Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, CHARLES ABBOTT, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, SANDRA CANNON-GRANT, AND JASON COLLIDGE Defendants.

DEFENDANT MARTEL'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, by her attorneys, JENNIFER M. PALMER and BILLY-GEORGE HERTZKE of the firm SENTER GOLDFARB & RICE, L.L.C., submits this Reply in Support of Motion for Summary Judgment. I. INTRODUCTION Plaintiff raises no genuine issues of material fact in his Amended Response brief ("Response") that prevent the Court from entering summary judgment in favor of Monique Martel. It is undisputed that Mr. Wallin failed to endorse an expert witness to provide testimony concerning the standard of care applicable to his medical malpractice claim against Ms. Martel.

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Similarly, Mr. Wallin has no expert to testify as to whether Ms. Martel fell below that standard of care. Expert testimony is necessary in order for Mr. Wallin to make a prima facia showing of professional negligence. Without the opinions of an expert in the medical field, Mr. Wallin cannot prevail. II. REPLY TO PLAINTIFF'S STATEMENT OF DISPUTED FACUTAL ISSUES The issues identified by Plaintiff illustrate why the testimony of a medical expert is needed in this case. Only a medical expert can provide testimony to establish whether Ms. Martel adequately examined Mr. Wallin before prescribing Antabuse (Pl. Response p. 3, ¶ 3) or whether Antabuse is medically prescribed for other purposes (Pl. Response p. 3, ¶ 4). These issues cannot be resolved in favor of Plaintiff without the opinions and testimony of an expert witness. With respect to Plaintiff last statement of disputed factual issues regarding his status as an indigent plaintiff, Ms. Martel points out that Plaintiff never formally made a request to the Court for an expert. Plaintiff cites only to an "Objection" made to the Court. Response at p. 6. It is unclear to what "Objection" Plaintiff refers. Plaintiff had more than enough time to request funds from the Court to retain an expert, as this matter was pending for nearly 2½ years before expert disclosures were due. Plaintiff failed to do so, and summary judgment should not be denied because Plaintiff failed to find an expert. III. REPLY ARGUMENT It is undisputed that Plaintiff does not have a medical expert to provide expert testimony concerning Ms. Martel's treatment of Plaintiff. Without an expert, Plaintiff cannot prevail on his

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medical malpractice claim against Ms. Martel because he cannot establish the applicable standard of care or whether Ms. Martel violated that standard. Mr. Wallin repeatedly states that it is malpractice to prescribe a drug for a condition the patient does not possess. This assertion is without support. While Mr. Wallin may believe this is true, he is not a physician or nurse practitioner. Ms. Martel's expert toxicologist, Javier

Waksman, M.D., holds the opinion that Ms. Martel did not fall below the standard of care when she prescribed Antabuse to Mr. Wallin. [See Exhibit A-3, Dr. Waksman expert endorsement]. Additionally, in her opening brief, Ms. Martel provided several examples of instances when prescription medication is given even if the person receiving the drug does not have the disease for which the drug is indicated. Mr. Wallin has no evidence or expert testimony that establishes it was malpractice for Ms. Martel to prescribe Antabuse, even if Mr. Wallin claims he did not drink alcohol. Plaintiff mistakenly states that Ms. Martel admits that he did not possess any alcohol related illnesses. Response at p. 4. Mr. Wallin's citation to Ms. Martel's Motion for Summary Judgment does not support this assertion. The sentence cited only states that CCTC used Antabuse as a deterrent. More importantly, even if true, Mr. Wallin cannot establish that it was below the standard of care for Ms. Martel to prescribe Mr. Wallin Antabuse unless he presents expert testimony on this subject. Mr. Wallin mistakenly relies on U.S. v. Bartee, 479 F.2d 484 (10th Cir. 1973) to support his claim that it was malpractice for Ms. Martel to prescribe Antabuse. Bartee is a criminal case in which the defendant, a physician, was convicted of illegally prescribing narcotic medications to undercover government agents. Id. at 485. The physician was charged under a section of the

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Comprehensive Drug Abuse Prevention and Control Act of 1970 ("CDAPCA") which states that it is illegal to prescribe a drug which is not for a legitimate medical purpose. Id. at 486. Bartee is inapplicable to this case for several reasons. First, this is not a criminal matter. Mr. Wallin has brought a civil action for medical malpractice. Next, there is no evidence that Ms. Martel prescribed Anatbuse for an illegitimate medical purpose. In Bartee, the defendant prescribed controlled substances knowing that the patients traded the drugs with other people and used slang terms for the drugs. Id. at 489. Furthermore, Dr. Bartee cautioned the undercover agents to fill the prescriptions at different drugstores to avoid raising the suspicions of the government. Id. Mr. Wallin does not allege that Ms. Martel violated the CDAPCA, and any allegation of such a violation is completely without support. relevance to this case. Summary Judgment should be entered in favor of Ms. Martel because Plaintiff cannot meet his burden of proof. Without expert testimony, Mr. Wallin cannot establish the basic elements of medical malpractice or that Ms. Martel fell below the standard of care when she prescribed Antabuse. Finally, Mr. Wallin has presented no evidence to support a claim of negligence based on lack of informed consent. Mr. Wallin did not plead this allegation in his Amended Prisoner Complaint, but raised it in his Response to Ms. Martel's Motion for Summary Judgment. Response at p. 6. This claim fails because Ms. Martel provided Mr. Wallin with information regarding the potential side effects of Antabuse and about precautions while taking the drug. [See Exhibit A-4, affidavit of M. Martel at ¶¶ 3-5]. It is undisputed that Ms. Martel advised Mr. Wallin of precautions when taking Antabuse. After receiving this information, Mr. Wallin voluntarily filled the prescription at an independent pharmacy. [Exhibit A-2, at p. 15:7Simply put, Bartee has no

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12]. Ms. Martel did not administer or dispense the medication to Mr. Wallin. Id. Mr. Wallin voluntarily consented to taking Antabuse after Ms. Martel advised him of the potential side effects and precautions. As a result, no reasonable jury could find, based on the undisputed facts, that Ms. Martel negligently prescribed Antabuse without first obtaining informed consent. IV. CONCLUSION WHEREFORE, for the foregoing reasons and those stated in the opening brief, Defendant Martel respectfully requests that the Court grant her Motion for Summary Judgment and dismiss Plaintiff's claim against her for medical malpractice. Respectfully submitted,

By s/ Jennifer M. Palmer Jennifer M. Palmer

By s/ Billy-George Hertzke Billy-George Hertzke SENTER GOLDFARB & RICE, L.L.C. 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: (303) 320-0509 Facsimile: (303) 320-0210 E-mail: [email protected] [email protected] Attorneys for Defendant Martel

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of November, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S REPLY IN SUPPORT OF MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Steven J. Wienczkowski ­ [email protected] Daniel M. Hubbard ­ [email protected] Scott S. Nixon ­ [email protected] PRYOR JOHNSON CARNEY KARR & NIXON, P.C. Attorneys for Defendants CMI, Abbott, Dempewolf, Bradley, Deming, Coolidge, and CannonGrant Via U.S. Mail Oloyea D. Wallin AVCF, Prisoner #111389 P.O. Box 1000 Crowley, CO 81034 Plaintiff, Pro Se /s Rita Sinks

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