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Archive for February, 2011

Kristen Parker tested positive for hepatitis on her first day of work in 2008 as a "scrub tech" for Rose Medical Center in Denver, Colorado. She noted she probably contracted the disease by sharing heroin needles, a practice that developed with a prescription for painkillers after jaw surgery in 2001. While Parker worked at the hospital, she repeatedly stole fentanyl from operating room anesthesia carts, injected the painkiller into her system with syringes, and returned the used syringes to the carts. Fentanyl is a powerful, synthetic, opioid painkiller 80 to 100 times stronger than morphine. Parker was fired after testing positive for the drug in March 2009. She used similar tactics to get drugs at the next hospital that hired her, the Audubon Surgical Center in Colorado Springs.

Around that time, the Colorado Department of Health began investigating an outbreak of Hepatitis C. After Parker was indicted in August 2009, her former employers contacted about 6,000 patients who could have been exposed to Parker’s strain of hepatitis C. Genetic testing of 17 patients who tested positive for the disease showed a 97% chance that their strain was genetically linked to Parker’s.

At Parker’s sentencing hearing, the judge rejected her plea bargain and sentenced her to 30 years imprisonment, instead of the 20 recommended in sentencing guidelines. The judge noted the following:

The repeated theft and abuse of fentanyl, one of the most puissant drugs on the planet for selfish, personal gratification to get high while exposing so many innocent, unsuspecting, undeserving people to this insidious and incurable disease is as incomprehensible as it is unconscionable. She finally and thankfully got caught.

Parker appealed the sentence, calling it unreasonable and an abuse of discretion. The Tenth Circuit Court of Appeals, however, upheld the order, stating that the sentence was reasonable in light of all the circumstances. The court further noted that “. . . Parker’s crime stands out as particularly repugnant. [She] displayed a callous disregard for human suffering. By stealing fentanyl from operating carts, Parker deprived surgical patients of needed anesthesia. At least one of her victims awoke mid-surgery in severe pain."

For the full story, click here.

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Harrill & Sutter, PLLC v. Kosin, No. 10-518.

Facts

Cynthia Kosin’s husband, John Robert Kosin, died in March 2003. At the time of his death, Mr. Kosin resided in Arkansas, his estate included properties and business interests in several states, and he has numerous tax difficulties. Under the will, Mrs. Kosin was to receive (1) all of her husband’s household property and personal effects, (2) annual payments of $525,000 for life, and (3) a life estate in their Hot Springs home. The will provided several other bequeathed gifts to friends and left the remainder of the estate to St. Luke’s Episcopal Church. The will named Stephen Butler of Virginia as executor of the will and trustee of the estate. Melanie Grayson of Arkansas was later appointed as administratrix of the Arkansas estate.

On May 23, 2003, Mrs. Kosin engaged Raymond Harrill to represent her in regard to her rights to inherit from her husband’s estate. Because of the complexity of Mr. Kosin’s estate, Harrill requested the assistance of his partner, Luther Sutter. Mrs. Kosin entered into a contingency-fee agreement under which the firm was to receive either (1) 20% of the gross amount recovered from the estate through settlement or (2) 30% if a lawsuit was necessary.

From June 2003 through July 2005, Sutter requested information from Butler, attempting to obtain a complete financial picture of Mr. Kosin’s companies. On November 11, 2003, Butler informed Sutter by letter that he had entered into a contract to sell Mr. Kosin’s businesses for $39.4 million with a contingency clause that allowed Butler to be released if he deemed the sale inadequate. Butler also provided Sutter with an appraisal of the Hot Spring home, which indicated a value of $2.9 million. Butler indicated he would be willing to settle Mrs. Kosin’s interests if she sold the home. Under this offer, Mrs. Kosin would retain the proceeds of the sale free of Mr. Kosin’s estate less (1) the expense of the sale, (2) settlement with St. Luke’s, (3) payment of any indebtedness or taxes for the home, and (4) payment of the expenses of the administration of the Arkansas estate. The offer would likely have resulted in Mrs. Kosin receiving in excess of $1 million.

Sutter forwarded a copy of Butler’s November 11, 2003, letter, but did not explain the terms of the offer. In September 1, 2004, Mrs. Kosin retained Friday, Eldredge & Clark. After learning this, Sutter advised Mrs. Kosin of the $1 million settlement offer and noted that he learned of the offer from Grayson instead of Butler. Later that month, Mrs. Kosin discharged Harrill & Sutter.

On February 10, 2006, Harrill & Sutter filed suit to enforce an attorney’s lien to protect its claim for attorney’s fees and services rendered on behalf of Mrs. Kosin. The firm alleged that Mrs. Kosin breached the contingency-fee agreement and requested $75,000. Mrs. Kosin responded that she was justified in terminated the attorney-client relationship. After the sale of the Hot Springs home, Mrs. Kosin deposited $225,000 into a bank account pending resolution of the case.

After a bench trial, the trial court ruled that Mrs. Kosin discharged Harrill & Sutter for cause. Because Mrs. Kosin agreed that (1) Harrill & Sutter had provided valuable services for her benefit until November 19, 2003, and (2) those services and fees equaled $55,775.44 (based on Harrill & Sutter’s itemized professional services invoice), the trial court awarded Harrill & Sutter that amount pursuant to a quantum-meruit recovery. The trial court further ordered Harrill & Sutter to received 25% of the interest accumulated on the $225,000 sum since it was deposited.

Appeal

The Arkansas Supreme Court noted that attorney-client contracts contain an implied provision allowing the client to discharge the attorney at any time, with or without cause. If the attorney is discharged without cause, he is to be compensated based upon the terms of the fee agreement. If the attorney is discharged with cause, her compensation is determined by quantum meruit. Although there is no bright-line rule for determining whether a client has discharged an attorney with cause, the court held that the trial court did not err in finding that Mrs. Kosin discharged Harrill & Sutter for cause. The court then held that the $55,775.44 award was reasonable based on Harrill & Sutter’s time and services.

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At nineteen, Russell Bishop spent about a month in the Macomb County, Michigan jail on charges of assault with intent to murder. Bishop had a history of mental illness, and his temporary cell assignment form noted that he (1) was of small build, (2) was unable to understand questions, (3) exhibited angry or hostile and bizarre behavior, and (4) appeared anxious or afraid, depressed, confused, and unusually embarrassed. Bishop was housed in the jail’s mental health unit with another inmate, Charlie Floyd, a forty-four-year-old who had been charged with multiple counts of criminal sexual conduct. Nearly three years after his confinement, Bishop sued several jail employees, claiming they did nothing to stop Floyd from sexually abusing him even after he reported repeated assaults. Defendants sought summary judgment for qualified immunity, but the trial judge denied the motion as to four jail deputies, finding that they did not qualify for immunity because they purposefully ignored Bishop’s pleas for help.

The four deputies appealed to the Sixth Circuit Court of Appeals, but the court granted immunity only to three of the deputies, noting:

We have recognized that a prison official may be held to be deliberately indifferent to a substantial risk to inmate safety if he is aware that an inmate is vulnerable to assault and fails to protect him.

The court stated that Bishop failed to specifically identify any deputy to whom he reported Floyd’s abuse or to prove that any deputy other than Deputy James Stanley had enough personal contact with him to be subjectively aware of his vulnerability to attacks or the abuse that he alleges he was suffering. The court found that "Stanley was aware of Bishop’s personal characteristics because he testified that he talked to Bishop quite often on his rounds." The court then found that Stanley could have been aware that Bishop belonged to a class of prisoners particularly vulnerable to sexual assault. Accordingly, the court reversed the trial court’s denial of qualified immunity to three of the deputies, but upheld the decision against Stanley.

For the full story, click here.

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