Randy Barnhart

Dumping Defective Hip Implants Overseas

2012-02-21T09:16:27-08:00

The Trial Lawyer, A Magazine for Trial Lawyers & a Voice for Justice, re-reported an important article in the N.Y. Times about how non-FDA-approved hip implants were shipped off-shore instead. Here's an excerpt demonstrating the typical shift-the-blame stance taken by manufacturing conglomerates regarding the risks of their defective products:

Before the recall, DePuy long defended the articular surface replacement device, saying that any failures associated with it reflected failures by surgeons to properly implant the hip cup. The surgeons who performed the study of the resurfacing version of the device that was rejected by the F.D.A. were handpicked by DePuy and included the model’s designers.

Dr. Antoni Nargol, an orthopedic surgeon in England who worked on the study that DePuy submitted to the F.D.A. and later became a critic of the device, said in a telephone interview that the company had never informed him that its application for approval in the United States had been rejected.

Thousands of people now face pain and injury due to defective hip implants. Contact the firm if you have questions about the safety of your hip implant and your legal rights.

Trial Talk Article on Protective Orders

2012-02-07T15:03:59-08:00

Read my article from the latest edition of Trial Talk, the official magazine of the Colorado Trial Lawyers' Association. Here, we discuss the ever increasing use of protective orders in civil litigation as a means of hiding corporate information concerning public safety hazards.

Download Barnhart Hailey TT Dec 11-Jan 12

Auto Electronic Control Systems and Your Safety

2012-02-01T12:05:10-08:00

As a long-time products liability lawyer fighting the auto manufacturers for negligently if not also knowingly allowing their defective products to cause their loyal customers serious personal injury, I was interested in the recent statement by the National Highway Traffic Safety Administration (NHTSA) regarding a report on electronic control systems released by the National Academy of Sciences:

NHTSA commissioned the panel of National Academy of Sciences appointees to comprehensively review electronic control systems. While the auto manufacturers quack "safe, safe, safe," NHTSA stated that it needs to better understand the causes of unintended acceleration in passenger vehicles. So there is more than one cause? There is more than the supposed cause advertised by the manufacturers - lead foot on the gas pedal?

On its website, NHTSA states: The agency "has already taken steps to strengthen its expertise in electronic control systems while expanding research in this area — and the agency has considerable experience dealing with vehicle electronics issues in its research, rulemaking, and enforcement programs. But, NHTSA will continue to evaluate and improve every aspect of its work to keep the driving public safe, including research to assess potential safety concerns and help ensure the reliability of electronic control systems in vehicles. The agency will also further refine its strategic plan to address any potential technical and policy issues."

Potential safety concerns? There is nothing potential about the facts of electronic systems going haywire. Potential technical and policy issues?

Update - February 3, 2012: see this article, Electronics in Autos Pose New Safety Issues, Scientists Say, in the Insurance Journal.

US District Judge Now Sitting on the Court Most High

2012-01-25T11:59:43-08:00

From US Courts news:

Senior U.S. District Judge Wesley Brown, who regularly presided over cases well past his 104th birthday, died on January 23, 2012. Brown turned 104 last June 22, tying an age record for the federal bench – set in 1977 by Judge Joseph Woodrough of the U.S. Court of Appeals for the Eighth Circuit.

Brown was appointed to the U.S. District Court in Wichita, Kansas, by President John F. Kennedy in 1962. He assumed senior status in 1979, but continued his judicial duties for the next 32 years.

Thank you for your service, Your Honor.

Our Environmental Law Practice: NASA Graphically Depicts Climate Warming

2012-01-23T08:56:35-08:00

A picture is worth a thousand words; a moving picture is worth ten thousand.

From the NASA website: Global average surface temperature in 2011 - ninth warmest since 1880! The Goddard Institute for Space Studies (GISS) monitors global surface temperatures continuously. The above shows an updated analysis. Temperatures around the globe in 2011 are compared to past decades. The analysis shows how our planet, Earth, is experiencing warmer temperatures than just a few decades ago. The average temperature around the globe in 2011 was 0.92 degrees F (0.51 C) warmer than the mid-20th century baseline.

For any questions, contact Melissa Anne Hailey - Top Environmental Law Attorney.

All-Metal Hip Implants - Manufacturers Must Be Responsible

2012-01-11T05:12:00-08:00

If you have an all-metal hip replacement, you may be among the lucky ones who can walk. Or you may be worse off than you would have been without the allegedly flawed device. One thing’s for sure: Those flaws are going to cost Johnson & Johnson (JNJ) and Zimmer Holdings (ZMH) plenty in legal fees and possible settlement costs. How much? Maybe $5 billion.

One thing is for sure: there are people out there suffering tremendously due to the flaws in all-metal hip replacements.

via www.forbes.com

MoM Hip Suits and Multi-District Litigation

2012-01-09T14:05:00-08:00

There will be arguments to a bench of federal judges - U.S. Judicial Panel on Multidistrict Litigation - in late January on the issue of consolidating the growing number of defective Wright hip implant lawsuits brought by patients who have experienced pain and debility with the metal-on-metal (MoM) hip implants. The panel of judges will hear arguments on whether all Wright hip lawsuits should be presented to a single judge for pretrial motions.

One motion to consolidate the Wright hip lawsuits has already been filed bby a plaintiff to have pending and future Wright hip implant cases transferred to one of the US Districts of Georgia for purposes of discovery and pretrial motions. The idea is to preclude duplication and reduce inefficiency. In addition, the policy for consolidation is to avoid contradictory rulings from different judges or courts.

The basic allegation in most of the hip implant law suits is "design defect," which refers to the metallic debris shed by the MoM hip implants which then can cause pain and tissue damage. Somewhat counter-intuitively, Wright opposes the consolidation, arguing that it will only result in more lawsuits being filed against it. It could be that certain cases are unique, so always consult with an attorney - after you have had a proper examination and evaluation by your medical professional.

The FDA approved the MoM hip replacement system under the "fast-track" approval procedures. The MoM implants typically are made of cobalt chromium molybdenum in the cup and "femoral head" which when walking or running can shed metal particles leading to metallosis or toxicity in the blood, adjacent tissue and bone.

The firm is here to assist those with MoM hip implants.

This is Exciting: The Digital Public Library of America

2012-01-05T13:51:03-08:00

In early December of last year, Professor Robert Darnton of Harvard University was interviewed by Rhys Tranter, a PhD candidate at Cardiff University. Darnton warned that "commercial interests are exploiting digital technology in order to fence off large parts of our cultural commons," but that the Digital Public Library of America is "an answer to that threat."

To the question, how does the Digital Library of America compare with the idea of a Digital Republic of Learning, Darnton replied in a way which should excite everyone. To him, the Digital Public Library of America is more than a gleam in his eye and no mere utopian dream. The Library is taking shape now and may emerge fully fledged by 2020. The general idea for the Library is "to make available, free of charge, the cultural heritage of our great research libraries," but in a non-commercial way, unlike Google's book project, which has been tangled up in the courts over copyright.

Money, of course, is necessary, but Darnton stated that major American foundations "are enthusiastically supporting this idea." As for the technology, the Library is working with computer scientists who say that "this is not even difficult, they can design the infrastructure for this new library." Of course, "digital" means that it will be a "distributed system," not some colossal structure rivaling the Pentagon. Indeed, it won't be one big database, either, but a system of linked databases "scattered all over the United States in a way to make them perfectly compatible: the user won’t even know where the book, or the pamphlet or the manuscript is located."

The first "beta" will or should be available by April of 2013. As with Google, copyright will be an issue, but over 2 million books already in the public domain and in special collections in many heretofore inaccessible research libraries will be made available.

Darnton says that the Digital Library project has the best law school professors working on the copyright issue, devising legal strategies to deal with it in order to make "at least some of these copyrighted books available" to all readers. In "ten years, we will have a library greater than the Library of Congress, which is the largest library in the world, available free of charge to everyone." This is exciting!

New Video on Dangerous 15-Passenger Vans

2012-01-03T13:37:30-08:00

KENSTV in San Antonio, TX recently ran this special report on the dangers
of 15-passenger vans, like the Ford E-350.

(visit my micro-blog on defective passenger vans)

Metal-on-Metal Hip Device?

2012-01-02T05:09:00-08:00

Artificial hip replacement devices, but especially Metal-on-Metal (MoM) hip implants, come with unique risks associated with the daily wear on the ball and socket. The metal ball and the metal socket or cup are in constant contact and wear while walking and running. As a result, microscopic metal bits or particles shed away from the device and enter into the tissue around the implant. Further, these metal particles can transmute to metallic ions which can then enter the bloodstream. Even if the surgeon takes every precaution, shedding metal particles cannot be completely avoided. See this article on wikipedia.

To be sure, not all people who receive MoM hip implants have the same reaction to the metal particles or ions. It is impossible to predict who will experience a negative reaction to the metal debris, and if so, what precisely that negative reaction will be. Also unknowable is when the negative reaction might happen or its severity. Still, it is true that over time, the metal debris shed by MoM implants can cause serious damage to bone and tissue in the hip area, called "adverse local tissue reaction (ALTR)" or "adverse reaction to metal debris (ARMD)." Further, the metallic ions can effect on heart, nervous system, and thyroid gland. In many cases, the resulting pain compels a "revision surgery" which replaces the implanted device with a new one.

The firm is actively investigating cases of failed hip implants. Several involve the Wright Profemur Z Hip. Protect your rights: a Metal-on-Metal (MoM) hip implant may cause serious injury and pain, requiring replacement. More here.

Happy Holidays!

2011-12-23T15:17:50-08:00

Wishing All A Festive Season

What Citizens Need to Know About "Punitive Damages" - Part 1

2011-12-19T18:39:00-08:00

Judge Posner

At the Center for Justice and Democracy, Emily Gottlieb, Deputy Director for Law and Policy, recently issued an important whitepaper on punitive damages and what you need to know about them. The whitepaper can be downloaded here.

Interestingly, the report begins with a quote by Judge Posner of the 7th Circuit, widely considered a conservative jurist and a law and economics guru at theUniversity of Chicago. Basically, tortfeasors - those who commit harm on others, especially big corporations and manufacturers - will balance costs, that is, weigh the costs of compensation for harm done against the costs of correcting the circumstances which led to the harm.

If the costs weigh in favor of doing nothing, Judge Posner acknowledges the societal interest in eliminating such crass interest calculations in order to minimize the incidence and severity of harm inflicted on honest and innocent people. The way to do that is to pile (the costs of ) "punitive damages" on top of any compensatory damages for the harm inflicted.

The Center's report specifically mentions that some manufacturers engage in this very "cost/benefit" calculation when it comes to defective products, my primary practice area. Remember the Ford Pinto,

Image via Wikipedia

that exploding death trap of which Ford was well aware yet decided to pay out compensation awards rather than eliminate or fix the defect in the gas tanks. It was cheaper to pay compensatory damages to an unlucky few than to correct the defect. The matter ended up in court, which decided that punitive damages are "the most effective remedy for consumer protection." Other defective products which manufacturers allowed to remain on the market based on this profiteering calculus were the Chevy Malibu and the Dalkon Shield.

One major "defect" in the cost calculus is of course that the compensatory damages rarely cover all "true" costs of the harm suffered. How do you measure a person's potential contribution to society, the costs to you? The grossly negligent manufacturers are constantly fighting against the availability of punitive damages - so-called tort reform - and doing everything they can to avoid paying the true total of costs in compensatory damages.

Part 2 coming soon.

Colorado Premises Liability - Top Court Grants Cert

2011-12-12T10:37:34-08:00

The Colorado Supreme Court granted certiorari review of the opinion by Court of Appeals in Coyote Communications, Inc., d/b/a The Grizzly Rose v. Adams.

Summary of Issue:

Whether the Premises Liability Act precludes claims of negligence and respondeat superior against the petitioner simply because the negligent acts of its employees, while unrelated to the land, occurred on proprietary property.

The firm will keep an eye on this one.

Dangerous 15-Passenger Vans - Not Only Trial Lawyers Say So

2011-12-08T11:26:00-08:00

Even the CEO of a fleet training and consulting corporation admonishes potenital clients of the dangerous 15-passenger van. This "x-ray" image reveals the instability defect of these death traps:

The 15-passenger van has been the subject of many studies over the years. It has beenscrutinized and closely examined for safety issues and its inability to handle certain situations and road conditions. Due to its design, it has been deemed one of the most unstable, most dangerous vehicles on the road. It is important to understand the dynamics of the 15-passenger van and what makes ita greater risk than most vehicles for accidents.

{source here}

The full document in .pdf form is avalable from the firm's box online account: link.

Tort Deform in Action - No Incentives for Good Behavior

2011-12-01T08:50:00-08:00

Recently, a federal district court rejected an effort by big pharma, Novartis, to avoind the verdict in a suit for "jaw decay" caused by the drug, Zometa. The smart judge pointed to the evidence which indicated that employees of the drug manufacture engaged in dirty-tricks cover up of crucial evidence of the drug’s side effect on a person's jaw bones.

Novartis failed to warn the plaintiff and other consumers regarding the devastating side effect of Zometa, a side effect scientifcally referred to as osteonecrosis of the jaw or ONJ.

A jury in North Carolina had made an award to the plaintiff's estate for $13 million in both compensatory damages and additional punitive damages. The jury found that the big pharma corporation had intentionally concealed information about the unsafe use of the drug by patients.

Indeed, US District Judge James Beaty ruled that the jury heard “clear and convincing evidence” that Novartis intentionally schemed to cover up the lethal side effects of its drug. In addition, the drug maker attmepted to subvert proper medical and scientific inquiry about the drug's side effects. For example, the jury saw an internal company email from the marketing department which indicated Novartis suppressed a document detailing numerous cases linking Zometa to ONJ.

There are now many lawsuits over the drug and ONJ. Most are already consolidated with suits alleging ONJ caused by Aredia, also made by Novartis.

Unfortunately, Novartis will likely not change its behavior because so-called "tort reform" laws, in reality tort deformity passed by legislators beholden to special interests, means that the plaintiiff's award will be reduced by almost 90%.

Update December 9, 2011 - Apparently, Novartis exhibits a pattern of bad behavior:

The U.S. Food and Drug Administration is takingNovartis (NYSE:NVS) CEO Joseph Jimenez to task with a warning letter that cites three of the company’s manufacturing facilities for “significant violations” at the company’s generics drug unitSandoz.

The warning letter, sent to Jimenez on Nov. 18, outlines a long list of findings including insufficient written procedures to prevent microbiological contamination; inadequate procedures to assure that the drugs have the identity, strength, quality and purity they’re supposed to have; and a failure to find the cause of crystallization in an unnamed injectable product.

{source}

Wishing All a Festive Thanksgiving Day 2011

2011-11-21T11:16:46-08:00

Randy Barnhart

More Product Recalls from the Consumer Product Safety Folks

2011-11-18T11:20:00-08:00

Randy Barnhart

The Firm Salutes All Veterans on 11/11/11

2011-11-09T14:47:15-08:00

Randy Barnhart

The firm is now on google +

2011-11-08T15:18:34-08:00

Just getting started:

Listeria Liability - The Denver Post

2011-11-08T13:20:26-08:00

State laws vary governing who has liability for bad products. Some states, such as California, allow more companies in a food chain to be targets for claims, with few limits on awards.

Colorado law makes it harder to sue stores in addition to the producer where the defect started, attorneys said. Plaintiffs must show a retailer contributed to the flaw in the food.

In the listeria cases, attorneys may try to show retailers contributed by not demanding tougher farm audits, by failing to test for pathogens themselves, or by failing to wash the fruit one more time before sale.

via www.denverpost.com

Hot Harleys - But with Defective Brakes

2011-10-24T09:06:44-07:00

Summary:
HARLEY-DAVIDSON IS RECALLING CERTAIN MODEL YEAR 2009-2012 TOURING, CVO TOURING AND TRIKE VEHICLES MANUFACTURED FROM JUNE 6, 2008, THROUGH SEPTEMBER 16, 2011. SEE THE ABOVE LIST FOR THE MODELS INCLUDED IN THE RECALL. THE REAR BRAKE LIGHT SWITCH MAY BE EXPOSED TO EXCESSIVE HEAT FROM THE EXHAUST SYSTEM.

Consequence:
THE EXCESSIVE HEAT MAY CAUSE THE SWITCH TO NOT ACTIVATE THE BRAKE LAMP OR ACTIVATE THE BRAKE LAMP WHEN NO BRAKE IS APPLIED AND/OR CAUSE A BRAKE FLUID LEAK AT THE BRAKE LIGHT SWITCH, AFFECTING REAR BRAKE PERFORMANCE. EITHER CONDITION MAY INCREASE THE RISK OF A CRASH.

Remedy:
HARLEY-DAVIDSON WILL NOTIFY OWNERS, AND DEALERS WILL A INSTALL A REAR BRAKE LIGHT SWITCH KIT, FREE OF CHARGE. THE SAFETY RECALL IS EXPECTED TO BEGIN ON OR ABOUT OCTOBER 31, 2011. OWNERS MAY CONTACT HARLEY-DAVIDSON AT 1-414-343-4056.

via www-odi.nhtsa.dot.gov

As reported by the Office of Defect Investigations at NSTSA

Wolves and the Public Trust Doctrine

2011-10-10T06:23:00-07:00

From a post by Ars Techica on Wired, we learn that the controversy over the protection of wolves has triggered renewed interest in the "public trust doctrine" as a way to continue or enhance the preservation of what is considered an exemplar of the wild:

As part of the recent federal budget showdown, legislators from Montana and Idaho attached a rider to the budget bill ordering the Fish and Wildlife Service to delist wolves in those states without the possibility of judicial review. You can probably predict how these states will choose to manage their wolf populations.

Several wolf researchers recently published a policy article in Science proposing a new view of state responsibilities toward wolves (with one author discussing it on his blog.) They argue that there is a very long common law history for wildlife falling under the umbrella of the public trust doctrine—in short, wildlife belong collectively to the citizens of the state. The state, then, is obligated to preserve wildlife for the benefit of the public. This duty has been cited by the US Supreme Court on several occasions, including cases involving wildlife as well as navigable waterways.

In Colorado, the status of the public trust doctrine is, at best, under-developed:

Under the “public trust doctrine”, which is a common law concept, “[a]ll the public lands of the nation are held in trust [by the government] for the people of the whole country.” Light v. United States, 220 U.S. 523, 537, 31 S.Ct. 485, 488, 55 L.Ed. 570 (1911), quoting United States v. Trinidad Coal & Coaking Co., 137 U.S. 160, 11 S.Ct. 57, 34 L.Ed. 640 (1890); see also Davis v. Morton, 469 F.2d 593, 597 (10th Cir.1972).

Consistent with the right to use the lands for public purposes, the government has a duty under this doctrine to protect and preserve the lands for the public's common heritage. However, “it is not for the courts to say how that trust shall be administered. That is for Congress to determine.” Light, 220 U.S. 523, 537, 31 S.Ct. 485, 487. Where Congress has set out statutory directives, as in the instant case, for the management and protection of public lands, those statutory duties “compris[e] all the responsibilities which defendants must faithfully discharge.” Sierra Club v. Andrus, 487 F.Supp. 443, 449 (D.D.C.1980); see also Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981).

Further, resort to the “public trust doctrine” as an additional remedy in this case is unnecessary given the duties already imposed by the Wilderness Act. Additionally, even if I found that the “public trust doctrine” applied and that federal defendants violated a trust duty by not claiming federal reserved water rights in the Colorado wilderness areas, as discussed above, I could not grant the relief requested by Sierra Club and order federal defendants to initiate litigation to claim those rights.

Sierra Club v. Block, 622 F. Supp. 842, 866 (D. Colo. 1985). For the history of the public trust doctrine, see generally J. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich.L.Rev. 471 (1970); Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C.Davis L.Rev. 195 (1980).

For a top environmental law attorney, contact Melissa Hailey.

Should a Jury "Send a Message"?

2011-10-07T09:51:12-07:00

In an interesting decision from the federal 1st Circuit Court of Appeals, issued October 5th, 2011, the jury, under Massachussetts law, awarded the plaintiff compensation for an injury caused by a defective table saw. The defendant manufacturer appealed, arguing in part, that plaintiff's attorney made "impermissible statements" to the jury which "prejudiced its case to the extent that a new trial is necessary."

Specifically, the manufacturer argued that plaintiff's counsel "improperly urged the jury to 'send a message" to [the manufacturer's] management." The trial judge did in fact advise "against 'introducing purely emotional elements' to the jury's deliberations." The trial court's opinion is here.

The 1st Circuit expressed its "concern" over plaintiff's counsel's suggestion during opening statements that the jury "send a message" to management by imposing liability on teh manufacturer. In a previous case, the court held that plaintiff's call to "send a message" was an "improper request for punitive damages." Smith v. Kmart Corp., 177 F.3d 19, 26-27 (1st Cir. 1999).

In this latest case, however, the court noted that plaintiff's counsel "asserted that he would refrain from using" the "send a message" appeal during closing argument to the jury. The appellate court found this to be sufficient protection against prejudice.

The trial court had stated that it would not further restrict any statements by the parties, but "warned both parties against 'introducing purely emotional elements into jury deliberations.'" The manufacturer argued on appeal that plaintiff's counsel nevertheless "implicitly" asked the jury to "send a message" during closing argument, but to no avail.

Is asking the jury to "send a message" a "purely emotional element" which is thereby improper? Is there a difference between a "purely emotional element" and a "partly emotional element"? The facts are crucial, of course, but the best trial lawyers wrap their best facts in emotional boxes, with ribbons! {update: October 11, 2011 - and so do defense attorneys!}

Moreover, shouldn't jury judgments have a corrective impact which transcends the parties in the case? Shouldn't the law generate incentives for everyone to do right, to manufacture safer products?

Steve Jobs - 1955 - 2011

2011-10-05T22:05:36-07:00

From the 2005 Stanford Commencement:

No one wants to die. Even people who want to go to heaven don't want to die to get there. And yet death is the destination we all share. No one has ever escaped it. And that is as it should be, because Death is very likely the single best invention of Life. It is Life's change agent. It clears out the old to make way for the new. Right now the new is you, but someday not too long from now, you will gradually become the old and be cleared away. Sorry to be so dramatic, but it is quite true.

Your time is limited, so don't waste it living someone else's life. Don't be trapped by dogma — which is living with the results of other people's thinking. Don't let the noise of others' opinions drown out your own inner voice. And most important, have the courage to follow your heart and intuition. They somehow already know what you truly want to become. Everything else is secondary.

Thanks for the iPad, Steve.

Recall: Power X Bike Chain Defect - Product Liability

2011-09-26T11:10:49-07:00

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Hazard: The bicycle chain can break, causing a rider to lose control and fall.

Incidents/Injuries: The firm is aware of 11 reports of incidents, including 9 reports of injuries, including lacerations and contusions.

Description: This recall involves “NEXT”-branded men’s 26-inch hybrid bicycles. The bicycles are red or orange. “Power X” and “Suspension” are printed on the frame. Model numbers LBH2611M and LBH2611M2 are included in this recall. The model number is located on the frame between the pedals.

Sold at Walmart from February 2011 through July 2011 for about $100.

Stop using the recalled bicycle and contact the company for a free repair.

Consumer Contact: Bridgeway International at (877) 934-3228 - or visit the firm’s website at www.powerxbike.com.

NEXT BRANDED BICYCLES SOLD AT WAL-MART

The 26-inch bicycles are red or orange and “Power X” and “Suspension” are printed on the frame.

Model Numbers: LBH2611M and LBH2611M2

Bicycles were sold from February 2011 through approximately July 2011 with manufacturing Date Codes between 20110101 to 20110420 (January 1, 2011 and April 20, 2011)

Stop using the NEXT Power X bicycle immediately. Inspect the manufacturing label on the bottom of the bicycle frame. If you have a bicycle that was manufactured between January 1, 2011 and April 20, 2011, please contact Bridgeway International for a free repair.

Appellate Alert: New 10th Circuit Local Rule with Deadline

2011-09-20T05:39:00-07:00

The following proposed rule may be adopted December 1, 2011, effective January 1, 2012. Note the deadline, which is not a multiple of 7!

10th Cir. R. 5.1 Reply briefs.

A party seeking to file a reply in support of a petition may file a motion to that effect. Replies may be no longer than six pages in length in a 13 point font. The motion must include the proposed reply. Motions filed under this rule must be submitted within 5 business days of service of the response.

Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 2

2011-09-19T12:29:00-07:00

Following up on the firm's post, Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 1, there are timeliness issues which counsel must appreciate.

Even on remand from the court of appeals, the timeliness of a Rule 60(b) motion is governed by the 6 months period in teh rule. The Colorado Supreme Court’s decision in Se. Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167, 171 (Colo. 1993), explains, although there the proceedings there were highly convoluted.

In essence, the party seeking relief in Cache Creek argued that its Rule 60(b)(2) motion was timely filed because it was directed against the denial of a previously filed Rule 60(b)(5) motion, and not against the original judgment. Had it been directed against the former, the motion would have been timely. However, the court rejected this argument based on the face of the Rule 60(b)(2) motion, finding that the argument “lacked any substantial factual basis.”

The court reiterated that finding: “the factual basis” of the argument “is wholly insubstantial and contrary to the clear intent of” the Rule 60(b)(2) motion. 854 P.2d at 177. In effect, the court found that the Rule 60(b)(2) motion was in fact expressly directed at relief from the original judgment, and not from any “alleged fraud [which] somehow tainted the discretion of the court in denying the 60(b)(5) motion.” 854 P.2d at 171.

The court found that the Rule 60(b)(2) motion “could be timely only if it were truly directed at” the Rule 60(b)(5) motion and not at the original judgment. The case suggests that a Rule 60(b)(2) motion can attack an “order” subsequent to the “judgment” entered on a jury verdict!

After all, Rule 60(b) provides that a motion is timely if is filed “no more than six months after the judgment, order, or proceeding was taken.” Since “judgment” and “order” are separately-listed items in the rule, there is no reason to conflate the two and make judgment and order one and the same thing.

As the Cache Creek court stated: the “standard” which must be met in order to make a Rule 60 motion timely filed is whether it in fact seeks relief from an order issued within the last 6 months, and in which case, to prevail, the further standard that “the alleged fraud somehow tainted the discretion of the court” in denying the motion for JNOV.

In this regard, note that according to Molitor,

A request for a remand to permit the trial court to rule on a motion to vacate judgment does not require the appellate court to determine the merits of the motion, but only to determine whether the motion contains sufficient allegations to satisfy the requirements of C.R.C.P. 60(b).

795 P.2d at 269.

Oh No - Not Rocky Ford Melons!

2011-09-15T12:32:29-07:00

The U.S. Food and Drug Administration is working closely with the Centers for Disease Control and Prevention and state health agencies to investigate a multi-state outbreak of listeriosis.
At least 15 people infected with the outbreak strain of Listeria monocytogenes have been reported in Colorado, Nebraska, Oklahoma and Texas.
State and local public health officials have interviewed most of the patients and discovered that the majority of them consumed whole cantaloupes, most likely marketed from the Rocky Ford growing region of Colorado.

via www.fda.gov

"whole cantaloupes"? as opposed to what?

Honda Pilot Recall - Defective Seat Belts

2011-09-14T06:26:00-07:00

Honda has issued a press release stating that it will recall 310,773 Pilot vehicles from the 2009 through 2011 model years in the U.S. "to inspect and potentially replace the driver’s and/or front passenger’s seat belt."

Apparently, the recall is due to what Honda is calline a "manufacturing error" on a number of the front seat belts. The term "error" is a euphemism for "defect." The defect is in bad or missing stitching which connects the lap portion of the belt to the anchor webbing, thus increasing the risk of serious injury.

The firm urges all affected Honda owners to have a specific inspection conducted by an authorized dealer. Honda states that the inspection - "and any necessary seat belt replacement" - will be free.

Check online at www.recalls.honda.com.

Federal Courts Must Limit Civil Cases Which Are Sealed

2011-09-13T13:18:57-07:00

This past week, the Judicial Conference of the United States adopted a policy which seeks to limit the civil cases which federal courts put under seal. The Conference is composed of Senior Circuit Judges and was created by Congress in 1922 to serve as the top policy-maker for the administration of the federal courts.

According to the new policy, "an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort." An order which seals a civil case in its entirety should include findings which justify the seal, and any seal should be lifted upon a determination that the initial reason is no longer operative.