Free Proposed Pretrial Order - District Court of Colorado - Colorado

Case 1:04-cv-00808-MJW-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00808-MJW-BNB ALBERTO ALICEA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES A. Date of Conference: July 15, 2005 @ 9:00 a.m. B. Parties: 1. William G. Fischer, Reg. No. 6999 1524 West Colorado Avenue Colorado Springs, CO 80904 Telephone: (719) 475-2300 Fax: (719) 227-1112 Counsel for Plaintiff E-Mail Address: [email protected] 2. KURT J. BOHN, Esq. Assistant United States Attorney 1225 Seventeenth Street Suite 700 Denver, CO 80202 Telephone: (303) 454-0100

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2. JURISDICTION This action arises under the FEDERAL TORT CLAIMS ACT, Sections 2671 through 2680 of Title 28 of the United States Code (28 USC Section 2671-2680). This Court is vested with jurisdiction pursuant to Section 1346(b) of title 28 of the United States Code (28 USC Section 1346(b). 3. CLAIMS AND DEFENSES PLAINTIFF: Plaintiff, Alberto Alicea, sustained serious, permanent irreparable damage to his right lingual nerve and mild traumatic neuropathy of the right inferior aveoler nerve when he was operated on October 25, 2001, at Veteran's Hospital, Denver, Colorado, by Stephen J. Colm, DMD. Because of this injury, there is a profound altered sensation to the right anterior two-thirds of the tongue of the Plaintiff, which is normally innervated by the lingual nerve. This nerve also allows for taste, which has been disrupted by the injury to this nerve. The oral surgery performed by Dr. Colm was below the standard of care in that the lingual nerve was severely damaged during the removal of tooth #32. The lingual nerve was severely damaged through the negligence of Dr. Colm, as the lingual nerve is not in the field of surgery and should not be encountered during the removal of a third molar. Dr. Colm failed to take proper precautions, and as a result, the lingual nerve was severely damaged causing a permanent numbness and loss of taste to the right side of the tongue of the Plaintiff. Plaintiff has suffered and will continue to suffer pain, mental anguish, bodily injury, permanent impairment and loss of enjoyment of life. 2

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DEFENDANT: Defendant alleges that the care provided to Alberto Alicea on and about October 2001, was proper and within the standard of care. Specifically, Mr. Alicea was appropriately treated for impacted teeth at the Denver Veterans Administration Medical Center. Mr. Alicea was properly advised of the treatment options available to him and his care was managed appropriately. Defendant specifically incorporates the additional defenses pled in its answer. On October 25, 2001, Dr. Steven Colm, along with Dr. Aaron Schamback, performed the surgical extraction of teeth numbers 16, 17, 20, and 32. The procedure was performed under general anesthesia. Following the successful operation, Mr. Alicea initially reported numbness in tongue. However, over time, Mr. Alicea reported improvement in his senses. To the extent that Mr. Alicea experienced or continues to experience a reduced or lack of taste and sensation in the tongue, it is not the result of any negligent treatment by the surgical team. Rather, there are many potential causes of reduced sensation that can occur absent any substandard medical care. 4. STIPULATIONS None 5. PENDING MOTIONS None 6. WITNESSES Plaintiff a. Non-expert witnesses. 1. Witnesses who will be present at trial: 3

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a.

Alberto Alicea, Plaintiff 713 Lansing Drive Colorado Springs, CO 80909 (719) 573-6230 Mr. Alicea will testify concerning his sensation in his tongue prior to October 25,

2001 when he was operated on by Dr. Stephen J. Colm, DMD. He will testify as to his loss of sensation, to include his loss of taste since the surgery, in particular, the right side of his tongue. He will testify as his immediate loss of sensation as to the sensitivity as to pain and loss of taste and that this has not improved since the date of the operation. He will acknowledge that the loss of sensation to the right lower lip has improved significantly since the date of the operation. He is expected to further testify as to the impact of his loss of sensation and taste and their impact on his enjoyment of life. b. Marcia Alicea 713 Lansing Drive Colorado Springs, CO 80909 (719) 573-6230 Marcia is the wife of Alberto Alicea. She is expected to testify as to her personal observations of Mr. Alicea prior to the surgery on October 25, 2001 and the changes that she has noticed in Mr. Alicea since the surgery. She is expected to testify as to how all the above impacted on his quality of life. c. Stephen J. Colm, DDS Denver VA Medical Center 1055 Clermont Street (160) Denver, CO 80220 (303) 399-8020

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Dr. Colm will testify concerning his care and treatment of Mr. Alicea. It is expected that Dr. Colm will testify as to the complaints of Mr. Alicea immediately after the surgery on October 25, 2001. 2. Witnesses who may be present at trial: None 3. Witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None. b. Expert witnesses. 1. Witnesses who will be present at trial: a. Robert W. Staley, Jr., D.D.S. 4372 Liberty Road South Salem, Oregon 97302 (541) 928-4531

Dr. Staley will testify consistent with his report and his deposition taken in this case. He will testify that he has reviewed the relevant dental records, to include x-ray films, the deposition of Dr. Colm, the deposition of Dr. Pogrel and the deposition of Dr. Aragon. He will testify that the care provided to Mr. Alicea by Dr. Colm was below the standard of care and that as a result, the lingual nerve of Mr. Alicea was severely damaged, causing a permanent loss in sensation of his right half of his tongue to include sensation to pain and sensation to taste. Dr. Staley is expected to testify concerning the anatomy involved, the appropriateness of the procedure, and the procedure itself and how the deviation from the standard of care caused this injury. Dr. Staley's opinions will be

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expresses to a reasonable degree of dental certainty. Dr. Staley will also testify in rebuttal to the criticism asserted by Defendant's expert, Dr. Michael Anthony Pogrel, both in his deposition and at trial. 2. Witnesses who may be present at trial: a. Dr. Steven B. Aragon Dry Creek Oral, Head & Neck and Facial Surgery 125 Inverness Drive East, Suite 100 Englewood, CO 80112 (303) 773-8228

Dr. Aragon is expected to testify as to his examination of Mr. Alicea on November 12, 2002 and December 18, 2002. He will testify as to his finding that Mr. Alicea has suffered a permanent injury to his tongue as a result of the lingual nerve being severely injured. He is further expected to testify consistent with his deposition taken in this case and his medical records. 3. Witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None. Defendant a. Non-expert witnesses. 1. Witnesses who will be present at trial: a. Stephen J. Colm, DDS Denver VA Medical Center 1055 Clermont Street (160) Denver, CO 80220 (303) 399-8020

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Dr. Colm will testify concerning his care and treatment of Mr. Alicea. Dr. Colm will testify that his care was appropriate and within the standard of care. b. Aaron Schamback, DDS 1949 SE Port St. Lucie Blvd. Port St. Lucie, FL 34952 (772) 398-0990

Dr. Schamback will testify concerning his care and treatment of Mr. Alicea. Dr. Schamback will testify that his care was appropriate and within the standard of care. 2. Witnesses who may be present at trial: d. Alberto Alicea Plaintiff

Plaintiff may testify concerning the care and treatment he received at the DVAMC and the CSVA Clinic. e. Luis W. Diaz, DDS VA Outpatient Clinic 2900 Veterans Way Viera, FL 32940 (321) 637-3788 x2822

Dr. Diaz will testify concerning his care and treatment of Mr. Alicea, and the subjective reports made by Mr. Alicea. f. Lindsay Saunders, NP Colorado Springs VA Clinic 25 North Spruce Street Colorado Springs, CO 80905 (719) 327-5660

NP Saunders will testify concerning her care and treatment of Mr. Alicea, and the subjective reports made by Mr. Alicea. 7

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g.

Kelly D. Haptonstall Colorado Springs VA Clinic 25 North Spruce Street Colorado Springs, CO 80905 (719) 327-5660

Ms. Haptonstall will testify concerning her care and treatment of Mr. Alicea, and the subjective reports made by Mr. Alicea. 3. Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None. b. Expert witnesses. 1. Witnesses who will be present at trial: Oral and Maxillofacial Surgery Dr. Michael Anthony Pogrel Professor and Chair Dept. of Oral and Maxillofacial Surgery Room C-522, Cox 0440 University of California San Francisco, CA 94143-0440 (415) 476-8226 Dr. Pogrel will testify consistent with his report, that the care provided to Mr. Alicea was appropriate and within the standard of care. Additionally, Dr. Pogrel is expected to testify concerning the anatomy involved, the appropriateness of the procedure, and the procedure itself. Finally, Dr. Pogrel will testify in rebuttal to the criticism asserted by Plaintiff's expert, Dr. Staley. 2. Witnesses who may be present at trial: Dr. Stephen J. Colm - Oral and M axillofacial Surgery.

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Dr. Aaron Schamback - Dentistry. Dr. Steven B. Aragon Dry Creek Oral, Head & Neck and Facial Surgery 125 Inverness Drive East, Suite 100 Englewood, CO 80112 (303) 773-8228 Any expert would testify consistent with his medical records and potentially any criticism of any report submitted by Dr. Staley. Specifically, any expert would testify that the care and treatment provided by the health care providers was within the standard of care. 3. Witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony: None. 7. EXHIBITS 1. Plaintiff: a. Model of lower jaw showing impacted tooth, and anatomy of the lingual nerve and the inferior alveolar nerve. About four to five times life size. b. c. Actual skeletal mandible showing impacted teeth. Various surgical instruments used to remove wisdom teeth - drill, scalpel, elevator, retractor. d. e. Reprints of numerous articles and textbooks, as needed Drawings depicting relationship of tooth 32 to lingual nerve oblique, side and postero superior views. f. Any and all medical records and bill pertaining to care and treatment provided to 9

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Plaintiff, and any enlargements thereof. g. Any and all x-rays or imagery pertaining to care and treatment provided to Plaintiff, and any enlargements thereof. h. i. j. k. l. m. n. o. Curriculum Vitae of any Plaintiff experts. Deposition of Dr. Colm Deposition of Dr. Pogrel Deposition of Plaintiff. Any and all exhibits identified by the Defendant. Any and all exhibits necessary for impeachment. Any and all documents identified in Plaintiff's Rule 26(a) disclosures. Other exhibits as merited.

2. Defendant: a. Any and all medical records and bill pertaining to care and treatment provided to

Plaintiff, and any enlargements thereof. b. Any and all x-rays or imagery pertaining to care and treatment provided to Plaintiff,

and any enlargements thereof. c. d. e. f. g. Curriculum Vitae of any Defendant expert. Deposition of Dr. Staley. Deposition of Plaintiff. Medical literature relating to the procedure involved and potential complications. Pictures depicting the relevant anatomy. 10

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h. i. j. k.

Skeletal model of the jaw and drill. Any and all exhibits identified by the Plaintiffs. Any and all exhibits necessary for impeachment. Any and all documents identified in Defendant's Rule 26(a) disclosures. 8. DISCOVERY

Discovery is completed. 9. SPECIAL ISSUES There are no special issues. 10. SETTLEMENT a. Counsel for the parties met by telephone on July 11, 2005, to discuss in good faith the settlement of the case. b. c. d. e. f. g. The participants in the settlement conference, included counsel. The parties were promptly informed of all offers of settlement. Counsel for the parties do not intend to hold future settlement conferences. It appears from the discussion by all counsel that there is no possibility of settlement. None scheduled. Counsel for the parties considered ADR in accordance with D.C.COLO.LCivR.16.6. 11. OFFER OF JUDGMENT Counsel acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

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12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS a. The trial is to the Court alone. b. The parties anticipate the trial will last 3 days. c. The trial is in the United States District Court for the District of Colorado. d. There are no other orders pertinent to the trial proceedings. DATED this ____ day of ________________________ 2005, BY THE COURT: ______________________________ BOYD N. BOLAND United States Magistrate Judge APPROVED: /s/William Fischer WILLIAM G. FISCHER, P.C. William G. Fischer, #6999 1524 West Colorado Avenue Colorado Springs, CO 80904 (719) 475-2300 Attorney for Plaintiff /s/ Kurt J. Bohn Kurt J. Bohn, Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 (303) 454-0100 Attorney for Defendant 12