United States District Court, D. Colorado
Brooke Jackson United States District Judge
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.
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.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
Motion for Summary Judgment.
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.