1

Plaintiffs’ counsel withdrew two months prior to the filing of Defendant’s Motion for

Summary Judgment. (See Doc. Nos. 20, 21.) 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Kathleen M. Tafoya

Civil Action No. 11–cv–02331–KMT

LINDA MILLER, and

DAVID MILLER,

Plaintiffs,

v. 

COLLEEN A. KRAHL,

Defendant.

______________________________________________________________________________

ORDER

This matter is before the court on Defendant Colleen A. Krahl, DC’s “Motion for

Summary Judgment” (Doc. No. 22 [Mot.], filed June 14, 2012). Plaintiffs did not file a

response.1

 The motion is ripe for ruling. 

STATEMENT OF THE CASE

Plaintiffs filed this case on September 2, 2011, asserting claims for professional

malpractice and negligence and loss of consortium as a result of the defendant’s alleged

treatment of Plaintiff Linda Miller on April 7, 2009. (See Doc. No. 2 [Compl.].) The following

material facts are undisputed. 

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 1 of 7
2

1. Plaintiffs did not respond to Dr. Krahl’s written discovery requests, which were

served April 30, 2012, and included requests for admission. (Mot., Ex. B.) 

2. Because Plaintiffs failed to respond to the requests for admission, Plaintiffs are

deemed to have admitted, pursuant to Fed. R. Civ. P. 36, among other things, that:

a. Ms. Miller had significant neck pain in the area of her prior C1-C2 fusion

before presenting to Dr. Krahl on April 7, 2009;

b. That her neck pain initially improved after presenting to Dr. Krahl on

April 7, 2009;

c. That any worsening of Ms. Miller’s neck pain occurred at least eight

months after being treated by Dr. Krahl; and

d. Ms. Miller’s employment terminated for reasons other than her neck pain.

(Id. at 8.)

3. Plaintiffs have not disclosed any experts pursuant to Fed. R. Civ. P. 26.

4. Plaintiffs have not conducted any written discovery and have not taken Dr.

Krahl’s deposition.

5. Plaintiffs have presented no evidence that shows Dr. Krahl acted negligently in

providing chiropractic treatment to Ms. Miller.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The moving party bears the initial burden of showing an absence of evidence to support the

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 2 of 7
3

nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving

party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for

trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518

(10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the

allegations in the pleadings, but must instead designate “specific facts showing that there is a

genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact

is “material” if “under the substantive law it is essential to the proper disposition of the claim.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a

reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co.,

631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible

evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The

factual record and reasonable inferences therefrom are viewed in the light most favorable to the

party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff

are proceeding pro se, the court, “review[s] [their] pleadings and other papers liberally and hold[s]

them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472

F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-

21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal

pleadings drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff’s version

of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 3 of 7
4

Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted

by the record, so that no reasonable jury could believe it, a court should not adopt that version of the

facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007); Thomson, 584 F.3d at 1312.

ANALYSIS

Defendant moves for summary judgment for (1) Plaintiffs’ failure to disclose any expert

witness who can establish the applicable standard of care; (2) Plaintiffs’ failure to establish

Defendant deviated from the established standard of care or caused Plaintiff Linda Miller’s

injuries; (3) Plaintiffs’ failure to disclose expert testimony in support of each element of their

first claim for relief; and (4) Plaintiffs’ failure to establish a claim for loss of consortium. (Mot.)

A. Failure to Disclose Expert to Establish Standard of Care

In Colorado, to establish a medical malpractice claim based upon negligence, the plaintiff

must show that: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached that

duty; (3) the plaintiff was injured; and (4) the defendant’s breach of that duty was the proximate

cause of plaintiff’s injury. Casebolt v. Cowan, 829 P.2d 352, 356 (Colo. 1992) (en banc).

Because the subject matter of negligent conduct by a medical professional is not within the ambit

of common knowledge and experience of ordinary people, “the plaintiff must establish by expert

testimony the controlling standard of care ordinarily possessed and exercised by members of the

same schools of medicine practiced by the defendant, as well as defendant’s failure to adhere to

that standard.” Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo. App. 1995). Without expert

testimony regarding the relevant standard of care, the trier of fact has no means of comparison to

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 4 of 7
5

determine whether a legal duty was breached or whether that breach was the proximate cause of

a plaintiff’s injury. Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990).

Defendant argues that Plaintiffs failed to identify or designate a medical expert to provide

an opinion regarding the relevant standard of care. (Mot. at 6–8.) Without expert testimony on

the relevant standard of care, Defendant argues that there is no evidence that Defendant was

negligent or that any alleged negligence caused Plaintiff Linda Miller’s injuries. (Id. at 8.) As

such, Defendant argues there is an absence of a genuine issue of material fact such that she is

entitled to judgment as a matter of law. (Id.) 

As Defendant does not bear the ultimate burden of persuasion at trial, Defendant need

only make a prima facie showing of the absence of a genuine issue of material fact by

demonstrating the lack of evidence to support an essential element of Plaintiff’s claim. Adler v.

Wal-Mart Stores, Inc., 144 F.3d 664, 670–71 (10th Cir. 1998). The court finds that Defendant

has met its initial burden for summary judgment. Plaintiffs’ lack of evidence from a testifying

medical expert regarding the relevant standard of care necessarily leads to the conclusion that

they lack evidence to support the breach of duty of care and causation elements of their medical

malpractice claim.

Because Defendant has met her burden, the burden shifts to Plaintiffs to put forth

sufficient evidence for each essential element of their medical malpractice claim such that a

reasonable jury could find in their favor. See Anderson, 477 U.S. at 248. Pursuant to Fed. R.

Civ. P. 56(e), Plaintiffs can satisfy this burden by providing an affidavit from a medical expert

who is qualified to form an opinion regarding the relevant standard of care. In the event such

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 5 of 7
6

affidavit is unavailable, Plaintiffs can provide the court with specific reasons as to why they

cannot present facts that are essential to opposing Defendant’s Motion for Summary Judgment.

Fed. R. Civ. P. 56(f). 

Here, Plaintiffs have failed to failed to respond to the Motion for Summary Judgment,

they have failed to provide an affidavit from a medical expert who is qualified to form an

opinion regarding the relevant standard of care, and they have failed to provide the court with

any reason why they are unable to present facts in opposition to the Motion for Summary

Judgment. As such, there is no genuine issue of material fact or evidence to support two

essential elements of Plaintiffs’ medical negligence claim, and Defendant Krahl is entitled to

summary judgment on that claim. 

B. Loss of Consortium Claim

Defendant also argues that Plaintiffs’ failure to establish the elements to prove their

negligence claim is also fatal to Plaintiffs’ loss of consortium claim. (Mot. at 9–10.) As a

derivative claim, loss of consortium is subject to the same defenses available to the “underlying

claim.” Terry v. Sullivan, 58 P.3d 1098, 1102 (Colo. App. 2002). A derivative claim “is

destroyed” if the underlying personal injury claim is unsuccessful on the merits. Kinsella v.

Farmers Ins. Exchange, 826 P.2d 433, 435 (Colo. App.1992). In other words, if an injured

person’s claim fails on substantive grounds, the spouse’s claim for loss of consortium also will

fail. See, e.g., Schwindt v. Hershey Foods Corp., 81 P.3d 1144, 1148 (Colo. App. 2003); Covert

v. Allen Group, Inc., 597 F. Supp. 1268, 1269–70 (D. Colo.1984).

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 6 of 7
7

Thus, because Defendant Krahl has been granted summary judgment on the negligence

claim, she also is properly granted summary judgment on Plaintiffs’ loss of consortium claim.

WHEREFORE, for the foregoing reasons, it is 

ORDERED that Defendant Colleen A. Krahl, DC’s “Motion for Summary Judgment”

(Doc. No. 22) is GRANTED. It is further

ORDERED that judgment shall enter for Defendant Colleen A. Krahl, DC, and against

Plaintiffs, Linda Miller and David Miller, as to all claims asserted in this action. It is further

ORDERED that defendant is awarded her costs, to be taxed by the Clerk of the Court

pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1.

Dated this 12th day of February, 2013.

Case 1:11-cv-02331-KMT Document 27 Filed 02/12/13 USDC Colorado Page 7 of 7