United States District Court, D. Colorado
A. BRIMMER, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendants' Motion for
Summary Judgment [Docket No. 43].
Jennifer and Jason DeBuhr bring this medical malpractice
action against defendants Warren M. Hern and the Boulder
Abortion Clinic, P.C. (the “Clinic”), alleging
injuries as a result of the medical treatment provided by Dr.
Hern at the Clinic. Docket No. 1.
discovered through an MRI study that their fetus suffered
from severe cerebral abnormalities that would reduce its life
expectancy to a year. Defendants' Statement of Undisputed
Material Facts (“DSUMF”) 1. They decided to
terminate the pregnancy. Id. The treating physician
who discovered the fetal brain injury, Andrew Robertson,
M.D., referred plaintiffs to Dr. Hern. DSUMF 6. The dilation
and extraction abortion procedure was performed at the Clinic
by Dr. Hern in December 2013. DSUMF 2; Plaintiffs'
Response to Defendants' Statement of Undisputed Facts
(“PRDSUF”) 2; Docket No. 47 at 1, ¶ 2. The
parties dispute the gestational age of the fetus at the time
the procedure was performed, but plaintiffs do not dispute
that the fetal abnormality was discovered during the end of
Ms. DeBuhr's second trimester of pregnancy. DSUMF 1;
2015, Ms. DeBuhr began to experience bleeding and had a
hysterectomy. DSUMF 3. Ms. DeBuhr claims that the indication
for her hysterectomy was the identification of fetal tissue
remaining from the abortion. Id.
November 30, 2015, plaintiffs filed their complaint,
asserting claims of medical malpractice, failure to warn,
negligent misrepresentation, and loss of consortium. Docket
No. 1 at 6-11. Plaintiffs have endorsed two experts to
provide opinion testimony on the appropriateness of the
medical care provided by Dr. Hern. Regan M. Theiler, M.D.,
PhD is an obstetrician/gynecologist who testified at her
deposition that abortions at twenty-five weeks gestational
age were outside the scope of her expertise and she would not
render expert opinions on such abortions. PRDSUF 5, 7; Docket
No. 43-2 at 15-16, 118:24-119:23. Dr. Robertson is an
obstetrician/gynecologist who has not performed any induced
abortions after 2009 and has not performed any abortions
after twenty weeks gestational age because such abortions are
illegal in Nebraska, where he practices. PRDSUF 5-6; Docket
No. 47 at 2, ¶¶ 5-6.
February 28, 2017, defendants filed their motion for summary
judgment as to each of plaintiffs' claims. Docket No. 43
at 1, 12. Defendants claim that Drs. Theiler and Robertson
are unqualified under Colo. Rev. Stat. § 13-64-401 to
testify to the standard of care for the procedure performed
by Dr. Hern. Id. at 5. Defendants note that such
testimony is required in medical malpractice cases as an
essential element of a malpractice claim. Id. at
3-4. Defendants also argue that plaintiffs did not endorse
any expert to testify that Dr. Hern did not appropriately
secure informed consent in support of plaintiffs' failure
to warn claim. Id. at 11-12. Defendants claim that,
since plaintiffs have failed to support these claims with
qualified expert testimony, defendants are entitled to
summary judgment. Id. at 12.
STANDARD OF REVIEW
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs.,
Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only
disputes over material facts can create a genuine issue for
trial and preclude summary judgment. Faustin v. City
& Cty. of Denver, 423 F.3d 1192, 1198 (10th Cir.
2005). An issue is “genuine” if the evidence is
such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d
837, 839 (10th Cir. 1997).
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (quoting Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.
1998) (internal quotation marks omitted)). “Once the
moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). The nonmoving party may not rest solely on
the allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. at 324;
see Fed. R. Civ. P. 56(e). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an
inference of the presence of each element essential to the
case.” Bausman, 252 F.3d at 1115 (citation
omitted). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to
the non-moving party. Id.; see McBeth v.
Himes, 598 F.3d 708, 715 (10th Cir. 2010).
Applicable Colorado Medical Malpractice Law
Colorado, “[a] medical malpractice action is a
particular type of negligence action.” Day v.
Johnson, 255 P.3d 1064, 1068 (Colo. 2011) (citing
Greenberg v. Perkins, 845 P.2d 530, 534 (Colo.
1993)). “Like other negligence actions, the plaintiff
must show a legal duty of care on the defendant's part,
breach of that duty, injury to the plaintiff, and that the
defendant's breach caused the plaintiff's