Free Answer to Amended Complaint - 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 ANSWER ______________________________________________________________________________ Defendant, MONIQUE M. MARTEL, identified in the Amended Prisoner Complaint as Jane Doe, answers Plaintiff's Amended Prisoner Complaint, which was filed January 5, 2005, as follows: ANSWER 1. Defendant Martel is without sufficient information and knowledge to form a

belief as to the truth and veracity of the allegations contained in paragraphs A.1, A.2, A.3, A.4, A.5, A.6, A.7, A.8, A.9, A.10, C.1, C.2, C.3, C.4, C.5, C.6, C.7, C.8, C.9, C.10, C.11, C.12, C.13, C.14, and C.15 of Plaintiff's Amended Prisoner Complaint, and therefore, denies the same.

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2.

The allegations contained in paragraphs D.1, D.2, D.3, D.4, D.5, and D.6 of

Plaintiff's Amended Prisoner Complaint are not directed at Defendant Martel, and therefore, no responses are required. To the extent the responses are deemed to be required, Defendant Martel denies those allegations. 3. Defendant Martel denies the allegations contained in paragraph D.7 of Plaintiff's

Amended Prisoner Complaint, as those allegations pertain to Defendant Martel. 4. The allegations contained in paragraphs B.1, B.2, and subsections "E" and "f"

(sic) of Plaintiff's Amended Prisoner Complaint state legal conclusions to which no responses are required. 5. Unless specifically admitted herein, Defendant Martel denies each and every

allegation contained in Plaintiff's Amended Prisoner Complaint. AFFIRMATIVE DEFENSES 1. 2. damages. 3. Plaintiff failed to take reasonable steps under the circumstances to minimize or Plaintiff has failed to state a claim for relief against Defendant Martel. Plaintiff may not be the real party in interest to all or some of his claimed

mitigate his alleged damages. 4. The liability of Defendant Martel, if any, to Plaintiff is limited by the statutory

non-economic damage limitations contained in C.R.S. § 13-21-102.5. 5. Plaintiff's claims are barred or reduced by Plaintiff's comparative fault pursuant

to C.R.S. § 13-21-111.

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6.

The liability of Defendant Martel, if any, is limited to her pro rata share pursuant

to C.R.S. § 13-21-111.5. 7. 8. Plaintiff's claims are barred by the applicable statute of limitations. Plaintiff has failed to comply with C.R.S. § 13-20-602, which requires a

certificate of review in cases of medical malpractice. 9. Plaintiff's claims are barred by, limited by, or otherwise subject to the Health

Care Availability Act, C.R.S. § 13-64-101, et seq., including the damages limitations contained in C.R.S. § 13-64-302 and the collateral source provisions contained at C.R.S. § 13-64-402. 10. 102(1.5). WHEREFORE, Defendant Monique Martel, having fully answered Plaintiff's Amended Prisoner Complaint and all claims stated herein, respectfully requests that this suit be dismissed with prejudice, that Defendant Martel be awarded her costs, expert witness fees, and other such relief as the Court deems just and proper. DEFENDANT MARTEL HEREBY DEMANDS TRIAL TO A JURY OF SIX (6) PERSONS ON ALL ISSUES JOINED HEREIN Plaintiff's claim for punitive damages is premature pursuant to C.R.S. § 13-21-

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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 Defendant's Address: 5745 South Bannock Street Littleton, Colorado 80120

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of March, 2006, I electronically filed a true and exact copy of the above and foregoing DEFENDANT MARTEL'S ANSWER 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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