United States District Court, D. Colorado
THE ESTATE OF JOHN PATRICK WALTER, by and through its personal representative, DESIREE' Y. KLODNICKI, Plaintiff,
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF FREMONT; ALLEN COOPER, in his official capacity as Fremont County Sheriff; JAMES BEICKER, individually; TY MARTIN, individually; and JOHN RANKIN, individually, Defendants.
ORDER RESERVING RULING ON DEFENDANTS' MOTION TO
William J. Martínez Judge.
of 42 U.S.C. § 1983, this lawsuit addresses whether John
Patrick Walter (“Walter”) received
unconstitutionally deficient medical care while in pretrial
detention in Fremont County, Colorado, eventually causing his
death. Specifically, Walter was deprived of a prescription
anti-anxiety medication (Klonopin), allegedly creating severe
withdrawal symptoms that eventually killed him. Walter's
Estate, through its personal representative
(“Estate” or “Plaintiff”), originally
sued numerous individuals and entities, but has now dismissed
all defendants save for Fremont County (through its board of
commissioners), Sheriff Allen Cooper (in his official
capacity only), former sheriff James Beicker (in his
individual capacity only), former undersheriff Ty Martin, and
detention center commander John Rankin (together,
“Defendants, ” but sometimes referred to in
quoted materials as the “County Defendants”).
before the Court is Defendants' Motion for Leave to Amend
their Answer, Defenses, and Affirmative Defenses. (ECF No.
304.) The pertinent background is as follows.
Court entered the Scheduling Order on May 31, 2016, setting
an August 1, 2016 deadline for amendment of pleadings. (ECF
No. 81 at 20.) The Estate filed its currently operative
complaint, the Second Amended Civil Rights Complaint and Jury
Demand (“Complaint”), on June 16, 2016. (ECF No.
84.) Defendants answered the Complaint (“Answer”)
on June 30, 2016. (ECF No. 88.)
Answer lists eighteen affirmative defenses. (Id. at
39-41.) The affirmative defenses do not include the concepts
of offset or comparative diminishment based on other
parties' settlements or amounts owed, or any equivalent
concept. The last affirmative defense, however, is an
announcement that “Defendants incorporate by this
reference all applicable affirmative defenses and defenses
asserted by any other Defendant in this action.”
(Id. at 41, ¶ 18.)
8, 2016, a group of defendants usually referred to by the
parties as the “CHC Defendants” answered the
Complaint. (ECF No. 93.) Among the CHC Defendants'
affirmative defenses was that “Plaintiff's injuries
and damages, if any, are the result of Decedent's own
acts or omissions independently or in combination with the
acts or omissions of third parties, which bars or
comparatively diminishes Plaintiff's right of recovery
against CHC Defendants.” (Id. at 34, ¶
9.) In a separate section following the affirmative defenses,
the CHC Defendants also explicitly asserted their rights to
contribution under Colorado law “[i]n the event of a
settlement between Plaintiffs and any other defendant.”
(Id. at 35-36.)
August 1, 2016 deadline for amendment of pleadings came and
went with no further amendments from any party.
Final Pretrial Order entered in December 2017, and Defendants
“incorporate[d] all denials and defenses asserted [in
the Answer]” into that order. (ECF No. 204 at 10.)
October and November 2018, the CHC Defendants settled with
the Estate for $4.25 million. (See ECF Nos. 280,
282-86, 288-90; ECF No. 304 ¶ 4.) The final stipulation
of dismissal in this regard was filed on November 26, 2018.
(ECF No. 290.)
filed the motion currently under consideration on June 21,
2019. (ECF No. 304.) In light of the settlement, Defendants
ask to “expressly include [the offset] defense”
as part of the Answer (id. ¶ 8), apparently in
contrast to the incorporation-by-reference already noted.
More specifically, Defendants seek leave to amend the Answer
to add the following affirmative defense:
“Plaintiff's claims are barred or limited by the
doctrine of offset, including, but not limited to, offset as
a result of settlement with former parties to this litigation
or third parties.” (ECF No. 304 at 6.) Defendants
further state that an offset defense would have no effect on
trial because Defendants would only assert it through a
posttrial motion, in the event of an adverse jury verdict.
(Id. ¶ 13.)
is scheduled to begin on September 30, 2019. (ECF No. 294.)
motion raises several potentially difficult issues,
• whether it is permissible to incorporate other
parties' affirmative defenses by reference;
• whether offset is a permissible affirmative defense to
§ 1983 damages, see, e.g., Restivo v.
Hessemann, 846 F.3d 547, 581-87 (2d Cir. 2017) (holding
that offset is ...