Vol. 34, No. 2
From the Courts
U.S. Court of Appeals for the Tenth Circuit
Tenth Circuit Summaries
Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are accessible from the CBA website, http: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.
Products Liability—Expert Scientific Testimony—Court’s Gatekeeping Function—Objection to Jury Instruction Not Preserved for Appeal
Bitler v. A.O. Smith Corp., No. 02-1527, 12/6/04, D.Colo., Judge Lucero.
Plaintiff was badly burned in an explosion of a hot-water heater manufactured by defendants. In his products liability suit against the manufacturers, a jury found negligence and product defect, and awarded plaintiff more than $2 million.
On appeal, defendants asserted error in the admission of plaintiff’s expert witnesses. The witnesses testified that the explosion was caused by a faulty safety valve. The Tenth Circuit Court reviewed whether the district court had discharged its "gatekeeping" function to determine if the proffered expert testimony had a reliable basis in the knowledge and experience of the discipline, and if the evidence was sufficiently relevant to the case at hand.
In evaluating the scientific basis, the Tenth Circuit holds that a fire investigator’s personal experience, training, method of observation, and deductive reasoning were sufficiently reliable to constitute scientifically valid methodology. In addition, the Circuit holds that an expert is not necessarily required to test his theory. Further, a process of eliminating possible causes to identify the most likely one was acceptable if (1) objective reasons were provided, (2) there was some independent evidence that the cause identified is of the type that could have been the cause, and (3) other possible causes were eliminated as highly improbable and the cause identified was highly probable. The Tenth Circuit finds no abuse of discretion in the district court’s decision to admit the testimony of plaintiff’s expert witnesses.
Finally, the Tenth Circuit holds that defendants’ challenge to a jury instruction was not preserved for appeal, because the objection at trial was not specific. The district court’s judgment is affirmed.
Employment Race Discrimination—Statutes of Limitation—Contract Formation (Two Years)—Post-Formation Conduct (Four Years)
"Cross v. Home Depot, No. 03-1070, 12/8/04, D.Colo., Judge Seymour.
Plaintiff sued his employer for race discrimination, and included a claim under 42 U.S.C. § 1981, based on the employer’s failure to promote him. The district court granted summary judgment in favor of the employer based, in part, on its determination that a two-year limitations period applied to plaintiff’s § 1981 failure-to-promote claim.
The Tenth Circuit holds that a claim alleging discrimination in contract formation was governed by a two-year statute of limitations, but a claim relying on an employer’s post-formation conduct was subject to a four-year statute of limitations. Here, the Circuit finds that the qualitative change in the contractual relationship necessary to find a new and distinct relationship was missing. Accordingly, the four-year limitations period applied. The district court’s judgment is affirmed in part, reversed in part, and remanded.
ERISA—Appropriate Equitable Relief—No Compensatory Damages—Traditional Equitable Remedies Only
Callery v. U.S. Life Insurance Co., No. 03-4097, 12/10/04, D.Utah, Judge Kelly.
Plaintiff bought a life insurance policy on her then-husband through a group insurance policy sponsored by her employer. After she and her husband divorced, plaintiff continued to pay the premiums for the life insurance policy on her former husband until his death. When she tried to collect on the policy, U.S. Life Insurance Company ("U.S. Life") denied coverage based on a policy exclusion providing for termination of a spouse’s eligibility upon divorce. U.S. Life refunded the premiums plaintiff had paid.
Plaintiff sued, claiming that defendants violated ERISA’s notice requirements by failing to provide her a copy of the summary plan description. She sought payment of $100,000, the face amount of the policy, asserting it would be "appropriate equitable relief." The district court dismissed all defendants except plaintiff’s employer, Star Buffet, and granted it a judgment on the pleadings, because "appropriate equitable relief" under ERISA did not include payment of the equivalent of the life insurance proceeds.
The Tenth Circuit notes that ERISA authorizes a civil action by a plan participant to enjoin a practice that violates the plan’s terms or to obtain other appropriate equitable relief. The issue here was whether ERISA authorizes monetary relief in these circumstances. The Circuit holds that "appropriate equitable relief" was limited to remedies typically available in equity, and did not include compensatory damages.
The court then rejects plaintiff’s attempt to characterize her claim as one for (1) injunctive relief, compelling payment of the policy proceeds, because she had dismissed the insurance company; (2) reliance damages, because such relief is compensatory, not equitable; (3) restitution damages, because she received restitution damages when the insurance company refunded her premiums; and (4) an aleatory contract (one that was dependent on some fortuitous event beyond the parties’ control), because the plaintiff was not attempting to reach profits realized by Star Buffet through improper use of her premiums.
The Tenth Circuit also rejects plaintiff’s arguments based on equitable estoppel, accounting for profits and reformation. Finally, the Circuit rejects plaintiff’s claim for breach of fiduciary duties, holding that in a suit by a beneficiary against a fiduciary, the beneficiary may not be awarded compensatory damages as "appropriate equitable relief" under ERISA. The district court’s judgment is affirmed.
Validity of Search Warrant—Good Faith Exception—Confidential Informant’s Tip—Unwitting Informant—Corroboration
U. S. v. Artez, No. 03-4166, 11/17/04, D.Utah, Judge Ebel.
Defendant was indicted for possession of an unregistered shotgun. He moved to suppress the shotgun as the fruit of an unlawful search of his home. The district court granted defendant’s motion to suppress, holding that the search warrant was invalid because it was not supported by probable cause, and that the good faith exception of United States v. Leon, 468 U.S. 897 (1984), did not apply. The government appeals.
The Tenth Circuit reverses and remands. The information contained in the search warrant affidavit was sufficiently corroborated by the confidential informant’s tip. Each controlled purchase here used at least one unwitting informant as a middleman between the confidential informant and the suspect location, and each involved a meeting between the confidential informant and the unwitting informant before the transaction.
The Circuit holds that the two controlled purchases conducted in this manner corroborated the confidential informant’s tip that he, through an unwitting informant, was about to purchase methamphetamine from defendant’s residence. The deputy’s observation that a series of visitors entered the residence and stayed for a short time provided additional corroboration of the confidential informant’s tip. Other information that corroborated the tip was that four other individuals who lived at or frequented the residence had prior drug-related convictions.
Each of defendant’s allegations are insufficient to satisfy the standard under Franks v. Delaware, 438 U.S. 154 (1978). The allegations are either wholly unsubstantiated by the record or contrary to the record. The judgment is reversed and the case is remanded.
Possession of a Firearm by a Felon—Probations Officer’s Testimony About the Terms and Conditions of Probation—Error in Admitting Evidence—Harmless Error
U. S. v. Griffin, No. 03-7052, 11/17/04, E.D.Okla., Judge Ebel.
Defendant was convicted of two counts of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). At trial, the government called defendant’s probation officer to testify that defendant was prohibited from possessing a firearm under the terms and conditions of his probation. The probation officer suggested that defendant was aware of this prohibition. During the probation officer’s testimony, the government introduced a document listing all the terms and conditions of defendant’s probation, and it was admitted into evidence. Defendant objected. He was convicted.
The Tenth Circuit holds that the admission of this testimony and accompanying document was error. The evidence was irrelevant and thus inadmissible. However, the information was not so prejudicial or confusing as to affect the outcome of the case. The erroneous admission of the evidence did not have a substantial influence on the jury’s decision. Thus, the error was harmless. Defendant’s conviction is affirmed.
Simple Possession of Drugs—Mutually Exclusive Defenses
U. S. v. Trujillo, No. 04-2004, 12/7/04, D.N.M., Judge Porfilio.
Defendant was charged with possession of cocaine with intent to distribute. At trial, he asserted the inconsistent defenses that the drugs were for personal use and therefore he was guilty of simple possession, and that he did not know there was cocaine in the car. The court agreed to instruct the jury on the lesser-included offense of simple possession, but only if defendant agreed to abandon the other, inconsistent defense.
The Tenth Circuit reverses. The court’s condition amounts to the addition of a fifth element to the Circuit’s four-part test to determine whether a defendant is entitled to an instruction on a lesser-included offense. The Circuit reviews the issue de novo, because the particular posture of the court’s ruling masked the impetus or opportunity for defense counsel to object. Defendant satisfied the four-part test. The court erred by preventing defendant from arguing the inconsistent defense (which was supported by the evidence and the law) that he did not know the cocaine was in the trunk, while permitting an instruction on simple possession. Because the evidence supporting the conviction of possession with intent to distribute was not overwhelming, the error is not harmless. The conviction and sentence are reversed and the case is remanded.
Restoration of Civil Rights—State Law—Right to Possess a Firearm
U.S. v. Jones, No. 03-3377, 12/8/04, D.Kan., Judge Hartz.
Defendant was convicted of violating 18 U.S.C. § 922(g), which makes it unlawful for a convicted felon to unlawfully possess ammunition in or affecting commerce. The underlying felony is a 1992 guilty plea in Kansas state court. Defendant argues that he was not subject to 18 U.S.C. § 922(g)(1), despite his prior state felony conviction, because his civil rights had been restored under Kansas law, and a Kansas statute barring certain convicted felons from possessing firearms did not apply to him.
The Tenth Circuit affirms. A conviction does not trigger the prohibition of this section if the defendant has had his civil rights restored. This is decided by the law of the jurisdiction in which the conviction occurred. The restoration of civil rights provision does not apply unless the restored civil rights include the right to possess a firearm. However, the Kansas statute has denied that right to defendant.
Defendant argues that the statute is ambiguous, therefore the rule of lenity must apply. The Circuit disagrees. It holds that because defendant had been convicted less than ten years before being found with the ammunition, he was barred from possessing firearms regardless of when, or whether, he had been released from custody. The judgment is affirmed.
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