HomeMy WebLinkAbout2017CV884 - CHAYCE ANDERSON V. FCPS OFFICER JASON SHUTTERS - 141 - PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO MOTION FOR LEAVE TO FILE SURREPLYIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17-CV-00884-CMA-STV
CHAYCE AARON ANDERSON,
Plaintiff,
vs.
JASON SHUTTERS,
Defendant.
PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION
TO MOTION FOR LEAVE TO FILE SURREPLY
Plaintiff Chayce Aaron Anderson (“Mr. Anderson”), by and through undersigned
counsel, submits this Reply to Defendant’s opposition to Mr. Anderson’s motion for leave
to file a surreply.
I. INTRODUCTION
Jason Shutters (“Defendant”) filed his motion for summary judgment (Dkt. 128)
(“Motion for Summary Judgment”) on July 5, 2019, and Mr. Anderson filed his response
in opposition to Defendant’s Motion for Summary Judgment (Dkt. 133) (“Response”) on
July 26, 2019. On August 7, 2019, Defendant filed his reply in support of the Motion for
Summary Judgment (Dkt. 136) (“Reply”). While Defendant’s Motion for Summary
Judgment heavily relies on his own mischaracterization of a disturbance of skin sensation
diagnosis to dismiss Mr. Anderson’s injury as de minimis because there was purportedly
no visible injury, Defendant took a new step in his Reply of asserting that the basis for his
Motion for Summary Judgment is that Mr. Anderson’s only injury was a “scratch.”
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It is well-settled that new issues are not appropriate for the Reply. Similarly, it is
axiomatic that the Motion for Summary Judgment be based on facts and here, whether
intentional or not, Defendant’s Reply mischaracterizes certain facts about Mr. Anderson’s
injuries, which warrant correction. Accordingly, Mr. Anderson respectfully requests leave
to file the Surreply to fairly rebut Defendant’s new arguments and correct the
mischaracterized facts. In the alternative, Mr. Anderson asks that this Court strike
Defendant’s new arguments because they were raised for the first time in the Reply and
are founded on mischaracterizations in the record.
II. ARGUMENT
The Court Should Allow Mr. Anderson to File a Surreply or Strike Defendant’s New
Information.
Granting leave to file a surreply at the summary judgment stage is a question of
“supervision of litigation” within the district court’s discretion. Pippin v. Burlington Res. Oil
& Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006). In deciding whether to grant a Surreply,
courts consider whether (i) the movant’s reply contained new information for which the
opportunity to respond is needed or (ii) there is justification for the filing of the materials
outside the normal course of briefing. See Lopez v. Garcia, 1 F.Supp.2d 1404, 1406
(D.N.M.1997); see also Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, 62
F.Supp.2d 1186, 1187 n. 1 (D.Kan.1999). For purposes of this framework, “new
information” includes newly-presented reasons, evidence or legal arguments in support
of a motion for summary judgment. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159,
1164 (10th Cir. 1998) (quoting Cia. Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754
F.2d 404, 410 (1st Cir. 1985) (holding that nonmoving party should be granted an
opportunity to respond when the movant’s reply “advanced new reasons justifying
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summary judgment in its favor”); Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir.
2005) (stating that “new material” includes new evidence or legal arguments).
Likewise, new information that supports previously-made legal arguments may
also facilitate an opportunity for the nonmoving party to respond. See Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1139 (10th Cir. 2003) (holding that the court
incorrectly distinguished Beaird on the ground that it applied only to new legal arguments
supported by new information, whereas Beaird speaks to either new information or
arguments). Accordingly, when a district court accepts a reply brief with new information,
it must either (i) permit the nonmoving party to file a Surreply or (ii) disregard the new
information in deciding the motion. Beaird, 145 F.3d at 1163-65. As a result, Mr. Anderson
respectfully asks this Court to either grant leave to file the Surreply or strike the new
information from Defendant’s Reply.
1. Defendant’s Reply advances a new theory about Mr. Anderson’s injuries
to support his Motion for Summary Judgment.
“Rule 56(c) requires the nonmoving party to be given notice and a reasonable
opportunity to respond to the movant’s summary judgment materials.” See Beaird, 145
F.3d at 1159. Defendant’s Motion for Summary Judgment advanced a single theory for
why the court should grant his motion based on Mr. Anderson’s injuries. Defendant noted
that Mr. Anderson was diagnosed with disturbance of skin sensation and then
mischaracterized that diagnosis to assert Mr. Anderson suffered no visible “trauma,
swelling, redness, lacerations or abrasions.” See Motion for Summary Judgment at 8.
Defendant therefore contended that his injuries must be de minimis based on this
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purported lack of visible injury.1 Id. However, Defendant’s Reply advanced two theories
for why the court should grant his motion: (1) as in his initial Motion, Defendant claimed
Mr. Anderson suffered a de minimis injury because there was no visible “trauma, swelling,
redness, lacerations or abrasions;” and (2) under a new line of reasoning, Defendant
claimed Mr. Anderson’s “only injury was a scratch,” which is allegedly de minimis. Id.; see
Reply at 9. Mr. Anderson had no notice of this second alleged argument until Defendant’s
Reply, and as such, Mr. Anderson’s Response did not address this new theory of a
purported de minimis injury.
Thus, in his initial Motion, Defendant claimed that Plaintiff’s injury was de minimis
because he allegedly had no visible injuries based on a disturbance of skin sensation
diagnosis. But in his Reply, Defendant attempted to equate this diagnosis with a
superficial visible injury, such as a scratch.2 Defendant’s position in his Motion and in his
Reply are inherently inconsistent because scratches are visible abrasions or lacerations.
Mr. Anderson cannot lack all characteristics of an injury (as Defendant asserted in his
initial Motion) and simultaneously only suffer from a “scratch” (as Defendant exclusively
asserted in his Reply). Mr. Anderson should be permitted to address the second, new line
of reasoning and provide the Court a fair summary of what the medical records actually
say: a final diagnosis of disturbance of skin sensation, two differential diagnoses of “wrist
1 Defendant’s claim that injuries without visible symptoms are de minimis injuries, by
default, is not supported by the law and such a finding would lead to unconscionable
results.
2 The physician assistant who saw Mr. Anderson testified only that a disturbance
diagnosis generally could include a scratch—nowhere did the physician assistant state
that Mr. Anderson did have “nothing more than a scratch.” Dkt. 133-9 at 13:22-25.
Critically, there are no medical notes about a scratch or a diagnosis (differential or
otherwise) of the same.
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numbness” and “wrist trauma,” and discharge instructions for paresthesia that states the
numbness and tingling “can become permanent when there is nerve damage.” See
Movant’s Appx., pp. 22 to 32, UC Health Medical Records, Anderson 013.
Mr. Anderson recognizes that Defendant referenced “scratches” in his Motion for
Summary Judgment, but these references appear as exaggerated expressions of Mr.
Anderson’s injury rather than as the basis for Defendant’s claim that Mr. Anderson’s injury
was de minimis. Only in his Reply did Defendant unequivocally assert that Mr. Anderson’s
“only injury was a scratch” and attempt to use that (false) claim to contend that Mr.
Anderson’s injury was de minimis. Had Mr. Anderson known Defendant was going to
assert two contradictory theories about the severity of Mr. Anderson’s injuries, Mr.
Anderson would have addressed them accordingly in his Response.
2. Defendant’s Improper Definition of Mr. Anderson’s Diagnosis Demands
Consideration of ICD Code Definitions.
Throughout the Reply, Defendant interchangeably uses the word “scratch” to
describe the disturbance of skin sensation, ICD-9-CM Code 782.0, diagnosis. To the
contrary, the American Medical Association states the description of the diagnosis under
Code 782.0 as an “anesthesia of skin, burning or prickling sensation, hyperesthesia,
hypoesthesia, numbness, paresthesia, tingling.” See Surreply at Supplemental Ex. 1;
AAPC, ICD-9 Code 782.0 – SYMPTOMS (780-789), https://coder.aapc.com/icd9-
codes/782.0 (date accessed August 16, 2019). Because of Defendant’s
mischaracterization, Mr. Anderson sought to correct the record in his Surreply by showing
how the International Classification of Diseases, Ninth Revision, Clinical Modification
(“ICD-9-CM”) defines the diagnosis—in other words, the actual, publicly-available
definition of the diagnosis. Defendant alleged in his opposition that Mr. Anderson cannot
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correct his improper definition of disturbance of skin sensation because (1) Defendant did
not discuss the ICD-9-CM and because (2) the ICD-9-CM is not “supported anywhere in
the record.” Both are untrue. The medical records to which Defendant cites in his Motion
explicitly refer to ICD-9-CM codes, namely, Mr. Anderson’s “Final Diagnoses” under “ICD-
9-CM Code 782.0.” See Motion at 6, 8; Reply at 5; see also Movant’s Appx., pp. 22 to 32,
UC Health Medical Records, Anderson 013. Any reference to Mr. Anderson’s diagnosis,
which was categorized under ICD-9-CM codes, inherently incorporate the ICD-9-CM.3 Mr.
Anderson simply provides the official definition for his diagnosis to avoid any confusion
and correct Defendant’s mischaracterization of that diagnosis. It is telling that Defendant
now asks the Court to ignore the actual definition of a diagnosis—and consider only his
own made-up definition—that he claims proves Plaintiff’s injury was de minimis. In the
3 While Defendant attempts to characterize Mr. Anderson’s references to ICD codes as
improper expert evidence, the following is indisputably true and Mr. Anderson requests
judicial notice of these facts: (1) at the time of Mr. Anderson’s injuries, the ICD-9-CM was
the standard medical code used in the United States (see 45 C.F.R. § 162.1002); (2) Mr.
Anderson was diagnosed with disturbance of skin sensation under ICD-9-CM Code 782.0
(see generally, Movant’s Appx., pp. 22 to 32, UC Health Medical Records, Anderson 013);
(3) the American Medical Association describes a disturbance of skin sensation diagnosis
as an “anesthesia of skin, burning or prickling sensation, hyperesthesia, hypoesthesia,
numbness, paresthesia, tingling” (see Surreply at Supplemental Ex. 1); and (4) a
disturbance of skin sensation diagnosis does not describe a scratch or any other type of
superficial injury. Id; see also “anesthesia”, “hyperesthesia,” “hypoesthesia” and
“paraesthia,” Merriam-Webster’s Dictionary (2019), available at https://www.merriam-
webster.com/dictionary.
Mr. Anderson respectfully requests the Court take judicial notice of these facts. See
F.R.E. 201(b) (A fact may be judicially noticed if “it is not subject to reasonable dispute in
that it is ... capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably by questioned.”); see also F.R.E. 201(f) (“judicial notice may
be taken at any stage of the proceeding”); F.R.E. 201(d) (“court shall take judicial notice
if requested by a party and supplied with the necessary information”)(emphasis added).
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interest of justice, the Court should fully evaluate Defendant’s Motion based on accurate
information.
III. CONCLUSION
In his Reply, Defendant supplied a new line of reasoning to support his contention
that Mr. Anderson’s wrist injuries were de minimis. Accordingly, in the interest of fairness,
the Court should either permit Mr. Anderson to file his Surreply or strike Defendant’s new
argument (and his mischaracterizations of the record supporting it). Because Mr.
Anderson’s Surreply is limited to responding to Defendant’s new arguments—and
correcting the record in doing so—consideration of Mr. Anderson’s Surreply will help the
Court more fully and fairly evaluate the pending Motion for Summary Judgment.
Dated this 29th day of August 2019.
s/Christopher J. Casolaro_____________
Christopher J. Casolaro
Travis Jordan
Heather Campbell Burgess
Alexandra Lakshmanan
FAEGRE BAKER DANIELS LLP
1144 Fifteenth Street, Suite 3400
Denver, CO 80202
Telephone: (303) 607-3500
Facsimile: (303) 607-3600
christopher.casolaro@faegrebd.com
travis.jordan@faegrebd.com
heather.burgess@faegrebd.com
allie.lakshmanan@faegrebd.com
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
The undersigned certifies that on August 29, 2019, a true and correct copy of the
foregoing PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO MOTION FOR
LEAVE TO FILE SURREPLY was served on the following counsel of record via the
Court’s CM/ECF e-file system:
Mark S. Ratner, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, Colorado 80202
Ratnerm@hallevans.com
Attorneys for Defendant
s/Vanessa Sanchez________________
Paralegal
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