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Barajas v. Weiss

United States District Court, D. Colorado

February 2, 2018

GARY M. WEISS, M.D., Defendant.


          R. Brooke Jackson United States District Judge

         This matter is before the Court on Defendant Gary Weiss' Motion for Summary Judgment, ECF No. 55, and Motion to Transfer Venue, ECF No. 60. For the reasons below, the Court DENIES these motions.

         I. BACKGROUND

         On May 4, 2009 Plaintiff Marie Barajas visited the medical office of Defendant Gary Weiss, M.D., for an appointment concerning her bilateral leg numbness. ECF No. 1 at ¶ 17. Dr. Weiss ordered several MRIs and performed a series of tests, and on June 4, 2009 he informed Ms. Barajas that he highly suspected that she had multiple sclerosis (“MS”). Id. at ¶ 22. Throughout the summer of 2009, Ms. Barajas underwent a lumbar puncture and several more MRIs, and on August 31, 2009 Dr. Weiss told Ms. Barajas-who was then only 28 years old- that she had relapsing and remitting MS, a permanent and debilitating disease with no known cure. Id. at ¶¶ 24, 26-29, 32. From August 31, 2009 until August 19, 2013, Ms. Barajas received continuous treatment from Dr. Weiss for her MS. Id. at ¶ 34. This treatment included daily oral medications, daily injections, and 21 additional MRI scans. Id. at ¶¶ 35-39. Dr. Weiss conducted each of these MRIs with a machine that he owned, and he interpreted each of the scans himself. Id. at ¶ 40.

         On July 17, 2013 Dr. Weiss sold his medical practice, including the MRI machines, to Dr. Mark Pithan. Id. at ¶ 41. Ms. Barajas presented for an appointment with Dr. Pithan on October 15, 2013 but continued her treatment as prescribed by Dr. Weiss. Id. at ¶¶ 42, 43. However, on April 4, 2014 Dr. Pithan discontinued Ms. Barajas' MS medication regime, and on May 13, 2014 Dr. Pithan questioned Dr. Weiss' diagnosis of MS and recommended that Ms. Barajas get a second opinion. Id. at ¶ 44.

         On June 18, 2014 Ms. Barajas sought a second opinion from Dr. John Corboy, who noted that he was evaluating Ms. Barajas because Dr. Pithan was “concerned [that] the [diagnosis of] MS is inaccurate.” Id. at 7. Without reviewing any MRI imaging, Dr. Corboy opined that Ms. Barajas' medical history, physical exam, and lab analyses were most consistent with multiple somatic complaints. ECF No. 55 at ¶¶ 6-8. On August 29, 2014 Ms. Barajas presented to Dr. Kristen Graesser for a third opinion, and Dr. Graesser noted that after an “extensive review of [Ms. Barajas'] previous records, review of the MRI images, and personal review of her history . . . there is no clinical evidence of multiple sclerosis. Having had 2 negative lumbar punctures, the diagnosis is even less likely.” ECF No. 1 at ¶¶ 46, 50.

         On September 22, 2014 Dr. Weiss entered into a settlement with the Colorado Medical Board after a different patient complained about his treatment of their relapsing and remitting MS. Id. at ¶ 15. Dr. Weiss agreed to never again renew his license to practice medicine in the State of Colorado. Id.

         On August 29, 2016 Ms. Barajas filed her complaint against Dr. Weiss in this case. ECF No. 1. She alleges that she has suffered numerous side effects due to the MS medications, including but not limited to: fatigue, sensitivity to heat, night sweats, coughing, wheezing, lipoatrophy, scarring, and poor cognition. Id. at ¶ 52. Further, she alleges she suffered from anxiety, depression, and poor sleep due to her belief that she had MS. Id. at ¶ 53.

         On October 26, 2017 Dr. Weiss moved for summary judgment, ECF No. 55, and on December 21, 2017 he moved to transfer the case to the Middle District of Florida, where he now resides and practices medicine. ECF No. 60. The motions have been fully briefed and are ripe for review.


         The Court may grant summary judgment if “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). A fact is “material if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (internal quotation marks and citation omitted). An issue of material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citation omitted).

         III. ANALYSIS

         A. Motion for Summary Judgment.

         In his motion for summary judgment, Dr. Weiss asserts that Ms. Barajas' claims are barred by both the Colorado statute of limitations and the statute of repose. ECF No. 55. After reviewing the briefing and relevant law, I DENY Dr. ...

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