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TCL > April 2005 Issue > Tenth Circuit Summaries

April 2005       Vol. 34, No. 4       Page  153
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: // (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118.


Error Under U.S. v. Booker—Objection in District Court—Resentencing—Sentencing Guidelines as Advisory Only

U. S. v. Labastida-Segura, No. 04-1311, 2/4/05, D.Colo., Judge Kelly.

Defendant pled guilty to illegal reentry of a deported alien previously convicted of an aggravated felony under 8 U.S.C. § 1326. He argues that, in light of United States v. Booker, 125 S.Ct. 738 (2005), he is entitled to resentencing. Booker held that in order for the United States Sentencing Guidelines ("U.S.S.G.") to pass muster under the Sixth Amendment, they must be treated as advisory, rather than mandatory.

The Tenth Circuit Court holds that defendant’s sentence must be vacated and his case remanded for resentencing. He objected to the sentencing error, so review is for harmless error. The Circuit holds that where, as here, a defendant’s sentence is already at the bottom of the U.S.S.G. range, it cannot say what the district court would have done at defendant’s sentencing after hearing from the parties and applying the guidelines as advisory. The case is remanded for resentencing.

Colorado Law—Negligent Misrepresentation—Promissory Estoppel—Jury Trial Right—Damages

Colorado Visionary Academy v. Medtronic, Inc., No. 02-1234, 2/7/05, D.Colo., Judge Holloway.

Plaintiff was a charter school looking for a new site for the upcoming school year. Defendant owned a building suitable for plaintiff’s purposes. Negotiations to sell the building ensued. Defendant assured plaintiff that the deal would close. Plaintiff began moving into the building and declined other possible sites, in reliance on defendant’s assurances. In August, defendant canceled the sale. Plaintiff lost revenues when students who had been expected to enroll did not. The school ultimately lost its charter. Plaintiff sued, asserting claims for negligent misrepresentation and promissory estoppel.

The district court granted summary judgment on the negligent misrepresentation claim, holding that such a claim was cognizable under Colorado law only where the party making the representation had a special expertise about the information and was acting to further the recipient’s economic interests. After a bench trial on the promissory estoppel claim, the district court entered judgment in defendant’s favor.

The Tenth Circuit Court reverses the judgment on the negligent misrepresentation claim. It holds that, under Colorado law, the tort of negligent misrepresentation can arise from ordinary, arm’s-length bargaining that was expected to lead to a contractual relationship. The Circuit also reverses the judgment on the promissory estoppel claim, because plaintiff was entitled to a jury trial on the negligent misrepresentation claim, and the jury’s findings on any common questions of fact must be applied. Finally, the Tenth Circuit rejects the district court’s view that lost profits were unavailable as a matter of law on the promissory estoppel claim. Rather, whether the plaintiff should be allowed to recover for lost profits should be considered in light of the jury’s findings. The district court’s judgment is reversed and the case is remanded.

Toxic Tort—Epidemiological Studies—General and Specific Causation—Scientific Evidence—Time Bar—Discovery Rule

Norris v. Baxter Healthcare Corp., No. 03-1471, 2/8/05, D.Colo., Judge McKay.

Plaintiff sued the successor to the manufacturer of her silicone breast implant that she alleged caused her to suffer from a systemic autoimmune disease, as well as local injuries such as pain due to scarring and leakage. The district court excluded plaintiff’s scientific experts because they were unreliable. The court then granted summary judgment in defendant’s favor because plaintiff could not meet her burden of proving general causation (that silicone breast implants are capable of causing disease in people in general). In addition, it held that plaintiff’s claims of local injuries were time barred.

The Tenth Circuit Court notes the large body of epidemiological evidence concluding that saline breast implants do not cause disease. Plaintiff’s experts’ opinion that her condition was caused by the implants did not explain or account for the epidemiological studies, and therefore was not scientifically reliable. The presence of epidemiology does not necessarily end the inquiry, but where epidemiology is available, it cannot be ignored. Because plaintiff could not prove general causation, she could not prove specific causation (the implants caused her specific autoimmune disease). Accordingly, the district court did not abuse its discretion in excluding plaintiff’s experts’ opinion.

The Circuit also upholds the time bar on plaintiff’s local injuries. Colorado applies a discovery rule so that the limitations period runs when a plaintiff is aware, or should be aware, in the exercise of reasonable diligence, of all of the elements of the cause of action. Here, when plaintiff had both implants removed in 1978, she had an obligation to investigate the problems with her implants. Her lawsuit filed in 1991 was outside the relevant limitations period. The district court’s judgment is affirmed.

Booker Error—Blakely v. WashingtonU.S. v. Booker—Sentencing Factors in Statute—Advisory Federal Sentencing Guidelines

U. S. v. Lynch, No. 04-5111, 2/11/05, N.D.Okla., Judge Kelly.

Defendant pled guilty to two drug offenses. At sentencing, he raised an objection to his sentence enhancements under Blakely v. Washington, 124 S.Ct. 2531 (2004) (every factor, other than a prior conviction, that increases a defendant’s sentence must be proven beyond a reasonable doubt or admitted by the defendant). The district court imposed a sentence based only on admitted drug quantity. The government appeals.

The Tenth Circuit reverses, holding that under the remedial portion of U.S. v. Washington, 125 S.Ct. 738 (2005), the case must be remanded for resentencing. Booker applies, so the U.S.S.G. are to be applied as advisory, not mandatory. The case must be remanded to allow the government to seek resentencing in accordance with Booker.

Sexual Harassment—300-Day Claim Period—Same Actionable Hostile Work Environment—Employer’s Adequate Response

Duncan v. Manager, Dep’t of Safety, City & County of Denver, No. 03-1257, 2/15/05, D.Colo., Judge McConnell.

Plaintiff is a former Denver police officer who alleged she was subjected to a sexually hostile work environment from the beginning of her employment in 1979. The district court entered summary judgment in favor of the City and County of Denver and the former police chief. Plaintiff appealed.

The Tenth Circuit Court addresses whether plaintiff’s claims were timely. Title VII requires a claimant to file a claim within 300 days of the alleged discriminatory conduct. Many of the acts about which plaintiff complained occurred prior to 300 days before she filed her complaint with the Equal Employment Opportunity Commission. But the acts occurring within 300 days, as well as those that were part of the same actionable hostile work environment, could be considered.

Although plaintiff alleged sufficient discriminatory conduct within the limitations period, summary judgment was nevertheless correct, because she did not show that her employer failed to respond appropriately to any of the timely acts. The district court’s judgment is affirmed.

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