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

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John A. Klecan, #19159 James W. Barnhouse, #013749 RENAUD COOK DRURY MESAROS, P.A. One North Central, Suite 900 Phoenix, Arizona 85004-4418 (602) 307-9900 [email protected] [email protected] Attorneys for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. Paul G. Ulrich, No. 001838 Melinda K. Cekander, No. 012085 131 E. El Caminito Drive Phoenix, Arizona 85020-3503 (602) 248-9465 [email protected] [email protected] Co-Counsel for Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA RUBECCA MIKKELSEN, surviving spouse of Kelly Mikkelsen, deceased, individually and on behalf of MILES MIKKELSEN, JERRET MIKKELSEN and ALLISON MIKKELSEN, the minor children of Kelly Mikkelsen, deceased, and on behalf of DENNIS MIKKELSEN, natural father of Kelly Mikkelsen, deceased; and on behalf of TAYLOR R. FOX, a minor, by her next friend and natural mother, TRACY FOX-TANGA, Plaintiff, v. CORRECTIONAL HEALTH RESOURCES, INC., a foreign corporation; KENNETH L. FAIVER and JANE DOE FAIVER, husband and wife; JOSEPH EDWARD RICH, M.D. and JANE DOE RICH, husband wife; DOES I through V, inclusive, Defendants. DEMAND FOR JURY TRIAL No. CIV 02-2252-PHX-JAT ANSWER OF CORRECTIONAL HEALTH RESOURCES, INC., KENNETH FAIVER, ROSEMARY FAIVER, AND JOSEPH EDWARD RICH, M.D. TO THIRD AMENDED COMPLAINT

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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For their Answer to Plaintiffs' Third Amended Complaint, Defendants Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver, and Joseph Edward Rich, M.D. (hereinafter collectively "Defendants") admit, deny and allege as follows: GENERAL ALLEGATIONS I. Defendants are without sufficient information or knowledge concerning the truth or falsity of the allegations contained in Paragraph I of Plaintiffs' Third Amended Complaint and, therefore, deny all such allegations. II. Defendants admit the allegations contained in Paragraph II of Plaintiffs' Third Amended Complaint. III. Defendants admit that Kenneth L. Faiver and Rosemary Faiver are husband and wife, admit that Kenneth L. Faiver has managed defendant Correctional Health Resources as an officer therein, but deny all remaining allegations contained in Paragraph III of Plaintiffs' Third Amended Complaint. IV. Defendants admit that Joseph E. Rich, M.D. was acting at various times in his official capacity on behalf of Correctional Health Resources, but denies that he so acted at all times, and otherwise deny all remaining allegations contained in Paragraph IV of Plaintiffs' Third Amended Complaint. V. Defendants are without sufficient information or knowledge concerning the truth or falsity of the allegations contained in Paragraph V of Plaintiffs' Third Amended Complaint and therefore deny same.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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VI. Defendants deny the allegations contained in Paragraph VI of Plaintiffs' Third Amended Complaint. COUNT ONE (Negligence) VII.

6 Defendants admit that for a portion of time on October 11, 2001, Kelly Mikkelsen was 7 confined in the Yuma County Jail, also known as Yuma County Adult Detention Center, and 8 further admit that, on October 11, 2001, Kelly Mikkelsen died. Defendants deny all remaining 9 allegations contained in Paragraph VII of Plaintiffs' Third Amended Complaint. 10 VIII. and IX. 11 Defendants deny the allegations contained in Paragraph VIII and IX of Plaintiffs' Third 12 Amended Complaint. 13 14 15 16 17 18 19 XI. and XII. 20 Defendants deny the allegations contained in Paragraphs XI and XII of Plaintiffs' Third 21 Amended Complaint. 22 23 24 25 26
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COUNT TWO (Medical Negligence) X. Defendants deny the allegations contained in Paragraph X of Plaintiffs' Third Amended Complaint. COUNT THREE (Adult Abuse)

COUNT FOUR (Violation of Civil Rights) XIII. Defendants deny the allegations contained in Paragraph XIII of Plaintiffs' Third Amended Complaint.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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AFFIRMATIVE DEFENSES For their affirmative defenses in this matter, defendants allege as follows: XIV. Plaintiffs' Third Amended Complaint fails to state a claim upon which relief may be granted. XV. Kelly Mikkelsen was solely or comparatively at fault for causing his own death. XVI. Kelly Mikkelsen assumed the risk of his action, and said assumption of risk was the direct and proximate cause of any harm for which Plaintiffs now make claim. XVII. If Plaintiffs should prove any damages as alleged, such damages resulted from acts or omissions of third parties over whom Defendants had neither control nor right of control, and as a result, Defendants reserve the right to name such non-parties who may be wholly or partially at fault for any damages claimed by plaintiff. XVIII. Plaintiffs have failed to mitigate damages. XIX. Rubecca Mikkelsen is solely or comparatively at fault for the death of Kelly Mikkelsen. XX. At all times Defendants acted in good faith. XXI. This Court lacks jurisdiction over this matter. XXII. Plaintiffs have not complied with the requirements of the Prison Litigation Reform Act and thus cannot maintain this lawsuit.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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XXIII. Plaintiffs' claim is barred by application of A.R.S. § 12-711. XXIV. The conduct of Kelly Mikkelsen is imputed to the plaintiffs and bars or reduces their recovery. XXV. Kelly Mikkelsen intentionally, willfully or wantonly caused or contributed to his death and therefore has no claim for comparative fault. His conduct is a complete bar to a recovery if the jury so finds. XXVI. The intentional conduct of Kelly Mikkelsen is imputed to plaintiffs and bars their recovery. XXVII. Plaintiffs have failed to exhaust the administrative remedies. XXVIII. The statute of limitations bars any recovery. XXIX. Defendants state that there may be additional affirmative defenses which are supported by evidence learned through discovery in this matter, and accordingly reserve the right to incorporate such additional affirmative defenses into appropriate pleadings in this matter. WHEREFORE, having fully answered and defended the allegations contained in Plaintiffs' Third Amended Complaint, Defendants pray: 1. 2. That Plaintiffs take nothing; That Defendants be awarded their attorneys' fees and expenses pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 11;

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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3.

That the Court order Plaintiffs to pay all costs and expenses incurred by Defendants in defense of this matter;

4. 5.

That Defendants be dismissed forthwith; and For such other and further relief as the Court deems just and proper in the premises.

RESPECTFULLY SUBMITTED this 11th day of November, 2005. RENAUD COOK DRURY MESAROS, PA By: s/ James W. Barnhouse John A. Klecan James W. Barnhouse Phelps Dodge Tower One North Central, Suite 900 Phoenix, AZ 85004-4418 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D. PAUL G. ULRICH, PC

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By: s/ Paul G. Ulrich Paul G. Ulrich Melinda K. Cekander 131 East El Caminito Drive Phoenix, Arizona 85020-3503 Attorneys for Correctional Health Resources, Inc., Kenneth Faiver, Rosemary Faiver and Joseph E. Rich, M.D.

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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E-Filed with the U.S. District Court this 11th day of November, 2005; and COPY of the foregoing will be delivered on the 14th day of November, 2005, to: Hon. James A. Teilborg U.S. District Court 401 West Washington Street Suite 523, SPC 51 Phoenix, Arizona 85003-0001

RENAUD COOK DRURY MESAROS
ONE NORTH CENTRAL SUITE 900 PHOENIX, AZ 85004 TELEPHONE 602-307-9900 FACSIMILE 602-307-5853

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