United States District Court, D. Colorado
SUZANNA F. DAILEY, Plaintiff,
NIKOS HECHT, Defendant.
Brooke Jackson United States District Judge.
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. Notwithstanding the parties'
differences, however, counsel should be able to rise above
that and resolve most of these issues between them as
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.
Plaintiff's Motion for Independent Medical
Examination, ECF No. 65.
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.
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.
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.
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.
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.
Plaintiff's Unopposed Motion to Restrict Access, ECF
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
[Defendant's] Unopposed motion to Restrict Access to
Doc. #64-1, ECF No. 69.
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
Plaintiff's Motion for ...