appeals issued its opinion in Mathis v. Huff & Puff Trucking, Inc. on Tuesday, June 2, 2015.

Melvin Mathis was injured in February 2008 when the car he was driving was struck by a Huff & Puff truck driven by Donald Stewart. Mr. Stewart was at fault for the accident; he was driving too fast for the icy road conditions and the truck he was driving should not have been in the left lane. Mr. Mathis was awake and alert after the accident. He was transported by ambulance to a local hospital, where the emergency room doctor found no evidence of head trauma but diagnosed him with neck and back strains. Mr. Mathis sought further treatment from Dr. Schulze, who conducted MRIs of his back and neck and noted Mr. Mathis suffered multiple areas of sprain to his spine from the collision. Dr. Schulze referred Mr. Mathis to Dr. Cook, a neurosurgeon, because the accident had aggravated Mr. Mathis’s preexisting disc lesions. Dr. Cook treated Mr. Mathis non-surgically for several months and Mr. Mathis stopped treatment in May 2009.

Mr. Mathis returned to Dr. Cook’s office in April 2011 where he saw a different doctor, Dr. Beer. In the interim, Mr. Mathis had worked as a nighttime fuel delivery person, where he performed physically demanding tasks and was under no work restrictions. When he first evaluated Mr. Mathis, Dr. Beer performed repeat MRIs of his spine, which were essentially unchanged from those taken in 2008. Dr. Beer performed fusion surgery on Mr. Mathis’s spine to relieve his chronic pain.

In February 2012, Mr. Mathis filed this negligence action in federal district court, and an eight day bench trial was held in July 2013. Mr. Mathis alleged the accident caused permanent injuries to his spine, a mild traumatic brain injury (MTBI), emotional distress, and pain and suffering. The district court heard conflicting testimony regarding the extent of Mr. Mathis’s injuries. The district court issued findings of fact and conclusions of law, rejecting Mr. Mathis’s claims that his spine was permanently injured by the accident and that he suffered an MTBI, and awarding Mr. Mathis damages for reasonable out-of-pocket medical expenses, past emotional distress, pain and suffering, loss of enjoyment of life, and loss of income.

Two weeks after trial, Mr. Mathis’s counsel learned that the judge’s law clerk’s husband was retained by AIG to monitor the proceedings. After learning about the law clerk’s relationship, Mr. Mathis’s counsel filed a motion for a new trial and a motion to alter or amend the judgment, arguing the evidence did not support the district court’s ruling that Mr. Mathis suffered no MTBI and only minor spinal injuries; the court erroneously relied on the testimony of a biomechanical engineer; the law clerk had an undisclosed conflict of interest; and the judgment should be amended or altered to correct an inadequate damages award based on the trial court’s errors. When these motions were denied, Mr. Mathis appealed.

The Tenth Circuit first evaluated Mr. Mathis’s claims that the district court erroneously concluded he suffered only mild spinal injuries and no MTBI. Evaluating for clear error, the Tenth Circuit found that trial evidence supported the court’s conclusion that the spinal injuries were not significant. The court evaluated conflicting evidence from medical records, expert testimony, and lay witness testimony, and determined that Mr. Mathis’s spinal sprains resolved in approximately mid-2009. Although Mr. Mathis pointed to testimony contrary to the court’s finding, this does not imply clear error since such cases generally have conflicting testimony and the court’s duty is to sift through the competing narratives. The Tenth Circuit similarly found no clear error in the trial court’s finding that Mr. Mathis did not suffer an MTBI, since it weighed the evidence and determined that the defense evidence was more persuasive.

Next turning to Mr. Mathis’s criticisms of the biomechanical engineer, Dr. Hayes, the Tenth Circuit noted that Mr. Mathis failed to preserve his objections to Dr. Hayes’s testimony and therefore it would only evaluate for plain error. Mr. Mathis challenged only whether Dr. Hayes’s testimony exceeded the scope of his expertise. Defendants argued Mr. Mathis forfeited any objection because he failed to object to the defense’s pre-trial witness statement and did not object during the questioning of Dr. Hayes at trial. The Tenth Circuit agreed.

The Tenth Circuit turned then to Mr. Mathis’s motion for a new trial. Mr. Mathis argued the judge should have recused after the law clerk’s husband was retained by AIG to monitor the trial, averring the relationship created a conflict under Canon 3(F) of the Code of Conduct for Judicial Employees. The Tenth Circuit found no abuse of discretion by the district court because there was no actual conflict under Canon 3(F) and no appearance of impropriety. Canon 3(F) specifies that law clerks should not perform any official duties in cases in which their spouse has a financial interest, is acting as a lawyer in the proceeding, or has an interest that could be affected by the outcome of the proceeding. In this case, the husband had no financial or other interest in the outcome of the proceeding and was not acting as a lawyer for a party, but was merely retained by defendants’ insurer to monitor the proceedings. As to the appearance of impropriety, the law clerk informed the judge of her relationship prior to the first day her husband monitored the court proceedings. After that, the judge conducted all her own research and wrote the opinion by herself. Although the Tenth Circuit noted the better approach would have been for the judge to inform the parties of the relationship and for the clerk to stop attending the trial, there was no impropriety in the handling of the proceedings.

The district court’s judgment was affirmed.

Finalists Selected for Teller County Court Vacancy

On Friday, July 24, 2015, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the Teller County Court. The vacancy was created by the appointment of Hon. Linda Billings-Vela to the Fourth Judicial District Court, effective July 1, 2015.

The three nominees were selected by the Fourth Judicial District Nominating Commission on July 23, 2015. Under the Colorado Constitution, Governor Hickenlooper has 15 days within which to appoint one of the nominees to the Teller County Court. The three nominees are William G. Edie, Jared J. Grabski and Theresa L. Kilgore, all of Woodland Park. Comments about any of the nominees may be emailed to the governor at gov_judicialappointments@state.co.us.

For more information about the selection and for contact information for the nominees, click here.

Tenth Circuit: Unpublished Opinions, 7/27/2015

On Monday, July 27, 2015, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.

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