Psychiatrist files lawsuit>> 

COMES NOW the Plaintiff, Robert Weitzel, M.D., and for his claim against the Defendants, alleges and states as follows:

1.      Jurisdiction is vested in this Court pursuant to 28 U.S.C. §§ 1331, 1343 and 1367 in that Plaintiff is alleging a violation of his civil rights pursuant to, inter alia, the Due Process Clause of the United States Constitution and pursuant to 42 U.S.C. §§ 1983 and 1988.

2.      Venue is proper in this Court pursuant to 28 U.S.C. 1391.

3.      During all times mentioned in this complaint and all other relevant times, unless otherwise stated, the individual Defendants were acting in their official capacities and under color of law, that is, under color of the constitution, statutes, laws, charters, ordinances, rules, regulations, customs and usages of the State of Utah and/or the United States of America.

4.      At various times, the Defendants acted jointly and in concert with each other.  Each Defendant had the duty and opportunity to protect the Plaintiff from the unlawful actions and omissions of the other Defendants but each Defendant failed and refused to perform such duty, thereby proximately causing the Plaintiff’s injuries.

5.      Plaintiff was arrested in late September of 1999 and charged with five counts of first-degree murder.  Plaintiff lost his job due to this arrest and charge and has been unable to work in his chosen profession since this arrest.  Defendant’s Bowman, Bowen, Jackson, Graham, Shurtleff, and Romano, and unknown others caused Plaintiff’s Utah Physician’s and Surgeon’s License to be suspended, and it remains suspended, to Plaintiff’s detriment.  At the same time Defendants Johnson, Hutchinson, and unknown others caused Plaintiff’s Drug Enforcement Agency registration to be revoked, without due process, to Plaintiff’s detriment.

6.      The Plaintiff’s arrest was ordered after an information was submitted to the court despite full knowledge by Defendants Wilson, Major, Bowman, Barlow, Bowen, Jackson, Morrison, Oliver, Mortensen, Johnson, and others that Plaintiff was not guilty of the crimes charged.

7.      In late January and early February of 2000 a preliminary hearing was held on the above matter, and Defendants Wilson, Major, Bowman, Barlow and unknown others continued to submit information to the court intending to portray the Plaintiff as guilty of five counts of first-degree murder, despite full knowledge that Plaintiff was not guilty of the crimes charged.  Defendants utilized prosecution medical expert Bradford Hare, M.D., at this preliminary hearing.

8.      In April of 2000 Defendants Bowman and Barlow met with medical expert Perry Fine, M.D., after paying him to review medical records of the alleged victims in the five murder cases.  Defendants’ main prosecution medical expert, Dr. Hare, had referred them to Dr. Fine, and had characterized Dr. Fine as a more knowledgeable expert in the medical field in which the murder charges were brought.  Defendant’s listed Dr. Fine as a prosecution witness against Defendant.

9.      Dr. Fine told Defendants Bowman and Barlow his opinion was that the care rendered by Plaintiff was not criminal, was within the standard of care, that Dr. Hare was wrong in his assessment, and that Defendant prosecutors should not pursue the case.

10.  Defendants Bowman and Barlow told Dr. Fine that he would not be used further, and that he should talk to no one of his findings.  He was told he would not need to inform the Plaintiff’s defense counsel, and that Defendants would inform Plaintiff’s defense counsel of the opinion that Dr. Fine had formed.

11.  Defendants Bowman and Barlow reported the opinion of Dr. Fine to Defendants Wilson, Major, and unknown others.  Rather than tell Plaintiff’s defense counsel of Dr. Fine’s opinions, and despite two requests for “Brady material” discovery by the defense, Defendants Wilson, Major, Bowman, Barlow, and unknown others maliciously and illegally failed to divulge this exculpatory and impeaching evidence to Plaintiff or his defense counsel.

12.  Defendant Bowman, an attorney and officer of the court, has publicly stated in writing that she was never a prosecutor in the murder case at hand, but was instead employed by the State of Utah in the Division of Occupational and Professional Licensing (“DOPL”) as an assistant attorney general and “investigator” in the case.  Defendant Bowman was never listed as a prosecutor for the state at trial.  Other Defendants at DOPL and the State of Utah were aware of the failure to produce Brady material, and failed to produce this material to the Plaintiff’s defense team.

13.  Defendants Wilson, Major, Barlow, Bowman, Graham, Bowen, Jackson, DuPaix, Morrison, Gayheart, Mortensen, Oliver, Johnson, and unknown others participated in gathering and compiling the allegedly complete medical charts of the five alleged victims of Plaintiff Dr. Weitzel, and sent the allegedly complete charts to Plaintiff and Plaintiff’s defense counsel under the rules of discovery.  These allegedly complete charts were utilized throughout the subsequent trial, were entered into evidence, and went to the jury.

14.  Defendants Wilson, Major, Barlow, Bowman, Graham, Jackson, DuPaix, Morrison, Gayheart, Mortensen, Oliver, Johnson, and unknown others willfully and deliberately and maliciously left out three important documents from the medical charts, to wit, photographs of three of the alleged victims of Plaintiff that had been taken on admission to the hospital and which completely contradicted the Defendant’s theory of the case: that the alleged victims were in good or even excellent health when they were hospitalized under the care of Plaintiff Dr. Weitzel.  These same Defendants willfully and maliciously conspired to hide the existence of said photographs by inserting pages into the charts purporting that the photographs were missing.  These same Defendants willfully and maliciously failed to divulge this important evidence.

15.  Trial of Plaintiff Dr. Weitzel on five counts of first-degree murder was falsely and maliciously prosecuted by Defendants Wilson, Major, and Barlow, and aided by Defendants Bowman, Morrison, Gayheart, Jackson, Johnson, DuPaix, and Graham, beginning in early June of 2000.  Defendants were or should have been aware of Plaintiff’s innocence, but persisted in pressing the charges of murder.

16.  After a trial for first-degree murder of almost six weeks, Defendants Wilson, Major, and Barlow made motion for and were granted that “lesser included” charges of manslaughter and negligent homicide were to be submitted to the jury as well as the murder charges.  During this trial Defendants knew that one of the jurors had perjured himself on voir dire examination, and that the same juror had a close relationship with a prosecution witness who was extremely hostile to Plaintiff.  On July 10, 2000, Plaintiff was convicted of two counts of manslaughter and three counts of negligent homicide and immediately incarcerated.  Plaintiff was subsequently sentenced to a term of one to fifteen years of imprisonment, and was imprisoned.

17.  On August 15, 2000 Perry Fine, M.D. told a meeting of the Utah Coalition to Improve End of Life Care, and Defendants Wilson and Barlow, who were present, that he had been hired as an expert for the prosecutor Defendants, and that his advice and opinion had been ignored, and had never been disclosed to the Plaintiff’s defense counsel.

18.  The next day, August 16, 2000, Plaintiff’s civil attorney, Philip Ferguson, who was present at the meeting, informed Plaintiff’s criminal defense counsel Peter Stirba of the existence of the exculpatory and impeaching evidence of Dr. Fine’s opinions, undisclosed by the Defendants, and thus Plaintiff became aware of this willful and malicious violation of Plaintiff’s substantive right to due process.

19.  Plaintiff’s defense counsel filed a Motion for New Trial with the trial judge, based on the willful and malicious refusal by Defendants to divulge exculpatory and impeaching evidence and the inclusion of a juror the Defendants knew to be prejudiced against Plaintiff.  This Motion for New Trial was granted January 9, 2000, and Plaintiff was released from prison on January 11, 2000, after six months and one day of incarceration.

20.   After the Motion for New Trial was granted and Plaintiff was released, Defendants Wilson, Major, McKean, Barlow, DuPaix, Graham, Shurtleff, and unknown others maliciously re-filed first-degree murder charges and retried Plaintiff on charges of first-degree murder, despite Plaintiff’s acquittal of first-degree murder charges in the first trial, and well known federal and state constitutional law, federal and state case law, and even a state statute barring twice putting in jeopardy a defendant’s liberty, costing Plaintiff the last of his meager funds in defending against this bad-faith and malicious false prosecution.  The very day before a hearing on the double jeopardy issue was to be held, Defendants sent to the court and Plaintiff’s attorney notice that they did not really intend to seek these charges, but only the lesser charges that the original jury had convicted on.  As a result of this Plaintiff spent much-needed funds on a completely unnecessary defense against this conduct.

21.  In April of 2002 Plaintiff asked his court-appointed attorney, Glen Cella, to obtain a complete set of the alleged victims’ medical records directly from the hospital, where they have remained.  In May of 2002 there were received from the hospital, and at that time it was discovered that Defendants Wilson, Major, Barlow, Bowman, Graham, Jackson, DuPaix, Morrison, Gayheart, Mortensen, Oliver, Johnson, and unknown others had willfully and maliciously hidden and refused to divulge exculpatory evidence; to wit, admission photographs of the alleged victims showing their true state on admission to a hospital under Plaintiff’s care.

22.  Despite full knowledge of Plaintiff’s lack of guilt in the homicide case still being pressed, Defendants Wilson, Major, Barlow, McKean, DuPaix, Shurtleff and Johnson continued to maliciously and falsely prosecute Plaintiff, with retrial of the matter October 30, 2002.  At this trial Plaintiff was acquitted of all charges.

23. On September 11, 2002, Dee Benson participated in a scheme with Defendants Stewart Walz, Paul Warner, and Robert Johnson to incarcerate Plaintiff just prior to the second homicide trial so that he could not effectively assist his counsel.  Benson and Walz only relented after extorting an agreement from Plaintiff that Plaintiff not appeal an unfairly imposed sentence with no opportunity for a true evidentiary hearing, although the government was allowed to bring evidence unopposed, in a federal matter unrelated to the state homicide charges but completely interconnected with the state’s accusations.

24. On December 12, 2003, Defendants Jackson, Shurtleff, Romano, Utah Division of Occupational and Professional Licensing, and State of Utah entered into a contract with Plaintiff whereby Plaintiff agreed to have dismissed a highly meritorious lawsuit in state court against the State of Utah and the Division of Occupational and Professional licensing, in return for which Defendants would quit all petitions against Plaintiff’s Utah medical license, leaving said licensure in a posture of being suspended only due to failure to pay licensure fees and nothing more.  Plaintiff dropped his lawsuit and relied upon Defendants to uphold their part of the contract.  Beginning March of 2004, Plaintiff engaged in a search for further professional training as a fellow or resident in an institutional training program in psychiatry, in order to regain currency in his field, telling each institution that to his knowledge his license was in a suspended status due to failure to pay fees and that there were no other active or pending petitions against his license.  In fact Defendants were telling these institutions and their training directors that Plaintiff’s license had been suspended for “unprofessional conduct” since December 12, 2003, and Defendants reported this suspension to the National Practitioner Data Bank on July 13, 2004, defaming the Plaintiff nationally.

25.  Although not limiting this complaint from further amendment, lastly Plaintiff states that Defendants Wilson, Major, Bowman, Barlow, Morris, Jackson, Shurtleff, Harry, Hutchinson, Walz, and Morrison have used their positions as state officials and under color of state law, to make many false and slanderous statements about Plaintiff to the press, public, and to members of Plaintiff’s profession, maligning and damaging Plaintiff’s reputation and causing Plaintiff severe harm in his attempts to garner expert and professional support for his plea of not guilty to the continuing charges, and destroying Plaintiff’s ability to work in his chosen profession.

26.  As a direct and proximate result of the Defendants’ conduct, the Plaintiff has suffered and will continue to suffer substantial injuries and damages, all of which exceeds $75,000.00.

             WHEREFORE, the plaintiff prays that judgment be entered against these defendants, and each of them, in an amount in excess of $75,000.00 (exclusive of interest), costs, attorney’s fees and punitive damages, and for such further relief as this Court deems just and equitable.

Respectfully submitted,

 Robert Weitzel, M.D., Pro Se

JURY TRIAL DEMANDED

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