Free Answer to Amended Complaint - District Court of Colorado - Colorado

Case 1:03-cv-02608-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02608-WDM-MJW LORNA FOOSHEE, individually, as personal representative of the estate of MICHAEL FOOSHEE, deceased, and as parent of DARLENE FOOSHEE, a minor; RICK FOOSHEE, and MARILYN FOOSHEE, Plaintiffs, v. UNITED STATES OF AMERICA, and MYLAN PHARMACEUTICALS, INC., Defendants.

DEFENDANT UNITED STATES' ANSWER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

Pursuant to Fed. R. Civ. P. 12(b)(1), Defendant, United States of America, by and through William J. Leone, United States Attorney for the District of Colorado and Kurt J. Bohn, Assistant U.S. Attorney, and herein answers Plaintiff's Amended Complaint and Jury Demand as follows: PARTIES JURISDICTION AND VENUE Paragraph 1: Defendant lacks sufficient knowledge and information upon which to frame a response as to Plaintiffs' marital, familial and residency status. Paragraph 2: Defendant lacks sufficient knowledge and information upon which to frame a response as to Plaintiffs' familial and residency status.

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Paragraph 3: Defendant lacks sufficient knowledge and information upon which to frame a response as to Plaintiffs' familial and residency status. Paragraph 4: Defendant denies the averments contained in this paragraph, except to admit that Community Health Centers, Inc., (hereinafter "Center") was deemed eligible for coverage under the Federal Tort Claims Act on June 23, 1996, pursuant to the Federally Supported Health Centers Assistance Act. Paragraph 5: Defendant admits that John E. Rising is a registered pharmacist acting within the scope of his employment at the time of the alleged incident and was an employee of the Center, which was deemed eligible for Federal Tort Claims Act coverage pursuant to the Federally Supported Health Centers Assistance Act. Paragraph 6: Defendant admits that Lynn Beaulieu, M.D., was acting within the scope of her employment at the time of the alleged incident, and was deemed a Public Health Service employees eligible for Federal Tort Claims Act coverage pursuant to the Federally Supported Health Centers Assistance Act. Paragraph 7: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 8: Defendant admits the averments contained in this paragraph. Paragraph 9: Defendant admits the averments in first four sentences of this paragraph. As to sentences five ands six of this paragraph, the Defendant admits only that on September 30, 2004, the Department of Health and Human Services received the 2

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administrative tort claim of Lorna Fooshee on behalf of the estate of Michael Fooshee and that the agency's statutory period for review has passed. The averments contained in the last two sentences of this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in these two last sentences, but insofar as a response is required, deny. Paragraph 10: This paragraph contains jurisdictional and venue allegations to which no response is required but insofar as a response is required, deny. GENERAL ALLEGATIONS Paragraph 11: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 1 through 10. Paragraph 12: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 13: Defendant admits the averments contained in this paragraph. Paragraph 14: Defendant admits only that Dr. Beaulieu prescribed Dilantin 100mg. Paragraph 15: Defendant admits the averments contained in this paragraph. Paragraph 16: Defendant admits only that on September 25, 2001, Michael Fooshee's prescription was filled at the Center's pharmacy with Phenytoin 100 mg, extended release capsules, a generic form of Dilantin. Paragraph 17: The averments contained in this paragraph are directed to 3

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Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 18: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 19: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 20: Defendant admits only that Michael Fooshee presented to Memorial Hospital emergency room via ambulance in Colorado Springs, Colorado on October 19, 2001 after a seizure episode. Paragraph 21: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 22: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 23: Defendant admits only that Michael Fooshee died on October 22, 2001. Paragraph 24: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny.

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FIRST CLAIM FOR RELIEF NEGLIGENCE: PHARMACIST RISING Paragraph 25: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 1 through 24. Paragraph 26: Defendant denies the averments contained in this paragraph. Paragraph 27: Defendant denies the averments contained in this paragraph. Paragraph 28: Defendant denies the averments contained in this paragraph. Paragraph 29: Defendant denies the averments contained in this paragraph. SECOND CLAIM FOR RELIEF NEGLIGENCE: DR. BEAULIEU Paragraph 30: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 25 through 29. Paragraph 31: Defendant denies the averments contained in this paragraph. Paragraph 32: Defendant denies the averments contained in this paragraph. Paragraph 33: Defendant denies the averments contained in this paragraph. THIRD CLAIM FOR RELIEF VICARIOUS LIABILITY: COMMUNITY HEALTH SERVICES Paragraph 34: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 30 through 33.

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Paragraph 35: The Defendant admits only that John E. Rising, R. Ph. and Dr. Lynn Beaulieu were employees of the Center at the time of the events alleged in the complaint and that Mr. Rising and Dr. Beaulieu were acting within the scope of their employment at such time. Paragraph 36: Defendant denies the averments contained in this paragraph. Paragraph 37: Defendant denies the averments contained in this paragraph. Paragraph 38: Defendant denies the averments contained in this paragraph. FOURTH CLAIM FOR RELIEF NEGLIGENCE: COMMUNITY HEALTH SERVICES Paragraph 39: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 34 through 38. Paragraph 40: Defendant denies the averments contained in this paragraph. Paragraph 41: Defendant denies the averments contained in this paragraph. Paragraph 42: Defendant denies the averments contained in this paragraph. Paragraph 43: Defendant denies the averments contained in this paragraph. FIFTH CLAIM FOR RELIEF STRICT LIABILITY: MYLAN Paragraph 44: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 39 through 43. Paragraph 45: The averments contained in this paragraph are directed to 6

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Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 46: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 47: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 48: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 49: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. Paragraph 50: The averments contained in this paragraph are directed to Defendant MYLAN; this Defendant has insufficient information to form a belief as to the truth of the averments in this paragraph, but insofar as a response is required, deny. DAMAGES Paragraph 51: This paragraph contains a statement of incorporation by reference, which requires no response. To the extent a response is required, Defendant reiterates and incorporates its responses to the allegations contained in paragraphs 1 through 50. 7

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Paragraph 52: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 53: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 54: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 55: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. Paragraph 56: Defendant lacks sufficient knowledge and information upon which to frame a response to this paragraph, but insofar as a response is required, deny. This unnumbered paragraph contains Plaintiffs' prayer for judgment, interest, costs, and attorney fees and as such requires no response, but insofar as a response is required, deny. This unnumbered paragraph contains the Plaintiffs' demand for trial by jury; there is no trial by jury under the FTCA as to Defendant United States of America, therefore it is denied. AFFIRMATIVE DEFENSES 1. The complaint fails to state a claim upon which relief can be granted to the Plaintiffs against the Defendant, United States of America, under the Federal Tort Claims Act (Title 28, United States Code, §§ 1346(b), 2671-2680) as alleged in the complaint or otherwise, for the reason that if the Defendant were a private person, it would not be 8

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liable to the Plaintiffs. 2. Defendant United States of America and its agents, servants and employees deny committing any negligent or wrongful act or omission while acting within the scope of their employment, and deny proximately causing and/or contributing to the damages alleged. 3. The Plaintiffs are limited to recovery if any, of the amount claimed administratively in accordance with 28 U.S.C. §2675(b). 4. Plaintiffs' claims are subject to the provisions of the Colorado Tort Reform Act. In particular, Plaintiffs' damages are limited pursuant to the provisions of C.R.S. 13-21102.5, 13-21-111.5, 13-21-111.6, 13-21-111.7, and 13-21-111. 5. Upon information and belief, Plaintiffs' injuries and damages are the sole and proximate result of a pre-existing condition. 6. Upon information and belief, Plaintiffs' injuries and damages are the result of a subsequent intervening event. 7. Defendant is entitled to a set-off for all monies or benefits which Plaintiffs received from the United States. 8. Plaintiffs' claims are subject to and limited by the applicable provisions of Colorado's Health Care Availability Act, C.R.S. § 13-64-101, et seq. 9. Plaintiffs consented to the procedure which forms the basis for the allegations of the Complaint herein. Plaintiffs, therefore, are barred from recovering damages as a result therefore. 9

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10. If Plaintiffs were to be awarded any future damages, which Defendant United States of America denies they are entitled to, such damages must be reduced to present value. 11. Plaintiffs are not entitled to an award of pre-judgment interest or an award of attorney's fees. 28 U.S.C. §§ 2674 and 2678. 12. Plaintiffs are not entitled to any recovery against Defendant United States of America, to the extent that any such injuries were caused or contributed to by others who are not employees of the United States. WHEREFORE, for the foregoing reasons, Defendant United States of America prays that this Court will enter judgment in favor of Defendant United States of America and against Plaintiffs in all things, and dismiss the above-styled and numbered cause in its entirety with prejudice, awarding Defendant United States of America costs, if any, and for such other relief as this Court deems just and proper.

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Dated this 22d

day of December, 2005. Respectfully submitted, WILLIAM J. LEONE Acting United States Attorney

s/ Kurt J. Bohn KURT J. BOHN Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0407

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CERTIFICATE OF SERVICE I hereby certify that on 22 December 2005, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: [email protected], [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the nonparticipant's name: Agency Counsel: Gillian Patrick, Esq. U.S. Department of Health and Human Services Office of the General Counsel, Law Division 330 Independence Avenue, S.W. Cohen Building, Room 5362 Washington, D.C. 20201

s/ Kurt J. Bohn Kurt J. Bohn, AUSA Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100 Fax: 303-454-0407 [email protected]

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