Case 1:16-cv-01404-PAB-GPG Document 28 Filed 09/06/16 USDC Colorado Page 1 of 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.: 16-cv-01404-PAB-GPG
JOHN DOE,
Plaintiff,
v.
ASPEN VALLEY HOSPITAL DISTRICT (d/b/a ASPEN VALLEY HOSPITAL);
ALICIA MILLER, in her individual and official capacities,
DAWN GILKERSON, in her individual and official capacities,
ELAINE GERSON, in her individual and official capacities,
STEPHEN KNOWLES, in his individual and official capacities, and
MICHELLE GELROTH, in her individual and official capacities,
Defendants.
______________________________________________________________________________
SCHEDULING ORDER
______________________________________________________________________________
1. DATE OF CONFERENCE
AND APPEARANCES OF COUNSEL
The Scheduling/Planning Conference pursuant to Fed.R.Civ.P. 16(b) is scheduled for
September 13, 2016, at 9:30 a.m., in Room 323 (Grand Junction) before Magistrate Judge
Gordon P. Gallagher.
Appearing by telephone for the parties are:
Mari Newman
Eudoxie (Dunia) Dickey
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
mnewman@kln-law.com
ddickey@kln-law.com

Leslie Miller, Esq.

The Law Offices of Leslie Miller, LLC
P.O. Box 2671
Centennial, CO 80161
(720) 316-5545
leslie@lesliemillerlaw.com
Attorney for Defendants

Attorneys for Plaintiff

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2. STATEMENT OF JURISDICTION
This action arises under the Constitution and laws of the United States and the State of
Colorado, and is brought pursuant to Title 42 U.S.C. 1983, the Family Medical Leave Act, 29
U.S.C. 2615(a) (FMLA), and Colorado common law.
Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331 and 1343. Jurisdiction
supporting Plaintiffs claims for attorneys fees and costs is conferred by 42 U.S.C. 1988.
Venue is proper in this Court pursuant to 28 U.S.C. 1391(b). All of the events alleged
herein occurred within the State of Colorado, and all of the parties were residents of the State at
the time of the events giving rise to this litigation.
3.
a.

STATEMENT OF CLAIMS AND DEFENSES

Plaintiff: 1

Plaintiff was an outstanding, successful and dedicated employee at Defendant Aspen Valley
Hospital for 11 years
Plaintiff began his employment with Defendant Aspen Valley Hospital, a non-profit,
public county hospital in Aspen, Colorado in 2003. During his 11-year tenure at Defendant
AVH, Plaintiff was an outstanding, respected, well-liked, dedicated and hardworking employee.
Throughout his career at the hospital, Plaintiff continually received ever-increasing
responsibilities and a series of promotions. For the vast majority of his more than decade-long
tenure at Defendant AVH, Plaintiff excelled in each role and was ranked as Outstanding and
Exceeds in his performance reviews, never receiving a merely Standard or Satisfactory
review. In his annual reviews, Plaintiffs supervisors consistently noted his effectiveness at his

Plaintiff incorporates his First Amended Complaint herein by reference.

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job, his many positive contributions to the hospital and his courteous, helpful attitude and
customer-centered approach.
Demonstrating the trust AVH reposited in Plaintiff, the hospital tapped him in 2011 to
work directly with then-CEO Dave Ressler in the formation of the new Clinical Integration
Committee, which was created to help rein in the hospitals ever-increasing healthcare costs.
Plaintiff also worked closely on many hospital-wide issues with the Board of Directors and its
Chair. In his 2011-2012 performance review, Plaintiff earned an Outstanding rating and a
superlative numerical score of 1.88 out of a possible 2.00. In his 2012-2013 performance
review, which was approved by Defendant Miller and in which Plaintiff received an Exceeds
rating, Plaintiff earned the following praise from his supervisor, who applauded his desire to go
above and beyond by taking on extra responsibilities and taking the initiative to join several
hospital-wide committees:
[Plaintiff] is very accountable for his actions and his job duties. He has taken on
additional duties this year, and is striving to succeed in those areas [Plaintiff] is
an outstanding team player - always happy to get involved in something new or
willing to assist another employee. [Plaintiff] is the go-to person when the
administrative assistant is out of the office. [Plaintiff] has also taken on additional
work this year the service excellence committee, emergency management
committee, and the education committee. Of note [Plaintiff] was again
nominated for a bear hug due to his teamwork [Plaintiff] has a high rating for
courtesy and sensitivity Also [Plaintiff] is very customer centered as it relates
to meeting the needs of his customers [Plaintiff] is very trustworthy and
therefore is called upon to assist in matters not necessarily part of his job.
[Plaintiff] does a fantastic job with the call schedule and the ready reference
packet each month. He is extremely diligent.
In August 2013, Plaintiff received a promotion to the position of Help Desk / Desktop
Technician, joining the IT Department and challenging himself to learn new technical skills in
troubleshooting computer issues for the hospital. In this role, as in the past, Plaintiff was sought
out by AVH staff members who came to him with various computer issues for providing

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excellent and friendly customer service. Indeed, IT Director David Bingham described Plaintiff
as the go to guy at the hospital. In his 2013-2014 performance review, which he received on
May 31, 2014 and which was approved by Defendant Miller as well as by then-Chief Financial
Officer and the current Interim Chief Executive Officer Terry Collins, Plaintiff again earned an
Exceeds rating. His new supervisor, who had personally recruited Plaintiff to this new role in
order to improve customer service within the IT Department, lauded Plaintiffs ability to quickly
learn new skills, to build relationships, and to help out whenever needed:
[Plaintiff] came into a new department this year and has applied his organizational
knowledge and demeanor from his former role to his IT role. He excels and being
accountable [sic] for his actions. He follows through on all commitments and
clearly takes pride and ownership of his new IT duties. [Plaintiff] has had to learn
many new processes on his own and he quickly developed an ability to
understand what was asked of his as a front line support person. [Plaintiff] not
only holds himself accountable but he also holds others on the team
accountable [Plaintiff] excels at building relationship within the team and
across the hospital. He immediately took [a] call in his first week when personnel
issues created a gap. This is one example of many where [Plaintiff] will pitch in
and assist in any manner needed [Plaintiff] continually models all behaviors of
a respectful employee. He is respectful to all levels of people he encounters from
physicians to patients [Plaintiff] is a go to staff member and can be counted
on in all situations.
In over a decade at the hospital, Plaintiff had never once received any write-ups, negative
reviews or other disciplinary action until just two weeks after Defendant AVH and Defendant
Miller learned that he had made a complaint to the Office of Civil Rights in connection with
Defendants unlawful disclosure of his confidential HIV-positive status. This write-up was the
first step in an escalating retaliatory campaign of harassment, persecution and enhanced scrutiny
orchestrated by Defendant Miller and ratified by Defendant AVH that ultimately culminated in
their wrongful, retaliatory termination of Plaintiff.

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Defendants AVHs and Alicia Millers Unlawful, Willful and Wanton HIPAA Breach
The gears for Plaintiffs illegal and retaliatory termination were set in motion on or about
September 23, 2012, when Defendant Miller intentionally, willfully and wantonly revealed
Plaintiffs closely guarded personal health information specifically his highly confidential
HIV-positive status as a piece of conversational gossip over drinks, to fellow HR co-worker
Marlene Saleeby in flagrant violation of the Privacy Rule contained in the Health Insurance
Portability and Accountability Act of 1993 (HIPAA), Colorado privacy protections, and AVHs
own policies respecting HIPAA privacy protections.
For obvious reasons, Plaintiff had carefully guarded this sensitive medical information,
even concealing it from his family members and close friends. In fact, he went to great lengths
to keep his HIV-positive status confidential, taking multiple steps to ensure the privacy of his
Personal Health Information even in the context of purely confidential doctor-patient
communications protected by HIPAA. Among other precautions, Plaintiff: (i) initially paid in
cash for blood tests so that no insurance claim record would be created confirming his HIVpositive status, which is often shared among insurance companies; (ii) asked his physician to
submit his blood tests using a fictitious name, as all the blood from his office would be processed
through Defendant Aspen Valley Hospital, and he (in retrospect, reasonably) feared one of his
co-workers might learn that he was HIV-positive; (iii) asked his physician to disguise his
diagnosis, which was normally printed on the registration form at the hospitals registration desk
and would have been visible to the registration clerks, (iv) arranged to register in a private office
instead of at the hospital reception desk; (v) in consultation with his physician, arranged that only
the Director of Medical Records and one other staff person would be coding and handling

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charges for his medical records; and (vi) also arranged that he would become a Confidential
Patient, whereby his medical records were locked down.
Notwithstanding Plaintiffs herculean efforts to maintain his medical privacy, his
supervisor, Alicia Miller, learned of Plaintiffs HIV-positive status in late 2011 or early 2012
when Defendant AVH tasked her with reducing health insurance costs for the self-insured
hospital by reviewing its individual health insurance records provided by its carrier. In so doing,
Defendant AVH granted Defendant Miller access to employee records, including those of
Plaintiff, which stood out because his HIV anti-viral medications were expensive and therefore
exceeded many of the other employees health insurance costs. And these costs did not go
unnoticed; following a meeting of the Clinical Integration Committee in 2012, of which Plaintiff
was a member, Defendant Miller looked Plaintiff in the eyes, and in reference to a high-cost
health insurance claimant discussed at the meeting, told him If I ever heard of someone like
that, the first thing I would do is to get him off the plan, signaling to Plaintiff she was aware that
he was the high-cost claimant in question because of his HIV-positive status and consequent
need for expensive anti-viral medications.
Ms. Miller could not resist sharing this salacious piece of information. On September 23
or September 24, 2012, Defendant Miller the Hospitals so-called privacy officer
unlawfully, willfully and wantonly disclosed Plaintiffs HIV-positive status to her HR co-worker
and subordinate Marlene Saleeby, as a piece of casual conversational gossip while the two were
attending an HR professionals convention in Denver. As Ms. Saleeby and Ms. Miller sat on a
restaurant patio on the busy 16th Street Mall in downtown Denver discussing the various sessions
of the conference, Ms. Miller disclosed to Ms. Saleeby that Plaintiff was HIV positive. Ms.
Saleeby told Ms. Miller that she wished Ms. Miller had never revealed Plaintiffs confidential

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health diagnosis to her, and that she felt horrible knowing since his private medical information
is nobodys business but his. Ms. Miller explained that although Plaintiff had never disclosed his
HIV status to her either, but she had learned Plaintiff was HIV positive from reviewing high cost
medical claims in her capacity as the Administrator and Privacy Officer of the hospitals health
plan. There was no legitimate reason for the disclosure of Plaintiffs private and highly guarded
medical information. Ms. Miller immediately apologized for having disclosed Plaintiffs
confidential private health information, and continued to do so over the following days and
weeks, indicating her understanding that her disclosure of Plaintiffs HIV positive status was
wrongful.
At the time, Ms. Saleeby wanted very much to tell Plaintiff that Ms. Miller had so
casually revealed his confidential health information to her, or to file a formal complaint.
However, she was afraid of the repercussions of doing so because Ms. Miller was her direct
supervisor, part of the administration and the Executive Team at the hospital, and Ms. Saleeby
was afraid of retaliation and feared for her job. Ms. Saleeby felt threatened and saddened by Ms.
Millers ability to openly discuss such a private and serious issue without Plaintiffs consent or
knowledge. She was also even more concerned for Plaintiffs health but felt she could not let
him know why. Ms. Saleeby lost a great deal of sleep over this issue and it weighed heavily on
her heart because she was afraid she would get fired if she spoke with anyone about it.
Defendant Aspen Valley Hospitals Sham Investigation and Cover-Up of its and
Defendant Millers Outrageous Violation of HIPAA
Almost two years later on June 13, 2014, after Ms. Saleeby was no longer employed at
Aspen Valley Hospital and thus no longer afraid of retaliation, she called Plaintiff and finally
told him that she wanted to file a HIPAA complaint against Ms. Miller, but she wanted to get his
consent first because it concerned him and was very serious. Plaintiff seemed shocked and asked
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what it was. Before she told him, Ms. Saleeby made sure Plaintiff knew she thought this
information would hurt him and it was not her intention to bring him pain, but she felt he had a
right to know and wanted to set right a wrong. Ms. Saleeby then told Plaintiff that Ms. Miller
had told her he had HIV when the two were at a conference in Denver in September 2012.
Plaintiff was stunned that Ms. Miller had disclosed his private medical information, and
was extremely upset to find out Ms. Miller even knew of his HIV positive status. Most of all, he
was concerned about whom else Ms. Miller may have told. In light of his extremely private
nature, evidenced by the fact that he never even told close family members of the fact he was
HIV positive, let alone friends or co-workers, and in light of the many steps he took to keep his
private health information completely confidential, Defendant AVHs and Millers outrageous,
unauthorized and invasive disclosure of his HIV-positive status to a co-worker was particularly
damaging to Plaintiff.
On June 18, 2014, after receiving the go-ahead from Plaintiff, Ms. Saleeby called Ms.
Gerson to make a formal complaint against Ms. Miller regarding Ms. Millers unauthorized
disclosure of Plaintiffs confidential health information to her in 2012. Ms. Gerson told Ms.
Saleeby she would investigate the matter and take corrective action. At Ms. Gersons request,
Ms. Saleeby sent a summary of her complaint to Chief Compliance Officer Stephen Knowles on
June 24, 2014. The so-called investigation was doomed from the beginning because of the
intimate relationship between Defendants Alicia Miller and Stephen Knowles. Thus, although
Defendant Stephen Knowles, Defendant Elaine Gerson, and Chief Executive Officer Dan Bonk
were immediately informed of Defendant Millers impermissible disclosure, they willfully
ignored their legal and ethical obligations by failing to take Plaintiffs complaint seriously,

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conducting a sham investigation, and attempting to sweep this blatant HIPAA breach under the
rug, quickly concluding Defendant Miller (and thus Defendant AVH) had done nothing wrong.
Plaintiffs Constitutionally-Protected Complaint To The Office Of Civil Rights and the
First Volley in Defendants Vicious Campaign of Retaliation Against Plaintiff in Response
to His Exercise of His Constitutionally-Protected First Amendment Rights
Feeling disturbed, shocked, wracked with anxiety and violated especially after
Defendants assigned Defendant Millers intimate partner, Defendant Knowles, to investigate
her HIPAA violation Plaintiff reasonably feared that AVH management would never take
appropriate remedial action in response to Defendant Millers outrageous disclosure of his
sensitive HIV-positive status. Accordingly, Plaintiff exercised his First Amendment right to
petition the government and filed a complaint protesting Defendants AVHs and Millers HIPAA
violation with the federal Office of Civil Rights of the U.S. Department of Health and Human
Services (OCR) on June 25, 2014. On October 3rd, OCR sent a letter to both Plaintiff and
AVH acknowledging its initiation of an investigation, which both Plaintiff and Defendant AVH
received on or about October 7, 2014. On October 21st, just two weeks after Defendants learned
that Plaintiff had filed a formal OCR complaint, Defendants issued Plaintiff his first ever
disciplinary write-up in his 11 years of dedicated service to the hospital. This retaliatory writeup was the first step in an escalating campaign of persecution, harassment, enhanced scrutiny and
completely pretextual disciplinary action against Plaintiff all in retaliation for his
constitutionally protected whistleblowing activity orchestrated by none other than Defendant
Miller, with the help of Defendants Gerson, Gilkerson, Knowles and Gelroth. Recognizing this
action for what it was and seeking justice, Plaintiff submitted another complaint to OCR on
October 23rd, 2014 concerning Defendants retaliation for his first OCR filing.

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Defendants Retaliatory Treatment Was So Severe As To Require Plaintiff To Take Leave

Pursuant To The Family Medical Leave Act, Leading To Defendants Further Retaliation
Due the stress of Defendants relentless campaign of harassment and retaliation, his
compromised immune system and worsening tinnitus, Plaintiff took doctor-approved leave
pursuant to the Family Medical Leave Act (FMLA) for four weeks in November 2014, returning
to work on December 1, 2014. On December 3, 2014, just two days following his return,
Defendants Gelroth and Gilkerson, acting under Defendant Millers direction, presented Plaintiff
with a new job description for Help Desk Coordinator authored while he was out on FMLA
leave by none other than Defendant Miller. Pursuant to this new job description, Plaintiff was
demoted, stripped of numerous responsibilities, and had his pay reduced by approximately
$1,800 per month, in direct retaliation for both his OCR complaints and his recent FMLA leave.
Again reasonably and accurately understanding this to be a direct act of retaliation, Plaintiff
submitted a third complaint to OCR on January 3rd, 2015. On January 10th, 2015, Plaintiff also
sought assistance from the Department of Labor in connection with his retaliatory demotion
immediately following his return from approved FMLA leave.
After Plaintiff Filed His Third OCR Complaint and a Complaint with the U.S Department
of Labor Objecting to Defendants On-Going Retaliation, Defendant AVH Responded By
Firing Him
Continuing in December 2014 and January 2015, Defendants subjected Plaintiff to an
intensifying campaign of enhanced scrutiny, persistent harassing phone calls and texts on nights
and weekends and entirely pretextual disciplinary write-ups by Defendant Gelroth, complicit
with and acting at the behest of her superior, Defendant Miller and with the approval of
Defendants General Counsel Gerson and Chief Compliance Officer Knowles. In their efforts to
fabricate pretextual reasons to terminate Plaintiff in retaliation for his constitutionally and
federally protected actions that they hoped would pass legal muster, at Defendant Millers
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behest, Defendant Senior HR Specialist Gilkerson, Defendant IT Associate Director Gelroth, and
Defendant General Counsel Gerson were regularly meeting with Leslie Miller, AVHs outside
employment counsel in the days and weeks prior to Plaintiffs retaliatory termination.
On January 22, 2015, Defendants Gilkerson and Gelroth (pursuant to Defendant Millers
direction and with the approval of Defendants Gerson, Knowles and AVH), called Plaintiff into a
meeting and promptly fired him. Considering the bigger picture in particular the petty,
inaccurate, largely fabricated nature of AVHs purported reasons for terminating Plaintiff as well
as the escalating retaliatory campaign, enhanced scrutiny and harassment to which Defendants
subjected Plaintiff, beginning just two weeks following Defendant AVHs receipt of the letter
from OCR informing it of Plaintiffs HIPAA complaint; the striking two-day temporal proximity
between Plaintiffs return from approved FMLA leave and his retaliatory demotion and cut in
pay; Plaintiffs stellar 11-year tenure of service at AVH, during which time Plaintiff had never
once been written up, received any disciplinary action, and in fact had received only
Outstanding and Exceeds performance reviews and was widely known to have a reputation
as a friendly, customer-centered go to guy in the Hospital; and finally, AVHs long-time
custom, policy and practice of HIPAA violations, retaliatory discharges, and failure to discipline
offending employees, described in detail below it is abundantly clear that AVHs purported
reasons for terminating Plaintiff are clearly preposterous and mere pretext for Defendants
wrongful discharge of Plaintiff in direct retaliation for Plaintiffs exercise of his federally
protected rights.
The Federal Office Of Civil Rights Ultimately Determined That Defendants Aspen Valley
Hospital And Miller Had, Indeed, Violated HIPAA
Following a lengthy investigation, the Office of Civil Rights determined, by a
preponderance of the evidence, that Defendants had impermissibly used Plaintiffs protected
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health information when Defendant Aspen Valley Hospital employee Alicia Miller shared
Plaintiffs name and diagnostic information with a person who had no reason to know, then
Aspen Valley Hospital employee Marlene Saleeby, without a permissible reason to do so.
This unbiased investigation by a federal agency directly contradicted Defendants AVHs
and Knowles sham investigation, which was tainted by the fact that it was conducted by
Defendant Millers intimate partner, and was designed to cover-up Defendant AVHs and
Millers egregious HIPAA violation.
Despite OCRs conclusive findings, Defendant AVH has continued to deny
accountability for its Privacy Officer Defendant Millers outrageous disclosure or
appropriately discipline Defendant Miller, and continues to dismiss the gravity of Plaintiffs
concerns or to offer him an apology. In a letter to Plaintiff dated August 13, 2015, Defendant
Knowles equivocated:
As you are aware Aspen Valley Hospital conducted a thorough, internal
investigation, and found that Ms. Miller did not access your diagnostic
information through any hospital records or health plan records; but it was
inconclusive as to where Ms. Miller obtained your diagnostic information. The
investigation determined that Ms. Saleby (sic) was the only person with whom
Ms. Miller discussed your diagnostic information. Since Ms. Saleby (sic) is no
longer an employee of Aspen Valley Hospital there are no additional efforts
that Aspen Valley Hospital can make at this time to reduce any potential harm
from the impermissible use of your diagnostic information.
Plaintiff Was and Continues to Be Severely Damaged by Defendants Retaliatory
Termination and Multiple Violations of His Rights
As a result of Defendants AVHs and Millers outrageous disclosure of Plaintiffs highly
confidential private health information, and Defendants subsequent escalating campaign of
persecution, harassment and retaliation for his exercise of his federally-protected rights, Plaintiff
suffered serious emotional distress and health complications. In the months after he became
aware of Defendant Millers wrongful disclosure, Plaintiff suffered extreme stress, anxiety,
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depression, sleeplessness, and mental anguish that he described as eating away at him like a
cancer. He sought treatment with both a therapist and psychiatrist, who prescribed increasing
doses of anti-depressant medications. Defendants subsequent campaign of retaliation and
harassment exacerbated Plaintiffs health issues, requiring his personal physician to recommend
that he take a month-long FMLA leave. Following his return to work on December 1, he
suffered worsening physical and emotional symptoms and continued meeting with a therapist
and psychiatrist until Defendants wrongful termination stripped him of his health insurance
benefits, at which point he was forced to stop seeing them because they do not accept Medicaid.
Further, Defendants AVHs and Millers unauthorized disclosure and Defendants
wrongful, retaliatory termination have damaged Plaintiffs personal character and professional
reputation, particularly in light of the small-town nature of the Aspen Valley, where news travels
fast and reputations can be permanently damaged in an instant.
Defendants wrongful, illegal and vindictive actions have caused Plaintiff to suffer
devastating financial, emotional, mental and reputational damages, harmed his already
compromised health and jeopardized his access to the vital anti-viral medications he needs in
order to survive, which medications Plaintiff is now able to obtain thanks only to Colorados
recent Medicaid expansion. Adding insult to injury and continuing its vindictive and illegal
pattern of retaliation, Defendant AVH then contested Plaintiffs request for Unemployment
Insurance (UI) benefits in an effort to further jeopardize Plaintiffs ability to afford his
medications. Plaintiff was and continues to be gravely financially, physically, emotionally,
psychologically and reputationally damaged by Defendants numerous unlawful actions.

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Defendant Aspen Valley Hospitals Custom, Policy and Practice of HIPAA Violations,
Retaliatory Terminations, and Failure to Train, Supervise and Discipline Employees
Unfortunately, Defendants AVHs and Millers flagrant breach of HIPAA and hospital
policy in revealing Plaintiffs confidential HIV-positive status and the subsequent retaliatory
campaign to which they subjected him was not an isolated case, but rather was part of Defendant
AVHs custom, policy and practice of illegally disclosing employees and patients Private
Health Information, failing to train, supervise and discipline the responsible employees, and
terminating the complaining employees in retaliation for exercising their constitutionally
protected First Amendment right to bring to light illegal HIPAA violations, only some of which
are detailed below.
On September 29, 2014, Alicia Schuller, a member of the Aspen Valley Hospital
Foundation, requested the IT Department (of which Plaintiff was a member) to create a
sophisticated database that would immediately send an email alert to members of the Foundation
whenever a VIP or wealthy client was admitted to the Emergency Room or the Progressive
Care Unit (PCU). The purpose of this database was to alert Hospital Foundation members,
tasked with fundraising for the hospital, so they could visit the ill wealthy individual, taking
advantage of the wealthy VIPs vulnerable health and presence at the hospital as a patient to
solicit donations for the hospital. In addition to representing an odious, predatory practice, the
creation of such a database is in direct violation of HIPAAs privacy protections because such a
practice requires the unauthorized sharing of patients confidential personal medical information
and hospital admission data to unrelated non-medical staff outside the hospital.
In response to a Freedom of Information Act (FOIA) request made by Plaintiff for any
and all information regarding HIPAA related complaints pertaining or relating to Aspen Valley
Hospital in the past five (5) years, the Department of Health and Human Services released 42
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pages of complaints made by patients and former employees against the hospital. These records
and possibly others chronicle a deplorable tale of repeated breaches of patients and employees
Private Health Information and Defendant AVHs persistent failure to effectively prevent or stop
such disclosures or to train, supervise or discipline the responsible employees.
According to previous complaints of HIPAA breaches made to then-CEO Dave Ressler
and to the Office of Civil Rights, at least one patient complained of such a breach in May 2013,
another in January 2014, and yet another in April and/or May 2014. On May 23, 2013, AC , a
patient who had been admitted to Aspen Valley Hospitals Emergency Department emailed thenCEO Dave Ressler complaining that an employee had improperly learned and revealed her
Private Health Information, noting this is not the first time I have had an issue with AVH and
[N] accessing [my private health] information. In an email to AC on May 24, 2013, Mr. Ressler
admitted a HIPAA breach had indeed occurred, apologized and promised that Defendant AVH
would take remedial action. Defendant Elaine Gerson, Chief Counsel, who had initially been
contacted by AC in connection with this incident, apologized profusely for her failure to respond
in a timely manner, saying I owe you a huge apology! It was very unprofessional of me and
there is really no excuse I can give you that is acceptable. Please accept my apologies. In her
OCR complaint, AC writes with regard to the breach in question, Mr. Ressler said it was an
accident however, I doubt it. This has happened in the past and now I know it to be true
This behavior must be stopped as I live and use Aspen Valley Hospital as a provider. Yet, upon
information and belief, Defendant AVH never disciplined the individuals involved. In her email
to then-CEO Ressler on May 23, 2015, AC, who at the time worked as an Aspen Valley Hospital
employee, singled out the HR Department for being particularly unhelpful and unresponsive to
her complaints, writing I continue to complain to Human Resources, but I am told that there is

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nothing they can do. This lack of responsiveness is just one example of Defendants total
disregard for upholding HIPAA protections for AVH employees, and Defendant AVHs failure
to train, supervise or discipline its employees who violate HIPAA.
On April 7, 2014, ML and his wife, JM, who were both employees of Aspen Valley
Hospital at the time of the events described in their complaint, complained of a HIPAA breach to
OCR. Despite JMs (well-founded) concerns that co-workers might learn she was a patient at
AVH and be able to access her medical records, the employee nevertheless chose to receive care
at AVH because it is the only healthcare facility within 40 miles. Following her care at the
hospital, the employee had a dispute with the hospitals billing department. Unbeknownst to ML
and JM, this conversation was recorded. The day after the employee/patients paid their bill, ML
was called into a meeting and berated by then-CFO and current Interim CEO Terry Collins, who
along with other AVH personnel (including Defendants Miller and Gilkerson) had listened to the
couples conversation with the hospitals bill collection department without their permission, in
violation of HIPAA privacy regulations. In her OCR complaint, JM complained I feel this is a
violation of my healthcare privacy, as Terry Collins and [other AVH personnel] should not even
have known I was a patient there. They were clearly aware of [my husband, ML] and my patient
records, and I wonder what other violations may have been committed. I am amazed that the
hospital could use our patient records to [redacted] employment as keeping employment and
patient records separate seems to be the most basic steps toward privacy in a hospital.
Defendant AVH terminated ML on October 10, 2013, the very next day following his meeting
with Collins. Subsequently, on November 19, 2013, Defendants Wilkinson and Miller asked
Plaintiff, then a member of the IT Department, to create a copy of the secretly-recorded phone

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call for submission in order to contest MLs unemployment benefits in further retaliation, as
Defendants Miller, Gilkerson, Gerson, Knowles, Gelroth and AVH eventually did to Plaintiff.
In a letter to Plaintiff dated August 13, 2015, long after his retaliatory termination on
January 22, 2015, Defendant Knowles and Defendant Aspen Valley Hospital finally admitted
that Defendant Miller has made multiple unauthorized and illegal disclosure of Private Health
Information in contravention of HIPAA and AVH policies, stating Aspen Valley Hospital has
taken disciplinary steps with Defendant Miller in accordance with the discipline policy and based
upon previous instances of impermissible use of protected health information, including
additional training. In addition Aspen Valley Hospital is updating certain privacy policies to
provide more concrete examples of Protected Health Information impermissible uses to help
prevent similar situations in the future. Despite these alleged remedial actions, illegal HIPAA
breaches continue to occur with disturbing regularity at Defendant Aspen Valley Hospital.
In a recent videotaped, public meeting of the Aspen Valley Hospitals Board of Directors
that took place on May 9, 2016, when asked by Current Interim CEO Terry Collins, Without
naming names, would you tell about the recent incident of an employee who violated the HIPAA
reg[ulations]s? Defendant Gelroth replied Which one? and laughed. Sitting silently on
Defendant Gelroths left was Defendant Miller, whose very presence at AVH despite her record
of HIPAA violations only further demonstrates that Defendant AVH continues to fail to take its
legal obligations to protect employees and patients confidential Private Health Information
seriously, despite its knowledge of and participation in many such breaches, only some of which
are described herein.
Not only do Defendants Miller and AVH have a record of terminating employees in
retaliation for defending their right to privacy protected by HIPAA, they also have a record of

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attempting to illegally retaliate against employees, who, like Plaintiff, took doctor-approved
FMLA leave. For example, AVH employee MD, who was diagnosed with cancer, went out on
approved FMLA leave in order to receive a bone-marrow transplant. During his FMLA leave,
Defendant Miller led a meeting regarding the need to cut the hospitals health insurance costs,
and later suggested to Defendant Gilkerson and Marlene Saleeby (at the time an HR Recruiter)
that the cancer-stricken MD, who incurred high medical costs in connection with his treatment
and subsequently succumbed to his illness, should be demoted to PRN, or as-needed, service
upon his return from his leave, dramatically cutting his hours and thereby removing him from the
hospitals self-insurance plan.
Defendant Aspen Valley Hospitals custom, policy and practice of HIPAA breaches and
retaliatory discharges, as well as its failure to properly train, supervise and discipline the
responsible employees (including but not limited to Defendant Miller), demonstrates that these
practices represent the standard operating procedure of the hospital.
All of Defendants actions and inactions were under color of state law.
As a result of Defendants conduct, Plaintiff brings claims against Defendants Aspen
Valley Hospital and Alicia Miller for Fundamental Due Process Right to Privacy in violation of
the 14th Amendment and pursuant to 42 U.S.C 1983, Negligence and Negligence Per Se
pursuant to Colorado State law, and Invasion of Privacy in the Nature of Unreasonable Publicity
Given to Ones Private Life pursuant to Colorado State law; claims against all Defendants for
First Amendment Retaliation pursuant to 42 U.S.C 1983, Outrageous Conduct / Intentional
Infliction of Emotional Distress pursuant to Colorado State law; and claims against Defendant
Aspen Valley Hospital for Retaliation in violation of the Family Medical Leave Act pursuant to

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29 U.S.C. 2615(a), and Wrongful Discharge in Violation of Public Policy pursuant to Colorado
State law.
b.

Defendants AVH, Elaine Gerson, Steven Knowles, Michelle Gelroth, Alicia

Miller and Dawn Gilkerson:
1. Facts.
a. The Disclosure of Mr. Does Diagnosis

Alicia Miller attended an ASHHRA conference in Denver, Colorado, in September,

2012. Also, attending the conference was Marlene Saleeby. At dinner after the conference one
day, the two were discussing some work related issues and Mr. Does name came up. Alicia
asked Marlene how he was doing because he had been out on leave and Marlene was a close
personal friend of Mr. Does. Alicia said something to the effect, that with Mr. Doe being HIV
positive, I hope he can come back. Because Marlene and Mr. Doe were friends, Alicia assumed
Marlene knew about Mr. Does diagnosis. Marlene told Alicia that she did not know about Mr.
Doe. Alicia changed the subject, and that was the last time, according to Alicia, that they spoke
about it.
b. HIPAA Complaint and Investigation
Marlene was terminated from her employment at AVH in June, 2014. After she was
terminated, she told Mr. Doe what Alicia said back in 2012, and he made a complaint to Elaine
Gerson, General Counsel of AVH. Upon receiving the Complaint, Ms. Gerson turned it over to
Mr. Knowles to investigate the disclosure.

He obtained statements from both Alicia and

Marlene. Those statements mirrored each other in the facts about how Alicia disclosed the
information to Marlene.
The question that was most important to AVH was how Alicia obtained the information.
Alicia could not remember, but thought she obtained it from a friend, outside the hospital.
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Marlene said that Alicia received the information through her position as the benefits
coordinator. Steve Knowles attempted to see if there was any way that Alicia could have
received the information from a hospital source. Mr. Knowles logged into the system using
Alicias credentials, and could not retrieve any health records regarding Mr. Doe or any other
employee. The health records for all patients at AVH are kept by a third party, Regional Care,
Inc. Mr. Knowles spoke to Carol Kuhn who confirmed that Alicia never attempted to obtain Mr.
Does or any other patient records from Regional Care, Inc. Mr. Knowles even reviewed the
access records of Alicias mother, who also worked at the hospital. Mr. Knowles did not find
that Alicias mother ever tried to access Mr. Does records either from the hospital or through
Regional Care, Inc. Mr. Knowles confirmed there was no other avenue through the hospital
system to access patient records. As an important note, Carol Kuhn said that Mr. Does claims
have never triggered a stop-loss process, which would produce a report. His claims never came
close to doing so.
When Mr. Knowles shared this information with Mr. Doe, Mr. Doe said that at one point
Alicia was on the Clinical Integration Committee. Mr. Doe was also on that committee and he
remembers receiving data packets that contained personal health information of all employees.
Mr. Knowles reviewed the packets that were provided by Lockton (a subcontractor of RCI) and
the only information contained in those packets is medical expenses in the aggregate. The
documents were scrubbed on any diagnostic information and patient names. He also checked
with two former members of the committee and both of those members do not recall any
documents containing personal information or any names. In fact, the former CEO, and soon to
be CEO again, David Ressler, said that with absolute certainty the documents did not contain any
patient or employee names or diagnostic information.

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In addition, Mr. Doe suggested that maybe Alicia obtained the information from looking
up prescription drugs that were outside the benefit plan. Mr. Knowles spoke with Mr. Chicchese
with Caremark, to see how prescription drugs were processed. Mr. Chicchese said that no one at
AVH has access to the online system for prescription drugs. If a drug is not covered, then the
prescribing physician provides an application for exception directly to Caremark. There was one
email Alicia received from Caremark saying that Mr. Doe could pick up his medication, but it
did not say what medication it was or why it was prescribed. Alicia forwarded the email to Mr.
Doe.
Mr. Knowles could not determine how Ms. Miller came by the information about Mr.
Does diagnosis. The information was not gleaned from any records maintained by the hospital.
If she obtained the information from a caregiver of the hospital, there was no way to determine
who it was, as Alicia could not remember. Thus, AVH exhausted all avenues in making sure the
information was not gleaned from AVH.
c. Mr. Does Employment
Mr. Doe began working for AVH in the conference services department. He was very
good in that position and was very well liked. When a position opened in the IT department, he
transferred. The head of the IT department, Dave Bingham, worked remotely and he was off site
most of the time. In his performance reviews, Mr. Doe received high scores because he was very
personable and well known at AVH, but even Dave Bingham expressed concern about some of
his technical IT skills.
On May 26, 2014, Michelle Gelroth was hired as the Associate Director of the
Information Technology Department at AVH. This is the first time there was a supervisor onsite. Ms. Gelroth first started to evaluate the individuals in her department, including those

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individuals at the help desk. Mr. Doe was included in her employee reviews. When Ms. Gelroth
began her employment with AVH, Mr. Doe showed up to work on time and was very
professional and helpful. However, in July 2015, Ms. Gelroth began to notice that Mr. Doe
lacked some technical skills necessary to complete his help desk tasks and that some of the
technical tasks were taking a long time to complete. She had several meetings with Mr. Doe
requesting that if he had any questions, he was to reach out to either herself, Jeremy, another help
desk coordinator, or Dave Bingham.
She checked in with Mr. Doe on August 20, 2014, because there had been several
mistakes by Mr. Doe reported to her, and he appeared to be under a lot of stress. He stated that
he had a lot on his mind, and some personal issues were distracting him. She asked if there was
anything she could do, and he responded that he need to be less stressed. They discussed
measures to relieve some of his work stress, including taking lunch breaks away from his desk,
and limiting the time that he was on-call. He was also supposed to talk to Michelle in case there
were any tasks that he could not complete at the end of the day.
One of Mr. Does main job duties and responsibilities was to transfer the on-call line to
his cell phone for the nights that he was on call. On October 17, 2014, Mr. Doe failed to
transfer the phones. This could have turned into a major issue, but it was caught by Michelle
Gelroth. She asked to talk to Alicia Miller about the situation, who directed her to contact Dawn
Gilkerson. She did and both she and Dawn decided that Mr. Does action warranted a write-up.
Especially given the fact that he and Michelle had so many previous conversations about asking
for help, and letting Michelle know if he couldnt complete his tasks.
Michelle and Mr. Doe had a meeting on October 27, 2014, to go over the Performance
Memo and to discuss what happened. Michelle and Mr. Doe discussed going back to his initial

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job duties and responsibilities so that he wasnt taking everything on himself. He would become
more of a coordinator instead of providing technical support which seemed difficult for him and
caused him stress. At this meeting, he handed back his notes on the Performance Memo and
read out loud his comments. This was the first that Michelle was aware that Mr. Doe filed a
complaint with AVH about a HIPAA disclosure.

He said to Michelle that she could not

discipline him because of the disclosure. Mr. Doe told Michelle that as a result of a brain
aneurysm, he now had tinnitus, or ringing in the ears, that had been very bad lately. As a result,
he said that he did need some time off to get it under control. Michelle approved the time off
and said that they could discuss the coordinator role once he felt better.
While on leave, Michelle and Dawn would check in on Mr. Doe. While he was out,
Michelle would tell people that he was out sick, but never said it was because of a brain
aneurysm.

In addition, at one point, Mr. Doe asked Michelle Gelroth to give him a

recommendation for a position at Valley View Hospital. Michelle thought it would be a good fit
and did so. When Mr. Doe returned from leave on December 1, 2014, he, Michelle and Dawn
discussed his new role as the help desk coordinator. Michelle provided him with a new job
description and he said he was excited about the new position.
Unfortunately, even in this new position, Mr. Doe still failed to perform most of his job
duties and responsibilities. They continued to have issues with him taking on a technical support
role, and just forgetting to do some of his tasks. Because AVH felt at this point Mr. Doe just
didnt want to do his job, they let him go. Further, based on an audit of Mr. Does computer
access, instead of performing his job duties and responsibilities, Mr. Doe took it upon himself to
access email folders and other document folders to obtain information on other hospital
employees. This included information subject to the attorney client privilege, and private patient

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files. This is a breach of his duty of loyalty, and a HIPAA breach as he accessed other patient
files.
2.

Immunity
a. AVH

AVH, as a metropolitan district, is a public entity under the above definition in the CGIA.
Sovereign Immunity applies to all public entities under the CGIA. Pursuant to C.R.S. 24-10106(1), sovereign immunity is waived by a public entity, in this circumstance, in an action
resulting from an operation of a public hospital.
The allegations against Alicia Miller include receiving the information about Mr. Does
diagnosis through her role as the hospital health plan administrator. This is not an operation of
the hospital, and only applies to hospital employees. Second, it is alleged that the disclosure of
Mr. Does PHI, was, in fact, at a conference in Denver for hospital administrators. This was not
part of the operation of the hospital either.

Lastly, the investigation and the subsequent

allegations regarding retaliation were employment functions and were not part of the operation
of the hospital.
Accordingly, AVH is immune from suit, regarding all state court claims.
b. Individual Employees
Public employees who are named in their individual capacity have qualified immunity.
This means that public employees are immune from liability for injuries arising out of an act or
omission occurring during the performance of his/her duties and within the scope of his/her
employment, unless such act or omission is willful and wanton. C.R.S. 24-10-105(1).

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a.

Notice Under C.R.S. 24-10-109

This statute actually requires that the notice cite all individuals with their current
addresses, if known, and a concise statement of the factual basis of the claim. The standard for
the notice of claim is substantial compliance. Awad v. Breeze, 129 P.3d 1039, 1041-1042 (Colo.
App. Ct. 2005). Here, Mr. Doe provided an initial notice to Elaine Gerson as the legal counsel
for Aspen Valley Hospital dated November 20, 2014, and a subsequent notice of claim for
retaliation dated July 16, 2015. The first letter, provides the names of Alicia Miller, Steven
Knowles, Marlene Saleeby and Michelle Gelroth as public employees involved. None of the
letters list Elaine Gerson as an employee with knowledge. The Plaintiff did not substantially
comply with the statute with regards to Elaine Gerson. Thus, Elaine was never put on notice of
the lawsuit, and the claims against her are barred.
b.

Steven Knowles, Michelle Gelroth, Dawn Gilkerson, Elaine Gerson

No public employee shall be liable for injuries arising out of an act or omission occurring
during the performance of his or her duties and within the scope of his or her employment, unless
such act or omission was willful and wanton. C.R.S. 24-10-105.
The allegations, besides simply saying that the actions were willful and wanton do not
rise to the same level of conscious disregard for the safety of Mr. Doe. There are only two
claims against these defendants, Outrageous Conduct/Intentional Infliction of Emotional Distress
and Retaliation. The main crux of the Outrageous Conduct/Intentional Infliction of Emotional
Distress claim is that these individuals orchestrated Mr. Does termination so he wouldnt be
covered by insurance, by engaging in a sham investigation. These individuals did not know of
Mr. Does condition until he disclosed it to them. Further, there is no causal connection between
the alleged cover up of the HIPAA complaint and the intent to cause Mr. Doe to lose his health

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insurance. There are no facts pled that show any intent to fire Mr. Doe and cancel his insurance.
In fact, quite the opposite is true. AVH separated the investigation of the HIPAA Complaint
from any employment issues. In fact, neither Dawn Gilkerson nor Michelle Gelroth was aware
of the HIPAA complaint, until Mr. Doe informed them in response to his write-up. Further, they
both just thought that he had tinnitus from a brain aneurysm. Neither one of them were aware
that he had anything other than the condition he disclosed to them. Simply put, there are no facts
that support a finding of willful and wanton conduct from these employees. Accordingly, they
are immune from suit as well.
c.

Alicia Miller

When Alicia discussed Mr. Doe with Marlene, it was out of genuine concern for Mr.
Doe, it was not, by either womans account, malicious or gossip. She did not obtain this
information from her position in the hospital.

She also stepped aside when there was an

employment issue so that the disclosure investigation and Mr. Does employment issue would be
kept separate. The facts actually support the opposite, which is that Alicia made an honest,
simple, mistake. The facts do not rise to the level of willful and wanton.
3. Other Employees
While Mr. Doe alleges that he attempted to keep his diagnosis private and confidential,
that in fact is not the case. There are hospital employees and individuals in the community who
were aware of Mr. Does diagnosis, and in fact he personally disclosed his diagnosis to many
others. One of those individuals was Elaine Gerson. She was told directly by Mr. Doe of his
diagnosis. She even mentioned to him that he did not need to tell her anything. He explained
that he knew that, but he just wanted her to know. Thus, his claim of privacy is suspect.

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4. UNDISPUTED FACTS
1.

Plaintiff John Doe is a citizen of the United States and a resident of and domiciled

in the State of Colorado. At all relevant times, Plaintiff Doe was employed by the Aspen Valley
Hospital District.
2.

Defendant Aspen Valley Hospital District d/b/a/ Aspen Valley Hospital (referred

to herein as Aspen Valley Hospital, Aspen Valley, AVH or the hospital) has a principal
street address of 0401 Castle Creek Road, Aspen, CO 81611.
3.

Defendant Alicia Miller is a citizen of the United States and a resident of and

domiciled in the State of Colorado. At all relevant times, Defendant Alicia Miller was employed
by the Aspen Valley Hospital District.
4.

Defendant Dawn Gilkerson is a citizen of the United States and a resident of and

domiciled in the State of Colorado. At all relevant times, Defendant Dawn Gilkerson was
employed by the Aspen Valley Hospital District.
5.

Defendant Elaine Gerson is a citizen of the United States and a resident of and

domiciled in the State of Colorado. At all relevant times, Defendant Elaine Gerson was
employed by the Aspen Valley Hospital District.
6.

Defendant Stephen Knowles is a citizen of the United States and a resident of and

domiciled in the State of Colorado. At all relevant times, Defendant Stephen Knowles was
employed by the Aspen Valley Hospital District.
7.

Defendant Michelle Gelroth is a citizen of the United States and a resident of and

domiciled in the State of Colorado. At all relevant times, Defendant Michelle Gelroth was
employed by the Aspen Valley Hospital District.

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8.

Plaintiff was hired by Defendant Aspen Valley Hospital in November 2003 for

the position of Conference Center Coordinator.

9.

In August 2013, Plaintiff was hired into the position of Help Desk/ Desktop

Technician.
10.

Beginning in June 2014, Marlene Saleeby was no longer employed with AVH.

11.

By letter dated October 3, 2014, both Plaintiff and Defendant AVH received

notification that the Office of Civil Rights was investigating Plaintiffs complaint dated June 25,
2014.
12.

Plaintiff filed a second complaint with the Office of Civil Rights on October 23,

13.

Plaintiff went out for approved FMLA leave starting on October 31, 2014, and

2014.

returned to work on December 1, 2014.

14.

On December 3, 2014, Plaintiff was called into a meeting by Defendants Gelroth

and Gilkerson and presented with a new job description called Help Desk Coordinator.
15.

On January 3, 2015, Plaintiff filed a third complaint with the Office of Civil

16.

On January 10, 2015, Plaintiff filed a complaint with the U.S. Department of

17.

On January 22, 2015 Defendant AVH terminated Plaintiffs employment.

Rights.

Labor.

5. COMPUTATION OF DAMAGES
a.

Plaintiff: Plaintiff claims declaratory, injunctive, and other equitable relief, as

appropriate; actual economic damages as established at trial; compensatory damages, including,

but not limited to those for future pecuniary and non-pecuniary losses, emotional pain, suffering,

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inconvenience, mental anguish, loss of enjoyment of life, loss of reputation, and other nonpecuniary losses; punitive/exemplary damages for all claims as allowed by law in an amount to
be determined at trial; liquidated damages for all claims as allowed by law in an amount to be
determined at trial; pre-judgment and post-judgment interest at the highest lawful rate; attorneys
fees and costs; an apology issued to Plaintiff by Defendant Aspen Valley Hospital; the
implementation of policy changes by Defendant Aspen Valley Hospital designed to prevent
future breaches of HIPAA and protect patient and employees privacy; and such further relief as
allowed by law or as justice requires.
Plaintiff has provided Defendants with a preliminary evaluation of economic losses with
his initial disclosures. It is estimated that Plaintiffs projected economic losses through the
retirement age of 70 total $3,318,965. 2 A more precise computation of Plaintiffs damages, to
the extent Plaintiffs damages are subject to such computation, will be provided during the
normal course of discovery, and will be determined by a jury in its sound discretion following a
presentation of the evidence at trial in this matter.
Damages for emotional distress, loss of reputation and the like are not susceptible to the
type of calculation contemplated by Rule 26(a)(1). [C]ompensatory damages for emotional
distress are necessarily vague and are generally considered a fact issue for the jury. See,
Williams v. Trader Pub. Co., 218 F.3d 481, 487 n.3 (5th Cir. 2000).
Punitive damages are sought based upon the egregious nature of Defendants conduct of
as set forth in the Amended Complaint and the need to restrain such conduct in the future.
Calculation of these damages and entitlements is not susceptible to the type of calculation

This analysis is preliminary only, and may be adjusted prior to trial.

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contemplated by Rule 26(a)(1). See, Burrell v. Crown Cent. Petroleum, 177 F.R.D. 376, 386 (D.
Tex. 1997).
b.

Defendants: At this time, Defendant is not seeking any damages.

6. REPORT OF PRE-CONFERENCE DISCOVERY &
MEETING UNDER FED. R. CIV. P. 26(f)

a.

The Fed. R. Civ. P. 26(f) meeting was conducted via telephone conference between

counsel on August 23, 2016.

b.

Participants in the meeting were as follows:

(1)

Mari Newman and Dunia Dickey of KILLMER, LANE & NEWMAN, LLP

(counsel for Plaintiff);

(2)

Leslie Miller of THE LAW OFFICES OF LESLIE MILLER, LLC (counsel for

Defendants).
c.

Rule 26(a)(1) disclosures were made on September 13, 2016.

d.

The parties do not propose any changes in the timing or requirement of

disclosures under Fed. R. Civ. P. 26(a)(1).

e.

The parties have not agreed to conduct informal discovery.

f.

The parties agree to take all reasonable steps to reduce discovery and reduce costs.

g.

The parties anticipate that their claims or defenses will involve the discovery of

some electronically stored information. To the extent that discovery or disclosures involve
information or records in electronic form, the Parties will take steps to preserve that information.
The Parties agree that, to the extent feasible, the Parties will exchange information (whether in
paper or electronic form) in PDF format.
h.

The parties have discussed the possibilities for a prompt settlement or resolution

of the case by alternate dispute resolution, and will report the result of any such meeting, and any
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similar future meeting, to the magistrate judge within 14 days of the meeting.
7. CONSENT
a.

The parties do not consent to the exercise of jurisdiction of a magistrate judge.

8. DISCOVERY LIMITATIONS

a.

Modifications which any party proposes to the presumptive numbers of

depositions or interrogatories contained in the Federal Rules:

Plaintiff may serve a total of 50 interrogatories to Defendants collectively, no more than
25 to any one Defendant. Defendants collectively may serve 25 interrogatories to Plaintiff.
b.

Limitations which any party proposes on the length of depositions: The Parties

do not propose any modifications to the limitations on the length of depositions. A deposition is
limited to one day of seven hours as provided in Fed. R. Civ. P. 30(d)(2).
c.

Limits on Number of Requests for Production of Documents and/or Requests for

Admission:
Plaintiff may serve a total of 50 requests for production and 30 requests for admission to
Defendants collectively. Defendants collectively may serve 25 requests for production and 25
requests for admission to Plaintiff.
d.

No witness shall carry any firearms during depositions in this matter.

e.

No other planning or discovery orders are in place at this time.

9. CASE PLAN AND SCHEDULE

a.

Deadline for Joinder of Parties and Amendment to Pleadings: Pursuant to

Fed.R.Civ.P. 15.
b.

Discovery cut-off: April 14, 2017.

c.

Dispositive Motions Deadline: May 15, 2017.

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d.

Expert Witness Disclosure:

1.

(a) Plaintiff anticipates retaining an expert in the field of economic

damages. Plaintiff may call experts in other areas as well.

(b) Defendants anticipate retaining an expert in the field of economic
damages and mitigation of damages. Defendants may call experts in other areas as
well.
2.

Each side shall be limited to a total of 3 experts.

3.

The parties shall designate all experts and provide opposing counsel and

any pro se parties with all information specified in Fed. R. Civ. P. 26(a)(2) on or
before: January 20, 2017.
4.

The parties shall designate all rebuttal experts and provide opposing

counsel and any pro se party with all information specified in Fed. R. Civ. P.
26(a)(2) on or before: March 3, 2017.
5.

Notwithstanding the provisions of Fed. R. Civ. P. 26(a)(2)(B), no

exception to the requirements of the rule will be allowed by stipulation of the

parties unless the stipulation is approved by the court.
e.

Identification of Persons to be Deposed:*

Name of Deponent

Date of Deposition

Time of Deposition Expected Length of

Deposition

John Doe
Marlene Saleeby

TBA

TBA

7 Hours

TBA

TBA

7 Hours

Alicia Miller

TBA

TBA

7 Hours

Dawn Gilkerson

TBA

TBA

7 Hours

Elaine Gerson

TBA

TBA

7 Hours

Stephen Knowles

TBA

TBA

7 Hours

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Michelle Gelroth

TBA

TBA

7 Hours

30(b)(6)
Representative(s) of
Defendant Aspen
Valley Hospital
Other individuals
disclosed pursuant to
Fed.R.Civ.P. 26

TBA

TBA

7 Hours

TBA

TBA

TBD

* The Parties reserve the right to take additional depositions of persons identified in the Parties
disclosures and through the course of discovery.
f.

Deadline for Interrogatories: The Parties propose submission of the written

interrogatories at any time after the date of the 26(f) Conference. The last written interrogatories
shall not be served upon any adverse party any later than 33 days before the discovery cut-off
date.
g.

Deadline for Requests for Production of Documents and/or Admissions: The

Parties propose submission of requests for production of documents at any time after the date of
the 26(f) Conference. The last written request for production of documents and/or request for
admission shall not be served upon any adverse party any later than 33 days before the discovery
cut-off date.
10. DATES FOR FURTHER CONFERENCES
a.

Status conferences will be held in this case at the following dates and times:
_____________________________________________________________

b.

A final pretrial conference will be held in this case on ______________ at ____

oclock __.m. A Final Pretrial Order shall be prepared by the parties and
submitted to the court no later than seven (7) days before the final pretrial
conference.

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11. OTHER SCHEDULING ISSUES

a.

Identify the discovery or scheduling issues, if any, on which counsel after a good

faith effort, were unable to reach an agreement: None.

b.

The parties estimate that the jury trial will take five (5) days.
12. NOTICE TO COUNSEL AND PRO SE PARTIES

The parties filing motions for extension of time or continuances must comply with
D.C.COLO.LCivR 6.1D by submitting proof that a copy of the motion has been served upon the
moving attorneys client, all attorneys of record and all pro se parties.
Counsel will be expected to be familiar and to comply with the Pretrial and Trial
procedures or Practice Standards established by the judicial officer presiding over the trial of this
case.
With respect to discovery disputes, parties must comply with the D.C.COLO.LCivR
7.1A.
In addition to filing an appropriate notice with the clerks office, a pro se party must file a
copy of a notice of change of his or her address or telephone number with the clerk of the
magistrate judge assigned to this case.
In addition to filing an appropriate notice with the clerks office, counsel must file a copy
of any motion for withdrawal, motion for substitution of counsel, or notice of change of
counsels address or telephone number with the clerk of the magistrate judge assigned to this
case.
13. AMENDMENTS TO SCHEDULING ORDER
The scheduling order may be altered or amended only upon a showing of good cause.
DATED this _____ day of _____________________ 2016.

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BY THE COURT:

__________________________________
U.S. Magistrate Gordon P. Gallagher
SCHEDULING ORDER REVIEWED:
s/ Mari Newman
_______________________________
Mari Newman
Eudoxie (Dunia) Dickey
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001 fax
mnewman@kln-law.com
ddickey@kln-law.com

s/ Leslie Miller
_________________________________
Leslie Miller, Esq.
The Law Offices of Leslie Miller, LLC
P.O. Box 2671
Centennial, CO 80161
(720) 316-5545
leslie@lesliemillerlaw.com
Attorney for Defendants

Attorneys for Plaintiff

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