15 Top Mistakes Personal Injury Clients Make Series Part One: Not Getting or Delaying Medical Treatment

You’ve just been hit by another driver. The police arrive at the scene and cite the other driver with a violation. There are a million things running through your mind. If your car is totaled, how are you going to tow it? What about a rental car? You need to call your insurance company and open a property damage claim. How are you going to get home?

With everything going on, you are also dealing with the shock and stress of the situation. You’re so busy with the logic of being hit that you may neglect your physical health.

Many individuals involved in auto collisions are physically injured. If the collision is minor or moderate, you may feel muscle pain in your neck, shoulders, and back accompanied with a headache. These are common symptoms of whiplash. You may have also hit your head on the window or back of your headrest or hit your knees on the dashboard. If you were holding onto the steering wheel when you were hit, your hands and arms may have tensed, straining the muscles upon collision.

With your long list of to-do items following a collision, going to the emergency room or your primary care physician may fall to the bottom of the list. Many individuals attempt to self-treat with rest, ice, heat, and over the counter medications. However, self-treatment rarely completely resolves the injury. It is only after months go by and the injury either does not heal, or gets worse, that an individual may seek medical attention.

A delay or gap in medical treatment is one reason why an insurance company may try to deny your personal injury claim or significantly reduce its value. To avoid this, make sure that you seek medical treatment immediately following a car accident, even if you think your injuries will just go away. A large portion of the time, injuries get worse, not better, following a collision.

What’s a Copyright Troll?

DTG’s Intellectual Property Team has seen a new and unwelcome legal trend emerge in Colorado over the last few years: copyright trolls.

Peer-to-Peer (P2P) File Sharing Lawsuits

Since in 2010 and really ramping up in about 2012-2013, a small group of copyright owners has flooded our federal court system with lawsuits against tens of thousands of “John Doe” defendants. These lawsuits are based on alleged copyright infringement on peer-to-peer file-sharing networks (for example, using the BitTorrent protocol).  The lawsuits are sometimes initiated against a single defendant, but more often than not are filed against dozens or even hundreds of John Doe’s in a single lawsuit.

What Makes a Plaintiff a “Copyright Troll”?

 We call these “copyright troll” lawsuits because:

  • The suits are rarely brought by the actual copyright creators or bona fide owners, but by a company, as an assignee[1], whose sole purpose appears to be to file hundreds of lawsuits against online file sharers.
  • The claims of infringement often rely on poorly-substantiated pleadings with language that shows a fuzzy understanding of how the technology behind P2P file sharing actually works.
  • Due to the high volume of actions filed, the lawsuits frequently catch up non-infringers in daunting legal proceedings.
  • The strategy represents an opportunistic way to collect hundreds of “nuisance settlements” from defendants who are confused, intimidated and overwhelmed by being sued in federal court.

The Copyright Troll Business Model

 The copyright troll business model works like this:

  • Monitor online file-sharing networks and collect evidence of possible infringement. Copyright trolls often use a process that produces a list of alleged infringements with associated Internet Protocol (IP) addresses.
  • File a complaint in federal district court alleging copyright infringement by individuals who are identified only by IP addresses.
  • Seek a court order to compel Internet Service Providers (ISPs) to provide individual account holder information matching the IP address.
  • Contact those account holders by letter and threaten to seek very large awards of statutory damages (up to $150,000 for a single download!) but offer to settle for amounts ranging from $3,000 to $8,000.
  • Settle as many cases as possible, and abandon virtually all the rest.

In other words, copyright trolls play a numbers game, targeting hundreds or thousands of defendants to secure quick settlement payments priced just low enough that it is less expensive for the defendants to pay than to defend themselves in court. This business strategy has netted copyright troll plaintiffs millions of dollars in settlement payments!

If you’ve received a letter from your ISP about a legal order (subpoena) to reveal your identity to the Colorado district court, or a letter from a copyright troll demanding a huge settlement, please contact us at once. Our experienced team of intellectual property and litigation attorneys can help you resolve your case in the best manner possible. Our team is listed in the Electronic Frontier Foundation’s Subpoena Defense Resources page.

 

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[1] Examples of these copyright troll companies include I.T. Productions, LLC; Killer Joe Nevada, LLC; CELL Film Holdings, LLC; Survivor Productions, Inc.; and Dallas Buyers Club, LLC.

Methotrexate Overdose – Do I Have a Legal Claim?

Methotrexate is a high potency prescription drug that interferes with an individual’s growth of cells. For this reason, it is commonly prescribed to treat certain types of cancer.

 

However, Methotrexate has non-cancer uses and can be prescribed to treat rheumatoid arthritis and psoriasis. When it is prescribed for these medical conditions, it is often prescribed as a weekly dose instead of a daily dose.

 

Due to its variety of uses, a prescribing doctor and/or a pharmacist may mistakenly prescribe Methotrexate as a daily dose instead of a weekly dose, especially in cases where the patient has rheumatoid arthritis or psoriasis. This can be a deadly mistake that may result in an individual experiencing an overdose of Methotrexate. Signs of a Methotrexate overdose include:

 

  • Cough;
  • Shortness of breath;
  • Body aches;
  • Flu symptoms;
  • Easy bruising or bleeding;
  • Physical weakness;
  • Nausea;
  • Vomiting;
  • Loss of appetite;
  • Dizziness;
  • Exhaustion;
  • Headaches;
  • Blurred vision;
  • Mouth ulcers; and
  • Skin infections.

An incorrect prescription of taking Methotrexate daily as oppose to weekly can cause serious, life-threatening issues, including death.

It is important that you discuss any new prescription of Methotrexate, or any changes to your Methotrexate prescription, with your medical provider and your pharmacist. If you experience any of the above symptoms, contact your doctor immediately.

If you were mistakenly prescribed Methotrexate on a daily dose, or your pharmacist filled your Methotrexate prescription incorrectly, you may have a legal claim. Contact the Methotrexate Overdose lawyers at the Law Offices of Daniel T. Goodwin today for a free consultation.

Trademark Law & Comic-Cons

A federal jury recently returned a verdict in favor of the San Diego Comic Convention (SDCC) in its trademark infringement lawsuit against Salt Lake Comic Con (SLCC). At issue was SLCC’s use of the phrase “comic-con” for its annual comics and pop culture convention held in Salt Lake City. SDCC has held an annual comics and pop culture convention in San Diego since the 1970s.

Both sides – SDCC and SLCC – said saw the jury’s December 2017 verdict as a win.  SDCC had asked for $12 million in damages, but the jury awarded only $20,000 because they found SLCC had not infringed on SDCC’s trademark “willfully.”

Meanwhile, SLCC had tried to argue SDCC didn’t have a valid trademark, because “comic-con” was a generic phrase used worldwide to generally describe any kind of convention devoted to comic books, superheroes, sci-fi, fantasy or any other related aspect of “geek culture.” Under trademark law, you generally cannot trademark a term that’s in common use. In fact, even when a properly trademarked word becomes commonly used in a generic way, the trademark owner may lose their rights (think kleenex, chapstick or velcro, all trademarks that have become “genericized”). So, SDCC tried to argue the same thing has also happened to “comic-con”.

During the trial, SLCC presented evidence that there were hundreds of comic-cons all over the world (“New York Comic Con”, “Phoenix Comicon”, “German Comic Con Berlin”).  They also presented evidence to the jury of how, in the 50 years SDCC has been in existence, its lawsuit against SLCC was the very first time SDCC attempted to defend its trademark in court.

Ultimately though, the jury rejected the argument that “comic-con” has become generic and found SDCC’s trademark was still valid.

One interesting aspect of this lawsuit is that the court did not allow the jury to hear that SLCC was simultaneously challenging SDCC’s “comic-con” trademark registration with the U.S. Patent and Trademark Office (USPTO).  The USPTO issued a trademark registration certificate for “comic-con” to SDCC in early 2007.  SLCC held its first event in 2013.

SLCC initiated what’s called a trademark cancellation proceeding, which is an administrative action, completely separate and apart from its federal jury trial, held before the Trademark Trial and Appeal Board (TTAB). A trademark cancellation proceeding allows a party to request that a registered trademark be cancelled so that the holder of that trademark no longer has any rights under it.

As of the date of this blog post, a number of other parties have filed cancellation proceedings against SDCC, including Denver Comic Con, Phoenix Comic Con, and a subscription service that offers a “ComicCon Box” service.

Regardless of how the jury in Utah decided and what happens with SLCC’s federal appeal, we will ultimately have to watch what the USPTO does to see what the fate of all the comic-cons will be!

If you have any questions about this post or trademark law, contact our Intellectual Property team today.

 

Top 3 Worst Reasons To Ignore Your Summons

The attorneys at the Law Offices of Daniel T. Goodwin have handled a lot of pre-trial conferences and mediation efforts in civil cases. We’ve watched Defendants stand up in court, unrepresented, and plead their case. We’ve had conversations with Defendants who call our offices hoping to negotiate a settlement. So, We’ve heard every kind of excuse about why a Defendant thinks that they are not required to respond to a Summons and Complaint.

These excuses can range from the heartbreaking (“I’ve had a *really* bad run of luck and the Plaintiff should cut me some slack”) to the expected (“It’s someone else’s fault” or “I don’t have any money to pay”) to the bizarre (“This is all part of a government-led conspiracy to ruin me”).  One of the most frequent “excuses” that we hear, however, is that the Summons and Complaint were not properly served. Rarely is the excuse valid.

There appears to be a widespread misconception in the public about what will stand as proper service and what will get a Defendant (at least temporarily) out of the courts. Here are the top three arguments I’ve heard that service was improper and the reason that these will fail most people in Colorado:

  • “I know the person who served me”/”I don’t know the person who served me”

The only restrictions in Colorado regarding the person serving the Summons and Complaint are that they be over the age of 18 and that they not be a party to the action. You may get served by a Sheriff’s deputy, a professional process server, or just an adult friend of the Plaintiff. As long as they are over 18 and not a party, you will need to respond to the Summons and Complaint.

  • “They left the papers with someone else”

You do not need to be personally handed the Summons and Complaint in Colorado. You will be considered “personally served” if the legal papers are left at your home with a family member over the age of 18. You will also be considered “personally served” if the papers are left at your place of work with your boss, secretary, HR department, or any number of other co-workers. Special rules apply to Defendants between the ages of 13-18.

  • “I just refused to take the documents”

Colorado recognizes “service by refusal”. If you refuse to accept the papers, and the process server has reason to identify you as the proper Defendant, they merely need to state what they are serving and leave the papers behind in a conspicuous place. You’ve just been served.

Failure to respond to a Summons and Complaint is a dangerous game. If you have been properly served, a default judgment may be entered against you fail to show up in court. Any defenses or counterclaims that you may have had may be forever lost. If you have been served post-judgment documents such as Interrogatories or a Subpoena, your failure to show up in court may result in a contempt citation, or even a bench warrant, being issued against you.

If you have been served legal documents in a civil matter and need help responding, contact our Civil Litigation Team today.

Trademark Law & Champagne Powder

If you love to ski or snowboard, you may have heard of “champagne powder”, the dry, light and fluffy snow we love best.  But, from a meteorological standpoint, what is it?

Well, champagne powder does not actually describe a particular kind of snow crystal or water-density level, nor is it a term much used by meteorologists or snow scientists.

Instead, “champagne powder” owes its fame to ski industry marketing, with one resort in particular, Steamboat Ski and Resort Corporation (Steamboat), leading the charge.

According to Steamboat legend, back in the 1950s, a rancher named Joe McElroy was skiing with friends near the town of Steamboat Springs, Colorado (before the resort was created) and got sprayed in the face with snow.  He told his friends it tickled his nose like champagne – “champagne powder!” The phrase began to spread across the Yampa Valley, and starting in the 1960s, Steamboat the new ski resort started using it in its marketing.

Five decades later, Steamboat took legal steps to claim exclusive rights to “champagne powder.”  It filed a federal trademark application with the U.S. Patent and Trademark Office (USPTO) in 2008.  It also started sending cease and desist (C&D) letters to anyone publishing the phrase, stating Steamboat had obtained common law trademark rights.  In June 2010, the USPTO issued an official registration certificate to Steamboat for CHAMPAGNE POWDER related to “resort lodging services”.

With its C&D letters, Steamboat pursued an aggressive trademark protection strategy aimed at preventing anyone else, including journalists, bloggers and weather professionals, from using “champagne powder” to describe snow or ski conditions at all.

Then in 2014, Steamboat successfully prevented a gaming software company from using “Champagne Powder” for a casino video game.

It is fair to say Steamboat’s early round of C&D letters infuriated the ski community.  Recipients from California to Utah to Montana shared their letters, as well as the name and contact information for Steamboat’s attorney, all over the Internet.  Online forums and message boards pointed out that “champagne powder” had been widely used in the global ski community for decades, not to describe a particular ski resort or mountain, but a certain kind of snow conditions.  In fact, at that time Champagne Powder even had its own Wikipedia page.  This page made no mention of Steamboat.  The introduction only stated:

“Champagne powder is a very smooth and dry snow, which is great for skiing. The term originates from the ski resorts in the Rocky Mountains, which often have these snow conditions. The name derives from the sparkling wine champagne . . . .”

then went on to describe the weather conditions that created the snow.

Meanwhile, at least one business, Unofficial Networks, a “ski bum’s guide to outdoor news and entertainment”, thumbed their noses after receiving their Steamboat C&D letter and revised a certain offending headline to “Sparkling Wine Powder.

Steamboat’s response to the flurry of bad PR around the country was to explain that, under trademark law, they were required to issue a C&D letter whenever they saw a use of “champagne powder” that infringed its trademark rights.

Steamboat was correct.  Trademark law says that if a trademark owner doesn’t adequately monitor its mark and allows others to use (and infringe on) it, the trademark rights can be invalidated.  Enforcement is a required part of trademark ownership.  If you don’t enforce, you potentially give up your rights.

However, it is important to realize that a federal trademark registration does not give you absolute rights to prevent anyone else from using the word or phrase in any context whatsoever.  Trademark law is designed to protect consumers from confusion about the source of products and services.  It is not designed to give trademark owners an exclusive property right to those words, phrases or designs.  That is, it doesn’t let you claim that any use of your trademark by a third party violates the law.

Thus, arguably, Steamboat’s enforcement efforts are appropriate only if it prevents uses of “champagne powder” that are confusing consumers, with the big assumption being that most of us know “champagne powder” as something related to the Steamboat brand.

Is Steamboat’s champagne powder enforcement strategy actually in line with trademark law? The appropriateness of the legal claims Steamboat makes in its C&D letters and its other aggressive trademark protection efforts cannot be determined unless Steamboat finds itself in court.  Then, a judge or jury will be tasked to decide whether its positions are valid under current trademark and unfair competition law.  So far, no one has formally challenged Steamboat to determine how strong its “champagne powder” trademark actually is.

If you have received a C&D letter from Steamboat or anyone else, or have questions about registering your trademark or protecting your brand, contact our Intellectual Property team today!

 

What’s My Personal Injury Case Worth?

“What’s my case worth?” This is a question that our personal injury attorneys hear almost daily. The answer is that your case value depends on a lot of different factors. The main factors are:

  • Liability – Who is at fault in your case? If you were involved in a car accident and you were not ticketed, but the other driver was, then you are likely completely not at fault. Other cases are not so simple. Fault can be apportioned between the parties, for example, in a slip and fall on an icy sidewalk, you may be found 30% at fault while the landowner is found 70% at fault. If liability is apportioned, it can greatly decrease the value of your case.
  • Medical Treatment – Did you seek medical treatment immediately after the incident? What kind of treatment did you seek (hospital, physical therapy, etc.)? Did you have to treat for a few months or a few years? How much in medical bills were incurred during your treatment? Injuries requiring invasive surgery or permanent impairment are often worth more than cases involving muscle sprains and strains.
  • Damages – Damages are the largest category for determining the worth of your case. It takes into account medical bills, lost wages, and past and future pain and suffering. If your injury has had a huge impact on your life, for example, you broke both legs and were unable to work for a certain amount of time, the value of your case is likely to be greater than cases involving a nagging or inconvenient injury.

If you’ve been injured, it is important to talk with a personal injury attorney so that you can evaluate the potential value of your case and discuss all your options.

Internal Investigators: 7 Key Traits

Sometimes, things just go sideways.

Despite the best intentions of your organization’s Board, Officers, staff, and key volunteers, one misstep can threaten the entire mission. Whether there are allegations of financial malfeasance, inappropriate conduct, insufficient entity formalities, or some other variant, the Board of Directors must take quick action to decide if an internal investigation is warranted.

Once you know you need independent inquiry, who should you call to help you?

At the very least, your internal investigator must be unbiased. Ideally, an investigation is conducted by outside counsel or a special committee. And, your choice of investigators is an important as what they uncover.

In order to be productive and get meaningful results, your investigator should:

  1. Understand the culture of your organization.
  2. Commit to interviewing the correct parties, including individuals who were involved with the organization at the time period under investigation.
  3. Be well versed in how to conduct an investigation and how to evaluate credibility.
    –(Remember, this is NOT a case of “he said/she said, so we’ll never know. Part of the investigator’s job is to make credibility assessments).
    –Your investigator should know how to rely on asking open ended questions.
    –Your investigator should have a delicate approach to asking questions that telegraph the subject or intention of the investigation, and should know when to ask them.
  4.  Be adept at conducting interviews with emotional witnesses.
  5. NEVER use the services of an investigator unless they are licensed or subject to a licensing exemption. In Colorado, employees, attorneys, and CPAs for the entity may conduct an investigation under an exemption. Other exemptions do exist. But, for the most part, your wise and level-headed HOA President is not an appropriate person to conduct the investigation without an independent relationship to the organization.
  6. Always work with an investigator who understands the importance of defining the scope and purpose of the investigation with the board at the outset. In particular, you should understand what standards of proof will apply to the findings and recommendations. Miscommunications on scope will not only waste time and energy, but may result in a contaminated investigation. Once interviews have been conducted, it is difficult to revisit witnesses and receive answers that are free from outside influence or revisionist reflection.
  7. Always work with an investigator who has the expertise to identify and recommend ways that your organization can strengthen its policies, procedures, and formal documentation. The most productive investigations will help you minimize risks in the future.

Once your investigator has completed the investigation, the Board of Directors should use the findings and recommendations to come to a good faith, well informed decision about how to respond. Only independent Directors, those who are not implicated in the underlying issue, should make the decision. As always, Directors have a duty to act in the best interests of the organization. Hiring a competent investigator will not only help the organization reach a reasoned decision, but will protect the Board from individual liability.

If your business or nonprofit organization needs assistance with an internal investigation, contact our offices at (303) 763-1600.

HELP! Does Our Art Organization’s Board Need to Do an Internal Investigation?

By: Caroline R. Kert, Esq.

It is a volunteer Board member’s worst nightmare: after dedicating hours and hours of volunteer time supporting your favorite art organization, a scary issue raises its head. If you don’t deal with the concerns, you or your organization might be sued. Is the current Board to blame? What can you do to protect yourself and your organization? It may be time to hire a third party to do an internal investigation.

Arts organizations and nonprofits are unique creatures. The corporate structure is often the same as the largest for-profit companies, but many are headed by volunteers and operate on shoe string budgets. What the key employees or volunteers, Officers, and Directors sometimes lack in corporate governance experience, they make up in passion and belief in the organization’s mission.

Governance missteps can snowball into crucial issues and can leave the Board of Directors confused about what to do next. Even worse, bad PR surrounding the situation may have long term ramifications leading to the loss of committed volunteers, experienced employees, and donors. The types of issues I have helped organizations navigate cover the gambit:

  • A Board Member suggesting that the organization “cook the books”
  • A Board Member running personal expenses through the organization
  • A Board Member comingling corporate assets with those of other organization
  • An organization failing to properly pay employees under wage and hour laws
  • A Board Member accused of physically assaulting a participant at an official event
  • Volunteers serving alcohol to minors at an official event
  • Lead volunteer sexually harassing teammates

When confronted with these types of issues organizations must focus on three simple goals: reducing current liabilities, avoiding costly litigation, and minimizing the collateral damage.

Once a potential issue comes to the attention of the current Board of Directors it should ask, “If we assume the allegations are true, what are the ramifications?” Have local, state, or federal laws been violated?  Can the organization be held liable for an act or failure to act?  Have current or past board members or officers breached their fiduciary duties?  Does the swift resolution of this issue impact your very ability to survive?

If the answer to any of these questions is “Yes,” the Board has a duty to investigate and make a reasonable business decision regarding its response. If the issue is merely a staff dispute or a question of day to day operations, it may be in the Board’s best interest to allow its Executive Director or other leaders manage the problem.

Boards of all organizations have a fiduciary duty to apply good faith, care and loyalty to their actions. Under Colorado’s business judgment rule, officers and directors will not be held accountable for actions “taken in good faith and in the exercise of honest judgment in furtherance of a lawful and legitimate corporate purpose.” So, swift action that demonstrates the Board’s good faith inquiry into the circumstances will go a long way toward protecting the current Board and the organization. In order to fall under this business judgment rule, the action must be:

  • Made by independent/disinterested board members
  • Made in good faith
  • Informed

Hiring in an independent attorney to complete an investigation and present findings to the Board will help fulfill these criteria. If you or your organization need assistance with a current compliance issue or complaint, contact Caroline Kert at 303-763-1600 or carolinekert@danieltgoodwin.com.

Bookmark our page to read more on this topic, including important criteria to consider when selecting your investigator.

FAQ: “If I make a personal injury claim, will I have to go to trial?”

In Colorado, individuals who are pursuing personal injury claims relating to an auto accident have three years to file a formal lawsuit against the individual at fault for the accident for compensation of their medical expenses, lost wages, physical impairment, and pain and suffering. During these three years, the majority of cases settle directly with the at-fault driver’s insurance company.

Whenever a personal injury claim is made, the insurance company who provides coverage for the at-fault driver assigns an adjuster to the claim. The adjuster evaluates the claim, reviews all relevant documents, speaks with the individual’s attorney, and may take a recorded statement from the individual making the claim. This is where it becomes vital to have a personal injury lawyer representing your claim to the insurance company. A personal injury attorney will know what documents are needed to support your claim and how to present those documents and facts in a way that will maximize the amount of the insurance company’s settlement offer. Presenting your claim to the insurance company is a comprehensive and skilled manner will often allow an injured person to fairly settle their claim without having to go through the time, expense, and uncertainty of a trial.