Gallas v. USA

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 23-cv-00518-SKC-MDB
JENNA LYNN GALLAS, formerly known as Jenna Lynn Hubbs,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
ORDER
Before 	the 	Court 	is 	the 	Recommendation 	of 	Magistrate 	Judge 	Maritza
Dominguez Braswell (Dkt. 33) to deny Defendant’s Motion to Dismiss (Dkt. 13).
Defendant has filed a Partial Objection to the Recommendation (Dkt. 36) and Plaintiff
filed a Response to the Partial Objection1 (Dkt. 38). For the reasons shared below, the
1 Throughout Plaintiff’s Response, counsel refers to Judge Dominguez Braswell as
“Magistrate Braswell,” and worse, “Mag. Braswell.” Since 1990, those who hold Judge
Dominguez Braswell’s current (and this Court’s former) position across the country
have been known as “United States Magistrate Judges.” Judicial Improvements Act
of 1990, codified in part at 28 U.S.C. § 631 (emphasis added). That means the title of
“Magistrate Judge” has been in use for 35 years. Omission of the word “Judge” from
her official title may reflect mere carelessness, but it is nevertheless inappropriate.
The further truncation of “Magistrate” to “Mag.” is similarly unfitting. “Magistrate
Judge” or “Judge” should be used.
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 1 of 10

2
Court accepts the Recommendation and incorporates it into this Order by reference.
See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
A. STANDARD OF REVIEW
Under Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of a
magistrate judge’s recommendation that is properly objected to. An objection is
proper only if it is sufficiently specific “to focus the district court’s attention on the
factual and legal issues that are truly in dispute.” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). “In the absence of a timely objection, the
district court may review a [magistrate judge’s] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).
B. BACKGROUND
As set forth more fully in the Recommendation, this is an action against
Defendant United States of America under the Federal Tort Claims Act (FTCA) for
professional negligence concerning medical care provided to Plaintiff at Evans Army
Community Hospital in Fort Carson, Colorado (“Army Hospital”). While stationed at
Fort Carson as a military-dependent spouse, Plaintiff began experiencing tingling
and numbness in her legs and left side of her body, as well as fatigue, dizziness,
speech impairment, balance issues, migraines, and visual blurring. At the onset of
these symptoms in 2013, she sought treatment over the course of four years at the
Army Hospital, but her symptoms continued to worsen. Plaintiff alleges that during
her care, her military medical providers failed to provide adequate care or an accurate
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 2 of 10

3
diagnosis and instead prescribed medication to treat symptoms unrelated to her true
(and later discovered) health condition, Multiple Sclerosis (MS).
Plaintiff’s military health care benefits ended in 2017 with her divorce from
her military spouse. At this point, Plaintiff alleges she had only been diagnosed with
migraines and anxiety. However, this changed in 2018, when she developed double
vision 	while 	driving 	home 	from 	work. 	Plaintiff 	immediately 	sought 	treatment
through her civilian medical providers, who diagnosed her with advanced MS in June
2018.
In 	this 	action, 	Plaintiff 	alleges 	her 	previous 	military 	medical 	providers
negligently provided her the level of care that a reasonably prudent health care
professional practicing in the same capacity would have provided in the same or
similar circumstances. She claims these medical providers’ negligence in their
misdiagnoses or failure to properly diagnose Plaintiff in a timely manner was the
direct and proximate cause of her resulting injuries, damages, and losses.
C. THE RECOMMENDATION & OBJECTION
Defendant’s partial objection is limited. In its objection, Defendant agrees
Judge Dominguez Braswell “correctly determined that Colorado’s three-year statute
of repose [Colo. Rev. Stat. § 13-80-102.5(1)] applies in this action, because the FTCA
incorporates, rather than preempts, state substantive law[,]” and she “was also
correct in concluding that the statute of repose extinguished Plaintiff’s claim because
the relevant acts or omissions in this case occurred nearly eight years before Plaintiff
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 3 of 10

4
filed her complaint.” Dkt. 36, p.1. Defendant objects and argues, however, that Judge
Dominguez Braswell “erred in ruling that two statutory exceptions rescue Plaintiff’s
claim from extinction.” Id.
In this regard, Judge Dominguez Braswell noted the three-year repose period
under Colorado law is subject to several exceptions, including the concealment
exception and the impossible-to-discover exception. Colo. Rev. Stat. § 13-80-102.5(3).
After determining the statute of repose applies and is not preempted by the FTCA,
Judge Dominguez Braswell analyzed these two exceptions and found both apply to
save Plaintiff’s claim.
Plaintiff alleges the statute of repose began to run on August 5, 2014—the date
of her last visit with Dr. Langford at the Army Hospital—causing the repose period
to have expired on August 5, 2017. Plaintiff also asserts that because she did not
discover—and in the exercise of reasonable diligence, could not have discovered—her
injury and its cause until May 23, 2018 (the date she began developing double-vision),
the exception applies.
Defendant contends the repose period began on December 31, 2015—the date
of Plaintiff’s final visit to the Army Hospital—so the repose period expired on
December 31, 2018. According to Defendant, because Plaintiff knew about her injury
within the repose period (by June 1, 2018—the date an MRI highly suggested MS),
the impossible-to-discover exception is inapplicable.
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 4 of 10

5
Considering these arguments, Judge Dominguez Braswell determined the
essence of Defendant’s contention was a continuing-course-of-treatment argument,
arguing that because the Complaint indicates Plaintiff received care from Army
Hospital medical personnel into December 2015, her claim must consider the acts or
omissions of all her Army medical providers. In evaluating whether the impossible-
to-discover exception applied, Judge Dominguez Braswell first examined the start of
the repose period, which hinged on what constitutes “treatment” from among the
various medical services Plaintiff received from Army Hospital personnel. Judge
Dominguez 	Braswell 	found 	the 	subsequent 	treatment 	Plaintiff 	received 	from
providers after Dr. Langford’s August 5, 2014 treatment was for Plaintiff’s primary
diagnosis of eczema and chronic left knee pain. She added:
To be fair, according to the Complaint, notes from these visits list
Plaintiff’s “Neurological conditions, Persistent Migraine Aura, Anxiety,
Tingling (paresthesia), [and] Numbness of Both Legs[.]” (Id. at ¶ 37.)
But merely noting Plaintiff’s history does not support that Plaintiff was
actually 	treated 	for 	neurological 	symptoms. 	Therefore, 	the 	Court
concludes the later treatments do not constitute a continuation of
treatment for Plaintiff’s neurological conditions, and the “final act
constituting the treatment” was on August 5, 2014, when Plaintiff last
saw Dr. Langford for her neurological conditions.
Dkt. 33, p.11.
Judge 	Dominguez 	Braswell 	further 	rejected 	Defendant’s 	argument 	that
Plaintiff should have known about her injury and its cause, during the applicable
period, through the exercise of reasonable diligence, finding that argument involved
disputed issues of fact not appropriate for resolution at this stage.
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 5 of 10

6
D. ANALYSIS
Reviewing the Recommendation’s application of the impossible-to-discover
exception de novo, the Court overrules Defendant’s objection. First, the Court agrees
with Judge Dominguez Braswell’s interpretation of the term “treatment,” when
considering an ongoing course of treatment, as limited to treatment Plaintiff received
specific to her illness or condition. See Comstock v. Collier, 737 P.2d 845, 848, 849
(Colo. 1987) (“[I]n the case of a continuous course of treatment for a particular
condition, we conclude that the three-year statute of repose does not begin running
until 	the 	final 	act 	constituting 	the 	treatment.”), 	(“[R]egardless 	of 	the 	date 	of
discovery, an action is barred three years after termination of treatment for a
particular condition.”) (emphases added); Lane v. Lane, 752 S.W.2d 25, 26, 27 (Ark.
1988) (citing sources defining “continuous treatment” as treatment “for the particular
disease or condition involved” or “for the same or related condition”); Samuelson v.
Freeman, 454 P.2d 406, 410 (Wash. 1969) (“[I]f malpractice is claimed during a
continuous and substantially uninterrupted course of treatment for a particular
illness or condition, the statute does not begin to run until the treatment for that
particular illness or condition has been terminated.”) (emphasis added); Borgia v. City
of New York, 187 N.E.2d 777, 779 (N.Y. 1962), aff’d, 204 N.E.2d 207 (N.Y. 1964) (“The
‘continuous treatment’ we mean is treatment for the same or related illnesses or
injuries, continuing after the alleged acts of malpractice, not mere continuity of a
general physician-patient relationship.”).
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 6 of 10

7
The Complaint alleges Plaintiff presented at the Army Hospital on June 17,
2014, and was seen by Dr. Langford “for episodic neurologic symptoms with headache,
vision changes, numbness, tingling, left arm tremors, disequilibrium, slurred speech,
and blurred vision.” Dkt. 1, ¶30. At that time, he diagnosed her with “probable
migrainous auras” and possible anxiety, prescribed her Topamax,2 and reviewed
digital images of her MRI which showed “normal” results. Id. at ¶31. Plaintiff saw
Dr. Langford again for the final time on August 5, 2014. Id. at ¶36. At that time, Dr.
Langford found Plaintiff’s reported symptoms supported his diagnosis of migraines
as 	the 	cause 	“of 	these 	spells, 	rather 	than 	simple 	partial 	seizures[,]” 	and 	he
documented her other various subjective symptoms. Id. He also noted that Plaintiff
responded well to the low dose of Topamax and reported that her June 2014 MRI and
June 17, 2014 labs were normal. Id.
Thereafter, on October 23, 2014, Plaintiff presented at Army Hospital’s
Allergy/Immunology Department for her primary diagnosis of Dyshidrotic Eczema.
Id. at ¶37. In 2014 and 2015, various medical treatment providers from Army
Hospital treated Plaintiff for extreme eczema on her hands and chronic left knee pain;
no medical provider employed by Defendant followed up on certain radiology notes
from the 2014 MRI. Id. at ¶38. The Complaint alleges, “until her divorce, the Army
Medical Providers had failed to provide any affirming diagnosis or diagnoses of her
2 Topamax is primarily used to treat seizures and prevent migraine headaches. See
https://www.drugs.com/topamax.html.
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 7 of 10

8
unexplained, troubling, and life-limiting symptoms she had lived with since 2013.
With the only misdiagnosis of unexplained ‘migraines’ provided by the Army Medical
Providers, Plaintiff had to learn to live with her dizziness, headache, vision changes,
left side numbness, tingling, left arm tremors, disequilibrium, slurred speech, and
blurred vision, and weakness.” Id. at ¶40.
The Court finds these allegations in the Complaint plausibly allege Plaintiff’s
course of treatment related to her condition of MS ended with her last visit with Dr.
Langford on August 5, 2014. There is no allegation in the Complaint to suggest that
the treatment she received thereafter for eczema and knee pain was somehow related
to her prior course of treatment for her yet undiagnosed MS. And it is of no moment
that Plaintiff received subsequent care in the form of prescribed migraine pain
medication, as Defendant argues. The Court agrees with Judge Dominguez Braswell
that ongoing prescription medication alone does not constitute continuing treatment.
See, e.g., Isabella v. Eid, No. 09-cv-5903-NRB, 2011 WL 2421291, at *5 (S.D.N.Y. June
7, 2011) (citing cases concerning an isolated prescription medication or outstanding
prescription, without more, does not constitute continuous treatment). Nor does the
mere listing of Plaintiff’s medical history in medical treatment notes, without more,
constitute ongoing treatment as Judge Dominguez Braswell found. Dkt. 33, p.11.
The Court further agrees with Judge Dominguez Braswell’s conclusion that
whether and when Plaintiff knew (or should have known through reasonable
diligence) of her injury and its alleged cause requires further factual development. At
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 8 of 10

9
this 	motion-to-dismiss 	stage, 	the 	Court 	finds 	the 	Complaint 	plausibly 	alleges
Plaintiff’s lack of knowledge. Dkt. 1, ¶40.
Plaintiff did not receive a diagnosis of MS until June 1, 2018, when she saw
civilian medical personnel. Dkt. 1, ¶¶46-49. She filed her FTCA Notice of Claim on
May 8, 2020. Id. at ¶9. She received no response to her Notice and filed this action on
February 27, 2023. Dkt. 38, p.6 (arguing Plaintiff “timely brought her claim against
Defendant within two years of learning of Defendant’s misdiagnosis on June 1, 2018
(filed FTCA Notice of Claim on May 8, 2020) pursuant to the Impossible to Discover
exception to Colorado’s statute of repose.”). Application of the impossible-to-discover
exception to the repose period, therefore, makes her claim timely.
* 	* 	*
For the reasons shared above, the Court OVERRULES Defendant’s partial
objection, ACCEPTS and ADOPTS the Recommendation (Dkt. 33) and DENIES the
Motion to Dismiss (Dkt. 13).3 It is FURTHER ORDERED that the discovery stay is
hereby LIFTED. The parties are ORDERED to promptly contact the Chambers of
Judge Dominguez Braswell to set this matter for time before her to determine the
next steps in litigating this case.
DATED: March 27, 2025
3 Because the Court finds the one exception applies, it need not consider the other.
Defendant’s objection concerning the concealment exception is OVERRULED as
MOOT.
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 9 of 10

10
BY THE COURT:
______________________________
S. Kato Crews
United States District Judge
Case No. 1:23-cv-00518-SKC-MDB Document 39 filed 03/27/25 USDC Colorado
pg 10 of 10