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October/:\°' ember 1998 Lawyers On The Side Of People Volume 47 Issue 9

FEATURES
There's More to Consular Work than Issuing Visas and Passports
Carmen A. DiP/acido, Esq ............................................................................................................ 7

Employer Sanctions
Jacqueline Deandras Bucar, Esq .................................................................................................... I 9

"Judicial Estoppel" Stops Here!

Kristina Martinez, Esq .............................................................................. ................................. 25

A Primer on Principles of Scientific and General Medical Causation

I. Conard Metcalf, Esq ............................................................................ ..................................... 30

How to Find Out What Government Records Contain about Your Client
William R. Rosner, Esq. and Marin K. Ritter, Esq . ......................... .......................................................... 38

DEPARTMENTS
Officers & Editors ...........................................................................................................4
Case Reports .................................................................................................................44
Eagle ..............................................................................................................................46
Americus Curiae Report ..............................................................................................48
Calendar ........................................................................................................................49
Attorney Services Guide ..............................................................................................50
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of the Association. Subscriptions for nonmembers $75 per year. Periodical postage paid at Denver. CO and additional mailing offices. POSTMASTER: send address changes to the Colorado Trial Lawyers
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Deadline is the first Friday of each month ................................................................................................................................................................................................................................. for address corrections telephone 831·1192.

October/November I 998 Trial Talk 3

President Bankrnptcy John A Cimino Family Law Roger E. Stevens
Marc J. Kaplan, Aurora Editor 1900 Grant St, #l 100 Editor 250 Arapahoe, #30 I
President Elect Denver, CO 80203 Boulder, CO 80302
W. Harold Flowers, Boulder (303) 830-7274 (303) 443-6690
Vice President
Robert A Schuetze, Boulder Booll Review Hazel Hanley Immigration Robert G. Heiserman
Secretary Editor 4062 W Quinn Pl Editor 16 75 Broadway, #2280
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Treasurer (303) 844-5224 (303) 629-1065
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Civil Procedure & Cecil E. Morris New Lawyer, Ruth Burull Dreher
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Civil Rights and Darold Killmer
Editor-in-Chief Kevin Hannon Co11stitutional 730 17th St Office Manage111ent James M. Hult
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Editor Denver, CO 80202 Professio11al Francis V. Cristiano
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4 Trial Talk October/November 1998

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 Dear Readers:
This is the first issue of Trial Talk® in a new bi. . monthly
format. The average issue will have 52 pages instead of
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We will try very hard to maintain the past content, and in

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6 Trial Talk October/November I 998

·· im~ier~tion ;· -_. ·. ·.
- - ,.,, d' ,,,, ~"" " j ~ ,,,
There's More to Consular Work than
Issuing Visas and Passports
Carmen A. DiPlacido, Esq.
Copyright© 1998 by the American Immigration
Lawyers Association Reprinted with permission
of AILS
The COllsular ulli{orm, presc1ibed ill the stalld·
ing consular illstructiolls , is abolished, alld the
followillg substituted, viz:
Sillgle breast coat of blue cloth, with stalldillg
cape or collar, and tell navy buttons in frollt;
Olle buttoll on each side of the cape; four on
each cuff; four irnder each pocket fiap; and one
011 each hip a11d i11 the folds: two on each side of
the centre; a11d one on each side of the same, at
the lower extremity of the ski1is
The frollt (from the cape down to the lower
extremity of the skirts) cuffs, cape, alld pocket
fiaps, to be embroidered ill gold, representing a
\'ille composed of olive leaves, and the
button-holes to be worked with gold thread; the
button-holes correspondillg with the width of
the embroidery, which is not to exceed two illch-
es in any part
Vest and small clothes of white, alld navy but-
tons; the Janner to have ten in front, and four
under each pocket fiap With tfiis dress, a
cocked hat, small sword, and shoes and buckles
are to be worn The hat to be furnished with
gold loop, gold tassels, and black cockade, with
gold eagle ill the centre; added to which, it is to
October/November 1998
· ·
~
be understood that the mountings of the sword,
and the shoe and kllee buckles, are to &e gold;
othenvise gilt 1
I. INTRODUCTION
Today's consular officer bears little
resemblance to the consular officer of the
1800s either in appearance or in role The
United States consular officer of today is a
key figure in the practice of international
law and can be a valuable asset to United
States immigration lawyers who represent
clients, or who themselves, have personal
or business interests abroad You would be
well advised to become acquainted with the
multitude of consular functions emanating
from United States law, treaties and con-
ventions as well as international practice
and procedure The purpose of this article
is to discuss some of the consular functions
that could benefit you in your practice or
assist you in your personal or business trav-
els Having been an official of the United
States Department of State, Consular Affairs
for 27 years, I have experienced the full
gamut of consular functions and have seen
the positive impact these functions can
have in one's everyday life
II. AUTHORITY
United States consular officers derive
authority from a variety of precepts ranging
from mere policy or practice to multination-
al agreements Rather than listing all cita-
tions in the text, I have attached, as an
exhibit, a resume of citations for important
laws, regulations, executive orders and
treaties which grant authority to or require
U S government officials, both here and
Trial Talk
·
abroad, to administer and enforce the law
as well as provide a wide range of service
and assistance to the public beyond visa
and passport issuance
III. THE CONSULAR ROLE~
GENEROUS BUT LIMITED
A. THE VIENNA CONVENTION
DEFINES THE CONSULAR ROLE
The keystone of consular operations is
the Vienna Convention on Consular
Relations Article 5 of the Convention lists
twelve general areas of consular responsi·
bility and allows consular officers to per-
form "any other functions entrusted to a
consular post by the sending State which
are not prohibited by the laws and regula-
tions of the receiving State." These respon-
sibilities fall into two basic categories:
I. The development of economic,
commercial, scientific and cultural
relations between the country they rep-
resent and the area in which they
serve Basically this means consuls
facilitate scientific, academic, cultural,
business and professional exchange
They make arrangements for trade,
technology and investment transfers in
both directions and are a source of
information on their host country (the
country to which they are assigned):
the economy, the society, culture and
tourism
continued on page 8
7
 ~here's More ~o--C~nsu!~f-~~;, · ,_-con~inued-from pa~e 7 . . ··: ·_ .. ·- - · - ··
~ -~ ~,"-' ~ ~ r ;;i, '>' "" '"' ;,- '-"'~/~ = ;; =, "':~= ~"t~/4 ~"' -~ * : ~ ~ ~ "' ~ ~ ~ ~ J;P t :~,,.if;,"" ';;:;: °"' d~ "'~;:; ~ ~ ~ ~ f. S ~:~

2. The safeguarding of the interests of area where I served for nearly all my govern- closure to a person's legal representative on
the country they represent and its citi- ment career. All instructions, guidance and matters for which he or she has been
zens traveling or residing in their con- advisory opinions for consular matters retained
sular district Responsibilities in this emanate from that source
area include issuing passports and IV. AREAS WHERE A
other official documents, helping trav- B. LIMITATIONS ON A CONSUL
elers in distress, signing death certifi- There are certain legal and practical limi- CONSUL CAN ASSIST
cates, authenticating or delivering offi- tations on the type of assistance United A. ARRESTS
cial documents, and assisting travelers States consular officers can offer First, con- Over 3000 United States citizens are
who have trouble with local law suls must operate within the laws of the for- arrested abroad every year on charges rang-
enforcement or immigration eign country in which they serve as well as ing from disorderly conduct to drug
authorities within United States laws In legal matters offences and murder The United States
Government cannot get these Americans
released from jail but a consular officer can
help in other ways A United States consul
will insist upon prompt access to an arrest-
ed American, provide him or her with a list

There are certain legal and practical of local attorneys 3 and information on the
host country's legal system, and offer to
contact the arrested American's family or
friends If the arrestee is imprisoned for any
length of time, the consul will visit on a reg-
limitations on the type of assistance ular basis, monitor jail conditions, protest
mistreatment, and provide dietary supple-
ments, if needed. The consul can serve as a
liaison between the prisoner and interested

United States officers can offer. parties in the United States, assisting in the
transfer of funds for the prisoner's personal
needs and legal bills and reporting on the
prisoner's physical and mental health to the
family or legal representative. If necessary,
the consular officer can even monitor a trial
This is usually only done when there are
such as arrests, child custody disputes and serious allegations of mistreatment or dis-
This composition will focus on the con- crimination The consul cannot, however,
sul's functions in the second category- property issues, the laws of the foreign
country apply to persons and property with- act as the arrestee's legal counsel Since
safeguarding American interests These the United States is party to several bilater-
in its borders In some cases, the consular
functions are performed by consuls in the al and multilateral exchange of penal sen-
officer cannot personally provide the assis-
American Citizens Services (ACS) section of tences or sanctions treaties (prisoner trans-
tance needed but must rely on the coopera-
the embassy or consulate, the counterpart fer treaties). the United States consul can,
tion of government officials or qualified pro-
to the visa (and at some posts the in some cases, assist in an American pris-
fessionals in the host country Secondly,
Citizenship and Passport) sections. While oner's transfer to the United States
staffing limitations sometimes prevent a
not all-inclusive, the following list will pro-
consul from providing immediate assis-
vide an overview of the services consular B. CHILDREN'S ISSUES
tance in non-emergency matters Even
officers in ACS sections perform other than In Overseas Citizens Services, reference
without staffing problems, consuls should
issuing passports. The list is arranged to children's issues generally refers to the
not be expected to provide routine tourist
alphabetically Although the ACS section's adoption of foreign children abroad, inter-
assistance such as making hotel reserva-
responsibilities are restricted to American national parental kidnaping involving an
tions or serving as an interpreter in rela-
citizens, there are certain instances in which American citizen child or parent, child
tions with foreign officials or businessmen
assistance can be provided to the alien abuse prevention and child support
Finally, the Privacy Act, 2 which was
spouse or child of an American, and to cer- enforcement abroad Consuls play a role in
designed to protect the privacy and rights of
tain other aliens. These instances will be all of these areas
an individual, occasionally complicates a
noted I would like to point out that the
consul's role As a general rule, consular
consul's link to the United States on all the I. Adoption of Foreign Children
officers may not reveal information regard-
functions discussed below is the Americans seek to adopt overseas at an
ing an individual's location, welfare, inten-
Directorate of Overseas Citizens Services in annual rate of 9,000 foreign children
tions or problems to anyone without the
the Bureau of Consular Affairs at the International adoption is basically a private
express consent of that individual. The
Department of State in Washington DC, the legal matter between adopting parents and
Privacy Act provisions do not prevent dis-
foreign authorities and is largely governed

8 Trial Talk October/November 1998

by the courts, laws and regulations of the
child's residence or birthplace The United
States consul. however, has a role, albeit a
limited one The consul is generally the one
who adjudicates and issues an immigrant
visa for the child (IR-3 for a child adopted
abroad or IR-4 for a child to be adopted in
the United States) The consul can also
provide information about the foreign
adoption process, make inquiries with the
host government officials or the courts
regarding the status of a pending adoption,
clarify any documentation requirements,
and provide lists of foreign-based attorneys,
interpreters or translators. Keeping in mind
that the adoption process is strictly within
the judicial sovereignty of the foreign
courts, consuls can, nevertheless, use their
"good offices" to ensure that United States
citizens are not discriminated against by
foreign authorities or courts Consuls can-
not. however, recommend, or act as, an
attorney, representative or agent for the
adoptive parents nor can the consul locate
children available for adoption Consuls
can, and do, help to make the foreign adop-
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(303) 691 a3691
October/November I 998
tion a pleasant experience and, in fact. the
Bureau of Consular Affairs at the
Department of State places a high priority
on providing assistance to adoptive parents
and the children they adopt
It is significant to note that the United
States participated with more than 60 other
countries in developing a multilateral treaty
on international adoption The United
States signed the treaty, entitled the 1993
Hague Convention on Protection of
Children and Cooperation in Respect of
Inter-Country Adoptions, on March 31,
1994 The United States government is
preparing the necessary documentation,
including proposed implementing legisla-
tion, to seek ratification. In my capacity as a
Director in the Department of State office
previously responsible for adoption assis-
tance and, having actively participated in
the drafting and negotiation process of the
Treaty, I know firsthand that the treaty part-
ners fully intended to establish a framework
and set of norms for international adop-
tions that would help to prevent child
abuse and fraudulent or otherwise irregular
ial
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PPOs
HMOs
Indemnity Plans
•
Estate Planning *
Arnold R. Bradford, JD, LLM (Tax)
Fax: (303) 691 a3688
Trial Talk
adoption practices The Treaty most likely
will expand the role of the government. par-
ticularly the Department of State and the
consular officer. but it will do so in a posi-
tive manner in line with the traditional atti-
tude urged by the Department of State that
foreign adoptions must be handled with
compassion and alacrity
2. Parental Child Abduction and Child
Custody Disputes
One of the most stressful experiences
United States consular officers face in their
official capacity is dealing with a distressed
United States citizen parent who has fallen
victim to a parental child abduction or is
otherwise involved in an international cus-
tody dispute These situations are traumat-
ic enough when they occur in the United
States, but the complexity and trauma are
compounded for the aggrieved parent when
the case crosses international borders
continued on page l 0
ic s,
(800) 827-0719
9
 ~~ • ,~ "-
There's More to C~nsular Work ,,·continued from page 9
• / ~ ~
Consular assistance during these emotional
times can be restricted when the American
parent becomes subject to a foreign judicial
system United States custody orders are
often not recognized abroad. Instead, for-
eign courts will usually exercise jurisdiction
based on the child's presence in the coun-
try Although the situation is, after all, a pri-
vate legal matter, there are several ways a
consul can help The consul can attempt to
locate and ascertain the welfare of the child,
provide general information (short of legal
advice) to the parents about the foreign
judicial system and foreign custody laws,
and offer a list of local English- speaking
attorneys proficient in handling custody
cases. Consuls can also use their "good
offices" to make representation to foreign
officials (not court officers) on behalf of
American citizens Similarly, consuls will
approach the opposing parent (often the
abductor) in an effort to open communica-
tion channels, seek to allow the aggrieved
parent to see the child, monitor the
progress of cases, and even request the vol-
untary return of the child Consuls cannot
take physical custody of a child nor, by any
means, re-abduct or otherwise force the
return of the child
Consuls are frequently involved in the
criminal judicial assistance aspects of a
parental abduction since the normal action
for the left-behind parent is to seek assis-
tance from the local prosecutors. Parental
child abductions are not crimes sanctioned
under Federal statute, however, all the
states of the United States and the District
of Columbia have statutes declaring
parental child abduction a crime and when
an abducting parent flees the jurisdiction, a
Federal magistrate may issue a warrant for
unlawful flight to avoid prosecution pur-
suant to 18 U S C § I 073 Consuls can then
work closely with state, local and federal
officials in the prosecutorial endeavors
Seeking extradition of the abducting parent
(if a pertinent treaty exists between the
United States and the country to which the
abductor flees) is a frequent occurrence,
and if sought, the consul liaises with foreign
officials in the process Please note that
extraditing the parent does not usually gain
the child's return because the child usually
remains with the abducting parent's family
or friends In addition, as a result of Pub L
No. I 04-208, I IO Stat, 3009 (September 30,
I996).INA '2I2(a)(I0)(C);8USC
§II 82(a)( I 0)(C)). an alien parental child
abductor is inadmissible into the United
10
"'--.w,_ ~ -
/ ~
States under certain circumstances
International parental child abduction is
prevalent in marital breakdowns between
citizens of two different countries with
diverse cultural. religious and legal systems
To ameliorate this growing and complex
problem, the United States Government
participated in negotiations of a multilater-
al treaty, the Hague Convention on the Civil
Aspects of International Child Abduction
(done at the Hague on October 29, I 980)
This treaty establishes a legal remedy for
aggrieved parents by providing for the
return of a child who has been wrongfully
removed (or retained) from its place of
habitual residence In order to effect the
treaty, the aggrieved parent must prove that
he/she exercised custodial rights over the
child prior to the wrongful removal or
wrongful retention. The treaty also provides
for the enforcement of the right of visita-
tion It is important to note, however, that
the Hague Treaty is not a vehicle for deter-
mining custody; it merely establishes juris-
diction by recognizing the country of the
child's habitual residence and providing for
the return of the child to the status quo
prior to the parental abduction The United
States became a party to the Hague
Convention on July I, I 988 and passed
implementing legislation, entitled the
International Child Abduction Remedies
Act (ICARA) 4 Presently 48 countries are
Convention parties When I was the
Director of Citizens Consular Services in the
Department of State, I was also the Director
of the United States Central Authority for
the Convention Needless to say, having
experienced child custody and parental kid-
naping cases at a pace of almost I ,000 a
year in our office, the treaty was a welcome
relief Although it is not without its prob-
lems, it does offer an effective legal remedy
to aggrieved parents
3. Child Support Enforcement
While a consular officer has no direct role
in the area of child support enforcement,
the consul can provide an aggrieved parent
with information on local laws and a list of
appropriate attorneys. There is no treaty in
effect between the United States and any
foreign country pertaining to child support
enforcement. however, there is a concen-
trated effort at the Department of State to
negotiate agreements on this subject with
foreign states Currently, most foreign
countries will consider enforcing support
orders from states in the United States on
Trial Talk
~-~\ - •
;;: '" " t -~ =
the basis of comity and reciprocity All
states in the United States and the District
of Columbia have enacted the Revised
Uniform Reciprocal Enforcement of Support
Act (RURESA) 5 This Act permits states to
enforce the support decrees of other states
or foreign countries as if they were local
decrees, provided the requesting jurisdic-
tion has enacted "a substantially similar
reciprocal law" It is RURESA that forms the
basis for the recognition by many foreign
countries of support orders from the United
States Some states, in fact. have made
informal arrangements on their own with
individual foreign countries for recognition
and enforcement of each other's support
orders Each state's child support enforce-
ment office has information regarding for
which, if any, countries there exists a recip-
rocal arrangement with that state The
Department's Overseas Citizens Services
also has information regarding these recip-
rocal arrangements. Absent any reciprocal
agreements, aggrieved parents must pro-
ceed through the foreign country's courts
for recognition of their support judgments
This may require retaining a foreign attor-
ney or using the letter rogatory procedure
(see Judicial Assistance below)
4. Child Abuse and Neglect
Child abuse is one of those subjects you
do not like to mention when discussing a
consul's role. But unfortunately it does
happen and when there is evidence of child
abuse or child neglect, a consular officer is
required to take immediate action. All con-
suls are trained to be vigilant to any indica-
tion of child abuse in which a United States
citizen child or United States citizen parent
may be involved Every possible abuse or
neglect case, even if it is only alleged, needs
to be investigated immediately either by the
consul or, at the consul's request. by local
social welfare authorities The consul can-
not take physical custody of an abused child
(except in extreme circumstances) but can
and should see that the child is removed
from harm's way at once and that subse-
quent action is taken to ensure the child's
future well-being The Department of State
takes very seriously its responsibility to pro-
tect children who fall within its jurisdiction
C. CONSULAR REPORTS OF BIRTH
A Consular Report of Birth Abroad of a
Citizen of the United States of America of is
a document that certifies the acquisition at
birth of United States citizenship for a child
October/November 1998
(under age 18) born abroad While it is not
a birth certificate, but a citizenship docu-
ment, the Consular Report of Birth is often
accepted as both citizenship and birth evi-
dence by schools, government entities, and
other organizations lt is issued by a con-
sul, upon application by a parent, to any
child who acquires citizenship by birth
abroad Generally speaking, a child
acquires United States citizenship by birth
abroad to a United States citizen parent
who had been physically present in the
United States prior to the child's birth for a
certain period of time depending on the law
in effect at the time of the child's birth
Either parent, citizen or alien, can apply for
the document by completing a form
(FS-579/SS-5) available at the consular
office, paying the fee (currently $40) and
presenting the same evidence as that need-
ed for a passport. The Consular Report of
Birth is a bargain in the sense that a person
applying for a Consular Report of Birth does
not have to pay the$ l 00 adjudication fee
for a first-time citizenship determination
that a passport applicant would have to
pay Moreover, the Report of Birth applica-
tion is combined with the application for a
Social Security number card This offers
one-stop shopping for the parent of a new-
born child For an older child who already
has a Social Security number, the Report of
Birth application can be separated and used
alone. A personal appearance by the apply-
ing parent is required and the application
must be executed outside the United
States, although not necessarily in the
country of birth The Consular Report of
Birth is, by law, full proof of United States
citizenship equivalent to the !NS
Citizenship Certificate 6 Therefore if a child
is issued a Consular Report of Birth, there is
no need to apply for a Certificate of
Citizenship (which is a more expensive and
time- consuming document to obtain in any
event)
D. DEATHS
About 6,000 Americans die overseas
every year Whether the deceased was a
long- time foreign resident, a business trav-
eler or a vacationer, a consular officer has a
role Consular officers are responsible for
reporting to the Department of State, to the
legal representative and to the closest
known relative the death of any non-military
United States citizen who dies within their
consular district If the death is under mys-
terious circumstances, the consul will fol-
October/November 1998
low the local investigation After notifying
the deceased's family of the death, (usually
done by telephone) the consular officer's
involvement varies depending on the wish-
es of the next of kin. If there is no family or
legal representative abroad to take charge
of things, the consul can act on the family's
behalf in arranging for a local burial or for
preparation and shipment of the remains to
the United States Unfortunately, while
there are no consular fees prescribed for
services in connection with the disposition
of an American's remains, other than those
required to send funds through the OCS
Trusts system (see Financial Assistance
below), the services by commercial estab-
lishments required for preparation and
shipment of remains can be very expensive
Consular sections have done surveys of
local mortuaries and can provide average
costs for these services to families The
About 6,000 Americans die
overseas every year.
costs and other details regarding disposi-
tion of remains will be put in writing by the
consul and faxed to the family or legal rep-
resentative soon after the notification The
family may then send the necessary funds
along with their instructions to the consul
who will take care of all the paperwork nec-
essary for preparation and shipment of
remains including obtaining a local death
certificate. The consul will also issue and
send to the family, at no cost, 6 copies (or
more if needed) of a Report of Death of An
American Citizen Abroad based on the local
death certificate A Consular Report of
Death is very useful for obtaining insurance,
pension, and other benefits and is accept-
able in any court of law in the United
States
Trial Talk
E. ESTATES
When a United States citizen dies abroad
and there is no legal representative present
in the country to take charge of the estate, a
consular officer becomes the Provisional
Conservator of the decedent's personal
effects The consular officer will take physi-
cal possession of the decedent's convertible
assets, luggage, wearing apparel, jewelry,
articles of sentimental value, non-nego-
tiable instruments, personal documents,
and other miscellaneous effects Without
express permission, the consular officer has
no authority to withdraw funds from bank
accounts in foreign countries or to obtain
the face value of travelers checks. Large
items like vehicles are not taken into actual
possession but steps are taken to ensure
that these effects are adequately safeguard-
ed until arrangements can be made with the
legal representative for their disposition
The consular officer, as Provisional
Conservator, will inventory and appraise the
personal effects, pay local debts such as
hospital and hotel bills from funds available
in the estate or from funds received from
the legal representative, and deliver the
effects to the person who is entitled to
receive them Documentation establishing
entitlement to receive the effects varies
depending on the value of the estate and
whether there is a disagreement among the
claimants Documentation can range from
an affidavit of the next of kin, to Letters
Testamentary or Letters of Administration
issued by a probate court The consul will
advise what is needed
continued on page 12
11
F. FEDERAL BENEFITS AND OTHER vided such services via the United States Routine consular duties range from distrib-
FEDERAL AGENCY SERVICES consul The major agencies represented uting monthly benefit checks. to arranging
This section covers the administration of overseas are the Social Security for the delivery of one-time or miscella-
federal benefits to beneficiaries residing Administration, the Department of Veterans neous payments such as income tax
abroad and other overseas federal agency Affairs, the Office of Personnel refunds for the Treasury Department when
services for American citizens Management. and the Railroad Retirement direct deposit or direct mailing from the
While outside the United States, Board The United States consul will pro- United States is not possible
American citizens and certain aliens enti- vide assistance in such areas as benefits Other agency assistance includes provid-
tled to benefits and services of United claims, Social Security applications, fraud ing tax forms for the Internal Revenue
States Federal agencies, are generally pro- investigations and overall customer service Service (IRS has at present 8 offices abroad
at Foreign Service posts), Selective Service
registration, counterfeit investigation aid for
Secret Service and, in partnership with the
Department of Defense, pursuant to the
Colorado Court of Appeals Uniformed and Overseas Citizens Absentee
Voting Act of I 986,i assisting United States
Validates Use of Motion X-ray citizens in exercising their right to vote in
United States elections The range of ser-
in Whiplash Cases1 vices in this area includes publicizing elec-
tions, aiding in voter registration, obtaining
• Finally, the objective evidence you need to absentee ballots, and expediting delivery of
validate or rule out ligamentous (soft tissue) injury. ballot materials The consul is there to pre-
"Another tool used by radiologists to show vent the disenfranchisement of Americans
changes in vertebrae alignment is abroad desirous of casting their vote
The United States federal benefits agen-
videofluoroscopy. This is a moving X-ray, cies have over I 5 million beneficiaries over-
performed while the patient goes through the seas receiving over I 7 billion dollars in pay-
extension and flexion movements. A videotape ments annually SSA has 32 claims-taking
of this sequence serves as an excellent teaching posts in consular sections worldwide The
device at trial." 2 VA has an extensive regional office in
Manila, Philippines. All American citizens
• Studies interpreted by independent radiologist. and certain eligible aliens are assured of
• Three minute motion X-ray exam produces less benefits payments if they are entitled to
radiation than 7-View Davis Series.3 such while residing abroad It would be
wise to consider your client's eligibility for
• Mobile diagnostic lab serving all of Colorado and federal benefits in connection with other
Southern Wyoming. aspects of the individual's case
• Main diagnostic center located in Denver. G. FINANCIALASSISTANCE
• FOR INFORMATION TO MAKE A REFERRAL Consular officers have 3 financial assis-
CALL: tance programs available to American citi-
zens for use in obtaining urgently needed
medical care, transportation, food, and
303-745-6495 888-294-0750 shelter
Metro Denver
~
Toll Free
I. Repatriation Loans
Joint Motion Diagnostics, ac The Repatriation Loan Program is

~
designed to assist destitute United States
citizens When a destitute United States
citizen's family or friends are unable to
L 21 Colorado Journal 545 (Colo, App. 1977) No. 95CA 1662 Khanh Tran,
assist financially, consular officers can pro-
Plantiff-Appellee v. Juanita Hilburn, Defendant-Appellant and Le Van
vide loans to the citizen overseas for tempo-
Than, Defendant April 17, 1997.
rary subsistence and/or for transportation to
2. Mussier, Theodore L. Jr. Proving traumatic cervical syndrome injuries.
the nearest United States port of entry
Trial Journal of the Association of Trial Lawyers of America. February
Often the destitution is the temporary
1997. pp. 40-43.
result of a robbery or lost wallet and the
3. Gordon N. Kenney, M.S. (Board Certified Medical Physicist)
loan will tide the individual or family over
"Comparison of Radiation Doses from Medical X-ray Procedures."
until funds can be wired from home to
Memorandum to Joint Motion Diagnostics, LLC. March 20, 1998.
enable them to proceed with their travels

12 Trial Talk October/November 1998

Many times, however, the loans are used to
purchase transportation tickets for return to
the United States. Funds are not available
for long term financial needs and are not
available for reasons unrelated to destitu-
tion. The loan recipient is required to sign a
promissory note at the time of the loan and
the debtor's passport is restricted until the
loan is repaid If necessary, the Department
of State is permitted by law to contract with
private collection firms for the recovery of
outstanding debts and to advise the IRS to
divert any loan recipient's tax refund to the
Department for repayment
2. The Overseas Citizens Services
(OCS) Trust Transfer Program
The OCS/frust is a very popular system
for Americans overseas. Under this system
the Department of State's telegraphic com-
munications network is used to transfer
funds from a depositor in the United States
to a foreign service post abroad for distribu-
tion to, or on behalf of, a United States citi-
zen. Trust transfers may be used for United
States citizens in connection with personal
financial emergencies, incarceration, or
shipment of remains or estates to the
United States A person who wishes to use
the OCS Trust system to transfer funds to
an individual overseas needs to deposit the
required amount (plus a$ I 5 00 Department
of State service charge) in the Department
of State's Trust Fund account located in the
Directorate of Overseas Citizen Services,
Bureau of Consular Affairs. The depositor
may deliver the funds to the Department by
several means: in person, Western Union,
bank transfer to the Department of State
branch of Nations Bank or special delivery
Once the funds are received at the
Department, a cable is sent to the embassy
or consulate nearest the intended recipient
authorizing the funds to be released to the
subject
3, Emergency Medical and Dietary
Assistance Program (EMDA)
The EMDA programs are divided into
funds for incarcerated and non- incarcerat-
ed Americans abroad The programs pro-
vide funds for emergency medical assis-
tance, short-term dietary feeding, and tem-
porary assistance loans. All loan recipients
sign a promissory note and their passports
are limited to help ensure repayment
October/November I 998
H. JUDICIAL ASSISTANCE
judicial assistance is one consular func-
tion that requires timely response and care-
ful attention to detail judicial assistance
may involve litigation, evidence gathering,
investigation, and legal discovery on behalf
of parties or courts in the United States or
in the host country In providing judicial
assistance, consuls may be asked to take
depositions, serve process, or transmit let-
ters rogatory. They may also be asked to
schedule interpreters, translators, stenogra-
phers, video equipment, conference room
time and other necessities Consuls can
assist in all these areas, with certain limita-
tions. The range of material on this subject
and the precepts governing it are practically
endless. In fact each topic listed here could
be the subject of a separate article
Therefore, I have only touched upon and
highlighted certain aspects to whet your
appetite
I. Depositions
A consular officer is authorized to assist
attorneys or courts in the United States in
obtaining testimony of persons in their con-
sular district For a pre-paid hourly fee,
(and barring prohibition by local law), a
consul may take the testimony, in a civil or
criminal case, of a voluntary witness; a con-
sul has no means of compelling a witness
to testify The deposition may be taken by
commission or on notice. The consular offi-
cer will proceed on the basis of written
instructions from the court or the attorney
and is bound to follow these instructions as
long as there are no conflicts with local law
A deposition may be taken before the con-
sular officer in the form of written or oral
interrogatories. Arrangements can also be
made for telephone, video taped or telecon-
ference depositions if facilities are available
and local law permits. The consul will
ensure that the entire proceedings are
recorded properly and will take the oaths of
the witness, the legal stenographer, and (if
necessary) the translator If a witness has
to be compelled, an attorney has several
alternatives He or she may use the Hague
Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters if the
country where the witness is located is a
party to that Convention and the case is
civil or administrative in nature (There are
also Mutual Legal Assistance Treaties
between the United States and some coun-
tries for assistance in criminal cases) If the
country is not a party to a pertinent treaty,
Trial Talk
attorneys are usually required to use the
often cumbersome and time-consuming let-
ters rogatory approach. Sometimes you can
get around this method by hiring local
counsel (the Embassy or consulate has
lists) Consuls are usually not involved
when the Hague Convention is used but do
receive and transmit letters rogatory to and
from courts in the United States when that
process is used
2. Service of Process
Consular officers are generally prohibited
from serving legal papers on behalf of pri-
vate litigants or appointing other people to
do so. There are exceptions to this rule, for
instance, in criminal cases involving legal
process issued by federal courts when the
testimony of an American citizen or perma-
nent resident alien is necessary in the inter-
est of justice and that person is outside the
United States. Consuls can and do, howev-
er, advise how process can be served in
their host country. The procedures may be
as simple as registered mail or as tedious
as letters rogatory If the letter rogatory
method must be used, the consul becomes
the middleman again, receiving and trans-
mitting the documents from the United
States to the foreign authority Consuls can
also provide lists of local attorneys and
process servers or other agents when the
local law allows for service by private party
In addition, when directed by the
Department of State and pursuant to 28
USC §1608 (a)(4) after a showing that
other service avenues have been exhausted,
a consul may serve process upon a foreign
state in accordance with the Foreign
Sovereign Immunities Act of I 976 8
3. Enforcement of Judgments
There is no treaty in force between the
United States and any foreign country for
the recognition and enforcement of judg-
ments. Therefore, while a judgment ren-
dered in one jurisdiction will sometimes be
recognized in another based on comity and
reciprocity, it is often necessary to re-liti-
gate a case in the jurisdiction where it is to
be enforced The consul's role in this is
usually relegated to providing a list of local
attorneys and any information known about
local laws on the subject of the judgment
enforcement
continued on page 14
13
 M~r~ ~-o Constda~ -~~~~- ..-_continued from page 13
There's
- • , •J ~- ~ "
I. LOSS OF NATIONALITY AND
ISSUANCE OF CERTIFICATES OF LOSS
OF NATIONALITY
Pursuant to Section 358 of the
Immigration and Nationality Act of I 952, as
amended, 9 if a United States consular offi-
cer (or diplomatic officer) believes that a
United States citizen, while residing in a for-
eign state has lost United States citizenship
according to any pertinent provision of the
I NA, or the Nationality Act of 1940, as
amended, the consular officer shall certify
in writing to the Secretary of State, the
underlying facts It is also the consular offi-
cer (or diplomatic officer) who administers
the formal oath of renunciation of United
States citizenship under Sections 349(a)(5)
of the INA 10
The consul's certification, entitled
Certificate of Loss of Nationality of the
United States (Department of State form
FS-348), once executed at post, is forwarded
to the Department of State's Overseas
Citizens Services along with necessary sup-
porting documentation for adjudication and
approval If the Certificate is approved, the
Department sends the consul the ex-citi-
zen's copy for delivery Certificates of Loss
are approved only by the Department of
State, and it is the consul who must prepare
the document
J. MEDICAL ASSISTANCE
Americans who become physically or
mentally ill abroad can receive assistance
from consular officers in several ways
When a consular officer becomes aware of a
seriously injured or ill American, the officer
advises the Department's Overseas Citizens
Services Directorate (OCS) OCS officers
can locate family members, guardians,
friends or physicians of the ill citizen and
advise them of the problem. The consul
can relay information on the citizen's condi-
tion, collect and pass information on the
citizen's medical history and, if necessary,
arrange for the return of the citizen to the
United States with appropriate medical
escort at the expense of the citizen (or inter-
ested party)
K. WELFARE AND WHEREABOUTS
Consular officers are often called upon to
find missing Americans who have failed to
communicate with family members or
friends for an undue length of time or to
pass emergency messages to an American
whom the inquirer cannot locate The citi-
zenship of the inquirer does not matter but
14
~ % " -
the missing person must be a United States
citizen and there needs to be some com-
pelling need for the citizen to be located
Consuls often have developed good rela-
tionships with local police and immigration
officials and can enlist their help in locating
missing Americans In addition, consular
officers can check with airlines, hospitals,
hotels or hostels, schools and local
American hang-outs In some cases, con-
suls have even entered newspaper notices
Keep in mind that when the missing person
is located, the Privacy Act must be
observed The Privacy Act requires that
United States citizens over the age of 18
give oral or written permission for release of
information about them to third parties If
the person is not located, that information
can be shared with the inquirer There are
exceptions to the Privacy Act in health or
life-threatening situations
L. NOTARIALS
The consular notarial function overseas is
similar to that of a notary public in the
United States in that consular officers exe-
cute oaths, affidavits and acknowledgments
and may function only within the geograph-
ic area in which they are assigned Unlike
United States notaries, however, consular
officers can authenticate documents of a
foreign authority whose seal and signature
are on file with the consular office
Countries that are party to the Hague
Convention Abolishing the Requirement for
Legalization of Foreign Public Documents
have designated ACentral Authorities@ to
authenticate their documents and consuls
may not authenticate documents from
those countries. Consuls may perform
notarial services for aliens as well as United
States citizens as long as the documents to
be notarized are for use within the jurisdic-
tion of the United States. A consul may
also refuse to perform a notarial if there is
reason to believe that the document will be
used for unlawful purposes or purposes not
in the best interests of the United States
The schedule of fees, 22 CF R, Chapter
One, Subchapter C, provides a charge for
most notarial services (currently about
$55 00) A consul may not serve as a wit-
ness or a translator for a document
Consuls have preformatted notarial forms
they can use but generally will accept any
format provided by the requestor
Trial Talk
~ ·:
0 1
- - . . · ·. :· . -
_, "'"" - - '"" " J... - " - -: ~ = - ,,;:
M. PROPERTY PROTECTION
For a consular officer, the category of
property protection can cover anything from
the loss or theft of a personal item such as
a wallet or a piece of jewelry to the expro-
priation of land by a foreign government
Also included under this heading are for-
eign exchange and trade matters, confisca-
tion of property by customs officials or for-
eign authorities, tourist trade complaints,
claims arising from automobile accidents,
taxation problems and pension disputes
Many of these cases are considered private
disputes in which the consular officer's abil-
ity to assist is limited For example, the
consular section may be requested to han-
dle a complaint from an American firm
against a private individual in a foreign
country Consular officers are prohibited by
Federal Regulation from acting as agents,
attorneys or in a fiduciary capacity on behalf
of United States citizens in private disputes
Nevertheless, the consulate's "good offices"
can be used to expedite the settlement of a
matter and verify facts pertaining to a case
More often than not, a letter or telephone
call from the American Embassy or
Consulate is all that is needed to resolve a
dispute If that does not work, the citizen
must usually resort to retaining a local
attorney A consul may become more
involved in a case if there is clear evidence
that a United States citizen is being discrim-
inated against on the basis of his or her
United States citizenship While rare, this
does sometimes occur, especially in cases
of confiscation or nationalization of proper-
ty In such situations, a consul may make
an official representation to the host gov-
ernment on the citizen's behalf
N. SHIPPING AND SEAMEN
Lastly, the oldest of services for which a
consul is responsible is the statutory man-
date for the protection of the interests of
American seamen, vessels and shipping
firms abroad Some of these services are
archaic and most are on the wane. Still, as
they have since the birth of our nation, con-
suls help seamen join, rejoin and leave ves-
sels abroad as it is the consul's job to sign
seamen off and on vessels, investigate mis-
treatment, and officiate disputes between
ship's masters and crew Consuls also
mediate between ship captains and local
host country officials With regard to ships,
consuls certify or renew safety and other
certificates required by international agree-
ments or federal legislation They also pro-
October/November I 998
vide required documentation for vessels Affairs and the Consular Officers at posts functional areas: the issuance of visas to
built or purchased abroad proceeding to the abroad This listing is excerpted from the aliens seeking to enter the United States;
United States. And, consuls facilitate ves- Bureau of Consular Affairs listing citizenship adjudication and passport
sels' operations by aiding with the compli- While the list is not all-inclusive, it con- issuance; and the provision of consular ser-
ance of local regulations tains the majority of precepts affecting the vices and judicial assistance to U.S citizens
responsibilities of consular officers in per- and to other federal agencies
forming services for American citizens
V. CONCLUSION abroad
Consular work is far-reaching As immi- The Bureau of Consular Affairs has broad continued on page 16
gration and nationality practitioners, you responsibilities that fall generally into three
may only see the United States consul as
the person who grants (or denies) visas or
passports to your clients Many people do
not realize the consul is also a major partic-
ipant in overseas business and commercial
matters, international legal proceedings
and the everyday personal lives of
Americans traveling and residing abroad
Rarely a day goes by that a front-page news-
paper story does not involve an event over-
seas where a consul played a significant
role United States consular officers'
Our ability to communicate highly
responsibilities and functions continue to
expand For example, the United States technical information in a friendly,
may ratify a multilateral convention relating
to the registration of wills to enable United understandable way sets us apart.
States citizens around the globe to execute We apply our expertise, along with
a will and have it recorded no matter where
they reside Moreover, the Department of our extensive experience in business,
State is rapidly moving to seek ratification bankruptcy and family law, to all
of the multilateral Hague Convention of
International Adoptions which will allow for facets of civil litigation, from
a more structured process of adopting for- discovery and due diligence to
eign-born children, thereby inhibiting
"child- selling" Consuls will be there to ful- depositions and expert testimony.
fill the United States· treaty obligations
Whether it is visiting an American in prison
or officiating over a deposition in multina-
tional litigation, the United States consul For more information call:
will be there Melinda Harper,CPA,ABV,CFE
In sum, consular assistance is available
to every American. You would be wise to Mitch Hoffman,CPA,ABV
think about how it can help you in your law
practice or your personal life and take
advantage of it As a former Office Director
in the Bureau of Consular Affairs (from 1980
to 1997) I was intimately involved with each
and every facet of consular operations relat-
ing to the services outlined in this article I SKB BUSINESS SERVICES, INC.
(former!\' Shenkin 1'11rt= Baker & Co. Pc J
therefore can testify to the superb worth of
the United States consular officer 6530 South Yosemite Street
Englewood, CO 80111-5128
EXHIBIT 303. 796.2600
As stated in the article, "There's More to
Consular Work than Issuing Visas and A CENTURY BUSINESS SERVICES COMPANY
Passports," below is a listing of various pre-
cepts which govern and authorize the
responsibilities of the United States
Department of State, Bureau of Consular

October/November 1998 Trial Talk 15

I. LEGISLATION
ESTABLISHING THE
BUREAU OF CONSULAR
AFFAIRS
Section l 04 of the Immigration and
Nationality Act, as amended (l NA), 8
USC § l l 04, provides for the establish-
ment of the Bureau of Consular Affairs, to
be headed by an Assistant Secretary of
State for Consular Affairs
Section 104 further provides in subsec-
tion (cl for a Passport Office and a Visa
Office within the Bureau of Consular Affairs
Section l 04 also sets forth the duties of the
Secretary of State with respect to the
administration and enforcement of the
IN.A and all other immigration laws relat-
ing to the issuance or refusal of visas The
Secretary is authorized to delegate to the
Assistant Secretary any or all of his/her
duties under the IN A, and such other
duties as the Secretary may prescribe
II. SERVICE FOR
AMERICANS TRAVELING
AND RESIDING ABROAD
A. GENERAL CONSULAR AUTHORITY
The Vienna Convention on Consular
Relations, 21 UST 77, and Optional
Protocol, 21 U ST 325, establish the basis
for consular authorities, functions, and
responsibilities in signatory countries. The
United States also is a party to a number of
bilateral consular conventions and bilateral
conventions on amity, commerce, and navi-
gation that further define consular authori-
ties Many of the basic consular functions
are set forth in Subchapter XlV of Chapter
52ofTitle22(22USC '§§4191-4226)
B. PROTECTION OF AMERICANS
ABROAD
The consular responsibility to protect
Americans abroad derives from basic princi-
ples of international law, reflected in the
Vienna Consular Convention, but is also
reflected in various statutes. These activi-
ties include prison visits, welfare and
whereabouts inquiries, emergency medical
assistance, and evacuations. The Consular
Bureau also assists U S citizens adopting
foreign children
22 U.S C § l 73 l specifically provides for
naturalized US citizens abroad to receive
the same protection as other U S citizens
22 U. SC § l 732 requires the President to
demand the release of American citizens
16
unjustly deprived of liberty by or under the
authority of any foreign government
Section 43 of the State Department Basic
Authorities Act, 22 U.SC §2715, requires
the Secretary to provide prompt notification
to next-of-kin of persons a major disaster or
incident abroad that affects the health and
safety of U.S citizens, and to provide other
services and assistance
The Aviation Security Improvement Act of
1990, Pub. L No l0l-604, mandates a
series of responsibilities pertaining to the
treatment of victims and their families fol-
lowing an aviation disaster abroad
Consular officers and the Consular
Bureau assist in the evacuation of U.S citi-
zens overseas when their lives are endan-
gered by war, civil unrest, or natural disas-
ter The Secretary is authorized to provide
for such evacuations by Section 4 of the
State Department Basic Authorities Act, 22
USC §2671, and is further required to
develop programs and policies to provide
for evacuations by Section 103 of the
Omnibus Diplomatic Security and
Antiterrorism Act of l 986, 22 USC §4802
C. CHILD CUSTODY
Consular authority for action in child cus-
tody cases is derived from the general con-
sular authority to protect Americans
abroad ln addition, the Consular Bureau is
the Central Authority for the United States
under the Hague Convention on the Civil
Aspects of International Child Abduction,
Final Act, 14th Session of the Hague
Conference ( l 980), done at The Hague,
October 25, 1980, 19 LL M. 1501 ( 1980),
entered into force December l, 1983; for the
US July l, l 988) The implementing legis-
lation is found under the International
Child Abduction Remedies Act, (!CARA),
Pub L No. 100-300, 102 Stat 437, 42 USC
§§11601-160
D. DEATHS
22 U.S C §4 l 96 requires consular officers
to notify the Secretary of State of the deaths
of Americans abroad This entails the
preparation of a death notification telegram
and a Foreign Service Report of Death
Section 43 of the State Department Basic
Authorities Act, 22 USC §2715, authorizes
the Secretary to act as liaison with U.S. air
carriers concerning arrangements for the
return of the remains of US. citizens who
die abroad
Trial Talk
E. ESTATES AND PROPERTY
PROTECTION
Consular officers have responsibility for
the disposition of estates of U S citizens
who die overseas The estate and property
function is governed by 22 U SC
§§4 l 95-4 l 97; 46 USC §§621-622, 624; 22
CF R §85 (estates of seamen); 22 USC
§4 l 96 (transmitting inventory of effects);
and 46 USC §72 l (accepting property of
U S citizens when taking jurisdiction over a
U S disaster at sea)
F. FEDERAL AGENCY AND BENEFITS
SERVICES
The Bureau of Consular Affairs provides
assistance in the administration and distri-
bution of benefits, including social security
benefits, to overseas federal beneficiaries
This consular authority is derived from 22
U.S C §2904 and other statutes, including
42 U S.C §402 The Bureau also assists in
Selective Service registration abroad under
50 USC App 453
42 U SC §433 authorizes the completion
of bilateral Social Security Totalization
agreements, under which social insurance
credits earned by a worker in two or more
countries are combined for consideration in
each country to determine if the worker
meets that country's requirements for bene-
fits The Consular Bureau coordinates the
negotiation of such agreements and
processes applications under the agree-
ments
G. OVERSEAS ABSENTEE VOTING
Consular officers are responsible for
assisting overseas citizens to register and
vote by absentee ballot under 42 USC
§19 73, et seq
H. EMERGENCY MEDICAL/DIETARY
ASSISTANCE
Section 3( i) of the State Department
Basic Authorities Act, 22 U.S C §2670,
authorizes the provision of emergency med-
ical/dietary assistance to Americans abroad
I. EMERGENCY REPATRIATIONS
Section 4(b)(2)(B) of the State
Department Basic Authorities Act, 22 USC
§267l(b)(2)(B), permits expenditures for
certain specified activities, including loans
made to destitute citizens who are outside
the United States under certain conditions
Section 4( di addresses the collection of
repatriation loans, which are subject to the
Federal Credit Reform Act of l 990, 3l USC
October/November 1998
§§37! l, 3717, and 3718
24 USC §§321-329 authorizes HHS to
arrange for the reception and hospitaliza-
tion of US citizens with mental illness
returning to the United States 42 U.S.C
§ 1313 authorizes HHS to receive destitute
US citizens at ports of entry at the request
of the Department of State
J. INTERNATIONAL JUDICIAL
ASSISTANCE AND NOTARIAL SERVICES
The Consular Bureau and consular offi-
cers perform a variety of functions related to
international judicial assistance to both pri-
vate citizens and other federal agencies
Assistance to other agencies supports a
broad range of US policies related to nar-
cotics interdiction and prosecution ofter-
rorists, insider traders, money launderers,
and other white-collar criminals
22 U.S C §4215 provides authority for
consular officers to take or administer
oaths, affirmations, affidavits, depositions,
or perform any other notarial acts normally
performed by a notary public in the United
States 22 U SC §422 l provides for recog-
nition of notarial acts performed by con-
sular officers and addresses issues of per-
jury, as does 28 USC §1746 (Federal
Affirmation Statute B penalty of perjury)
The authority of consular officers in this
area is also recognized by the Federal Rules
of Civil Procedure (Rules 28(a), 31-37, and
44(a)(2)): the Federal Rules of Evidence
(Rules 803, 901(3), and 1005); the Federal
Rules of Criminal Procedure (Rules 15 and
27): and the Federal Rules of the US Court
of Claims (Rule 89)
Further authority with respect to judicial
functions by consular officers is provided by
some of the general statutes pertaining to
the federal judiciary, including 28 USC
§ 1608 (service on a foreign government); 8
USC §I 696 (service in foreign or interna-
tional litigation): 28 USC § 1781 (transmit-
tal of letters rogatory); and 28 USC §I 782
(assistance to foreign tribunals)
The United States is a party to a number
of multilateral conventions which enhance
our ability to obtain international judicial
assistance, and as to which the Consular
Bureau provides assistance These include:
• The Hague Convention on the
Service Abroad of judicial and Extrajudicial
Documents in Civil or Commercial Matters;
20 UST 361, T.I AS. No. 6638, 658 U NTS
163
• The Hague Convention on the
Taking of Evidence Abroad in Civil or
October/November I 998
Commercial Matters; 23 U S.T 2555, TJA S
No. 7444, 847 UN T.S. 23 l
• The Hague Convention Abolishing
the Requirement of Legalization for Foreign
Public Documents; TlAS. No 10072, 527
U.N TS, 189
K. SHIPPING AND SEAMEN
Consular officers provide various services
to U S. vessels and seamen Governing
statutory authorities are 22 USC
§§4205-4207, 22 USC §4193, 22 USC
§4194 and 46 U S C § l , et seq
L. PRISONER TRANSFER TREATIES
The Consular Bureau plays a role in the
transfer of prisoners between countries,
although primary responsibility lies with the
Department of justice Such activities are
governed by 18 USC §§4 l 00-4115, under
which prisoner transfers may occur only if a
prisoner transfer treaty is in place The
United States is a party to a number of pris-
oner transfer treaties, including the Council
of Europe Convention on the Transfer of
Sentenced persons and bilateral treaties
with Mexico, Canada, Panama, France,
Turkey, Peru, Bolivia, and Thailand
M. OTHER INTERNATIONAL
AGREEMENTS
Other treaties in force for the United
States relate to consular issues. These
include:
• The U.S./Mexico Convention for
the Recovery and Return of Stolen and
Embezzled Vehicles and Aircraft, TI AS
10653;
• The U S/Micronesia/Marshall
Island Compacts of Free Association, Pub
L No 99-239, establishing a relationship of
free association between the United States
and the former trust territories, under which
U S consular officers are obligated to pro-
vide consular services to citizens of the
freely associated states on the same basis
as U S citizens;
• The U S./Belgium Agreement on
Third Country Protection of U S Interests in
Libya of August I 2, I 982, the
U.S./Switzerland Agreement on Third
Country Protection of U S Interests in Iran
of June 12, I 980, and the US/Poland
Agreement of Third Country Protection of
US interests in Iraq of May 31, I 991, which
form the basis for a protecting power to rep-
resent the interests of the United States in
countries with which we have severed diplo-
matic relations
Trial Talk
N. TRAVEL INFORMATION
The Department, through the Consular
Bureau, issues travel information as part of
its general responsibility for the protection
of US citizens abroad This is a discre-
tionary function not mandated by statute,
but several statutes circumscribe the
Department's performance of this function:
• Section 505 of the Omnibus
Diplomatic Security and Antiterrorism Act
of 1986 requires the Secretary to notify
Congress whenever the Department issues
a travel advisory because of a terrorist
threat or other security concern Section 908
requires the Secretary to issue a travel advi-
sory when notified by the Secretary of
Transportation that a foreign port does not
maintain effective security measures
• Section 32 l (f) of the Aviation
Security Improvement Act of ! 990, Pub L
No IO 1-604, prohibits the notification of a
civil aviation threat to "only selective poten-
tial travelers unless such threat applies only
to them"
0, CITIZENSHIP
I.NA §§358-360,8U.SC §§1501-1503,
give the Department of State responsibility
for determining whether an individual out-
side the United States is a US citizen, and
whether a US citizen outside the United
States has relinquished citizenship by per-
forming one of several statutorily estab-
lished expatriating acts. Consular officers
are responsible for issuing reports of birth
and death of U S citizens abroad, and for
submitting reports on possible loss of
nationality to the Consular Bureau, which is
responsible for issuing Certificates of Loss
of Nationality
Citizenship itself is established by the
Fourteenth Amendment to the Constitution
(for persons born in the United States) and
by nationality laws as in effect at the time of
an individual's birth Current requirements
for acquisition of nationality other than by
birth in the United States are set forth in
Title Ill of the I NA
P. REGULATION
The Department's regulations pertaining
to citizens services are in 22 C FR Parts 71
through 94 Regulations for the hostage
relief program are found at 22 C F R Part
193
continued on page 18
17
 The Department's regulations relating to
nationality determinations are at 22 CFR
Part 50. Those relating to passports are at
22 C.FR Part 5 l Those relating to entering
and leaving the United States with a valid
U..S passport are at 22 CFR. Part 53
j New Member Service!
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ENDNOTES
Excerpt from a Department of State cir-
cular instruction dated August 8, l 815
2 5 USC §552a
3 Any attorney licensed to practice in a
foreign country can request to be listed
on the embassy or consulate's list of
Ill We're building the world's largest
attorneys for that country by writing to
the chief of the consular section of that
post or to the Managing Director,
Overseas Citizens Services, Bureau of
Consular Affairs, Department of State,
Washington, DC 20520
4 Pub L No. l 00-300 (April 29, 1988)
Department of State regulations are at
22 C FR. Part 94 and the text of the
Convention is available at 5 l Fed Reg
l 0503 ( l 986)
5 9AU.L.A Supp.86(1981)
6 22 U SC §2705
7 42 U SC § 1973 et seq
8 Pub L. No 94-583, 90 Stat 2891
9 8 USC §l 501

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18 Trial Talk October/November 1998

Employer Sanctions
Jacqueline Deandras Bucar, Esq.
Copyright© 1998 by the American Immigration
Lawyers Association Reprinted with permission
of AILS
I. INTRODUCTION
The Immigration Reform and Control Act
of 1986 (!RCA) gave birth to the phenome-
non of employer sanctions !RCA sought to
end unauthorized employment by imposing
penalties on employers who knowingly
hired or continued to employ aliens not
authorized to work in the United States
Employers were, and still are, required to
verify that applicants and employees have
the right to work in this country !RCA also
prohibits discrimination on the basis of
national origin or citizenship 1
Not surprisingly, many employers began
asking for specific documents or requesting
more documents than required This prac-
tice became known as "document abuse"
The Immigration Act of 1990 (IMMACT 90)
sought to address this practice by making
such requests a violation of IRCA's anti-dis-
crimination provision
Recently, the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996
(IIRAIRA) amended some of the provisions
of !RCA by reducing the number of accept-
able documents for 1-9 purposes, providing
employers with the possibility of a good
faith defense and providing some protec-
tion for employers who are part of multi-
employer associations while also broaden-
ing the penalties which can be imposed for
violations of this law
On February 2, 1998, the INS published
its proposed rule to implement these
changes 63 Fed Reg 5287 (Feb 2. 19981
The proposed rule also includes a proposed
new form (l-9Ai allowing for simplification
of the employer's employment reverification
requirements Because the regulatory
process provides a 60-day public comment
October/November 1998
period, this rule does not change the cur-
rent employment verification process After
the public comment period, INS will consid-
er suggested changes when publishing its
final rule, its revised Form 1-9 and
Handbook for Employers Until then,
employers should continue to verify
employment as permitted by current regula-
tion
The general purpose of this article is to
present an overview of employer obliga-
tions and sanctions under !RCA as amend-
ed, including reference to the relevant pro-
visions of the proposed rule
II. EMPLOYMENT
VERIFICATION
Section 274A of the INA, 8 USC§ I 324a,
provides in part that it is:
unlawful for a person or other entity (A)
to hire or to recruit or refer for a fee for
employment in the United States an alien
knowing the alien is an unauthorized alien
with respect to such employment or (B) to
hire for employment in the United States an
individual without complying with the
requirement of subsection (bi
Subsection (b) requires the employer to
attest under penalty of perjury on the 1-9
form that it has examined an employee's
documentation and has verified his/her
ability to work in the United States
Employers (and recruiters and referrers
for a fee) must examine documents and
attest that they appear to be genuine and
relate to the individual Employers may not
specify which document(s) the person must
present To do so would violate §274B of
the Act
The regulations provide for three cate-
gories of documents: I) those that establish
both identity and employment eligibility
(List Al. 2) those that establish identity only
Trial Talk
(List Bi and 3) those that establish work
eligibility only (List C)
IIRAIRA reduced the number of docu-
ments acceptable for 1-9 purposes from
those allowed under !RCA On
September 30, I 997, the INS issued an
interim rule to retain the status quo and
keep many of the documents on the list of
acceptable documents until the issue of
which documents would be acceptable
was determined 2 Accordingly, the pro-
posed rule of February 2, 1998 would
reduce the number of documents from 25
to 13 and effect changes to the employ-
ment verification provisions of IIRAIRA
A. DOCUMENTS ESTABLISHING
BOTH IDENTITY AND EMPLOYMENT
ELIGIBILITY
In an attempt to eliminate fraud,
IIRAIRA reduced the number of permissi-
ble documents Certificates of naturaliza-
tion, certificates of citizenship, re-entry
permits, and refugee travel documents
were dropped from List A
Under the proposed rule, documents
acceptable for List A are
I A United States passport,
2. An alien registration receipt
card or permanent resident
card, Form 1-551,
3 A foreign passport with a tempo-
rary 1-551 stamp,
4 An employment authorization
document issued by the Service
whichcontains a photograph
continued 011 page 20
19
 (Form I-766, Form 1-688, Form I-688A,
or Form 1-688B and
5. In the case of a nonimmigrant
alien authorized to work for a specific
employer, a foreign passportwith Form
1-94 bearing the same name as the
passport and indicating an endorse-
ment of the alien's nonimmigrant sta-
tus, and the name of the approved
employer with whom employment is
authorized as long as the period of
employment has not expired and the
The Service is seeking to remove
seven documents in order to
reduce the apparent current
confusion for employers.
proposed employment is not in con-
flict with any restrictions identified on
the 1-94
B. DOCUMENTS THAT ESTABLISH
IDENTITY ONLY
IIRAIRA did not change List B docu-
ments There are a wide range of accept-
able documents in List B Currently under
INA §274A(bl( I )(0). the following docu-
ments are acceptable for establishing iden-
tity:
l A driver's license or similar identifi-
cation, documents issued by a state
containing a photo or other identifying
information or
2. For individuals under age 16 or in a
state that does not issue an appropri-
ate identification document, documen-
tation of personal identity found by the
Attorney General to be reliable
The Service is seeking to remove seven
documents in order to reduce the apparent
20
current confusion for employers The fol-
lowing are the documents proposed for elim-
ination from List B:
I An identification card issued by fed-
eral or local authorities,
2 A school identification card with
photo,
3 A voter's registration card,
4 A United States military card or
draft record,
5 A military dependent's identifica-
tion card,
6 A United States Coast Guard
Merchant Mariner card,
7. For individuals under age I 8 who
are unable to produce an identity doc-
ument, a school record or report card,
clinic doctor or hospital record or day
care or nursery school record
Thus, the proposed rule would reduce
List B to the following documents:
I A state issued driver's license or
identification card,
2 A Native American Tribal document,
3 In the case of a Canadian nonimmi-
grant authorized to work incident to
status with a specific employer, a
Canadian driver's license or provincial
identification card
Trial Talk
DOCUMENTS WHICH ESTABLISH
EMPLOYMENT AUTHORIZATION ONLY
IIRAIRA removed United States birth cer-
tificates (or other certificates found accept-
able by the Attorney General as establishing
nationality and birth) from List C The
interim rule allowed use of these certificates
until the Service finalized its document
reduction procedure 3
Under §274A(b)( I )(c), acceptable List C
documents are:
I Social Security card (other than one
with no restrictions) or
2 Other documentation found accept-
able by the Attorney General that evi-
dence employment authorization
Under the proposed rule, the Service
seeks to limit List C documents to the
following:
I A social security card (other than
such a card which specifies on the face
that the issuance of the card does not
authorize employment in the United
States).
2 A Native American tribal document
or
3 In the case of a nonimmigrant alien
authorized to work only for a specific
employer, Form 1-94 containing an
endorsement of the alien's nonimmi-
grant status and the name of the
approved employer for whom employ-
ment is authorized provided the period
of endorsement has not yet expired
and the proposed employment does
not conflict with any restrictions identi-
fied on I- 94
The proposed rule aims to eliminate the
following from List C: certification of birth
abroad (Form FS-545 and Form DS-1350); a
birth certificate issued by a state, county,
municipal authority or outlying possession
of the United States bearing an official seal;
United States citizen identification card,
INS Form I- I 92; identification card for use of
resident citizens in the United States Form
1-179 and an unexpired employment autho-
rization document issued by the Service
The rationale for eliminating these docu-
ments is that they do not meet the statutory
requirements to assure that they are not
fraudulent
October/November 1998
D. THE RECEIPT RULE
Currently, individuals may present a
receipt showing they have applied for a
replacement document if the individual is
unable to provide a required document at
the time of hire. The interim rule designat-
ed three instances where receipts were
acceptable and extended the rule to include
reverification Like the interim rule, the pro-
posed rule extends the receipt rule to rever-
ification and identifies when a receipt is
acceptable
The proposed rule permits the use of
receipts as follows:
I Receipt for an application for a
replacement document, 4
2. Temporary l-55 l stamp on a Form l-
94 or
3. Refugee admission stamp on a
Form 1-94.
However, the receipt rule does not apply
where: I) the individual indicates or the
employer (recruiter) has actual or construc-
tive knowledge that the individual is not
authorized to work, or 2) the employment is
for a period of less than three business
days
E. ORIGINAL, UNEXPIRED
DOCUMENTS NOW REQUIRED
In addition to changing the number and
the documents acceptable for the verifica-
tion process, the proposed rule would also
require the employer to check, and the
employee to present, documents which are
both original and unexpired This would apply
to the receipt as well Thus, an expired U.S
passport would no longer satisfy this regu-
lation This requirement was made to help
an employer verify employment eligibility
by assuring that the documentation is gen-
uine and actually pertains to the individual
F. GOOD FAITH COMPLIANCE 5
Under §274a(3), a person or entity that
establishes that it has complied in good
faith with the requirements of the employ-
ment verification obligations has an affir-
mative defense to a charge that it has vio-
lated the provisions of ( I )(A) IIRA!RA also
allows an employer a good faith defense
when the employer is found to have made
technical or procedural errors in preparing
or completing Form l-9. Some examples of
technical errors are I) the address or date
are missing on the form, 2) the employee
did not make an attestation, 3) the expira-
tion date is missing from List B etc IIRA!RA
requires that if the employer made a good
faith attempt to comply, the government
must explain the problem to the employer
and allow the employer at least IO business
days to correct it 6
If the employer does not correct the fail-
ures, sanctions may be imposed Section
274A(b)(6) does not provide the employer
with a good faith defense if it has engaged
in a pattern or practice of violations of this
law
continued on page 22

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October/November I 998 Trial Talk 21

x, Employer ~an;~ions ·,, ~ditt..:;e~·&om PiYie 21:
:;;~ • ~~ ~ •• ~ -~~~- ;,; _ ~ :~
G. VERIFICATION OF EMPLOYEES WHO
ARE MEMBERS OF A COLLECTIVE
BARGAINING GROUP
l!RAIRA allows employers of an individual
who is a member of a collective bargaining
unit and who is employed under a collective
bargaining agreement between one or more
employer organizations and the multi-
employer association to use the Form 1-9
completed for that individual by a prior
employer who is a member of the same
association within three years If Form 1-9
was properly completed by the previous
employer, the subsequent employer is held
to be in compliance with the verification
requirement and thus not liable for sanc-
tions This provision applies to those hired
on or after sixty days after September 30,
1996. The INS has indicated in the recent
proposed rule that it will issue a proposed
rule with respect to employers who are
members of an association of two or more
employers in the near future
H. REVERIFICATION
Current regulations require employers to
reverify on Form 1-9 when an individual's
employment authorization expires
Reverification must take place no later than
the expiration date The INS has proposed
a new Form (Form I-9A) which may be used
for reverification (Form 1-9 could still be
used for reverification) Because Form l-9A
is shorter, it contains only the information
needed for reverification It also requires
the employee to specify a new expiration
date Reverification on the original Form 1-9
did not require anyone to specify a new
expiration date. Reverification does not
apply to United States citizens or nationals
or to lawful permanent residents However,
lawful permanent residents who have a
temporary 1-551 stamp in their passport
must present the actual Form 1-55 I when
the stamp expires
I. OTHER PROPOSED
CHANGES
The Proposed Rule made several other
changes:
I It clarifies that the definition of
"employer" includes any branch of the
federal government
2 It eliminates any confusion over the
terms "refer" or "recruit" for a fee
3 It requires employers who choose to
22
- --
,,_ ~ ~ _ _ ~
photocopy documentation to attach
those photocopies to the 1-9 form and
to retain the photocopies as part of the
documentation It also requires that
any form used for reverification must
be attached to the initial 1-9 completed
for the employee
4 The proposed rule also confirms the
authority of the INS to subpoena &oth
the attendance of witnesses and the
production of documents
5 The proposed rule would prohibit
employers from requiring employees
to provide an indemnity bond, or other
financial guarantee against any poten-
tial liability with respect to the obliga-
tions of hiring, recruiting or referring
for a fee under these regulations 7 The
civil penalty for violations of this provi-
sion is$ I ,000 00 for each violation and
the return of any amount received as
guarantee
J. ISSUES WITH RESPECT TO SOCIAL
SECURITY CARDS
What should an employer do if he learns
of a discrepancy in his employees' social
security number (SSN)? Recently, Interpreter
Releases discussed this and other SSN issues
as those issues apply to 1-9 purposes 8
Whether this constitutes constructive notice
of unauthorized employment can be deter-
mined only on a case-by-case determina-
tion Still, employers, concerned lest they
be accused of violating the anti-
discrimination rules by requiring that
employee provide a new card, need some
guidance in this area Former INS General
Counsel David A Martin attempts to pro-
vide that guidance 9
Particularly noteworthy in Mr Martin's
opinion are his comments with respect to
an employee working under a false SSN
When that employee subsequently
becomes work authorized and obtains a
legitimate SSN and informs his employer
that his SSN has changed, Mr Martin warns
that this notification may actually put the
employer on notice that not only has the
employee been unauthorized to work but
also that the employee may have commit-
ted fraud
Knowing false statements on the 1-9 or
the use of false documents to obtain
employment, are felonies that are not
excused by subsequent grants of work
Trial Talk
~-r_ -_:-- '~-- -:, ~:,- =-" _'-/?~ ---:,~ --
- 1 ?2 ":re~ ~1:~~~" C, ~:~-1 {~i-z""_;,,:' 0: ~ ~ ~ ~ , : : ~
authorization or lawful status. An employer
who suspects them, said Mr Martin, may
apply, in a nondiscriminatory manner, any
policies it applies generally to suspected
criminal conduct in the workplace, or to
suspected false statements in employment
documentation .10
Under this scenario, the employer must
have the employee complete a new 1-9 if the
employer continues to employ that individ-
ual and retain the original form as evidence
that the employer complied with the verifi-
cation requirements at the time of hire
Although Mr Martin emphasized that not
all name changes or inconsistent SSN
information automatically mean that some
fraud has taken place, he does warn that
receipt of information showing that an
employee has been working under a differ-
ent name would raise reasonable ques-
tions, i e , put that employer on constructive
notice Since social security cards have his-
torically been a problem in document fraud
cases, it would be wise to read the article in
Interpreter Releases and the two letters repro-
duced in Appendix 5 when evaluating an
individual case involving social security
card issues
K. PENALTIES
Any person or entity may file a signed
complaint alleging a violation of Section
27 4(A) of the Act with the INS office having
jurisdiction over the business or residence
of the violator The complaint must contain
specific information as to both the com-
plainant and the potential violator and
detailed factual allegations including the
date, time and place of the alleged viola-
tions or conduct alleged to constitute a vio-
lation of the Act The Service may conduct
an investigation for violations on its initia-
tive or as a result of having received a com-
plaint If the Service determines after an
investigation that there has been a viola-
tion, the Service may issue and serve a
Notice of Intent to Fine or a Warning
Notice N B the Service has the authority
to examine any relevant evidence of any
person or entity being investigated
Either the INS or the Department of
Labor may issue a Warning Notice to a per-
son or entity which must contain a state-
ment of the basis for violations and the
statutory provisions alleged to have been
violated
The Service can also issue a Notice of
Intent to Fine on Form I-763 to assess
October/November 1998
administrative penalties under §274A of the
Act The express contents of the Notice of
Intent to Fine and the manner of service is
specified in proposed rule §274a I0(d)
Also specified in that section are the rights
and remedies of the respondent
I. Civil Penalties
a. For a violation of §274A(a)( I )(A) or
(a)(21. an employer can face:
$250.00 - $2,000 00 fine for each
unauthorized individual;
2 $2,000.00 - $5,000 00 for each
employee if the employer has previ-
ously been in violation;
3 $3,000 00 - $ I 0,000.00 for each indi-
vidual if the employer was subject to
more than one cease and desist order
b For violation of '274 (a)( I )(B)
(Paperwork) - $ I 00 00 - $1,000 00 for
each individual with respect to whom
the violation occurred
Factors considered are the size of the
business, the good faith of the employ-
er, the seriousness of the violation,
and the employer's history Also, the
Attorney General can bring a district
court action seeking equitable relief
(i e, permanent injunction, etc I
2. Criminal Penalties
Under '274A(f), the penalty for a pat-
tern and practice violation can be up to
$3,000.00 for each unauthorized alien,
imprisonment up to six months for the
entire pattern and practice, or both
III. ANTI~DISCRIMINATION
It is an unfair immigration-related
employment practice for an employer to
discriminate against protected individuals
with respect to hiring, recruitment (referral)
for a fee, or discharging from employment
because of that person's national origin or
citizenship status (§274B(a)) The term
"protected individual" is defined in
§274B(a)(3) as an individual who is a United
States citizen or national or an alien lawful-
ly admitted for permanent residence, a tem-
porary resident under §2 I 0(a) or
October/November 1998
§245A(a)(i), a refugee under §207, or an
asylee under §208. The term does not cover
an alien who fails to apply for naturalization
within six months of the date the alien is
first eligible to apply or within six months
after the date of the enactment of this sec-
tion or an alien who applied timely but has
not been naturalized as a citizen within two
years after the date of application unless
the alien can establish that he/she is active-
ly pursuing naturalization It is not an illegal
employment practice, however, to prefer an
American citizen over an alien if both are
equally qualified 11
After !RCA, an employer's request for
more or different documents than were
required or refusing to honor documents
that appeared to be facially genuine was
held to be an unfair employment practice
llRAIRA amended §274B(a)(6) to provide
that such practices would be held to be an
unfair employment practice only "if made
for the purpose or with the intent of dis-
criminating against an individual in viola-
tion of paragraph (I) " The mere fact that
an employer requests additional docu-
ments or refuses the offered documents
which appeared genuine will not suffice In
short, there must be a finding of intent, i e.,
a purposeful act, before liability will attach
Other circumstances allow for legitimate
discrimination, such as hiring only US citi-
zens in order to comply with a government
contract, or where an agency or department
of the federal, state or municipal govern-
ment so mandates 12 For example, many
public school districts require hiring only
U S citizens as teachers
It is also a discriminatory practice to
retaliate against an employee who intends
to file or has filed a charge, who testified or
participated in an investigation or proceed-
ing under this section, or to interfere with
an individual's rights under this section 13
IV. DOCUMENT FRAUD
§274C
It is unlawful for any person or entity to
knowingly use, possess, accept, receive or
attempt to do same, a document which is
forged, counterfeited, altered or false in
order to satisfy a requirement of the Act or
obtain a benefit under the Act Likewise, it
is unlawful to use, possess, accept, obtain
or attempt to do same, a document lawfully
issued to another person even if that per-
son is deceased It is also unlawful to pre-
pare, file, or assist in preparing or filing an
Trial Talk
application for benefits or any document
required under the Act with knowledge or
reckless disregard of the fact that such
applications or document was falsely made
('274C(a)(5))
Because this provision applies to "any
person or entity," it would include not only
employers and employees but also attor-
neys or anyone else who prepares and/or
files applications with the INS
A. CIVIL PENALTIES
I $250 00 - $2,000 00 for each docu-
ment used, accepted or created and
each instance of use, acceptance or
creation;
2. $2,000 00 - $5,000.00 for each docu-
ment that is the subject of a violation
where person/entity previously subject
to cease and desist order; or
3. Where entity is composed of physi-
cally separate subdivision responsible
for hiring, each such subdivision is
considered a separate entity
B. CRIMINAL PENALTIES
I Anyone who fails to disclose, con-
ceal or cover-up the fact they prepared
for a fee an application which was
falsely made shall be fined in accor-
dance with 18 USC, imprisoned for up
to five years or both and prohibited
from preparing any other applications
2 Anyone convicted of a violation of
paragraph I, who knowingly or willfully
prepares or assists in preparing an
application for benefits under this Act,
whether or not for a fee, shall be fined,
imprisoned up to fifteen years or both
C. FALSELY MADE B DEFINITION B
§274C(F)
According to §274C(f), falsely made
"means to prepare or provide an application
or document with knowledge or reckless
disregard of the fact that the
application/document contains false, ficti-
tious or fraudulent statement or material
representation or has no basis in law or
fact, or otherwise fails to state a fact which
is material to the purpose for which it was
submitted" Attorneys take heed!
continued on page 24
23
- R 7" ~~-/ ~ "'-" ::;,,;-"'-:;-z.,,~::-<~,:y'.:,;_:.:%'~£}::"'-:;, "'C /0,,,-~ 7,~~ ,_, :,c;-~,S,c;c : ~ ~<"~"'"-~ /p'C ;"""'½;,,- ✓ ;,;:~""~" -"'""';,..,3 ~ ';p<"',""

~ Employ~r ~,aitct!Qn~ ~ -~ ·:c-~li~j~jfj:-fi-oijt_p~ge 123 . .. ~- : ··.. . . . '::

~~~· *"", ~;"'~~:%~-,:;~~ ~ ~ :;;~!,?;;0:: /"~ ~~r-"":; Y;::i~\!~:s: i: 0;_"; ~ 1
2;,. ~,?,. ,~ w " 0 ~ ~'1J;,:; :i& ~ ~~ zc'.S~~"< 77;;_>~1: -1J 1/e:,/" _!~vt;
0: / '> ~Y& - "'~~:;c""
1
~~ tr 8~~<;0~1 Ss ;;;~~=-- ~~~ %=✓"::

V. CONCLUSION Attorneys should educate themselves on ENDNOTES

The amendments and revised rules are the law of employer sanctions not only to !RCA applies to employers of four or
intended to simplify the employment verifi- advise their clients of their rights, obliga- more employees Title VII of the Civil
cation process for employers, significantly tions and responsibilities, but also to pro- Rights Act of I 964, 42 USC §2000e, et
limit the acceptable documents, curtail the tect themselves Under the document fraud seq, also prohibits, inter alia, national
use of fraudulent documents and clarify for provisions, an attorney or paralegal working origin citizenship discrimination but
everyone the scope and nature of the dis- under the direction of the attorney could applies only to employers of fi~een or
crimination provisions well find him/herself faced with sanctions of more employees Thus, only employ-
his/her own ers of three or fewer employees are not
subject to these anti- discrimination
statutes

2 62 Fed Reg. 51001-06 (Sept 30, I 997)

Get immediate information you can use on all ATLA services!

,.d/7 A 3 See 74 Interpreter Releases 15 I 9 (Oct
FREE and;' < 6, 1997)

4 This does not include a receipt for an

Call for an index. application for an initial or extension
List A or List C document For exten-
Follow the voice prompts to make your selection. sions of nonimmigrant employment see
8 CFR §274a 12(bl(20)
Association ofTrial Lawyers of America

5 In the proposed rule, the INS indicated

that a proposed rule would be forth-
coming with respect to 411 (a) of
IIRAIRA and the employer's good faith
attempt to correct a technical error

6 Section 274A(b)(6)

7 Section 274a 9(a)

"Your Partner ln Making The Record"

8 75 Interpreter Releases 203 (Feb 9,
Court Reporting & Video 1998)

DEPOSITIONS 9 See 75 Interpreter Releases 203 (Feb 9,

1998)
VIDEOTAPING • DAILYCOPY
REALTIME REPORTING- LiveNote™ IO See 75 Interpreter Releases at 205

COMPRESSED TRANSCRIPTS (with Concordance)

II Section 274B(al(4)
LITIGATION SUPPORT • CONFERENCE ROOM
FRONT RANGE TRAVEL (No Charge) I 2 Section 274B(a)(2)

13 Section 274B(a)(5)
303-832-5966

1888 Sherman Street, Suite 570 1-800-525-8490 Fax 303-832-9525

Denver, CO 80203 huntergeist@compuserve.com

24 Trial Talk October/November 1998

"Judicial Estoppel" Stops Here!
Kristina Martinez, Esq.
pplication of the so-called "!u~idal
estoppel" doctrine to plaintiffs d1s-
rimination claims threatens the very
existence of the Americans with Disabilities
Act ("ADA"). as well as other anti-discrimi-
nation statutes Judicial estoppel, in its
pure theoretical sense, seeks to preclude a
party from "gaining an advantage by taking
one position, and then seeking a second
advantage by taking an incompatible posi-
tion "I Certain courts have seized upon the
doctrine to prevent civil rights plaintiffs
from enforcing the federal anti-discrimina-
tion statutes, even when the positions
taken by these plaintiffs are not legally
"inconsistent"
Until recently, the federal circuit courts of
appeal were split evenly - five to five - in
whether to apply judicial estoppel to bar
discrimination claims brought under the
ADA Earlier this year, however, the United
States Court of Appeals for the Tenth Circuit
ruled against the application of judicial
estoppel to bar a plaintiff's ADA claim The
Tenth Circuit joins five other federal circuit
courts that have properly followed the pub-
lished guidance of the Equal Employment
Opportunity Commission ("EEOC") and the
Social Security Administration ("SSA") to
find that definitions of the term "disability"
in the Social Security Act and in the ADA
are sufficiently different to render any
meaningful comparison necessary for the
application of judicial estoppel improper
Five other federal circuits, however, have
generally determined that SSA findings of
"total disability," for purposes of disability
benefits application, may estop plaintiffs'
subsequent declarations that they are
October/November 1998
"qualified individuals with disabilities" for
purposes of the ADA These courts have
declined to follow the instructions of the
governing agencies, which explicitly direct
the courts to refrain from applying judicial
estoppel to bar ADA claims in such a man-
ner
WHAT POSITIONS DO THE
EEOC AND SSA HOLD?
The EEOC is responsible for the regula-
tion and enforcement of the ADA, and the
SSA regulates the allocation and distribu-
tion of federal disability benefits Both
agencies have significant expertise in
administering the federal laws relating to
disabilities, and both agencies have issued
formal rules and regulations defining eligi-
bility under the applicable statutes. The
EEOC defines a "disabled person" qualified
to bring a claim under the ADA as "an indi-
vidual with a disability who satisfies the
requisite skill, experience, education and
other job-related requirements of the
employment position such individual holds
or desires, and who, with or without reason-
able accommodation, can perform the
essential functions of such position "2 By
contrast, the SSA defines a "disabled per-
son" as a person who is unable
to engage in any substantial gainful
activity by reason of any medically
determinable physical or mental
impairment which can be expected to
result in death or which has lasted or
can be expected to last for a continu-
ous period of not less than twelve ( 12)
months. 3
Trial Talk
In its five-step process to determine
whether an individual is "disabled" within
the meaning of the statutes it enforces, the
SSA considers such factors as whether the
individual's disability is "severe enough to
preclude any gainful work," and whether the
individual can do his own past work or any
other work that exists in the national econo-
my, in view of his age, education and work
experience..\ Significantly, unlike the ADA
definition, the definition of disability under
the Social Security Act does not consider
whether the individual can work "with or
without reasonable accommodation."
In light of the differing definitional and
assessment structures of the Social Security
Act and ADA, both agencies issued "inter-
pretive guidances" intended to distinguish
the two acts and prevent cross-application
of one statute to the other For instance,
the recently issued EEOC Enforcement
Guidance clearly provides:
iblecause of the fundamental differ-
ences in the definitions used in the
ADA and the terms used in disability
benefits programs, an individual can
meet the eligibility requirements for
receipt of disability benefits and still
be a 'qualified individual with a dis-
ability' for ADA purposes. Thus, a per-
son's representations that he or she is
·totally disabled' or ·unable to work' for
purposes of disability benefits are never
an absolute bar to an ADA claim 5
continued on page 26
25
 ~ • t •
Judicial E~toppel ,. contin11~d.from page 25
' . . -
• "' U ~ • C
Moreover, in addressing the effects of the
ADA on the Social Security disability deter-
mination process, the SSA states:
The fifth-step assessment is based on
the functional demands and duties of
jobs as ordinarily required by employ-
ers throughout the national economy,
and not on what may be isolated varia-
tions in job demands (regardless of
whether such variations are due to
compliance with anti-discrimination
statutes or other factors). Whether or
how an employer might &e willing (or required)
to alter job duties to suit the limitations of a
specific individual would not &e relevant 6
Plainly, in issuing such guidelines, the
SSA and ADA have clarified that it is analyti-
cally inappropriate to make comparisons
between the two statutes of the term "dis-
ability," and have attempted to prevent
misapplication of the judicial estoppel doc-
trine
WHAT IS THE TENTH
CIRCUIT'S POSITION?
In March of this year, the Tenth Circuit
ruled against the application of judicial
estoppel to bar ADA claims in Smith v
Midland Brake, Inc 7 At the end of its opinion
analyzing the viability of the plaintiffs ADA
claim, the court affirmed that "the Tenth
Circuit has rejected the doctrine of judi-
cial estoppel"8 The court concluded that
the lower court had misplaced any reliance
on such estoppel theory Moreover, the
court relied directly on the language of the
ADA itself and its accompanying EEOC reg-
ulations.9 However, the court left open the
question of exactly how significantly plain-
tiffs' prior representations would be consid-
ered in determining whether they are quali-
fied individuals with disabilities under the
ADA
Two months later, on May 6, 1998, the
Tenth Circuit issued an opinion setting
forth an extensive analysis attending its
refusal to apply judicial estoppel to bar an
ADA claim 10 The court examined both the
ADA and the Social Security Act and found
that because the Social Security Act does
not consider "accommodation" in determin-
ing whether a claimant is disabled, state-
26
~ -
- -
-
_ h ~ ~
ments made under the act are not necessar-
ily inconsistent with statements that the
claimant has been discriminated against
based on his disability 11 Moreover, the
court took into consideration the holdings
of the other federal circuits on the issue In
the end, the court determined that the
plaintiff was not barred from bringing his
claim simply based on his statements in an
application for social security disability
benefits 12
However, the court held that such state-
ments may constitute evidence relevant to a
determination of whether the plaintiff is a
"qualified individual with a disability" In
the instant case, the employer argued that
the plaintiff Mr. Rascon stated on his dis-
ability benefits application that he did not
plan to return to work The court noted
that, while there was no evidence Mr
Rascon indicated he could not perform the
essential functions of his job with reason-
able accommodation in connection with
application, there was evidence that he
indeed wanted and expected to return to
work Moreover, the court found that the
employer denied Mr. Rascon the "reason-
able accommodation" of a medical leave of
absence and that there was "nothing incon-
sistent in Mr. Rascon applying for disability
benefits after having his reasonable accom-
modation denied "13 Thus, the court con-
cluded that nothing in Mr Rascon's applica-
tion for disability benefits precluded a find-
ing that he was a qualified individual with a
disability under the ADA
Although the Tenth Circuit has not
defined the degree to which plaintiffs' rep-
resentations of "total disability" in benefits
applications will impact their claims of
"qualification" under the ADA. 14 the court
appears to have foreclosed any claims of
"relevance" if the representations are made
specifically with an agency that fails to con-
sider accommodation For instance, in
Aldrich v. Boeing Co ,15 the most recent case
out of the Tenth Circuit rejecting judicial
estoppel of an ADA claim, the court found
that the plaintiffs admission of "total dis-
ability" at a benefits determination hearing
was irrelevant to the outcome of his dis-
crimination claim, since the determination
of his benefits entitlement was made with-
out regard to "reasonable
Trial Talk
~ F
,/
accommodation "16 The court relied on
Rascon in refusing to "deviate from its
IRascon'sl logic" that statements made on
disability benefits applications cannot be
an automatic bar to ADA claims when such
benefits are granted without regard to rea-
sonable accommodation 17 Following this
reasoning, plaintiffs' attorneys in the Tenth
Circuit should be able to argue that any
prior representations of "total disability"
made to agencies not recognizing accom-
modation are irrelevant to a determination
of "qualified individual with a disability"
under the ADA
WHAT HAVE THE OTHER
FEDERAL CIRCUITS RULED?
The federal circuit courts are now split six
to five in deciding whether to apply judicial
estoppel to bar ADA claims. 18 Generally, the
six courts declining to apply judicial estop-
pel, including the Tenth Circuit, have cited
the ADA itself, the EEOC's guidelines on
the ADA, the SSA's interpretive guidance
and other public policy to show that the
definitions of "disability" are different for
purposes of the ADA and for benefits appli-
cation under the Social Security Act, espe-
cially in light of the employer's duty of rea-
sonable accommodation which inheres in
the ADA On the other hand, the five courts
ruling in favor of estopping ADA claims rea-
son that, because certain plaintiffs have
asserted "total disability" on their benefits
applications and have received such bene-
fits, they cannot meet the essential ADA
element of being a "qualified individual
with a disability" - that is, they cannot per-
form the essential functions of the job
THE CIRCUIT COURTS
REJECTING JUDICIAL
ESTOPPEL
The United States Courts of Appeal for
the First, Sixth, Seventh, Eleventh and D.C
Circuits have all rejected the doctrine of
judicial estoppel to bar discrimination
claims 19 These courts have found that the
definitions of "disability" differ materially
between the Social Security Act and the
ADA (and other discrimination statutes)
and thus cannot be conclusive of the judi-
October/November I 998
cial estoppel issue 20 More specifically, ADA
claims cannot be precluded by judicial
estoppel since the SSA determination takes
no account of the ADA's critical element of
"reasonable accommodation." 21 In a well-
reasoned opinion, the Sixth Circuit
explained that, although judicial estoppel
may preclude a plaintiff from asserting that
he is unable to perform the essential func-
tions of his current position, the doctrine
would not preclude him from asserting that
he could perform light duty work or the
work of another position 22 All in all, these
circuits are unwilling to adopt a per se rule of
judicial estoppel which would automatically
bar the discrimination claims of individuals
asserting "total disability" and/or receiving
disability benefits
THE CIRCUIT COURTS
APPLYING JUDICIAL
ESTOPPEL
The five circuits applying the doctrine of
judicial estoppel have either rejected or
ignored the guidelines set forth by the
EEOC and SSA to find that plaintiffs who
represent that they are "totally disabled" for
purposes of disability benefits application
are estopped from claiming they are "quali-
fied" for purposes of the ADA 23 In essence,
these courts believe it is improper to assert
what they view as "inconsistent positions"
for purposes of utilizing both the Social
Security Act and the discrimination
statutes. 2-1 Although most of these courts
have barred the ADA claims based solely on
the plaintiff's representations of "total dis-
ability,"25 others have applied judicial
estoppel only where the plaintiffs have both
made the representations and received dis-
ability benefits The Fifth Circuit, for exam-
ple, refused to estop an ADA claim per se
based on representations of "total disabili-
ty," but concluded that the application for
or receipt of disability benefits creates a
rebuttable presumption that a claimant or
recipient of such benefits is judicially
estopped from asserting that he or she is
"qualified" under the ADA26
The courts' determinations that prior rep-
resentations of "total disability" bar certain
discrimination claims have already created
a form of "slippery slope" threatening the
October/November I 998
enforcement of anti-discrimination statutes WHICH POSITION
other than the ADA For instance, the Ninth
Circuit found that a plaintiff was estopped
ADVANCES
from asserting claims of age discrimination CONGRESSIONAL AND
and wrongful discharge, which were based ADMINISTRATIVE INTENT?
on her qualifications and ability to work, Given the remarkable split in the federal
where she had received a workers' compen- circuits as to whether to apply judicial
sation settlement following her representa- estoppel to bar ADA claims, it is likely that
tion that she was "unable to work "2i the Supreme Court will hear arguments on
Likewise, the Second Circuit recently held the issue in the near future Meanwhile,
that an ADEA plaintiff was estopped from plaintiffs' attorneys should consistently
claiming he was "qualified for his position" advance the positions set forth by Congress
where he represented to the SSA that he in the act itself and by the governing admin-
was "unable to work" on his disability bene- istrative agencies in their corresponding
fits application 28 Notably, neither circuit regulations and guidelines "Judicial estop-
acknowledged the ADA's mandate requiring pel," as described herein, cannot be applied
employers to provide reasonable accommo- as an automatic bar to ADA claims for the
dation for their disabled employees to simple reason that courts must consider the
assist them in meeting the qualifications of ADA's critical element of "with or without
their positions accommodation" with the facts of every
continued on page 28
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Trial Talk 27
. Judicial E~top~el • cont~~~d'~ou:· page 27
• ' '~ ~ " ~ -
case. Utilizing both the ADA and the Social
Security Act is not necessarily inconsistent
The EEOC and SSA have each determined
that definitions of "disability" differ materi-
ally in each statute, thereby precluding any
meaningful comparison of the terms. The
SSA definition of "disability" does not con-
sider whether the individual has been rea-
sonably accommodated, which the ADA
imposes as an affirmative obligation on
most employers. Thus, judicial estoppel
cannot be applied to automatically bar
claims of discrimination based on prior
assertions of "total disability" for purposes
of benefits application Although prior
assertions of "total disability" may be rele-
vant to a determination of whether an indi-
vidual is "qualified" under the ADA, such
assertions can by no means be conclusive
Take, for example, the employee who is
fired because she becomes confined to a
wheelchair due to the onset of multiple
sclerosis Assume that she is terminated
despite the fact that she is still able to per-
form the essential functions of her job as an
accountant, but the employer has refused
to accommodate her special needs She
attempts to find another job, but employers
are simply not hiring her (either because of
a tight economy, discrimination in hiring or
otherwise) Unemployed and under great
financial stress, with no income and bills
coming due, she reluctantly applies for dis-
ability benefits in which she asserts that she
is "unable to work" This representation is
certainly true, since she was terminated
(albeit illegally) because of her disability
and has been unable to secure other
employment However, in this example, the
claimant is entitled to receive social securi-
ty benefits to pay her living expenses during
her time of disability-caused unemploy-
ment It makes no logical or legal sense to
preclude her, under those circumstances,
from challenging her former employer's ille-
gal termination of employment simply
because she is receiving disability benefits
from the SSA
Consider also the employee who has
been receiving disability benefits for several
months (or years) but who has improved
and wishes to return to work He applies for
a job, but the employer refuses to hire him
because he is "disabled " The employer
28
· . . ..
:" ~-~: ~~ <' :_ ,,'0-~ "' '-'
defends the anticipated ADA charge by
claiming that the plaintiff is "estopped"
from suit, since he had previously asserted
he was "unable to work" in order to qualify
for disability benefits This repugnant justi-
fication for obvious discrimination cannot
be consistent with Congress· intent in pass-
ing the remedial disability statutes
Both employees in the above examples
suffer from classic cases of discrimination
which the ADA was originally designed to
prevent However, in circuits applying judi-
cial estoppel as an automatic bar to ADA
claims, neither employee will have the
slightest chance of vindicating his or her
rights to be free from disability discrimina-
tion nor of recovering for the injuries inflict-
ed upon each by the illegal conduct of the
employers It has been said that, "knowl-
edge is the soul of all law" If that is true,
then equity must surely be its heart. No
legal principle equitably enforced should
reward law-breaking employers by "estop-
ping" disabled employees' discrimination
claims where such employees had justicia-
bly resorted to a welfare program designed
precisely to provide substitute income
under these circumstances. To find other-
wise would be to render congressional and
administrative intent a mockery and to
stand "equity" on its head
ENDNOTES
Helfand v Gerson, l 05 F3d 530, 534 (9th
Cir. !997)
2 29CFR§l6302(m)(l997)
3 42 US.C §§423 (d)( l )(A).
l 382c(a)(3)(A)
4 See Sullivan v Zebley, 493 U.S. 521, 525-
26 ( !990)
5 EEOC Enforcement Guidance on the
Effect of Representations Made in
Applications for Benefits on the
Determination of Whether a Person is
a "Qualified lndividual with a
Disability" under the Americans with
Disabilities Act of 1990, EEOC Notice
No915002,atllA(Feb 12, !997)
(emphasis added)
6 "Americans with Disabilities Act of
1990- INFORMATlON," Memorandum
from the Associate Commissioner,
Social Security Administration at 3
(lune 2, 1993) (emphasis added)
Trial Talk
.. :_ . . - .
;; ::~"';,,,="" y,1 -- ":l"'_-(;01':,..._,,~:""~""- <~ ✓ -,;
7 Smith v Midland Brake, lnc 138 F 3d l 304,
l3l2 (!0th Cir !998)
8 ld at 13 l 2 (citing United States v 49 0 l
Acres of Land, l 991 WL 65 l 89 ( l 0th Cir
Apr. 23, l 99 l) in which it had rejected
the judicial estoppel doctrine saying,
"I elven in the case of false statements
in pleadings, public policy can be vin-
dicated otherwise - and more practica-
bly and fairly in most instances - than
through the suppression of truth in the
future"); see also Brodie v General Chemical
Corp., l996WL ll838(l0thCir Ian !2,
!996) (court rejected the employer's
argument that the employee was judi-
dally estopped from asserting on
appeal that his disability was caused
solely by depression, since the employ-
ee had listed "lack of vision" on his
application for Social Security bene-
fits)
9 Smith, !38 F3d at !312
10 See Rascon v. US West Communications,
Inc, l 43 FJd l 324 ( l 0th Cir l 998)
ll Id. at !330-3!
!2 Id at !332
l 3 !d
!4 Note the Fifth and Eighth Circuits'
"rebuttable presumption" analysis, as
discussed below
l 5 Aldrich v. Boeing Co , l 46 F 3d l 265, l 269
(lOthCir !998)
!6 ld
!7 Id.
18 Without issuing an opinion, the Fourth
Circuit recently affirmed a trial court's
grant of summary judgment dismissing
the plaintiff's ADA claim but declined
to address the judicial estoppel issue;
thus, this circuit is not counted among
those which have ruled on the issue
Hindman v Greenville Hosp Sys , l 997 WL
786272 (4th Cir. Dec 23, !997)
19 See D'Aprile v. Fleet Servs Corp., 92 F 3d l
(1st Cir !996); Blanton v. lncoAlloys
lntemat'/, Inc, l 08 F3d l 04 (6th Cir
!997). aff'd on rehearing, 123 F 3d 9!6
(6th Cir. l 997); Weigel v Target Stores, 122
F3d 46 l (7th Cir. l 997) and Haschmann
v Time Warner Entertainment Co, l 998
WL 42383 l (7th Cir July 29, l 998 );
Talavera v. School Bd of Palm Beach County,
129F3d l214(llthCir 1997);Swanf1S\'
Washington Metropolitan Area Transit Auth,
October/November 1998
 ll6F3d582(DCCir 1997)
20 See eg Weigel, 122 F 3d at 467 ("because
the SSA's definition of disability- as
well as those of most disability insur-
ance plans - differs materially from the
ADA's definition of a ·qualified individ-
ual with a disability,' these representa-
tions are not conclusive of the ADA
issue"); see also Taylor v. Food World. Inc.
l33F 3d 1419. 1422-1423 (I Ith Cir
1998) (fact that plaintiff applied for and
received disability benefits did not
judicially estop him from ADA claim
since medical and other records sub-
mitted to SSA did not clearly contra-
dict his assertion that he was "quali-
fied" under ADA)
21 Swanks. 116 F3d at 586; see also D'Aprile,
92 F3d at 4 (plaintiff never claimed to
have been totally disabled at the time
she requested accommodation from
the employer; it was not until after her
requests for a formal part-time sched-
ule were refused that she claimed total
disability)
22 Blanton, 123 F3d at I 09. On rehearing,
the court affirmed the D.C Circuit's
rejection of the judicial estoppel doc-
trine in Swan/is, saying that receipt of
disability benefits does not preclude
subsequent ADA relief; however, prior
sworn statements of "total disability"
may be considered as a material factor
More recently, the Sixth Circuit ruled
that while statements of "total disabili-
ty" are relevant to a determination of
the claim, a court's truth-seeking func-
tion cannot be supplanted by an
agency administrative decision ren-
dered without an evidentiary hearing
Griffith v Wal-Mart Stores, Inc, 135 F 3d
376, 382 (6th Cir 1998)
23 Simon v Safelite Glass Corp , 128 F3d 68
(2d Cir I 997); McNemar v. Disney Store,
Inc, 91 F 3d 610 (3d Cir 1996) (EEOC
Guidance did not exist at the time of
this decision); Cleveland v Policy
Management Sys Corp, 120 F3d 513 (5th
Cir. 1997) (recognizes SSA guidance
but acknowledges only very "limited"
situations where a plaintiff who has
asserted "total disability" for SSA pur-
poses may be able to rebut a presump-
tion that he is not "qualified" under the
ADA); Dush v. Appleton Elec Co, 124 F3d
957 (8th Cir. 1997); Kennedy v. Applause,
lnc.,90F3d l477(9thCir l996l(EEOC
Guidance did not exist at the time of
October/November 1998
this decision); cf Downs v Hawkeye
Health Servs , Inc , 148 FJd 948 (8th Cir
1998) (court recently rejected per se
application of judicial estoppel; how-
ever, it appears to have adopted the
Fifth Circuit's "rebuttable presumption"
analysis requiring "strong countervail-
ing evidence" that plaintiff is in fact
"qualified" under the ADA)
24 See e g McNemar, 91 F3d at 618 The
McNemar court recognized a two-part
threshold inquiry for determining
whether judicial estoppel applied: (I)
whether the party's current position
was inconsistent with a position for-
merly asserted and (2) whether the
party asserted either or both positions
in bad faith Although the court found
McNemar asserted inconsistent posi-
tions in representing he was totally
disabled on his SSA benefits applica-
tion and in claiming he was "qualified"
under the ADA, it never addressed the
bad faith prong of the test
Recently, the Third Circuit issued an
opinion warning against improper
application of McNemar by the lower
courts Krouse v. American Sterilizer Co ,
126 F 3d 494 (3d Cir 1998) The court
admonished the lower courts saying
that, although McNemar remains the
law in the circuit, it should be limited
to its unique facts Moreover, the court
cautioned that courts should carefully
adhere to the two-part test set forth in
McNemar before concluding that previ-
ous representations as to disability
and inability to work judicially estop
individuals from asserting they are
"qualified" Id. at 503 n. 5 "Courts
should not assume that McNemar
always bars an individual's ADA claims
merely because prior representations
or determinations of disability exist in
the record " Id
25 See e g Simon, 128 F 3d at 73 (state-
ments, made under penalty of perjury,
estopped plaintiff from claiming he
was qualified under ADEA) ; McNemar,
91 FJd at 618 (plaintiff's sworn state-
ments that he was totally disabled and
unable to work estopped him from
contending he was "qualified" under
the ADA); Dush, 124 F3d at 963 ("ltJypi-
cally, 'the prior representations of total
disability carry sufficient weight to
grant summary judgment against the
plaintiff"'); Kennedy, 90 F 3d at 1481
Trial Talk
(plaintiff's sworn statements on state
disability benefit and SSA claim forms
that she was "totally disabled"
estopped her from claiming she was
"qualified individual with a disability");
Mcconathy v Dr Pepper/Seven Up Corp ,
131 F3d 558, 562 (5th Cir. 1998) (plain-
tiff's sworn statements in SSA disabili-
ty application that she could not "see
how she could hold a management
position or any position even on a
part-time basis" estopped her from
arguing she was qualified under ADA)
26 Cleveland, 120 F3d at 518 (a plaintiff may
rebut the presumption by presenting
evidence - such as a social security
benefits application, other sworn docu-
mentation and allegations relevant to
the ADA claim - sufficient to show that,
even though he is disabled for purpos-
es of social security, he is otherwise
qualified to perform the essential func-
tions of his job with reasonable accom-
modation); see also Downs, 148 F3d at
951 (when ADA plaintiff has made prior
representations of total disability, a
district court properly enters summary
judgment against him unless he pre-
sents strong countervailing evidence
that he is in fact qualified under the
ADA)
27 Rissetto v Plumbers & Steamfitters Local
343, 94 F3d 597, 605-06 (9th Cir. 1996)
The court made this determination
despite the fact that she applied for
and received only temporary total dis-
ability benefits, meaning she was total-
ly incapacitated for work only for a
short period of time
28 Simon v. Safelite Glass Corp, 128 F 3d 68,
74(2dCir 1997)
Kristina Martinez recently graduated
from the University of Denver College of
Law and is an associate with the firm of
Todd J. McNamara, P.C. Ms. Martinez
wishes to thank and acknowledge Darold
W. Killmer, Laurie S. Paddock and Todd
J. McNamara for their excellent assis-
tance and contributions to this article.
continued on page 30
29
 Evicle~ce: . . .. ,·· .. ; :_ .; .. · .
"" . ~ ~ r ::
A Primer on Principles of Scientific
and General Medical Causation
J. Conard Metcalf, Esq.
1854, LONDON, ENGLAND.
A cholera epidemic gripped central
London. john Snow, one of the giants in
the history of public health, was able to
determine that (al water was the source of
the disease, and (bl the Broad Street pump,
located in the Golden Square area of
London, was the source of the water caus-
ing the disease Snow, in common with sci-
entific knowledge of the time, was unaware
that the disease was caused by microbes
Neither Snow, nor other scientists, under-
stood the specific mechanism of the dis-
ease He believed that a high concentration
of sewage from the area where the offend-
ing water was drawn was an important fac-
tor in the water causing cholera, but he did
not understand what it was about sewage
that caused cholera Action was quickly
taken on his findings, and the incidence of
cholera was dramatically reduced by switch-
ing affected users to a different water sup-
ply I
The methods and inferences employed by
Snow were novel and resisted by some
Hesitation in applying Snow's conclusions
would have permitted ongoing, needless
suffering and death It is unfortunate that
some modern judges, who misapprehend
and misapply the principles enunciated in
Daubert v. Merrill Dow, 2 would likely have
excluded from evidence testimony by john
Snow regarding the "cause" of cholera, say-
ing that such testimony was "unreliable."
After all, his work had not been published in
peer-reviewed journals, or otherwise sub-
jected to the "scientific method" by other
researchers Clearly, however, Snow's work,
his methodology and conclusions were
innovative and were brilliant
This article proposes that in court the
30
_-
~ - : ""'
"reliability" of scientific testimony ought to
be determined by those factors on which,
for example, physicians base their daily
decisions. Further, this article suggests that
"reliability" is not properly reduced to any
one type of data, or based on a requirement
that there be a risk ratio of 2: l in a formal
epidemiologic study Allowing a fact finder
to base a decision on evidence that is not
as elegant or as thoroughly tested as some
might like, will usually be less harmful than
excluding from consideration the views of
insightful and forward thinking scientists
PRINCIPLES OF
GENERAL CAUSATION
Medical practitioners generally utilize the
epistemological3 method described below
to make the following decisions: determin-
ing cause-effect relationships, proving
expert testimony and judging issues such as
drug side effects, therapeutic interventions,
the presence of disease and judging the
causes of disability and death. The
described methodology is consistent with
the normal methods physicians use in the
usual practice of medicine
In making such judgments regarding
medical causation, doctors utilize epidemi-
ological data as one tool among many
Although doctors consider epidemiological
research to be an important facet of medical
epistemology, it is not regarded as the sole
or even the most important contributor to
decision-making The branch of medical
science concerned with the causes and ori-
gins of disease is called etiology
Epidemiology is not a synonym for etiology
Rather, etiologists use epidemiological evi-
dence, along with other evidence, to draw
Trial Talk
. - .
c" ,,~ = ~ - ~
conclusions about causal connections
The Viennese philosopher of science, Karl
Popper, uses a very simple example to illus-
trate this point: imagine testing the hypoth-
esis that all swans are white 4 To disprove
the hypothesis, one need find only one
black swan No matter how many white
swans are found, it does not prove that all
swans are white The location of a single
case in which an etiologic relationship is
established in the absence of epidemiologic
data refutes the hypothesis Examples of
"black swans" in this paper are taken from
the following: the Physicia11s Desfl Reference
(PDR) 5; general medical literature; general
medical textbooks; and literature from
occupational medicine Doctors, including
forensic experts, infer causality of many dif-
ferent types of injuries without any epi-
demiologic evidence at all While there are
cases of white swans, it is certainly a gross
exaggeration to assert that all swans are
white
Physicians do not rely primarily on epi-
demiologic studies for most everyday treat-
ment and diagnostic decisions Traditional
medical causal analysis relies on all infor-
mation that can be brought to bear on the
question of cause-effect relationships
Medical inference is based on chemistry,
physics, biochemistry, pathology, molecular
biology and other scientific disciplines
Types of data relied upon include observa-
tion, experiment, analogy, computer mod-
els, animal experiments, epidemiologic
studies and bacteriologic experiments
Doctors consider the whole data set avail-
able to establish a causal nexus
October/November I 998
PRINCIPLES OF CAUSAL
INFERENCE
Koch's Postulates
"Koch's postulates" provide the funda-
mental basis for determining the causation
of infectious diseases Doctors have used
these postulates to determine the experi-
mental evidence that is necessary to estab-
lish the etiologic relationship between a
given microorganism and a given disease
These criteria are: ( l) the microorganism
must be observed in every case of the dis-
ease; (2) it must be isolated and grown in
pure culture; (3) the pure culture must,
when inoculated into a susceptible animal,
reproduce the disease; and (4) the microor-
ganism must be observed in, and recovered
from, the experimentally diseased animal 6
Although epidemiology plays absolutely
no role in Koch's postulates, the medical
community has completely accepted them
as valid epistemological criteria for certain
etiologic relationships
Scientists do not, however, apply Koch's
postulates directly or by analogy to deter-
mine causation for injuries and non-infec-
tious diseases Despite the fact that doc-
tors accept that asbestos and cigarette
smoking cause cancer, it is not expected
that cancer will occur in every individual
exposed to asbestos or cigarettes, or that
every individual with lung cancer will have
been exposed to either cigarettes or
asbestos. Similarly, it is not expected that
everyone who lifts a 50- pound box repeat-
edly will develop low back pain, but it is
accepted that repeated lifting of such a box
may cause back pain in some individuals
The reliance on microscopic evidence
implicit in Koch's postulates is not a univer-
sal causal criterion for non-infectious dis-
eases, in which the etiology of diseases and
injuries is multi-factorial, and most of the
factors are unknown Thus neither patholo-
gists nor epidemiologists nor clinicians
require the presence of microscopic evi-
dence of previous smoking to attribute lung
cancer to a persons smoking Case reports
and uncontrolled population data con-
vinced most physicians that smoking was a
cause of lung cancer Astute pathologists
and readers of pathologic literature were
the first to recognize that asbestos was a
carcinogen 7: epidemiologists did not make
this association until many years later 8
Bayesian Analysis
Analyses of probability can be used to
determine causal factors in non-infectious
October/November 1998
diseases It is possible to integrate different
data sets into one causal view through a
model influenced by Bayesian decision-
making This method integrates available
information into one model for causation,
representing each datum on a continuous
line from Oto l 00, with Orepresenting no
evidence for causation and l 00 representing
certain evidence of causation. For example,
the role of a proposed carcinogen in caus-
ing cancer can be represented as always
lying somewhere between Oand 100,
depending on the types of evidence avail-
able at the time, and the strength of that
evidence. This probabilistic approach
underlies all traditional medical under-
standing of causation
It is necessary to describe this model for
causation because of misrepresentation of
the "scientific method" in public discourse
Some researchers have attempted to ele-
vate one entire class of data to the level of
final arbiter of causal proof For instance,
scientists working for tobacco companies
argued that cigarettes had not been proven
to cause lung cancer because of the lack of
animal studies establishing such a relation-
ship, because the exact mechanism of can-
cer induction is unknown, and the specific
substance, substances, or physical proper-
ties of cigarettes that cause cancer is (are)
unknown. Some scientists argue that evi-
dence linking keyboard use to repetitive
stress injury is not sufficient to establish a
cause-effect relationship because of the
insufficiency of epidemiological data The
scientific community has never exclusively
relied upon epidemiology as the accepted
method of evaluating cause-effect relation-
ships for making normal medical decisions
lt is reasonable for different people to
assign a different value to different classes
of studies However, it is not reasonable to
ignore entire classes of data or, in an ad hoc
manner, to elevate one class of data as car-
rying the ultimate burden of proof, especial-
ly for making public policy decisions regard-
ing potential health risks This epistemo-
logical twisting of the truth to suit the par-
ticular need of the day is scientifically inco-
herent, disingenuous and unwarranted
Hill's Criteria
For an overall model of causal determina-
tion, Hill's criteria are well accepted 9 All of
Hill's criteria are subject to criticism, and
none is a sine qua non of a relationship
between a determinant and an outcome
Trial Talk
• Strength of association is a reflection of
the strength of effect of a study The
relevance of strength of association is
limited because the strength of an
effect measured in a study is related in
large part to the presence of other co-
factors Studies with large rate ratios
are less likely to suffer from errors due
to bias or confounding However it is
important to note that weak causal
associations are as likely to be causal
as are strong associations 10
• Specificity requires that each cause
have a single effect This is rarely a
useful criterion because many causes
have multiple effects Asbestos causes
asbestosis, lung cancer, mesothelioma
and other cancers Smoking causes
heart disease, lung cancer, oral cancer,
etc Trauma from a car accident can
cause many different injuries
• Temporality requires that the cause
precede the effect While this is gener-
ally relevant, conformity with tempo-
rality does not mean every study must
evaluate this issue In addition, there
will be some cases where strict tempo-
rality is not necessary in order to evalu-
ate etiologic relationships As Weed
states, "It is interesting to note that, in
general terms, causality need not
require antecedence "11 Counter exam-
ples include simultaneous cause-effect
relationships Temporality is usually
established through non-epidemiolog-
ic evidence Tobacco companies argue
correctly that the current body of epi-
demiology literature cannot distin-
guish temporality from a genetic link
between the tendency to smoke and
risk factors for cancer Conclusive sup-
port for the temporal relation of smok-
ing and cancer is derived from molecu-
lar and animal data
• Consistency requires that a proposed
effect be observed repeatedly under
different circumstances. This criterion
is useful, and it can be met by many
different conditions and types of study
However repetition of findings under
similar conditions is not necessarily
supportive of this criterion
• Biologic gradient is the existence of a
dose-response relationship for the pro-
continued on page 32
31
 ~"'"' " ~ ~ "'~ ,_ I ~_re'°'""
A. ~r~er Qn
Pnncin!es::-~.f;~~;-~l!~iJrom nge. 31 . · ~~~:···::::·:~:"; :: .. ~ - -. - ~: :-~~~~-\~-~~
. -~~ ~ : : - - c>:~:6; ✓-~~~ ~:%~fa:i\~?~;~~ ~«&t:i:~~J:iz'> - ~ ~~ = ~:~-" ~~0~~_:::~ :¼~i~~~•~~~i~f~;:-~iAd1~"'i~~;!~~t~~~a
: :0
posed cause- effect combination. As
explained above, there are many rea-
sons that a dose-response curve is not
necessary to establish causation
• Biological plausibility (mechanistic
understanding) asks if the theory of
causation (mechanistic) fits known
mechanisms of injury causation
• Coherence asks if the theory is consis-
tent with what is already known of the
injury
• Experimental evidence can consist of lab-
oratory studies, controlled clinical tri-
als, or observational studies. This
includes articles discussing mecha-
nisms of injury production, whose
authors use experimental evidence and
observation as the basis for their con-
clusions
• Analogy asks if epidemiological and
other studies have established that
toxic exposures may cause scarring or
cancer Asbestos was quickly noted to
be dangerous because of its similarity
to silica
CLHP
Colorado Lawyers Health Program
(303) 832-2233
CLHP provides support meetings for all attorneys in
Colorado for both mental health/substance abuse issues
and career/transition issues. These meetings are confi-
dential and are provided at no charge.
MEETINGS
Peer Support Meeting
Every Wednesday night at 6:30 P.M.
Trinity Methodist Church
1820 Broadway, Denver
Lunch Meeting
Every last Friday at noon
Edelweiss Restaurant
34 East Ramona, Colorado Springs
Mental Health Support Group
Every Tuesday evening at 7:00 P.M.
Please call (303) 832-2233 for infonnation
32
~ "~"":?~"' ~0}<~
0 ~0 ~ ~
4
1
7 /
Of Hill's nine criteria, only four are evalu-
ated by using epidemiologic data: strength
of association, temporality, biologic gradi-
ent, and consistency Of these four, only
two are addressed solely by considering
epidemiologic studies: strength of associa-
tion and biologic gradient
Hill noted, "none of my nine view points
can bring indisputable evidence for or
against the cause and effect hypothesis,
and none can be required as a sine qua
11011." 12 Hill's final emphasis placed respon-
sibility on scientists for making causal judg-
ments with available known facts He rec-
ognized that decisions have to be made in
the absence of perfect data noting: "All sci-
entific work is incomplete-whether it be
observational or experimental All scientific
work is liable to be upset or modified by
advancing knowledge That does not confer
upon us a freedom to ignore the knowledge
we already have, or to postpone the action
that it appears to demand at a given
time " 13
CLINICAL EXPERIENCE IS
IMPORTANT
The textbook, Medical Decision Making,
identifies the following information avail-
able to physicians making medical deci-
sions: personal experience, published expe-
rience, and attributes of the patient 14
According to the text, a physician's opinion
is guided by personal experience with simi-
lar events or by the experiences of col-
leagues Thus, a surgeon's estimate of the
probability that a patient will survive an
appendectomy is guided by personal expe-
rience with this operation in similar
patients 15
In addition, physicians rely upon pub-
lished experience, in the form of reports
quantifying the risk or success associated
with a certain procedure For instance, a
surgeon may rely on a report giving the rate
of death after appendectomy in order to
estimate the probability that a patient may
die from the operation Published experi-
ence is "particularly influential when the
physician has little persona! experience "16
Finally, attributes of the patient are impor-
tant to alert the physician for "unusual char-
acteristics of the patient that put him at
higher or lower risk than the average "Ii
These principles of making medical deci-
sions are exactly analogous to making
cause-effect evaluations In the case of
appendectomy and likelihood of dying, the
Trial Talk
"'~-~"',:;&/~£;/?;c"'";;J;,J'Jf(0!!.:::t:;J(t;;'f"":,,;.~%~ ""74". ✓ •=~'t")f>""'J'";"""';"'°~,,;,:}.?,;S)F~
appendectomy is a determinant and the
outcome is risk of dying As can be seen
from the above, in making these decisions,
physicians rely heavily on their prior experi-
ence. The text goes on to say:
Clinicians use their prior experience with
similar events to estimate probability
Experienced clinicians have seen so many
patients that they have a good intuitive
understanding of which events occur com-
monly and which events are unusual
Personal experience is, and will continue to
be, the principal factor influencing a physi-
cian's probability estimates 18
Doctors relying on clinical experience
depend on an implicit control or compari-
son group: all the other patients they have
seen A case report is essentially a small
epidemiologic study A case report is made
because the case is unusual or informative
with respect to all other cases the doctor
has seen It may or may not suffer from the
same biases of other epidemiologic studies
A large formal epidemiologic study may
also suffer from biases None of these are
good reasons to ignore the significance of
case reports and clinical experience in eval-
uating cause-effect relationships
Clinical experience is considered particu-
larly important in the diagnosis of occupa-
tional diseases because of the importance
of the occupational history A textbook on
occupational health suggests that an occu-
pational history is the most important piece
in determining if a disease or injury is relat-
ed to occupation Physical examination
and laboratory tests are helpful, "but ulti-
mately it is information obtained from an
occupational history that determines the
likelihood that a medical problem is work-
related "19
This is particularly true in dealing with
specific criteria for causation, such as tem-
porality With a well-taken occupational
history, the course of a patient's complaint
can provide evidence as to whether the
complaint is caused by work Doctors ask
questions like: "Do the symptoms begin
shortly after the start of the workday? Do
they disappear shortly after leaving work?
Are they present during weekends or vaca-
tion periods? Are they time-related to cer-
tain processes, work tasks, or work expo-
sures? Have you recently begun a new job,
worked with a new process, or been
exposed to a new chemical in the work-
place?"20
October/November I 998
 A physician's clinical experience, and the
quality of their history, is especially impor-
tant in cases where an injury or disease has
multiple causes Without a correct history,
physicians may mistakenly attribute an
injury to non-occupational causes. For
instance: "Much back pain is at least partial-
ly work-related in etiology, but there are no
tests or other procedures that can differen-
tiate work-related from non-work-related
back problems; the determination of likeli-
hood depends on the occupational history
A surprising number of cases of arthritis
and tenosynovitis are caused by unnatural
repetitive movements associated with work
tasks." 21
EXAMPLES FROM MEDICAL
PRACTICE
lniuries
In everyday medical decisions, multiple
sources of information are regularly trusted,
whether or not epidemiologic data exist
For example, if someone is hit on the head
with a hammer, he or she may develop a
bump in the area of impact after a few
hours It is not necessary to study groups of
people hit by hammers or groups of people
who have bumps on their heads to appreci-
ate that the hammer caused the bump
This is because a doctor has an understand-
ing of the physical principles that define the
types of forces that produce bumps on the
head. It is true that there are other possible
causes for the bump (mosquito bite, local-
ized allergic reaction, etc) It is also true
that not all forces of equal strength result in
bumps in all or even most individuals
Nonetheless, in a person struck by a ham-
mer, a doctor will state that the hammer
blow is the likely cause of the bump
When someone is run over by a car and
dies, their death can be attributed to the
traumatic injury of being struck by an auto-
mobile, even in the absence of specific
knowledge of the cause of death. The
immediate cause of death may have been a
heart attack, a broken neck, or suffocation
Furthermore, even if the exact mechanism
of injury is unknown, causal conclusions
may safely be drawn An epidemiological
study is not necessary to determine that the
trauma from the car caused death. In addi-
tion, if an epidemiological study of
Chevrolets indicated that Chevrolets can kill
people hit in traffic it is not necessary to
perform another study to establish that
Fords can kill people Normal medical prac-
October/November I 998
tice is the application of inference, not the
deductive process of mathematical proofs
Diseases
Diabetes is a further example of reason-
able inference in medical practice There
were no epidemiologic studies done to
show that insulin was related to diabetes
The causal connection was established
through animal studies only Treatment
with insulin began as soon as insulin was
available, without controlled trials to
demonstrate proof of its effectiveness
Clinical experience combined with animal
experimentation was sufficient
In addition, penicillin was utilized for
treatment of infections as soon as it was
available No epidemiology was cited in
support of the use of penicillin for the treat-
ment of patients sick with pneumonia The
first epidemiologic studies on the effective-
ness of penicillin for the treatment of pneu-
monia were not published until the I 970s
The epidemiologic studies failed to find any
reduction in short-term mortality from the
use of penicillin. Doctors used penicillin
because of laboratory studies and because
they had a vague understanding of the
mechanism of action (they knew it killed
bacteria)
In 1995, Stanford researchers reported a
promising new therapy for non-Hodgkins
lymphoma 22 The report was based on
results in four patients and it will be
expanded to more patients, despite the fact
that a large scale clinical trial is not feasible
at the present time. Should the therapy be
overwhelmingly successful in the cases in
which it is tried, it is unlikely that a large
scale clinical trial will ever be done
Doctors will accept this new therapy with-
out any prospective long-term study This
is the standard way medicine is practiced
EXAMPLES FROM GENERAL
TEXTBOOKS
A review of most medical textbooks
demonstrates that physicians use all
sources of evidence to make decisions
regarding cause-effect relationships
Clinical experience is relevant in making
most medical decisions. In addition, ani-
mal studies, bio-mechanical explanations,
and epidemiology also are used in decision-
making Evidence for this is found in the
following sources: (I) general textbooks on
making medical decisions; (2) the types of
evidence presented to support cause-effect
Trial Talk
relationships in general textbooks; and (3)
the types of evidence used to support
cause-effect relationships in textbooks
specifically related to occupational dis-
eases
The importance of case reports, or per-
sonal experience, in making medical deci-
sions is reflected in assessments of causa-
tion relied upon every day by physicians
When physicians tum to textbooks for opin-
ions on general medical issues like drug
side effects, they find all sources of data
presented, often with no distinction made
between epidemiologic and other data
The Physicians Desk Reference, 23 which
includes sections on side effects and pre-
cautions for prescribed medications, is one
example The information contained in this
text is supported by case reports, animal
studies, and epidemiologic literature The
entries are not separated according to the
source of information All of the sources
are considered important in making deci-
sions about whether a certain drug may
cause a side effect in a specific patient A
physician will reduce dosage, or change
medications, when a patient reports side
effects consistent with those described in
the PDR
The textbook, Principles of Surgery, identi-
fies the following causes of low back pain
compression fracture, vertebral process
fracture, sprain and strain, ruptured disc24
This list is derived from an article published
in 1960 At the time of publication, these
relationships were not supported by epi-
demiologic studies The relationships were
then and are now understood to be causal
by virtue of case reports, and physicians'
general understanding of bio-mechanics.
EXAMPLES FROM
OCCUPATIONAL MEDICINE
TEXTS
In texts devoted exclusively to occupa-
tional medicine, causal associations are fre-
quently made without reference to epidemi-
ology The following examples come from
Occupational Medicine reviews of occupational
hand injuries: 25
Tendinitis caused &y inadequate tool design:
"Sharp edges of tool handles such as
continued on page 34
33
 ~*- "'":: ,,,,,, 1'.0 ~ ~ _,,'S_ ~;;j;oq,..,v s< ",t" y> ~, -"r -=;; "✓";;~;";"":Z¥":;, ~ "° -,,,. f'" ~ "" - ~:: :,o;;" "-

-- ~ ~rilii~; qn i>~fu~tples~--.. _~;~~~~,l~9• u~g~ 1i _

Z"~ :;: """ ~ ~"' -~_, '\c ; <::,_ = ~J'.,,£ ;"00 ~ """"~ ~, ~,«"-" -~= ";t>-,._='""'~'" ~" s :'"""'::; 1., 'X ;"'':"" "'~:;<> ' "', -,,,,- - -

,: - _- -_ · ---· _ ,- - _-- - -_ , -:
~ -' -~ :v"~ -,,";:=~~ ~ "~ ~ ~ ~:"-"'? ::r '~:'%";f; :~: " -~<""~"'::£:-"' w;::~;J,~ >~~~:-;~ *'" ~~: ./' \1~/" ;~ ~~ -"; ~ =~ ~: '~ ~ - -: <~ s:~ :;;~~: ~ -: ~ ~~~ ;;~"~~>; ~ """ _,,"": i'.~

scissors or pliers may fail to distribute These examples show that physicians force In these cases, epidemiology is not a
forces over a wide enough area sometimes require only one case study in useful tool because of the size of the work-
Patients may complain of symptoms order to warn the medical community that force. Examples include "espresso makers
caused by tendinitis or nerve compres- certain occupations may be at risk of work- wrist," "espresso elbow," "pizza cutters
sion at the edge of a tool handle." 20 related disease Furthermore, case reports palsy," "poster presenters thumb," "claw
serve to establish other important causal hand" in ropemaker, and "staple gun carpal
Bowlers thumb: "Fibrosis and nerve com- connections, especially for diseases or tunnel syndrome."3 4
pression occur in an area of repeated injuries that have many possible causes Another non-epidemiological form of evi-
trauma This process has been docu- Thus, case reports can make a new link dence doctors rely upon is bio-mechanical
mented in the thumbs of bowling between an occupation and an established analysis The importance of bio-mechanical
enthusiasts, who developed fibrosis disease or injury This is an example of the data in causation determinations is demon-
with digital nerve compression from use of analogy as a casual criterion (see strated in the following discussion of carpal
the continued trauma at the area below) Because of similar types of expo- tunnel syndrome:
where the thumb was held against the sure, a case report documents the existence
bowling ball "27 of a risk within an occupation not known to
According to Armstrong and Chaffin,
be at risk The following excerpt from a sec-
Hand infections: "Mycobacterium mar- deviation of the wrist from a neutral
tion of a text describing "Repeated Stress
inum infections are unusual infections (straight) position causes the extrinsic
Injuries" demonstrates the importance of
related to puncture wounds suffered finger flexor tendons to be displaced
case reports in this aspect of cause-effect
from handling fish, crab, shrimp, or against, and past, the adjacent walls of
determination:
coral" 28 "Sporotrichosis is caused by the carpal tunnel Thus, wrist flexion
the fungi Sporothix schenkii and usual- causes the tendons to be supported by
ly presents with cutaneous cellulitis the flexor retinaculum and wrist exten-
The medical literature is replete with sion causes the tendons to be support-
and lymphangitis after a puncture
case reports of unusual versions of ed by the carpal bones Based on the
wound secondary to a contaminated
thorn "29 these disorders Many patients pre- author's bio-mechanical arguments,
sent in isolation to a clinician's office compression of the median nerve with-
against the backdrop of a major epi- in the carpal tunnel may occur
The following "Unusual Occupational
demic in that industry Pricer palsy between the extrinsic finger flexor ten-
Diseases" are attributed to occupational
was reported in 1987 as an ulnar nerve dons and adjacent intrawrist structures
causes in the absence of epidemiologic
entrapment caused by using the com- during hand exertions in a flexed wrist
data:
puterized UPC code sensing machine position Because synovial mem-
Ci1ro11ic Paronychia: "Repeated immer- at the check-out counter of a grocery branes of the radial and ulnar bursas
sion of the finger tips with consequent store The authors are to be com- surrounding the finger flexor tendons
paronychia affects, in particular, bar mended for identifying the occupation- are compressed by forces in extended
tenders, kitchen workers, and laundry al cause of the patient's problem and and flexed wrist positions, synovial
workers Prolonged immersion of the expressing the following caution: In inflammation and swelling can also
hands in water, particularly hot water view of the markedly increased use of occur, possibly leading to compression
that contains detergents, increases the price code sensors in retail sales, there of the median nerve inside the carpal
risk of paronychia "30 should be consideration of pricer palsy tunnel3 5
Onycholysis: "Enzymes in laundry deter- in clerks presenting with numbness
gent have been reported to cause and aching in the hand dorsum
painful onycholysis with hemorrhage Indeed, at the time of the letter, the EPIDEMIOLOGY IS NOT
Onycholysis has also been reported supermarket chains were at the begin-
ning of an epidemic of musculoskeletal ALWAYS OR EVEN OFTEN
from hydrofluoric acid in a rust-remov-
ing agent and to sodium hypochlorite injuries caused by an innovative work NEEDED TO ESTABLISH
in an !8-year-old lifeguard who added tool and task - an epidemic that would GENERAL CAUSATION
!6% sodium hypochlorite to the pool cost millions to correct and that was Physicians make generalizations about
daily" 31 shortly thereafter reported in epidemi- the types of activity which can cause certain
ologic studies 33 injuries from these types of analyses This
Koilonychia: "Koilonychia has been
reported in a woman who was is important because it demonstrates the
Thus, in the establishment of "pricers recognition that what causes injury in one
employed as a wire coil winder palsy," case reports identified the existence
Koilonychia has been reported from occupation will also cause injury in another
of the problem Epidemiology was not nec- occupation, if the types of exposure are
organic solvents used to clean metal essary to link the exposure to the injury, but
parts and accessories in an office fur- similar It is this kind of understanding that
to quantify the amount of risk associated informs the statement that Repeated Stress
nishing factory 32 with the occupation Other case reports Injuries are "due to the stresses of the
have served this purpose in identifying repetitive motions required to perform
problems in occupations with a small labor many work activities. "36 Similarly, know I-

34 Trial Talk October/November 1998

edge that asbestos exposure caused lung evidence. This is so even though the physi- the final arbiter of a cause-effect relation-
cancer or asbestosis in one cohort means cian does not have evidence as to the ship with respect to injuries
that any similarly exposed cohort would amount of pressure or repetition necessary
experience the same effects Doctors do to cause injuries An epidemiologic study is
not require studies of each occupational not necessary to prove that a fall down
title to determine risk If the exposures to stairs can result in a leg fracture No doctor
two groups are reasonably close it is requires an epidemiologic study on falls
inferred that the risks are the same and that prior to determining that the fall was the continued on page 36
protective measures should be applied For cause of a broken leg Epidemiology is not
example, Merewether recommended pro-
tective measures be applied to any process
that resulted in exposure to asbestos in any
industry despite the fact that he only stud-
ied disease in textile workers. 37 Similarly,
doctors are sure exposures to "Virginia
Sagrillo Hammond & Dineen, LLC
Slims" cigarettes cause the same diseases
previously discovered for other types of
tobacco products even though no study of
Virginia Slims smokers has ever been con-
ducted
Articles in the occupational medical liter-
ature discuss the importance of evidence
besides epidemiology Fleming, et al ,
reviewed and evaluated whether the investi-
gation of disease clusters continues to play
an important role in establishing disease-
toxin connections in the workplace 38 They
identified 87 original disease cluster reports
that established disease-toxin connections
in occupational medicine (from 1775 to
1990) They identified four advantages in
using cluster reports from the workplace to
identify new hazards:
Natural denominator boundaries,
shared exposures, the ability to form
intermediate hypotheses, and the pos-
sibility of locating comparable popula-
tions in which to study these hypothe-
ses
They stated that "because new products,
intermediate products, and procedures are
introduced into working environments
faster than epidemiologic and toxicologic
studies can be designed to evaluate their
MEDICAL EXPERTS
WITH A WIN RATE OF 92%
potential risks, disease cluster investiga-
tions will remain central to the understand- Our in-house, board-certified MDs review medical
records and match experts to meritorious cases
ing of disease, and to protecting workers "39 from our panel of thousands of carefully
pre-screened specialists in your region.
EPIDEMIOLOGY IS NOT
EMPHASIZED IN NORMAL CALL 1-800-275-8903
Visit our web site-www.amfs.com
MEDICAL PRACTICE
With respect to causation analysis in A
injuries, epidemiologic evidence is seldom, AM~~-/~1;.'--- -
if ever, necessary or relied upon to deter- American Medical Forensic Specialists, Inc.
mine causation in normal medical practice
Lifting is accepted as a cause of hernia and
back pain in the absence of epidemiologic

October/November 1998 Trial Talk 35

,, A·P::~r ~n ;;i~c;~l-~s ~ :~~-~;;;;~e&.tro~ pa~e 35
• ~-
7
~ ';
7
-~ ""' '~,,::
EPIDEMIOLOGY IS NOT
EMPHASIZED IN MEDICAL
TRAINING
Not a single medical school in the United
States requires a full course in epidemiolo-
gJ for medical students. The only residency
that requires epidemiologJ as a prerequi-
site is preventive medicine. EpidemiologJ
is an aspect of various disciplines that con-
tributes to the general knowledge present in
the field It does not constitute a field of
knowledge in and of itself:
Instead, a multitude of medical sci-
ences and areas of practice embody
epidemiologic problems Hence, can-
cer epidemiologJ is a specialty within
oncologJ, malformation epidemiologJ
within teratologJ, health-care epidemi-
ologJ within health-care administra-
tion, and so on In this regard epi-
demiologJ is akin to morphologJ, for
example - an aspect of various sciences
and other fields as opposed to a sci-
ence or other subject-matter in itself 40
THE INTERPRETATION OF
EPIDEMIOLOGY IS
SUBJECTIVE
Furthermore, the interpretation of epi-
demiologic evidence is inherently subjec-
tive. This is true of any piece of evidence
used to evaluate cause-effect relationships
A cause-effect analysis that rests solely on a
"definitive" evaluation of the sum of epi-
demiologic evidence regarding a certain
determinant-disease relationship will not
do justice to the universe of non-epidemio-
logic evidence regarding the proposed rela-
tionship
Thus, despite all the studies on, for
example, the effects of smoking, physi-
cal exercise, or diet on the risk of
myocardial infarction, or on the effica-
cy of anticoagulant medication in the
prevention of its recurrence, the opin-
ions of even experts on these topics
remain quite diverse and, hence, sub-
jective 41
36
- - - ~
~~ / -& ~-~-~~5$:~
0 0~f.""h~ ::i =~- ~-~ M ~n,~-~~~41t~~:1~;~~«~:w;t?"<J,~
DOSE-RESPONSE IS NOT
NECESSARY TO SUPPORT
CAUSATION
A dose-response relationship is not nec-
essary in order to establish causation. This
is true for several reasons:
First, it is possible for sufficient evidence to
be amassed for an association to be consid-
ered causal without any form of dose-
response relation being observed As two
notable examples, most epidemiologists
found persuasive the early evidence of asso-
ciation between vinyl chloride and angiosar-
coma of the liver, and between diethyl-
stilbestrol and adenocarcinoma of the vagi-
na, even though no dose-response relations
were demonstrated. The acceptance of
these two cancer-exposure relations was
firmly established on case reports only The
presence of a dose-response pattern in epi-
demiologic data is, after all, partly a func-
tion of the opportunity to study such a pat-
tern
Second, the interpretation of an apparent
dose-response relation in the data must
include the possible non-causal reasons for
its appearance, such as confounding and
other sources of bias Hence, one might
expect to see a non-causal dose-response
relation between alcohol consumption and
lung cancer due to a correlation between
alcohol and smoking
Third, a dose-response curve reflects com-
plex biological mechanisms and may take
any form For instance, there may be a
threshold dose below which there is no
effect or a flat portion along which all doses
produce the same magnitude of effect
Finally, estimates of effect made in relative
terms (i e, with the rate ratio) may obscure
or present the misleading appearance of a
relation of dose to the absolute magnitude
of response, which is measured by the rate
difference 42
When considering the relation between
Repeated Stress Injury (RSI) and keyboard-
ing, the inadequacy of the dose-response
criterion is obvious For instance, if a work-
er develops RSI, he/she will most likely try
to work fewer hours at repetition-intensive
tasks (depending on the flexibility of the
workplace) Uninjured workers would have
Trial Talk
- --=~<-0£s~=~=*n """".,,-"'"'=""'~cx;;;z"'
-- .' :~~";.::: <"F'~·- -·: _, -~ - . . · ·."::
-?~%
~l
·~--w;
J:z~--•::JJ;"°zff;~":;;~~"'iJ
no reason to decrease their exposure to
repetitive tasks Thus, a negative dose-
response relationship between repetitious
work and RSI could be observed
CROSS-SECTIONAL
STUDIES ARE USED TO
ESTABLISH CAUSE-EFFECT
RELATIONS WITHOUT
SPECIFIC TESTS OF
TEMPORALITY
It has been argued that cross-sectional
studies are not useful in evaluating etiolog-
ic relationships Historically, cross-section-
al studies have been very important in
assessing causation They remain impor-
tant today In fact, Rothman notes that
cross-sectional studies, "although often pre-
sented as different from both follow-up and
case-control designs, can usually be con-
ceptualized as the case-control analogue of
the general population follow-up study "43
Almost all studies of the causes of birth
defects are cross-sectional Prospective
studies of potential teratogens are difficult
to perform and fraught with potential ethi-
cal dilemmas. Very few scientists question
the relationship between thalidomide and
certain birth defects although the studies
supporting this relationship are cross-sec-
tional in design
Percival Potts' 1775 proof that soot expo-
sure caused scrotal cancer in chimney
sweeps was based on a cross-sectional
study that did not specifically address the
issue of temporality This study has not
been repeated and its conclusion is uncon-
troverted
In musicians, cross-sectional studies and
case reports reveal a high prevalence of
Repeated Stress Injuries 44 This evidence is
considered sufficient to establish that musi-
cians are at risk for such injuries
Cross-sectional epidemiologic studies
can establish causation and explain tempo-
rality Cross-sectional studies can provide
conclusive information on temporality
especially with regard to effects that have
long latent periods Cross-sectional studies
are preferred to examine acute outcomes
with short induction times and duration
For example, the highest quality informa-
tion to determine the relationship between
seat belt use and severity of injury in auto
accidents comes from studies that investi-
gate these issues at the exact time of the
accident
October/November I 998
 Cross-sectional studies have proven use-
ful in many different aspects of etiologic
investigation Gehlbach notes that between 8 Doll, Mortality from Lung Cancer in
1946 and 1976 the number of cross section-
al studies in the three most influential clini-
cal journals nearly doubled He attributes
this to the "considerable flexibility and 9 KJ ROTHMAN, CAUSAL INFERENCE, [6-20
applicability" beyond providing ideas for
subsequent follow-up 45 IO
SPECIFIC UNDERSTANDING
I I Weed, Causal Crite1ia and Poppelian
OF THE MECHANISM OF
INJURY IS NOT REQUIRED
Doctors do not require a specific under-
12
standing of the underlying mechanism of an
injury or disease before assessing causa-
tion For instance, doctors still do not
understand exactly how smoking causes
13
cancer, yet we routinely attribute cancers to
smoking In addition, when an exposure 14
may result in many different intermediate
causes of an outcome, it is not necessary to
know which particular mechanism caused
the outcome, within a reasonable degree of 15
medical certainty For example, a bullet 16
wound in the chest may damage many dif-
l 7 Id
ferent organs and cause the death of the
person who is shot Damage to the heart, 18
lung or aorta may have caused the death 19
Despite the lack of knowledge of a specific
causal mechanism, no doctor would hesi-
tate to state that the bullet wound caused
the death This is true, even though the 20
dead individual may have suffered a heart 21
attack at the exact time that he/she was
22
shot
23
ENDNOTES
MACMAHON & PUGH, EPIDEMIOLOGY, 24
PRINCIPLES AND METHODS ( 1970)
2 Daube,t v Menill Dow, 509 US 579, 113
S. Ct 2786 ( 1993) 25
3 Epistemology is the theory or science
26
that investigates the origin, nature,
methods and limits of knowledge 27
4 K'IRL POPPER, THE LOGIC OF SCIENTIFIC 28
DISCOVERY, 27 ( 1959)
5 PHYSICIANS DESK REFERENCE, 50th ed
(1996)
29
6 DORL'IND'S !LLUSTR'ITED MEDIC'IL 30
D1rnoNARY, 25th ed , 1244 ( 1974)
7 WC HUEPER, OCCUP/(fl0NAL TUMORS AND
ALLIED DISEASE, 399-405 ( ] 942) ; 31
Hueper, Cancer in its Relation to Occupation
and Environment, BULL. OF AMER. Soc'y 32
October/November 1998
FOR THE CONTROL OF CANCER, 25:63-69
(l 943)
Asbestos Workers, BRIT I OF INDUSTRIAL
MED, 2:81- 86 (!955)
(1988)
Lanes, Error and Uncertainty in Causal
Inference (in CAUSAL INFERENCE, supra note
9, 182-183)
Refutation (in CAUSAL INFERENCE, supra
note 9, 15- 32, I 7)
Hill, The Environment and Disease:
Association or Causation? PROC OF THE
ROYAL Soc'y. OF Mm, 58(5):295-300, 299
(1965)
Id at 300
HC Sox, MA BL,;rr, M.C HIGGINS, KL
MARTIN, MEDIC'IL DECISION MAKING, 33-34
(1988)
Id. at 33
Id at 34 (emphasis added)
Id
BW LEVY, DH. WEGMAN, OCCUPATIONAL
HEALTH: RECOGNIZING AND PREVENTING
WORK-REL'ITED DISEASE, 29 ( 1988)
Id at 34-35
Id. at 37
NEW YORK TIMES, December 30, 1995.
PHYSICIAN'S DESK REFERENCE,
supra note 5
SI. SCHWARTZ, RC LiLLEHEI, GT SHIRES,
F C SPENCER, E H. STORER, PRINCIPLES OF
SURGERY, 1682 ( 1974)
Thorson, Szabo, Tendonitis of the wlist and
elbow, 0cc MED, 4(3):419-431 ( 1989)
Id at 421
Id
Kasdan, Rogers, Hand Infections Seen in
the lndustlial Clinic, 0cc MED, 4(3):463-
471, 469 (1989)
Id at 470
Hogan, Tanglertsampan, The Less
Common Occupational Dennatoses, 0cc
Mm, 7(3)385-401, 388 ( 1992)
Id at 389
Id
Trial Talk
33 Morse, Unusual Occupational
Rheumatologic and Musculoskeletal Disorders,
0cc MED, 7(3):423-432, 424 (1992)
34 Id at 424
35 Travers, Soft Tissue Disorders of the Upper
Extremities, 0cc MED, 3(2) 271-283, 274
(1988)
36 Vanni er, Rose, Etiologies and Prevalence of
Occupational Injuries to the Upper Extremity
(in M L MSDAN, OCCUPATIONAL HAND AND
UPPER EXTREMITY [NIURIES AND DISEASES,
55 (1991 ))
37 ERA Merewether, CW Price, Report on
the Effects of Asbestos Dust on the Lungs and
Dust Suppression in the Asbestos Industry
( 1930)
38 Fleming, Ducatman, Shalat, Disease
Clusters: A Central and Ongoing Role in
Occupational Health, J OF 0cc MED,
33(7):818-25 (1991)
39 Id at 818
40 OS Miettinen, 3-4 ( 1970)
41 Id
42 Lanes, Poole, Truth in Packaging? The
Unwrapping of Epidemiologic Research, I OF
0cc. MED, 26(8) 571-574, 572-573
( 1984)
43 K j ROTHMAN, MODERN EPIDEMIOLOGY, 70
( 1986)
44 Vannier, Rose, supra note 36, at 55-56
45 S. H GEHLBACH, INTERPRETING THE
MEDIC'IL LiTER'ITURE, 3d ed , 58 ( 1993)
JThis article is based largely on a portion of
the F RC P Rule 26(a)(2) Expert Witness
Disclosure of David S Egilman, M D.,
M P H , filed in The Port Autho1ity of New York
and New jersey (formerly known as 'The Port of
New York Autholity") and Po1t Authority Trans-
Hudson Corporation vs Allied Corporation (individ-
ually and as a subsidianJ of "Allied-Signal, Inc "), et
al, 91 Civ 0310 (CLB) (MDF), US D Ct,
SDNYJ
J. Conard Metcalf is a shareholder in the
Boulder firm of Williams & Trine, P.C. He
represents individuals with injuries result-
ing from exposure to toxic substances.
37
 ~~ ," ",..-
Immigration · _; ;
- / • "
How to Find out What Government
Records Contain about Your Client
William R. Rosner, Esq. and Marin K. Ritter, Esq.
Copyright's! I 998 by the American Immigration
Lawyers Association Reprinted with permission
of AILS
I. INTRODUCTION
This article is intended to introduce you
to the computer systems maintained by the
Immigration and Naturalization Service
(INS). the Department of State (DOS) and
other agencies, and how to access certain
types of information contained in the sys-
tems that may pertain to your clients
Although many of the systems are no more
than record keeping systems, the inclusion
of aliens in government "lookout" systems
can result in lifetime exclusion from the
US Wrongful inclusion of an alien in the
system does occur, particularly when the
alien has a common name This article will
explore the methods by which such errors
may be corrected
II. "LOOKOUT" BOOKS
A. THE SERVICE LOOKOUT BOOK
The Service Lookout Book contains the
names of persons age 14 and older who are
(I) outside the US, (2) are prima facie
excludable, and (3) are likely to seek admis-
sion to the United States To be placed in
the lookout book, the INS must possess evi-
dence of excludability which is "of substan-
tial and sufficient weight to establish exclu-
sion grounds" in proceedings, or the data in
the record must be Aof sufficient quality to
support the conclusion that such data con-
stitutes prima facie exclusion charges I The
INS Examinations Handbook lists examples
of satisfactory evidence, including certified
criminal court records, official immigration
court records, statements made under oath
to Service officers, FBI records, or "rap
sheets" from police agencies
When in possession of such evidence, the
INS officer must prepare Form G-143
38
sc"' ~~ '
-
"C ~
(Lookout Notice Worksheet) and create an
A file for the individual. if one does not
already exist The officer must attach Form
G-355 (Action Control Card) to the A file,
which must be endorsed by every office hav-
ing control of the file Form G-143 must
clearly describe evidence or data in the file
that supports the lookout code shown and
should contain the basis for excludability,
citing the applicable section of the law The
following are several lookout codes which
are used to describe categories of exclud-
ability:
l Type C - Crewmembers;
2 Type D - Deportations (usually
accompanied by another lookout code
specifying the grounds of deportation);
3 Type E - Fraudulent Documents;
4 Type F - FBI Lookouts;
5 Type G - Other Government
Agencies (such as LPR Army desert-
ers);
6 Type H - Selective Service;
7 Type I - Immoral;
8 Type K - Criminal;
9 Type N - Narcotic;
IO Type P - Special Interest Cases
(used only for those cases which do
not fall into one of the other cate-
gories);
I I Type S - Smugglers or Aliens:
I 2. Type T - Customs Lookouts:
13 Type U - Subversive (includes
members of terrorist organizations:
classification under this lookout code
must be based on reliable and sub-
stantial evidence of excludability)
Trial Talk
Additional information on each of these
categories can be found in the
Examinations Handbook, Part I
B. THE DEPARTMENT OF STATE
LOOKOUT SYSTEM
The Department of State lookout system
is contained in the CLASS computer sys-
tem. described below Refusals of visas by
consular officers fall into two categories B
Category I (refusals based on INA
§212(a)( I). (2). (3), (6) or (8)) and Category II
(refusals which can be overcome by addi-
tional evidence) A consular officer who
refuses a visa to an applicant must orally
inform the alien of the provisions of the law
on which the refusal is based, and explain
whether administrative relief is available in
Category l cases, or what. if anything can be
done to overcome the refusal in Category II
cases. 2 When the alien is refused a visa
pursuant to INA §2 I 2(a). the consular offi-
cer must provide the alien with a written
notice listing the specific provision under
which the alien is ineligible Written notice
is not required in refusals based on other
sections of the law3 Consular officers are
required to stamp the passports of those
aliens refused visas with a stamp bearing
the code name of the post (a three-letter
code) and the phrase "Application Received
on !date! "4
The consular officer must then note the
date of and basis for refusal on the alien's
Form OF-156. 5 In Category I cases, the offi-
cer must complete Form OF- I 94: the form
need not be completed for Category II
cases. 6 The completed Form OF-194 should
contain internal data regarding the reasons
for refusal. reference to any relevant classi-
fied documents, data regarding review of
the refusal within the office, and notations
regarding documents subsequently submit-
ted to overcome the refusal All refusals
October/November 1998
must be reviewed by a supervisory officer If
the supervisory officer disagrees with the
interviewing officer, the supervisory officer
may assume personal responsibility for
granting the visa, or may request an adviso-
ry opinion from the Visa Office Note that if
an advisory opinion is requested, the visa
must be denied based on §221 (g) If the
advisory opinion determines that the alien
is ineligible under §§2 I 2( a). 2I 2( e) or
2 l4(b), the alien should be formally refused
under the pertinent section. 7
Consular officers are required to enter all
Category I refusals in CLASS, as well as all
refusals made pursuant to INA §2 l4(bi 8 In
some cases, an alien will inquire at a con-
sular post about visa eligibility, and based
on statements made by the alien, will be
told that he or she is ineligible Although
these cases of "quasi-refusal" are not con-
sidered "formal" refusals, if the alien does
not then make a formal application for a
visa, they are generally entered in the look-
out system 9
Consular officers may also revoke visas
under certain circumstances, such as upon
a finding of ineligibility under INA §2l2(a).10
When a decision to revoke has been made,
or if a consular officer believes that an alien
whose visa is subject to revocation is in the
United States, an entry concerning the alien
should be made in the lookout system
III. ACCESS TO DATA
Freedom of Information And Privacy Acts -
The primary access to government records
pertaining to your clients is through the
Freedom of Information Act (FOIA) and the
Privacy Act (PA) These statutes, codified at
5 USC §552, 552a, impose statutory
requirements upon government employees
for releasing information to members of the
public or other agencies FOIA requires
agencies to disclose any records they main-
tain to any member of the public, regardless
of citizenship or residence, unless the
record falls within one of the Act's specific
exemptions from mandatory disclosure
The Privacy Act applies only to US citizens
and lawful permanent residents, and pro-
hibits access to records by third parties
without the consent of the person to whom
the record pertains, subject to certain
exceptions The Act also allows the subject
of a record to be informed of others to
whom the record has been disclosed and to
request an amendment of the record
October/November 1998
A. FREEDOM OF INFORMATION ACT
INS regulations under FOIA are found at
8 C FR §I 03 8ff Requests made to the INS
under FOIA must be made in writing or on
INS Form G-639 FOIA requests may con-
cern the following types of records:
I Final opinions and orders made in
the adjudication of cases;
2 Statements of policy and interpreta-
tions which have been adopted but not
published in the Federal Register;
3 Administrative manuals and instruc-
tions to staff that affect a member of
the public;
4 Other records in response to a
request which reasonably describes
such records and is made in accor-
dance with INS regulations; and
5 Requests for records from alien files
made by nonimmigrants, or by others
without the consent of the record sub-
ject
The INS is required to comply with or
deny a request within ten working days of
its receipt by the appropriate office. An
extension of up to ten days may be request-
ed because of unusual circumstances,
which are limited to a need to search for
records, to retrieve records from a remote
location, or the need to consult with anoth-
er division or agency Denials must include
a reference to the specific exemption allow-
ing withholding and a statement of the right
to appeal Exemptions are listed in the act
and in the INS Examinations Handbook If
all or part of a request is denied or if no
reply is made within the specified period,
the requester may appeal to the Attorney
General or seek judicial review in federal
court The agency may be assessed court
costs and plaintiff's attorneys fees if it loses,
and officials may be disciplined if found
guilty of arbitrarily withholding
information 11
The procedures for requesting informa-
tion from the Department of State pursuant
to FOIA are similar to those described
above Requests must be made in writing
to the Department's Freedom of
Information Officer in conformance with the
regulations at 22 C F R § 171
B. PRIVACY ACT
The Privacy Act concerns any item, collec-
tion or grouping of information about an
individual that is maintained by an agency,
Trial Talk
including education, financial transactions,
medical, criminal or employment history,
etc These records are contained in
Asystems of records" under the control of
an agency, and information may be
retrieved by the name of an individual or
some other identifier assigned to the indi-
vidual, such as an A number or Social
Security number. Systems of records main-
tained by agencies must be listed and
described annually in the Federal Register
The Privacy Act allows individuals to
determine what records exist, to prevent
disclosure of records for certain purposes
without their consent, and to access, correct
and/or amend their records. An agency may
collect, maintain, use or disseminate such
records only if done for a necessary and
lawful purpose, and only if adequate safe-
guards are taken to protect the information
Agency officials may be fined if found guilty
of willful violation of the act, and other per-
sons may be fined if found guilty of request-
ing information under false pretenses An
individual may file a civil suit for damages
against an agency which fails to comply
with the act's requirements
Form G-639 is used to request informa-
tion maintained by the INS under the
Privacy Act A request may be received
either from a USC or LPR who is the subject
of the record, or from another party with the
subject's consent The identity of the
requestor must be verified by a notarized
statement The agency must allow the
requestor to gain access to records about
himself, and the requestor may obtain
copies of all or any portion of the records
The requestor may request amendments or
corrections to the records. The agency must
acknowledge such requests within ten work-
ing days of receipt, and must correct the
records or deny the request promptly If the
request is denied, the agency must inform
the requestor of his right to request a
review of the decision by the Attorney
General There are several exemptions
which allow withholding of records from the
requestor; they are listed in the INS
Examinations Handbook, Part I
The procedures for requesting informa-
tion from the Department of State pursuant
to the Privacy Act are similar to those
described above Requests must be made
in writing to the Department in confor-
mance with the regulations at 22 C F. R
§171
continued on page 40
39
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IV. HOW TO CORRECT V. DOS AND INS COMPUTER 4. IBIS • Interagency Border
Inspection System
INCORRECT DATA SYSTEMS IBIS facilitates inspection of applicants
If a client believes he or she is incorrectly A. DEPARTMENT OF STATE SYSTEMS for admission to the US IBIS uses docu-
listed in the lookout system, there are sev- The Department of State has several ment readers which scan travel documents
eral things which may be done to remedy computer systems for issuing visas and list- Federal agencies involved with border secu-
the problem First, the attorney should ing names of ineligible aliens The rity, including INS, Customs, and the
obtain as much information concerning the Department's current systems are discussed Department of State, use IBIS to share
client's belief as possible For example, was below information regarding border issues
he or she refused admission at a port of
entry or denied a visa at a consulate? I. ClASS • Consular Lookout and 5. IVACS • Immigrant Visa Applicant
Where? Was a notation made in the client's Support System Control System
passport? If the client was not actually This is the current Department of State This is an existing computer system used
refused entry or a visa, what leads the client lookout system, centralized in Beltsville, to produce a laser-printed immigrant visa
to believe he or she has been placed in the Maryland The system contains names of form to which is attached the packet of
system? Try to find out exactly what tran- those people who have been or would likely information needed to complete processing
spired be found ineligible for a visa Names are of an immigrant visa. The system is gradu-
If it is unclear why the client believes he kept in the system for varying lengths of ally being replaced by the Modernized IV
or she is in the lookout system, or appears time (ranging from one year to permanent- system
to have been improperly refused a ly), depending on the ground of ineligibility
visa/admission, the first step is to contact All posts have automated access to CLASS 6. Modernized NIV and IV Systems
the port of entry or consular office by letter, through direct telecommunications lines These systems are currently being phased
followed by a telephone call If the official Posts check CLASS prior to issuing a visa in at consular posts by the Department
you contact is unwilling or unable to pro- The systems feature PC-based client server
vide you with information, file a FO[A 2. Datashare configurations and upgraded communica-
request with the appropriate agencies Datashare is a new program being imple- tion lines which are designed to allow for
The next step is to contact the INS, mented by the INS and the State the replication of data from consular posts
Department of State and the U S Customs Department to share data on immigrant abroad to the Visa Office in Washington
Service by telephone to determine if your visa applicants electronically The program The Modernized IV system will eventually
client is listed in the lookout system of is currently limited to 15 of the replace IVACS; the NIV system will replace
either INS, DOS or Customs. The agency Department's largest immigrant visa issuing NIVCAPS. Currently only a few posts have
which challenged the client should be your posts and a similar number of ports of been modernized, including Seoul, Bogota,
first contact Staff are sometimes willing to entry Selected data fields on applicants are Montreal, Toronto, Vancouver and Ottawa
discuss cases with you over the phone If stored centrally as well as transmitted elec- The Department hopes to have all posts
not, you should write a letter to the appro- tronically between the INS Service Centers, modernized by 2000
priate personnel and follow it up with a the National Visa Center, consular posts
telephone call. The agency may refuse to abroad and US ports of entry The pro- 7. MRV - Machine-Readable Visa
provide information without a FOIA request gram has thus far succeeded in reducing System
If your inquiries and FOIA requests reveal duplication of data entry and allowing The Machine-Readable Visa is a durable,
that your client is wrongfully listed in the speedier transmission of data between the long-lasting adhesive foil designed to
lookout system, you must contact the offices The agencies involved will be work- improve security and protect against coun-
appropriate offices of the INS and/or the ing on improving the existing system, intro- terfeiting MRVs are affixed to passports
Department of State to request the removal ducing nonimmigrant data into the system, and contain specific biographic data on the
of your client's name The INS office is the and bringing more INS and State bearer, a digitized photograph of the alien,
Assistant Commissioner of Inspections; the Department offices on-line and specifically encoded machine-readable
Department of State office is the Systems encryption data. MRVs were implemented
Liaison Division Along with your request 3. DNC • Distributed Name Check in l 989 to replace the Department's old,
you should submit all available documenta- System mechanically-stamped visas. All posts now
tion to establish that your client should not A stand-alone personal computer system issue MRVs exclusively
be included in the system Such documen- containing the CLASS database on
tation could include a physical description CD-ROM DNC allows posts to check the 8. MRV-2 • Machine-Readable Visa
of your client, evidence pertaining to your lookout system when telecommunications System (Revised)
client's residences and employment history, lines are inaccessible There have been The original MRV System generated
police record checks and sworn statements recent problems with the software which encryption codes designed to be scanned
If your inquiries reveal that your client have prevented posts from having full infor- by Ports of Entry to verify the validity of the
has in fact been properly included in the mation at the time of visa adjudication: the visa. Unfortunately, the INS did not have
system, the only available option is to seek Bureau of Consular Affairs has developed the capability to read these encryption
appropriate waivers of ineligibility and is distributing a newer version of the
DNC which addresses these limitations

40 Trial Talk October/November 1998

codes, so the codes were not scanned by
the INS upon entry to the US MRV-2 is
designed to correct this limitation and has
the capability to transmit electronically rel-
evant N!V data to Ports of Entry
9. NIVCAPS - Nonimmigrant Visa
Computer Assisted Processing System
Similar to IVACS, NIVCAPS is the existing
system which is used to produce MRVs
The system is currently being replaced by
the Modernized NIV system
I 0. PCLS • Public Charge Lookout
System
This system is designed to be used as a
tool by posts to identify an [V applicant's
ineligibility on public charge grounds The
PCLS is not quite the same as CLASS; the
term refers to the process of checking with
individual states to determine the existence
of a public assistance record of a particular
applicant or his or her sponsor in the U S
Most states are not automated, and are
hampered in their ability to provide this
information by internal confusion regarding
the maintenance of such records as well as
staff and budget limitations. As a result,
posts expend significant amounts of time in
making checks into public charge ineligibili-
ty of visa applicants The State Department
is continually undertaking efforts to
enhance the system and reduce the amount
of time consular officers must spend on eli-
gibility verification
B. IMMIGRATION AND
NATURALIZATION SERVICE SYSTEMS
The INS maintains many different com-
puter systems for use in its enforcement,
examination and administrative functions
The INS also uses other systems main-
tained by other agencies, including the
Department of State The major systems,
whether or not maintained by the INS, are
discussed below The first five systems list-
ed support the INS Enforcement function;
the remainder support the Examinations
function
I. DACS • Deportable Alien Control
System
DACS supports field casework activities
associated with aliens who are detained or
placed under docket control for deportation
or exclusion It resides in an Integrated
Data Management System (!OMS) database
October/November I 998
on the DO) mainframe data center All INS
field offices have access to the system
2. ENFORCE - Enforcement Case
Tracking System
ENFORCE is an incident-based case
tracking and reporting system which
presently supports the Notice to Appear
(NTA) process. Software releases with
added functionality (such as interfaces with
other INS systems) are planned every five
months The current version includes an
interface with !DENT The system is cur-
rently being deployed throughout INS
3. !CAD II - Intelligent Computer
Assisted Detection II
This is a PC-based system that supports
the intrusion detection and agent dispatch-
ing functions of the Border Patrol by moni-
toring sensor activity and tracking agent sta-
tus The system tracks and displays sensor
hits on US land borders Hits are then
transmitted to the sector Headquarters,
where the system alerts agents to the activi-
ty !CAD can track agents who are dis-
patched, results of the dispatch, whether
aliens have been detained, and monitor the
time from an agent's last transmission to
initiate a warning for the dispatcher to call
the agent !CAD also produces a variety of
local reports relating to the information the
system receives
4. !DENT - Automated Fingerprint
Identification System
!DENT is a PC-based fingerprint identifi-
cation system which assists INS in the iden-
tification of repeat illegal entrants and
aliens wanted by other law enforcement
agencies The !DENT system is planned for
use by all INS organizations through inter-
faces with enforcement and benefits sys-
tems Eventually, !DENT will directly inter-
face with the FBI
5. LYNX - Work Site Enforcement
System
LYNX is a database used to track employ-
er sanctions case information The system
creates forms for the input of employer
sanctions data, such as immigrant and
employer name, work site location and
nature of sanction INS management,
investigations, District Counsel and Border
Patrol agents are the primary users of the
system, as well as the primary points of
data entry
Trial Talk
6. APIS - Advanced Passenger
Information System
APIS is a component of IBIS that facili-
tates the automated inspection and lookout
information technology at ports of entry
and pre-inspection facilities Data for APIS
is gathered by airlines and travel agencies
during the initial scheduling of travel. Basic
information such as name, date of birth,
etc is captured Prior to the arrival at a port
of entry, the APIS information is used to
query the multiple lookout systems. The
port of entry will then receive a list of pas-
sengers If the passenger is not on the APIS
list, the person's passport is scanned at pri-
mary inspection which initializes a TECS
database inquiry
7. APP-Automated Permit Port
APP is a PortPASS system used mainly on
the northern border in remote ports of entry
where a full-time inspections agent is not
required The system uses a voice verifica-
tion system, remote inspections and back-
up surveillance cameras if voice recognition
fails It is targeted toward low-risk travelers
who frequently enter the U S from Canada
After enrolling in the voice verification sys-
tem (AVACS"), the traveler enrolls in the
PASS Enrollment System and receives an
identification card containing machine
readable data. The card has a signature, a
photograph, and hand geometry informa-
tion To use the system the traveler
approaches the port of entry and stops at
the telephone booth. The driver types in
the PIN assigned at enrollment The driver
then says an access phrase which was
recorded at enrollment If all is correct, the
driver will hear an acceptance phrase, a tick-
et with the date and time will be provided
from a ticket machine, and the gate will rise,
allowing the vehicle to proceed into the
United States
8. CIPRIS - Coordinated lnteragency
Partnership Regulating International
Students
CIPRIS is a prototype system which is
being used to track the status of alien stu-
dents and exchange visitors in the U S and
the schools authorized to enroll them
CIPRIS captures information on-line at the
Hartsfield Port of Entry in Atlanta, interpret-
continued on page 42
41
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7
= ~,~
~ ,%"*:-~::/~~~~s-~~-~~,=~~~,_::-- ~ ~
>-~~
Ho¥' to _Find out.,. continued.fro,111 page 41
~"-~ ¼AS j,-""~~i4" ~· -°',, ,,~~;
ing bar codes of Forms IAP-66 and l-20. The
prototype environment is divided into two
systems; eventually they will be incorporat-
ed into one system which will implement
electronic processing of student forms and
events. The creation of a student registra-
tion card is also envisioned
9. CIS - Central Index System
CIS is an automated system that main-
tains records on the locations of hard copy
A-files and certain data about the individual
to whom the A-file pertains Inquiries to
the system can be made at any level of INS
by A number or by name and date of birth
The CIS contains information on all aliens
with A- files created after March 1975
I 0. CLAIMS - Computer-Linked
Application Inventory Management
System
CLAIMS records and tracks cases for
immigration benefits It incorporates case-
work-oriented software systems designed to
support the processing of applications or
petitions for immigration benefits. CLAIMS
supports the adjudication efforts of the INS
and serves as a central source for document
production A Local Area Network version
of the system is used to process applica-
tions and petitions sent to the INS Service
Centers pursuant to the Direct Mail
Program These records are then sent to
the mainframe system for further process-
ing CLAIMS also includes a receipt track-
ing system CLAIMS also includes FARES, a
component of the system which accounts
for fees received by applicants for immigra-
tion benefits Presumably, FARES will be
replaced by CLAIMS4, discussed below
11. CLAIMS4
CLAIMS4 is a variation of the CLAIMS
system that has been implemented in the
Nebraska Service Center and the Chicago
District Office Cases filed under this sys-
tem will reflect receipt numbers with a"* "
The system also automatically endorses fee
checks with a number and a"$" sign for
multiple filings paid with one check The
INS is able to track cases either by the
receipt number or the number on the can-
celed check As of early April I 998, the
Texas Service Center was in the process of
implementing the system The California
and Vermont Service Centers are expected
to begin the transition process during late
spring 1998
42
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- ~~ _x~,:,::;,ii 1~,;se1sz:--;,,;=,,;~,f~~";~,,,-=,:;" = ~
12. EADS - Employment Authorization
Document System
EADS is a stand-alone PC system used to
capture data and generate standardized
employment authorization documents The
information contained on the card is stored
in an automated database where it can be
accessed by terminal inquiry
13. INS Direct (ITHS) - Interactive
Telephone Help System
ITHS is a menu-driven system for retriev-
ing answers related to immigration and nat-
uralization questions used by the operators
on the ASK IMMIGRATION telephone line
The system includes general information
and requirements on naturalization and
immigrant and nonimmigrant visas, filing
procedures, and information on INS District
offices The system enables operators to
answer quickly approximately 50% of
callers' questions
I 4. INSPASS-Al - INS Passenger
Accelerated Service System-Airport
This is a kiosk-based system for process-
ing airline passengers entering the US
Passengers are inspected during the enroll-
ment process (valid for one year) and are
issued a card containing machine-readable
identifying information and their hand
geometry (biometric data) is measured
During subsequent inspections, the passen-
ger presents his or her card at the kiosk,
where it is read and the system queries a
national database The passenger's hand
geometry is compared to that captured dur-
ing enrollment If the system finds no
adverse information in the national data-
base and the passenger provides matching
biometric data, he or she is issued a receipt
and allowed to proceed directly to the
Customs inspection without the interven-
tion of an Immigration Inspector. The sys-
tem communicates with IBIS/fECS, which is
maintained by the Customs Service
15. INSPASS-LB - INSPASS-Land
Border Validation System
This system uses hand biometrics and a
card with a magnetic strip to validate
pre-enrolled pedestrians The pedestrian
walks up to a kiosk, passes the card through
a reader, and inserts his or her hand into a
biometrics scanner for verification. The sys-
tem processes at the rate of one pedestrian
every l 5 seconds Pedestrians may register
for the card via walk-in or through the mail,
Trial Talk
= ,,~ ~ ~ ~~
0
71 ~~ "~~ -~-s:-~ ~~~~:~J'~<~ ~~~ ~
. ·
~ ="'• ~ ,,,:~~~~-20/_:,,,~:,, "''"~-- 0='"~~:v,.,""ii,,",,.:""' v,;,'~~ "":c<~
but must make a personal appearance for
the biometrics validation scan
16. MFAS - Marriage Fraud
Amendment Act System
MFAS is a case tracking system which
supports the adjudication of petitions cov-
ered by the Immigration Marriage Fraud
Amendment Act of l 986
I 7. NACS - Naturalization Application
Casework System NATS B Naturalization
Subsystem
NACS (or RNACS) is a centralized data-
base system accessed by INS district offices
and suboffices which supports the process-
ing of naturalization and nationality cases
It maintains biographical and case data on
naturalization applicants and handles case
hearing, scheduling and notification. NATS
is the first subsystem of a new reengineered
CLAIMS capability The NATS project will
provide the analysis, design, development,
integration, conversion, rapid application
development, prototyping, implementation,
and O&M support for NACS
I 8. NAILS II - National Automated
Immigration Lookout System
NAILS is the INS lookout database that
contains records on those aliens who
should not be permitted to enter the coun-
try These records are taken from the Service
Lookout Book and CLASS. During primary
inspection at land, sea and airport ports of
entry, inspectors query this system through
the IBIS interface on TECS terminals The
CD-ROM version of this system is called
PALS, or Portable Automated Lookout
System
I 9. NIIS - Nonimmigrant Information
System
NIIS is a mainframe system accessible by
all INS offices with access to the DOI com-
puter It is an index of all nonimmigrant
arrival and departure records The INS has
recently launched a pilot version of a new
application, known as 1-94, which is
designed to evaluate and automate the 1-94
process The application will concentrate
on the five largest airports where approxi-
mately 65% of 1-94 forms are filed. The
application will also be responsible for the
TWOV Form for Interim Landing and the
Visa Waiver form (I-94\V) The application
will use the IBIS LAN at primary inspection
stations. The pilot sites are the
Philadelphia and Munich airports
October/November 1998
 20. PAMS - Private Attorney
Maintenance System
PAMS is a central repository of private
attorney information accessible by users of
the NACS, DACS, MFAS, RAPS and CLAIMS
systems
21. RAFACS - Receipt Alien File
Accountability & Control System
RAF ACS is a PC LAN system which is
used to track the location of receipts and
alien files within designated offices Each
designated office sustains a daily interface
with CIS to provide timely, accurate
accountability of files
22. RAPS - Refugee, Asylum & Parole
System
RAPS is an integrated automated asylum
case tracking and management system Its
capabilities include the production of status
mailers, performance tracking needed to
conform to Federal requirements, automat-
ed generation of Orders to Show
Cause/Notices of Removal, and automated
case referral and scheduling It also
includes modules to support the refugee
and parole programs
23. RIPS - Record of Intercepted
Passenger System
RIPS is a microcomputer-based system
that functions as an enforcement reporting
and analysis tool INS inspectors and man-
agers at ports of entry and employees of
INS' Office of Inspections use RIPS for the
input, analysis and reporting on intercepted
passengers. Its features include: data input
based on type of documents presented by
the intercepted passenger; information on
the subject, documents, itinerary, fines and
case disposition; and the capability to cre-
ate a monthly data file for submission to
INS HO, which is used for compiling nation-
wide statistics
24. SAVE - Systematic Alien
Verification for Entitlements
SAVE allows state and local
benefit-granting agencies to verify the
immigration status of aliens applying for
benefits under certain federally-funded enti-
tlement programs
25. SENTRI - PortPASS Dedicated
Commuter Lane
This system allows for the automated
inspection of low-risk frequent vehicular
border crossers on the US -Mexico border
October/November I 998
It allows a commuter to present a card for
scanning to cross the border, drastically
cutting inspection time Participants apply
for the program and, if approved, receive a
PortPASS card and an "RF" tag is attached
to the participant's vehicle When entering
the Commuter Lane, the tag is read and the
individual's photo appears on the monitor
for the inspector to verify The individual
then presents his or her PortPASS card,
which is scanned, and a gate is lifted
enabling the individual to proceed across
the border
26. TECS - Treasury Enforcement
Communications System
TECS is the information and communica-
tion system for the US Customs Service,
the Bureau of Alcohol, Tobacco & Firearms,
IRS Intelligence and Inspection Divisions,
and the U S National Central Bureau of
INTERPOL. TECS also provides services to
the Drug Enforcement Administration, the
Department of State and the Coast Guard
It is available at all U S ports of entry and
provides users with lookout information on
suspect individuals, businesses, vehicles,
aircraft and sea vessels. It also serves as an
automated index to Customs enforcement
files, Bureau of Alcohol Tobacco and
Firearms records on fugitives, stolen
weapons and explosives and other informa-
tion on pilots in private aircraft, commercial
aircraft, smuggling techniques and private
and commercial sea vessels TECS also
provides access to NCIC and the Service
Lookout Book
VI. CONCLUSION
As seen above, the government main-
tains a dizzying array of computer systems
and files on virtually every foreign national
entering this country Most of the informa-
tion contained in these files is routine,
maintained to process applications for
immigration benefits However, inclusion
of information about your client in some of
these systems can result in denial of bene-
fits, including entry to the US
Wrongful inclusion in the system can
result from data entry errors, such as birth
date or middle initial A consul's error in
checking CLASS for a common name, for
example, can result in your client being
branded a terrorist and denied a visa. For
this and other reasons, it is important to be
aware of the government's data systems,
the types of information contained in them,
and how to access that information
Trial Talk
Additional information on the systems dis-
cussed in this article can be obtained from
the offices described above, as well as from
the regulations, the INS Examinations
Hand&ook, the Foreign Affairs Manual, the INS
Office of Information Resources
Management, and the Department of State
Visa Office
ENDNOTES
INS EXA1111N,,;110Ns HANDBOOK, Part I
(1988)
2 See, 9 FAM '41 121, PNl 2
3 Id
4 Id. at PN I 3
5 ldatPN12(c)
6 Id at PNI 2(d)
7 Id atPNl 2(e)
8 Id at PNl 2(f)
9 Id. at PN2
10 See, 22 C F.R '21 I 12(a)(2) and 9 FAM
§41 122, NI
11 Additional information concerning the
agency's obligations under FOlA can
be found in the INS Examinations
Handbook, Part I
William R. Rosner has practiced immigra-
tion law in Cleveland with Rosner &
Associates Co,. L.P.A since 1994. Mr.
Rosner served as a Foreign Service
Officer With the United States
Department of State from 1973 to 1987.
His assignments abroad, as a Consular
Officer, included postings in Mexico,
West Africa and the Netherlands. From
1987 to 1994, he practiced immigration
law in the Cleveland office of Jones, Day,
Reavis & Pogue. Mr. Rosner received his
J.D. from the University of San Diego in
1982. He is admitted to the bars of Ohio
and California.
Marin K. Ritter practices immigration law
in Cleveland, Ohio with Rosner and
Associates Co., LPA. She recieved her
J.D., cum laude, from Case Western
Reserve University School of Law in 1996.
43
 • .- -
CASE REPORTS .. . : ·
• • - ;K
CASE REPORTS
Haskins v. Patrich Hunter d!b!a! Hunter
Construction Company, Pitkin County District
Court, 97 CV l 53, Judge Thomas W Ossola
Verdict: February 4, l 998
Amount: $118,685
Facts: Defendant's employee backed its
trash truck into the front of the pickup occu•
pied by the plaintiff The plaintiff was look-
ing backward over his left shoulder while
stopped on the side of the road. The result·
ing collision caused a flexion-extension
injury to the neck The plaintiff initially
sought chiropractic help, but after experi·
encing minimal improvement he went to
his family doctor who tried muscle relaxants
and pain medications He was then referred
to a pain specialist who performed several
sets of injections into the areas causing the
pain Because the plaintiff was a dry wall
contractor and had to hold his head upward
while plastering ceilings, this relief did not
last Ultimately, the pain specialist did a
nerve oblation, severing seven nerves from
the spine to the skull Defendant had a lia-
bility policy of $100,000
injuries: $2500 property damage; $7077
medical
Unique issues: Default judgment entered
against defendant Defendant did not take
a single deposition, did not do an !ME, did
not endorse any witnesses. Defense coun•
sel called during status conference to
announce that he could not attend jury trial
next day and to request continuance
Plaintiff objected Court issued default
judgment
Plaintiff's attorney: Dan Shackleford Shipp,
Aspen CO
Defense attornevs: Lee Romero and Sharon
Allison, Hanson & Associates, Greenwood
Village CO
Plaintiff's exoerts: Dr Gary Spevere, Rifle
CO (chiropractor); Dr. Anthony Sheplay,
Grand Junction CO (pain specialist)
Defendant's experts: none
Insurer: Allstate
Busan v Dr Hageseth, Larimer County District
Court, 97 CV 397, judge john-David Sullivan
Verdict: March 30, l 998
Amount $217,373
Facts Psychiatrist engaged his patient in
sexual contact Husband of patient, who
was himself a patient, sued psychiatrist
44
- .. -~ ~
. -
- \ - >
injuries: Psychological damages, depres·
sion
Plaintiff's attornev: joyce Seelen, Seelen &
Associates, Denver CO
Defense attorneys: jay Reiman, Gallo &
Reiman, Denver CO
Plaintiff's experts: Dr. Gary Maz, Denver CO
(psychiatrist); Dr Ion Bell (psychiatrist)
Defendant's experts: Dr Portnow, New York,
New York (psychiatrist)
insurer: Reliance Insurance Company
Miller v American Taekwondo Association;
lefferson County District Court, No 96 CV
2296, judge lames D. Zimmerman
Verdict: June 29, l 998
Amount: $750,000
Facts: A boy was abused sexually by his
martial arts teacher The organization negli·
gently investigated the allegations and the
abuse continued
Injuries: Pre-existing condition, negligent
investigation
Plaintiff's attornev: joyce Seelen, Seelen &
Associates, Denver CO
Defense attomevs: Terry L Lutts, Bayer
Carey & McGee, Denver CO; Clifton
Latiolais, Campbell, Latiolais & Ruebel,
Denver CO
Plaintiff's exoerts: Phil Teschhe, Denver CO
(psychologist); Christopher Griffiths,
Colorado Springs CO (economist)
Defendant's exoerts: None
Insurer: Redland Insurance Company
NWIS and NRRI v Public Service Co, Jefferson
County District Court, No. 96 CV 2215, Judge
Ruthanne Polidori
Verdict: August 19, 1998
Amount: $1,873,285 (includes: punitive
$278,500; loss of use $237,285; property
value $1,357,500)
Facts: Client owned property next to Public
Service Company's Leyden Gas Storage
Facility in lefferson County Facility's gas
found to be leaking on to client's property
Client lost his insurance, could not develop
property
Injuries: Loss of use; loss in value; remedia·
tion damages; residual loss in value; lost
profits; punitive damages
Plaintiff's attorney: Kevin S Hannon and
Carolyn Smith, The Law Firm of Kevin S
Hannon, Denver CO
Defense attomevs: Herbert C Phillips,
Trial Talk
- ~"" ~ -
~ - d q ::~ - ~ ~ ~: Py
Hayes Phillips and Maloney, Denver CO;
Kathryn Elzi, Koncilja & Associates, Denver
CO; Lisa Lett, Public Service Company,
Denver CO
Plaintiff's experts: Wayne Hunsperger,
Hunsperger & Weston, Englewood CO, (real
estate appraiser); Perry Sant, Lakewood CO,
(financing); Paul Trost MTARRI, Golden, CO
(petroleum geology and geochemistry);
Niles Grosvenor, Grosvenor Engineering,
Littleton CO (coal mining)
Defendant's experts: Dennis Coleman,
lsotech, Champaigne, IL (isotopic analysis);
David Cox, Questa, Denver CO (petroleum
geology); William Uding, Public Service
Company, Denver CO (reservoir opera·
tions) Glenn Knepper, Houston TX (reser·
voir operations)
Insurer: none
Bohrer v. Church Mutual Insurance, Colorado
Supreme Court, No 97 SC 240, en bane
judgement reversed and case remanded
with directions
Date of Decision: September 2, 1998
Facts: The Colorado Supreme Court ruled
that a plaintiff who was sexually abused by
her minister could recover from the insurer
for improper counseling despite a sexual
acts exclusion
lniuries: Psychological damages of
$187,500 Punitive damages not recover·
able from insurance
He was then referred to Dr. Anthongy
Sheplaty, a pain specialiost in Grand
junction Dr. Sheplay performed several
sets of injections into the areas that were
causeing the pain The treatment provided
temporary relief but with mr Haskins being
a dray wall contractor and habing to hold
his head upward while plastering ceilings,
the relief did not last Ultimately, Dr
Sheplay did a nerve oblation severing seven
nercies from the spine to the skull
Plaintiff's attornev: Joyce Seelen, Seelen &
Associates, Denver CO
Defense attorneys: William L Senter and
Peter A Doherty, Senter Goldfarb & Rice,
Denver CO
Plaintiff's exoerts Dr. Fred Miller, Denver
CO (psychiatrist)
Defendant's experts: Dr. Taylor Trentwood,
Denver CO (psychologist)
Insurer: Church Mutual insurance
Company
October/November 1998
Trial Talk® is pleased to announce CASE REPORTS, a new feature which will debut in the January, 1997
issue (or as soon as we have verdicts and settlements to report) Please use this form or send us the
following information on a separate sheet Any summary not submitted in this format will be rejected
without modification

Case Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Court Name _ _ _ _ _ _ _ _ _ _ _ __

Case Number: Trial Judge: _ _ _ _ _ _ _ _ _ _ _ __
Date of Verdict/Settlement/Appellate Decision· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Settlement/Verdict Amount _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Mediator/Arbitrator (Name, company, city only): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Facts of Case (35 words or fewer)· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Injuries/Damages Claimed/Amounts (35 words or fewer)

Unique Issues (by keywords - 10 or fewer)· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Plaintiff's Attorney(s) (name, firm and city only): _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Defense Attorney(s) (name, firm and city only)· _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Plaintiff's Expert(s) (maximum 4 - name, company, city, field of expertise): _ _ _ _ _ _ _ _ _ __

Defendant's Expert(s) (maximum 4 - name, company, city, field of expertise): _ _ _ _ _ _ _ __

Insurer:------------------------------------
Please complete and mail or fax to Kevin Hannon, Trial Talk® Editor, 1775 Sherman St, Suite 2000,
Denver CO 80203; fax 861-8855

October/November I 998 Trial Talk 45

 Patric LeHouillier
EAGLE MEMBERS ADVOCATES
John A. McDermott
($3,500 - $4,999)
Peter A. Goldstein Raymond Micklewright
Kenneth Jaray Laird Milburn
Jack Kintzele James Rollin Miller
CHAMPIONS
Todd J. McNamara Frederick W. Newall
($15,000-$24,999)
Joseph Mellon William Nowland
* Anonymous
John P. Nanney, III Bradford Pelton
Fogel Keating Wagner Polidori Shafner
Robert F. Pribila Harlan Pelz
Struthers and Heron
Lee Rosenbaum Ronald A. Peterson
* McDermott and Hansen
Kenneth Shakeshaft Ronald Pred
* Rossi, Cox, Kiker & Inderwish, P.C.
Gerald P. Sloat Daniel Reilly
Norton Frickey & Associates of V. James Robinson
BENEFACTORS
Colorado Springs Terry Rogers
($10,000 - $14,999)
Gradisar, Trechter, Ripperger & Steven H. Schinker
* Bragg & Baker, P.C.
Croshal Joyce Seelen
* Branney, Hillyard & Barnhart, L.L.P.
McDivitt Law Firm, P.C. Ed Smalley
* Breit, Bosch, Levin & Coppola, P.C.
Stevens, Littman & Biddison Mickey W. Smith
* Gilbert, Frank, Ollanik &
Taussig & Taussig Lee N. Sternal
Komyatte, P.C.
Anthony J. Sturniolo
The Leventhal Law Firm
SPONSORS James Wollrab, Jr.
* Purvis, Gray, Schuetze & Gordon
($2,500 • $3,499) Bachus, Schumacher & Schanker, L.L.C.
* Salmon, Lampert & Clor, P.C.
Marilyn Biggs Adkins Ciancio, Tasker, Dupree & Jonsen, P.C.
Mark Anderson Davis & Ceriani, P.C.
DEFENDERS
James Bartimus Dwyer, Huddleson & Ray, P. C.
($7,500 - $9,999)
Gregory Chernushin Darrell S. Elliott, P.C.
* Schoenwald, Sanger & Kudla, L.L.C.
Steven C. Choquette The Elliott Law Offices
* Bogue, Koury & Marylander, L.L.C.
Philip R. Cockerille Ewing & Ewing, P.C.
Bartley Costello Bruce P. Fierst, P.C.
PATRONS
Macon Cowles Fischer, Howard & Francis
($5,000 - $7,499)
Francis K. Culkin Fish &Coles
Mari Bush
Patricia Dean Keith Evan Frankl, P.C.
James Cederberg
Shelley Don Gelt, Fleishman & Sterling, P.C.
Richard M. Hodges
Jennifer Donaldson Harshman & McBee
J . Conard Metcalf
Kenneth Dresner Heuser & Heuser
Michael Sawaya
Gregory Fasing Hutchinson, Black & Cook, L.L.C.
William Trine
W. Harold Flowers Irwin & Boesen, P.C.
* Beem & Mann, P.C.
Will Godsman Kiel & Trueax, P.C.
Buchanan, Jurdem & Zulauf, P.C.
E. Ricardo Gonzales Maiman, Trattler & Dehncke, P.C.
* Cook & Lee, P.C.
Kevin Hannon Miller & Steiert, P.C.
* Crane and Tejada, P.C.
Cathryn L. Hazouri William E. Myrick & Associates
* John Gehlhausen, P.C.
Thomas Herd Netzorg & McKeever, P.C.
Hult, Garlin, Driscoll & Murray, L.L.C.
Alan E. Johnson Daniel W. Patterson & Associates
* McCormick & Christoph, P.C.
A. Bruce Jones Sears & Swanson, P.C.
Melat, Pressman, Ezell & Higbie, P.C.
J. Keith Killian Stafford & Stafford, L.L.C.
Rotole, Jaunarjas, Blanchard &
Edward LaBarre Steninger, Balkenbush & Free, L.L.C.
Lumbye, P.C.
Bruce Lampert Sullivan and Sullivan, P.C.

46 Trial Talk October/November 1998

ASSOCIATES Eric Ruderman Richard Lesch
($1,200 for lawyers practicing 7 years Michael Seckar Kurt Lewis
or less) Pamela Shaddock Noel Lindenmuth
Jeanette Eirich Jeffrey Springer Douglas T. Logsdon
Shawn McDermott Steven Taffet Ira M. Long, Jr.
Steven R. Schumacher James B. Turner Gary Lozow
Robert Turner Ruth Maiman
CONTRIBUTORS J. Gregory Walta Steven McBride
$ I ,500 - $2,499 Richard Whaley Thomas Arthur Nelson
Scott DeDolph Michael A. Williams P. Randolph Nicholson
Jeffrey Herren Bullard, Larsen & Plock, P.C. Steven T. Nolan
Dan Hover Downey & Knickrehm, P.C. Neil O'Toole
Gary Jackson Keller, Wahlberg & Morrato, P.C. Sidney Patin
R. Brooke Jackson Lamm, Freeman & Butler, P.C. Rick Ranson
Teresa Locke Martin & Mehaffy, L.L.C. James Rifkin
Charles Welton Pendleton, Friedberg, Wilson, Hennessey John Sadwith
Vance Wengler & Meyer, P.C. Marc Salzberg
Harden, Hass, Haag & Hallberg Ramey & Hailey Steven A. Shapiro
Miller & Harrison, L.L.C. Trimble & Nulan, P.C. Dan Shackelford Shipp
Lapuyade, Washington & Molk, L.L.C. Truhlar and Truhlar David J. Stevens
Ogborn, Summerlin & Ogborn, L.L.C. Craig E. Wagner
$500-$999 Joseph R. Winston
$I ,000 - $1,499 Anonymous (3) Bernard, Lyons & Gaddis, P.C.
Doug Abbott Mitchell Baker Brownstein, Hyatt, Farber &
James G. Anderson Phillip D. Barber Strickland, P.C.
Robert J. Anderson Juanita Benetin DiGiacomo & Jaggers, L.L.P.
William Babich Rebecca Bradley Feiger & Collison, P.C.
Steve Berkowitz Paul Bratfisch Frank & Finger, P.C.
John Cimino Randle Case Gerlach & Weddell, P.C.
Miles Cortez Sarah Christensen Kettelkamp, Young & Kettelkamp, P.C.
Frank Cristiano Michael A. Cohen Martens & Norton, L.L.C.
Don D'Antuono Joan Garden Cooper Milan & Malara, P.C.
Michael DiManna Tim Correll The Ott Law Firm, P.C.
John Evangelisti Charles Crosse Schreiber & Spicer, P.C.
David Fogel Jerre Dixon Sonheim, Helm & Less, L.L.P.
Dale A. Gaar J. Michael Dowling Wills & Adams, L.L.P.
Brian K. Holland James M. Edwards
Rick Kalamaya Clifford Eley FOUNDERS
William M. Kane Howard Flicker (Deferred Gifts)
Robert Kayser Rod Gloria Kenneth Norman Kripke
Robert Koehler David J. Greene
Stuart Kritzer Sharon Grossenbach *Indicates I 00 percent EAGLE participa-
David Lichtenstein John Head tion by CTLA members in firms giving
Dan Mahoney G. McCelvey (Mac) Hester $5,000 or more.
Lawrence Mertes Richard Irvin
Steve A. Miller Ruth Irvin We appreciate the support of those donors
Thomas J. Overton Ronald Jung giving up to $499, but due to space limita-
David A. Klibaner tions, we are unable to list their names.

October/November 1998 Trial Talk 47

 • ;& S SC
AMICUS CUR~J.µt·!t~~~R'F
Constructive Knowledge
Alive And Well In
lip and Fall as s
ecent unpublished opinion of the
N Colorado Court of Appeals is very sig-
ificant for attorneys who represent
clients in slip and fall cases. In Reno v. Gerald
A Krantz d!&!a El Chapultapec, Court of
Appeals Case No. 97 CA 1435, a Coors
employee was severely injured when he fell
on a stairway while descending to the base-
ment of the bar to service the beer lines
The stairway was beneath a trapdoor
behind the bar, had no handrails, was poor-
ly lit and had risers of uneven height The
light switch could be reached only after the
plaintiff was already half way down the
stairs, and even when the switch was acti-
vated, the stairs were poorly illuminated
No person over 3 feet in height could
descend the stairs in an upright position
The defendant moved for summary judg-
ment supported with an affidavit from the
owner stating that in the 30 years that he
had operated the business 1) he was
unaware of any previous slip and fall, near
slip and fall, accident or near accident
involving the basement stairs and 2) that
people had used the basement stairs on
more than 100,000 separate occasions with-
out incident or injury
The Denver District Court judge Paul
Markson Ir determined that the plaintiff
was an "invitee" and that, therefore, the
defendant was liable if he "knew or should
have known" that the stairs were dangerous
judge Markson further ruled that there was
no genuine issue of material fact regarding
48
~ -,.. ~~ ' - ~ : ;,; ~
. . . . . . . ·. .i
whether the defendant knew or should have were cases where no obvious and open dan-
known that the stairs were dangerous The
court entered summary judgment on behalf
of the defendant
ger existed (Wright addressed the responsi-
bility of a property owner to a licensee)
In reversing the Denver District Court the
Court of Appeals referred tot the" .obvious ENDNOTES
potential danger demonstrated by these Casey v Christie Lodge Owners Assn , 92 3
features of the staircase .. " The Court held
P 2d 364 (Colo App. 1996); Wright v Vail
that the obvious dangerous conditions pre- Run Resort Community Assn , 917 P 2d
sent in and around the staircase were 364 (Colo App 1996)
"apparent" The Court went on tho state in
very clear terms that the existence of obvi-
ous dangerous conditions cannot be over-
come by a landowners' proclaimed igno-
rance of the conditions or by the absence of Plaintiff's attorney is CTLA member
prior accidents: Thomas McFarland. CTLA filed an amicus
curiae brief. Briefs and the opinion are
available through Mr. McFarland's office
(303) 277-0202.
Here, however, as noted, the danger-
ous condition of this stairway is appar-
ent And, were we to accept the defen-
dant's argument, a landowner could
avoid liability to an invitee in every
case by simply demonstrating that,
even though there was an obvious and
dangerous condition on the premises,
there were no prior accidents
The Court was not persuaded by Casey v
Ciiristie Lodge Owners Assn. or by Wright v. Vail
Run Resort Community Assen, 1 both of which
Trial Talk October/November 1998
~7!~~:3i~?<!.~::;~~~~,, ¾?;'::-;f~~=i ~:">: 'f'~~Ycc=;f'_~'"""- > ~-~-,_,~~- = "~ 1 '" r ;;:~-'"'= -~ = • -

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CTLA
CTLA SEMINARS
Commercial law Seminar November 20, 1998
Denver
ATLA Mid~Winter Convention January 23-27, 1999
San Antonio, TX
The Basic Commercial law Case .. .February 4, 1999
Denver
Bad Forth Seminar . February 19, 1999
Denver
Hot Topics in Auto Litigation Seminar February 26, 1999
Denver

For more information auout CTLA's events, please contact CTLA

1888 Sherman Street, Suite 370, Denver, CO 80203, or telephone (303) 831-1192 or (800) 324-2852 (in Colorado).

For more information auout ATLA's continuing legal education events, contact
Education Department, 1050 31st Street, NW, #DM, Washington D.C. 20007, or call (202)965-3500 ext 612,
or 1-800-NCA-1791 (U.S.)

iiii"'!!!f UNITED STJJ.TES Statement of Ownership, Management, and Circulation 13-P..b'..a:lo'IT.:!o u..~Oa!atcrC.~Oa:36eic'I'
f!!:iiill POSTilL SERVICE,. (Required by 39 USC 38e5) Trial Talk Septe:::.ber, 1998
~ Nd.Ccpifl cfSi(l;I~ Isa,,_
Pt.:!.fahed NN.rHI b Fillng O~J

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Denver CO 80103-1156 1:~.na83l-ll9:!
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1883 She::-...an St., #370
tlenvet' CO 80203-1158
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1775 S!::er-1.n St., #2000
Denve:- CO 60203
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1888 S!::er-=n5t., #370
Den••er CO 80203-1158
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°"'
I Se;ite:::.ber 25, 1998
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1 Complete and f:i,e one ccpy al L>i:s 1cm, \'oTJi yc-Jrpcs:rnaster ar.m.rally en er te!cre October 1. K..--ep a ccp-j cl L'le ccmpfeted lorn, for
R.:U 11.l.~ I Cerr~~ ~:in~ A:l:!:'U,
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whom-ll'le lrus'..M :5 a::li:,g. Also im!OOO !he r,a;nes and a..'"drosses c f i r r ~ who ara s:::d::loloers who own er hold 1 percent er
mom cl the to'..al a:nount cf bonds, mcrt-,,a;t!'S. er other seeunties cf L.">e p,..;b"..srut".g co~..n. In i'.em 11 !! none, ctleck the ~ Usa
tia.~Jts.'1Mtsr!morosp;;ce;sre~red.
3. So s:;.-a to !wm!Sh a:i crc:.:!aticn L-i!:.mr-.ah'"..n cared tor :n i:em 15. Free c-~~on m:.:st 00 sh~n in rten-.s 15d. e, and!.
4, ti the publiealion h a d = ~ a t ; t ~ n as a g;:ineral er mq!U!S!er Pl,C:ic.3.ticn. t.":::s S~!erner.t cl o,..nerst:~. !.•.a,.,~:nent. and
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5. !n ll!!m 16, kr.Sca:e t!-.o C4:!l cf tf-,1) is!ru!l L'l wl-.:c.'i t.'tis Sta:eme:':t cl Owneish1p w-.!l be p(.Z:lis.'1ed..
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October/November 1998 Trial Talk 49

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50 Trial Talk October/November I 998

 VOCATIONAL ECONOMIC ASSESSMENTS:
STRATEGIC OPTIONS FOR THE
COLORADO LEGAL COMMUNITY

THE ISSUE -
defining economic damages for
settlement negotiations.
THE QUESTION -
finding a resource that is:
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THE ANSWER -
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Walter H. Sargent
A PROFESSIONAL CORPORATION
LAW PRACTICE IN CIVIL APPEALS
TEL: 719.577 .4510
FAX: 719.577.4696
1632 NORTH CASCADE AVENUE
COLORADO SPRINGS, CO 80907

"[T]he skills needed for effective appellate advocacy are not always
found - indeed, perhaps, are rarely found - in good trial lawyers.
Appellate advocacy is, in short, a specialty all to itself."
- THE HONORABLE LAURENCE H. SILBERMAN,
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT

\Valter Sargent is an appellate adYocate, and an effectiYe one, In the Colorado appellate courts, he has achieYed excellent results
representing plaintiffs and defendants, appellants and appellees, in matters as diYerse as personal injury, lender liability, municipal la\\",
breach of trust, corporate go\·emance, real estate brokerage, secured transactions, common-la\\" contracts, and school lm\·. In the
federal appellate courts, he has successfully represented indi\·iduals and entities in high-profile matters in the Third, Sixth, Ninth,
and Tenth Circuits, and has successfully represented both petitioners and respondents in the Supreme Court of the United States

In January 1996, after eight years at a large Dem·er-based firm, Mr. Sargent left to open his O\\"n appellate shop. The ne\\" firm \\"as
founded on a simple set of premises: that appellate practice is a specialty all to itself, that there is a need for appellate specialists in
Colorado, and that - freed from the encumbrances and constraints of a larger firm - a first-rate appellate practice can offer cost-
effective services to a wide range of clients. \Vith the flexibility to proYide appellate sen-ices through a rnriety of fee structures from
traditional hourly rate structures to contingent fees the firm seeks to arriYe at \\"Orking relationships that are economically and
professionally satisfying to all inrnh-ed. If you are interested in finding out more about the firm's services, please call or \Hite
Mr. Sargent at his office in Colorado Springs

Walter Sargent is a graduate of the Massachusetts Institute of Technology, where he received degrees in philosophy and
computer science, and Harvard Law School, where he was a John M. Olin Fellow of Law and Economics, winner of the Olin
Prize for outstanding writing in the field of law and economics, and articles editor for The Harvard Journal of Law & Public
Policy. Currently, Mr. Sargent is the editor of The Appellate Practice Update, a quarterly publication of the American Bar
Association, co-chair of an ABA committee on appellate oral argument, and a participant in CLE programs on appellate
advocacy throughout the country. He is co-founder of the Colorado Bar Association's subcommittee on appellate practice.