Denver Personal Injury Lawyer

A New Supreme Court Decision: Forfeiture by Wrongdoing Explored Further

Kyle Bachus — Fri, 27 Jun 2008 17:09:15 GMT

A defendant has a constitutional right to confront a witness that is accusing him. The basic rule is that prior statements cannot be used unless the defendant has had a chance to cross exam the witness. There are two exceptions that have been recognized: if the statements are made as the witness is dying or that the defendant forfeits his constitutional right by wrongdoing.

Forfeiture by wrongdoing refers to when the witness is detained or kept by means or procurement of a defendant from testifying. Justice Alito wrote the opinion in Crawford which held that a defendant could not keep a witness from testifying and then have prior statements excluded. However, in Giles v. California , No. 07-6053, the Court further interpreted this exception. The interpretation of the word procurement can mean just that the defendant caused the absence, but can also mean that it is limited to causing that is designed to bring about the result procured.

The Giles opinion held that the defendant did not detain the witness with the design to keep the witness from testifying. This is true since the defendant is on trial for the murder of his girlfriend, who is the witness. She had told police that the defendant had threatened to kill her when he beat her 3 weeks prior to her death. The Supreme Court decided that since he did not kill her to keep her from testifying, it violated his constitutional right to confront the witness to have her statements to the police admitted into evidence of trial.

It is understandable to need to keep interpretations narrow so not too be so over-inclusive as to deteriorate the defendant's constitutional rights. Constitutional rights are important and should not be sacrificed. However, the distinction that he didn't kill her to keep her from testifying does not sit well with me as a reason that he has not forfeited his right of confrontation. He is still the reason she is not able to testify. He killed her, which I see as a wrongdoing.

A post by Lauren Altdoerffer, created when the Supreme Court granted certiorari, posed the question whether the Court would follow the defendant's assertion that the forfeiture by wrongdoing does not apply because he did not kill with the intention to silence her testimony or follow the "maxim" in Reynolds v. US that a defendant cannot benefit from his wrongdoing. The answer appears to be the former.

Erica Baasten

Summer Intern 2008

J.D. Candidate 2010

University of Colorado

Originally posted at InjuryBoard by Kyle Bachus

Will the Denver Democratic National Convention Lead to Personal Injury Lawsuits?

Kyle Bachus — Thu, 19 Jun 2008 16:47:39 GMT

The craze has begun, as the City of Denver works hard in anticipation and preparation for the Democratic National Convention (DNC). Set to take place on August 25 - 28, 2008, the DNC may generate more than a nominee for the Presidency. The DNC may generate a "suit-boom" in Denver.

As a Denver resident, anticipating the increases in traffic and pedestrians on the streets, the use of public transportation, accommodating out-of-state guests and members of the media with lodging and rental cars, and welcoming the arrival of politicians in private aircrafts poses some concerns. Will all this spark a "suit boom" in Denver?

The estimated $40 million it will cost to host the DNC will likely be spent, in large part, on the implementation of federal anti-terrorism procedures and security during the week. According The Rocky Mountain News, Sara Burnett reported the DNC is expected to draw thousands of protestors, and from the sounds of it, there are also thousands of rumors of what security measures will be taken by organizers of the DNC and how it will accommodate both Denver residents and visitors.

Noelle Leavitt, from the Denver Business Journal, reported Airspace around Denver is likely to be severely restricted when top political figures, Democratic Party sponsors and celebrities visit for the Democratic National Convention in August. General aviation airports in the metro area expect a huge surge in business from attendees who choose not to fly through Denver International Airport during the convention. But the event could temporarily ground some private aircraft. All forms of transportation will likely have to operate differently during the DNC. With these expectations, it is only logical to prepare for the worst.

All this leads me to the very real possibility that the DNC, and the 35,000- 50,000 people it will bring to the city, will inevitably ignite a small "suit- boom." Think about it. More traffic and more pedestrians mean more accidents and more insurance claims for bodily injury. Visitors, by foot or by vehicle, will hurriedly and carelessly try to get downtown in time for floor sessions, scrambling through mobs of lobbyists and news reporters. Residents will become frustrated with the incessant traffic on their journey to and from work. One thing is probably true-Denver Police will not only be busy keeping protestors in line, they will be filling out traffic accident reports and issuing citations constantly.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act - How Does It Effect Colorado Consumers?

Kyle Bachus — Thu, 12 Jun 2008 04:00:00 GMT

"Fair Accountable Insurance Rates Act," also known as the FAIR Act, claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Obviously, the raw effect on consumers without this requirement is easy to see. Multi-billion dollar insurance companies could and probably did what they pleased without any recourse or consequences, even if it meant offering unaffordable coverage.

The Fair Accountable Insurance Rates Act eerily resembles the Sarbanes Oxley Act passed by Congress in 2002, in an effort to restore faith in the accuracy of corporate financial audits and eliminate future Enron's and WorldCom's. Basically, Sarbanes Oxley serves as a watchdog over corporations registered with the Securities Exchange Commission.

It all sounds good for consumers, doesn't it? Unfortunately, Sarbanes Oxley has been criticized for a few weaknesses, some of which may likely happen as a result of the FAIR Act. For example, costs to a company to implement the regulations take time and money away from the consumer product, especially in smaller companies with fewer resources. Also, in a real world context, employees hired by a corporation to essentially "whistle-blow" to the SEC for corporations' willfully withholding material information have few incentives to tattle tale, for fear of discrimination or demotion.

As for the FAIR Act, some questions come to mind. What if an insurance company's rate is currently high, will they go through the trouble required by the Act to lower the rates? If a company does go through all the trouble, the commissioner of insurance still has the authority to declare a rate is too low, or "inadequate." And, who is this insurance commissioner with all the power? Is he or she a neutral decision maker?

Patricia-Anne Tom, of the Insurance Journal, brought light to the potential effects of the FAIR Act. Insurers were understandably opposed to the bill. Kelly Campbell, the regional manager for Property Casualty Insurers Association of America (PCI) sees the FAIR Act as a "classic example of over-regulation." PCI says the prior approval regulatory system and new reporting requirements will add costs and delays without providing any consumer benefit. Campbell also adds that establishing prior approval of prices will preclude companies from adapting to changes in the market and this process will serve only to hurt consumers. Campbell claims the FAIR Act gives the commissioner of insurance some very broad powers.

As for whether Campbell's insights are true, Colorado must wait and see. One thing is for sure; insurers' have a significant load of work to do in the future.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Originally posted at InjuryBoard by Kyle Bachus

The Fair Act - Is this Colorado's Version of the Sarbanes Oxley Act for Health and Auto Insurers?

Kyle Bachus — Tue, 10 Jun 2008 17:35:12 GMT

A new Colorado regulation is hanging over the heads of Health and Automobile Insurers-and we call it the "Fair Accountable Insurance Rates Act," also known as the FAIR Act.

This new Act claims to provide easy access to health and automobile insurance coverage for all Coloradans and create new reporting requirements for the insurance companies.

Authored by local Democrats, Rep. Morgan Carroll (Aurora) and Sen. Paula Sandoval (Denver), and approved and signed by Governor Bill Ritter on June 5, 2008, the Act promises what appears to be a good thing...right?

Colorado rates are said to be the 7^th most expensive in the country, and the increasing rates combined with the declining coverage surely sparked this legislative change, according to Rep. Carroll.

After much thought, the general assembly has agreed that insurance rates should not be excessive, inadequate, or unfairly discriminatory. In order to achieve this goal, certain insurance rates will now be subject to pre-approval, based on established benefit ratio standards, by the commissioner of insurance.

In an effort to provide accessible and affordable health and automobile coverage, the Act requires each insurance carrier to file with the commissioner of insurance a detailed description of its rating and renewal practices, and such information to be public when filed.

The Act also requires each insurance carrier to file annually with the commissioner the number of lives insured in the previous year, as well as requires requested rate filing increases for health and automobile insurance to be submitted to the commissioner of insurance at least 60 days prior to the proposed implementation date.

Although the Act allows the rates to be implemented if the commissioner of insurance does not approve the rates within the 60-day period, it also authorizes the commissioner to disapprove rates upon later review.

The commissioner of insurance is required to disapprove rates if certain conditions apply and insurance carriers must report to the division of insurance if specific reasons apply to an increase in rates for health and automobile insurance. The division of insurance is required to track such information and make it public.

Also, the Act prohibits persons from willfully withholding information that will affect rates or premiums charged or from giving false or misleading information and violation will result in penalty. And lastly, the Act requires that use of credit information for underwriting purposes be open to the public.

Before the Act was signed, Colorado law did not require insurance companies to justify their rate increase before it took effect.

Niki Skaggs
Law Clerk
J.D. Candidate 2009
University of Denver

Coming Up Next: The Fair Act - How Does It Effect Consumers?

Originally posted at InjuryBoard by Kyle Bachus

K2 Sports Recalls Snowboard Bindings

Darin Schanker — Tue, 20 May 2008 19:03:07 GMT

K2 Sports in cooperation with The U.S. Consumer Product Safety Commission has announced a voluntary recall of their 2007 K2 Auto snowboard bindings. Sold at snowboard, ski and sporting goods stores throughout the U.S. from August 2007 through May 2008 and they were available in black or white, with "K2" and "Auto" printed on the toe strap.

Although no incidents or injuries have been reported, the cable that connects the toe strap to the binding could break, presenting the possibility of a fall. Discontinue using these recalled bindings at once and return them to the store where they were purchased or you may return them directly to K2 Sports for free shipment and repair.

For more information, contact K2 Sports at 800-985-2191 from 9:00 a.m. until 5:00 p.m. PT, Monday through Friday. Or you can visit their web site at: www.k2snowboarding.com or send an email to: autobingupgrade@k2sports.com

Now that ski and snowboard season is over, it's is the perfect time to check your bindings and have them repaired, so you're all ready to go next season.

Originally posted at InjuryBoard by Darin Schanker

The Heparin Debacle Part Four - Baxter International Getting Away with Murder?

Linda Snyder — Wed, 07 May 2008 16:42:12 GMT

Getting away with murder? That's a pretty harsh question to ask when talking about a drug company. But, I question the policy of drug maker, Baxter International to leave a product on the market for as long as possible before issuing a recall. I've heard their arguments, that because the side effects are so rare that more patients are being helped that being harmed. That's an argument that almost makes sense until you talk to the families of the 785 patients that suffered from severe adverse reactions and 81 patients that have died since January 2007.

To help put those numbers in perspective, according to the FDA report, Information on Adverse Reports and Heparin, of those 81 heparin related deaths, 66 deaths occurred between October 2007 and February 2008. In contrast, there were only 3 heparin related deaths for the entire year of 2006.

In October 2007 there were 4 heparin related deaths reported to the FDA. That's more than the entire year of 2006. In November 2007 there were10 heparin related deaths. In December 2007, 13 deaths, that's over 4 times as many deaths as the entire year of 2006. In January 2008, 21 deaths and February 2008 there were 18 heparin related deaths. There were no deaths reported in March 2008.Yet it took the FDA and Baxter over four months to issue a recall. If the recall had been issued in November 2007, 52 deaths might have been prevented.

The FDA does state in its report:

• That the heparin related deaths in the report "concern heparin produced by any manufacturer."

• The fact that someone reports an adverse event does not necessarily mean that a specific drug caused the medical event or death.

      • Reports have to be analyzed to see if there is a plausible causal association between the drug and the medical event.
       •It is often not possible to tell in an individual case if there is a causal relationship between the drug and the medical event or death.
        • Many patients have other serious conditions that could have caused the reported problem.

Is Baxter guilty of murder? According to Wikipedia murder is legally defined as:

.a common law murder is defined as the unlawful killing of a human person with malice aforethought if the defendant acts with any of the following states of mind:

(i) Intent to kill; (ii) Intent to inflict serious bodily harm; (iii) Reckless indifference to an unjustifiably high risk to human life (abandoned and malignant heart); or (iv) Intent to commit a felony (felony-murder doctrine).

Under element (iii) abandoned and malignant heart, the killing must result from defendant's conduct involving a reckless indifference to human life and a conscious disregard of an unreasonable risk of death or serious bodily injury.

Reckless indifference to human life.allowing an additional 52 people die sounds like reckless indifference to me.

Originally posted at InjuryBoard by Linda Snyder

Let the FDA Do Its Job? I Don't Think So.

Linda Snyder — Fri, 02 May 2008 13:49:13 GMT

What planet does Diane Bieri live on? It's certainly not on the planet earth that I live on. In her commentary, Opposing view: Let FDA do its job, Ms. Bieri goes on and on about how the outcome of a U.S. Supreme Court case will undermine the FDA and it's the patients who will suffer.

Ms. Bieri claims that we should not "ignore the FDA's scientific expertise," and "we should empower the FDA to accomplish the job Americans expect."

As an "American" here's what I expect from the FDA. I expect the FDA to not allow drug research studies to be ghost written for the doctors by the drug companies. I expect the FDA to inspect foreign drug plants. I expect the FDA to not approve drugs that have known potential adverse side effects without comprehensive warning labels. I expect the FDA to not allow drug makers to dictate when a drug be recalled that has reports adverse effects or deaths. I don't expect to have the FDA run by the drug companies.

Ms. Bieri continues, "Now, lawyers are trying to second-guess FDA's expertise regarding the way to warn about potential drug risks." All I can say to that comment is, thank God for lawyers! Historically the drug companies will not issue a recall or change a warning label until attorneys get involved and file lawsuits on behalf of patients who have suffered from adverse events or have died.

The drug companies are terrified of losing revenue. If, we as patients are more informed about potential adverse effects, we may decide that all of those glorious benefits that we see in the polished television commercials and glossy magazine ads are not worth the risk. A patient who makes an informed decision has the ability to affect the drug companies' bottom line.

In light of the heparin debacle, the ghost written Vioxx studies and the Vytorin and Zetia mess, I find it appalling that anyone thinks the drug companies need less regulation and that the FDA as it exists today is functioning in the best interests of patients.

Oh, wait a second.Diane Bieri is senior vice president and general counsel of PhRMA (the Pharmaceutical Research and Manufacturers of America).

Originally posted at InjuryBoard by Linda Snyder

The Heparin Debacle Part Two - Chinese Officials Play the Blame Game

Linda Snyder — Fri, 25 Apr 2008 21:17:41 GMT

Chinese officials have finally acknowledged that there is a contaminant in heparin produced in China, but it is not connected to the illnesses. Ning Chen, second secretary at the Chinese Embassy claims, "We don't have a strong evidence to show that is heparin or its contaminant that caused the problem." Mr. Chen asserts that since the adverse reactions and deaths only occurred in the United States, the problems originated here.

According to the director of the FDA's drug center, Janet Woodcock, German officials have found adverse reactions in dialysis patients who took contaminated heparin.

Dr. Woodcock continues, "Heparin should not be contaminated, regardless of whether or not that contamination caused adverse events. We are fairly confident based on the biological information that we have had that this contaminant is capable of triggering these adverse reactions."

And we all know, the best defense is a good offsense.Chinese officials are now insisting that the United States' request for American inspections of Chinese company's be a two way street and China be allowed to inspect US facilities.

In light of China's history of exporting toys containing lead, tainted rice, poisonous toothpaste, toxic pet food, tainted fish and now contaminated drugs, you would think China would be bending over backwards to fix this latest debacle. And you would think in light of the FDA's track record lately (Vioxx ghosted studies, Vytorin and Zetia) they would make it a priority to hold China to a minimum safety standard.

So, what does the FDA do? They send Changzhou SPL, the Chinese plant that supplied the contaminated heparin to Baxter International a warning letter. The letter warned that the plant used unclean tanks to make heparin, that it accepted raw materials from an unacceptable vendor and that it had no adequate way to remove impurities. I'm sure that based on that warning letter, Changzhou SPL will never, ever, ever produce a contaminated product ever again.

China also claims that they can/will/have been testing heparin for contaminants. The FDA counterclaims China technology is not sensitive enough to detect the contaminant.

So, the blame game continues.

Up Next: The Heparin Debacle Part Three - The FDA Falls Flat

Originally posted at InjuryBoard by Linda Snyder

This post has been removed

Linda Snyder — Fri, 18 Apr 2008 09:05:00 GMT

This post was removed at the request of the contributing author.

Originally posted at InjuryBoard by Linda Snyder

Lights, Camera, Traffic Ticket. Denver plans to use Red-Light Cameras.

Linda Snyder — Sun, 13 Apr 2008 00:36:45 GMT

We've at some point in our driving careers, we've run a red light. Whether it's been intentional, "gunning it" to beat the light or just not paying attention when the light changes, let's admit it. All of us have done it.

Personally, I know from my own experience, I approach intersections that I know have cameras with more caution than those without cameras. I know exactly which intersection it is and I consciously alter my driving habits. Not only am I aware of my own position but I'm also more attentive to those ahead who may suddenly slam on their brakes to avoid triggering the camera.

Public safety measure or scheme to generate revenue? That seems to be the heart of the controversial decision to install red-light cameras at several high collision intersections in Denver.

According to the Federal Highway Administration, there are 106,000 crashes a year in the US involving drivers who ran red lights with 1,000 fatalities and 89,000 injures. Drivers and passengers are injured in 45 percent of the collisions involving a driver who ran a red light.

Critics claim that increasing the length of the yellow light will decrease most red light runners, so cameras are unnecessary. Some see the cameras as the next step in the "Big Brother" movement of invasion of privacy and loss of civil rights. And red-light cameras have been proven to cause more rear-end accidents according to the Federal Highway Administration.

Proponents cite research that cameras reduce red light runners by 40 percent and the most dangerous of crashes, the broadside or T-bone impact have been reduced by 25 percent.

I believe that having the longer yellow lights have "trained" us in the mentality that in that "go or no-go moment", we typically speed up to make it through the intersection. Maybe cameras at intersections would "re-train" us to approach intersections with more caution. Because now when we decide to go for it and beat that red light, we just might get caught.

The interesting thing about this debate is both sides have this all or nothing mentality. You either win this debate or you lose it. What about a compromise? Common sense dictates that if you increase the yellow light time you give drivers a better chance to make it through the intersection in that "go, no-go" moment and a camera would catch those of us who choose to go for it when we really should have stopped.

One last thing to consider.cameras at intersections also have the potential to eliminate the "he said, she said" situation at the scene of a car crash. The red-light cameras would provide photographic evidence on who was at fault in the accident. In my opinion, that in itself is worth risking a traffic ticket for running a red light.

Originally posted at InjuryBoard by Linda Snyder