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Dailey v. Hecht

United States District Court, D. Colorado

January 6, 2017

SUZANNA F. DAILEY, Plaintiff,
v.
NIKOS HECHT, Defendant.

          ORDER

          R. Brooke Jackson United States District Judge.

         The Court here addresses nine new non-dispositive pretrial motions, having previously addressed four similar motions in an order issued on November 9, 2016. This level of motion practice is excessive and unnecessary. The subject matter of this lawsuit involves a great deal of animosity and distrust between the parties and, apparently, the lawyers.[1] Notwithstanding the parties' differences, however, counsel should be able to rise above that and resolve most of these issues between them as professionals.

         BACKGROUND

         Plaintiff, Suzanna F. Dailey, claims that on March 25, 2014, while she was vacationing in Mexico, she was assaulted and raped by the defendant, Nikos Hecht. Mr. Hecht defends on the ground that what transpired between them was consensual. In the previous order the Court (1) granted the defendant's motion to require plaintiff to submit to an Independent Medical Examination with conditions described in the order; (2) rejected defendant's proposed protective order and described the contours of an order the Court would accept; (3) ordered plaintiff to provide certain medical releases; and (4) granted plaintiff's motion to amend her complaint. ECF No. 57.

         PENDING MOTIONS

         A. Plaintiff's Motion for Independent Medical Examination, ECF No. 65.

         Plaintiff claims that she tested positive for herpes after the incident but had never tested positive for herpes before. She infers that the disease was transmitted during the incident. She asks the Court to order Mr. Hecht to submit to an independent blood draw and test for HSV 2 infection.

         Mr. Hecht attaches to his response in opposition the affidavit of Timothy Kruse, M.D. ECF No. 73-1. Dr. Kruse states that he went to Mr. Hecht's home on October 19, 2016, reviewed Mr. Hecht's driver's license to confirm that the individual present was Nikos Hecht, personally drew blood, and sent the sample to the Valley View Hospital from which it was shipped to the Mayo Clinic. There an HSV 2 AB IGG blood test, described by Dr. Kruse as the most reliable test for HSV 2, was performed. The results were negative. Dr. Kruse adds that HSV 2 is a virus that cannot be cured, and that this test will detect the presence of HSV-2 antibodies in the blood even if the occurrence was many years ago and patient is not symptomatic. Id.

         In her reply plaintiff indicates that she does not trust a blood draw “performed by a physician hand-picked by Defendant, performing a house call.” ECF No. 83 at ¶1. She reports that Mr. Hecht has in the past been accused of faking drug (urine) tests and underreporting his drug use. She speculates that the sample might have been taken from a sibling who “allegedly provided urine samples on Defendant Hecht's behalf to allow Defendant Hecht to pass court-ordered drug tests.” Id. at ¶3.

         A house call by a doctor these days is unusual, and it appears that Dr. Kruse did not know Mr. Hecht if he needed to view a driver's license to confirm his identity. That is not to say that Dr. Kruse was necessarily duped, nor do I have any reason to question his integrity. Furthermore, plaintiff's primary basis for her claim regarding the drug testing is the affidavit of Mr. Hecht's ex-girlfriend who is herself suing Mr. Hecht in another case in this district. Nevertheless, given the unusual circumstances of the blood draw, and the fact that blood draws are minimally invasive, and the fact that whether Mr. Hecht has the HSV-2 virus is a potentially significant fact, I find that there is good cause to require Nikos Hecht to submit to a blood draw taken under normal circumstances in a completely neutral setting. An independent test is the best way to put this issue to rest, one way or the other. The motion is granted.

         Counsel are directed to confer (talk, not email) concerning an appropriate time and place (in Pitkin County). Defendant is directed to cooperate fully so as to get this done promptly. If there are any problems needing the Court's attention, do not file more motions. Contact chambers and set a telephone hearing. This should not, however, be necessary.

         B. Plaintiff's Unopposed Motion to Restrict Access, ECF No. 68.

         Plaintiff asks the Court to restrict public access to a parental responsibility evaluation report filed in the Pitkin County District Court in a domestic relations case between Mr. Hecht and his former wife and filed in this case as ECF No. 64-1. She also asked that public access to the redacted portions of two paragraphs in the motion itself, also related to the parental responsibility evaluation, be restricted. Colorado law dictates that such reports are confidential unless public access is authorized by court order. C.R.S. § 14-10-127. This report contains information concerning Mr. Hecht, his former wife, their children, and others that is of a private, personal nature in which the public has little if any legitimate interest in the present case. The motion is granted.

         C. [Defendant's] Unopposed motion to Restrict Access to Doc. #64-1, ECF No. 69.

         Defendant asks that public access to the same parental responsibility evaluation that was the subject of plaintiff's motion, ECF No. 68, be temporarily restricted until counsel has an opportunity to file a motion to restrict. The motion is now moot.

         D. Plaintiff's Motion for ...


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