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Estate of Walter v. The Board of County Commissioners of County of Fremont

United States District Court, D. Colorado

August 7, 2019

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.


          William J. Martínez Judge.

         By way 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”).

         Currently 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.

         The 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.)

         The 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.)

         On July 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.)

         The August 1, 2016 deadline for amendment of pleadings came and went with no further amendments from any party.

         The 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.)

         In 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.)

         Defendants 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.)

         Trial is scheduled to begin on September 30, 2019. (ECF No. 294.)

         Defendants' motion raises several potentially difficult issues, including:

• 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 ...

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