Privilege Logs: What Are They and What is Required?
As a general rule in Georgia for both federal and state courts, the scope of discovery is limited to “any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and relevancy is defined as anything “reasonably calculated to lead to the discovery of admissible evidence.” O.C.G.A. § 9-11-26(b). But, both plaintiffs and defendants often withhold the dissemination of information or documents (summarily: “material”) on the basis that the withheld material is privileged. Often, courts must be called upon to intervene in the discovery dispute that undoubtedly follows after the requesting party contends the privilege assertion was used incorrectly, or in the alternative, the privilege is too general for any party to make a reasonable challenge or for a court to make a ruling on the claim. As many trial lawyers know from experience, courts do not gleefully anticipate discovery disputes, and can often backfire on either the requesting party or the withholding party for a myriad of reasons.
If you or an opposing litigant withhold requested material based on privilege alone, rules may have been violated. For the past 25 years, Fed.R.Civ.P. 26 has required the party asserting a claim of privilege to provide the requesting party and the court a “privilege log” that lists the material the party asserting the privilege is attempting to withhold. The log must state the specific privilege asserted. This rule is relatively new in Georgia and is still somewhat disregarded by oblivious or ignorant litigants.
In June 2015, the Georgia Supreme Court approved an amendment to the Uniform Superior Court Rules with the addition of Rule 5.5, which mirrors Fed.R.Civ.P. 26(b)(5).
WHAT DOES A PRIVILEGE LOG LOOK LIKE AND WHAT IS REQUIRED?
A privilege log is a document created by the privilege-asserting party that itemizes the material being withheld from production. While there is no set rubric or standard form for creating a privilege log, federal and state courts have interpreted Fed.R.Civ.P. 26(b)(5) and U.S.C.R. 5.5 to require the party asserting the privilege to include enough information in the log so that the opposing party can accurately identify the item subject to the privilege assertion and give the court sufficient information to make a ruling on the assertion.
• Bates Number Range (if applicable).
In general, what should be included is simply enough information to alert the opposing party of the identity of the document without revealing the confidential material sought to be protected by the privilege claim.
WHAT HAPPENS IF A PARTY FAILS TO PRODUCE A PRIVILEGE LOG?
Federal judges have ruled that general or blanket claims of privilege are not sufficient and do not preserve the privilege claim.4 Generalized claims of privilege do not give the opposing party any indication of what items are being withheld, nor do they give the court any guidance on how to rule on the claim of privilege. When settling disputes concerning what is and what is not privileged, the courts must conduct an in camera review of the material in order to rule on the claim of privilege. If the party asserting the claim of privilege does not clearly identify the material withheld, he/she has not met their burden of establishing the material is protected by privilege.
WHAT DO I DO IF I FEEL THE LOG PROVIDED IS FAULTY?
As with any discovery dispute, the parties should attempt to resolve any issues amongst themselves before involving the court. Courts do not like refereeing discovery disputes, and discovery disputes only serve to delay judges and juries deciding cases on the merits. If it is clear to the parties that information sought during discovery will be subject to privilege claims, it is possible that the parties enter into a mutually agreed upon consent protective order that sets the standard for how to claim privilege and the manner and means about which a party may challenge the privilege. Doing this can curtail the need for judicial intervention in the discovery process.
However, every trial lawyer knows that each case is different: different facts, different theories, and different opponents. There will be a time where you must challenge an assertion of privilege and the sufficiency of a privilege log. For starters, because challenging the sufficiency of a privilege log is a discovery dispute, Unif. Super. Ct. R 6.4 and O.C.G.A. § 9-11-37 control the process of resolving the dispute. Begin with your 6.4 letter attempt to resolve the matter before seeking court intervention and compulsion of the privilege log or privileged material. In your letters or your “meet and confer” with opposing counsel, attempt to narrow the list of disputed material. Truncating the list of disputed material will (1) prevent the court from being forced to entertain an unnecessary dispute and (2) put the material at issue squarely in focus before the judge.
The style of the hearing or in camera review of the alleged privileged material will depend on the court and judge hearing the case. Check with your judge’s clerks and support staff to get an understanding of how he or she prefers to conduct the hearing or review. Knowing that beforehand will undoubtedly pay dividends in this process.
Ross Moore is the founder of Ross Moore II, P.C. in Atlanta. He is a 2017 graduate of the GTLA Leadership Education & Advance Direction (LEAD) Program, and currently serves on the Verdict Editorial Board. He can be reached at ross@rossmoorelaw.com.
James Stone practices in the Atlanta office of Boone Law where his practice areas include products liability, medical negligence, wrongful death, and personal injury, as well as commercial and consumer litigation. He is a member of the Verdict Editorial Board and a 2017 graduate of the GTLA LEAD Program. He can be reached at james@stonelaw.com.
Claiming Privilege or Protecting Trial-Preparation Materials.
disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
b. Describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess such claim.
1 § 21:9. Asserting privileges in discovery, Ga. Law Of Torts Preparation For Trial § 21:9 (2018 ed.).
2 Smith v. National Bank of Georgia, 182 Ga. App. 55, 57, 354 S.E.2d 678, 680 (1987); Tompkins v. McMickle, 172 Ga. App. 62, 321 S.E.2d 797 (1984); Ale-8-One of America, Inc. v. Graphicolor Services, Inc., 166 Ga. App. 506, 305 S.E.2d 14 (1983); Drew v. Hagy, 134 Ga. App. 852, 216 S.E.2d 676 (1975).
3 “Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority and are given weight by Georgia courts. See Ambler v. Archer, 230 Ga. 281, 287(1), 196 S.E.2d 858 (1973).” WellStar Health Sys., Inc. v. Kemp, 324 Ga. App. 629, 638, 751 S.E.2d 445, 453 (2013), cert. denied (Mar. 10, 2014); Fuller v. Heartwood 11, 301 Ga. App. 309, 312, 687 S.E.2d 287, 290 (2009); Barnum v. Coastal Health Svcs., 288 Ga. App. 209, 215(2)(b), 653 S.E.2d 816 (2007).
4 Meade v. General Motors, LLC, 250 F.Supp.3d 1387 (N.D. Ga. 2017) (employer waived attorney-client privilege claim by asserting overly broad privilege claim and failing to produce a proper privilege log). See also Pensacola Firefighters’ Relief Pension Fund Bd. of Trustees v. Merrill Lynch Pierce Fenner & Smith, Inc., 265 F.R.D. 589, 592 (N.D. Fla. 2010) (noting abundance of district court case law holding that a party claiming privilege is obliged to produce a privilege log and its failure to do so means the privilege is waived).


AN ACT to amend and reenact §30-32-1, §30-32-2, §30-32-3, §30-32-4, §30-32-5, §30-32-6, §30-32-7, §30-32-8, §30-32-9, §30-32-10, §30-32-11, §30-32-12, §30-32-13, §30-32-14, §30-32-15, §30-32-16, §30-32-17, §30-32-18, §30-32-19, §30-32-20 and §30-32-21 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §30-32-22 and §30-32-23, all relating to the Board of Examiners of Speech-language Pathology and Audiology; setting forth unlawful acts; providing exemptions; specifying applicability of other law; providing definitions; continuing the Board of Examiners for Speech-Language Pathology and Audiology; specifying qualifications of board members; providing terms and conditions of board members’ service; providing for election of board officers; providing for compensation and expense reimbursement of board members; setting forth powers and duties of the board; providing rule-making authority; continuing the board of Examiners for Speech-Language Pathology and Audiology Fund; providing qualifications for practicing speech-language pathology or audiology; providing for provisional licenses to practice while attaining required postgraduate professional experience; providing for waiver of requirements for persons who hold a license from another state with substantially equivalent standards; providing for practice pending disposition of application; providing scopes of practice for speech-language pathology and audiology; requiring speech-language pathology assistants and audiology assistants to register with the board; providing registration and supervision requirements for speech-language pathology assistants and audiology assistants; authorizing telepractice; providing conditions and requirements for telepractice; providing for renewal of licenses and registrations; providing for renewal of lapsed licenses and registrations; providing for the suspension, revocation and refusal to renew licenses and registrations; providing for the reinstatement of revoked licenses and registrations; authorizing actions to enjoin violations; providing for the investigation of complaints; setting forth complaint procedures and hearing procedures; establishing grounds for disciplinary actions; providing for rights of appeal and judicial review; providing that a single act is sufficient to justify disciplinary action; providing for criminal proceedings; providing for criminal penalties; and requiring the Legislative Auditor to present a report to the Joint Standing Committee on Government Organization on the requirements for Speech-Language Pathologists, Audiologists and Assistants to practice in public schools.
(1) “Applicant” means a person applying for a license required by this article.
(2) “Assistant” means a registered speech-language pathology assistant or a registered audiology assistant.
(3) “Audiologist” means a person who engages in the practice of audiology and is licensed pursuant to the provisions of this article.
(4) “Audiology” means the application of principles, methods, and procedures related to hearing and the disorders of hearing and to related language and speech disorders.
(5) “Audiology assistant” means a person registered with the board who practices under the supervision of an licensed audiologist.
(6) “Audiology disorders” means any and all conditions, whether of organic or nonorganic origin, peripheral or central, that impede the normal process of human communication including, but not limited to, disorders of auditory sensitivity, acuity, function or processing.
(7) “Board” means the West Virginia Board of Speech-Language Pathology and Audiology.
(8) “Business entity” means any firm, partnership, association, company, corporation, limited partnership, limited liability company or other entity.
(9) “Direct supervision” means the actual physical presence of a supervising licensed speech-language pathologist or supervising licensed audiologist in the room where treatment is provided by an assistant.
(10) “General supervision” means initial direction and periodic inspection of the activities of an assistant by the supervising licensed speech-language pathologist or supervising licensed audiologist, who is physically present in the building where treatment is provided and is quickly and easily available.
(11) “Initial supervision training” means training required of supervising licensed speech-language pathologists and supervising licensed audiologists before providing supervision of assistants.
(13) “License” means a license issued pursuant to the provisions of this article.
(14) “Licensee” means a person who is licensed pursuant to the provisions of this article.
(15) “Provisional license” means a license issued pursuant to the provisions of this article.
(16) “Registrant” means an assistant who is registered pursuant to the provisions of this article.
(17) “Registration” means a registration issued pursuant to the provisions of this article.
(18) “Speech-language pathologist” means any person who engages in the practice of speech-language pathology and who is licensed pursuant to the provisions of this article.
(19) “Speech-language pathology” means the application of principles, methods and procedures related to the development, disorders and effectiveness of human communication and related functions.
(20) “Speech-language pathology assistant” means a person registered with the board who practices under the supervision of a licensed speech-language pathologist.
(21) “Speech-language pathology disorders” means conditions, whether of organic or nonorganic origin, that impede the normal process of human communication including, but not limited to, disorders and related disorders of speech, articulation, fluency, voice, verbal and written language, Auditory comprehension, cognition/communication, and oral, pharyngeal and/or laryngeal sensorimotor competencies.
(22) “Telepractice” means the application of telecommunication technology to deliver speech-language pathology or audiology services through real time interaction from one site to another for assessment, intervention or consultation in a manner sufficient to ensure patient confidentiality.
(e) If, after a hearing, the board determines the licensee or registrant has violated any provision of this article or the board’s rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.


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After training the first generation of Civil Rights lawyers during his years as Dean of Howard University's Law School, Houston was appointed in 1935 o be the first Special Counsel of the NAACP. Often referred to as the "Moses of the civil rights movement," Houston was the architect and chief strategist of the NAACP's legal campaign to end segregation.
In 1896, the U.S. Supreme Court endorsed segregation in Plessy v. Ferguson, which established the "separate but equal" principle. In a study commissioned by the NAACP in the 1930s, Nathan Margold found that under segregation, the facilities provided for blacks were always separate, but never equal to those maintained for whites. This, Margold argued, violated the equality aspect of Plessy's "separate but equal" principle. Margold proposed a series of lawsuits that would challenge the system.
After joining the NAACP, Houston refined Margold's recommendations, developed a strategy, and implemented a battle plan. Under Houston's "equalization strategy," lawsuits were filed demanding that the facilities provided for black students be made equal to those available to white students, carefully stopping short of a direct challenge to Plessy. Houston predicted that the states that practiced segregation could not afford to maintain black schools that were actually equal to those reserved for whites. From 1935 to 1940, Houston successfully argued several cases using this strategy, including Murray v. Maryland, (1936) which resulted in the desegregation of the University of Maryland's Law School and State ex rel. Gaines v. Canada, in which the U.S. Supreme Court ordered the admission of a black student to the Law School at the University of Missouri (1938).
When Thurgood Marshall succeeded Houston as NAACP's Special Counsel, he continued the Association's legal campaign. During the mid-1940s, in Smith v. Allwright, Marshall successfully challenged "white primaries," which prevented African Americans from voting in several southern states. In Morgan v. Virginia (1946), Marshall won a case in which the Supreme Court struck down a state law that enforced segregation on buses and trains that were interstate carriers. In 1948, Marshall and other cooperating attorneys won an important victory in Shelley v Kraemer, which ended the enforcement of racially restrictive covenants, a practice that barred blacks from purchasing homes in white neighborhoods. In 1950, Marshall won cases that struck down Texas and Oklahoma laws requiring segregated graduate schools in Sweatt v. Painter and McLaurin v. Oklahoma. In those cases, a unanimous U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required those states to admit black students to their graduate and professional schools.
These decisions paved the way for one of the NAACP's greatest legal victories. In 1954, Thurgood Marshall and a team of NAACP attorneys won Brown v. Board of Education of Topeka, Kansas. In this landmark decision, the Supreme Court held that segregation in public education violated the Equal Protection Clause of the Fourteenth Amendment. Brown consisted of six separate cases in five jurisdictions; Kansas, South Carolina, Virginia, the District of Columbia and Delaware. These cases are remembered as "Brown" because Oliver Brown was one of several plaintiffs in the Kansas case whose name appeared first in the court filings. He was represented at the trial and in the Supreme Court by NAACP attorney Robert Carter, who developed the innovative strategy of using the testimony of social scientists and other experts to demonstrate the psychological injuries that segregation inflicted on African American school children.
The Brown decision inspired the marches and demonstrations of the civil rights movement of the 1950s and '60s. These wide-spread protests ultimately led to the enactment of the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968. During this period, the Association represented civil rights workers and fought to implement Brown in numerous desegregation cases across the nation. Cases were filed that successfully challenged discrimination in public accommodations, housing, employment, voting.
Today, NAACP attorneys are still challenging racial discrimination whether it appears in the guise of corporate hotel policies that discriminate against African-American college students, voting disenfranchisement during national presidential elections or state-sponsored symbols of white supremacy, such as the Confederate battle flag. The NAACP's Legal Department focuses on class actions and other cases of broad significance in areas including employment, education, housing, environmental justice, criminal law, and voting, striving always, to advance the Association's goals while remembering Charles Hamilton Houston's admonition that "[A] lawyer is either a social engineer or a parasite on society."

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Modern approaches for identification of modified nucleotides in RNA by J. A. Filippova; D. V. Semenov; E. S. Juravlev; A. B. Komissarov; V. A. Richter; G. A. Stepanov (1217-1233).
This review considers approaches for detection of modified monomers in the RNA structure of living organisms. Recently, some data on dynamic alterations in the pool of modifications of the key RNA species that depend on external factors affecting the cells and physiological conditions of the whole organism have been accumulated. The recent studies have presented experimental data on relationship between the mechanisms of formation of modified/minor nucleotides of RNA in mammalian cells and the development of various pathologies. The development of novel methods for detection of chemical modifications of RNA nucleotides in the cells of living organisms and accumulation of knowledge on the contribution of modified monomers to metabolism and functioning of individual RNA species establish the basis for creation of novel diagnostic and therapeutic approaches. This review includes a short description of routine methods for determination of modified nucleotides in RNA and considers in detail modern approaches that enable not only detection but also quantitative assessment of the modification level of various nucleotides in individual RNA species.
The power and limitations of influenza virus hemagglutinin assays by N. B. Ustinov; E. G. Zavyalova; I. G. Smirnova; A. M. Kopylov (1234-1248).
Influenza virus hemagglutinins (HAs) are surface proteins that bind to sialic acid residues at the host cell surface and ensure further virus internalization. Development of methods for the inhibition of these processes drives progress in the design of new antiviral drugs. The state of the isolated HA (i.e. combining tertiary structure and extent of oligomerization) is defined by multiple factors, like the HA source and purification method, posttranslational modifications, pH, etc. The HA state affects HA functional activity and significantly impacts the results of numerous HA assays. In this review, we analyze the power and limitations of currently used HA assays regarding the state of HA.
Electron transfer through the acceptor side of photosystem I: Interaction with exogenous acceptors and molecular oxygen by D. A. Cherepanov; G. E. Milanovsky; A. A. Petrova; A. N. Tikhonov; A. Yu. Semenov (1249-1268).
This review considers the state-of-the-art on mechanisms and alternative pathways of electron transfer in photosynthetic electron transport chains of chloroplasts and cyanobacteria. The mechanisms of electron transport control between photosystems (PS) I and II and the Calvin–Benson cycle are considered. The redistribution of electron fluxes between the noncyclic, cyclic, and pseudocyclic pathways plays an important role in the regulation of photosynthesis. Mathematical modeling of light-induced electron transport processes is considered. Particular attention is given to the electron transfer reactions on the acceptor side of PS I and to interactions of PS I with exogenous acceptors, including molecular oxygen. A kinetic model of PS I and its interaction with exogenous electron acceptors has been developed. This model is based on experimental kinetics of charge recombination in isolated PS I. Kinetic and thermodynamic parameters of the electron transfer reactions in PS I are scrutinized. The free energies of electron transfer between quinone acceptors A1A/A1B in the symmetric redox cofactor branches of PS I and iron–sulfur clusters FX, FA, and FB have been estimated. The second-order rate constants of electron transfer from PS I to external acceptors have been determined. The data suggest that byproduct formation of superoxide radical in PS I due to the reduction of molecular oxygen in the A1 site (Mehler reaction) can exceed 0.3% of the total electron flux in PS I.
Temperature dependence of tryptophan fluorescence lifetime in aqueous glycerol and trehalose solutions by V. V. Gorokhov; P. P. Knox; B. N. Korvatovskiy; N. Kh. Seifullina; S. N. Goryachev; V. Z. Paschenko (1269-1275).
The temperature dependences of tryptophan fluorescence decay kinetics in aqueous glycerol and 1 M trehalose solutions were examined. The fluorescence decay kinetics were recorded in the spectral region of 292.5–417.5 nm with nanosecond time resolution. The kinetics curves were approximated by the sum of three exponential terms, and the spectral distribution (DAS) of these components was determined. An antisymbatic course of fluorescence decay times of two (fast and medium) components in the temperature range from –60 to +10°C was observed. The third (slow) component showed only slight temperature dependence. The antisymbatic behavior of fluorescence lifetimes of the fast and medium components was explained on the assumption that some of the excited tryptophan molecules are transferred from a short-wave-length B-form with short fluorescence lifetime to a long-wavelength R-form with an intermediate fluorescence lifetime. This transfer occurred in the indicated temperature range.
Antiinflammatory effect of rosiglitazone via modulation of mRNA stability of interleukin 10 and cyclooxygenase 2 in astrocytes by E. V. Pankevich; A. A. Astakhova; D. V. Chistyakov; M. G. Sergeeva (1276-1284).
Investigation of molecular mechanisms of proinflammatory stimuli signaling in astrocytes is important for understanding their role in pathogenesis of central nervous system diseases as well as in functioning of the innate immunity system in non-immune cells. Here we show that lipopolysaccharide (LPS) stimulation of primary rat astrocytes led to conventional inflammatory response: increase in both proinflammatory (tumor necrosis factor, TNFα; prostaglandin E2, PGE2) and antiinflammatory marker (interleukin 10, IL-10) levels. The protein level of cyclooxygenase 2 (COX-2) was also increased. Rosiglitazone strengthened LPS-induced mRNA expression of COX-2 and IL-10 but not TNFα. Rosiglitazone is an agonist of nuclear receptor PPARγ, but its impact on IL-10 expression was not influenced by a PPARγ antagonist, GW9662, suggesting PPARγ-independent effect of rosiglitazone. The degradation of mRNA is one of the steps of inflammation regulation and might be affected by small molecules. In experiments with actinomycin D, we found that mRNA half-lives of IL-10, COX-2, and TNFα in naive astrocytes were 70, 44, and 19 min, respectively. LPS stimulation caused 2-fold increase in IL-10 and COX-2 mRNA decay rates, whereas addition of rosiglitazone restored them to the initial level. TNFα decay rate was not changed by these stimulations. This suggests that mRNA decay rate could be regulated by small molecules. Moreover, rosiglitazone could be used as a substance stimulating the resolution of inflammation without influence on proinflammatory signals. These results open new perspectives in the search for inflammation resolution modulators.
Recombinant human erythropoietin with additional processable protein domains: Purification of protein synthesized in Escherichia coli heterologous expression system by T. M. Grunina; A. V. Demidenko; A. M. Lyaschuk; M. S. Poponova; Z. M. Galushkina; L. A. Soboleva; S. A. Cherepushkin; N. B. Polyakov; D. A. Grumov; A. I. Solovyev; V. G. Zhukhovitsky; I. S. Boksha; M. E. Subbotina; A. V. Gromov; V. G. Lunin; A. S. Karyagina (1285-1294).
Three variants of human recombinant erythropoietin (rhEPO) with additional N-terminal protein domains were obtained by synthesis in an Escherichia coli heterologous expression system. These domains included (i) maltose-binding protein (MBP), (ii) MBP with six histidine residues (6His) in N-terminal position, (iii) s-tag (15-a.a. oligopeptide derived from bovine pancreatic ribonuclease A) with N-terminal 6His. Both variants of the chimeric protein containing MBP domain were prone to aggregation under nondenaturing conditions, and further purification of EPO after the domain cleavage by enterokinase proved to be impossible. In the case of 6His-s-tag-EPO chimeric protein, the products obtained after cleavage with enterokinase were successfully separated by column chromatography, and rhEPO without additional domains was obtained. Results of MALDI-TOF mass spectrometry showed that after refolding 6His-s-tag-EPO formed a structure similar to that of one of native EPO with two disulfide bonds. Both 6His-s-tag-EPO and rhEPO without additional protein domains purified after proteolysis possessed the same biological activity in vitro in the cell culture.
Biochemical properties and phylogeny of hydroxypyruvate reductases from methanotrophic bacteria with different c1-assimilation pathways by S. Y. But; S. V. Egorova; V. N. Khmelenina; Y. A. Trotsenko (1295-1303).
In the aerobic methanotrophic bacteria Methylomicrobium alcaliphilum 20Z, Methylococcus capsulatus Bath, and Methylosinus trichosporium OB3b, the biochemical properties of hydroxypyruvate reductase (Hpr), an indicator enzyme of the serine pathway for assimilation of reduced C1-compounds, were comparatively analyzed. The recombinant Hpr obtained by cloning and heterologous expression of the hpr gene in Escherichia coli catalyzed NAD(P)H-dependent reduction of hydroxypyruvate or glyoxylate, but did not catalyze the reverse reactions of D-glycerate or glycolate oxidation. The absence of the glycerate dehydrogenase activity in the methanotrophic Hpr confirmed a key role of the enzyme in utilization of C1-compounds via the serine cycle. The enzyme from Ms. trichosporium OB3b realizing the serine cycle as a sole assimilation pathway had much higher special activity and affinity in comparison to Hpr from Mm. alcaliphilum 20Z and Mc. capsulatus Bath assimilating carbon predominantly via the ribulose monophosphate (RuMP) cycle. The hpr gene was found as part of gene clusters coding the serine cycle enzymes in all sequenced methanotrophic genomes except the representatives of the Verrucomicrobia phylum. Phylogenetic analyses revealed two types of Hpr: (i) Hpr of methanotrophs belonging to the Gammaproteobacteria class, which use the serine cycle along with the RuMP cycle, as well as of non-methylotrophic bacteria belonging to the Alphaproteobacteria class; (ii) Hpr of methylotrophs from Alpha- and Betaproteobacteria classes that use only the serine cycle and of non-methylotrophic representatives of Betaproteobacteria. The putative role and origin of hydroxypyruvate reductase in methanotrophs are discussed.
Self-Organization of Recombinant Membrane Porin OmpF from Yersinia pseudotuberculosis in Aqueous Environments by E. V. Sidorin; V. A. Khomenko; N. Yu. Kim; P. S. Dmitrenok; A. M. Stenkova; O. D. Novikova; T. F. Solov’eva (1304-1313).
Recombinant porin OmpF (an integral protein of bacterial outer membrane) from Yersinia pseudotuberculosis was synthesized in Escherichia coli cells as inclusion bodies. By combining the methods of anion-exchange and gel filtration chromatographies, recombinant OmpF (rOmpF) was isolated as an individual protein in its denatured state, and its characteristic properties (molecular mass, N-terminal amino acid sequence, and hydrodynamic radius of the protein in 8M urea solution) were determined. According to the data of gel filtration, dynamic light scattering, optical spectroscopy, and binding of the hydrophobic fluorescent probe 8-anilino-1-naphthalenesulfonic acid, the rOmpF is fully unfolded in 8 M urea and exists in random coil conformation. In aqueous solutions, rOmpF undergoes conformational changes, reversible self-association, and aggregation. When transferred from 8M urea into water, PBS (containing 0.15 M NaCl, pH 7.4), or buffer containing 0.8 M urea (pH 8.0), fully unfolded rOmpF forms relatively compact monomeric intermediates prone to self-association with formation of multimers. The oligomeric intermediates have high content of native protein-like secondary structure and pronounced tertiary structure. In acidic media (pH 5.0, close to the protein isoelectric point), rOmpF undergoes rapid irreversible aggregation. Therefore, we found that medium composition significantly affects both porin folding and processes of its self-association and aggregation.
Salusin-α attenuates inflammatory responses in vascular endothelial cells by Maryam Esfahani; Masoud Saidijam; Mohammad Taghi Goodarzi; Ahmad Movahedian; Rezvan Najafi (1314-1323).
Atherosclerosis accounts for numerous cardiovascular diseases, and cytokines have a critical role in acceleration or suppression of disease. Salusin-α presents a new class of bioactive peptides that can have anti-atherogenic properties. Therefore, the effects of salusin-α on the expression of some pro- and anti-inflammatory cytokines and on TNF-α-induced inflammatory responses in human umbilical vein endothelial cells (HUVECs) were examined. The involvement of the NF-κB pathway in effects of salusin-α in HUVECs was checked using Bay 11-7082 as an NF-κB inhibitor. The mRNA expression of pro-inflammatory cytokines including IL-6, IL-8, and IL-18 and anti-inflammatory cytokine IL-1Ra was assessed by real-time PCR. The protein levels of cytokines were measured by the ELISA method. Salusin-α suppressed both mRNA and protein expression of pro-inflammatory cytokines and induced mRNA and protein expression of IL-1Ra in HUVECs. Salusin-α suppressed TNF-α-induced inflammatory responses in HUVECs. The down-regulatory or up-regulatory effects of salusin-α on expression of cytokines could not be influenced by Bay 11-7082 pretreatment. Our findings indicate anti-inflammatory effects of salusin-α and suggest a novel peptide-based therapeutic strategy for atherosclerosis.
Factors beyond enolase 2 and mitochondrial lysyl-tRNA synthetase precursor are required for tRNA import into yeast mitochondria by M. V. Baleva; M. Meyer; N. Entelis; I. Tarassov; P. Kamenski; B. Masquida (1324-1335).
In yeast, the import of tRNALys with CUU anticodon (tRK1) relies on a complex mechanism where interaction with enolase 2 (Eno2p) dictates a deep conformational change of the tRNA. This event is believed to mask the tRNA from the cytosolic translational machinery to re-direct it towards the mitochondria. Once near the mitochondrial outer membrane, the precursor of the mitochondrial lysyl-tRNA synthetase (preMsk1p) takes over enolase to carry the tRNA within the mitochondrial matrix, where it is supposed to participate in translation following correct refolding. Biochemical data presented in this report focus on the role of enolase. They show that despite the inability of Eno2p alone to form a complex with tRK1, mitochondrial import can be recapitulated in vitro using fractions of yeast extracts sharing either recombinant or endogenous yeast Eno2p as one of the main components. Taken together, our data suggest the existence of a protein complex containing Eno2p that is involved in RNA mitochondrial import.
Cathelicidin LL37 promotes epithelial and smooth-muscle-like differentiation of adipose-derived stem cells through the Wnt/β-catenin and NF-κB pathways by Yongwei Li; Zhengfei Shan; Bin Yang; Diandong Yang; Changping Men; Yuanshan Cui; Jitao Wu (1336-1345).
Ureter reconstruction is a difficult procedure in urology. Adipose-derived stem cells (ADSCs), along with multipotency and self-renewal capacity, are a preferred choice for tissue engineering-based ureteral reconstruction. We explored the synergic role of cathelicidin LL37 (LL37) in epithelial and smooth-muscle-like differentiation. ADSCs were separated from adipose tissues of mouse and characterized by flow cytometry. The ADSCs were then stably transfected with pGC-FU-GFP (pGC) or pGC containing full-length LL37 (pGC-LL37), respectively. Cell viability and apoptosis were respectively estimated in the stably transfected cells and non-transfected cells. Then, qRT-PCR and Western blot analysis were used for determinations of epithelial marker expressions after induction by all-trans retinoic acid as well as smooth-muscle-like marker expressions after induction by transforming growth factor-β1. Then, possibly involved signaling pathways and extracellular expression of LL37 were detected. Cell viability and apoptosis were not changed after LL37 overexpression. Expression levels of epithelial and smooth-muscle-like markers were significantly upregulated by LL37 overexpression. Moreover, expressions of key kinases involved in the Wnt/β-catenin pathway as well as epithelial marker were upregulated by the LL37 overexpression, while it was reversed by Wnt/β-catenin inhibitor. Likewise, expressions of key kinases involved in the nuclear factor κB (NF-κB) pathway as well as smooth-muscle-like markers were upregulated by LL37 overexpression, which was reversed by NF-κB inhibitor. LL37 was found in the culture medium. LL37, which could be released into the medium, had no impact on cell proliferation and apoptosis of ADSCs. However, LL37 promoted epithelial and smooth-muscle-like differentiation through activating the Wnt/β-catenin and NF-κB pathways, respectively.
Cell-free expression, purification, and characterization of the functional β2-adrenergic receptor for multianalyte detection of β-agonists by Jian Wang; Yuan Liu; Junhua Zhang; Zhengzheng Han; Wei Wang; Yang Liu; Dong Wei; Wei Huang (1346-1353).
Large-scale expression of β2-adrenergic receptor (β2-AR) in functional form is necessary for establishment of receptor assays for detecting illegally abused β-adrenergic agonists (β-agonists). Cell-based heterologous expression systems have many critical difficulties in synthesizing this membrane protein, such as low protein yields and aberrant folding. To overcome these challenges, the main objective of the present work was to synthesize large amounts of functional β2-AR in a cell-free system based on Escherichia coli extracts. A codon-optimized porcine β2-AR gene (codon adaptation index: 0.96) suitable for high expression in E. coli was synthesized and transcribed to the cell-free system, which contributed to increase the expression up to 1.1 mg/ml. After purification using Ni-affinity chromatography, the bioactivity of the purified receptor was measured by novel enzyme-linked receptor assays. It was determined that the relative affinities of the purified β2-AR for β-agonists in descending order were as follows: clenbuterol > salbutamol > ractopamine. Moreover, their IC50 values were 45.99, 60.38, and 78.02 μg/liter, respectively. Although activity of the cell-free system was slightly lower than activity of systems based on insect and mammalian cells, this system should allow production of β2-AR in bulk amounts sufficient for the development of multianalyte screening methods for detecting β-agonist residues.
Spectral-kinetic analysis of recombination reaction of heme centers of bd-type quinol oxidase from Escherichia coli with carbon monoxide by S. A. Siletsky; A. V. Dyuba; D. A. Elkina; M. V. Monakhova; V. B. Borisov (1354-1366).
Recombination of the isolated, fully reduced bd-type quinol oxidase from Escherichia coli with carbon monoxide was studied by pulsed absorption spectrophotometry with microsecond time resolution. Analysis of the kinetic phases of recombination was carried out using the global analysis of multiwavelength kinetic data (“Global fitting”). It was found that the unresolved photodissociation of CO is followed by a stepwise (with four phases) recombination with characteristic times (τ) of about 20 μs, 250 μs, 1.1 ms, and 24 ms. The 20-μs phase most likely reflects bimolecular recombination of CO with heme d. Two subsequent kinetic transitions, with τ ~ 250 μs and 1.1 ms, were resolved for the first time. It is assumed that the 250-μs phase is heterogeneous and includes two different processes: recombination of CO with ~7% of heme b 595 and transition of heme d from a pentacoordinate to a transient hexacoordinate state in this enzyme population. The 24-ms transition probably reflects a return of heme d to the pentacoordinate state in the same protein fraction. The 1.1-ms phase can be explained by recombination of CO with ~15% of heme b 558. Possible models of interaction of CO with different heme centers are discussed.
Neuroprotective properties of endocannabinoids N-arachidonoyl dopamine and N-docosahexaenoyl dopamine examined in neuronal precursors derived from human pluripotent stem cells by E. V. Novosadova; E. L. Arsenyeva; E. S. Manuilova; L. G. Khaspekov; M. Yu. Bobrov; V. V. Bezuglov; S. N. Illarioshkin; I. A. Grivennikov (1367-1372).
Neuroprotective properties of endocannabinoids N-arachidonoyl dopamine (NADA) and N-docosahexaenoyl dopamine (DHDA) were examined in neuronal precursor cells differentiated from human induced pluripotent stem cells and subjected to oxidative stress. Both compounds exerted neuroprotective activity, which was enhanced by elevating the concentration of the endocannabinoids within the 0.1–10 μM range. However, both agents at 10 μM concentration showed a marked toxic effect resulting in death of ~30% of the cells. Finally, antagonists of cannabinoid receptors as well as the receptor of the TRPV1 endovanilloid system did not hamper the neuroprotective effects of these endocannabinoids.
The mitochondrial genome of the moss Brachythecium rivulare (Hypnales, Brachytheciaceae) by D. V. Goryunov; M. D. Logacheva; M. S. Ignatov; I. A. Milyutina; A. V. Fedorova; A. V. Troitsky (1373-1379).
The mitochondrial genome of the pleurocarpous moss Brachythecium rivulare has been sequenced and annotated. The genome consists of 104,460 base pairs and has approximately the same gene set and organization as other bryophyte mitogenomes. Whole mitochondrial genome comparison between B. rivulare and Physcomitrella patens, Tetraphis pellucida, Anomodon rugelii, and Anomodon attenuatus was performed. The primary cause of bryophyte mitochondrial gene length variation was found to be numerous indels in the introns. Bryophyte mitochondrial gene conservation level was estimated, and it was in a good congruence with the overall phylogeny of bryophytes with the percentage of mitogenome similarity being proportional to the age estimated by phylochronologic analysis. Annotation discrepancies in the analyzed mitogenome sequences were identified. The simple sequence repeat (SSR) content was evaluated, and candidate sites of RNA editing were predicted in the B. rivulare mitochondrial genome.
Role of microRNA in development of instability of atherosclerotic plaques by I. A. Koroleva; M. S. Nazarenko; A. N. Kucher (1380-1390).
MicroRNAs are small noncoding single-stranded RNAs that regulate gene expression. Today, we see an increasing number of studies highlighting the important role of microRNAs in the development and progression of cardiovascular diseases caused by atherosclerotic lesions of arteries. We review the available scientific data on association of the expression of these biomolecules with instability of atherosclerotic plaques in animal models and humans. We made special emphasis on miR-21, -100, -127, -133, -143/145, -221/222, and -494 because they were analyzed in more than one study. We discuss the possibility of microRNAs using in the diagnosis and therapy of atherosclerosis and its complications.
Protein poly(ADP-ribosyl)ation system: Changes in development and aging as well as due to restriction of cell proliferation by G. A. Shilovsky; S. I. Shram; G. V. Morgunova; A. N. Khokhlov (1391-1401).
It is well known that the number of dividing cells in an organism decreases with age. The average rate of cell division in tissues and organs of a mature organism sharply decreases, which is probably a trigger for accumulation of damage leading to disturbance of genome integrity. This can be a cause for the development of many age-related diseases and appearance of phenotypic and physiological signs of aging. In this connection, the protein poly(ADP-ribosyl)ation system, which is activated in response to appearance of various DNA damage, attracts great interest. This review summarizes and analyzes data on changes in the poly(ADP-ribosyl)ation system during development and aging in vivo and in vitro, and due to restriction of cell proliferation. Special attention is given to methodological aspects of determination of activity of poly(ADP-ribose) polymerases (PARPs). Analysis of relevant publications and our own data has led us to the conclusion that PARP activity upon the addition of free DNA ends (in this review referred to as stimulated PARP activity) is steadily decreasing with age. However, the dynamics of PARP activity measured without additional activation of the enzyme (in this review referred to as unstimulated activity) does not have such a clear trend: in many studies, the presented differences are statistically non-significant, although it is well known that the number of unrepaired DNA lesions steadily increases with aging. Apparently, the cell has additional regulatory systems that limit its own capability of reacting to DNA damage. Special attention is given to the influence of the cell proliferative status on PARP activity. We have systematized and analyzed data on changes in PARP activity during development and aging of an organism, as well as data on differences in the dynamics of this activity in the presence/absence of additional stimulation and on cellular processes that are associated with activation of these enzymes. Moreover, data obtained in different models of cellular aging are compared.

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text: Now a days the craze among many a person, more so youngsters, is to appear before the camera as selfie or otherwise. Whatever profession one is engaged, he or she aspires to appear even in a small role, in show industry, be it TV serial or cinema. For the fulfilment or such desires, one who possesses some element of luck or athrishtam besides talent, only can succeed. What are the basic attributes one must possess? Vedic Astrology has a clear answer. During Vedic times, some thousand years back, there was indeed no TV or cinema. But in Royal courts poetry, music, dance, drama etc were patronised and rewarded. Proficiency in fine arts as it existed then can now be compared to the show business activities. Vedic Astrology prescribes certain attributes to succeed in fine arts, which is relevant even today. Basic Attributes It is universally accepted that the nine planets influence human life on earth to a large extent. Of all the planets, planet Venus is considered to be the most influential for proficiency in fine arts. Venus stands for beauty, magnetic attraction, happiness, pleasure etc all essential in fine arts. For anyone entering into the show world, planet Venus shall be favourably positioned in his birth horoscope chart. That is Venus in exalted, own, friendly houses, associated or aspected by benefic planets, Venus shall never be in weaker positions in horoscope that is debilitated or unfriendly houses, badly placed in 6, 8, 12 houses, aspected, associated, hemmed in between malefic planets. Secondly planet Mercury stands for intelligence, good facial expression, oratory skills with sweet voice. Therefore, strong placement of Mercury in one's horoscope is essential to succeed in fine arts; Mercury shall never get weakened in horoscope. Therefore planets Venus and Mercury are the planets to be considered primarily in one's horoscope. Profession Generally the tenth house in one's horoscope stands for profession. To succeed in any profession, service or business, the tenth house and tenth house lord shall be as strong as possible. For any one to achieve success in show world and earn substantial wealth, either the tenth house or the tenth house lord shall be closely connected with Venus and Mercury. Popularity, Name & Fame To achieve the next step of stardom, expectancy, high position etc., some Raja Yogas must be present in one's horoscope. Yoga is a combination of two planetary positions by conjunction or aspect. Further one or two planets shall be placed in exalted positions. To confirm the above let us examine two horoscopes of famous popular film personalities. Horoscope 1 Horoscope 1 belongs to a super star, uncrowned king of Hindi Cinema for excellence. i. Conjunction of Venus and Mercury in Virgo indicates versatile acting capacity, talented. ii. Tenth lord, Mars is in conjunction with Venus, Mercury. Benefic planet Jupiter, exalted in cancer aspects the tenth house. Wealth is accumulated through acting besides popularity. iii. Fifth lord Mercury and seventh lord Sun are in conjunction at virgo indicating powerful Raja yoga, name, fame & riches. iv. Two planets Jupiter & Mercury are in exalted position. v. Rahu is in seventh house, quadrant or Kendra. The Ruler of the seventh house, Sun is in association with exalted planet Mercury. This indicates Raja Yoga bringing fame, riches, greatness. Horoscope 2 Horoscope 2 belongs to a world famous, dream queen hollywood actress. i. Two planets Venus and Jupiter are in exalted position; exalted Venus aspects lagna. Talented person, name, fame, riches, magnetic attraction. ii. Rahu in kendra along with exalted Venus. Raja Yoga, riches. iii. Fifth lord Saturn aspects seventh lord Jupiter who is exalted, Raja yoga, name, fame, riches. iv. Tenth lord happens to be Mercury in friendly house-wealth floating persons who do not possess any of the criteria for fine arts need not worry. Instead of efforts in show business they can concentrate their efforts on other fields and attain success in life.

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So why weren’t any Fontana employees told that theses tours were taking place? And that we will have a day of touring in the near future?
That great payout at the end of the fiscal year (June) most likely will not be occurring, according to sources. What a Surprise! The company is saying it has been a slow year. Hey! Mike Z., where is that formula that calculates the new payout for vpep, we were told was going to be available to us?
Also X-Man will Mr. Smith and his V.P’s not be receiving any bonuses this year? Maybe he and the rest of upper management should be rated on a performance scale before they receive any bonuses.
Since profits were down, so was their performance!
The Western Conference Pension fund(if we become teamsters only) is an employer-employee jointly administered pension plan but funded only by the employer so you can put more into your 401k or keep it in your pocket.
they are withdrawn.4 An employer may also make contributions, either by matching employee’s contributions up to plan or legal limits, or on a non-contingent basis.
3 A typical “final average pay” plan might set annual benefits equal to 1.5 percent of the average of the employee’s final 5 years of earnings multiplied by the employee’s tenure at the firm in years.
4 Beginning in 2006, plans were permitted to allow employees to designate some contributions to Roth 401(k) plans, which are not excluded from current income but allow for tax-free withdrawals in retirement. Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 617, 115 Stat. 38, 103-06 (codified at 26 U.S.C. § 402A).
5 26 U.S.C. § 72(t). The Internal Revenue Code (IRC) sets limits on annual contributions to DC plans by both employees and employers. 26 U.S.C. § 415(c). In 2007, an employee may make up to $15,500 in tax-deductible contributions into a DC plan, and employee and employer combined contributions cannot exceed $45,000. A worker age 50 or older may contribute an additional $5,000 in annual “catch-up” contributions. The IRC exempts distributions from DC plans from an additional 10 percent tax if taken for certain purposes. 26 U.S.C. § 72(t)(2). For example, if the employee becomes disabled, needs funds for medical purposes, or if the distribution is taken upon separation of service at age 55, the additional tax does not apply.
6 This tax expenditure includes Keogh plans ($10 billion), 401(k) plans ($41 billion), employee stock ownership plans ($2 billion), and the saver’s credit ($1 billion). Summing these figures does not take into account any interactions. In addition, the tax expenditure for DB plans measured $49 billion and for IRAs measured $4 billion.
7 The saver’s credit is a credit against federal income tax available to low-and middle-income taxpayers based on their qualified contributions to 401(k) and other retirement savings plans and to IRAs. 26 U.S.C. § 25B. The Pension Protection Act of 2006 made the saver’s credit permanent and indexed qualifying taxable income levels for inflation. Pub. L. No. 109-280 §§ 812 and 833(a), 120 Stat. 997, 1003-04.
A Jan. 7 Detroit News online column by Amber Arellano told about a Michigan man who had worked as a skilled tradesman for more than 20 years. But as American companies began shifting jobs to foreign countries in search of cheaper labor, the man was hard-pressed to find work or a decent wage. He finally was forced to take a low-skilled, low-wage position. The column described the man as being depressed over losing the work he so loved to do.
The article hit a nerve with me because this man could be any of America's great working men and women. I can only hope the candidates who are running for president this year read this column. All the candidates keep talking about change, and how they will be the president to bring about a new way of governing to rebuild America.
It's time to talk seriously as a nation about the work we need to do at home. We're spending billions of dollars in Iraq when our roads, schools, bridges and other infrastructure need critical attention.
As the presidential primary campaign season enters its crucial stages, polls show that Americans desperately want change. An MSNBC/Wall Street Journal poll released last month showed that 63 percent of people surveyed believe that this country is headed in the wrong direction. And 46 percent said America must change its approach on how it deals with issues.
No wonder Americans feel this way. Right after New Year's Day, the country's unemployment figures were released. And they were dismal. The unemployment rate surged to 5 percent in December, with only 18,000 new jobs. That was the smallest increase in four years. Economists are concerned that we are on the edge of recession.
From talking to the proud men and women who are Teamsters, I know a thing or two about what needs to be done to rebuild America.
The outsourcing of jobs must come to an end. Every worker must be guaranteed a secure retirement future. Any talk of change must include a way to keep American jobs safe while keeping the United States a vital player in the global economy. There must be room at the table for workers' rights.
The Teamsters worked hard this past year to reinvigorate the American labor movement, and we hope the next president will join us in our battle to rebuild America.
We are fighting to end policies that benefit big businesses but punish its workers. Policies like the Bush administration's plan to sidestep safety rules in their effort to open U.S. highways to Mexican trucks.
We want a president who will end the so-called "free trade" agreements that do nothing but give big businesses access to cheap foreign labor at the expense of the U.S. worker. In this global economy, we must help other countries push for better working conditions. By turning a blind eye to countries with lax or no labor standards, we allow U.S. companies to exploit cheap foreign labor, which benefits only their portfolios. The result of this policy is workers like the Michigan man who was stripped of his dignity.
We want a president who wants "Made in the USA" imprints on goods to overtake "Made in China" labels.
We want a president who believes in strong workers' rights, where everyone is treated with the respect and dignity they deserve. We want a president who will not just talk about change, but will come in on day one and focus on workers' rights, fair trade agreements, and universal health care.
We need a president who will sign the Employee Free Choice Act (EFCA) into law, which would allow employees, off of company grounds, to form unions after a majority of workers sign cards for union representation, and it would require companies to remain publicly neutral.
These are the changes I expect the presidential candidates to talk about in the coming months in great detail. And these are the changes our next president must bring to Washington to rebuild America.
Mr. Hoffa's commentary originally appeared in The Detroit News on January 11, 2008.


The Wyoming state legislature recently passed a data trespassing law that has many environmentalists concerned about the law’s scope, and also its motives. Concerns involve the ambiguous and expansive language found in the law, and because the law’s backers – the ranching community and local coal interests – swing a big political stick. They will use this law to chill environmental whistleblowers and avoid liability they should bear.
In short, the law prevents any data collection, or “data trespassing”, on nearly all federal, state and private lands outside of municipalities. Data trespassing is when someone collects environmental data or samples from land they did not have authorization to cross or enter. While federal and many state environmental laws explicitly authorize citizens to bring lawsuits against violators, Wyoming’s data trespassing law may have a chilling effect on citizen participation since citizens can now face both criminal and civil liability merely for the act of taking a picture.
The data trespassing law was passed through the Wyoming legislature as Senate File 12 and Senate File (SF) 80. SF 12 is the criminal enforcement statute, while SF 80 creates civil liability. The law was in response to a state lawsuit where ranchers sued employees of the Western Watershed Project (WWP) for trespassing, when they crossed private land to collect water samples.
The original version of the bill specified that trespassing penalties applied only to data collected on “private open land.” However, the final version of the bill uses the term “open land” which seems to be an extremely broad term – given its definition – and could apply to public, private, state, and federal lands. ‘Open land’ is defined as any “land outside the exterior boundaries of any incorporated city, town, subdivision, or development approved pursuant to Wyoming zoning laws.” That definition encompasses most of Wyoming both public and private. Because ‘open land’ leaves room for such broad interpretation, arguably even Google Maps could be liable for any of its images that are viewed by the government. This reasoning stems from the fact that the statute has no exception for federal property, nor does it explicitly limit application to private or state lands.
Another troubling component of the statute is how broadly it defines the terms “collect” and “resource data.” In the statute ‘collect’ means “to take a sample of material, acquire, gather, photograph, or otherwise preserve information in any form from open land which is submitted or intended to be submitted to any agency of the state or federal government.” Further, ‘resource data’ means “data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species.” Such an expansive definition leaves little room for any activities, regardless of the intent. This means that a tourist who accidently walks across a private property – or an easement between private property and public lands – and takes a picture, gathers a soil sample, acquires a historical artifact, takes notes on the habitat, or intends to preserve information in any kind, and intends to submit that data to a state or federal agency, is criminally liable under Wyoming state law. As noted above, there is no exception for federal land, and there is no exception for education. Therefore, tourists taking pictures of Yellowstone could be liable, and students collecting data for research and scientific purposes could be liable.
Perhaps, the greatest chilling effect comes from the harsh penalties in the law which state that violators will be punished “by imprisonment for not more than one year, a fine of not more than one thousand dollars, or both; or by imprisonment for not less than ten days nor more than one year, a fine of not more than five thousand dollars, or both, if the person has been previously convicted…” In an interesting twist, the law also demands that if it is violated, any data collected shall be expunged from any government agency’s database and cannot be used as evidence in any criminal or civil proceeding. Enforcing these harsh penalties combined with the ambiguity and broad scope of the law will surely deter concerned citizens from collecting the data needed to protect the people of Wyoming from high E. coli levels, or any other pollutant in their air, land, and waters.
The data trespass law is more than a legislature failing to address sources of pollution. The law goes well beyond private property rights, or trespass law- which are already firmly rooted in Wyoming law. It insulates any and all potential polluters from even an accidental discovery of flagrant violations of the law, by imposing criminal punishment to anyone who even intends to call attention to such illegal behavior.
State Senator Larry Hicks was a sponsor of the bill. He was also responsible for amending the law from reading “private open land” to reading “open land.” Hicks is known for opposing any federal government involvement and has supported proposed legislation that would arrest federal agents seeking to enforce federal gun laws in Wyoming., Hicks is also known to support the ranching community, and he is on the advisory board of the Family Farm Alliance, which advocates for reliable and affordable irrigation supplies for ranchers and cattle farmers. Other sponsors of the bill include State Rep. David Miller and State Senator Ogden Driskill. Senator Driskill is a life-long rancher and runs a cow/calf and sheep operation. He was the vice president of the Wyoming Stock Growers Association, which is a lobbyist group that advocates for the interests of the cattle industry and specifically lobbied for this law.
Rep. Miller’s interest in this legislation does not stem from his interest in ranching, but appears to stem from his interest in coal. Miller owns shares and sits on the board of County Coal Limited – a company with an exporting interest in Powder River Basin coal. Miller authored legislation that expanded the Wyoming Infrastructure Authority’s purview to include the promotion of coal export docks that will help Powder River Basin coal producers’ ability to tap Asian markets. This connects to the data trespass law because environmentalists strongly oppose coal export docks and their effects on the Powder River Basin; therefore the enactment of this law protects not only ranchers, but also coal mining operations from environmental scrutiny.
However, now with this data trespass law in place environmentalist will be deterred from collecting data samples around the Powder River Basin, due to the fear of criminal prosecution and civil liability. Miller’s interest in protecting the coal industry from environmental enforcement may explain why minerals and geology are explicitly included in the definition of resource data.
Second, if the goal is to protect private property rights then the legislation should have not been amended from “private open lands” to “open lands.” ‘Private open lands’ would have indicated that the goal of the statute was to protect property owners from people entering their land and taking samples from their land. ‘Open lands,’ on the other hand, is defined far too broadly and has a chilling effect on all scientific data collection whether it’s on private land or not. It makes it so any land beyond a municipality is off limits to anyone looking to do more than stare at their surroundings, even if that means taking pictures or notes!
Third, if the goal is to protect private property rights, why does the law expunge all the data even if it was not collected on private property? If a rancher’s cattle graze on public lands and contaminate a public stream – a stream he or she has no private ownership rights in – the data should be preserved in order to educate citizens that a particular parcel of public land is dangerous. However, this law prohibits the data from ever reaching the public and therefore leaves them vulnerable to harmful E. coli levels. The only explanation is that the Wyoming lawmakers intended to shield violators of environmental statutes from liability at all costs – much more than merely protecting private property rights.
States such as Utah, Idaho, and Iowa have similar laws that punish activists who seek to expose unlawful activities being committed by agricultural industries. These laws are referred to as “ag-gag” laws. In the case of Iowa, Idaho, and Utah, laws were enacted that make it illegal for anyone to record video or sound from an agricultural facility. These laws were enacted because animal rights activists were filming employees abusing and grossly mistreating animals on factory farms and other agricultural facilities. In scope, these laws are far more limited than the Wyoming data trespass law. While the ag-gag laws prohibit video or sound recording, Wyoming prohibits the preservation of information in any way.
The enactment of the ag-gag laws was met with constitutional challenges by animal rights groups. The laws were challenged on both First and Fourteenth Amendment grounds. In the Utah lawsuit, the judge dismissed the federal preemption cause of action at a pretrial motion, but did allow the lawsuit to proceed on First Amendment grounds. In the case of Wyoming’s law, supremacy clause and preemption arguments may be stronger because of the direct authority given to citizens pursuant to the federal Clean Water Act (CWA).
Under the CWA, any affected citizen can commence a civil lawsuit on his own behalf against anyone who is in violation of standards set by the EPA. WWP found E. coli levels that were over 200 times higher than the acceptable standards in some of Wyoming’s streams.
The Supremacy Clause invalidates state laws that “interfere with, or are contrary to federal law.”  Preemption can either be express or implied. Implied preemption arises when state law actually conflicts with federal law. Wyoming’s trespass law interferes and is contrary to the citizen suit provision in the CWA because the CWA gives citizens the right to bring suit against violators of the statute, while the Wyoming law attempts to take that right away by making it a crime. That is in direct conflict and interference with the goal of the CWA.
The Wyoming data trespass law is also subject to a First Amendment challenge. The law potentially violates the First Amendment and its right to petition the government. The Supreme Court has acknowledged “the First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances.” The ability to advocate ideas and to speak freely is significantly hindered by this law. In fact, simply intending to speak with a federal or state official about anything included in the extensive definition of “resource data” is a crime!
In regards to the ‘right to petition’ provision of the First Amendment, the Court has said “The right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.” In the case of Wyoming’s law, citizens are directly prohibited from going to the courts or any other government agency for redress of wrongs because they cannot report evidence of violations of environmental statutes without being subject to criminal prosecution or civil penalties.
Along with federal constitution challenges, this law may also be vulnerable to state constitution challenges. For example, unlike the United States Constitution, the Wyoming Constitution specifically enumerates the right to education under its declaration of rights. The education provision states “the right of citizens to opportunities for education should have practical recognition. The legislature shall suitably encourage means and agencies calculated to advance the sciences and liberal arts.” The Supreme Court of Wyoming has held that the right to a quality education under the state constitution is a fundamental right, therefore that right must be construed broadly. The data trespass law may be open to an education challenge because the law does not grant an exception for education purposes. In fact, Chris Boswell, the University of Wyoming vice president for governmental and community affairs, lobbied unsuccessfully for an exemption so that the new law would not apply to university researchers.  Because the education right is reviewed broadly, the Wyoming Supreme Court could hold that the law is unconstitutional because it deprives students the opportunity to freely study important environmental issues.
The Wyoming data trespass law is an unprecedented attempt to impede citizens from reporting violations of important environmental statutes. It attempts to justify itself as a law enacted to protect private property rights, but yet it is far broader in scope than needed to accomplish that goal. And this law surpasses any “ag-gag” law by leaps and bounds, effectively removing the public’s ability to protect its downstream, or downwind resources.
Unfortunately, the actions of the Wyoming legislature seem to insulate a certain group of property owners from environmental laws while intimidating its citizens from acting to protect Wyoming’s environment.
 WY Stat § 6-3-303 (1997).
 Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985).
 English v. Gen. Elec. Con., 496 U.S. 72,79 (1990).
 Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 286 (1984).
 Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897 (1984).
 Wyo. Const. art. I, § 23.
 Campbell County School Dist. v. State, 907 P.2d 1238, 1258 (Wyo. 1995).


1. Did Claimant suffer a psychological injury as a result of her May 20, 2008 work-related accident?
2. Did Claimant suffer a left ankle injury as a result of her May 20, 2008 work-related accident?
3. Did Claimant suffer a left knee injury as a result of her May 20, 2008 work-related accident?
4. Should Defendant’s contribution to Claimant’s group health insurance premium be included in her average weekly wage and compensation rate calculation?
3. Claimant is a licensed practical nurse who worked for Defendant as a “traveler.” That is, even though she lived in New Jersey with her son she agreed to a 13-week placement in a Rutland, Vermont nursing home. As part of her remuneration, Defendant provided her with local housing.
4. On May 20, 2008 Claimant reported to work for her third shift duty. As she was being briefed on the prior shift’s activities, she noticed a patient’s call light activate. Claimant responded to the call light and entered the patient’s room. The room was dark except for a night light.
5. The patient appeared to be sleeping as Claimant approached her bed, which was low to the floor and did not have side rails. As Claimant bent down to ask the patient how she could assist her, the patient reared up, grabbed Claimant by the hair, jerked her down and started shaking her violently. For two or three minutes she shook Claimant by the hair, digging her nails into Claimant’s scalp and drawing blood. The incident ended when another nurse came to Claimant’s aid and disentangled her from the patient’s grasp.
6. Claimant testified credibly that during the attack she felt afraid and helpless. As a medical professional, she did not consider it an option to defend herself against her patient’s aggression.
7. After she collected herself, Claimant realized that both her left knee and her left foot hurt, and also that she had a burning sensation in her neck. She ended her shift early and went to the emergency room. There she was diagnosed with an acute cervical strain and a fracture of her left great toe. For her neck injury she was advised to apply ice and to wear a sling to immobilize her left arm. For her toe fracture she was instructed to wear orthotic shoes. The emergency room records do not reference any complaints of, or treatment for, left foot or knee pain.
8. Defendant accepted Claimant’s neck and left toe injuries as compensable and began paying workers’ compensation benefits accordingly.
9. Claimant was released to return to desk work only in three days’ time. Unfortunately, Defendant had no desk duty available, and instead advised her that unless she was 100 percent recovered it would not allow her to return to work. In that event, furthermore, it would no longer pay for her housing in Vermont. Claimant could not afford this. Having no personal ties to Vermont outside of her job, she decided to move with her son to Arizona.
10. Claimant, her son and his fiancé moved to Arizona almost immediately. In July 2008 she obtained employment at Desert Life Rehabilitation and Care Center, a long term care facility. Claimant worked in different capacities for Desert Life’s parent company until November 2009. At that point, her treating physician disabled her from working on account of her cervical injury and Defendant commenced paying temporary total disability benefits. As of the formal hearing, Claimant had not yet returned to work.
11. Claimant suffered through a physically and emotionally abusive childhood and adolescence. She ran away when she was 14 years old and hitchhiked to the Woodstock music festival when she was 15. When she was 17, she gave birth to a child, but her mother told her it was stillborn and then secretly put it up for adoption.
12. When Claimant was 18 years old she was the victim of a brutal sexual assault. Her assailant pulled her by her hair from her car one night, dragged her to the edge of the woods and repeatedly assaulted her sexually at gunpoint. When Claimant struggled against her attacker, he subdued her by grabbing her hair and pulling her to the ground.
14. When Claimant was in her twenties she obtained her GED, and then became certified as a respiratory therapist. After nine years in this profession she returned to school and obtained her licensed practical nurse certificate. Claimant had three failed marriages, and was the sole bread winner for her four sons. In order to provide for her children, she consistently worked throughout her adult life, sometimes moonlighting at a second job or working overtime to make ends meet.
15. Within a few months after settling in Arizona, Claimant’s sons began to notice that she was behaving strangely. She constantly cried, and refused to leave the house for any reason other than to go to work. She feared for her safety, and became hyper-vigilant about checking and rechecking her doors and windows to make sure they were locked. She experienced anxiety attacks while driving, and therefore refused to do so. At work she compulsively counted and recounted patient medications for fear of making a mistake. She was afraid of the dark. Previously Claimant had been a social person, but now she no longer found pleasure in activities she used to enjoy, and was becoming estranged from her sons as well.
18. In June 2009 Claimant began treating with Dr. Ransom for complaints of left ankle pain, which she attributed to her May 2008 work accident. In follow-up appointments, Dr. Ransom observed lateral swelling on the left side of Claimant’s left foot and mild tenderness in the area as well.
19. Dr. Ransom diagnosed Claimant with a left ankle sprain, but never stated an opinion as to whether this injury was causally related to her May 2008 work accident or not.
20. In December 2009 and September 2010, Claimant underwent independent medical examinations as to her cervical spine injury with Dr. Eskay-Auerbach, an orthopedic surgeon. During the course of her examinations, Dr. Eskay-Auerbach noted that the lateral aspect of Claimant’s left foot was swollen and tender to palpation. She did not offer any diagnosis for this condition.
1 Defendant had accepted as compensable Claimant’s neck strain and left upper extremity radiculopathy. As treatment for these injuries she ultimately underwent cervical fusion surgery.
21. Dr. Eskay-Auerbach concluded that Claimant’s left ankle injury most likely was not causally related to her May 2008 work accident. As grounds for her conclusion, she noted first, that there was no report of ankle pain in the contemporaneous emergency room record immediately following that incident, and second, that if the pain had been present for a long time, it likely would have been evaluated some time ago. Given the circumstances surrounding Claimant’s relocation to Arizona, and particularly the difficulty she encountered in arranging medical care, I find Dr. Eskay-Auerbach’s reasoning in this regard somewhat unpersuasive.
22. In October and November 2010 Claimant treated with Dr. Arnold, an orthopedic surgeon, for left knee and hip pain. Claimant reported to Dr. Arnold that she had been suffering from left knee pain since her work-related accident in May 2008. Dr. Arnold diagnosed Claimant with tendonitis in her knee and bursitis in her hip. He did not state an opinion as to whether these injuries were causally related to Claimant’s work accident or not.
23. As both Dr. Ransom’s and Dr. Arnold’s medical records reflect, Claimant consistently denied during her office visits with them that she suffered from depression, anxiety, substance abuse or suicidal ideation. Claimant did acknowledge, in a second independent medical examination with Dr. Eskay-Auerbach in August 2010, that she was depressed. Even then, though, she attributed her depression to difficulty sleeping due to chronic pain, not to any psychological trauma per se.
24. It was not until December 2010 that Claimant first admitted the extent of her psychological distress to a medical provider. Specifically, she reported to Dr. Christiano, the neurosurgeon who was treating her cervical spine injury, that she was experiencing night terrors, had become reclusive and withdrawn and was compulsive about the safety of her home. Upon learning of these psychological symptoms, Dr. Christiano referred Claimant to Dr. Selz, a clinical psychologist, for treatment.
25. In addition to her credentials as a clinical psychologist, Dr. Selz also is certified as a Diplomate in neuropsychology by the American Board of Professional Neuropsychologists. Dr. Selz’ practice includes both evaluation and treatment. While most neuropsychologists do not engage in psychotherapy, Dr. Selz does.
• Subsequent to the sexual assault, Claimant was able to carry on with her life without external evidence of serious problems. She was consistently employed, raised her four sons successfully with little if any support and functioned well both within her family and in her community.
• There was no evidence of any existent psychiatric distress prior to the May 20, 2008 work injury.
• The May 2008 assault at work was similar in many respects to the sexual assault Claimant had endured years earlier. It happened at night and in the dark, the assailant subdued Claimant by dragging her down violently by her hair and it occurred under circumstances in which Claimant felt helpless to defend herself.
I find Dr. Selz’s rationale very persuasive.
28. Dr. Selz admitted at the formal hearing that she was not able to fit Claimant’s symptoms neatly into the diagnostic criteria for either post-traumatic stress disorder (PTSD) or a major depressive disorder. She prefers a more holistic approach to evaluating and treating patients and does not feel rigidly bound by the specific diagnostic criteria described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. In Dr. Selz’ opinion, Claimant clearly suffers from depression and anxiety causally related to the May 2008 work accident, and clearly requires psychological treatment as a result. Whether her condition meets the specific diagnostic requirements for either PTSD or a major depressive disorder does not alter these conclusions in any respect. I find Dr. Selz’ reasoning in this regard persuasive.
2 In addition to reviewing the raw data from her own administration of the MMPI-2 to Claimant, Dr. Selz also reviewed the raw data generated by Defendant’s expert, Dr. Youngjohn.
29. Defendant’s medical expert, Dr. Youngjohn, disagreed with Dr. Selz’ analysis. Dr. Youngjohn is board certified in clinical psychology and a Fellow of the National Academy of Neuropsychology. His practice focuses on assessment of psychological and neuropsychological issues for other doctors, nurses, attorneys and employers. Most of his current referrals come from the court system, and involve evaluating criminal defendants’ competence to stand trial as well as mitigation of guilt issues.
30. Dr. Youngjohn conducted a day-long neuropsychological evaluation of Claimant in June 2011.3 He also reviewed her medical records.
31. Dr. Youngjohn concluded that Claimant did not suffer any psychological injury as a consequence of her May 2008 work accident. In his estimation, that accident involved a “demented little old lady” who could not have posed a significant physical threat to Claimant. Nor did he perceive that it produced the necessary level of fear, helplessness or horror sufficient to support a diagnosis of PTSD. I find Dr. Youngjohn’s attempt to minimize the physical threat posed by the May 2008 attack unpersuasive, particularly given that it involved force sufficient to cause both a serious cervical injury and a fractured toe.
32. Dr. Youngjohn also rejected the possibility that Claimant suffered from any depressive disorder causally related to the May 2008 patient assault. She consistently had denied experiencing depression, anxiety, substance abuse or suicidal ideation when asked by Drs. Ransom and Arnold on several occasions in 2009 and 2010. In Dr. Youngjohn’s opinion, her failure to report any such symptoms earlier casts substantial doubt on her assertion now, some two years later, that her psychological issues relate back to her work accident.
33. Dr. Youngjohn interpreted the results of Claimant’s MMPI-2 testing4 as indicative of her tendency to over-report and exaggerate her psychological symptoms. In fact, he doubted the veracity of both her complaints and her history. He did not believe that Claimant would have had the wherewithal at age 14 to run away from home, or to hitchhike around the country and attend the Woodstock music festival at age 15. Nor did he believe that her mother would have been able to circumvent “hospital policies” so as to give Claimant’s newborn baby up for adoption without her knowledge. Very simply put, Dr. Youngjohn did not buy Claimant’s story in any respect.
3 A neuropsychological examination differs from a psychological one in that it entails six to eight hours of rigorous testing, the primary purpose of which is to determine if the examinee suffers from cognitive deficits. Dr. Youngjohn acknowledged that neuropsychological testing was not a necessary component of his evaluation in this case, but he performed it anyways because that was what Defendant had requested.
4 As Dr. Selz had, Dr. Youngjohn analyzed the raw data from both his own administration of the MMPI-2 to Claimant and from Dr. Selz’ testing.
34. Based both on Claimant’s psychological test results and on what Dr. Youngjohn characterized as her lifelong history of maladaptive behavior, he concluded that Claimant suffers from antisocial personality and avoidant personality disorders. He acknowledged the possibility that Claimant had compartmentalized the psychological effects of the sexual assault she suffered when she was 18. He also agreed that Claimant clearly is in psychological distress currently and would benefit from treatment. In Dr. Youngjohn’s opinion, however, Claimant’s psychological issues were neither caused nor triggered in any way by her May 2008 work accident.
35. Having accepted Claimant’s account of the various circumstances underlying her claim as credible, I find Dr. Youngjohn’s testimony to be largely unpersuasive. I do not share his incredulity, for example, at the possibility that Claimant could have made her way to Woodstock at age 15. To the extent that Dr. Youngjohn’s opinion was based on his strongly held belief to the contrary, I find that it is severely compromised.
36. In 2009, the last year that Claimant worked, Claimant’s then employer, Desert Life Rehabilitation and Care Center, contributed $3,120.00 to her annual group health insurance premium. It is unclear from the evidence presented whether these contributions covered the period of time after November 2009 when Claimant became disabled from working on account of her cervical spine injury. As a consequence, it is impossible to determine how her average weekly wage and compensation rate calculation would differ were the contributions to be included.
2. Claimant alleges that the mechanism of her May 2008 work accident was such that it triggered long-repressed emotions stemming from the sexual assault she endured when she was 18. As a result, she claims, she now suffers from depression and anxiety. Claimant in essence is asserting a “physical-mental” claim, one in which a work-related physical insult causes a psychological injury.
3. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. 618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim, the only difference being that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
4. It is true, as Defendant asserts, that many physical-mental claims involve situations where the limitations induced by a specific physical injury cause psychological consequences. A claimant whose disc herniation precludes him from returning to physically strenuous work becomes depressed and anxious at the prospect of becoming unemployable, for example; the necessary treatment required to restore his psychological well-being is clearly compensable. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989); Larson’s Workers’ Compensation, supra. Even in this fact situation, however, the critical inquiry is not whether the claimed psychological injury derives directly from a work-related physical injury. It is simply whether it derives from a work-related physical stimulus. Merrill v. Town of Ludlow, 147 Vt. 186 (1986).
5. In Merrill, the Vermont Supreme Court considered the viability of just such a “physical-mental” claim. The claimant in that case was involved in a work-related accident when the truck he was driving skidded off the road and overturned. He initially claimed to have suffered a thoracic spine injury. Later, a defense expert hypothesized instead that the accident had unmasked a pre-existing hysterical condition, such that the claimant’s physical symptoms were actually psychological in origin. The court sustained the claimant’s right to recover workers’ compensation benefits under this theory of the case. It thus acknowledged that a physical stimulus (the truck accident) could give rise to a compensable psychological injury. Id.; see also Blais, supra at Conclusion of Law No. 10 (noting evidence that substantiated causal link between claimant’s psychological injury and his work-related fall from a ladder).
6. In accepting the viability of the claimant’s physical-mental claim in Merrill, the Supreme Court also acknowledged the compensability of a claim in which the physical stimulus (there, the truck accident) did not cause a new psychological injury but rather triggered a previously dormant one (hysteria) to become active. In doing so, the court signaled that when a work injury aggravates or exacerbates a pre-existing condition, be it physical or psychological, the result is compensable. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). This is simply an extension of the well-settled rule that an employer takes its employees as it finds them. Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009); Petit v. North Country High School, Opinion No. 20-98WC (April 28, 1998).
7. According to Claimant’s expert, Dr. Selz, this is exactly what occurred here. The physical stimulus of the May 2008 assault at work triggered long-repressed emotions from her sexual assault decades earlier, causing the depression and anxiety from which she now suffers. Defendant’s expert, Dr. Youngjohn, sees no such causal connection.
8. Where expert opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
9. Neither of the experts here was a treating provider. Both reviewed the pertinent records and conducted a comprehensive evaluation. Both were well qualified to render an opinion as to the causal relationship, if any, between Claimant’s current psychological distress and the May 2008 work accident. The only factor that differentiates them, therefore, is the third one, that is, the extent to which their respective opinions were clear, thorough and objectively supported.
10. I conclude that Dr. Selz’ opinion is better supported, and therefore more persuasive, than Dr. Youngjohn’s. The starting point for her analysis was uncontroverted evidence establishing that for the many years between Claimant’s sexual assault and her work accident she functioned well and was psychologically stable. Against that backdrop, Dr. Selz considered the many important similarities between the two assaults. With those similarities in mind, she credibly concluded that although the root cause of Claimant’s emotional pain may have extended back to her sexual assault, it was the work accident that triggered the psychological response from which she now suffers.
11. In contrast, Dr. Youngjohn’s opinion was based almost entirely on his determination that Claimant was exaggerating both her prior history and her current symptoms. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
12. I conclude that Claimant has sustained her burden of proving that her current psychological condition is causally related to the May 2008 work accident, and is therefore compensable. She therefore is entitled to workers’ compensation coverage for whatever treatment is determined to be reasonable, necessary and causally related to that condition.
13. Claimant contends that she injured both her left ankle and her left knee as a consequence of the May 2008 patient assault. Neither Dr. Ransom nor Dr. Arnold stated an opinion as to the causal relationship, if any, between her ankle and knee complaints and her work injury, however. Absent expert medical evidence, I cannot presume that such a relationship exists. Laird v. State Highway Department, 110 Vt. 195 (1939). This is true even though I have found the reasoning underlying Dr. Eskay-Auerbach’s opinion on this issue to be unpersuasive. Claimant bears the burden of proof, and she has failed to sustain it. Egbert, supra.
14. I conclude that Claimant’s left ankle and knee injuries are not compensable.
15. Claimant argues that the value of her employer’s contributions to her group health insurance premium should be included in her average weekly wage and compensation rate calculation. This argument was addressed – and rejected – most recently in Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). For exactly the same reasons as enunciated there, I reject the claim here as well.
16. I conclude that Claimant’s average weekly wage and compensation rate should be calculated without including the value of any employer-paid contributions to her group health insurance premium.
DATED at Montpelier, Vermont this 8th day of February 2012.


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015-2-014 – Jones v. Southpeak Interactive Corp.
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014-2-211 – Whiteside v. U.S.
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014-2-206 – Hudson v. Pittsylvania County Va.
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Defendant Rickey Lynn pled guilty to a one-count superceding information charging him with maintaining a place for the purpose of using and distributing cocaine base in violation of 21 U.S.C. § 856(a)(2), which carries a maximum sentence of 240 months imprisonment. The presentence report attributed a total of 183.16 grams of cocaine base to Defendant. Over Defendant's objection, the district court found the Government had proven the drug quantity by a preponderance of the evidence and sentenced Defendant to 124 months imprisonment. We affirmed Defendant's sentence on direct appeal, holding that the district court properly calculated the quantity of cocaine base attributable to Defendant. United States v. Lynn, No. 99-6017, 1999 WL 820256 (10th Cir. 1999) (unpublished).
A defendant may appeal the denial of a § 2255 motion only if "a circuit justice or judge" issues a certificate of appealability. 28 U.S.C. § 2253(c)(2). A certificate of appealability "may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c). Mindful of this standard, we have thoroughly reviewed Defendant's application for a certificate of appealability, his brief, the district court's order denying the motion, and the entire record before us. Because Defendant did not receive an illegal sentence, a conclusion implicit in our resolution of Defendant's direct appeal, Defendant necessarily did not receive ineffective assistance of counsel based upon counsel's failure to object to an illegal sentence. Because Defendant has not made a substantial showing of the denial of a constitutional right, we deny his request for a certificate of appealability and dismiss the appeal.
1. While the doctrine of procedural bar generally applies to § 2255 proceedings, the doctrine does not apply to ineffective assistance of counsel claims brought for the first time in a § 2255 motion. United States v. Galloway, 56 F.3d 1239, 1240-43 (10th Cir. 1995) (en banc). Thus, Defendant's failure to raise his claim of ineffective assistance of counsel on direct appeal does not bar him from raising the claim in his § 2255 motion.
2. Defendant's motion to proceed on appeal in form pauperis, see Fed. R. App. P. 24(a)(3), is denied as moot.