Governor elevates Gabriel to Supreme Court

Tuesday, June 23, 2015

Governor John Hickenlooper elevated Judge Richard L. Gabriel from the Colorado Court of Appeals to the Colorado Supreme Court, replacing Justice Gregory Hobbs who will retire in August.

Gabriel was one of three nominees submitted to the Governor by the Judicial Nominating Commission. The others were Judge David Prince, who presides in district court in El Paso County, and Professor Melissa Hart of the University of Colorado Law School.

Gabriel served on the Court of Appeals for seven years, appointed in 2008 by Governor Bill Ritter. A registered Democrat, he previously practiced commercial law, developing an expertise in complex commercial litigation, including business torts, intellectual property and products liability.

Colorado Civil Justice League noted that both Gabriel and Prince “have the type of broad expertise that brings balance to the court.”

This was Hickenlooper’s third appointment.

The Supreme Court now includes:

  • Chief Justice Nancy Rice (appointed in 1998 by Gov. Roy Romer)
  • Justice Nathan Coats (2000, Gov. Bill Owens)
  • Justice Allison Eid (2006, Gov. Owens)
  • Justice Monica Marquez (2009, Gov. Ritter)
  • Justice Brian Boatright (2011, Gov. Hickenlooper)
  • Justice William Hood (2014, Gov. Hickenlooper)
  • Justice Richard Gabriel (2015, Gov. Hickenlooper)

Court rules for employers in drug-free workplace case

Monday, June 15, 2015

A unanimous Colorado Supreme Court ruled that employers may enforce zero-tolerance drug use policies, even when the use in question is off-duty medical marijuana.

Brandon Coats, a quadriplegic and a medical marijuana patient, was terminated by Dish Networks when he failed a random drug test, violating the company’s drug policy. Coats argued that his medical marijuana use was protected by Colorado’s Lawful Activities Statute, which prohibits employers from discriminating against employees for their lawful off-duty activities.

Dish countered that medical marijuana use is not protected because it remains illegal under federal law. Both a district court and a three-member panel of the Court of Appeals ruled in favor of Dish Network.

Writing for a 6-0 majority, Justice Allison Eid affirmed the Court of Appeals ruling “that the commonly accepted meaning of the term ‘lawful’ is ‘that which is permitted by law’ or conversely ‘not contrary to, or forbidden by law.”

“[A] lawful activity is that which complies with applicable law, including state and federal law,” the majority opinion stated.

“We find nothing to indicate that the General Assembly intended to extend (the Lawful Activities Statute’s) protection for ‘lawful’ activities to activities that areunlawful under federal law,” the justices concluded.

Colorado Civil Justice League (CCJL) submitted a friend-of-the-court brief in this case, written by legal advisory board attorney Chris Ottele of Husch Blackwell. The CCJL brief supported the lower courts’ rulings that an activity which is prohibited under federal law is not protected by state law; therefore, Dish Networks should be permitted to enforce its zero-tolerance drug policy.

Rough road for civil justice bills in 2015 Legislature

Tuesday, May 12, 2015

Good, bad or otherwise, the Colorado General Assembly killed 11 of 14 bills with a direct impact on Colorado’s civil justice liability system during the recently-concluded 2015 session.

Eleven proposals that died included six opposed by Colorado Civil Justice League and five that CCJL supported. Of the three bills that passed, House Bill 1063 (restrictions on patent trolling) was the lone measure to limit liability by imposing restrictions on frivolous attempts to extract patent infringement settlements. Two other bills actually expanded liability by lowering the bar for lawsuits against schools following incidents of school violence (Senate Bill 213) and by creating a new private right of action against hospitals for procedural errors related to liens (Senate Bill 265).

The House of Representatives killed two bills aimed at restoring some measure of sanity to construction litigation (Senate Bills 91 and 177). It also struck down two attempts to reduce employment lawsuits, killing Senate Bill 69, which would have repealed the 2013 “Sue Your Boss Bill” and House Bill 1172, that repealed punitive damages from the 2013 law.

On the other hand, the House did kill several bills that would have expanded liability. House Judiciary killed a bill that would have prohibited courts from using the laches doctrine to bar untimely claims (House Bill 1272). House State Affairs killed the “Homeless Right to Sue” proposal (House Bill 1264). The latest proposal to mandate that employees pay for family leave insurance (House Bill 1258) died following debate on the House floor, and a bill to employees to tamper with employer personnel files (House Bill 1342) also came up short.

Senators advanced bills on construction claims and employee lawsuits – only to see them die in the House – and passed the patent trolling bill. However, the Senate’s passage of bills expanding school liability and creating a new private right of action against hospitals handed trial lawyers their only outright victories.

HB 1063 – Restrictions on “patent trolling” – CCJL: SUPPORT – Passed; on Governor’s desk.

HB 1154 – No fee on tax portion of credit card transaction – CCJL: OPPOSE; NEUTRAL after amendment – Killed in House Finance.

HB 1172 – Repeal punitive damages in employment lawsuits – CCJL: SUPPORT – Killed in House Judiciary.

HB 1216 – Expert testimony Daubert standard – CCJL: SUPPORT – Killed in House Judiciary.

HB 1258 – Mandatory family leave insurance – CCJL: OPPOSE – Killed in House.

HB 1264 – Homeless right to sue – CCJL: OPPOSE – Killed in House State Affairs.

HB 1272 – Prohibit laches doctrine – CCJL: OPPOSE – Killed in House Judiciary.

HB 1342 – Employee access to personnel file – CCJL: OPPOSE – Killed in House.

SB 69 – Repeal Sue Your Boss Bill – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 91 – Construction claims reduce statute of limitations – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 177 – Construction litigation – CCJL: SUPPORT – Passed Senate; Killed in House State Affairs.

SB 213 – Expand litigation school violence – CCJL: OPPOSE – Passed; on Governor’s desk.

SB 265 – Expand litigation hospital liens – CCJL: OPPOSE unless amended – Passed; on Governor’s desk.

SB 275 – Legislator access to confidential information – CCJL: OPPOSE – Killed in Senate.

Housing affordability bills headed for House crossfire

Sunday, April 26, 2015

With just 10 days left before the Legislature goes home for the year, the prospects for meaningful progress toward resolving housing construction complaints look dim. Although Senate Bill 177 passed the Senate on a bipartisan vote of 24-11, it is assigned to House Speaker Dickey Lee Hullinghorst’s killer committee.

Meanwhile, Rep. Max Tyler is working on a series of very late bills that, if passed, would simply make housing lawsuits even more expensive. It’s hard to see how this ends with any progress toward making it easier or less expensive to resolve homeowner complaints about construction defects.

Bad for business, bad for schools

Sunday, April 26, 2015

With 20/20 hindsight, it’s easy to second-guess decisions that might have averted an unfortunate outcome. We don’t like these lawsuits when they’re targeted at business, so why should we like them any better when they are aimed at schools which must defend themselves with scarce taxpayer dollars, as Senate Bill 213 proposes.

In a thoughtful op-ed in Sunday’s Denver Post, CCJL vice president Lee Mickus writes:

“[A] school should be sued only when it does something wrong — not because of its misfortune to be in the path of someone intent upon inflicting injury or death.

"We want our schools to be safe. We want them to provide sound education. We want parents to have access to vital information. But litigation is not the way to advance those goals.”

CCJL Quick Reference Guide to Legislature

Tuesday, April 21, 2015

Here’s a quick look at the bills Colorado Civil Justice League is following and our positions on those bills as the legislature enters its final three weeks of the 2015 regular session.

For a more detailed look at each bill, click here.

SB 69 – Repeal “Sue Your Boss” Bill (Woods/Priola)


SB 91 – Reduce Statute of Limitations for Construction Claims (Scott/Willett)


SB 177 – HOA construction litigation procedures (Scheffel/Ulibarri/DelGrosso/Singer)


SB 213 – Sue Your School Bill (Cadman/Scheffel/Hullinghorst/Durant)


SB 265 – Conditions necessary for creation of a hospital lien (Cadman/Hullinghorst)

CCJL Position: OPPOSE unless amended to remove right to sue hospital for improper lien

HB 1043 – Penalties for DUI offenders (Saine/McCann/Cooke/Johnston)


HB 1063 – Prohibition communications concerning patents (Pabon/Balmer)


HB 1232 – Emergency use of epinephrine auto-injectors (Ginal/Todd)


HB 1264 – Creation of extra rights for homeless persons (Salazar/Melton/Kefalas)


HB 1342 – Employee access to employer’s personnel file (Salazar)

CCJL Position: OPPOSE 

Litigation is not the answer to school violence

Monday, April 13, 2015

“Hard cases make bad laws.” – Justice Oliver Wendell Holmes

Justice Holmes’ adage seems to refer to difficult cases, but evidence suggests that he may have been talking about “hard cases” that evoke sympathy.

Few cases evoke sympathy and grief more than the death of a child. Just such a tragedy has led to Senate Bill 213.

On Dec. 13, 2013, 17-year-old Claire Davis was shot at point-blank range by a fellow student at Arapahoe High School. The assailant then took his own life, and Davis died from her injuries eight days later.

Davis’ parents understandably sought to learn what the school might have known about the student shooter. Those efforts were thwarted until recently when Littleton Public Schools approved a plan to release that information in order to avoid litigation.

By contrast, SB 213 would encourage litigation in the wake of such tragedies. The bill imposes upon schools a liability that the law doesn’t even apply to law enforcement.

Our courts, including the U.S. Supreme Court, have repeatedly found that law enforcement agencies cannot be sued for failure to prevent a crime from happening. Public safety is the primary purpose of law enforcement; it’s their area of expertise. Schools leaders, while understanding full well that safety is crucial to learning, must also provide a quality education, put good teachers in the classroom, and maintain sound buildings and transportation vehicles.

School leaders, unlike law enforcement officers, are not public safety experts. Yet SB 213 would hold schools and school personnel to a higher standard than law enforcement.

“Public school parents should have a reasonable expectation . . . that school officials will have taken reasonable care to provide for their (children’s) safety, just as they provide for their education,” Sen. Cadman explained.

The problem for schools is that even if they do take “reasonable care,” they cannot guarantee that a tragedy will not happen. Under SB 213, when those tragedies happen, schools will be sued, even if they have taken “reasonable care.”

Unless SB 213 is amended, it will certainly create more litigation.  Whether it will create safer schools is a dubious proposition.

How trial lawyers troll for clients

Wednesday, April 08, 2015

Wonder why trial lawyers spend so much money advertising for clients? One answer is that volume is a key factor in the business model of contingency-fee attorneys – especially those who practice “mass torts.” In addition to our local ambulance chasers, late night cable TV is loaded with advertisements for victims of mesothelioma and pelvic mesh.

Ironically, mesothelioma cases peaked 20 years, writes Tiger Joyce, president of the American Tort Reform Association, in the Wall Street Journal.

  • Law firms specializing in asbestos claims spend roughly $30 million a year on advertising and those litigating pelvic mesh claims spent $52 million last year to troll for clients, according to analysis by the Silverstein Group.
  • “Does the need to recoup marketing expenses create perverse incentives to pursue speculative or even illegitimate claims, for instance, blaming lifelong smokers’ lung cancers on . . . trace exposures to asbestos?” Joyce wonders. A jury found two Pittsburgh-based plaintiffs’ lawyers liable for fraud in a multimillion-dollar civil racketeering case.
  • Transcripts of recruiters’ cold calls to unsuspecting women who had not even undergone mesh implants showed brazen invitations to collect “$30,000 to $40,000.”
  • Congress, the Federal Trade Commission, state attorneys general and other authorities charged with protecting the public interest should also begin scrutinizing personal-injury lawyers’ marketing as zealously as they scrutinize the marketing of countless other businesses.

Several bills sacked, others scrambling

Friday, April 03, 2015

Three recently-introduced bills met an early demise recently, paring down the number of bills that CCJL and CO-LAW are following:

  • House Judiciary Committee killed House Bill 1272, which sought to prohibit use of the laches defense to bar timely claims.  
  • The same fate met House Bill 1253, regarding transfer of assets, in House Business Committee.
  • And a few days later, House Business nixed House Bill 1293 which proposed changes to the statute of limitations for tenant claims in rental disputes.

With the legislature taking off Good Friday, several bills loom on next week’s calendar. Senate Bills 91 and 177, both dealing with construction litigation claims, have been hanging on the Senate calendar since clearing committee, while supporters try to find a compromise acceptable to House leadership but which could still provide meaningful reform toward construction affordability.