Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00188-WYD-CBS ESTATE OF WILLIAM E. HARVEY; AND WILLIAM B. HARVEY, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. ____________________________________________________________________________ FINAL PRETRIAL ORDER ____________________________________________________________________________ The Parties, by and through their attorneys, submit their proposed Final Pretrial Order: 1. DATE AND APPEARANCES The above-captioned matter was set for a Final Pretrial Conference on August 21, 2007 at 9:15 a.m. The following individuals attended the Final Pretrial Conference: Counsel for Plaintiffs, John Olsen, Esq., Olsen & Brown, LLC, 8362 Greenwood Drive, Niwot, Colorado, 80503; (303) 652-1133. Counsel for Defendant,. Elizabeth Weishaupl, Esq., and Kurt J. Bohn Ass't U.S. Attorneys, U.S. Attorney's Office, 1225 17th St., Denver, CO 80202; (303) 807-2010.

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2. JURISDICTION This Court has jurisdiction over this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 et seq. Defendant disputes jurisdiction exists with regard to the claims of the Estate of William E. Harvey.

3. CLAIMS AND DEFENSES (a) Plaintiffs' Statement of Claims:

Plaintiffs invoke the jurisdiction of the court to remedy damages for negligence, medical negligence, and wrongful death. Administrative procedures have been exhausted pursuant to 28 U.S.C. § 2675. William E. Harvey ["Decedent"] was incarcerated at the Federal Correctional Institution in Englewood, Colorado. It was the obligation and responsibility of the Federal Correctional Institution and Defendant United States of America to provide, through its employees and agents, medical care for those incarcerated, including Decedent, which medical care did not fall below the pertinent standard of medical care and community standard for such care. While incarcerated, Decedent complained to the Medical Services Department of the Federal Correctional Institution and the Defendant United States of America as follows, and the follow acts and omissions occurred: Decedent complained of a significant cough and congestion and asked for a chest X-ray; A subsequent X-ray disclosed what appeared to be

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an illness in Decedent's right lung; Based upon the results of the X-ray, a CT scan and bronchoscopy were scheduled. Decedent was transported to an outside medical facility for a bronchoscopy; However, the transporting officers were instructed to terminate the bronchoscopy, and the Decedent was returned to prison without the procedure having been performed; Decedent continued to complain of coughing and congestion; decedent complained of worsening symptoms of illness and lung deficiency and defect; included in his complaints, Decedent stated that he believed a hernia was due to uncontrollable coughing; Decedent was treated as if he suffered from pneumonia and bronchitis, and/or intermittently not treated at all. Believing that something was significantly wrong and that he was seriously ill, Decedent requested diagnostic tests of his chest but was denied them. Decedent's symptoms worsened, and the defendant through its employees and agents ignored them or failed to take proper steps as set forth herein. On or about June 25, 2002, the Decedent coughed up blood. A subsequent X-ray disclosed a mass in his right lung. Subsequent tests confirmed the presence of a large tumor, a malignant squamous cell carcinoma. Decedent then underwent cancer treatment, but the cancer had progressed to a more advanced stage during the many months of sub-standard or non-existent medical care, and his prognosis was that he now had only 12-to-18 months to live. The cancer spread to Decedent's lymph nodes and elsewhere in his body. He then died on February 5, 2006 in the State of California.

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Decedent died as a foreseeable consequence of the illness described above, and as a foreseeable consequence of the acts and omissions of the defendant, which acts and omissions actually and proximately caused his damages and death, and damages to plaintiffs herein. Decedent's chances of survival were greatly diminished by these acts and omissions, and he and plaintiffs lost the value of a chance under state law. The defendant, through its employees and agents, is culpable for: a. Failing to give the Decedent competent, complete, proper and timely examinations and assessments, and failing to properly, completely and competently monitor the progression of his symptomatology; b. Failing to take and record adequate and competent medical and personal histories and notes, including after the onset of illness; c. Failing to properly, competently and timely diagnose the Decedent's illness; d. Failing to provide competent, complete, proper and timely care and treatment of the Decedent and his illness; e. Failing to timely call in physicians and specialists and failing to provide them with adequate and accurate information upon which they could base their advice as to the care for the Decedent; f. Failing to timely, properly and competently administer and interpret diagnostic tests to determine the Decedent's true condition and illness, and treatment needs resulting therefrom; g. Failing to supervise others and negligently supervising them in failing to timely diagnose, treat and care for the Decedent; h. Failing to timely communicate with other of the defendant's employees and agents regarding the diagnosis,

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care and treatment of the Decedent; i. Failing to timely supervise physician and nonphysician employees and agents; j. Failing to attend to the Decedent pursuant to the pertinent standards of care for medical personnel, physicians, physician assistants, nurses and prison employees and agents; k. Permitting non-medical personnel to make medical decisions regarding Decedent and his care and treatment; l. Failing to timely, accurately and competently notify Decedent of medical findings, diagnosis and need for further or additional medical and non-medical care. The defendant through its employees and agents was deliberately indifferent to the known risks to the Decedent at various stages in the progression of his illness and failed to exercise appropriate duties of care to the Decedent in the respects described herein. Thus, the acts and omissions of defendant and its employees and agents were intentional, reckless, and negligent. Thus, the defendant and its employees and agents fell below the pertinent standards of care for physicians, physician assistants, nurses and prison employees. The defendant was responsible for the acts of its employees and agents as described herein. The above-cited acts and omissions were the direct, actual and proximate cause of the Decedent's worsening condition, illness, economic and non-economic harm and damage, and then death (and all damages to plaintiffs herein). As a direct, actual and proximate result of the above-cited acts and omissions, and consequent death of the Decedent, plaintiff

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William B. Harvey suffered: a. Loss of his father; b. Grief, loss of companionship, pain, suffering and gross emotional distress which will continue for the rest of his life; c. Loss of past and future pecuniary benefits for the rest of his life; d. Loss of his father's past and future earning capacity, including for the rest of his life; e. Net pecuniary loss and material accumulations in the past and for the rest of his life; f. Pecuniary benefit of his father's support, services, help and assistance in the past and for the rest of his life; and plaintiffs have lost the value of g. Medical expenses; h. Funeral expenses, i. Other damages permitted by state law resulting from harm and damages to, and suffering of, the Decedent, j. Other damages permitted by federal law resulting from harm and damages to, and suffering of, the Decedent; and k. diminution in the value of the Estate of William E. Harvey. In sum, the defendant is culpable and responsible for negligence, which caused or contributed to, and proximately caused damage to, and then death of, of William E. Harvey. Decedent and plaintiffs were economically and non-economically damaged by said wrongful acts, neglect, malpractice, and fault. Had William E. Harvey survived, he would have been entitled to maintain an action and recover damages for the conduct set forth herein. The defendant is also culpable and responsible for wrongful death of the Decedent in that its wrongful acts, neglect, malpractice, and fault caused or contributed to, and

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proximately caused the death of William E. Harvey. Plaintiffs were damaged by said wrongful acts, neglect, malpractice, and fault and are entitled to maintain said action and recover said damages pursuant to applicable state law. Plaintiffs have prayed for judgment in their favor for their harm and economic and non-economic damages, including but not limited to damages pursuant to state law regarding negligence, medical negligence, and wrongful death, as well as legal fees, disbursements, expert fees, and costs of this action; all statutory and other legal interest on sums awarded; all issues so triable to be decided by a jury; and such other relief as the court may deem appropriate.

(b)

Defendant's Statement of Defenses:

The United States of America and its agents, servants and employees deny committing any negligent or wrongful act or omission while acting within the scope of employment, breaching any applicable standard of care, and deny proximately causing and/or contributing to the damages alleged in Plaintiffs' Second Amended Complaint. Defendants assert that Decedent William E. Harvey received good medical care within the standard of care applicable for the medical health care providers and that there was no failure to diagnose any disease which occurred in this matter. Therefore, the United States asserts the following defenses:

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1.

The Second Amended Complaint fails to state a claim, in whole or in

part, upon which relief can be granted to Plaintiffs against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, or applicable Colorado Tort or Probate law. 2. Plaintiffs recovery of damages, if any, are limited to the amount claimed administratively in accordance with 28 U.S.C. § 2675(b). 3. Plaintiffs' damages, if any, are the sole and proximate result of a pre-

existing condition of Decedent William E. Harvey. 4. 5. Plaintiffs may not be the real party in interest to some or all of their claims. Plaintiff Estate of William E. Harvey, has not exhausted its administrative

remedies and therefore this Court lacks jurisdiction over its allege claims, damages, or losses. 6. 7. Plaintiffs' damages, if any, are the result of a subsequent intervening event. Plaintiffs' damages, if any, were a result of Plaintiffs' or a third party's

negligence to such a degree as to bar or limit any recovery under C.R.S. § 13-21111. 8. Plaintiff's damages are limited, to the extent applicable by application of

Colorado Tort Law, including but not limited to C.R.S. §§ 13-21-102.5, 13-21111.5, 13-21-111.6, 13-21-111.7 and 13-21-111.

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9.

Plaintiffs' damages, if any, are limited or barred by the voluntary

assumption of a known unreasonable risk. 10. Under the provisions of C.R.S. § 13-21-111.5, the United States may not be

held liable for an amount greater than that represented by the degree or percentage of degree of negligence or fault attributable to it which produced the claimed injury, damage, or loss. 11. Plaintiffs' damages, if any, must be reduced to the extent of any

contributory negligence as derivative through Decedent William E. Harvey. 12. Plaintiffs' negligence and/or William E. Harvey's own negligence exceeded

any negligence attributable to the United States, and Plaintiffs' damages, if any were the result of a failure to reasonably mitigate those damages. 13. Plaintiffs' claims may be barred in whole or in part by a failure to mitigate

their claimed damages, if any. 14. Plaintiffs' may not be the real party in interest with respect to some or all of

their claimed damages and losses. 15. Plaintiffs' damages, if any are barred in whole or in party by the actions of

Plaintiffs' and/or Decedent William E. Harvey. 16. Plaintiffs' damages and claims are subject to and limited by the applicable

provisions of Colorado's Health Care Availability Act, C.R.S. § 13-64-101, et seq.

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17.

If Plaintiffs were to be awarded any future damages, which the United

States disputes, such damages must be reduced to present value. See 28 U.S.C. § 2678. 18. 2674. 19. If Plaintiffs are entitled to recover damages in this action, Defendant is Plaintiffs are not entitled to an award of prejudgment interest. 28 U.S.C. §

entitled to a credit or set off for any or past or future benefit paid to or on behalf of or received by Plaintiffs or Plaintiffs' Decedent, to the extent allowed under federal and state common and statutory law, including all monies or benefits that Plaintiffs or Plaintiffs' Decedent received, from the United States. 20. To the extent that common or statutory law of Colorado or any other

jurisdiction wherein the alleged negligent events occurred, otherwise limits damages or limits Defendant's liability or Plaintiffs' cause of action, that law, including but not limited to tort, wrongful death or probate law, applies to this action against the United States to the extent not inconsistent with the Federal Tort Claims Act. 21. Plaintiffs' claim for attorney's fees, if any, is governed and limited by the

provisions of the Federal Tort Claim Act, which caps such fees to 25% of any awarded amount.

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Plaintiffs' claims are governed by the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671 - 2680. 23. Plaintiff Estate of William E. Harvey, to the extent that any such estate

exists, cannot recover damages for the Second Claim for relief as the estate is not a proper party to that claim. 24. Plaintiff Estate of William E. Harvey, to the extent any such estate exists, is

only entitled to recover economic damages and is barred from recovering any noneconomic damages. 25. Plaintiff Estate of William E. Harvey, to the extent that any such estate

exists, is not the real party in interest for some or all of the alleged damages claimed by the estate and as such is barred from recovery. 26. Some or all of the alleged damages, claims and losses of the Estate of

William E. Harvey were paid for in whole by a third party not before this court and who has no standing to appear before this Court in a survival or wrongful death action. 27. Plaintiff William B. Harvey can only recover damages, if any, attributable

to the Second Claim for Relief (Wrongful Death). 28. 29. In an FTCA action, the trial is to the Court not to a jury. Plaintiff Estate of William E. Harvey's recovery of damages, to the extent

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that any such estate exists, and to the extent that any damages are recoverable, is capped by the damage caps provided in Colorado Tort Law and the survival statute, i.e. they are limited to loss of earnings and expenses sustained prior to death. See 13-20-101(1). 30. Plaintiff William B. Harvey's damages, if any, are limited by the

application of C.R.S. §§ 13-21-102.5, 13-21-203(1). 31. Plaintiff Estate of William E. Harvey, to the extent that such an estate

exists, cannot recover damages, for Plaintiff's decedent William B. Harvey's pain, suffering or disfigurement. 32. Plaintiff Estate of William E. Harvey does not exist as a proper entity under

applicable state law and therefore fails to state a claim against the United States upon which relief can be granted. 33. The United States reserves the right to raise any additional affirmative

defenses which become applicable as warranted by the evidence presented at trial. 4. The United States further incorporates by reference its Partial Motion for Summary Judgment and its response to the Second Amended Complaint, including, but not limited to, its Answer to Plaintiff's allegations and defenses.

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4. STIPULATIONS 1. William E. Harvey was incarcerated at the Federal Correctional Institution in Englewood, Colorado. 2. He died February 5, 2006. 3. William B. Harvey is the son of William E. Harvey. 4. Joan Grace is the sister of William E. Harvey.

5. PENDING MOTIONS Defendant's motion for partial summary judgment has been briefed and is pending.

6. WITNESSES a. (1) Nonexpert witnesses to be called by each party: witnesses who will be present at trial:

For Plaintiffs [all will testify in person]: 1. Plaintiff William B. Harvey, c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. Will testify as to all matters encompassed within the pleadings, including as to his own damages, suffering, and knowledge of William E. Harvey's condition, work history, care for

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family, and death, and all matters discussed in his deposition. 2. Joan Grace c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. Will testify as to all matters encompassed within the pleadings, including as to damages to the Estate of William E. Harvey, and knowledge of William E. Harvey's condition, work history, care for family, and death, and all matters discussed in her deposition.

3. Elisabeth Harvey c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. Will testify as to all matters encompassed within the pleadings, including as to damages to the Estate of William E. Harvey, and knowledge of William E. Harvey's condition, work history, care for family and death, communications with Bureau of Prisons, and all matters discussed in her deposition. 4. Lisa Harvey c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. Will testify as to all matters encompassed within the pleadings, including as to damages to the Estate of William E. Harvey, and knowledge of William E. Harvey's condition, work

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history, care for family and death, and all matters discussed in her deposition. 5. Michael P. O'Leary, M.D., 2535 S. Downing St., Suite 150, Denver, CO 80210. Will testify as to his limited participation in the care and treatment of Mr. Harvey and communications to and from him, as well as those matters discussed in disclosed documents and micro-tape, including his opinion as a treater as to what was done and not done for Mr. Harvey, and all matters encompassed within his deposition, and related topics.

For Defendant: (1) G. Thomas Kraus, M.D., Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

Dr. Kraus is the medical services director of FCI Englewood and was treating physician for Mr. Harvey at all times pertinent to the Second Amended Complaint. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to

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any fact raised in his deposition or at trial within his knowledge and expertise. (2) Mark Ippolito, PA, HSA, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

PA Ippolitto is the Health Services Director at FCI Englewood and a physician's assistant. He will testify as to the care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, the policies and procedures of the BOP in obtaining outside consultations, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise. (3) Any will-call witness endorsed by Plaintiffs.

(2)

Witnesses who may be present at trial: Plaintiffs (testimony would be in person except where noted): 1. Percivall Urbano, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S.

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Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. 2. Hideya Tsuda, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. 3. Kim Anderson, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. 4. H. Garza, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics.

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5. Mark Ippolito, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. 6. David Shiefelbein, c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. 7. Timothy C. Kennedy, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, standard of care, proper procedures, and related topics. May testify via deposition. 8. G. Thomas Kraus, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 8072010. Will have knowledge as expressed in deposition and also generally and

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specifically as to care and treatment of Mr. Harvey, related observations, communications, standard of care, proper procedures, medical system in prison, and related topics. 9. Susan McInnes, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. May testify via deposition. 10. Allan Wicks, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. May testify via deposition. 11. Wolfram Samlowski, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations,

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communications, policies and procedures within the prison medical and other systems, and related topics. May testify via deposition. 12. Coral Creek, c/o Olsen & Brown LLC, 8362 Greenwood Drive, Niwot, CO 80503. May testify as to all matters encompassed within the pleadings, including as to damages to the Estate of William E. Harvey, and knowledge of William E. Harvey's condition, work history, care for family and death, and related topics. 13. Dayna D. Ward, 1380 Lead Hill Road, Roseville, CA 95661-2998 (916-7862989). William Harvey's probation officer, who has information regarding Mr. Harvey's work, relationship with children, career aspirations and progressions, effects of illness, suffering, and related topics. 14. Jon Ain, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. May testify via deposition. May testify via deposition. 15. Allan Wicks, M.D., c/o Elizabeth Weishaupl, Esq., Ass't U.S. Attorney, U.S. Attorney's Office, 1225 17th St., Room 700, Denver, CO 80202, 303-(303) 807-2010. Will have knowledge as expressed in deposition and also generally and specifically as to

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care and treatment of Mr. Harvey, related observations, communications, policies and procedures within the prison medical and other systems, and related topics. May testify via deposition. 16. Officer DeSantis, Correctional Officer, FCI Englewood, 9595 W. Quincy Ave., Littleton, CO 80123. May testify as to transporting Mr. Harvey to hospital for medical care, and also having treatment and/or testing abruptly cancelled because Mr. Harvey was taken to the wrong hospital. 17. Officer Asay, Correctional Officer, FCI Englewood, 9595 W. Quincy Ave., Littleton, CO 80123. May testify as to transporting Mr. Harvey to hospital for medical care, and also having treatment and/or testing abruptly cancelled because Mr. Harvey was taken to the wrong hospital. 18. Any witness listed by the defense. 19. Any witness needed for impeachment, rebuttal, authentication of an exhibit, or to lay the foundation for an exhibit.

Defendant:

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(1)

A. Meagher, RN, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; Telephone: (303) 985-1566 x1279.

RN Meagher is a medical care provider who treated Mr. Harvey at FCI Englewood. She will testify as to her care and treatment of Mr. Harvey, Mr. Harvey's medical condition, her supervision of the medical staff, if any, with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, her conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in her deposition, if taken, or at trial within her knowledge and expertise. (2) Judith Dahlgren, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

Ms. Dahlgren Meagher is a medical care provider who treated Mr. Harvey at FCI Englewood. She will testify as to her care and treatment of Mr. Harvey, Mr. Harvey's medical condition, her supervision of the medical staff, if any, with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional

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system, her conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in her deposition, if taken, or at trial within her knowledge and expertise. (3) A. Bachman, EMT, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; Telephone: (303) 985-1566 x1279.

Mr. Bachman is an EMT medical care provider who treated Mr. Harvey at FCI Englewood. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision or interaction with medical staff, if any, with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise. (4) James Quale, M.D., 501 E. Hampden Avenue, Englewood, CO 80110; Telephone: (303) 788-6080.

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Dr. Quale is a radiologist at Swedish Medical Center. He was a treating physician of Mr. Harvey. He may testify regarding his care and treatment of Mr. Harvey, his interactions and conversations with Mr. Harvey and others, his diagnoses and opinions concerning his care and treatment of Mr. Harvey and as to any other matter within his expertise raised at trial or in his deposition, if taken. Dr. Quale may testify via deposition or by telephonic means (5) David Dungan, M.D., Swedish Medical Center, 501 E. Hampden Avenue, Englewood, CO 80110; Telephone: (303) 788-6080.

Dr. Dugan is a physician at Swedish Medical Center who provided treatment to Mr. Harvey. He may testify regarding his care and treatment of Mr. Harvey, his interactions and conversations with Mr. Harvey and others, his diagnoses and opinions concerning his care and treatment of Mr. Harvey and as to any other matter within his expertise raised at trial or in his deposition, if taken.

(6)

Allen B. Wicks, M.D., 499 E. Hampden Avenue, Suite 300, Englewood, CO 80110; Telephone: (303) 788-8500.

Dr. Wicks is a pulmonologist who was a treating physician of Mr. Harvey. He

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may testify regarding his care and treatment of Mr. Harvey, his interactions and conversations with Mr. Harvey and others, his diagnoses and opinions concerning his care and treatment of Mr. Harvey and as to any other matter within his expertise raised at trial or in his deposition, if taken. Dr. Wicks may testify via deposition or by telephonic means. (7) Michael O'Leary, M.D., 2535 S. Downing Street, #150, Denver, CO; Telephone: (303) 777-5147.

Dr. O'Leary is a pulmonologist who was a treating physician of Mr. Harvey. He may testify regarding his care and treatment of Mr. Harvey, his interactions and conversations with Mr. Harvey and others, his diagnoses and opinions concerning his care and treatment of Mr. Harvey and as to any other matter within his expertise raised at trial or in his deposition, if taken.

(8)

Gerald Kirshenbaum, M.D., Columbia Medical Center of Aurora, South, 1501 South Potomac, Aurora, CO 80012; Telephone: (303) 695-2600.

Dr. Kirshenbaum is a physician at Columbia Medical Center of Aurora, South who

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was a treating physician of Mr. Harvey. . He may testify regarding his care and treatment of Mr. Harvey, his interactions and conversations with Mr. Harvey and others, his diagnoses and opinions concerning his care and treatment of Mr. Harvey and as to any other matter within his expertise raised at trial or in his deposition, if taken. (9) Officer Matthew DeSantis, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566.

Correctional Officer DeSantis was a correctional officer at FCI Englewood. He may testify regarding his conversations, interactions and observations of Mr. Harvey and as to any other matter within his knowledge raised at trial or in his deposition if taken. (10) Officer Lisa Asay, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566.

Correctional Officer Asay was a correctional officer at FCI Englewood. She may testify regarding her conversations, interactions and observations of Mr. Harvey and others, and as to any other matter within his knowledge raised at trial or in her deposition if taken. (11) Dr. Robert J. Wolf,

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8015 W. Alameda #20, Lakewood, CO 80228. Dr. Wolf was a treating physician of Mr. Harvey. He may be called to testify regarding his care and treatment of Mr. Harvey, his interactions, conversations, and observations of Mr. Harvey and others and to any other matter within his knowledge or expertise raised at trial or in his deposition, if taken. (12) Coral Creek c/o Olsen & Brown 8362 Greenwood Drive Niwot, CO 80503

Ms. Creek may be called to testify regarding her knowledge of the issues and facts as described in the Second Amended Complaint, contact between herself and her children and the plaintiff and any damages, if any, as described in the Complaint and as to any other matter to which she has personal knowledge which is raised at trial. (13) Dayna D. Ward 1380 Lead Hill Road Roseville, CA 95661-2998 (916) 786-2989

Probation Officer Ward may be called to testify as to his knowledge of the issues or claims as described in the Complaint, any observations or conversations with Mr. Harvey or others, and as to any other matter to which Probation Officer Ward has personal knowledge which is raised at trial.

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(14)

Lisa Harvey c/o Olsen & Brown 8362 Greenwood Dr. Niwot, CO 80503

Ms. Harvey may be called to testify as to her knowledge of the issues or claims as described in the Complaint, any observations or conversations with Mr. Harvey or others, and as to any other matter to which she has personal knowledge or which is raised at trial. (15) William B. Harvey, c/o Olsen & Brown, LLC, 8325 Greenwood Drive, Niwot, CO 80503.

Defendant may call Plaintiff William Harvey to cross-examine him regarding his claims, his alleged injuries, and other matters at issue in this action, and as to any matter asserted in his deposition, or at trial.

(16)

Joan Grace c/o Olsen & Brown 8362 Greenwood Drive Niwot, CO 80503

Defendant may call Plaintiff Joan Grace to cross-examine her regarding the claims of the estate, the estate's alleged injuries and damages, and any other matters at issue in this action, in her deposition or discussed at trial

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(17)

Elisabeth Harvey c/o Olsen & Brown, LLC 8362 Greenwood Drive Niwot, CO 80503

Defendant will call Elisabeth Harvey, to cross-examine her regarding the claims and facts as asserted in the Second Amended Complaint, the alleged injuries and damages, as to all matters raised in her deposition or discussed at trial. (18) Dr. H. Tsuda, M.D., Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

Dr. Tsuda is a physician who treated Mr. Harvey at FCI Englewood. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise. (19) David Schiefelbein, PA, Health Services Department, FCI Englewood,

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9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279. PA Schiefelbein is a medical care provider who treated Mr. Harvey at FCI Englewood. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise.

(20)

P. Urbano, PA, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

PA Urbano is a medical care provider who treated Mr. Harvey at FCI Englewood. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey,

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the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise. (21) E. Garza, PA, Health Services Department, FCI Englewood, 9595 W. Quincy Avenue, Littleton, CO 80123; (303) 985-1566 x1279.

PA Garza is a medical care provider who treated Mr. Harvey at FCI Englewood. He will testify as to his care and treatment of Mr. Harvey, Mr. Harvey's medical condition, his supervision of the medical staff with regard to the treatment of Mr. Harvey, the medical services offered to inmates in the BOP correctional system, his conversations with Mr. Harvey and others regarding the condition and treatment of Mr. Harvey, the policies and provisions regarding Medical Care within the Bureau of Prisons, and as to any fact raised in his deposition, if taken, or at trial within his knowledge and expertise.

(22)

Dr. Kristie Bobolis, M.D., Two Medical Plaza, Suite 200, Roseville, CA 95661-3037; Telephone: (916) 782-5106.

Dr. Bobolis may be called in cross-examination or to testify in this matter

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regarding her care and treatment of Mr. Harvey, her opinions as expressed in her depositions, and as to any matter raised at trial within her expertise. (23) Dr. Brent Van Hoozen, M.D., Two Medical Plaza, Suite 100, Roseville, CA 95661; Telephone: (916) 786-7498.

Dr. Van Hoozen may be called in cross-examination or to testify in this matter regarding his care and treatment of Mr. Harvey, his opinions as expressed in his depositions, and as to any matter raised at trial within his expertise. (24) Dr. Julie Wong, Radiological Associates of Sacramento, Roseville PET Imaging Center, 2401 Douglas Blvd., Suite 100, Roseville, CA 95661; Telephone: (916) 784-2277.

Dr. Wong may be called to testify in this matter regarding her care and treatment of Mr. Harvey and as to any other matter raised at trial or within her expertise. (25) Dr. Huu Ninh Dao, Radiological Associates of Sacramento, Roseville PET Imaging Center, 2401 Douglas Blvd., Suite 100, Roseville, CA 95661; Telephone: (916) 784-2277.

Dr. Dao may be called to testify in this matter regarding his care and treatment of Mr. Harvey and as to any other matter raised at trial or within his expertise.

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(26)

Dr. Hani Griess, Radiological Associates of Sacramento, Roseville PET Imaging Center, 2401 Douglas Blvd., Suite 100, Roseville, CA 95661; Telephone: (916) 784-2277.

Dr. Griess may be called to testify in this matter regarding her car and treatment of Mr. Harvey and as to any other matter raised at trial or within her expertise (27) Any witness needed for impeachment, rebuttal, authentication of an exhibit, or to lay the foundation for an exhibit. (28) Any may-call non-expert witness listed by Plaintiff.

(29) Any witness needed for impeachment, rebuttal, authentication of an exhibit, or to lay the foundation for an exhibit. (30) Any may-call non-expert witness listed by Plaintiff.

(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: As noted above.

b.

Expert witnesses to be called by each party: Plaintiffs:

1. Kristie A. Bobolis, M.D., Capitol Hematology Oncology Medical Group, Two

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Medical Plaza, Suite 200, Roseville, CA 9566. May testify in conformance with her expert disclosures, medical records regarding care and treatment of Mr. Harvey, deposition testimony, opinions as to Mr. Harvey's negligent care while incarcerated, defendant's liability, damages, pain and suffering, survival possibilities and probabilities, and related topics. Testimony will be in accordance with F.R.E. 702. 2. Brent Van Hoozen, M.D., Pulmonary Medicine Consultants, Two Medical Plaza, Suite 100, Roseville, CA 95661. May testify in conformance with his expert disclosures, medical records regarding care and treatment of Mr. Harvey, deposition testimony, opinions as to Mr. Harvey's negligent care while incarcerated, defendant's liability, damages, pain and suffering, survival possibilities and probabilities, and related topics. Testimony will be in accordance with F.R.E. 702. 3. Michael P. O'Leary, M.D. May testify as a treater and in conformance with his deposition testimony and interview. Testimony will be in accordance with F.R.E. 702. 4. James E. Evenson, Ph.D. 1095 W. 127th Place, Westminster, CO 80234 (303-4444064). May testify in conformance with his disclosures, and as to damages. Testimony will be in accordance with F.R.E. 702. 5. Steven J. Klompus, 6551 Pickett Ave., Garden Grove, CA 92845. May testify as to his expert disclosures and opinion, including as to the negligent care by physician assistants in this case, and notations in the medical records.

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6. 7.

Any expert witness endorsed by Defendant. Any expert witness needed for rebuttal or impeachment.

Defendant: (1) Dr. Jonathon Ain, M.D., 5033 Prima Court, Vail, CO 81657; Telephone: (970) 476-0806.

Dr. Ain may testify in conformance with his expert disclosure, his review of medical records and reports and depositions, his expert report and deposition. He may testify and render opinions regarding the medical care and treatment of Mr. Harvey, applicable standard of care issues, Defendant's liability, Mr. Harvey's diagnosis, radiological/imaging treatment and results, and to any other issue within his expertise raised at trial or in his deposition, if taken. (2) Dr. Susan McInnes, M.D., Kaiser Permanente, 1375 East 20th Avenue, Denver, CO 80205; Telephone: (303) 831-0644.

Dr. McInnes may testify in conformance with her expert disclosure, her review of medical records and reports and depositions, her expert report and deposition. She may testify and render opinions regarding the medical care and treatment of Mr. Harvey, applicable standard of care issues, Defendant's liability, Mr. Harvey's diagnosis,

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treatment and care, and to any other issue within her expertise raised at trial or in her deposition, if taken. (3) Dr. Timothy C. Kennedy, Colorado Pulmonary Consultants, 1721 E. 19th Ave., Suite 366, Denver, Colorado 80218, (303) 863-0300.

Dr. Kennedy may testify in conformance with his expert disclosure, his review of medical records and reports and depositions, his expert report and deposition. He may testify and render opinions regarding the medical care and treatment of Mr. Harvey, applicable standard of care issues, Defendant's liability, Mr. Harvey's diagnosis, treatment and care, and to any other issue within his expertise raised at trial or in his deposition, if taken.

(4)

Dr. Wolfram Samlowski, M.D., Huntsman Cancer Institute, 2000 Circle of Hope Drive, Salt Lake City, UT 84112; Telephone: (801) 581-8935.

Dr. Kennedy may testify in conformance with his expert disclosure, his review of medical records and reports and depositions, his expert report and deposition. He may testify and render opinions regarding the medical care and treatment of Mr. Harvey, applicable standard of care issues, Defendant's liability, Mr. Harvey's diagnosis,

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treatment and care, and to any other issue within his expertise raised at trial or in his deposition, if taken. (5) Kim Anderson, P.A.-C, 2045 Franklin Street, Denver, CO 80205; Telephone: (303) 708-9793.

PA Anderson may testify in conformance with his expert disclosure, his review of medical records and reports and depositions, his expert report and deposition. He may testify and render opinions regarding the medical care and treatment of Mr. Harvey, applicable standard of care issues, Defendant's liability, Mr. Harvey's diagnosis, treatment and care, and to any other issue within his expertise raised at trial or in his deposition, if taken. (6) Thomas D. Walsh, Walsh Financial Services, Inc., 1530 Wilson Blvd., Suite 250, Arlington, VA 22209.

Mr. Walsh may testify in conformance with his expert disclosure and report, his review of the reports of other experts in this matter, and his deposition, if taken. He may testify and render opinions concerning the alleged damages and losses asserted in the Second Amended Complaint, and his opinions regarding any opinions raised by Plaintiffs on those damages and as to any matter observed at trial within his expertise.

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(7) (8)

Any expert witness endorsed by Plaintiff. Any expert witness needed for rebuttal or impeachment. 7. EXHIBITS

The Parties submit the following Exhibit Lists: Plaintiffs: See Exhibit A hereto.

Defendant: See Exhibit B hereto. Copies of the listed exhibits must be provided to opposing counsel no later than five days after the Final Pretrial Conference. The objections contemplated by

Fed.R.Civ.P. 26(a)(3) shall be filed with the clerk and served by hand delivery no later than 11 days after the exhibits are provided.

8. DISCOVERY Discovery has been completed.

9. SPECIAL ISSUES None.

10. SETTLEMENT

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The undersigned counsel for the parties hereby certify that: a. Counsel for the Parties have communicated regarding settlement in good

faith on numerous occasions over more than one year. b. The following persons participated in the settlement discussions: For Plaintiffs: Counsel: John R. Olsen

For Defendant: Counsel: Elizabeth Weishaupl. c. The Parties were promptly informed of all offers of settlement.

d. No settlement conferences have been held by the Court. Plaintiffs' counsel believes that the expenditures on experts alone make settlement impossible at this point. Counsel for the defendant believes that settlement should be reexamined after a decision on the pending motion for summary judgment. e. It appears from the discussion by all counsel that there is no possibility of

settlement. But the defendant believes that settlement should be reexamined after a decision on the pending motion for summary judgment. f. There is currently no settlement conference scheduled before the Magistrate

Judge and the parties are not requesting one. The defense believes that a settlement conference at which all parties are present would be useful after entry of decision on the summary judgment motion. g. Counsel for the Parties considered ADR in accordance with D.C.COLO.

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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.

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 supercedes 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. b. Trial is to court. Estimated length is eight days.

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c.

Parties request that the trial be held in Denver, Colorado.

DATED this ____ day of _________________, 2007.

BY THE COURT: ___________________________

FINAL PRETRIAL ORDER TENDERED FOR REVIEW: OLSEN AND BROWN, LLC TROY EID UNITED STATES ATTORNEY U.S. ATTORNEY'S OFFICE s/Elizabeth Weishaupl Elizabeth Weishaupl, Esq. Kurt Bohn, Esq. Ass't U.S. Attorneys U.S. Attorney's Office 1225 17th St., Room 700 Denver, CO 80202 Telephone: 303-(303) 807-2010 e-mail: [email protected] Attorneys for the Defendant

s/John R. Olsen John R. Olsen, Esq. 8362 Greenwood Drive Niwot, CO 70503 Telephone: 303-652-1133 e-mail: [email protected] Attorney for the Plaintiffs

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EXHIBIT A PLAINTIFFS' EXHIBIT LIST The following exhibits are listed as possible exhibits for trial. Plaintiffs reserve the right and opportunity to object to their admission. 1. Federal prison medical file for William E. Harvey (hereafter "Mr. Harvey). 2. Federal inmate file for Mr. Harvey. 3. Dr. Bobolis' medical and expert file for Mr. Harvey. 4. Dr. Van Hoozen's medical and expert file for Mr. Harvey. 5. Dr. Evenson's documents attached to his expert opinion. 6. Personal family letters, memorabilia and photos related to Mr. Harvey, his life and death. 7. All medical films and scans of Mr. Harvey. 8. Mr. Harvey's legal library (photo). 9. Death Certificate for Mr. Harvey. 10. Lieutenant's Logs, January 2000. 11. Elisabeth Harvey Letter, July 6, 2002 12. Affidavit of William E. Harvey. 13. Micro-tape and CD disc of interview conducted with Dr. Michael O'Leary on April 3, 2007.

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14. Litigation and medical files and materials reviewed or used by plaintiffs' and defendant's experts. 15. Dr. Wicks' Answers to Plaintiff William Harvey's Written Deposition 16. William E. Harvey's resume. 17. Defendant's Discovery Responses, 2/9/2005. 18. FCI/FDC Control Logs. 19. Entzel memo, 1/19/2000. 20. Prison medical appointment approval sheet. 21. Harvey medical facility admission log. 22. Medical Records from Columbia Medical Center. 23. Medical Records from Radiological Services of Sacramento. 24. Medical Records from Urgent Care Center. 25. Medical Record from Sutter Roseville Medical Center. 26. Probate court documents, Boulder District Court. 27. Documents needed for rebuttal. 28. Exhibits listed by the defendant. 29. Demonstrative exhibits (blowups).

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EXHIBIT B Defendant's Exhibits (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) The Bureau of Prisons Medical Records of William E. Harvey. Summaries and Charts of the BOP Medical Records of William E. Harvey. Radiology Reports and Studies of William E. Harvey, Bates No. 0067 0091. X-Rays and CT Scans of William E. Harvey from 1993 - 2006. Clinical Medical History Reports Bates No. 0092 - 0107. Consultation Reports, Bates No. 0108 - 0110. Radiation Oncology Reports, Bates No. 0111 - 0118. Clinical Notes, Bates No. 0119 ­ 0229 Eye Exam and Prescriptions, Bates No. 0230- 0271 Town Trip Records Inmate Patient problem List, Bates No. 0277-0280. Billing Records, Bates No. 0281 -0282, South Denver Pulmonary Records, Bates, No. S0000 - S0004E Medical Center of Aurora Records Report of Dr. Timothy C. Kennedy, attachments and references. CV of Dr. Timothy C. Kennedy. Report of Dr. Wolfram Samlowski, attachments and references

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(18) (19) (20) (21) (22) (23) (24) (25) (26) (27) (28) (29) (30) (31) (32) (33) (34)

CV of Dr. Wolfram Samlowski Report of Dr. Susan McInnes, attachments and references. CV of Dr. Susan McInnes. Report of Dr. Jonathan Ain, attachments and references. CV of Dr. Jonathan Ain Report of Kim Anderson, P.A., attachments and references. CV of Kim Anderson. Report of Thomas D. Walsh, attachments references. CV of Thomas D. Walsh. Medical Records of Dr. Bobolis Medical Records of Dr. Van Hoozen 2006 SF-95 FTCA Tort Claim, TRT-NCR-2006 3473, dated May 10, 2006. BOP Policies and ARs concerning provision of medical care and treatment. Interrogatory Responses and Responses to Requests for Production by William E. Harvey. Summaries and Charts of Medical Records. Any Deposition Transcript or Affidavit or Exhibit to Deposition of Any Testifying Witness or Party or former Party. Any Exhibit Endorsed by Plaintiff

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(35) (36)

Any Exhibit Needed for Foundation, Authentication, Impeachment, to Refresh Recollection, Past Recollection Recorded or for Rebuttal. Any demonstrative exhibit as needed for expert witness testimony.

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