August 19, 2019

Archives for September 14, 2015

Running Past Our Limits 2015 (Part 5): The New Normal

rhodesA funny thing happened on the way to the clinic.

I don’t go regularly to the Rocky Mountain MS Clinic. Nothing personal, there’s just nothing to talk about. I do my diet and exercise thing, they do their medical thing. But every now and then for financial or insurance reasons I get a request for a neurologist’s update re: my MS.

I called for an appointment. The receptionist wanted to know why. “I guess just to talk,” I said. They sent me an online questionnaire. I filled it in, hit “send.” A couple days later I realized what just happened.

It was Memorial Day. Most people had the day off and were doing the usual things you do on a holiday weekend. That’s not my reality anymore. Hiking, biking, long walks… never mind the details, the short version is that these days I can’t do lots of things on purpose that I used to do on autopilot.

On the other hand, my overall mind-body health that has never been richer and fuller. I’ve done my best to deal with MS, embrace its losses and turn them into gains. MS has become my life practice for optimal health. I’m grateful, and amazed. But despite all that, there’s still one gift MS still hasn’t given me that I want more than all the others:

To be rid of it.

But here’s the funny thing: when I filled out the neurologist’s office questionnaire, I didn’t answer the questions from the perspective of MS. Instead, I answered from the wellbeing point of view. “Life is good!” I basically said. “I do everything I want!” That’s true: it is, and I do. It’s just that what I want and what I do have changed.

After I hit the send button I had this thought: maybe that’s not what the questionnaire was asking; maybe it wanted to know about what things are like for me with MS. Well now… that changes everything.

After several years of aggressive physical training (and this year I added a special new diet, too), I had viewed the questionnaire from the perspective of the “New Normal” that’s been patterned into my brain, thanks to this amazing thing called neuroplasticity. The New Normal has become so… well, normal… that I was blind to the way things used to be!

The New Normal is the perspective of a changed brain. It’s not because I’m such a great guy and have a great attitude or anything like that, it’s because our brains rewire themselves as a result of consistent focus. Jeffrey Schwartz and Sharon Begley describe this process in their book, The Mind and the Brain:

The time has come for science to confront the serious implications of the fact that directed, willed mental activity can clearly and systematically alter brain function; that the exertion of willful effort generates physical force that has the power to change how the brain works and even its physical structure. The result is directed neuroplasticity.

Directed neuroplasticity creates the New Normal. And in my case, it blinded me to the Old Normal.

Which makes me ask: In light of the power of our brains to change themselves, is there anything we don’t dare hope for anymore?

This year’s fourth annual Running Past Our Limits series is an abbreviated version of a longer series I posted on my personal blog earlier this year. You can go there to get the whole thing if you like!

Rule Change 2015(07) Amends Pro Hac Vice Rules

On Friday, September 11, 2015, the Colorado State Judicial Branch announced Rule Change 2015(07), effective September 9, 2015. The rule change affects C.R.C.P. 121, §§ 1-2 and 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes are minor, generally changing references to out-of-state or foreign attorneys and reflecting that foreign attorneys may be admitted under Rules 205.3 or 205.5 of the Rules Governing Admission to the Bar (C.R.C.P. Chapter 18). For a redline of the changes, click here.

Colorado Supreme Court: Announcement Sheet, 9/14/2015

On Monday, September 14, 2015, the Colorado Supreme Court issued one published opinion.

Regional Transportation District v. 750 West 48th Ave., LLC

The summary for this case is forthcoming, courtesy of The Colorado Lawyer.

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: Reversible Error to Give Duplicitous Jury Instructions

The Colorado Court of Appeals issued its opinion in Walker v. Ford Motor Co. on Thursday, September 10, 2015.

Injury—Design Defect—Automobile—Jury Instruction—Consumer Expectation Test—Evidence—Causation—Other Incidents.

In this products liability action based on strict liability and negligence, defendant Ford Motor Company (Ford) appealed the trial court’s judgment entered on a jury verdict in favor of plaintiff Walker. Walker claimed to have sustained a traumatic brain injury and soft tissue neck injuries as a result of a car accident, in part because the driver’s seat in his 1998 Ford Explorer was defectively designed.

On appeal, Ford argued that the trial court’s instruction number 19 to the jury, which discusses the “consumer expectation” test, was incorrect as a matter of law. Jury instruction number 19 complied with Colorado Jury Instruction (CJI)-Civ. 4th 14:3 (2015). However, the first sentence of CJI-Civ. 4th 14:3 misapplies Colorado law. Further, because the consumer expectation test is included in the risk-benefit test instruction that was given to the jury as instruction number 19, the trial court erred by giving a separate instruction that also included the consumer expectation test. The combined instructions allowed the jury to consider the consumer expectation test twice: once in the risk-benefit test in instruction number 18, and again in instruction number 19. The consumer expectation test is not an alternative test to the risk-benefit test, but is a sub-part of that test. Because the error was not harmless, the judgment was reversed and the case was remanded for a new trial.

Ford also contended that Walker’s defect and causation evidence was insufficient. Lewis, a biomechanical engineer and expert on injury causation, testified that, if Walker’s seat back had remained upright in the accident and the seat had had an adequate headrest, Walker would not have sustained any of his more significant injuries. Walker also presented testimony of Lewis and engineer Brown to show that an alternative design could have provided better protection than the seat in Walker’s Explorer. The jury could have concluded from Lewis’s and Brown’s testimony that an alternative design was available that could have prevented Walker’s injuries, and that the Explorer’s car seat was defectively designed. The evidence also allowed the jury to determine that the car seat was the cause of Walker’s injuries. Because there was competent evidence to support the verdict, Ford was not entitled to judgment notwithstanding the verdict.

Ford further contended that the trial court erred by permitting Walker to introduce evidence of other incidents involving Ford vehicles. Evidence of similar accidents, occurrences, or injuries may be offered to refute testimony that a given product was designed without safety hazards. Evidence of prior similar incidents is relevant to show that the manufacturer had notice of an actual or potential product defect. Here, the four vehicles in the other incidents were all Ford Explorers and all appeared to have involved the same or similar seat design as the seat in Walker’s Explorer. Though Ford points to differences in the types of accidents and injuries in those other incidents, those differences went only to the weight to be given to the evidence, and not to its admissibility. Therefore, it was not error to admit this evidence of other incidents.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Amendments to Direct Filing Statute Did Not Negate District Court Jurisdiction

The Colorado Court of Appeals issued its opinion in People v. Nelson on Thursday, September 10, 2015.

Juvenile—Direct Filing Statute—Sentence.

Nelson was charged with aggravated cruelty to animals, cruelty to animals, and underage possession of alcohol after a 2011 incident in which he killed his mother’s dog. Nelson was a juvenile at the time of the offense, but he was charged as an adult under Colorado’s direct filing statute. Nelson pleaded guilty to aggravated cruelty to animals, and at his sentencing hearing, asked the district court to apply the direct filing statute’s amended sentencing provisions. He argued that he had been convicted of an offense that is no longer eligible for direct filing and, therefore, he should be sentenced as a juvenile. The district court denied his request and sentenced Nelson in accordance with the adult felony sentencing scheme.

On appeal, Nelson argued that the district court erred by failing to apply the amended direct filing statute to his case and remanding his case to the juvenile court for sentencing. House Bill 12-1271 did not change the district court’s discretion to sentence Nelson as an adult. Therefore, the judgment of conviction and sentence were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Remand Necessary Where Mother Improperly Vouched for Child’s Veracity

The Colorado Court of Appeals issued its opinion in People v. Cernazanu on Thursday, September 10, 2015.

Sexual Assault on a Child—Testimony—Veracity.

For a number of years, defendant lived with his female cousin and her young daughter, I.W. I.W. was friends with J.K. According to J.K., when she was between the ages of 6 and 8 years old, defendant, on numerous occasions while she was sleeping, sexually assaulted her. I.W. also reported that defendant sexually assaulted her when she was 8 years old. A jury found defendant guilty of three counts of sexual assault on a child and sexual assault on a child (pattern of abuse).

On appeal, defendant contended that the trial court erred in permitting J.K.’s mother, C.D., to essentially testify that J.K. was not lying when J.K. first reported that defendant had sexually assaulted her. A witness may not opine with respect to whether another person was telling the truth on a specific occasion. Here, when C.D. testified that J.K. did not engage in her typical “lying” behavior on that occasion, it implied C.D.’s opinion that J.K. was telling the truth on that occasion. Therefore, the evidence elicited by the prosecution in this case was improper. Because there was no physical evidence of, or eyewitness testimony to, the alleged sexual assaults against J.K., and defendant did not admit to sexually assaulting her, J.K.’s credibility was the critical issue before the jury in determining whether the sexual assaults had occurred. Consequently, the error was not harmless. Defendant’s convictions were reversed and the case was remanded for a new trial.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 9/11/2015

On Friday, September 11, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Richardson v. McCollum

Brooks v. Raemisch

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