Colorado Business Litigation Lawyer Blog

The Colorado Supreme Court decided November 22, 2010, that the Colorado Court of Appeals committed error when it upheld the trial court’s grant of summary judgment (a decision on the law without a trial) in favor of an insurance company in a bad faith case brought by a severely injured vehicle passenger.

The vehicle’s driver lost control, seriously injuring five passengers, including one passenger who was rendered paraplegic (complete paralysis form the waist down) in the accident. The driver’s insurance provided coverage of $100,000 per person and $300,000 per accident. The company deposited the full $300,000 with the court and filed what is known as an interpleader case, naming all of the injured passengers as defendants and asking the court to decide how the insurance proceeds should be apportioned.

The insurance company settled with four of the injured passengers for a total of $200,000. Because the insurance company could not serve the remaining passenger, who resided in Florida, with legal process, the court had no jurisdiction to litigate the nonresident’s claim.

The nonresident passenger, claiming that the insurance company refused in bad faith to settle with her for the $100,000 in remaining insurance coverage, then sued the driver. The insurance company undertook defense of the case, as it was legally obligated to do.

In a later post (Part 2 - 12/02/2010), I will elaborate on the outcome of this case.

In 1966, the Colorado Constitution was amended to provide for the appointment of judges by the governor. Before that, judges of the county, district and appellate courts were elected in the same manner as any other elected official.

Advocates of electing judges have long argued that taking judges “out of politics” stripped the electorate of a basic right to determine who shall serve in the judicial branch of government, just as the people decide who serves in the legislative and executive branches of government.

Unfortunately, the “good old days” of electing judges oftentimes resulted in the election of a political party’s “good old boys,” rather than the persons who were the best qualified. After all, on what unique platform can a candidate for judicial office run?

Predictably, all candidates promised to enforce the constitution and statutory law in a fair and impartial manner. Some even said they would “get tough on crime” Still others said their decisions would never be influenced by partisan politics.

Oftentimes the candidate was a lawyer who was a long and faithful member of one of the two major political parties. Common sense and political reality tell us that there was at least a perception that a lawyer’s odds of winning or losing a case in that judge’s courtroom might be affected in proportion to the lawyer’s degree of support for the winning candidate.

After 1966, trial judge candidates must first have their names submitted to the governor by a judicial nominating commission. Each judicial district’s commission is made up of seven persons residing in the district, no more than four of whom can be from the same political party, and a majority of whom are not lawyers. The commission interviews each candidate and submits two or three names to the governor, who must appoint one of those whose name is submitted. Initial appointment is for two years. Those appointed must stand for retention at the next general election. A judicial performance commission evaluates each judge candidate’s performance and makes a recommendation to retain, not to retain, or gives no opinion. These results are publicized. The ballot question is along the lines of “shall judge ______ be retained in office, yes or no?

Since 1966, only a handful of judges have not been retained in office.

Which system is better calculated to obtain the most qualified judges?

Bloomberg.com reports that a former officer and general counsel for GlaxoSmithKline (GSK), a London-based drug manufacturer, was indicted on November 8, 2010, for making false statements to the FDA and with obstructing an FDA investigation.

In 2002-2003, the FDA was investigating the promotion of Wellbutrin SR, an antidepressant drug, for possible uses not approved by the FDA. The attorney, Lauren Stevens, now residing in North Carolina, is charged with making false statements in a series of correspondence with the FDA and with withholding documents that could have proved that Wellbutrin SR was being promoted for uses such as weight loss, which had not been approved by the FDA.

Among other things, Stevens had sent letters to various doctors and had learned about the improper and illegal promotion of the drug. GSK had paid at least two doctors to give about 1,000 promotional talks to other doctors promoting the off-label (non-approved) use of the drugs. The indictment alleges that Stevens knew about the off-label promotions but concealed such materials from the FDA and made false statements concerning her knowledge of the off-label promotion activity.

If convicted on each of the six counts of the indictment, Stevens could be sentenced to a total jail term of up to sixty years. Stevens’ attorneys say that she is innocent of all charges and that she relied on the advice of a nationally prominent law firm that had expertise in working with the FDA.

We wait with bated breath to see whether or not any other officers of GSK will be charged or indicted. And of course, under our law, Stevens is presumed to be innocent of all charges.

Continue reading "GlaxoSmithKline in Spotlight Again" »