Injury & Tort Law News - U.S. Tenth Circuit
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An Air Force Captain and her family cannot plead their way around hurdles to suing the federal government, the Tenth Circuit reluctantly found last week. After Captain Heather Ortiz suffered negligent treatment at a military hospital during her pregnancy, her husband and child sued. However, the government cannot be sued for that negligence, the court found.

Under a 1950 Supreme Court decision, Feres v. United States, military service members are barred from suing the government under the Federal Tort Claims Act. That Heather Ortiz was not named as a plaintiff made no difference, since the in utero injuries claimed were to her. The court made it clear that it disagreed with the precedent, describing it as overbroad and unfair, but had no choice except to uphold it.

This is a case about a fax. In 2008, well after the rest of the world had retired its fax machines, Custom Mechanical Equipment faxed CE Design an unsolicited advertisement, perhaps because their carrier pigeon had the day off. CE Design reacted proportionately -- by filing a class action lawsuit.

Custom's insurer, Emcasco, refused to defend the junk faxers, not just because they were embarrassed to represent a company that advertised via fax. They also didn't believe Custom's policy required them to defend or indemnify Custom for the junk faxes. They were right, the Tenth Circuit ruled this week.

A Colorado couple can sue Jack Nicklaus for intentional misrepresentation over a failed luxury golf development, the Tenth Circuit has ruled. The couple, Jeffrey and Judee Donner, who invested $1.5 million in a luxury golf resort, did so at least in part because of claims that one of the greatest professional golfers of all time, Jack Nicklaus, would both design the course and have a house in the development.

When the $3 billion project went belly up, the Donners sued. The Tenth Circuit overturned the dismissal of their case in district court, allowing them to continue pursuing claims that Nicklaus and his company intentionally misrepresented the golfer's relationship with the development.

Four-month-old A.H. was severely injured when his Evenflo car seat broke apart, sending the seat -- and A.H. -- hurtling into the back of the car driven by his mother.

A.H.'s father, Tony Hadjih, sued Evenflo on a theory of design defect and failure to warn, as Evenflo knew the two-piece car seat had a tendency to separate during accidents. Even so, the court directed a verdict in favor of Evenflo on the failure to warn claim, and a jury returned a verdict in favor of Evenflo on the design defect claim.

The Hadjihs appealed on these issues and on allowing into the trial a videotaped deposition of a defense witness.

'Borg' Court Won't Release Tape of Cop Killing Defendant Mid-Trial

It was the first trial in the "Borg Cube," the new federal courthouse in Salt Lake City. The defendant, Siale Angilau, allegedly grabbed a pen or pencil and rushed the witness stand. A nearby U.S. marshal pulled out his gun and fired multiple times. Angilau, 25, did not survive.

Now, word has emerged that there is a tape of the shooting, one which the district court, in the name of security, refuses to release. Does Chief Judge Ted Stewart have a point?

Colo. Prison Nurse Can't Ignore Inmate With Severe Pain

This is not a complicated case.

Homaidan Al-Turki is an inmate at Limon Correctional Facility in Colorado. He was in pain. His pain was so severe that he was unable to stand and was vomiting. Mary Robinson, the nurse on duty at the time, refused to treat him, telling him to take it up in writing with the doctor who would be around in the morning. Eventually he passed out, woke up still in pain, and passed two kidney stones.

Crisis averted, but there was still the matter of hours of untreated pain. Hence, his lawsuit against Robinson for deliberate indifference.

Chris Hogan was once employed by UTOPIA, the Utah Telecommunication Open Infrastructure Agency. He claims he was fired after he revealed conflicts of interest in contract awards. After Hogan was fired, he threatened to sue the agency unless he was paid $219,000 in damages and the agency's executive director was also fired.

Coincidentally, an unflattering article appeared in a local newspaper discussing Hogan's termination and calling his demand for damages "extortion" and "blackmail." The article's author, "Richard Burwash," was a pseudonym for Mike Winder, the mayor of West Valley, Utah, where the agency did much of its business.

Hogan's lawsuit dealt mostly with defamation, but the Tenth Circuit was having none of it.

This term, the Supreme Court of the United States had the opportunity to review a Colorado Supreme Court decision that dealt with immunity against civil liability under the Aviation and Transportation Security Act. Based on the long-accepted definition of malice, and statutory interpretation, the Supreme Court disagreed with the Colorado state courts' opinions, and reversed and remanded.


William Hoeper began working as a pilot for Air Wisconsin Airlines Corporation ("Air Wisconsin") in 1998, but in 2004, in order to retain his job, he had to pass certification on a different aircraft. Having failed the first three attempts, Air Wisconsin gave him a fourth and final attempt, with the understanding that he would be terminated if he did not pass. During the final simulation, Hoeper lost his temper, threw his headset and began yelling. A few hours later, Hoeper was on a flight back to Denver when the plane was ordered back to the gate, and Hoeper was removed, searched and questioned.

Oh, the good ol' Tenth Circuit. For a circuit that covers a geographically large portion of the United States, the case law coming out of there can sometimes not be as compelling as circuits with cities like New York or San Francisco. But, that doesn't mean all Tenth Circuit cases are folly. In fact, when they mean business, they get the whole country's attention.

Tenth Circuit in the News

With Utah's large Mormon population, we suppose it was just a matter of time before a polygamy case was heard. And just in time for the end of 2013, Judge Waddoups of the U.S. District Court for the District of Utah struck down Utah's bigamy statutes' cohabitation provision as unconstitutional.

A settlement was reached in a case against the FAA and an air traffic control staffer in early November, wrapping up claims for a man whose plane crashed into a Wyoming mountain range in 2010.

According to The Associated Press, Luke Bucklin, 41, was piloting a plane from Jackson Hole airport when his plane crashed in the Equality State's Wind River Range in October 2010, killing himself and his three teenage boys.

The Federal Aviation Administration (FAA) was never part of any suit, yet both parties have agreed to settle with Bucklin's estate.