Shinn, et al v. Melberg
ORDER denying 59 Plaintiffs' Motion for Summary Judgment. Denying 42 Plaintiffs' Motion to Accept the $4,200,000.00 City and County of Denver, Colorado Judgment. Granting 37 Defendant's first Motion for Summary Judgment in his favor. Denying as moot 48 Defendant's Second Motion for Summary Judgment. Denying 71 Plaintiffs' First Amendment to Supplemental Pleading #1 to Amend the Complaint. Judgment is entered in favor of Defendant on all Plaintiffs' claims. This case is dismissed. Costs are awarded to Defendant, by Judge Lewis T. Babcock on 1/30/2014. (eseam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Action No. 12-cv-01180-LTB-BNB
MICHAEL SHINN & JENNIFER SHINN
MARK W. MELBERG, M.D.
This matter is before me on Motions for Summary Judgment filed by Defendant, Mark
W. Melberg, M.D. – seeking dismissal of the remaining claims brought against him by Plaintiffs,
Michael and Jennifer Shinn – as well as a Motion for Summary Judgment filed by Plaintiffs –
seeking judgment in their favor as to Defendant’s liability. [Docs #37, 48 & 59] In addition, I
address a motion filed by Plaintiffs – entitled “Motion to Accept the $4,200.000.00 City and
County of Denver, Colorado Judgment herein as the Total Amount Awardable to the Plaintiff,
Michael Shinn, Subject to Allocation against Defendant Dr. Melberg by the Court at Trial” –
seeking a ruling as to the total amount of damages at issue in this case based on a jury verdict
rendered in a related state court case. [Doc #42] Finally, I address Plaintiffs’ pleading – entitled
“First Amendment to Supplemental Pleading #1 To Amend the Complaint” – which I construe a
motion seeking leave to amend their complaint pursuant to Fed. R. Civ. P. 15. [Doc #71]
Oral arguments would not materially aid in my determination of these motions. After
consideration of the parties arguments, and for the reasons stated, I DENY Plaintiffs’ Motion for
Summary Judgment [Doc #59] and Plaintiffs’ motion seeking a ruling on the damages in this
matter [Doc #42]. In addition, I GRANT Defendant’s initial Motion for Summary Judgment
[Doc #37], and I DENY AS MOOT Defendant’s Second Motion for Summary Judgment [Doc
#48]. Finally, I DENY Plaintiffs’ “First Amendment to Supplemental Pleading #1 To Amend
the Complaint.” [Doc #71] As such, I ENTER JUDGMENT in favor of Defendant on all
Plaintiffs’ claims, and I DISMISS this case.
I. Underlying Facts
Plaintiff Michael Shinn was involved in a tractor accident that resulted in injuries to his
left leg. Following that accident, Plaintiff filed a products liability lawsuit in Denver District
Court – in a case captioned Michael Shinn v. Rocky Mountain Farm Professionals, LLC, et. al.,
Case No. 10cv5812 – seeking damages related to the injuries he sustained. Plaintiff was
awarded $4,200,000 in that case after a jury trial. The jury determined that the manufacterer of
the front end loader that was mounted to the tractor was 50% liable for Plaintiff’s injuries, and
that Plaintiff himself was 50% liable based on his own negligent operation of the tractor.
After the conclusion of the state trial, Plaintiffs filed this lawsuit seeking damages for
injuries Plaintiff Michael Shinn sustained during surgeries to his leg following the tractor
accident on May 7th and 8th of 2010. Specifically, Plaintiffs allege that during the first
orthopedic surgery – on May 7th for a bone graft – Defendant improperly sawed off a large ball
on Plaintiff’s left fibula, despite the fact that Defendant had informed Plaintiffs that all he would
do would “shave the edge only.” Then, in the 24 hours following the first surgery, Plaintiffs
allege that Plaintiff’s left leg was “allowed to bleed through cut veins and the complete occlusion
of the below-knee left popliteal peroneal artery, as well as severed nerves and veins in that area”
resulting in pain and suffering. As a result, Plaintiff was forced to undergo a second surgery the
next day, May 8th, by a vascular surgeon (Dr. Alan Synn) in order to repair the damage caused
by the first surgery performed by Defendant.
Plaintiffs’ complaint initially included a claim for Outrageous Conduct, which was
subsequently dismissed without prejudice on Plaintiffs’ own motion [Doc #8], and two claims
for Medical Battery, which were dismissed with prejudice as barred by the statute of limitations
on Defendant’s motion to dismiss. [Doc #35] As a result, Plaintiffs’ remaining claims against
Defendant in this case are for Malpractice/Professional Negligence (Fourth Claim for Relief) and
for Lost of Consortium by Plaintiff Jennifer Shinn (Third Claim for Relief).
II. Summary Judgment
When deciding a motion for summary judgment under Fed. R. Civ. P. 56, summary
judgment shall be granted for the movant if the pleadings, depositions, answers to
interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. When applying this standard, I am to
view the evidence and draw reasonable inferences therefrom in the light most favorable to the
nonmoving party. Langley v. Adams County, 987 F.2d 1473, 1476 (10th Cir. 1993).
In a Rule 56 motion for summary judgment, a moving party who bears the burden of
proof at trial is entitled to summary judgment only when the evidence indicates that no genuine
issue of material fact exists. Anthony v. United States, 987 F.2d 670, 672 (10th Cir. 1993). If the
moving party does not bear the burden of proof at trial, it must show “that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden “may be discharged by ‘showing’ – that is,
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party’s case.” Id. at 325; see also Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 671 (10th
Cir.1998)(noting that when the movant does not bear the ultimate burden of persuasion at trial,
the movant may make his or her showing of the absence of a genuine issue of material fact by
“simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential
element of the nonmovant’s claim”).
Once the moving party has properly supported its motion for summary judgment, the
burden shifts to the nonmoving party, who “may not rest on mere allegations or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
III. Plaintiffs’ Motions
I first address and reject Plaintiffs’ request that judgment be entered in their favor on the
issue of Defendant’s liability. In Plaintiffs’ Motion For Summary Judgment [Doc # 59], they
argue that whether Plaintiff Michael Shinn incurred loses, and whether Defendant was
professionally negligent, are not contested and thus no material issue of fact exists. As such,
they assert that the only truly contested matter is causation which, they maintain, is proven in
this case because it is undisputed that Defendant’s negligence was, at least, “a cause” of Plaintiff
Michael Shinn’s injuries, which is all that is required by law. Moreover, Plaintiffs assert that the
amount of damages Defendant should be held liable for is also not at issue.
As to the issue of liability, Plaintiffs’ argument that Defendant’s negligence is
uncontested is incorrect and unsupported. Plaintiffs rely on the following in support of their
argument: that Defendant has admitted Plaintiffs incurred injuries, and that he has: “relied” on
Plaintiff Michael Shinn’s testimony in the state court case, “adopted” Dr. Synn’s testimony
(which they argue details his efforts to repair Defendant’s “ligation of Plaintiff’s main artery”),
and “mentioned” that Plaintiff’s two surgery cost “$700,000,” by relying on the state court
evidence in his second motion for summary judgment. Such reliance on the state court evidence
by Defendant does not, contrary to Plaintiffs’ argument here, amount to admission of negligence
or result in no disputed issue of fact. Rather, it is clear that Defendant denies any negligence,
and Plaintiffs have failed to assert or demonstrate the absence of a genuine issue of material fact
warranting entry of summary judgment in their favor on the issue of liability.
In addition, Plaintiffs’ contention that the issue of damages “appears to be fixed with no
contest . . . from the Defendant” is likewise without merit. Plaintiffs argue that the state case set
the total damages from the accident, and the resulting surgeries, at $4,200,000, but that amount
was reduced by 50% because Plaintiff “was found to be 50% contributorily negligent as to how
he drove he tractor.” Because Plaintiff could not be found to be contributorily negligent during
his surgeries – because he was asleep – Plaintiffs argue that Defendant here is liable for “that
part of the total judgment not associated with any contributory negligence” or, $2,100,000 (as
50% of $4,200,000). Plaintiffs assert that this “theory is reasonable and logical and convenient
to both parties at this time” but note that they may “re-look” this fixed-damages theory to see if
Defendant “might have damages exposure up to $4,200,000” if the state court defendant (the
manufacturer of the front end loader) is excused from paying the state court judgment in
This damages theory – which is also asserted by Plaintiffs in a pending motion entitled
“Motion to Accept the $4,200.000.00 City and County of Denver, Colorado Judgment herein as
the Total Amount Awardable to the Plaintiff, Michael Shinn, Subject to Allocation against
Defendant Dr. Melberg by the Court at Trial” [Doc #42] – is without any legal basis or authority.
While the ultimate damages paid in this case may be limited by the state court award in order to
prevent double recovery by Plaintiffs, the theory that Defendant here – if a fact finder ultimately
found that Plaintiffs proved a professional negligence claim against him – is automatically liable
for the “contributory negligent” percentage of the total allocable damages found in the related
state court products liability case is neither logical, nor supported by the law.
Plaintiffs have fallen far short of meeting their burden to show the absence of a genuine
material fact as to Defendant’s liability and, therefore, I deny Plaintiffs’ Motion for Summary
Judgment. In so doing, I likewise deny Plaintiffs’ “Motion to Accept the $4,200.000.00 City and
County of Denver, Colorado Judgment herein as the Total Amount Awardable to the Plaintiff,
Michael Shinn, Subject to Allocation against Defendant Dr. Melberg by the Court at Trial.”
IV. Defendant’s Motions
I next address Defendant’s first Motion for Summary Judgment [Doc #37] in which he
seeks dismissal of Plaintiffs’ malpractice/professional negligence claim against him on the basis
that Plaintiffs have failed to designate any expert testimony and, as such, they cannot establish a
prima facie case for professional negligence at trial.
A federal court with diversity-based jurisdiction over a case, as is applicable here, applies
the laws of the forum state in analyzing the underlying claims. See Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Essex Ins. Co. v. Vincent, 52 F.3d 894, 896
(10th Cir.1995). Under Colorado law, the burden is on the plaintiff to establish a prima facie
case of negligence by demonstrating: (1) the applicable standard of care, (2) that the defendant
breached the standard of care, and (3) that the breach caused the plaintiff’s injury. HealthONE v.
Rodriguez, 50 P.3d 879, 888 (Colo. 2002). If the subject matter lies beyond the ambit of
common knowledge or experience of ordinary persons, expert testimony is required to establish
these elements. Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990).
The question of whether a medical professional’s conduct meets the professional standard
of care is not within the ambit of common knowledge under Colorado law. Teiken v. Reynolds,
904 P.2d 1387, 1389 (Colo. App. 1995). As a general rule, then, expert testimony in medical
malpractice actions is necessary to determine the standards of professional care and competence
which define the concept of reasonableness appropriate to adjudication of such disputes. Gorab
v. Zook, 943 P.2d 423, 427 (Colo. 1997)(citing Bloskas v. Murray, 646 P.2d 907, 914 (Colo.
1982); Greenwell v. Gill, 660 P.2d 1305, 1307 (Colo. App. 1982)). Colorado law acknowledges
that, in some medical malpractice actions, expert testimony is not required; such is the case only
when the “duty of care in such cases arises from a general principle” such as the duty of full
disclosure which, in turn, is a principle not peculiar to any one profession. Gorab v. Zook,
supra, 943 P.2d at 427 FN. 5. However, “[i]n contrast, expert medical testimony is necessary to
establish . . . the failure to meet standards” of professional practice. Id. (citing Greenwell v. Gill,
supra, 660 P.2d at 1307). Thus, without expert testimony, the trier of fact in such cases is
unable to determine the standard of care, whether a breach of the standard of care occurred, and
whether the breach was a cause of the plaintiff’s injury. See Melville v. Southward, supra, 791
P.2d at 387; see also Teiken v. Reynolds, surpa, 904 P.2d at 1389.
It is undisputed that pursuant to the Joint Scheduling Order in this case, Plaintiffs’
deadline to disclose their expert witnesses was March 31, 2013 and, as of that date, they had
failed to file any such disclosure. [Doc #22, p. 9] Almost two months after the deadline had
passed, however, Plaintiffs filed a pleading entitled “Designation of Experts and Proceedings
Without Any Expert” on May 29, 2012. [Doc # 36] In that Designation, in a section titled No
Experts, Plaintiffs indicated that they didn’t need expert testimony in this case in that damages
awarded by a jury in the state “tractor [accident] case” would be allocated in this case (up to
$2,100,000 based on the state court jury award of $4,200,000, reduced by 50% for contributory
negligence, for the accident that caused the initial injury to his left leg) as established by the
transcript and testimony given in the state case. [Doc #36 ¶1-3] Alternatively, in a section titled
Expert Designation, Plaintiffs belatedly indicate that Dr. Robert “Bert” Messenbaugh, M.D. “is
designated as Plaintiffs’ Expert Orthopedic Surgeon.” [Doc #36 ¶4]
First, as an initial matter, I reject Plaintiffs’ argument that no expert is required in this
case to establish the standard of care, because “ligation of the main artery below the knee cutting
off substantially all blood flow to the lower left leg is asserted to be medical malpractice as
described by Dr. Synn on the trial transcript [in the state case] as error within the common
knowledge of ordinary people.” The law in Colorado is clear that because the subject matter of
negligent conduct by a medical professional is not within the ambit of common knowledge and
experience of ordinary people, “the plaintiff must establish by expert testimony the controlling
standard of care ordinarily possessed and exercised by members of the same schools of medicine
practiced by the defendant, as well as defendant’s failure to adhere to that standard.” Teiken v.
Reynolds, supra, 904 P.2d at 1389 (emphasis added). Without expert testimony regarding the
relevant standard of care, the trier of fact has no means of comparison to determine whether a
legal duty was breached or whether that breach was the proximate cause of a plaintiff’s injury.
Melville v. Southward, supra, 791 P.2d at 387; see also Greene v. Thomas, 662 P.2d 491, 493
(Colo. App. 1982). This is not the case where the duty of care arises from a general principle
that is not peculiar to any one profession, but rather is essential to establish the failure to meet
standards of professional medical practice. See Gorab v. Zook, supra, 943 P.2d at 427 FN. 5.
Although not explicitly argued, to the extent that Plaintiffs assert that expert testimony is
unnecessary via the doctrine of res ipsa loquitur, I disagree. Res ipsa loquitur requires that a
plaintiff present evidence that: the event at issue is the kind which ordinarily does not occur in
the absence of negligence; responsible causes other than the defendant’s negligence are
sufficiently eliminated by the evidence; and the presumed negligence is within the scope of the
defendant’s duty to the plaintiff. Williams v. Boyle, 72 P.3d 392, 398 (Colo. App. 2003)(citing
Ravin v. Gambrell, 788 P.2d 817 (Colo.1990)). Res ipsa loquitur applies to a medical
malpractice claim only when it is judicially determined that a particular unexplained occurrence
creates a prima facie case of negligence without proof of specific misconduct. Williams v.
Boyle, supra, 72 P.3d at 398 (citing Shelton v. Penrose/St. Francis Healthcare Systems, 984 P.2d
623 (Colo.1999)). “The doctrine applies where the cause of injury is so apparent that a lay
person is as able as an expert to conclude that such things do not happen in the absence of
negligence.” Williams v. Boyle, supra, 72 P.3d at 398 (citing Holmes v. Gamble, 624 P.2d 905
(Colo. App. 1980)). Whether the doctrine of res ipsa loquitur is applicable in the first instance is
a question of law for the trial court. Holmes v. Gamble, supra, 624 P.2d at 907 (citing Zimmer v.
Celebrities, Inc., 615 P.2d 76 (Colo. App. 1980)).
I conclude that application of the res ipsa loquitur doctrine is not appropriate or
applicable here. The evidence is not sufficient to conclude that the alleged ligation of the artery
in this case ordinarily does not occur in the absence of negligence without expert testimony.
Compare Williams v. Boyle, supra, 72 P.3d at 398 (where res ipsa loquitur did not apply when a
plaintiff alleged that her kidney damage was caused by prescribed medication) and Holmes v.
Gamble, supra, 624 P.2d at 905 (finding the evidence insufficient to eliminate other possible
responsible causes for bilateral ulnar neuropathy may – instead of a complication of surgery
cause by improper positioning on the operating table – including the plaintiff’s own conduct and
the conduct of third persons), with Mudd v. Dorr, 574 P.2d 97 (Colo. App. 1977)(res ipsa
loquitur applied where surgeon left cottonoid sponge inside patient) and Kitto v. Gilbert, 570
P.2d 544 (Colo. App. 1977)(applied to expulsive loss of eye during cataract surgery).
I next address Plaintiffs’ argument that their untimely designation of Dr. Messenbaugh,
as their medical expert under Fed. R. Civ. P. 26(a)(2), should be allowed as it was substantially
justified or harmless. Fed. R. Civ. P. 37(c)(1) provides that “[i]f a party fails to provide
information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information
. . . to supply evidence on a motion or at a hearing, or at a trial, unless the failure was
substantially justified or is harmless.” The Tenth Circuit has articulated the following four
factors to be considered in determining whether a failure to disclose is justified or harmless:
(1) the prejudice or surprise to the party against whom the testimony is offered;
(2) the ability of the party to cure the prejudice; (3) the extent to which
introducing such testimony would disrupt the trial; and (4) the moving party’s bad
faith or willfulness.
Woodworker’s Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir.
1999). The non-moving party has the burden of showing that they were substantially justified in
failing to comply with Rule 26(a)(1). Sender v. Mann, 225 F.R.D. 645, 655–56 (D. Colo. 2004).
The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the
broad discretion of the district court. Id.
Plaintiffs argue that I should allow their belated designation of Dr. Messenbaugh as their
medical expert, as their failure to timely designate was, in essence, harmless. Specifically, they
argue that Defendant was aware of Plaintiffs’ reliance on Dr. Messenbaugh – as set forth in their
“Amended Certificate of Review as To Claim For Relief #4, Malpractice” – in which Plaintiffs
indicated that they consulted with Dr. Messenbaugh for certification that the filing of their
medical malpractice/professional negligence claim “does not lack substantial justification.” [Doc
#11] See Colo. Rev. Stat. §13-20-702(3)(a)(requiring that the plaintiff to file a certificate of
review in any action against a licensed professional based upon negligence, stating that the
plaintiff has consulted with an expert who has concluded the claim does not lack substantial
justification). Plaintiffs contend that even if they did not timely disclose Dr. Messenbaugh as
their expert, Defendant was aware that Plaintiffs had “relied” upon his opinion to review the case
and, as such, “there is no surprise of his involvement.”
I first note that Plaintiffs have, yet again, neglected to file a motion seeking the relief
requested; specifically, they failed to properly request leave from this court to accept their
belated disclosure as timely filed. Instead, such request for relief is improperly made in their
response to Defendant’s motion for summary judgment in violation of Fed. R. Civ. P. 7(b)(1)
and D.C.Colo. LCivR 7.1C, which requires that a motion “shall be made in a separate paper” and
“shall not be included in a response or reply to the original motion.”
Nonetheless, even if Plaintiffs properly requested leave to file their expert designation
out of time, I find that the grounds for such request are insufficient under Fed. R. Civ. P.
37(c)(1). Plaintiffs fail to supply me with any reason or explanation justifying their belated
filing, and the filing fails to meet the requirements of an expert designation set forth in Fed. R.
Civ. P. 26(a)(2)(B). As such, I conclude that Plaintiffs’ failure to comply with its obligations
under Rule 26(e)(1) was not substantially justified. Moreover, I reject Plaintiffs’ contention that
the use of Dr. Messenbaugh in its Certificate of Review – as is required by Colorado law in order
to substantiate the merits of filing a professional negligence lawsuit – somehow provided notice
to Defendant that Plaintiffs would be using him to provide expert testimony related to the
applicable standard of care, whether Defendant breached that standard of care, and whether the
breach caused or was a proximate cause of the injury. As such, I also do not find that Plaintiffs’
non-compliance was harmless. I conclude, in the exercise of my discretion, that even if
Plaintiffs properly requested leave to file their expert designation out of time, that the grounds
for such request are insufficient under Fed. R. Civ. P. 37(c)(1). See Nguyen v. IBP, Inc., 162
F.R.D. 675, 680 (D. Kan. 1995)(indicating that the burden of establishing substantial
justification and harmlessness under Fed. R. Civ. P. 37(c)(1) is upon the party who is claimed to
have failed to make the required disclosure); see also Fed.R.Civ.P. 37(c)(1) Advisory Committee
Notes, 1993 Amendments (noting that the sanction of prohibiting expert witness testimony is
limited to violations that are without substantial justification or are not harmless in order to
“avoid unduly harsh penalties in a variety of situations: e.g., the inadvertent omission from a
Rule 26(a)(1)(A) disclosure of the name of a potential witness known to all parties; the failure to
list as a trial witness a person so listed by another party; or the lack of knowledge of a pro se
litigant of the requirement to make”).
Therefore, I conclude that Plaintiffs’ failure to timely designate an expert witness to
support his malpractice/professional negligence claim results in a finding that they are unable to
make out their prima facie case, and Defendant is entitled to summary judgment for lack of
evidence on essential elements of the nonmovant’s claim. See Adler v. Wal–Mart, supra, 144
F.3d at 671; Tracz ex rel. Tracz v. Charter Centennial Peaks Behavioral Health Systems, Inc., 9
P.3d 1168, 1173 (Colo. App. 2000)(affirming the summary judgment on a professional
negligence claim when it found that expert testimony was required, and the plaintiff failed to
endorse an expert witness); Melville v. Southward, supra.
Based on my ruling that Defendant is entitled to summary judgment in his favor on
Plaintiffs’ professional negligence claim, I do not reach the merits of – and thus deny as moot –
Defendant’s Second Motion for Summary Judgment [Doc #48] in which he argues that Plaintiffs
are barred from seeking relief in this case by the doctrine of issue preclusion, in that issue of
causation was previously decided by the jury in the state case.
V. Loss of Consortium Claim
As to Plaintiff Jennifer Shinn’s pending loss of consortium claim, I note that it is a
derivative claim and is subject to the same defenses available to the “underlying claim.” Terry v.
Sullivan, 58 P.3d 1098, 1102 (Colo. App. 2002). As such, a derivative claim “is destroyed” if
the underlying personal injury claim – here, the professional malpractice claim – is unsuccessful.
Kinsella v. Farmers Ins. Exchange, 826 P.2d 433, 435 (Colo. App. 1992). So, if an injured
person’s claim fails on substantive grounds, the spouse’s claim for loss of consortium also will
fail. See Schwindt v. Hershey Foods Corp., 81 P.3d 1144, 1148 (Colo. App. 2003); Covert v.
Allen Group, Inc., 597 F.Supp. 1268, 1269–70 (D.Colo. 1984). As such, I dismiss Jennifer
Shinn’s pending loss of consortium claim.
VI. Plaintiffs’ Previously-Dismissed Claims
Finally, I reject Plaintiffs’ request – set forth in a motion entitled “First Amendment to
Supplemental Pleading #1 to Amend the Complaint” [Doc #71] – that his previously-dismissed
claims for Medical Battery (Claims for Relief No. 1 and 2) and Outrageous Conduct (Claim for
Relief No. 5) be reinstated.
In this motion, Plaintiffs rely on Fed. R. Civ. P. 15(a), which allows for the amendment
of a pleading prior to trial. Although Plaintiffs argue they are entitled to amend “as a matter of
course” pursuant to Fed. R. Civ. P. 15(a)(1), such amendment is only allowed when within “21
days after serving it.” Despite Plaintiffs’ unintelligible argument to the contrary – asserting that
“Plaintiff filed his Response to Defendants Motion for Summary Judgment #2 which featured a
request for leave of Court to file this Motion, but no response was ever received so this is filed as
a matter of course” [Doc #71, pg. 2] – the request to amend here was first filed on December 2,
2013, almost nineteen months after Plaintiffs initially filed their complaint in May of 2012. [Doc
As a result, the applicable rule of amendment is Fed. R. Civ. P. 15(a)(2), which provides
that “[i]n all other cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Although the Court should freely give leave when justice so
requires, the rules do not grant the parties unlimited rights of amendment. A motion to amend
may be denied on the grounds of undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, or futility of
amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The grant
of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court,
and will not be reversed absent an abuse of discretion. Minter v. Prime Equipment Co., 451 F.3d
1196, 1204 (10th Cir. 2006)(citations omitted).
As to Plaintiffs’ Medical Battery claims, I first note that these claims were dismissed
with prejudice on Defendant’s motion to dismiss for failure to state a claim – on the basis that
such claims were barred by the applicable statute of limitations – and thus cannot be “reinstated”
by a motion to amended the complaint. I further note that my dismissal of these claims was
grounded on Plaintiffs’ express concession that the one-year statute of limitations applicable to
the tort of battery barred their Medical Battery claims. To the extent that Plaintiffs are now
arguing that the one-year statute of limitations does not apply, they do not move to seek
reconsideration of my previous ruling. Additionally, a motion for reconsideration is limited to a
narrow set of circumstances and “is appropriate where the court has misapprehended the facts, a
party’s position, or the controlling law. . . . [i]t is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in prior briefing.” Servants of the
Paraclete v. John Does, I–XVI, 204 F.3d 1005, 1012 (10th Cir. 2000)(citing Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir.1991)).
In addition, Plaintiffs’ contention that their battery claims are now somehow based on
“new facts” – revealed during Plaintiff Michael Shinn’s own deposition – I note that Plaintiffs
have not provided me with the substance of such “facts,” nor have they plead them in the
proposed amended complaint which only restates the claims, in there entirety, as they were plead
prior to dismissal. See generally Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997)
(ruling that a court may not “supply additional factual allegations to round out a plaintiff’s
complaint”). Based on the foregoing, in the exercise of my wide discretion and under these
circumstances, I deny Plaintiffs’ request to the extent they are seeking leave to amend their
complaint in order to reinstate their claims of Medical Battery that were previously dismissed
As to the request to reinstate Plaintiffs’ fifth claim for Outrageous Conduct, I note that
this claim was previously dismissed without prejudice, based upon Plaintiffs’ request, on the
basis that a claim for exemplary damages such as this one may not be plead until “after the
exchange of initial disclosures and after a plaintiff establishes prima facie proof of a triable
issue” pursuant to Colo. Rev. Stat § 13-21-102(1.5)(a). The existence of a triable issue on
liability for exemplary damages is established by showing a reasonable likelihood that the issue
will ultimately be presented to the jury for resolution. Leidholt v. District Court, 619 P.2d 768,
771 N .3 (Colo. 1980); see also American Economy Ins. Co. v. William Schoolcraft, M.D., P.C.,
However, Plaintiffs cannot establish prima facie proof of a triable issue related to their
claim for Outrageous Conduct. Specifically, Plaintiffs have not provided me with allegations in
support of a determination that Defendant’s “conduct has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society.” Bauer v. Southwest Denver Mental
Health Center, Inc., 701 P.2d 114, 118 (Colo. App. 1985); see also Culpepper v. Pearl Street
Building, Inc., 877 P.2d 877 (Colo. 1994); Meiter v. Cavanaugh, 580 P.2d 399 (Colo. App.
1978)(indicating that outrageous conduct can be found only if the conduct is so outrageous in
character and so extreme in degree as to go beyond all possible bounds of decency).
In their proposed claim for Outrageous Conduct, Plaintiffs assert that “[i]n addition to the
facts revealing that [Defendant] cut 2 or more arteries, caused a 9 ½ hour repair operation, he
also ended the first medical battery by sewing up the Plaintiff, Michael Shinn, and announcing
that ‘the operation went well.”” Furthermore, they allege that: “Defendant was wholly reckless
in declaring that the first operation went well. He knew or should have known [that it did not go
well] because of his pre-operation description of the risks, dangers, and out of bounds nature of
the sawing off of the ball of bone on [Plaintiff’s] left below-the-knee fibula, which he did despite
his own declarations.” Finally, Plaintiffs assert that “[t]he inference is that Defendant decided to
take the easy way to harvest boney material for grafting rather than go to the hip area to find
plenty of bone for grafting, although it would require a new incision and much more work: his
original plan was to go the hip bone for graftable bone, or to the bone bank.” [Doc # 71, ¶ 3335]
Such allegations do not, as a matter of law, rise to the level of a determination by a
reasonable person, of conduct is so outrageous in character and so extreme in degree as to go
beyond all possible bounds of decency. See Van Leeuwan v. Nuzzi, 810 F.Supp. 1120, 1124
(D.Colo. 1993)(finding that the facts “do not approach the level of gravity and indecency of
other cases held not to state a claim for outrageous conduct” in a straightforward malpractice
case with no extenuating circumstances); Meiter v. Cavanaugh, supra, 580 P.2d at 401 (noting
that whether particular conduct is sufficiently outrageous to be actionable is normally a question
for the jury,“it is for the court to determine, in the first instance, whether reasonable persons
could differ on this issue”). More importantly, as discussed above, Plaintiffs are unable to make
out their underlying prima facie case for their claim of professional negligence due to lack of
expert testimony as to the applicable standard of medical care. As such, they cannot – as a
matter of law – make out a case that such unproved medical conduct was outrageous in nature.
As a result, I find that Plaintiffs’ request to amend their complaint – in order to add the
previously-dismissed claims for Medical Battery and Outrageous Conduct – should be denied as
futile. See generally Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999)(stating that “[t]he
futility question is functionally equivalent to the question whether a complaint may be dismissed
for failure to state a claim”). In so doing, I deny Defendant’s request, set forth in his response to
this motion, that he be awarded reasonable attorney fees and the costs incurred in responding to
this “unintelligible” and “garbled” motion.
ACCORDINGLY, I ORDER as follows:
1) I DENY Plaintiffs’ Motion For Summary Judgment, F.R.C.P. 56 [Doc #59] and
Plaintiffs’ Motion to Accept the $4,200.000.00 City and County of Denver, Colorado Judgment
herein as the Total Amount Awardable to the Plaintiff, Michael Shinn, Subject to Allocation
against Defendant Dr. Melberg by the Court at Trial [Doc #42];
2) I GRANT Defendant’s first Motion for Summary Judgment in his favor [Doc #37, and
I DENY AS MOOT Defendant’s Second Motion for Summary Judgment [Doc #48]; and
3) I DENY Plaintiffs’ First Amendment to Supplemental Pleading #1 To Amend the
Complaint. [Doc #71]
As such, I ENTER JUDGMENT in favor of Defendant on all Plaintiffs’ claims, and I
DISMISS this case, with COSTS AWARDED to Defendant.
30 , 2014 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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