Anderson et al v. HCA-HealthOne LLC et al

Filing 214

ORDER granting in part and denying in part 206 Plaintiffs' Motion to Strike Affirmative Defenses Raised By Reference. Proposed Amended Final Pretrial Order due by 6/8/2011. by Magistrate Judge Kathleen M. Tafoya on 6/1/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 09–cv–00704–CMA–KMT

LAUREN P. ANDERSON, and
WILLIAM W. ANDERSON, III,
Plaintiffs,
v.
DAVID C. VAN PELT, M.D.,
BROOKS W. LONG, M.D., and
SALLIE B. CLARK, M.D.,
Defendants.

ORDER

This matter is before the court on “Plaintiffs’ Motion to Strike Affirmative Defenses
Raised By Reference” and Brief in Support (Doc. No. 206 [Mot.]; Doc. No. 207 [Br. in Supp.],
filed 3/30/2011), Defendant Clark’s Response (Doc. No. 209 [Resp.], filed 4/19/2011), and
Plaintiffs’ Reply (Doc. No. 210 [Reply], filed 4/25/2011). The motion is ripe for review and
ruling.
On August 4, 2010, Plaintiffs filed a motion for partial summary judgment on selected
affirmative defenses (Doc. No. 148) and a motion to strike selected affirmative defenses (Doc.
No. 150). On December 7, 2010, District Judge Christine M. Arguello entered an order denying
the motion for partial summary judgment and granting in part Plaintiffs’ motion to strike

affirmative defenses. (Doc. No. 186.) Relevant here, she struck from the Defendants’ Answers
the adoption by reference of additional defenses and the preservation of the right to include
additional defenses. (Id. at 7.)
On December 8, 2010, this court held a final pretrial conference. The audio recording
from the hearing reflects that the parties worked with the court to conform the proposed pretrial
order to Judge Arguello’s ruling issued the previous day. To this end, language appearing in the
claims and defenses of Defendants Van Pelt, Long and McLaughlin, “reserving the right to
assert” the provisions of the Colorado Uniform Contribution Among Tortfeasors Act was
removed from the proposed pretrial order and does not appear in the Final Pretrial Order.1
Plaintiffs now contend that, due to an oversight, “Defendant Clark’s adoption of affirmative
defenses by reference slipped through the cracks.” (Reply at 2.)
Plaintiffs move to strike any affirmative defenses that were adopted by reference,
including, the defense of contribution under the Uniform Contribution Among Joint Tortfeasors
Act, and the defense of prior existing condition, both of which were asserted by Defendants Van
Pelt and Long in their Answers, but were not specifically asserted by Defendant Clark in her
Answer. (Br. in Supp. at 3-4.) Plaintiffs bring their motion pursuant to Fed. R. Civ. P. 12(f) and
argue that these two defenses are legally insufficient and, regardless, the court has already
stricken any affirmative defenses raised by reference. (Id. at 2, 4.)

1

Rather, these items were rewritten to reflect that Defendants Van Pelt, Long and
McLaughlin, in fact assert the applicable provisions of the Colorado Uniform Contribution
Among Tortfeasors Act. (See Doc. No. 190 at 4, 5.)
2

In response, Defendant Clark does not dispute that she did not specifically list these two
defenses in her Answer as affirmative defenses. She argues that neither of them are true
affirmative defenses. (Resp. at 2.) She also argues that Plaintiffs have not met the stringent
requirements to strike an affirmative defense. (Id. at 5-6.)
Fed. R. Civ. P. 12(f) provides that a court, on its own or on motion, “may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). If on motion, the motion must be made “before responding to the
pleading or, if a response is not allowed, within 21 days after being served with the pleading.”
Fed. R. Civ. P. 12(f)(2).
In her Answer to Plaintiffs’ Amended Complaint, under the heading, “Affirmative
Defenses,” Defendant Clark states:
7.
...

Any affirmative defenses listed in the Pre-Trial Order.

Dr. Clark incorporates by reference all affirmative defenses raised by other
defendants to this matter. Dr. Clark reserves the right to add or delete affirmative
defenses as discovery proceeds in this case.
(Doc. No. 109 at 3, 4.)
In seeking partial summary judgment on certain affirmative defenses, Plaintiffs note this
language in Defendant Clark’s Answer and cite Gregory v. Metropolitan Life Insurance
Company, 648 F. Supp. 2d 591 (D. Vt. 2009). In Gregory, both defendants argued on motions
for summary judgment that the plaintiff’s suit was barred by the statute of limitations. The
plaintiff argued that neither defendant had raised the statute of limitations as an affirmative

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defense in its answer and therefore the defense was waived. Id. at 602. The court noted that one
defendant had stated in its answer “that it was reserving the right ‘to raise other or further
defenses’ at trial;” however, the court rejected this approach stating that “this type of general
reservation of defenses fails to comply with Fed. R. Civ. P. 15 and has been recognized as a legal
nullity having no force or effect.” Id.
Judge Arguello’s order states:
F.

ADOPTION BY REFERENCE AND PRESERVATION OF RIGHT
TO ADD DEFENSES
Plaintiffs claim this statement of defenses is a legal nullity. Defendants do
not respond to Plaintiffs’ arguments.
The Court recognizes the deadline to amend the pleadings has passed.
The Court, therefore, strikes this defense.
(Doc. No. 186 at 7 (citations omitted).)
Judge Arguello thus struck from Defendants’ Answers any defense adopted by reference
and any purported preservation of the right to add defenses. Because Defendant Clark did not
specifically assert contribution under the Colorado Uniform Contribution Among Tortfeasors
Act, or the defense of a preexisting injury, once the language “incorporat[ing] by reference all
affirmative defenses raised by other defendants to this matter” and “reserv[ing] the right to add
or delete affirmative defenses as discovery proceeds in this case” is removed from her Answer,
she is left without having asserted the two defenses at issue. Defendant Clark did not seek leave
to amend her Answer subsequent to Judge Arguello’s order.
The section of the Final Pretrial Order describing Defendant Clark’s claims and defenses
includes the statement, “Defendant Clark asserted the same affirmative defenses as those set

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forth in subparagraph (a) and (b) above for Drs. Long, Van Pelt and McLaughlin plus the
affirmative defense of consent.” (Doc. No. 190 at 6.) Given Judge Arguello’s order, this is not
an accurate statement.
Because Judge Arguello struck the adoption by reference and preservation of right to add
defenses, Defendant Clark’s statement in the Final Pretrial Order must be stricken. However, the
court recognizes that Defendant Clark did assert numerous defenses in her Answer, which do not
appear in the Final Pretrial Order, presumably because they were many of the same defenses
asserted by Defendants Long, Van Pelt, and McLaughlin. Accordingly, Defendant Clark should
be allowed to amend the portion of the Final Pretrial Order addressing her claims and defenses
so that the Final Pretrial Order will accurately reflect the defenses she asserts which have not
been stricken or otherwise dismissed.
To the extent Plaintiffs seek to strike affirmative defenses under Rule 12(f), the court
finds the legal theory in support of the motion inapplicable. Fed. R. Civ. P. 12(f) addresses the
striking of an insufficient defense from a pleading. Given Judge Arguello’s order, the defenses
of contribution under the Uniform Contribution Among Tortfeasors Act and pre-existing
condition do not appear in Defendant Clark’s Answer and Defendant Clark has not moved to
amend her Answer.
Therefore it is,
ORDERED that “Plaintiffs’ Motion to Strike Affirmative Defenses Raised By
Reference” (Doc. No. 206) is GRANTED IN PART. To the extent that the Final Pretrial Order
indicates that Defendant Clark asserts the same affirmative defenses as those set forth by
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Defendants Long, Van Pelt and McLaughlin, this statement is stricken from the Final Pretrial
Order.2 The motion is denied in all other respects. It is further
ORDERED that, no later than June 8, 2011, the parties shall confer and submit a
proposed Amended Final Pretrial Order in which Defendant Clark specifically states her claims
and defenses which have not been stricken or otherwise dismissed without incorporating by
reference the claims or defenses of other defendants.
Dated this 1st day of June, 2011.

2

The court does not strike Defendant Clark’s assertion of the affirmative defense of

consent.
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