Pharmacoepidemiology is an important part of an on-going major expansion in the area of the use of drugs (medicines) at the faculty of Pharmacy, which includes, among other initiatives, this professorship. It will also be possible to link the post to the newly formed EpiHub network, a research unit in epidemiology recently formed at the Disciplinary Domain of Medicine and Pharmacy, for jointly laying a long-term foundation for advanced epidemiological research.
Duties comprise teaching, research and administration. Teaching includes course management, course administration and supervision of doctoral students. Also included in the position is the duty to follow development in the holder’s own subject and in the development of society in general.
To be eligible for employment as a professor, the applicant must have shown both research and teaching expertise (Swedish Higher Education Ordinance, Chapter 4, Section 3). Under the Appointment Regulations for Uppsala University (§ 5), having the personal characteristics required to perform the duties of the post well is a general eligibility requirement.
Research expertise must have been demonstrated by independent research work and by the fact that the applicant's activities maintain a high international and national standard. In assessment of research expertise, particular emphasis will be put on research qualifications in central research areas of pharmacoepidemiology. Key examples of such areas are the use of drugs (medicines) and its consequences in the form of pharmacological effects and side-effects, and also the use and prescription patterns for drugs, including polypharmacy, in the population or in limited categories thereof.
Another qualification for the professorship is experience of epidemiological register research, especially use of the Swedish Prescribed Drug Register (SDPR), including demonstrated methodological skills in epidemiology. Regarding the latter, familiarity with the methodological development of the past decade in the area of causal inference is particularly desirable. This includes new methods of measuring causal effects in observation data and for identifying, and distinguishing between, immediate and long-term effects, and methods of avoiding bias.
The applicant must have demonstrated expertise in planning, initiating, leading, and developing research, have demonstrated the capacity to obtain resear ch funding in competition, and demonstrate well-documented expertise in supervising third-cycle students. The applicant's contributions to the international and national academic community must be assessed on the basis of, among other things, the quality and scope of his/her academic publications in publishing channels most relevant to the subject. Requirements for international merits must be assessed on the basis of the character and specific circumstances of the subject.
Teaching expertise must be demonstrated by educational and teaching qualifications (see § 23 of the Appointment Regulations for Uppsala University). Furthermore, the applicant must demonstrate well-documented expertise in supervision in the first, second and third cycles. A prerequisite for having demonstrated teaching expertise is that applicants have completed teacher training for higher education of relevance to operations at the University, comprising at least ten weeks, or have acquired the equivalent knowledge. If special circumstances apply, this training for teachers in higher education may be completed during the first two years of employment. The teacher training must also include third cycle supervision.
To be eligible for appointment as a teacher an applicant must have a documented ability to teach in Swedish and English. If special reasons apply, a person who lacks the ability to teach in Swedish is required to acquire this ability within the first two years.
In assessment of the eligible applicants, most weight will be assigned to research expertise, followed by teaching expertise. Balancing of assessment criteria will nevertheless take place so that an applicant who is judged to be significantly more skilful in terms of teaching than another applicant who is slightly more skilful in terms of research may be ranked above the latter.
In assessing research expertise research quality must be the prime consideration. The scope of research, primarily in regard to depth and breadth, must also be afforded consideration. Furthermore, consideration must be given to the capacity to plan, initiate, lead and develop research and education in the third cycle, the ability to acquire funding for research in competition, as well as the demonstrated capacity to interact with others both within academia and in the wider community. See also § 3 of Guidelines and assessment criteria for recruiting and promoting teachers at the Disciplinary Domain of Medicine and Pharmacy (RB).
In assessing teaching expertise teaching quality must be the prime consideration. The scope of teaching experience, in terms of both breadth and depth, must also be afforded consideration. Furthermore, consideration must be given to the capacity to plan, initiate, lead, and develop teaching and instruction, as well as the ability to connect research to teaching in respect to research in the subject at hand, subject didactics, as well as teaching and learning in higher education. The ability to interact concerning issues of teaching and learning in higher education with actors inside and outside the University is also included in teaching expertise. See also § 4 of RB.
potential to carry out and develop the relevant duties and to help advance operations.
Expertise in the areas of management and administration are important for the appointment and weight will be assigned to both. The ability to cooperate with the community at large, and to inform others of research and development, will also be taken into account.
Management expertise is demonstrated through the capacity to lead operations and personnel, make decisions, take responsibility, and motivate others, providing them with what is needed for the efficient achievement of common goals. The abilities to coordinate the group and help create a sense of involvement, participation, and enjoyment in work and to deal with conflicts constitute further examples of demonstrated expertise. See also § 5 of RB.
According to the Appointment Regulations for Uppsala University, administrative expertise is demonstrated, for example, through the capacity to plan, organize, and prioritize work in an efficient and task-related manner as well as through the ability to assign and observe time frames. Expertise includes overall operational planning and the capacity to manage resources in a way that reflects operational priorities as well as the ability to work in a structured manner based on an awareness of goals and quality. See also § 5 of RB.
Under § 6 of RB, when assessing collaborative expertise, experience with and expertise in education and outreach, editorships and other activities related to knowledge exchange between the university and the surrounding community, as well as experience with innovation and entrepreneurship, shall be of significance.
The aspect of gender equality will be applied if, after an overall qualitative assessment, two applicants of the same gender are deemed to have equivalent or virtually equivalent qualifications.
The applicant’s parental leave, part-time work due to care of children or the like will count as qualifying work experience.
Uppsala University values the qualities that equal gender distribution and diversity bring to its activities. We would therefore like to see applicants of all genders and with varied birth backgrounds, functional capacity and life experience.
Information about the position is available from Professor Margareta Hammarlund-Udenaes or Head of Department Erik Björk.
The Guidelines and assessment criteria for recruiting and promoting teachers at the Disciplinary Domain of Medicine and Pharmacy are available here.


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In many cases where there are physical injuries, i.e. domestic violence, battery, mayhem and even murder (autopsy photographs), photographic evidence can be persuasive evidence that shows a crime took place.
However, there are certain due process principals that must be followed. Defense counsel must be given notice that the prosecution intends to introduce such photographs for a judge or jury to view.
First, defense counsel should ensure that there is no foundation objection possible. In other words, are the photographs indeed of the victim? Sometimes, that is not clear. Is the photographer able to testify that the photograph is a true and accurate representation of what the photograph purports to be?
This is particularly true in domestic violence cases where a photograph may be of only a smart part of the body. Our office once noticed that a particular photograph was from a different case because a tattoo was visible that the alleged victim did not have. Police, after all, can make mistakes.
Defense counsel may then object that the photographs are more prejudicial than probative. People v. Cardenas (1982) 31 Cal.3d 897, 904. Such photographs or displays may be excluded where the principal effect is to arouse the jury’s passion. People v. Carter (1957) 48 Cal.2d 737, 751; see also Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 445-446. In addition, “[t]he general rule is that, ‘[w]here the inevitable effect of introducing a photograph or display is to arouse the sympathy or prejudice of the jury, and the fact in proof of which it is offered is not denied, or where its introduction serves no purpose other than to inflame the jurors’ emotions, it is not admissible.’” People v. Redston (1956) 139 Cal.App.2d 485, 491; see also People v. Navarette (2003) 30 Cal.4th 458, 495 (the trial court’s decision to admit a victim photograph will stand unless the prejudicial effect of the photograph clearly outweighs its probative value).
However, the use of photographs of the deceased victim is within the trial court’s discretion, meaning the judge can still allow the jury to see such photographs. See People v. Smithey (1999) 20 Cal.4th 936; People v. Thompson (1988) 45 Cal.3d 86, 114 (photographs of victim’s face and of injuries admissible to show care taken during commission of crime, to refute defendant’s contention that he had been drunk on night of crime); People v. Walker (1988) 47 Cal.3d 605, 630 (use of victim’s high school yearbook photo to aid witness in court in identifying victim permissible; photo was only one available to prosecutor); People v. Thompson, supra (photo of victim while alive admissible to show that victim was a live human being on the night of the crime earlier in the evening).
Sometimes, a photo or even a videotape will have a particular evidentiary value that is separate from any type of intended emotional impact the prosecution may desire. For example, in People v. Harris (2005) 37 Cal.4th 310, 332, a silent videotape of the victim at a children’s party was admissible to show the victim owned and wore jewelry that the prosecution claimed was stolen during her murder.
It merits mention that photographs of victims as they appeared in life are always admissible at the penalty phase of a capital trial (a murder case). People v. Anderson (2001) 25 Cal.4th 543, 594; People v. Lucero (2000) 23 Cal.4th 692, 714.
In other words, defendant should always ensure the photograph is indeed what the prosecutor claims it is and then try to clarify exactly what the intended purpose of such photographic evidence is before a jury is presented with any photograph. If the prosecutor cannot articulate the purpose, defense counsel should ask the judge to order it inadmissible (move to exclude the evidence).

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(A) Codes adopted by reference. The Minnesota State Building Code, as adopted by the Commissioner of Administration pursuant to M.S. Chapter 16B.59 to 16B75, as it may be amended from time to time, including all of the amendments, rules and regulations established, adopted and published from time to time by the Minnesota Commissioner of Administration, through the Building Codes and Standards Division is hereby adopted by reference with the exception of the optional chapters, unless specifically adopted in this section. The Minnesota State Building Code is hereby incorporated in the section as if fully set out herein.
(B) Application, administration and enforcement.
(1) The application, administration, and enforcement of the code shall be in accordance with the Minnesota State Building Code. The code shall be enforced within the extraterritorial limits permitted by M.S. § 16B.62, subdivision 1, as it may be amended from time to time, when so established by this section.
(2) The code enforcement agency of this municipality is called the _____.
(3) This code shall be enforced by the Minnesota Certified Building Official designated by this municipality to administer the code (M.S. § 16B.65, subdivision 1, as it may be amended from time to time).
(1) The issuance of permits and the collection of fees shall be as authorized in M.S. § 16B.62, subdivision 1, as it may be amended from time to time.
(2) Permit fees shall be assessed for work governed by this code in accordance with the fee schedule adopted by the municipality. In addition, a surcharge fee shall be collected on all permits issued for work governed by this code in accordance with M.S. § 16B.70, as it may be amended from time to time.
(D) Violations and penalties. A violation of the code is a misdemeanor (M.S. § 16B.69, as it may be amended from time to time).
(E) Building Code optional chapters. The Minnesota State Building Code, established pursuant to M.S. §§ 16B.59 to 16B.75, as they may be amended from time to time, allows the municipality to adopt by reference and enforce certain optional chapters of the most current edition of the Minnesota State Building Code.
150.02 VACATION OF STREETS, ALLEYS AND PUBLIC GROUNDS.
(A) The City Council may vacate public grounds, streets or alleys or any part thereof on its own motion. When the vacation is by the motion of the Council rather than by petition, the resolution may be adopted by a four-fifths vote of the Council. No such vacation may be accomplished unless it appears in the interest of the public to do so and until after a hearing is held which is preceded by a two week published and posted notice. After a notice of vacation is adopted, the Administrator shall prepare and present to the proper county officials a notice of completion of the proceedings.
(B) The Council may by resolution vacate any street upon the petition of a majority of the owners of land abutting on the street, alley, public ground, public way or any part thereof to be vacated. A resolution shall be upon hearing as provided for in division (A) of this section and the vacation upon a petition of property owners may be adopted by a majority vote.
(C) M.S. § 412.851, as it may be amended from time to time, is adopted by reference and specifically made a part hereof and incorporated herein.
The City Council finds that for the purpose of providing proper protection of public and private property in the city it is essential to require visible approved addressing or identification for each separate public, residential, commercial or industrial building.
Each primary structure within the city limits shall be assigned an address. The list of addresses of all primary structures within the city shall be held at the office of the City Administrator.
(A) All owners or occupants of residential, commercial and industrial structures within the city shall display their assigned address numbers on the outside of their primary structures, near the front door, for emergency purposes. The address number must be located on a primary structure surface facing the public road clearly visible from the road, address numbers shall be no smaller than four inches and colors should be in strong contrast with background. No self-adhesive number appliques shall be used.
(B) In those cases where the principal building’s address is obscured from view from the street of address by accessory buildings, trees, shrubbery or other visual obstruction, the numbers shall be displayed on the mailbox in numerals not less than two inches high, of a light reflective material and of a contrasting color to the background. In those cases where the principal building is obscured from the view from the street address and the residence does not have a mailbox, the numbers shall be displayed from a permanent mounting on the property, clearly visible from the street, displayed prominently in numerals not less than four inches high of contrasting color to the background. The post should be within 50 feet of the road and ten feet of the driveway. The bottom of the address sign shall be placed at a height that is no less than four feet above the level of the surface of the road.
It shall be the duty of the owner or manager of every multiple dwelling building containing five or more rental units, and the owner or occupant of every individually owned dwelling unit in any such multiple unit building to properly identify each dwelling unit by attaching identification numbers on or adjacent to each entrance to the individual units. The owner or manager of any multiple dwelling building with common entrances containing five units or more, whether the units are rental or individually owned, shall provide signs, including directional arrows, easily identifying the location of each dwelling unit in the building. The signs shall be placed in an obvious location inside each entrance to the building as approved by the Fire Chief.
150.24 MAINTENANCE OF BUILDING NUMBERS.
The occupant of the primary structure shall be responsible for keeping its address numbers in good repair and clear of snow, dirt, debris or other obstructions.
All owners of primary structures in the city shall comply with this chapter within 45 days. All city licenses, applications and permits may be withheld from the owners or occupants of primary structures if the address is not placed or maintained in conformance with this chapter.
Failure to comply with any section of this subchapter shall constitute a petty misdemeanor.


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Inasmuch as the Vehicle Code applies only to vehicles on highways and trafficways, understanding the definition of both is paramount to understanding the applicability of the DUI law.
A parking garage is a trafficway. Commonwealth v. Zabierowsky, 730 A.2d 987 (1999).
An alleyway leading to a government building is a trafficway. Commonwealth v. Cozzone, 593 A.2d 860 (1991).
A condominium parking lot not open to the public is not a trafficway or highway. Comm. v. Owen, 580 A.2d 412 (1990).
A parking lost used by the public is a trafficway. Commonwealth v. Zabierowsky, 730 A.2d 987 (1999).
A dirt track through a field this is open to the public and occasionally used by the public for vehicular traffic is a trafficway. Comm. v. Baughman, 516 A.2d 390 (1986).
A private drive into a trailer park that has only one entrance/exit and was itself a dead end is not a trafficway. Comm. v. McFadden, 547 A.2d 774 (1988).
Remember, it’s the Commonwealth’s burden to establish what is a highway or trafficway.

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I’m Jeremy W. Richter. In addition to authoring this blog, I am an attorney with Webster, Henry, Lyons, Bradwell, Cohan & Speagle, P.C., in Birmingham, Alabama, practicing civil defense litigation and focusing on commercial auto/trucking litigation, premises liability, general business liability, and various other aspects of insurance defense litigation.
I recently wrote about the FMCSA regulations governing the hiring of non-English speaking drivers – in short, a motor carrier shouldn’t hire a non-English speaking truck driver. The Department of Transportation and Federal Motor Carrier Safety Administration require that truck drivers be able to read and speak English well enough to communicate with the general public, to understand road signs and signals that are in English, to respond to law enforcement and DOT officials, and to fill out paperwork. See 49 C.F.R. § 391.11(b)(2).
But there are truck drivers out on the roads who don’t speak or understand English well enough to be compliant with the regulation, so what are the practical, legal effects on a non-English speaking truck driver who is on the roadways and gets into an accident? You may not like the answer – it depends.
Early in my career as a trucking lawyer, I had a case involving a Russian immigrant to French Canada, who was involved in a wreck in South Alabama. Arkady and his wife were an owner-operator team who hauled loads all over the United States and Canada. One day while is South Alabama, they were involved in an accident that was not their fault. It resulted in their truck being out of commission for a couple of months while being repaired, which in turn resulted in them being unable to earn a living during that time.
Arkady and his wife hired my firm to sue the other driver for their property damage, lost wages, and bodily injuries. I had numerous conversations with Arkady over the phone, but spent more than half of each conversation apologetically asking him to repeat what he had said. His grasp of the English language was minimal, and his heavy Russian accent made it nearly unintelligible.
During the course of the lawsuit, both sides issued written discovery requests. I sent off the Interrogatories and Requests for Production to Arkady so he and his wife could inform the Defendant about their version of events and the injuries and damages they were claiming. It turned out that as poorly as Arkady spoke English, he was able to read and write it even less effectively.
After receiving the paper discovery back from Arkady and wading through it as best I could, I knew I would have to speak with Arkady again to decipher his meanings. I called. We had spoken for 10-15 minutes, when Arkady said to me, “This is Arkady’s wife.” Arkady and his wife had the same baritone voice and speech pattern, and I couldn’t tell them apart! I turned fourteen shades of red, tried to play if off as merely misspeaking, and got off the line as quickly as possible.
Then I settled the case … also as quickly as possible. I could not put these folks in front of a South Alabama jury.
Francisco was driving his tractor-trailer from Texas to Florida. While on the interstate in Alabama, a tire released itself from the grasp of an 18-wheeler traveling in the opposite direction. The tire was rolling along about 50mph when it crossed the median and smashed into Francisco’s front drive tire, rendering Francisco unable to control his vehicle. Francisco’s truck then crossed the median into oncoming traffic, collided with a vehicle, and rolled into the woods.
Francisco hadn’t done anything wrong. He could not have avoided the runaway tire. All of his paperwork was in order. He cooperated with the investigating officers. And after the accident scene investigation wrapped up, the State Troopers said he was free to go.
About a year later, Francisco and the motor carrier he was driving for were served with a lawsuit. Things proceeded well in the lawsuit, until it came time for party depositions. Much to my surprise, Francisco arrived at the deposition with an interpreter. When opposing counsel asked him about the interpreter at the beginning of the deposition, Francisco replied that he didn’t speak English. This was also a surprise since I had spoken with Francisco on several occasions.
It didn’t take long after that for the Plaintiff to hire an expert to say that Francisco and the motor carrier were violating the Federal Motor Carrier Safety Regulations because Francisco was a non-English speaking truck driver. Francisco still hadn’t done anything wrong out on the roadway that day. But now the Plaintiff had red herrings in the form of DOT violations that it could throw at the jury. Specifically, Francisco did not speak English well enough to communicate with the general public. And this despite the investigating officer testifying that he had no trouble communicating with Francisco at the scene.
What Are the Legal Effects of Hiring a Non-English Speaking Truck Driver?
It depends. Maybe nothing. Maybe everything. I have not told the story of the wrongful death suit that was filed against a Spanish-speaking truck driver I represented. Although it was evident that the other driver had pulled out in front of him, leaving him no time to react, the truck driver barely spoke English (I had to communicate with him through his daughter). He and the motor carrier that hired him had violated the FMCSR. Never mind that his native language had no bearing on what occurred out on the roadway. He became a target because of the language barrier.
The hiring of a non-English speaking truck driver may create grounds for a lawsuit where none existed before. I’ve defended truck wrecks before where the truck driver was not at fault for the accident, but had all sorts of DOT problems. It can be done. But it sure is easier when the driver isn’t at fault and he’s in compliance with industry regulations. Juries are looking for reasons to award money to plaintiffs, and having a non-English speaking truck driver may give them that opportunity where none would have existed otherwise.
Valerie A. Taylor n/k/a Valerie Backus v. Lindsey V. Wheeler n/k/a Lindsey Woodard: An Alabama jury’s defense verdict will not be interrupted even when the evidence that a sudden emergency caused an accident is scant and conflicted.
On the evening of December 6, 2007, a vehicle being driven by Valerie Taylor/Backus rear-ended a vehicle being driven by Lindsey Wheeler/Woodard. Almost two years later, Lindsey sued Valerie, alleging claims of negligent and wanton conduct. Valerie raised the affirmative defense of sudden emergency.
Under Alabama law, if a person, without fault of her own, is faced with a sudden emergency, she is not to be held to the same correctness of judgment and action as if she had time and opportunity to fully consider the situation. The standard of care required in an emergency situation is that care which a reasonably prudent person would have exercised under the same or similar circumstances. In order for the sudden emergency doctrine to be applicable, there must be (1) a sudden emergency, and (2) the sudden emergency must not be the fault of the one seeking to invoke the doctrine.
Lindsey offered testimony that her vehicle was at a complete stop when Valerie struck her from behind. Valerie testified on direct examination that Lindsey had not stopped in an “emergency fashion,” but on cross-examination, Valerie’s lawyer elicited testimony from her that Lindsey had stopped suddenly and as a result, Valerie struck Lindsey’s vehicle. Valerie further testified, “I tried to stop, but it wasn’t successful and I hit her.” There was no further evidence of a sudden emergency.
The judge gave the jury instructions on both negligence and sudden emergency. The jury entered a defense verdict in Valerie’s favor. Upon considering a post-trial motion by Lindsey, the trial court found that the jury had entered its verdict against the great weight of the evidence, and the court awarded Lindsey a new trial. Valerie appealed to the Alabama Court of Civil Appeals. Valerie A. Taylor n/k/a Valerie Backus v. Lindsey V. Wheeler n/k/a Lindsey Woodard [Ms. 2150776], — So.3d — (Ala.Civ.App. Dec. 14, 2016).
Ultimately, the Alabama Court of Civil Appeals determined that the trial court erred in granting a new trial. It found there was “some evidence of a sudden emergency” but also that the jury may not have reached its verdict solely on the issue of sudden emergency. Rather, the jury may have found that Valerie was not negligent. Moreover, there was conflicting testimony regarding the circumstances of the accident, and the resolution of conflicting facts lies solely within the province of the trier of fact (in this case, the jury). The appellate court found that the jury had properly exercised its duty to resolve fact conflicts, and its verdict in Valerie’s favor was not against the great weight or preponderance of the evidence. Therefore, the trial court’s order granting a new trial was reversed, and the case was remanded accordingly.
 At trial, counsel for Lindsey informed the court Lindsey would not pursue the claims for wantonness, leaving negligence as the only remaining claim against Valerie.
 Jawad v. Granade, 497 So.2d 471 (Ala. 1986).
 See Scott v. Farnell, 775 So.2d 789, 791 (Ala. 2000).
 See Sharrief v. Gerlach, 798 So.2d 646, 651 (Ala. 2001).
Ex parte April Steele Benton: When suit may be properly filed in more than one venue, the interest of justice prong of the forum non conveniens statute gives great weight to the county where material events occurred.
On December 4, 2014, April Steele Benton (Bibb County resident) and Amir Alan Ebrahimi (Shelby County resident) were involved in a collision in Shelby County. Ebrahimi was injured in the accident, and filed suit in Bibb County against Benton and her husband John Benton (owner of the vehicle April was driving), and State Farm (for underinsured motorist benefits).
The Bentons moved to transfer the action from Bibb County to Shelby County on the doctrine of forum non conveniens, pursuant to Alabama Code (1975) § 6-3-21.1. The Bentons argued that Shelby County had a stronger nexus to the case for the following reasons: (1) the accident occurred in Shelby County; (2) the accident was investigated in Shelby County; (3) the plaintiff Ebrahimi received medical treatment in Shelby and Jefferson Counties; and (4) Bibb County’s only connection to the case was that the Bentons resided there. State Farm joined the motion to transfer venue, and Ebrahimi did not file a motion in opposition. Following a hearing, the trial court denied the defendants’ motion to transfer venue, and the defendants then filed a petition for writ of mandamus. Ex parte April Steele Benton, et al. [Ms. 1151181], — So.3d — (Ala. Dec. 2, 2016).
As such, a party moving for venue transfer under the forum non conveniens statute has the initial burden of showing that the transfer is justified based on the convenience of the parties and witnesses, or based on the interest of justice.
There is no question that venue is proper in both Bibb County and Shelby County. When venue is proper in more than one county, the plaintiff’s choice of venue is generally given great deference. The issue before the court then is whether the interest of justice overrides the deference given to the plaintiff’s choice of forum.
The prior rulings of the Supreme Court of Alabama have shown that it construes the interest-of-justice prong to give great weight to the fact that the accident occurred in Shelby County and no material events occurred in Bibb County. In fact Bibb County’s only nexus to the case is the fact that the Bentons reside there. Therefore, the Supreme Court of Alabama found no need to burden Bibb County with the matter, with its weak connection to the case, simply because it was the county of residence of the Bentons.
 See Ex parte Masonite Corp., 789 So.2d 830, 831 (Ala. 2001).
 See Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala. 2003).
 See Ex parte J & W Enters., LLC, 150 So.3d 190, 194 (Ala. 2014).
 See e.g., Ex parte Wayne Farms, LLC [Ms. 1150404, May 27, 2016], — So.3d — (Ala. 2016); see also Ex parte Manning, 170 So.3d 638 (Ala. 2014); Ex parte Autaga Heating & Cooling, LLC, 58 So.3d 745 (Ala. 2010); Ex parte Mitchell, 690 So.3d 356 (Ala. 1997).
Consider this look at systematic problems and scams associated with DOT medical examinations to be the case study supporting yesterday’s post identifying the compliance problems associated with DOT medical examiner’s certificates and reports.
I recently had a case in which my truck driver client had been issued a Medical Examiner’s Certificate after having submitted to DOT medical examinations. The medical examiner was a nurse practitioner. She appeared to have performed a thorough and comprehensive physical of my truck driver. But there were a few problems.
The nurse practitioner had re-certified the driver when his heart condition and blood pressure results should have only permitted him to receive a re-certification for one year, pursuant to 49 C.F.R. § 391.41.
My truck driver failed to disclose that he had previously been diagnosed and treated for obstructive sleep apnea. When asked about it later, he thought that since he regularly used his sleep apnea wasn’t a problem any more. Fair enough, maybe. At the time of his examination, the portion of the Medical Examination Report that the driver filled out didn’t ask about sleep apnea specifically, but rather instructed the driver to check yes or no for “Sleep disorders, pauses in breathing while asleep, daytime sleepiness, loud snoring.” While using his CPAP, my driver wasn’t experiencing any of those symptoms. Or maybe it’s an example of a purposely withholding information from his medical examiner so that he can get back out on the roadway to earn a living.
But he was also taking a number of medications that should have given the medical examiner pause about re-certifying the driver. In addition to taking blood pressure medication, my truck driver had active prescriptions for anti-seizure/nerve pain medication; Alzheimer’s/memory loss medication; and medication for his COPD diagnosis. While none of these medications standing alone would have prevented my client from being re-certified, taken in the aggregate and alongside his other medical concerns, it should have given the medical examiner greater pause.
In same ways this was a problem with a medical examiner who either wasn’t properly trained on the criteria affecting re-certification periods. And in other ways it reflects problems in which the system relies on drivers (who are trying to get back out on the roads and earn a living) to relay health information that could negatively affect their ability to work.
But those examples pale in comparison to what has recently been uncovered in Georgia, where Dr. Anthony Lefteris issued bogus medical certificates to more than 6,600 truck drivers while operating out of an Atlanta-area Petro truck stop. He issued the re-certifications without submitting the drivers to the necessary DOT medical examinations. Lefteris was on the FMCSA’s list of certified medical examiners, but has since been removed. Each of the 6,600 drivers, who are sprawled over 48 states, are being compelled to undergo re-certification.
The FMCSA continues to implement new regulations to make the roadways safer and to ensure that driver’s are medically qualified to be operating commercial motor vehicles, but there is still a ways to go. As identified in yesterday’s post, there are no measures in place to require, or even permit, motor carriers to obtain a driver’s Medical Examination Report or other corroborate that he/she is legitimately medically qualified to operate a vehicle. Which is particularly troublesome when there are medical professionals handing out medical certificates like they’re counterfeit hall passes in a middle school.
Photo by British Columbia Emergency Photography.


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Today, in the published criminal case of United States v. Qazah, the Fourth Circuit affirmed the Defendants’ convictions, but vacated their sentences and remanded the case back for resentencing. The Defendants, Kamal Qazah, better known by his street name Keemo, and his uncle Nasser Alquza, were convicted for a conspiracy to receive and transport stolen cigarettes in interstate commerce as well as money laundering. Two issues were before the Fourth Circuit. The first issue was whether undercover law enforcement agents had a proper warrant. The second issue was in the calculation of the Defendants’ sentences using the Sentencing Guidelines. The Fourth Circuit affirmed the district court’s decision to dismiss the Defendants’ motion to suppress evidence but vacated the Defendants’ sentences and remanded for resentencing.
In 2010 and 2011, Qazah, in conspiracy with others, purchased thousands of cases of purportedly stolen Marlboro brand cigarettes manufactured by Phillip Morris. Qazah didn’t know that he was actually buying Marlboros from undercover law enforcement officers. Qazah made big money by selling the purportedly stolen cigarettes, on which state taxes had not been paid, to convenience stores in South Carolina. Qazah even brought his uncle, Nasser Alquza, into the business.
In November 2011, the undercover officers arranged the final controlled purchase, agreeing to deliver 1,377 cases of cigarettes to a warehouse owned by Alquza for $1.8 million. Instead of completing that transaction, however, law enforcement officers arrested Qazah and Alquza at Qazah’s house, where they also executed a search warrant and recovered, among other things, $1.3 million in cash and a notebook in which Qazah had recorded his cigarette sales to various retailers. That same day, officers executed another search warrant at Alquza’s house, recovering relevant financial records and false identification documents.
The problem arose with the warrant used by the undercover agents. The warrant used to search Alquza’s house had an attachment, Attachment B, which was prepared in connection with Qazah’s warrant. Thus, Attachment B that the undercover agents intended to include for Alquza’s house should have specified documents relating to “Nasser ALQUZA” in paragraph one, rather than those relating to “Kamal QAZAH.” The warrant had previously been emailed to the magistrate judge, with Attachment B in its proper place. When it was presented to the judge for her signature, Attachment B was with the wrong warrant.
Alquza had filed a motion to suppress the evidence seized during the search on the grounds that the warrant was incorrect. Following a hearing, the district court denied the motion to suppress, finding that the incorrect attachment was a clerical error. The district court concluded that the evidence recovered in the search was admissible under the good-faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897 (1984).
With the motion to suppress denied, the presentencing report for Qazah recommended that he be held responsible for 8,112.66 cases of cigarettes, with a retail value of $24,337,980, and Alquza for 2,909.66 cases, with a retail value of $8,728,980. Based on those loss amounts, the reports applied a 22-level enhancement to Qazah’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(L) (2012), and a 20-level enhancement to Alquza’s offense level, pursuant to U.S.S.G. § 2B1.1(b)(1)(K) (2012). In coming up with the dollar amounts of the “stolen” cigarettes, the district court valued the retail price of the cigarettes at $3,000 per case, as distinct from the wholesale value of $2,126 per case.
Alquza first contends that the district court erred in denying his motion to suppress the evidence seized from his house. The district court found that the error here was a technical one, and did not influence the warrant’s issuance, nor adversely affect its execution. Alquza contended that the warrant did not satisfy the Fourth Amendment’s particularity requirement.
The Fourth Circuit found that the good-faith exception, as explained by the district court, applied to the deficient warrant. In this case, the magistrate judge had seen the correct warrant on her email, even though she signed the one with Attachment B. The Leon Court held that, the exclusionary rule should not be applied to bar the government from introducing evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant was ultimately found to be deficient.
Thus, the Fourth Circuit concluded that the magistrate did not wholly abandon her judicial role in issuing the warrant. See Leon, 468 U.S. at 923. Nor did she “merely rubber stamp the warrant.” United States v. Gary, 528 F.3d 324, 329 (4th Cir. 2008). To the contrary, the magistrate judge examined the email version of the proposed warrant, which was the correct version, before deciding to sign it, although she unwittingly signed an incorrect version. Alquza does not challenge the correct version that was considered by the judge.
Most importantly, the Fourth Circuit found that the suppression of evidence recovered in this case would have almost no deterrent effect because the officers were acting in good faith. The Supreme Court has repeatedly explained that the exclusionary rule’s “sole purpose . . . is to deter future Fourth Amendment violations” and that exclusion is appropriate only when “the deterrence benefits of suppression . . . outweigh its heavy costs.” Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011). Thus, the decision of the district court on the warrant was affirmed.
The Defendants appeal the decision to use the retail value of the cigarettes rather than their wholesale value in evaluating their sentencing range under the Sentencing Guidelines. In rejecting the wholesale value of the cigarettes as the appropriate measure of loss, the district court relied on U.S.S.G. § 2B1.1(b)(1) and Application Note 3(A) to conclude that it should apply the “greatest intended loss” as between the wholesale and retail value of the cigarettes, regardless of whether that value in fact represented a loss.
In the version of the Sentencing Guidelines used in sentencing the Defendants, the Application Notes explain that the “intended loss” is determined by “the pecuniary harm that was intended to result from the offense.” Thus, as the Fourth Circuit has observed before, “the general rule is that loss is determined by measuring the harm to the victim” of the offense committed. United States v. Ruhe, 191 F.3d 376, 391 (4th Cir. 1999).
The victim, of course, is determined by the nature of the offense and the impact of its violation. In this case, the Defendants were told–and they believed–that they were receiving cigarettes stolen from Philip Morris trucks in either Virginia or Tennessee.
Thus, for the purpose of determining the loss that was intended to result from the offense, the court must identify and focus on the intended victim or victims of the offense of receiving and selling stolen property. Had the cigarettes actually been stolen, the most obvious victim would have been the property’s true owner, which the Defendants believed to be Philip Morris, the cigarettes’ manufacturer. This makes Philip Morris the most obvious intended victim of the conspiracy offense. Philip Morris’ loss would have been the amount of money that it would have otherwise received for selling the purportedly stolen cigarettes, a figure that the record indicates was an average of $2,126 per case.
Still, the Fourth Circuit held that the question about the identity of the intended victim and its losses are a question of fact for the district court to resolve. However, the district court in this case appeared to conclude, without making any such inquiries, that the cigarettes’ retail market value was the appropriate measure of loss simply because the Guidelines required it to apply the “greater intended loss,” and the cigarettes’ retail value was greater than their wholesale value. Thus, the sentence is vacated and remanded back to the district court for a determination of the victim and the proper amount that is lost or taken away from the victim.
The Fourth Circuit affirmed the district court’s decision to deny the motion to suppress but vacated the Defendants’ sentences and remanded back for resentencing while allowing the district court to expand its inquiry into the intended victim or victims of the relevant offenses and to recalculate the Defendants’ sentencing ranges based on its findings and conclusions about the amount of loss that they intended to result from their commission of the offense.

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The UK High Court recently referred some key questions to the CJEU in a trade mark infringement action brought by Sky Plc, the answers to which could have a significant impact on the future filing strategies of brand owners in the EU and UK.Mr Justice Arnold, acknowledging the 'general public importance' of the issues raised in this case, referred the following questions to the European Court for guidance, firstly on the issue of the clarity of broad terms in goods/services contained in a trade mark registration.
1) Can an EU trade mark or national trade mark in a Member State be declared wholly or partly invalid on the ground that some or all or the terms in the goods/services lack sufficient clarity and precision to enable the authorities and third parties to determine the extent of protection conferred on the mark?
2) If the answer to 1) is yes, is a term such as 'computer software' lacking in sufficient clarity and precision to enable the authorities and third parties to determine the extent of protection in place?
3) Can it constitute bad faith to apply to register a trade mark without any intention to use it in relation to the specified goods/services?
4) If the answer to 3) is yes, is it possible to conclude the applicant made the application partly in good faith and partly in bad faith if there was an intention to use the trade mark for some goods/services but no intention to use for others?
5) Is Section 32(3) of the UK Trade Marks Act 1994 (claiming a bona fide intention to use at the time of filing), compatible with the EU Directive and its predecessors?
Notwithstanding Brexit, the ramifications the CJEU's responses to these questions may have on the coverage of goods/services for both existing and future trade mark rights could be considerable.
Sky Plc and its related companies own numerous EU and UK trade mark registrations for SKY either as a plain word or in a slightly stylised script. Many of these registrations cover long lists of goods and services running to thousands of words, including broad terms such as 'computer software' in Class 9.
Sky relied on several of these broad EU and UK registrations in claiming SkyKick (the Defendant) had infringed its trade marks through the use of the SkyKick name in respect of software for the migration of email accounts/settings and related cloud computing services. SkyKick's products and services were offered through Microsoft Partners, specialist IT providers who offer business customers IT services, acting as resellers for Microsoft products.
In addition to infringement under Article 9(2)(b) of the EUTM Regulation on the grounds that there is a likelihood of confusion between the marks and goods/services, Sky also claimed infringement under 9(2)c) in that SkyKick's use was without due cause and took unfair advantage of, or was detrimental to Sky's reputation. Further, Sky alleged that SkyKick's use amounted to passing-off.
2) Sky did not intend to use its trade marks in respect of all goods/services in the long specifications and therefore, the registrations are entirely or at least partly invalid as the trade marks were filed in bad faith.
Mr Arnold undertook a thorough analysis of the EU and UK case law on the issues of firstly, the use of broad terms of goods both prior to and after the key IP TRANSLATOR decision, and whether these are clear and precise ('the first point') and secondly, whether a lack of intention to use can amount to bad faith ('the second point'). Both of these points led to an assessment as to whether any invalidity, if found, would nullify the entire registration or just the parts of it where there was no clarity/no intention to use.
As to the first point, Mr Arnold considered that this raised issues as to whether this ground of invalidity can be asserted against a registered mark at all- The Regulation contains no express requirement for specifications of goods/services to be clear and precise and the case law on the issue is not conclusive.
SkyKick's position was that terms such as 'computer software' and 'computer software supplied from the Internet' lacked clarity. SkyKick relied on Laddie J's obiter comments in Mercury Communications that 'there is a strong argument that a registration of a mark simply for 'computer software' will normally be too wide. In my view, it is thoroughly undesirable that a trader who is interested in one limited area of software should, by registration, obtain a statutory monopoly of indefinite duration covering all types of software..' - Mr Arnold concurred with this reasoning but said that it did not necessarily follow that computer software lacked clarity and precision. As a result, Mr Arnold felt it was appropriate for refer the questions 1) and 2) above to the CJEU.
Regarding the second point, SkyKick accepted that Sky had an intention to use their marks on some of the goods/services but the marks should be invalid at least in respect of the goods/services where Sky had no such intent to use.
An EU Cancellation case from 2000, TRILLIUM, had ruled on this point and found that there was no bad faith as there is no 'intention to use' requirement on filing an EUTM. However, that ruling left the issue open to the possibility of bad faith being found. The situation is different in the UK, where a statement of intent to use from the applicant is required at the time of filing.
Mr Arnold quoted decisions that stated it is legitimate for a business to seek registration of a mark, not only for the goods/services they market at the time of filing, but also, considering their commercial logic for filing, to include other goods/services it may intend to market in future. There is also, again, nothing in the Regulation stating that the length of the list of goods/services can be bad faith.
However, Mr Arnold felt that references in the cases to considering the 'commercial logic' of the applicant at the time of filing, leaves the door open to the possibility that applying with no intention to use may be bad faith- Hence, a referral to the CJEU on this matter was necessary.
UK law has recognised that a 'blocking strategy' where the applicant has no intent to use, can be bad faith. For this reason, Mr Arnold referred Question 5 to the CJEU as to the compatibility of the relevant UK provision with the EU Directive.
Mr Arnold also considered the issue of whether, if bad faith is found for a lack of intent to use for only some goods/services, would the registration be wholly invalid or only partly invalid. Although both case law and the EUIPO Guidelines recognise that the existence of bad faith nullifies the entire mark, Mr Arnold felt that the situation was not clear cut and thus, a referral to the CJEU on this point was justified.
Mr Arnold concluded that, if Sky's marks were deemed valid, based on a comparison of the marks and the goods/services in issue, there would be a likelihood of confusion and thus, infringement under Article 9(2)(b). Sky's claims under Article 9(2)c) and passing-off were, however, dismissed.
Should the CJEU rule that broad terms such as 'computer software' lack clarity and precision, rendering a mark wholly or partly invalid, the impact on existing registrations will be far reaching. Equally, if the CJEU considers that a lack of intention to use for some goods/services may be considered as bad faith, invalidating either part or the whole of a registration, it would put a large number of registrations at risk of attack.
It would also effectively put a stop to the practice undertaken by larger corporations, of filing marks across multiple classes and refiling every five years to safeguard those mark from a non-use action.
However, having regard to the existing EU case law and Regulation, the more likely answers to these referred questions will be 'no'- Goods lacking clarity would not lead to invalid registrations and the EU law does not allow for a finding of bad faith due to lack of intention to use. Despite this, the UK rules on the issue of intent to use may be deemed incompatible with the EU Directive.
In this regard, it remains to be seen how Brexit would affect the eventual ruling with the likelihood of the EUIPO and Courts taking one side and the UK Office taking the other. For example, it is quite conceivable that post-Brexit converted UK marks deriving from EUTMs with broad lists of goods/services will be subject to attacks on their validity.
The outcome of this ruling will be watched closely by trade mark practitioners and holders alike.

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Gustav Klimt, “Portrait of Adele Bloch-Bauer I” (1907), at the Neue Galerie (NYC), from the famous case of the "Woman in Gold," resolved through arbitration.
By Marilyn Hayden, Dr. Sharon Hecker, and Center for Art Law.
On April 1, 2019, the Court of Arbitration for Art (CAfA) will open its doors to arbitrate and mediate art law disputes. The idea for CAfA started as a response to the fact that judges seldom have expertise in art law, a fairly nuanced field, and that most art disputes entailed opposing reports by the experts chosen by the parties, resulting in a “battle of experts.” The new court is set to address questions of authenticity, chain of title disputes, contract, copyright and more, using alternative dispute resolution modes (ADR). Questions remain as to the current blueprint for this court and understanding art historical methods and procedures. After all, why would art dealers and collectors turn to arbitration instead of litigation?
Simply said, litigation is the process of resolving a dispute in front of a court of law, where the judge is an impartial government employee. By contrast, arbitration is a contract-based mode of finding a solution outside of court, and it involves one or multiple arbitrators (a panel) chosen (read “hired”) by the parties. Arbitrators are usually selected based on their expertise in the field of the dispute, and their decision (or award), generally based on the regulations and customs of the field, will be binding upon the parties once a court validates the process. Mediation, another alternative to litigation, is non-binding, and is based on discussion and compromise facilitated by a mediator. Whereas litigation is often long, costly, and public, arbitration and mediation have the benefit of being rather quick, private, and less expensive – depending on the location and number of people involved in the dispute. However, cases heard in the judicial system are published and become part of the common law, whereas arbitral awards rarely create precedent.
Bill Charron, partner at Pryor Cashman, and the mastermind behind CAfA, first tossed out the idea of a court of arbitration for resolving art dispute at a talk he gave in 2016 at the Authentication in Art (“AiA”) Congress, a conference aimed at those in the field of determining art authentication which meets for three days every two years in the Netherlands.[i] Charron’s idea for a CAfA did not spring forth on the spur of the moment. He had some experience representing client(s) before the Court of Arbitration for Sport and saw possibilities for something similar for the art world. As a litigator who accidentally found himself deep in major art cases concerning Nazi art restitution as well as cases of art fakes and fraud, he realized that there are limits to a settlement in a court of law. While the court system will resolve art-related issues, the art market is not always willing to accept the judgment, particularly those issues debating authenticity. A number of court published decisions have gone so far as to clearly state that the market and not the courts is the best place to resolve authenticity issues.[ii] There is also an endless worry of how to solve disputes quickly and economically without sacrificing confidentiality, neutrality, expertise, and long-term relationships.
The working committee that set out to design a CAfA with authenticity issues in mind soon discovered there was interest in expanding to issues concerning the larger art market. To paraphrase F. Scott Fitzgerald: “The rich are different from you and me.” And the art market is different from stocks and bonds, real estate, or automobiles. The art market is not regulated, not transparent, and not necessarily rational. An art contract can be as little as one page and fail to include important details that open it to a future dispute. Add the complications surrounding ownership and issues of authenticity and it’s clear the art market has its share of unique problems and disputes that can be difficult to settle in a regular court of law in a manner that is acceptable to the open market. Other issues loom large, including privacy, conflicting ideas of who is an expert witness, long-drawn out discovery, and high expenses. One of Bill Charron’s Nazi restitution cases went on for more than seven years.[iii] Talks with dealers, auction houses, art experts and legal professionals led to the idea that the time was right for a Court of Arbitration for Art.
There are downsides to arbitration, the primary one is that the right to appeal is no longer an option. This can be hard to take when the decision leaves one participant convinced that the conclusions were illogical, unfair or lacked a true understanding of the issues.
Resolving the Battle of Experts?
With regards to the great question of expertise, expert witnesses and expert opinions, CAfA’s plan is to create a “pool of experts” and out of which the arbitral tribunal will select specific expert to serve on each individual case. This is to avoid the conflict of experts mandated by the parties, which too often results in opposing reports.
The Expert Pool is to be “composed of specialists qualified, among other things, to address art object authenticity issues and include a pool of international materials analysts, forensic scientists, and art historians/provenance researchers.”[ix] CAfA’s stated objective in doing so is to avoid a “battle of experts,” and shifts the burden of choosing the expert on the arbitral tribunal if the issue raised is “one of forensic science or provenance of the object.”[x] From the art historian’s perspective, this may be problematic as the practice of expertise does not separate forensic science from provenance or knowing the history of the artist.
Bill Charron makes clear that “the parties may also engage their own testifying experts on all other pertinent matters on a case-by-case basis, such as damages, custom and practice, and foreign law. There will, however, be more limited discovery than you would have in court.” To keep costs down, some proceedings may take place via telephone but the evidentiary hearings primarily will be in person.
Prior to the launch of CAfA, art experts, historians, and scholars have been wondering whether the initiative takes into account the realities of art history and art historical expertise. To begin with, what will be the criteria for choosing the experts and the technical process advisors? Transparency of method and open criteria for selection seem crucial for fair handling of art-related cases.
Art historians know that the person who writes the catalogue raisonné, or has been appointed by a foundation to conduct expertise, or is the recognized ‘market expert’, may not be the best or the only expert. Sometimes such a ‘designated expert’ is neither impartial nor independent. He or she could be a family member of the artist or have an interest in market issues.
Art historians also know that expertise is not based on a single person’s viewpoint. On the contrary, art history is grounded in open debate and discussions and requires a public consensus among experts to gain credibility. Just look at the debate that is raging on the subject of the Salvator Mundi that was auctioned by Christie’s in 2017 and which has been attributed (by some) to the hand of Leonardo Da Vinci, or more recently, the controversial sale of Judith and Holofernes, attributed to Caravaggio. The attempts by a court to select one expert may actually result in ignoring differing viewpoints among experts and putting aside the diverse evidence they bring to bear. Take, for example, the case of Modigliani, where there are numerous experts and catalogue raisonnés, differing opinions, ongoing technical studies, so that no single expert today is accepted as the ultimate authority.
Additionally, many experts do not wish to become involved in legal or market questions for fear of repercussions and lawsuits. One may wonder how CAfA plans to protect its experts if they agree to express a viewpoint that is not that of the majority. One of the reasons that art historians are often reluctant to offer expertise is the fact that they are aware that the field is filled with grey areas. Art historians are aware of the fluidity of their field; whereas the market and the law demand a definitive, binary yes-or-no choice. In reality, information discovered at a later date might lead to a different conclusion and a changed attribution.
Turning now to questions of uniform assessment procedures and documentation, how will the court know or be able to show that adequate steps have been taken in regard to the assessment of an artwork? Although the AiA/NAI guidelines state that “Art authenticity is typically understood to be evaluated according to standards of connoisseurship, provenance, and forensic science,”[xii] there is currently no outline of a systematic procedure for experts to approach the assessment of an artwork’s authenticity. Further, in cases of disputed authenticity, on the basis of what criteria and competency will the court decide about the reliability and validity of an art expert’s research?
The goal of the Hague court is to work for the art market to resolve legal questions. To this end,CAfA could benefit from a standardized set of steps. A useful addition to the current blueprint could be for judges not to strive to determine authenticity (which may not even be possible in many cases), but rather to ascertain whether the full due diligence has been conducted on the art object according to a uniform standard procedure.[xiii] The role of the court, whether judges or arbitrators, should not be to say who is right among experts, but rather to make sure that a proper process of due diligence has been followed.
In order to be credible and objective, experts and expertise cannot work directly for the art market. It is important that CAfA remain independent from the art market, which suffers from a lack of transparency. The law and art history must work together to address uncertain attributions and reluctant experts.
The “Woman in Gold” case is a perfect example of the length and complexity of Nazi-era looted art litigation. CAfA provides a potential venue for resolving such cases, taking into account the emotional attachment of the parties to a piece of art, the specificities of restitution laws, and the international aspect of the majority of these cases.
Additionally, CAfA is a promising solution to legal issues involving financially valuable artworks. The team of attorneys behind the CAfA initiative show high hopes that CAfA is an option that might well suit the art market. Over one hundred and forty applications worldwide have been received by potential arbitrators. The default rules are viewed as part of its future success. “One looks like it might be ready really, really soon,” says Bill Charron. As CAfA has yet to hear their first case, only then will we be able to answer those concerns and see how the tribunal can address art-related disputes, in what will hopefully be a fair and efficient manner. How quickly will the art world be able to evaluate the practical benefits of the court remains to be seen.
[ii] See e.g., Thome v. The Alexander and Laura Calder Foundation, 70 A.D.2d 88, 890 N.Y.S.2d 16 (1st Dep’t 2009).
[iii] Baklar v. Vavra, No. 11-4042-cv (2d Cir. 2012). See summary order affirming the New York Southern District Court’s ruling that “Seated Woman With Bent Left Leg” (1917) by Egon Schiele should remain with its current owner, David Bakalar.
[iv] AiA/NAI Court of Arbitration for Art Adjunct Arbitration Rules, in force as of 30 April 2018, Art. 21(7). Available here.
[v] Netherlands Arbitration Institute Arbitration Rules, in force as of 1 January 2015, Art. 51. Available here.
[vi] AiA/NAI Adjunct Arbitration Rules, Id., Point 15.
[vii] Id., explanatory note no. 2.1.
[ix] Id., explanatory note no. 2.2.
[xi] Id., explanatory note no. 8.1.
[xii] Id., explanatory note 2.2.
[xiv] Maria V. Altmann et al. v. Republic of Austria (2006) (Nödl, Rechberger, Rummel, Arb.). Arbitral award here.
[xv] Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections dated 4th December 1998, Federal Law Gazette 1 No. 18111998.
[xvi] Republic of Austria v. Altmann, 541 U.S. 677 (2004).
[xvii] Felicia R. Lee, “Arbitration Set for Case of Looted Art”, The New York Times (May 19, 2005). Available here.
[xviii] For more details: Caroline Renold, Alessandro Chechi, Anne Laure Bandle, Marc-André Renold, “Case 6 Klimt Paintings – Maria Altmann and Austria,” Platform ArThemis, Art-Law Centre, University of Geneva. Available here.
AiA/NAI Court Of Arbitration For Art Adjunct Arbitration Rules, in force as of 30 April 2018. Available Here.
Netherlands Arbitration Institute Arbitration Rules, in force as of 1 January 2015. Available here.
Marilyn Hayden’s professional career began as a magazine journalist (LOOK, Saturday Review, Long Island Life) transitioned into museum administrator (The Newark Museum, Jane Voorhees Zimmerli Art Museum at Rutgers, the State University of New Jersey) and evolved into her current position as a Fine Arts Appraiser (NYU Appraisers Program, Hayden Fine Art Appraisals). Whether she was writing about economics, politics, and social issues, or designing a docent program, or directing a membership and museum services department or appraising a collection of WPA art prints, there was and is always a common thread connecting all three parts of her career: the gathering of facts, analyzing the implications and laying all of it out as a compelling story. Currently Ms Hayden is a member of the American Alliance of Museums (AAM), Arttable, and the Appraisers Association of America (AAA), among others.
Dr. Sharon Hecker (B.A Yale University, Ph.D. U.C. Berkeley) is an art historian, curator and author. An international expert on modern and contemporary Italian art and the artist Medardo Rosso, she has authored over 30 publications, including A Moment’s Monument: Medardo Rosso and the International Origins of Modern Sculpture, winner of the Millard Meiss Publication Fund Prize. Dr. Hecker has curated exhibitions at the Harvard University Art Museums, Pulitzer Arts Foundation, Nasher Sculpture Center, St. Louis Art Museum, and Galerie Thaddaeus Ropac, London. Her work has received awards from the Getty, Mellon and Fulbright Foundations. Dr. Hecker writes about interactions between art historical scholarship, the market, and the law as related to questions of authenticity, attribution, expertise, and due diligence. She is a member of the Catalog Raisonné Scholars Association (CRSA), International Foundation for Art Research (IFAR) and the International Council of Museums (ICOM).

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OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Beatrice M. Rosato, Casher, Connecticut, pro se.
Janene M. Marasciullo, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, for respondent. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Kathryn A. Bleecker, Attorney. Of counsel was Earl A. Sanders, Office of the General Counsel, Office of Personnel Management, Washington, DC.
John R. Fornaciari, Ross & Hardies, Washington, DC, filed a brief on behalf of Mario S. Rosato.
Before NEWMAN, PLAGER, and CLEVENGER, Circuit Judges.
Beatrice M. Rosato petitions for review of the decision of the Merit Systems Protection Board ("Board"), No. BN0831960205-I-1, 75 M.S.P.R. 317, 1997 WL 233547 (1997), affirming the reconsideration decision of the Office of Personnel Management ("OPM") denying her any share of the current annuity being paid to her former husband. We affirm.
(A) any court decree of divorce, annulment, or legal separation, or the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.
5 U.S.C. § 8345(j)(1) (1994).
It is well-settled that section 8345(j)(1) "authorizes [OPM] to comply with an appropriate court decree of divorce or property settlement of an employee who is entitled to payments pursuant to the Civil Service Retirement System." Donlan v. Office of Personnel Management, 907 F.2d 1132, 1133 (Fed.Cir.1990). To implement this statute, OPM has promulgated regulations that define when an order of divorce or property settlement is a "court order acceptable for processing." See 5 C.F.R. §§ 838.101(b)(1); 838.103; 838.301-838.306 (1997). The pertinent regulations specify that, to qualify for processing by OPM, the court order must identify the retirement system under which the annuity exists and expressly state the portion to which the former spouse is entitled under the court order. See 5 C.F.R. § 838.303; see also 5 C.F.R. § 838.305 (portion must be stated as a fixed amount, percentage, or fraction, or formula calculable solely from face of court order). In the event OPM receives an application from a former spouse for benefits pursuant to a divorce decree, and the application fails to comply with the regulations defining an order acceptable for processing, OPM notifies the applicant of the specific reasons for disapproving the application. See 5 C.F.R. § 838.424 (1997). The applicant then has an opportunity to cure any error in the application and to reapply for benefits.
In executing court orders under this part, OPM must honor the clear instructions of the court. Instructions must be specific and unambiguous. OPM will not supply missing provisions, interpret ambiguous language, or clarify the court's intent by researching individual State laws. In carrying out the court's instructions, OPM performs purely ministerial actions in accordance with these regulations. Disagreement between the parties concerning the validity or the provisions of any court order must be resolved by the court.
5 C.F.R. § 838.101(a)(2) (emphasis supplied).
Federal law thus provides the method whereby divorcing spouses may divide their entitlements to federal employee benefits. The statute and rules are clear: OPM will not look behind a state court divorce decree or property settlement order to ascertain the intent of the parties. So long as the decree or order complies with the specificity requirements of the regulations, which implement the statutory requirement that the decree or order "expressly" direct payment to another than the employee, OPM will follow its prescriptions. An order lacking the requisite specificity will be rejected by OPM, with an opportunity for the applicant to cure any indicated error.
The Rosato marriage was dissolved on July 11, 1988, by judgment of the Superior Court, Judicial District of Waterbury, Connecticut, entered by Judge Thelma Santos. With regard to Mr. Rosato's federal employee benefits, the judgment states: "And that the wife is to retain any benefits in the husbands pension plan which he currently has, as his spouse."
Mr. Rosato retired from Federal service on January 2, 1992. Thereafter, Mrs. Rosato requested that OPM provide her with a portion of her husband's lifetime annuity. OPM denied Mrs. Rosato's request on the ground that the divorce decree, inter alia, did not satisfy the specificity requirements to make it acceptable for processing. Mrs. Rosato's counsel filed a Motion for Clarification in the Connecticut Superior Court on December 21, 1994. The motion requested that the court "clarify its decision and set forth the exact percentage interest of the plaintiff's [Mr. Rosato's] pension which is due to the defendant [Mrs. Rosato]." In response, the Superior Court held a hearing on March 25, 1995. At the hearing, Judge Santos identified the property interest at stake in the original divorce decree as Mr. Rosato's lifetime annuity, by reference to the fact that the benefits to Mrs. Rosato would not begin to flow until Mr. Rosato "retired and the benefits began to run." Rosato v. Rosato, No. FA-86-0076997S (Conn.Sup.Ct. Mar. 29, 1995). This language does not refer to a surviving spouse annuity, another form of benefit that the Rosatos could have apportioned in their divorce proceedings. According to Judge Santos, Mrs. Rosato was entitled to a share of Mr. Rosato's lifetime annuity to make up for the short five-year time during which Mr. Rosato was obligated to pay $175 per week in alimony. Accordingly, the Superior Court clarified its original divorce judgment: "it was the Court's intention to award the defendant fifty-five percent of that pension." Id. The words "that pension" unmistakably referred to Mr. Rosato's lifetime annuity.
On April 17, 1995, Mr. Rosato appealed from Judge Santos's order clarifying the original divorce judgment. Mrs. Rosato moved the Superior Court for an award against Mr. Rosato for attorney fees and costs to defend the appeal lodged by Mr. Rosato. The Superior Court granted Mrs. Rosato's motion, noting that Mr. Rosato had failed to disclose in his sworn financial affidavit that he had won $310,000 on September 16, 1994, at Trump Plaza Hotel and Casino, entitling him to equal installments of $15,525 per year for 20 years. Furthermore, Mr. Rosato had failed to disclose the value of his IRA until he was pressed during testimony. See Rosato, No. FA-86-0076997S (Conn. Sup.Ct. June 21, 1995).
Mr. Rosato's appeal was submitted for decision on the briefs on December 14, 1995. See Rosato v. Rosato, 40 Conn.App. 533, 671 A.2d 838 (Conn.App.1996). Under Connecticut law, the Superior Court has jurisdiction to clarify its previous decrees, but does not have jurisdiction to modify its previous decrees. Mr. Rosato argued that the March 29, 1995, order constituted an untimely property assignment different from that originally awarded in the July 11, 1988, divorce judgment.
We must pause for a moment in the narrative to explain how Mr. Rosato could make such an argument to the Connecticut appellate court, given that Judge Santos had gone out of her way to emphasize that the original decree dealt only with Mr. Rosato's lifetime annuity, and that her clarification order also dealt solely with that property interest. The explanation lies in the editing job someone did on the original divorce judgment. As we noted above, the original divorce judgment specified that "the wife is to retain any benefits in the husband's pension plan which he currently has, as his spouse" (emphasis supplied). Before the Connecticut appellate court, someone edited the original decree to read "the wife is to retain any benefits in the husband's pension plan which [she] currently has, as his spouse" (emphasis supplied). The word "she" is recited in the appellate court opinion with brackets around it, to signify that the word had been changed. In briefs to this court, both Mr. Rosato and the United States contend that the Connecticut appellate court itself did the editing job on the original divorce judgment. We have no way to test that contention, but-as will become evident-the change from "he" to "she" is a cruel mistake that, unless corrected, will deprive Mrs. Rosato of her 55 percent share of Mr. Rosato's current lifetime annuity.
If the original decree had indeed read "she"--which it most clearly did not--then the interest at stake in the original decree would be a spousal survivorship interest to follow on Mr. Rosato's death. This is so because that is the only interest that Mrs. Rosato currently had, vis-a-vis Mr. Rosato, at the time of the divorce. She had no claim to Mr. Rosato's lifetime annuity, payable upon his retirement, because he had made the payments to fund that annuity. By specifying in the original decree the rights that "he" currently had, the parties identified Mr. Rosato's lifetime annuity, being the rights that he then currently had as a result of his contributions to the retirement fund.
Because someone convinced the Connecticut appellate court that the original decree only awarded benefits that "she" currently had, Mrs. Rosato was destined to lose in front of that court, because the clarification order referred to rights that "he" currently had, namely his lifetime annuity, whereas the original judgment, as erroneously understood by the Connecticut appellate court, conveyed a survivorship interest to Mrs. Rosato. In the mistaken scenario, the Connecticut appellate court's decision that the clarification was instead an assignment of a new property right--an interest in Mr. Rosato's lifetime annuity--seems correct. See Rosato, 671 A.2d at 840. The rub is that someone fooled that court into thinking that the original decree dealt only with the rights that Mrs. Rosato had as of the divorce date. See id. ("The practical effect of the new order in this case was to alter the original property assignment interest from a survivorship interest to a present interest of 55 percent....").
Because of the editing job done on the original decree, the appellate court thus ruled that the Superior Court lacked jurisdiction to enter its order awarding 55 percent of Mr. Rosato's lifetime annuity to Mrs. Rosato. See id. Mrs. Rosato did not appeal from that decision.
Mrs. Rosato thereafter contacted OPM, asking about her entitlement to a former spouse survivor's annuity, the interest that the Connecticut appellate court mistakenly assigned to her. OPM informed Mrs. Rosato that back in 1991 Mr. Rosato had indicated his intention to perfect a former spouse survivor's annuity for Mrs. Rosato, but that shortly after his retirement, he had changed his election to provide a survivor's annuity of "0%." Consequently, OPM informed Mrs. Rosato on March 13, 1996, that Mr. Rosato had deprived her of any claim to a survivor's annuity. Furthermore, as OPM correctly read the original July 11, 1988, divorce judgment, the divorce court did not award Mrs. Rosato a survivor's annuity.
No doubt thoroughly confused by OPM's response--recall that the Connecticut appellate court had recently told Mrs. Rosato that her only interest in the divorce decree was a survivor's annuity--Mrs. Rosato petitioned OPM for reconsideration. On June 24, 1996, OPM denied Mrs. Rosato's request for reconsideration. OPM repeated its view that the original divorce decree did not award Mrs. Rosato a survivor's annuity. As for any claim Mrs. Rosato might have to Mr. Rosato's current lifetime annuity, OPM's reconsideration decision stated that a "review of your divorce decree and subsequent court orders does not indicate that the court(s) have awarded you a portion of Mr. Rosato's annuity."
OPM's reconsideration decision is, politely stated, puzzling. It opines that a review of the original divorce decree "did not indicate that you were awarded a former spouse survivor['s] annuity" and also that the same kind of review "[did] not indicate that the court(s) have awarded you a portion of Mr. Rosato's [lifetime] annuity." OPM's view of the situation is untenable, given the clear intent of the Connecticut Superior Court to provide Mrs. Rosato with a share of Mr. Rosato's current lifetime annuity. Unfortunately for Mrs. Rosato, OPM can overlook its incorrect interpretation of the divorce decree, because of its regulation that requires disputes about such decrees to be sorted out in the state courts.
Mrs. Rosato timely appealed the OPM reconsideration decision to the Board. See Rosato v. Office of Personnel Management, 75 M.S.P.R. 317, 1997 WL 233547 (1996). In her appeal, she only challenged OPM's denial of her right to share in Mr. Rosato's lifetime annuity. The decision of the Administrative Judge, which became the final decision of the Board when it denied review of the Administrative Judge's decision, upheld OPM's reconsideration decision. Although the Administrative Judge correctly quoted the words of the original decree ("benefits in the husband's pension plan which he currently has ..."), the editing job done on appeal in Connecticut was unnoticed. See id., slip op. at 1378. Instead, the Administrative Judge woodenly noted that since the appellate court nullified the attempt to clarify the original divorce judgment, all that is left is the original decree, which the Connecticut appellate court--because of its misreading of the original divorce judgment--interpreted to convey only rights to a survivor's annuity. Therefore, Mrs. Rosato could lay no claim to a share of Mr. Rosato's current lifetime annuity. See id. at 3.
Mrs. Rosato timely appealed the Board's final decision to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (Supp.1998). We may overturn the Board's decision only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or if obtained without required legal process, or if unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (1994).
From the lengthy narration of the facts of this case, it is apparent that something arbitrary or capricious has indeed occurred in this case. That something is the switching of the word "he" to the word "she" during the Connecticut appellate process. By simply having added the "s" to "he," Mrs. Rosato's claim to a share of Mr. Rosato's current lifetime annuity must fail at this time. This is so because the current state of the Connecticut court decisions is that Mrs. Rosato's original divorce decree only awarded her a claim to a survivor's annuity. Under the regulations that govern this case, OPM is obligated to follow the dictates of the state appellate court decision (even when, as here, it knows that to do so contravenes the intent of the state court). In short, OPM has strapped itself to wooden, even unthinking, adherence to the state court decision. Under the terms of the Connecticut appellate court decision, Mrs. Rosato cannot prevail because she does not contest her ineligibility for a survivor's annuity. She can only prevail if the Connecticut appellate court is willing to modify its judgment to correct the "edit job" error that someone made on the original divorce judgment's language.
The damage done to Mrs. Rosato by the error made during the appellate process in Connecticut cannot be overstated. Not only has Mrs. Rosato lost a source of needed income, she apparently loses claim to medical insurance benefits unless the error made in Connecticut, which the United States says was "deliberately" made by the Connecticut appeals court itself, is corrected. We find it surprising that the Connecticut appellate court would deliberately alter the language of the original divorce decree to deprive the Superior Court of jurisdiction to make a housekeeping clarification of a judgment concerning division of Mr. Rosato's current lifetime annuity. Such an alteration of language is especially surprising in light of Judge Santos's desire to provide Mrs. Rosato with an income stream during Mr. Rosato's lifetime, to compensate for the short alimony period in the divorce judgment.
In any event, there seem to be avenues Mrs. Rosato may pursue to seek justice in this case. Chapter 71 of the Rules of Appellate Procedure, as reported in West's Connecticut Rules of Court, Rules of Practice, Rules of Appellate Procedure, specifies in section 71-5 that a motion for reargument or reconsideration will not be entertained unless filed within ten days of the decision being challenged. See Practice Book (1998 Rev.) § 71-5. Section 60-1 ("Rules to Be Liberally Interpreted") states that "[t]he design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." Practice Book (1998 Rev.) 60-1. Section 60-3 ("Suspension of the Rules") provides that "[i]n the interest of expediting decision, or for other good cause shown, the court ... may suspend the requirements ... of any of these rules ... on motion of a party or on its own motion...." Practice Book (1998 Rev. ) § 60-3. We have no means by which to communicate with the Connecticut appellate court to bring to its attention the injustice that has befallen Mrs. Rosato. Therefore, we cannot urge the court to suspend the time limit of section 71-5 in order to get to the bottom of who made the editing error ("he" switched to "she"), and if the error was not made deliberately by the court itself, to deal appropriately with the person or persons who caused the court to misread the original divorce decree. Cf. Veterans Mem'l. Med. Ctr. v. Townsend, 49 Conn.App. 198, 201, 712 A.2d 993 (1998) (relying on section 60-1 ("Rules to be Interpreted Liberally") to allow a writ of error where following other rules would result in "a serious deprivation of a fundamental right of due process."); Bushy v. Forster, 236 Conn. 451, 452-53, 673 A.2d 109 (1996) (invoking authority under § 4187 [now § 60-3] to correct the dismissal of an appeal because of an "unexplained" technical error in the judgment papers); State v. Phu Dinh Le, 17 Conn.App. 339, 342-43, 552 A.2d 448 (1989) ("Because we find that the defendant's claim is one that involves a truly extraordinary situation, where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings, we will, to avoid a miscarriage of justice, invoke our discretionary authority [under § 4187, now § 60-3].").
Because of the regulations that OPM has imposed on itself in cases such as this, it has no duty to look behind a court order and no authority to refuse to accept an order that simply is wrong, on its face, as is the case here. Consequently, we lack the authority to engage the United States, through OPM, in the process of seeking correction by the Connecticut appellate court of the costly error in its decision.
Mrs. Rosato, armed with this opinion, is of course free immediately to file a reconsideration motion with the Connecticut appellate court, seeking relief from the ten-day filing rule, in the interests of justice and for good cause shown. If the Connecticut appellate court deliberately altered the original divorce decree, a reconsideration motion would afford the court with an opportunity to learn of the harm that the alteration has caused. If, on the other hand, the Connecticut court was led into the error by others, presumably the court would wish to afford relief to Mrs. Rosato and to address the consequences to those responsible for the court's having been misled.
For the reasons set forth above, Mrs. Rosato can lay no claim to any portion of Mr. Rosato's current lifetime annuity at this time. Should she prevail in seeking reconsideration by the Connecticut appellate court, she could again apply to OPM seeking the 55 percent share of Mr. Rosato's lifetime annuity that the Superior Court sought to award to her. The final decision of the Board is therefore affirmed.