Estate of Kelroy Newman et al v. Board of County Commissioners of the County of Montezuma, Colorado et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-01763-PAB-KAS
ESTATE OF KELROY NEWMAN, by and through putative personal representative,
Bryanne Watts-Lucero, and
J.W., a minor child, by and through next friend and mother, Elisa Wilson,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF MONTEZUMA,
COLORADO,
SHERIFF STEVEN NOWLIN, individually and in his official capacity,
ZACHARY SUMMERS, individually,
SOUTHWEST HEALTH SYSTEM, INC, d/b/a Southwest Memorial Hospital, and
RANDY GENE DAVIDSON, MD, individually,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiffs’ Motion for Leave to Amend
Complaint to Add Punitive Damages Remedy Under State Law Negligence Claim
[#112] (the “Motion”). Southwest Health System, Inc. d/b/a Southwest Memorial Hospital
(“SMH”) opposes the Motion [#128]. Plaintiffs filed a Reply [#134].1 SMH sought leave to
file a sur-reply brief, which the Court granted [#138, #143, #144]. The Court has reviewed
the briefs, the entire case file, and the applicable law. For the reasons set forth below, the
Motion [#112] is GRANTED.
1 A redacted, publicly accessible version of Plaintiffs’ Reply Brief is filed at Dkt. # 133; an
unredacted version is filed under Level 1 restriction, pursuant to D.C.COLO.LCivR 7.2, at Dkt. #
134.
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I. Background
This action arises from the death of Kelroy Newman in the Montezuma County
Detention Center (“MCDC”) in 2021. As to the facts which give rise to the action, Mr.
Newman was arrested by the Cortez Police Department on Saturday, July 17, 2021, at
approximately 10:00 a.m., and was taken to MCDC. Motion [#112] at 12; Second Am.
Compl. [#148] ¶¶ 2, 28.2 Plaintiffs assert that MCDC found Mr. Newman to have a
dangerously high and potentially fatal blood-alcohol concentration (“BAC”) of 0.421% and
visible injuries to his head and face. Motion [#112] at 12. In 2021, MCDC did not employ
healthcare staff on nights or weekends and there was no provider on call. Id. at 4. Medical
clearances, among other things, were outsourced to SMH. Id. at 4-5. The arresting officer
transported Mr. Newman to SMH to be “cleared” for formal booking into MCDC. Id. at 6.
Plaintiffs assert that during Newman’s clearance examination SMH staff did not
ask about Newman’s drinking habits or withdrawal history and that the medical staff did
not order any tests related to the condition that triggered the transport. Id. at 13. Newman
was cleared for incarceration after approximately 10 minutes with Nurse Jennifer Gaddis
and Dr. Randy Davidson. Id. Plaintiffs allege that Newman was discharged to medically
untrained deputies without any guidance regarding Newman’s head injury, alcohol
intoxication, and withdrawal. Id. Plaintiffs argue that Newman was cleared for
incarceration with no specific instructions for his monitoring. Id. Once at MCDC, Plaintiffs
2 A redacted, publicly accessible version of the Second Am. Compl. is filed at Dkt. # 148; an
unredacted version is filed under Level 1 restriction, pursuant to D.C.COLO.LCivR 7.2, at Dkt. #
149.
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assert Mr. Newman’s medical condition declined and he died related to complications
from alcohol withdrawal. Id. at 5, 14.
Plaintiffs, the estate of Mr. Newman and his minor child, assert the following
claims: (1) a Fourteenth Amendment Monell3 claim against the County Defendants4; (2)
negligence in operation of a jail resulting in wrongful death claim against the County
Defendants; (3) cruel and unusual punishment and deprivation of due process pursuant
to Colo. Rev. Stat. § 13-21-131 against Defendant Deputy Zachary Summers, a member
of MCDC staff present at the time of the incident; (4) a Fourteenth Amendment deliberate
indifference claim against Defendant SMH and the County Defendants; (5) a Fourteenth
Amendment deliberate indifference claim against Dr. Davidson; (6) medical negligence in
the operation of a hospital and medical negligence causing wrongful death claim against
Defendants SMH and Dr. Davidson; and (7) a claim of failure to provide appropriate
medical screening and to provide required stabilization care and treatment pursuant to
the Emergency Medical Treatment and Active Labor Act (“EMTALA”) against Defendant
SMH. Second Am. Compl. [#148] ¶¶ 277-371.5 Claims one, three, four, five, and seven
are brought by the Plaintiff Estate and claims two and six are brought by the minor child.
Id.
3 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).
4 The County Defendants are the Board of County Commissioners of Montezuma County
(“BOCC”) and Sheriff Nowlin. Second Am. Compl. [#148] ¶ 19.
5 At the time this motion was filed, the operative complaint was the First Amended Complaint at
Dkt. #7. Pursuant to the Court’s November 13, 2023, Order [#145] on an earlier filed motion to
amend, the current operative complaint is the Second Amended Complaint at Dkt. #148.
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II. Analysis
The instant motion to amend seeks to add a remedy of exemplary damages to the
state law claim of negligence against Defendant SMH. Motion [#112] at 1-2.
Federal Rule of Civil Procedure 15(a)(2) states that “[t]he court should freely give
leave [to amend] when justice so requires.” The Supreme Court has stated “this mandate
is to be heeded.” Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, “[i]f the
underlying facts or circumstances relied upon by a plaintiff may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim on the merits.” Id. This is
consistent with the purpose of Rule 15 which is “to provide the maximum opportunity for
each claim to be decided on its merits rather than on procedural niceties.” Hardin v.
Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir. 1982). Whether to grant or deny
leave to amend a complaint is within a court’s discretion. Foman, 371 U.S. at 182.
Refusing leave to amend is generally justified only on “a showing of undue delay, undue
prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993).
Under Colorado law exemplary damages may be awarded only where there is
“fraud, malice, or willful and wanton conduct[.]” Colo. Rev. Stat. § 13-21-102(1)(a). The
requested remedy of exemplary (punitive) damages may not be included in the initial
complaint. Instead, per Colo. Rev. Stat. § 13–21–102(1.5)(a), such a request “may be
allowed by amendment to the pleadings only after . . . the plaintiff establishes prima facie
proof of a triable issue [on exemplary damages].” Although the moving party has the
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burden of establishing a basis for adding the exemplary damages claim, it is a low burden
relative to the burden of proof at trial. Affordify, Inc. v. Medac, Inc., No. 19-cv-02082-CMA-
NRN, 2020 WL 6290375, at *5 (D. Colo. Oct. 27, 2020) (describing the burden on a motion
to amend pursuant to § 13-21-102 as “[an] admittedly low threshold”). At the motion to
amend stage, “the Court is only concerned with whether the evidence, when viewed in
the light most favorable to [the p]laintiffs, is sufficient to make out a prima facie case of
willful and wanton behavior for the purpose of allowing [the p]laintiffs to amend their
[c]omplaint to include exemplary damages, not whether such evidence is sufficient to
defeat a motion for summary judgment or to result in a jury verdict in [the p]laintiffs’ favor.”
RCHFU, LLC v. Marriott Vacations Worldwide Corp., No. 16-cv-1301-PAB-GPG, 2018
WL 3055772, at *4 (D. Colo. May 10, 2018) (citing Am. Econ. Ins. Co. v. William
Schoolcraft, M.D., P.C., No. 05–cv–01870–LTB–BNB, 2007 WL 160951, at *2 (D. Colo.
Jan. 17, 2007)).
Plaintiffs assert they can make the necessary evidentiary showing that a triable
issue exists as to willful and wanton conduct because SMH was conscious of its conduct,
the existing conditions, and knew or should have known that injury would result. Motion
[#112] at 4. Plaintiffs state there were no healthcare staff at MCDC on weekends, that the
deputies working in MCDC had no training in monitoring inmates experiencing alcohol
withdrawal, and deputies were provided with no tools to evaluate withdrawal. Id. at 4-5.
Plaintiffs argue that SMH was “fully aware” of the limitations at MCDC and, when SMH
agreed to take on the duties of essentially being MCDC’s sole provider, that SMH
“established a recklessly insufficient system for satisfying those duties.” Id. at 5. Plaintiffs
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argue SMH failed to train or inform its staff about their obligation to consider the needs of
patients discharged to MCDC, and SMH failed to provide information needed to safely
house intoxicated and withdrawing inmates without medical staff. Id. Plaintiffs state that
SMH was on notice that its practices had caused deaths at MCDC, but that SMH did not
change its approach. Id. at 5, 11.
In support of these arguments, Plaintiffs point to deposition testimony and
discovery responses that demonstrate that SMH failed to educate or train its employees
about MCDC’s minimal or non-existent capabilities and resources to monitor inmates for
withdrawal. Id. at 8 (citing Ex. 5 [#112-5] (Bryce Durbin Depo. at 35:1-36:10) (regarding
MCDC’s practice of sending detoxing inmates to SMH’s emergency room because of
limited means to handle in-house); Ex. 6 [#112-6] (Daylan Guttridge Depo. at 12:5-25,
30:3-21) (discussing limited means available at MCDC to treat inmates going through
detox), Ex. 7 [#112-7] (Daniel Ruiz Depo. at 48:5-10) (discussing untrained deputy’s
“discretion” to determine what “signs and symptoms” of detox to look for); Ex. 9 [#112-9]
(County Response to Request for Admission No. 19) (admitting lack of awareness “of any
written requests by [SMH] relating to medical capabilities at the jail”); Ex. 15 [#112-15]
(Randy Gene Davidson, M.D. Depo. at 50:17-53:20) (acknowledging lack of medical unit
and detox center at MCDC and expressing unawareness as to whether MCDC has a mid-
level provider or doctor on staff and general uncertainty as to “what goes on at the county
jail”); Ex. 16 [#112-16] (Todd Fowler, M.D. at 36:12-39:8) (indicating lack of knowledge
about any “training session on what the hospital’s role is in medical clearances for [the]
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jail”); Ex. 18 [#112-18]6 (Prior Medical Screenings) (generally lacking follow-up care
instructions and information on what symptoms to monitor, except in one instance where
SMH provider noted, “[r]eturn for any new or concerning medical symptoms[.]”)).
Plaintiffs also assert SMH employees Nurse Gaddis, Dr. Fowler, and Dr. Davidson
all testified that they were unaware of MCDC’s limited medical capacity and were
operating under an incorrect impression that their exams were limited in scope to whether
the patient was experiencing an acute emergency medical condition at the time of
evaluation. Id. at 5, 7-8 (citing Ex. 15 [#112-15] (R. Davidson, M.D. Depo. at 50:17-53:20,
77:8-23, 93:18-94:7, 112:18-113:15); Ex. 16 [#112-16] (Fowler, M.D. Depo. at 36:12-39:8,
47:14-52:13, 57:25-58:16 (believing that MCDC staff “would be well versed in alcohol and
alcohol-related complications because . . . a significant number of their inmates arrive
intoxicated”)), 61:10-64:12, 67:15-21); Ex. 17 [#112-17] (Jennifer Gaddis Depo. at 66:10-
67:19 (expressing lack of awareness that MCDC did not have any full-time medical
providers in July 2021 or available medical providers on weekends)).
Plaintiffs also point to deposition testimony regarding SMH medical provider’s
practice of conducting jail detainee medical clearances in just three-to-ten minutes, an
insufficient amount of time. Id. at 10 (citing to Ex. 15 [#112-15] (R. Davidson, M.D. Depo.
at 68:23-69:3 (attesting that his “intoxication clearances” last “three to ten minutes”); Ex.
27 [#112-27] (Osborn Depo. at 29:15-30:7 (attesting that the “nursing portion of a medical
clearance based on intoxication . . . takes about five minutes”). Plaintiffs further assert
that “SMH was fully aware that the system it had set up was likely to result in serious
6 Filed under Level 1 restriction at Dkt. # 114-4.
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harm to patients, as several patients the hospital had perfunctorily cleared for
incarceration were subsequently dying shortly thereafter in jail[.]” Motion [#112] at 11
(citing Ex. 16 [#112-16] (T. Fowler, M.D. Depo. at 64:18-65:8 (acknowledging that, prior
to Mr. Newman’s death, another inmate “came to [SMH’s] ER, was cleared, left[,] came
back, was cleared, went to jail, and died the next day[.]”); Ex. 28 [#112-28] at 5 (news
article on the death of a MCDC inmate due to “[c]omplications of chronic alcohol abuse”
prior to Mr. Newman’s death).
SMH purportedly did not institute any discharge protocols that took into
consideration MCDC’s lack of medical monitoring or that facilitated information-sharing
between SMH and MCDC regarding follow-up care. Motion [#112] at 9. Further, Plaintiffs
contend that a “Prisoner Medical Clearance Report” form served as the only established
communication path from SMH to MCDC, but that the form was “usually [sent to MCDC]
without any medical content actually filled out.” Id. (citing to Ex. 5 [#112-5] (Bryce Durbin
Depo. at 9:5-10:8, 69:19-70:14); Ex. 17 [#112-17] (J. Gaddis Depo. at 63:6-65:13)
(indicating an inability to recall an instance when the deponent directly communicated
with someone at MCDC about a medically cleared patient)). In sum, Plaintiffs contend
that the circumstances of SMH’s failure to train and supervise rise to the level of willful
and wanton conduct and, therefore, exemplary damages are appropriate. As such,
Plaintiffs seek to amend their complaint to add a remedy of exemplary damages to the
claim of negligence against Defendant SMH.
In opposition, Defendant SMH argues that exemplary damages are disfavored
under Colorado law and Plaintiffs have not demonstrated a prima facie case of willful and
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wanton conduct. Response [#128] at 4, 7. Additionally, SMH argues that Plaintiffs have
failed to meet their burden of establishing a basis for exemplary damages because they
have not presented any expert who opines that negligent nursing care was the “but for”
cause of Mr. Newman’s death. Id. at 2, 12-16. SMH further opposes Plaintiffs’ Motion
because “merely negligent” conduct “cannot serve as the basis for exemplary damages,”
and, to the extent Plaintiffs’ request for exemplary damages is premised on medical
negligence, they have “fail[ed] to submit any [expert witness testimony] to support medical
negligence. Id. at 6-7, 12-16. SMH further argues that Plaintiffs’ medical negligence claim
cannot support exemplary damages against it because “[h]ospitals are statutorily
prohibited from dictating medical care” and, thus, “only doctors can conduct medical
clearances.” Id. at 8. Finally, SMH argues that Plaintiffs cannot rely on other MCDC
inmates’ medical clearance reports and the deaths of other MCDC inmates because, it
contends, “the Court has already rejected this type of evidence” when then-Magistrate
Judge Kristen L. Mix ruled on a discovery dispute during a live deposition. Id. at 10-12.
First, the Court rejects Defendant’s argument that denial of Plaintiffs’ Motion is
warranted because Plaintiffs have not demonstrated a prima facie case of willful and
wanton conduct. At the motion to amend stage, Plaintiffs’ burden of establishing a basis
for an exemplary damages claim is relatively low in comparison to their burden of proof
at trial. Affordify, Inc., 2020 WL 6290375, at *5.
“In ascertaining whether plaintiff[s’] proposed amended complaint is likely to
survive a motion to dismiss, the court must construe the complaint in the light most
favorable to plaintiff[s], and the allegations in the complaint must be accepted as true.”
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Bennett v. Wells Fargo Home Mortg., No. 16-cv-03185-CMA-KLM, 2017 WL 4675524, at
*1 (D. Colo. Oct. 18, 2017) (alterations original, further citation omitted). Pursuant to the
Colorado statute, “willful and wanton conduct” constitutes “conduct purposefully
committed which the actor must have realized as dangerous, done heedlessly and
recklessly, without regard to consequences, or of the rights and safety of others,
particularly the plaintiff.” Colo. Rev. Stat. § 13–21–102(1)(b).
Here, Plaintiffs have alleged that Defendant SMH was negligent in the operation
of a hospital and that SMH’s failure to train and supervise rises to the level of willful and
wanton conduct. See Proposed Third Amend. Compl. [#114-1]7 at ¶ 349 (alleging that
SMH “is vicariously liable for the negligent acts and omissions by their nursing agents
and/or employees”), ¶¶ 350-52 (alleging that SMH had a duty “of due care to . . . ensure
provision of reasonable medical, nursing or other health care to Mr. Newman” and “[a]ll
involved caregivers failed to fulfill their duty . . . to properly assess, diagnose, admit, and
treat Mr. Newman, causing his death”), ¶ 353 (SMH “breached [its] . . . standards and
duties of care and [was] negligent in failing to . . . provide for the admission, diagnosis
and proper care and treatment of Mr. Newman by properly qualified caregivers”); see also
Reply [#134] at 3 (clarifying that the negligence claim against SMH concerns “Nurse
Gaddis’s failure to conduct a comprehensive assessment, and [SMH’s] lack of policies
and training on medical clearance for incarceration[.]”). In support of the amendment,
7 While this proposed amended complaint is entitled, “Second Amended Civil Rights Complaint
with Request for Trial by Jury,” it is actually a proposed Third Amended Complaint. Pursuant to
the Court’s Order [#145] granting a different motion to amend to add a claim against SMH under
the Emergency Medical Treatment and Labor Act and 42 U.S.C. § 1983 deliberate indifference
claims against all SMH, the County, and Dr. Davidson, Plaintiffs filed a Second Amended
Complaint on November 17, 2023 [#148].
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Plaintiffs point to deposition testimony and other discovery that evinces SMH’s failure to
inform medical staff members of MCDC’s limited medical capacity and SMH’s failures to
amend discharge protocols to provide MCDC staff with follow-up care instructions and to
facilitate information-sharing between SMH and MCDC regarding follow-up care and
symptoms of concern. Motion [#112] at 4-5, 7-9.
Second, the Court rejects SMH’s argument that Plaintiffs have failed to meet their
burden because they have not presented any expert opinion that the nurse’s and/or
SMH’s negligence was the “but for” cause of Mr. Newman’s death. None of the cases
Defendant SMH relies on involve a court denying amendment because a plaintiff lacked
an expert opinion that negligence was a “but for” cause of harm to a patient. Williams v.
Boyle, 72 P.3d 392 (Colo. App. 2003) concerned a lower court’s dismissal of various
claims, including a medical malpractice claim, due to the plaintiff’s failure to file a
certificate of review. Hunter v. SCL Health-Front Range, Inc., 514 P.3d 322 (Colo. App.
2022) concerned the reversal of a lower court’s dismissal of claims upon finding a
certificate of review’s inadequacy. Rocky Mountain Planned Parenthood, Inc. v. Wagner,
467 P.3d 287 (Colo. 2020) concerned reversal of a summary judgment award to the
defendant medical clinic where the defendant failed to demonstrate that no reasonable
jury would conclude that its (in)actions were a substantial factor in causing the plaintiffs’
losses. Melville v. Southward, 791 P.2d 383 (Colo. 1990) concerned reversal of a jury
verdict where expert testimony was elicited from a medical professional who was not
qualified as an expert in the subject area. Moreover, the Court could find no authority to
support SMH’s argument.
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Further, in their Reply, Plaintiffs point to two expert opinions, one of which directly
addresses this issue. See Reply [#134] at 10 (citing to Ex. 13, Craig Felty Report [#112-
13] at 5-6 (opining that the “practices . . . exhibited by Southwest Memorial Hospital were
reckless and put patients like Kelroy Newman at an obvious risk of serious harm or
death”)).
Finally, the Court rejects SMH’s argument that Plaintiffs’ medical negligence claim
cannot support exemplary damages against it because Colorado law prohibits hospitals
from dictating medical care and “only doctors can conduct medical clearances.”
Response [#128] at 8. While SMH is correct that Plaintiffs “cannot sue [SMH] for medical
malpractice due to the corporate practice of medicine doctrine[,] . . . Colorado courts thus
analyze claims for direct negligence against a hospital or other healthcare entity under
the general elements of negligence.” Fahrenbruch by and through Darin Baehr of
Pinnacle Bank v. Peetz, No. 19-cv-02266-RBJ, 2021 WL 2550533, at *5 (D. Colo. June
22, 2021). The elements of negligence are: (1) the defendant owed a legal duty of care;
(2) the defendant breached that duty; (3) the plaintiff was injured; and (4) the defendant’s
breach caused that injury. Vigil v. Franklin, 103 P.3d 322, 325 (Colo. 2004).
In the Proposed Third Amended Complaint [#114-1], to support their sixth claim
for negligence against SMH, Plaintiffs allege that SMH:
• “is vicariously liable for the negligent acts and omissions by their nursing
agents and/or employees”;
• “through nursing and other allied health care professional staff, and/or
directly, . . .had duties of due care to provide or ensure provision of
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reasonable medical, nursing or health care to Mr. Newman by qualified
caregivers”;
• “owed [Mr. Newman] a duty to exercise the degree of care, skill, caution,
diligence, and foresight exercised by and expected of hospital, nursing,
allied health professional personnel and physicians including national
standards for emergency medicine physician specialists like Dr. Davidson”;
and
• “[t]hrough their actions and omissions, and those of their employees, . . .
[SMH] breached [its] respective standards and duties of care and were
negligent in failing to properly . . . provide for the . . . proper care and
treatment of Mr. Newman by properly qualified caregivers.”
¶¶ 349-50, 352-53.
Further, in their Reply, Plaintiffs clarify that their medical negligence claim against
SMH concerns “Nurse Gaddis’s failure to conduct a comprehensive assessment, and
[SMH’s] lack of policies and training on medical clearance for incarceration” and “but for”
Nurse Gaddis’s failure, “Mr. Newman would not have been sent to jail with a potentially
fatal .421 BAC, tachycardia, no follow-up instructions to deputies regarding withdrawal,
and that he would not have died from complications of alcohol withdrawal the next day.”
Reply [#134] at 3. For these reasons, the Court rejects SMH’s argument that exemplary
damages against it are barred by the corporate practice medicine doctrine. For reasons
already discussed, Plaintiffs have met their burden of establishing a prima facie case of
willful and wanton conduct for purposes of adding a punitive damages remedy.
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Finally, the Court disagrees with SMH’s contention that Plaintiffs cannot rely on
“medical clearance reports and the deaths of other prisoners medically cleared by the
doctors at SWMH . . . [because] the Court in this case has already rejected this type of
evidence.” Response [#128] at 10 (emphasis in original). The specific issue before then-
Magistrate Judge Kristen L. Mix concerned whether Plaintiffs’ counsel was permitted to
ask the non-party deponent, a SMH emergency room physician, questions about the care
he provided to an MCDC inmate over 10 years ago. See Response, Ex. 4 [#128-4]
(Transcript of May 11, 2023, Discovery Dispute Proceedings at 4:1-6:9). Plaintiffs’
counsel argued that line of questioning was relevant to an asserted negligence claim
against SMH. See id. at 8:4-10:11. Judge Mix’s oral ruling “precluded [Plaintiffs’ counsel]
from asking questions relating to the medical record [of a non-party decedent who died in
MCDC custody.]” Id. at 11:24-12:1. In so ruling, Judge Mix reasoned that “[t]he negligence
claim relates to the specific conduct directed towards the plaintiff . . . . Negligence can’t
be proven by showing a pattern of practice. It has to be shown by a breach of a duty to
an individual person.” Id. at 11:8-13. Thus, Judge Mix concluded that the “[pattern of
practice] evidence at this juncture to be [ir]relevant.” Id. at 11:13-14.
The issue presented in Plaintiffs’ Motion does not concern whether Plaintiffs may
prove negligence by a pattern of practice. Plaintiffs, rather, rely on other medical
clearances to argue that Defendant SMH was aware the system in place could result in
serious harm to patients, which goes to whether the conduct was willful and wanton.
Motion [#112] at 11; Reply [#133] at 9. In sum, Plaintiffs rely on the other deaths following
medical clearance to argue that SMH was reckless despite being on notice that its medical
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clearance policies and procedure purportedly caused multiple deaths. Reply [#133] at 9.8
As Plaintiffs are not seeking to argue a pattern of practice, amendment is not futile on this
ground.
III. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to Amend Complaint to
Add Punitive Damages Remedy Under State Law Negligence Claim [#112] is GRANTED.
IT IS FURTHER ORDERED that by December 7, 2023, Plaintiffs shall also file
their redacted Third Amended Complaint9 on the record.
IT IS FURTHER ORDERED that by December 7, 2023, Plaintiffs shall also file the
unredacted Third Amended Complaint under restriction on the record, which shall be
accompanied by a Motion to Restrict indicating why restriction of the unredacted Second
Amend Complaint is necessary, as required by D.C.COLO.LCivR 7.2(c).
Dated: November 30, 2023
BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
8 Defendant SMH’s Sur-reply [#144] concerns arguments raised in Plaintiffs’ Reply [#133]
regarding the Colorado Department of Health and Environment’s licensing requirements. Those
licensing requirements, however, are irrelevant to the Court’s analysis.
9 See note 7, above.
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