Free Proposed Pretrial Order - 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, KIM DEMPEWOLF, MARYE DEMING, MONIQUE M. MARTEL, and JASON COOLIDGE, Defendants. ______________________________________________________________________________ AMENDED PROPOSED FINAL PRETRIAL ORDER ______________________________________________________________________________ 1. DATES AND APPEARANCES The Final Pre-Trial Conference was held in this matter on September 5, 2006 at 8:30 a.m. with Magistrate Judge Michael J. Watanabe. Plaintiff participated by telephone, and in

attendance in person were Steven J. Wienczkowski, Esq. for Defendants CMI, Kim Dempewolf, Marye Deming and Jason Coolidge. Billy-George Hertzke, Esq. also appeared in person on behalf of Defendant Monique Martel. Plaintiff did not provide Defendants with any input regarding this proposed Pre-Trial Order. 2. JURISDICTION Jurisdiction is conferred on the Court by 28 U.S.C. §§1331, 1332, 1343(a)(3) and 1367.

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3. CLAIMS AND DEFENSES On August 22, 2001, Plaintiff entered Centennial Community Transition Center ("CCTC") as a direct sentence serving a four year community corrections sentence for menacing. Plaintiff alleges that, while he was a resident at CCTC, he was forced to take Antabuse, a medication that is administered to deter the use of alcohol, and that the Antabuse caused him physical harm. Plaintiff alleges that the administration of Antabuse treatment constituted cruel and unusual punishment under the 8th Amendment (Plaintiff's Claim Four). Plaintiff has also asserted a "state claim of negligence" (Claim Five); "state claim of intentional infliction of emotional distress" (Claim Six); and "state claim of medical malpractice" (Claim Seven).1 Plaintiff argues that the prescribed Antabuse caused him to suffer from severe headaches, sharp pains in his chest and abdominal region, dizziness, dehydration, fatigue, anxiety, severe sweating, diarrhea, and mood changes. Defendants CMI, Dempewolf, Deming and Coolidge: Defendants CMI, Dempewolf, Deming, and Coolidge deny that they were deliberately indifferent to any serious medical needs of Plaintiff. These Defendants deny that Plaintiff was forced, threatened or coerced in any manner to take the prescribed medication Antabuse while housed at CCTC. These Defendants further contend that Plaintiff was appropriately evaluated and cleared for treatment with Antabuse and further, that Plaintiff consented to and accepted treatment with Antabuse without objection or comment. In total, Plaintiff received only six doses of Antabuse, and there is no evidence to support Plaintiff's claim that the Antabuse he
1

Pursuant to the Court's June 8, 2005 Order, Plaintiff's Claims One, Two, and Three -2-

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received caused him serious medical needs, that any of these Defendants were aware of those serious medical needs, and that the Defendants deliberately ignored those needs in violation of 42 U.S.C. §1983. Defendants CMI, Dempewolf, Deming, and Coolidge further contend that Plaintiff failed to exhaust administrative remedies pursuant to 42 U.S.C. §1997(e)(a). With respect to Plaintiff's negligence claim (Claim Five), these Defendants deny they breached a duty to Plaintiff that caused harm to Plaintiff, and deny that their conduct amounted to intentional infliction of emotional distress (Claim Six) under Colorado law. Further, with respect to Plaintiff's state claim of medical malpractice (Claim Seven), to the extent this claim is read to be directed at Defendants CMI, Dempewolf, Deming, and Coolidge, it should be dismissed on its face as none of these Defendants are medical professionals. Moreover, Plaintiff's claim of medical malpractice must fail as Plaintiff has failed to provide a Certificate of Review pursuant to C.R.S. §13-20-602. In addition to the defenses set forth above, Defendants CMI, Dempewolf, Deming and Coolidge assert the following defenses: Plaintiff's claims are barred by the equitable doctrines of consent, waiver, estoppel and/or unclean hands; Plaintiff has failed to mitigate his alleged injuries and damages, if any; the conduct of Defendants was lawful, justified, privileged, done in good faith and subject to qualified immunity; Plaintiff's claims for damages are diminished, limited and/or barred under provisions of Colorado law, including, but not limited to, C.R.S. §13-21-102.5 and/or §13-21-111.6; Plaintiff's claims for damages are barred or diminished by remain dismissed as set forth in Judge Weinshienk's April 26, 2004 Order. -3-

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Plaintiff's own fault and/or assumption of the risk, pursuant to C.R.S. §13-21-111 and/or §13-21111.7; and Plaintiff's claims are frivolous and groundless, entitling Defendants to an award of attorney's fees and costs pursuant to 42 U.S.C. §1988. Defendant Martel: Defendant Martel contends that she appropriately evaluated Plaintiff for Antabuse and that there is no evidence that she violated the applicable standard of care. Plaintiff has failed to submit a certificate of review as required by C.R.S. § 13-20-602. Furthermore, Plaintiff has not endorsed a medical expert to provide testimony concerning Ms. Martel's treatment of Plaintiff. Without an expert, Mr. Wallin cannot make a prima facia showing of medical malpractice. Defendant Martel further asserts that Mr. Wallin did not minimize or mitigate his alleged damages. The liability of Defendant Martel, if any, to Plaintiff is limited by the statutory noneconomic damage limitations contained in C.R.S. § 13-21-102.5. Plaintiff's claims are barred or reduced by Plaintiff's comparative fault pursuant to C.R.S. § 13-21-111. The liability of Defendant Martel, if any, is limited to her pro rata share pursuant to C.R.S. § 13-21-111.5. 4. STIPULATIONS None.

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5. PENDING MOTIONS Defendants CMI, Dempewolf, Deming, and Coolidge: On March 1, 2006, Defendants CMI, Dempewolf, Deming, and Coolidge filed a Motion for Summary Judgment on the grounds that there is no genuine dispute of material fact that these Defendants were not deliberately indifferent to any serious medical needs of Plaintiff under 42 U.S.C. §1983, and that Plaintiff cannot prevail on any of his remaining state law claims as a matter of law. Plaintiff has failed to file a response to the Motion for Summary Judgment, and on March 23, 2006, the Court denied Plaintiff's "Motion for Extension of Time to File Response/Reply as to Motion for Summary Judgment." On March 31, 2006, Plaintiff filed his "Objection to Magistrate Judge Order Denying Plaintiff's Motion for Extension of Time to File Response to CMI Defendnats [sic] Motion for Summary Judgment," to which these Defendants filed a Response on April 12, 2006. As Plaintiff has elected not to file any response, the Court may deem the factual and legal arguments in the Motion for Summary Judgment to be unopposed, and admitted for the purpose of considering whether or not Defendants' motion should be granted pursuant to the provisions of Fed. R. Civ. P. 56. Defendant Martel: Defendant Martel's Motion to Dismiss for Failure to File Certificate of Review was filed on June 16, 2006. Defendant Martel filed a Motion for Summary Judgment on September 1, 2006.

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6. WITNESSES PLAINTIFF: A. Plaintiff lists the following non-expert witnesses: 1. Plaintiff will call the following witnesses who will be present at trial: [NONE PROVIDED BY PLAINTIFF.] 2. Plaintiff may call the following witnesses at trial if the need arises: [NONE PROVIDED BY PLAINTIFF.] 3. Plaintiff does not anticipate presenting any testimony by means of a deposition.

DEFENDANTS CMI, DEMPEWOLF, DEMING, AND COOLIDGE: A. Defendants list the following non-expert witnesses: 1. Defendants will call the following witnesses who will be present at trial: Plaintiff Oloyea D. Wallin. 2. Defendants may call the following witnesses at trial if the need arises: Kim Dempewolf Marye Deming Jason Coolidge Mike Koob Monique M. Martel Javier C. Waksman, M.D. Selwyn M. Spray, M.D. Any treating health care provider -6-

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3.

Defendants do not anticipate presenting any testimony by means of a deposition.

B.

Defendants list the following expert witnesses: 1. Defendants anticipate that the following expert witnesses may be present at trial: Javier C. Waksman, M.D.

DEFENDANT MARTEL: Defendant Martel's Witness List is attached hereto. 7. EXHIBITS a. The parties list the following exhibits: (1) Plaintiff: [NONE PROVIDED BY PLAINTIFF.] (2) Defendants CMI, Kim Dempewolf, Jason Coolidge and Marye Deming: Defendants' Preliminary Exhibit List is attached hereto. (3) Defendant Martel: Defendant Martel's Exhibit List is attached hereto. b. Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided.

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8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES 1. Defendants CMI, Dempewolf, Deming, Coolidge, and Martel's pending Motions for Summary Judgment; 2. Plaintiff's failure to comply with Magistrate Judge Watanabe's December 6, 2005 Order [Docket No. 187]. Plaintiff's failure to comply with the Court's Order has resulted in Defendants from being unable to obtain any of Plaintiff's medical records. 10. SETTLEMENT a. Counsel for the parties and any pro se Plaintiff will meet in person and by telephone on _____________ at _____ to discuss in good faith the settlement of this case. b. The participants in the settlement conference will include counsel, party

representatives, and pro se Plaintiff. This settlement conference was set before Defendant Martel's involvement. Ms. Martel will be available by phone. c. d. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party (do) (do not) intend to hold future

settlement conferences. e. It appears from the discussion by all counsel and any pro se party that there is (a good possibility of settlement)

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(some possibility of settlement) (little possibility of settlement) (no possibility of settlement). f. g. No other date has been set for further settlement conference. Counsel for the parties and any pro se party considered ADR in accordance with

D.C.COLO.L.Civ.R. 16.6. 11. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it (or will) with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will not be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME: FURTHER TRIAL PREPARATION PROCEEDINGS The Defendants anticipate the trial can be completed in three (3) days. DATED this ______ day of __________________, 2006.

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BY THE COURT:

__________________________________________ United States Magistrate Judge APPROVED:

/s/ Steven J. Wienczkowski Steven J. Wienczkowski Scott S. Nixon PRYOR JOHNSON CARNEY KARR NIXON 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 303.773.3500 ATTORNEYS FOR DEFENDANTS CMI, KIM DEMPEWOLF, MARYE DEMING AND JASON COOLIDGE

/s/Billy-George Hertzke Jennifer M. Palmer Billy-George Hertzke SENTER, GOLDFARB & RICE 1700 Broadway, Suite 1700 Denver, Colorado 80290 303.320.0509 ATTORNEY FOR DEFENDANT MONIQUE MARTEL

_________________________________ Oloyea D. Wallin Reg. No. 111389 Arkansas Valley Correctional Facility P O Box 1000 Crowley, Colorado 81034 PRO SE PLAINTIFF

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DEFENDANT MARTEL'S WITNESS LIST Judge Walker D. Miller Case No. 03-cv-02319-WDM-MJW Case Caption: Wallin v. CMI, et al. Will Call Lay Witnesses (name & summary of testimony) 1. Monique Martel Ms. Martel will testify concerning her evaluation of Plaintiff as a candidate for Antabuse. 2. Oloyea D. Wallin Mr. Wallin will be called to testify regarding Ms. Martel's examination of him and his treatment at CTCC. May Call Lay Witnesses (name & summary of testimony) 1. Kim Dempewolf 2. Marye Deming 3. Jason Coolidge These individual may be called to testify concerning CMI and/or CTCC policies and procedures and the administering of Antabuse to Mr. Wallin. 4. Any witness needed for rebuttal, impeachment or to lay a foundation. Will Call Expert Witnesses (name & summary of testimony) 1. Javier C. Waksman, M.D. Dr. Waksman will testify that Ms. Martel did not fall below the standard of care when she prescribed Antabuse to Mr. Wallin. -11Estimated Time for Examination Direct Cross 1.0 hour 1.0 hour Date:___________

Estimated Time for Examination Direct Cross 1.0 hour 1.0 hour

1.0 hour

.5 hour

Estimated Time for Examination Direct Cross .5 hour .5 hour .5 hour .5 hour .5 hour .5 hour

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DEFENDANT MONIQUE MARTEL'S EXHIBIT LIST Judge Walker D. Miller Defendant Martel's Exhibit List CASE CAPTION: Wallin v. CMI, et al. CASE NUMBER: 03-cv-02319-WDM-MJW PAGE NO. 1 of 1

Designation A-1

Description Martel Medical Antabuse Progress Notes (Martel 001) Martel Medical Patient Registration Information (Martel 002) Antabuse or Naltrexone Evaluation and lab results (Martel 003-004) Program Plan Levels Review (0133-0136 CTCC) CTCC Medication Monitoring Records (0072-0073 CTCC) CTCC Initial Treatment Team Presentation Program Plan (0121 CTCC) Plaintiff's Response to Defendants (sic) Martel's Written Discovery Any exhibit needed for impeachment, rebuttal, or to lay a foundation Any exhibit identified by another party

Offer

Stip.

In

Ou t

Rul. Res.

Comment

A-2

A-3

A-4

A-5

A-6 A-7 A-8

A-9

A-10

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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.

DEFENDANTS' PRELIMINARY EXHIBIT LIST ______________________________________________________________________________ COME NOW the Defendants, CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge, by and through the law firm of PRYOR JOHNSON CARNEY KARR NIXON, P.C., and provide the following list of exhibits which may be introduced as evidence at trial. NOTE: This is a preliminary exhibit list. Defendants CMI, Dempewolf, Deming and Coolidge reserve the right to add or delete exhibits based on Plaintiff's listing of exhibits, orders of Court, and/or for purposes of impeachment and rebuttal. NTBO = Not To Be Offered as evidence (for demonstrative or cross-examination purposes only) -13-

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EX. NO.

DESCRIPTION

ADMITTED BY STIP.

OFFERED

REC'D

REFUSED

RULING RESERV ED

A

Plaintiff's file maintained by Centennial Community Transition Center, Bates labeled "CCTC," Nos. 2 through 387, produced on September 20, 2005, with the exception of Nos. 9-37, 167-168. Records from Martel Medical, produced on October 31, 2005. CMI Writ/Grievance Procedure, Policy No. 3.011, produced on January 18, 2006. CMI Antabuse Policy, Policy No. 4.009, produced on January 18, 2006. Residential Rules and Regulations, produced on January 18, 2006. Report of Javier C. Waksman, M.D. Curriculum Vitae of Javier C. Waksman, M.D.

B

C

D

E

F

G

NOTE: Defendants reserve the right to introduce any medical records that are obtained pursuant to a signed medical release. 1

Plaintiff has refused to provide medical releases, despite Magistrate Judge Watanabe's Order of December 6, 2005 instructing Plaintiff to provide notarized releases.

1

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Defendants reserve the right to introduce any document marked as an exhibit to any deposition taken in this matter. Defendants reserve the right to use an enlargement or transparency of any exhibit or other document listed by any party for the purpose of witness examination. Defendants reserve the right to use or introduce any document obtained during discovery in this matter, including deposition exhibits, for the purpose of impeachment or rebuttal of evidence offered by plaintiff. Defendants reserve the right to use or introduce any portion of any discovery deposition, and/or transparency of any portion of any written or oral discovery, for the purpose of impeachment or rebuttal of evidence offered by plaintiff. Defendants reserve the right to use or introduce any exhibit listed by any other party. Defendants reserve the right to introduce any demonstrative exhibit necessary to assist with the presentation of testimony, including illustrations, models, diagrams or time lines. Defendants request that the parties stipulate to the authenticity and genuineness of all medical, hospital, employment and tax records and that all records, including out-of-state records, be deemed business records within the meaning of F.R.E. 803(6), subject to the further understanding that the parties reserve all objections on grounds of relevancy and any other grounds except foundation and authenticity. Defendants reserve the right to introduce as exhibits any records that have been obtained pursuant to signed releases, including employment records, insurance records, tax records, etc.

Respectfully submitted, PRYOR JOHNSON CARNEY KARR NIXON, P.C. /s/ Steven J. Wienczkowski Scott S. Nixon Steven J. Wienczkowski 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 303.773.3500 Phone 303.779.0740 Fax E-mail: [email protected]

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