« January 2009 | Main | March 2009 »

February 26, 2009

More gun news....

Smith & Wesson announced yesterday that it's recalling all Walther PPK and PPK/S guns manufactured between March 2002 and early this month.

The $605 weapon has a defect which may allow the gun to fire without anyone pulling the trigger. In a memo to customers posted on its Web site, the Springfield firm advised owners of the gun to "STOP USING YOUR PISTOL AND RETURN IT TO SMITH & WESSON AT ONCE." Smith & Wesson engineers discovered the problem during routine tests, and the firm "has not reported" any consumer injuries.

However, an Illinois police officer sued the gunmaker last fall over wounds sustained in 2006 when his PPK/S allegedly went off on its own. Smith & Wesson has denied any responsibility for the accident.

The firm plans to fix all PPK and PPK/S guns for free, including covering shipping costs to and from Smith & Wesson's factories. The company estimates the recall will cost a total of $900,000 to $1.3 million. The Walther PPK is famous the world over as Agent 007's pistol, appearing in most of the 22 James Bond movies released since 1962.

Parking Lot Guns OK in OK

The Oklahoma law that requires employers to permit employees to keep guns locked in their vehicles at work has been given the "OK". A three-judge panel of the 10th U.S. Circuit Court of Appeals , the federal appeals court which has jurisdiction over Colorado, unanimously rejected an Oklahoma district court's ruling that the state law is pre-empted by the "general duty" clause of the federal Occupational Safety and Health Act (OSHA).

The Oklahoma Self-Defense Act, enacted in 2004, was the first parking lot firearm law of its kind. But in the past five years, at least 10 states have passed laws prohibiting employers from barring the locked storage of guns in workers' vehicles.

shootem.jpgSince enactment of the Oklahoma law, a number of companies have been plaintiffs in the pre-enforcement challenge just decided, the latest being ConocoPhillips Co. The state tapped Charles Cooper of Washington's Cooper & Kirk to defend the law after naming him a special assistant attorney general. Cooper had filed an amicus brief on behalf of the National Rifle Association in support of Oklahoma. See ABA v. NRA .

ConocoPhillips' pre-emption argument rested on Section 654(a)(1) of the federal Occupational Safety and Health Act, known as the "general duty" clause, which requires that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." This clause has been viewed as encompassing any workplace hazard not covered by a specific Occupational Safety and Health Administration (OSHA) regulation.

But appellate panel said the district court's pre-emption ruling interfered with "Oklahoma's police powers and essentially promulgates a court-made safety standard -- a standard that OSHA has explicitly refrained from implementing on its own. Such action is beyond the province of federal courts." ConocoPhiilips v. Henry, No. 07-5166.

The appellate panel did agree with the district court's holdings that the state law was not a violation of the due process clause or the Fifth Amendment's takings clause. A ConocoPhillips spokesman said the company was disappointed by the ruling but had not decided yet on further action. If it is decided to take the matter to the US Supreme Court, the challenge will continue to be fought by the National Rifle Association - the primary backer of the original legislation.

The state law was enacted in response to a 2002 incident in which the Weyerhaeuser Co. fired seven workers for violating the company's policy on prohibiting firearms in vehicles parked on company property. The workers challenged their terminations in federal court, arguing that the policy violated their right to bear arms under the state constitution. The 10th Circuit upheld the firings after finding the state law that authorized Weyerhaeuser's policy to be a reasonable regulation under the state's police power.

February 23, 2009

Colorado Fee for Tying - and Untying - the Knot May Increase

It might soon become more expensive for Colorado couples to marry or divorce. The Senate Appropriations Committee backed a bill last Friday that would raise marriage and divorce fees to pay for programs to help victims of domestic abuse. The measure would raise the marriage license fee from $10 to $30. Divorce petitions would go from $220 to $230 and divorce responses would be raised by $10 to $116.

divorce.jpgThe increases would take effect July 1 and raise an estimated $987,000 in the first year. Half the money raised from the divorce fee increases would pay for legal fees for the victims of domestic violence. The rest of it and all the money from the wedding fee increase would go to groups that counsel and advocate for domestic violence victims.

It seems unnecessary to note that it is $200 more to begin a divorce action than the fee for beginning a marriage - for many the $230 is still a bargain...

February 20, 2009

Carbon Monoxide Detectors to be Required

The Colorado Senate gave final approval today to a bill require carbon monoxide detectors in homes. The Senate approved the measure 29-5, sending it back to the House to approve changes.

The bill would require all homes and apartment buildings for sale to have carbon monoxide detectors near bedrooms. Homeowners and apartment owners also would have to install detectors if they completed any major renovations or additions. The bill, House Bill 1091, now heads to the governor's desk.

The bill is formally titled "The Lofgren and Johnson Family Carbon Monoxide Safety Act," in memory of Lauren, a 23-year-old DU graduate student, and also the four members of the Lofgren family from Denver, who died of carbon-monoxide poisoning in November while vacationing in Aspen. See Another Tragic Death.

Sadly, Colorado lawmakers admit that they voted against the bill last year over concerns it was being pushed by the alarm makers. The deaths this winter demonstrate that the question is a matter of consumer safety not alarm makers' profits.

February 17, 2009

Lawyers Helping During Tough Times

More lawyers are donating more time to representing the poor for free, a study by the American Bar Association has found. The study found that 73 percent of attorneys provided some pro bono representation to persons of limited means, or organizations that represent such people, during the prior year. That's up from 66 percent in a 2005 study conducted by the group. Attorneys provided an average of 41 hours of pro bono work over the past year, up from 39 hours in 2005.

poorfamily.jpgThe study was based on interviews with a representative sample of 1,100 lawyers nationwide conducted in 2008. It has a statistical accuracy of plus or minus 3 percentage points. The study found that 81 percent of lawyers in private practice provide some pro bono services, compared to just 43 percent of corporate counsel and 30 percent of lawyers working for government.

Approximately 84 percent of solo practitioners and lawyers in firms of 2 to 10 attorneys reported doing pro bono, compared to 76 percent of lawyers in firms of 101 or more lawyers. More minority lawyers in private practice volunteered their time (90 percent) than did white lawyers in law firms (80 percent).

And the ABA is actively pushing for the creation of Legal Corps, which would direct more lawyers into efforts to represent a broad segment of working people in matters arising out of the economic crisis, such as foreclosures. Legal Corps lawyers would bolster services already being provided by lawyers in local offices supported by federal funding channeled through the Legal Services Corp. and lawyers working on a pro bono basis. The ABA's initial proposal calls for federal funding to help support some 1,000 salaried lawyers providing services to clients meeting certain economic need criteria.

According to the ABA, legal assistance can be crucial to help families facing foreclosure to keep their homes. Statistics indicate that a homeowner represented by a lawyer is 50 percent more likely to keep his or her property rather than lose it to foreclosure. The ABA will continue to push for Legal Corps with the administration and on Capitol Hill.

February 13, 2009

See and Hear No Evil - Still Liable

An Illinois woman's homeowners insurance will pay $2.5 million to settle a lawsuit brought by a young man who was paralyzed in a crash that occurred after an underage drinking party in her home. The settlement between the mother, whose teenage daughters hosted the party, and George Baldwin, 22, was approved Wednesday by the Lake County Circuit Court.

monkeys.jpgIn 2006, Baldwin, then a 19-year-old, went to the Lake Forest home with a friend, William Klairmont, then 18 and also from Lake Forest. They were visiting the daughters, and all drank beer in the girls' bedroom. Klairmont was intoxicated when he drove home and lost control of his car, and Baldwin, a passenger, was injured.

The case is an unusual twist on adult liability for injuries that result from teenage drinking. Unlike other lawsuits alleging that adults played a role in teenage drinking parties, the mother did not buy the alcohol for the teens or know they were drinking in her home. The mother did not admit any wrongdoing in the settlement. But Baldwin's lawyer argued that the mother should have monitored the teens and suspected that they were drinking, especially because her daughters had been caught drinking before.

Colorado has a "Dram-Shop Law". A social host in Colorado can be legally liable to any injured individual for serving an alcoholic beverage to an underage person or for providing a place for an underage person to consume alcoholic beverages. A claim premised on "failure to monitor" has yet to be tested in Colorado.

February 9, 2009

Malpractice Caps Do Not Attract Doctors

Insurance companies and tort reform groups have dominated countless health care debates with assertions of a "medical liability crisis." But an analysis of new American Medical Association data rejects the myth that tort reform attracts more doctors, adding to a growing body of research that proves physicians are not fleeing the profession because of medical liability.

The AMA statistics show the number of doctors continues to rise nationwide and in every state. There are now twice as many doctors per capita than when the AMA began tracking physician numbers in the 1960s. The number of doctors has risen over the last five years in all states. Only Alaska, Georgia, Montana and Utah - all with medical malpractice caps - did not outpace population growth.

doctor.jpgThe analysis also found the number of physicians per capita (100,000 population) was 13 percent higher in states without caps. This finding echoes research from the Commonwealth Fund and the American College of Emergency Physicians, which found health care quality and patient safety are far worse in states that have eliminated accountability through tort reform measures.

Additionally, specialties saw significant increases in the number of doctors. Neurosurgeons, OB/GYNS and emergency room doctors, frequently portrayed as "high-risk practice areas," all increased over the last five years nationally.

Past quotes from the AMA:

"Our medical liability system is broken. Skyrocketing medical liability premiums - $200,000 year or more in some high-risk specialties - are forcing physicians to limit services, retire early, or move to a state with reforms where premiums are more stable. The crisis is threatening access to care for patients." -William G. Plested III, President-elect, AMA, 9/2005.

"Because of the sky-high cost of liability insurance, physicians throughout the country have been forced to limit their practices, stop delivering babies and some are even leaving the practice of medicine completely." -Yank Coble, President, AMA, 2/2003.

As an example of the error of this logic, Colorado was one of the first, and most aggressive, states in adopting limits on medical malprctice lawsuits. But the state, more than a decade after adopting such limitations, has a severe shortage of physicians in the rural areas. Clearly the above statements are not supported by the data.

February 6, 2009

Trial Promises to be a Circus

After seven years of legal fighting, trial began in federal court Wednesday with animal-rights groups accusing Ringling Bros. of violating the Endangered Species Act when it's use of bullhooks and chains to control the performing elephants.

The American Society for the Prevention of Cruelty to Animals, the Animal Welfare Institute and other activist groups assert that Asian elephants are injured physically and emotionally by their treatment in the circus. The groups say long hours traveling to more than 40 cities a year by train harms the highly social and intelligent animals,, and they want Ringling Bros. to stop using them in their shows.

circus elephant.jpgRingling Bros. and Barnum & Bailey Circus and its parent company, Feld Entertainment, say the activists are just philosophically opposed to animals living in captivity and want to destroy a beloved American family tradition.

During opening statements, the two sides gave vastly different descriptions of the main training tool. Arguing for the animal-rights groups, the ASPCA lawyer showed a bullhook in court and said it's used to jab, prod and beat the elephants, resulting in puncture wounds, bloody lacerations and infections. The Ringling Bros. attorney preferred the term "guide" when describing the instrument, which he said is used as an extension of the handler's arm to reach up to the animals. He pushed the hook into the palm of his hand and used it to scratch behind his ear and said even if it might be painful to a human, elephants are much larger animals with thicker skin.

The activists also showed close-up photos of the elephants' front and back legs, bound with chains to the inside of train cars where Meyer said they can spend up to 100 hours at a time traveling between cities. The circus argues that the elephants are chained primarily at night to keep them from eating one another's food or picking on their sleeping companions.

The trial judge rejected efforts Thursday by Ringling Bros. to derail the lawsuit alleging cruel treatment of its elephants.

February 4, 2009

Medical Rescue May Pose Fatal Risk

Last October near Chicago medical helicopter crashed killing three adults and a baby. The crash was the ninth fatal accident nationwide in an 11-month period, resulting in a total of 35 people killed.

Like others before it, the Chicago helicopter accident might have been prevented. The helicopter, which had clipped the support wire of a radio station tower while flying at night, lacked up-to-date safety equipment like a device to alert the pilot to towers and other nearby obstacles.

air medic.jpgYesterday, the National Transportation Safety Board began four days of hearings in Washington over concerns about the safety of the industry. There a safety review of the medical helicopter industry will be undertaken.

More than 800 medical helicopters are estimated to be operating in this country, airlifting the sick and injured, often under emergency conditions. In the last decade, the industry has doubled in size while undergoing a business transformation. Though annual revenues are estimated to exceed $2.5 billion, the industry is loosely regulated.

Hospitals used to be the primary operators of such helicopters, they now largely outsource that work to commercial operators, including some publicly traded companies like the Air Methods Corporation and PHI Inc. Safety experts contend that competition among companies for flights has added to the risks.

The NTSB sessions will bring together aviation experts, helicopter personnel and industry executives. Rather than focusing solely on the causes of accidents, the hearing will also consider the impact of the industry's business structure on both air safety and medical care. But the board can only make recommendations to the Federal Aviation Administration, which regulates the flight safety of medical helicopters.

Safety advocates say necessary changes include tighter federal and state regulation, accusing the F.A.A. and the industry of being too slow to take specific steps to reduce the number of accidents.

After 18 people died in six crashes in 2004, the safety board urged the F.A.A. in 2006 to order companies to take four safety steps, which would include installing obstacle sensing systems and developing better weather reporting systems. Many accidents occur when pilots, often responding to emergencies, find themselves in deteriorating weather without adequate navigation technology to help them fly safely out of it.

They cite, for example, the so-called terrain awareness and avoidance systems that the safety board urged the F.A.A. to mandate in 2006. Such equipment combines a Global Positioning System with a worldwide database of terrain and obstacles like towers, tall buildings and construction cranes. Such warning systems were not aboard several medical helicopters that crashed last year, including the one that clipped the radio tower near Chicago.

Although the composition of the medical helicopter industry began to change a decade ago as the number of nonhospital operators began to grow, some experts say the pace of change and competition.

According to the Colorado Department of Public Health and Environment, civilian medical helicopters have been a reality in Colorado since 1972. As of 2007, there are ten helicopters licensed to operate within the state, with two others available from adjacent states. All services are provided by private civilian agencies. For the time being, military resources are usually unavailable.

February 2, 2009

"Make My Day" Only at Home

A proposal to expand Colorado's "Make My Day" law to cover businesses has failed for the third straight year at the state Capitol. The Senate State, Veterans & Military Affairs Committee killed the Republican measure (Senate Bill 8) with little discussion last Wednesday on a party-line vote.

Current state law allows homeowners to shoot intruders if they believe the intruders are going to commit a crime or use physical force. The bill would have expanded that right to business owners, managers and employees in their workplace.

cowboy.jpgUnder the bill, deadly force could be used only against those who had unlawfully entered the business. The owner or employee would also have to believe that the person intended to commit a crime or use physical force against them.

Interestingly, the bill was backed by Colorado sheriffs but opposed by the state's police chiefs, who say existing law provides protections for business owners and employees acting in self-defense. The group representing district attorneys didn't take a position. Police chiefs, sheriffs and district attorneys all opposed the original "Make My Day" law because of concern over a potential rise in shootings.

The "Make My Day" law has provided protection as recently as last month to a homeowner. Prosecutors say a Colorado Springs resident who killed an intruder as the man drunkenly tried to break into a home he thought was his own didn't violate the law and won't be prosecuted. An assistant golf pro had been drinking at a Broncos party in Colorado Springs the night of the shooting. He apparently thought he was breaking into his own house, which was really a block away. Police turned the case over to the DA's office to determine whether the shooting was covered under the "make my day" law.


Fatal error: Cannot redeclare class mt in /home/colawbl/public_html/mt/php/mt.php on line 10