Buy way of answer to Plaintiffs Complaint Defendant Damion Gilday, DMD, admits, denies, and alleges as follows:

1.

Defendant admits that the plaintiff, Jeff Jones was treated in Lane County, Oregon by defendant who a dentist.

2.

Defendant further admits that defendant performed a root canal on plaintiff and that during the procedure a portion of the file tip separated in the root. Defendant further admits that he advised plaintiff that the file had separated and had an informed consent conversation with the plaintiff.

3.

Defendant admits that he placed crowns on plaintiffs teeth.

4.

Defendant admits that at a certain point in his treatment of plaintiff defendant suggested that plaintiff seek treatment from another dentist because defendant and other dentists who had seen plaintiff all felt that the crowns that plaintiff was complaining about were fine and met the standard of care.

5.

Except as so specifically admitted defendant denies the remainder of the Complaint in whole and in part.

6.

By way of First Affirmative Defense Defendant alleges that plaintiff fails to state a claim.

7.

Wherefore, defendant prays for judgment against plaintiff and for his costs and disbursements incurred herein as well as any other relief the court deems proper under the circumstances.

Dated this day of May, 2005.

SCHWABE, WILLIAMSON & WYATT, P.C.

Elizabeth A. Schleuning, OSB #85427

REPRINTED from court records:

Comes now the Plaintiff for reply to the Defendants "affirmative defense", states respectfully as follows:

1.

That the defendants claim that I "failed to state a claim", is denied.

2.

The defendants actions and inactions were malfeasance and nonfeasance, and fell below the standard of care, for dentists under the circumstances, proximately causing economic and non-economic damages as stated in the Complaint.

3.

Plaintiff relied on the details and sample complaint as stated in: 3COA547, CAUSE OF ACTION FOR MALPRACTICE OF DENTIST OR ORAL SURGEON. (OCT. 2004)

4.

Plaintiff relied on the details and sample complaint as stated in: 21COA1, CAUSE OF ACTION AGAINST PHYSICIAN OR SURGEON FOR BREACH OF THE DUTY OF ATTENTION AND CARE. (OCT. 2004)

5.

17.2/ Code Pleading, FRCP12(6)(6) Pro se complaints are held to a less strict standard than those drafted by a lawyer 857F2d559, 563

6.

Wherefore, premise considered, plaintiff preys for judgment against defendant as stated in my Complaint, and for my costs and disbursements incurred herein as well as any other further relief the court deems proper under the circumstances.

Respectfully submitted on this 10^th day May, 2005.

It is right for a Doctor or Dentist to injure you and then be protected by the State from Lawsuits, violation of the US Constitution? THIS NEEDS A FULL BLOWN INVESTIGATION !

My Opinion, What is happening to me can happen to you!

You and all of Oregon are at risk. Did you know that any doctor or dentist can seriously injure you and there is nothing you can do about it? The proof of this is Rule 47 of Oregon Rules of Civil Procedure, read it here: http://www.leg.state.or.us/ors/orcpors.htm It says that the injured person must have a Lawyer hire another doctor to testify against the doctor that injured you, or you loose without ever going to court. (Regardless of the tons of evidence you may have and You cannot hire that witness) This is in violation of federal equal protection laws & the Constitution. Doctors & Dentists belong to societies that immunize one another by agreeing not to testify against each other. I am suing DAMION GILDAY DMD who it appears owns $3 Million in assets at Village Plaza Loop, Smith St., River Pointe, Park Grove, 10^th St., Willamette St., Arrowhead. He admitted to injuring me with a broken drill/file then he hides behind Rule 47. He wants the case dismissed without a trial that HE ASKED FOR. He would not face me in Small Claims for $5,000 for the loss of my tooth & much more. I’m on Disability. He’s collected over $8,000 from my family & our insurance. I’ve suffered huge expenses and pain. Read about it at WWW. SUEGILDAY.COM be sure to read pages 2 & 3. FOR YOUR OWN SAFETY Contact your LEGISLATURE, tell them to cancel Rule 47, for everyone’s good!

This site contains Public court documents and my opinions. In my opinion anybody who had assets of nearly $3 million in 2004, who in one breath admits to injuring me, then in another breath denies it and then COWARDLY hides behind Rule 47, designed to immunize medical professionals. Then he threatens to sue me for defamation for exposing this information!

In my opinion, THIS IS NOT SOMEONE YOU SHOULD TRUST, WHAT HAPPENED TO ME CAN HAPPEN TO YOU!

Please read pages 2 & 3 , please read it all

IF YOU HAVE BEEN INJURED BY DAMION GILDAY PLEASE CONTACT ME!

(1) This case was transferred from small claims court Case # 700504234, at the demand of Damion Gilday, who Under Oath, LIED to the court, when he denied the allegations and demanded a jury trial.

Then in his ANSWER to the Complaint, he admitted his LIE. On just this basis, I should win this case.

(2) Defendant attempts to place himself above the law and the Amendment VII of the US Constitution: - " In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law."

 By manipulating this court into not presenting this case to the very jury the defendant himself, asked for.  Justice cannot be served were money and power places anybody above the law.

(3) Using ORCP 47 under equal protection under the law, Defendant must prove that his conduct and injuries to the plaintiff do not fall short of the standard of care. To do this he must present Expert Witnesses, other dentists in fact, who will admit under oath, that they too have broken drills and left the drills embedded in the jawbone and that they too have abandoned their patient and be willing to produce the names of those victims, to prove that they are real patients.

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Reprinted from court files:

AFFIDAVIT FOR PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AGAINST DAMION GILDAY, DMD filed 8/18/2005

I, Jeff Jones, being first duly sworn on oath, do hereby depose and say:

1. This case was transferred from small claims court Case # 700504234. Under Oath, Damion Gilday LIED to the court, when he denied the allegations and demanded a jury trial.

2. Then in his ANSWER to the Complaint, he admitted his LIE. On just this basis, I should win this case.

3. Then to escape justice he relies of rule 47 to avoid any hearing on the matter in any courtroom. He never wanted that jury trial in the first place.

4. About 8/4/05, Returning from Bellingham, Washington, I physically drove to the Law office of SCHWABE, WILLIAMSON & WYATT, 1211 SW 5^th Ave., Portland, Or to have a face to face meeting with Gildays attorney Elizabeth A. Schleuning. The receptionist on the 16^th floor, called Elizabeth who promptly refused to see me or even schedule an appointment.

5. I reaffirm all allegations I made in my Complaint.

6. This affidavit should be read with my MEMORANDUM with POINTS & AUTHORITIES, which accompanied my previous filing of COUNTER-AFFIDAVIT OF PLAINTIFF AGAINST DEFENDANTS MOTION FOR SUMMARY JUDGMENT OF DAMION GILDAY, DMD.

7. I have created a website WWW.SUEGILDAY.COM. I have published nearly every court document from both sides. I sent postcards to every lawmaker in Oregon both Senate & House. I sent cards to the Oregon & US Attorney General, Oregon’s Governor, Oregon Appeals & Superior Court. Lane County Dental Society, Oregon Board of Dentistry, 60 Minutes TV, 20/20 TV, Lars Larson and other talk shows. These postcards invite the world to witness the history of this case and whether or not justice will be served, by reading this website. This has prompted another family injured by Gilday to contact me with her story of her and her daughter.

8. I have the evidence and the broken drill is still in my gum, and a brand new x-ray to prove it.

9. Defendant admitted his mistake and forgave a $600 balance plus the defendant paid out some money directly to Endodonist Michael Dryden DDS PC, that is an admission of guilt. Furthermore, Defendant basically admits causing injury in claims 1 & 4 in his Answer to Complaint.

10. I object to Defendant Gildays Affidavit paragraphs 3 & 4. Defendants Affidavit paragraph 4, states he caused no harm or injury, in my opinion, he’s a liar. Let me drill his tooth and break a bit off in his jaw.

11. Defendant has not provided any opposing evidence as require by law. He did not prove that no genuine material fact exists. He’s not offered one single piece of paper or x-ray in his defense.

12. I have two expert witnesses who have already written damaging evidence against Damion Gilday. (1) In his ANSWER to my Complaint, Gilday himself admits to count one and count four. (2) His best friend Larry Michael Over DMD, MSD, whom I paid more than $300 to, for his "EXPERT OPINION", identifies the damage Gilday had done and then provides a written treatment plan, indicating the costs to repair Gildays work would far exceed $3,000. I would subpoena him and treat him as a hostile witness.

13. In fact, the mere fact that I have been treated by all of these: South Lane Medical Group, Michael Dryden, DDS, Larry Michael Over DMD, Daniel Harper DMD, Gerald Harper DDS, Darleen Mitchell massage therapist, to correct damages done by the Defendant, and that these doctors chart notes reflect the affected teeth, are in and of themselves, material evidence and unwitting expert testimony in my behalf.

14. Defendant pretends to be a expert witness unto himself. GILDAY DOES NOT BRING IN AN EXPERT WITNESS.   HE SAYS HE IS HIS OWN EXPERT WITNESS!!! 

Can a murder be his own expert witness, to say it was self defense?

Defendant affidavit is contrary to his admissions in his Answer to the Complaint.

15. If in fact it is common practice for dentists to break drills off in the gum after drilling past the root, if it is common practice to not use endodontists, if it is common practice to abandon your patients, if it is common practice to screw up a patients bite then refuse to fix it, then why has this defendant not proved that, by presenting the affidavits of several local dentists admitting to having done those very things?

16. Equal protection under the law. If rule 47 requires expert testimony from me, then it should demand the same from the defendant and that means other dentists who have committed the same injuries identified here, to other patients. Therefore, rule 47 should demand Expert witnesses of dentists admitting injury to patient and detailing those injuries along with the name of these patients.

17. That as a result of careless and negligent acts on the part of the defendant in performing the said dental procedure, the defendant having drilled through a gold crown, not only broke a drill bit or file, off in the fourth root of a molar, known as tooth #14, but drill beyond the root deep into the bone. This broken tool remains in my jaw today, it is proof positive that the defendant drilled thru the root and beyond into the bone. That goes beyond a "root canal" and was not authorized nor met the standard of care. The tooth was eventually removed and yet the extraction could not retrieve the drill file. This is evidence of negligence, defendant did not stay inside the tooth itself. That caused multiple infections, weeks of intense pain and numerous other doctor bills. Defendant admitted his mistake and forgave a $600 balance plus paid out money to Endodonist Michael Dryden DDS PC. Furthermore in the Defendants Answer to the complaint, he admits material facts to the court. Informed consent was never discussed before the procedure. Defendant refused to correct or treat the post-operative complications he created, and refused to see Plaintiff as a patient ever again. Such refusal is not discretionary, but is subject to the standards of the profession. If this were not true, no citizen would become a dental patient. Plaintiff relies on the doctrine of "Res Ipsa Loquitur". Defendant is vicarious liable for the negligent acts of his agents and employees under the usual rules of agency law. That as a result of careless and negligent acts on the part of the defendant and/or his agents and employees in performing the said dental procedure, this caused infections, TMJ, neck strains, chewing difficulties, sleeping difficulties, many weeks of intense jaw and muscle pain, loss of enjoyment of life and numerous other doctor bills. Creating extreme hardships on plaintiff, resulting in the ultimate loss of 12 upper teeth. Dr. White had falsified the record of 11/6/03 to cover her mistake. Other obvious omissions are noticed in the chart notes by defendant Gilday & Dr. Webster. Defendant refused to correct his mistakes and stated that plaintiff was no longer welcome as a patient in his office. Plaintiff lost all 12 upper teeth. Defendant committed an abandonment of a patient, when he refused to treat the problems he and his staff created. Thus, during the period of the defendants absence, the plaintiff was deprived of medical care.

18. Already in these court files are many many pages of exhibits of evidence including photos and x-rays which will remain in the files of this case. Preserved for the court of appeals.

19. I swear under oath that the exhibits of evidence is true and accurate and defense has copies of same.

20. A total escape of justice for Gilday due to rule 47 should not occur, where the case originated in a simple small claims case where no rule 47 exists, and where it was the defendant who demanded the case be moved to a jury trial. So give him what he asked for, a jury trial.

21. Rule 47 is not a law and cannot supplant laws, Rule 47 encourages vigilantism.

22. res ipsa loquitur [Latin, the thing speaks for itself] A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligence (a plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence - Cox v. May Dept. Store Co., 903 P.2d 1119 (1995)) Maurice FIEUX v. CARDIOVASCULAR & THORACIC CLINIC 159 Or. App. 637, 978 P.2d 429 Patient was not required to present expert medical testimony to establish the elements for res ipsa loquitur doctrine

23. Rule 47 is in violation of the US CONSTITUTION ; Amendment I, Amendment VII, Amendment IX, Amendment X, Article XIV. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Declaration of Independence, written by Thomas Jefferson: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.

24. If I have attempted to present evidence with the complaint itself, the complaint would have been thrown out on a technicality. The Complaint is for facts, not evidence. However, the defense has asked for 10 minutes of oral arguments. I have countered that with a request for 40 minutes of face to face meeting with the judge, with a court reporter, whereby I can present the physical evidence including physical models of my teeth, x-rays, photos, chart notes, doctors opinions, treatment plans, bills and nearly 60 pages of documents.

25. It must be said that I made my own First Request for Production from the Defendant, They refused every request. The requests were nearly identical to the questions they had of me. This is yet, in my opinion, another cowardly move on their part, and the judge should compel their production.

Gilday refuses to produce the same request for production he asked of me. This is because the defense is confident that rule 47 will be enacted prior to the court compelling them to answer the request for production or being held in contempt.

26. It was Gilday who first asked for a Jury trail, when he kicked the case out of small claims court. This court should ignore rule 47 challenges because in my opinion, Gildays demand for a jury trail supersedes his cowardly attempt in using rule 47.

27. The defense has not refuted or presented any evidence to disprove my claim, in fact they admitted to injuring me. They state that my complaint is "RIPE" but they do not prove it, instead in my opinion, the cowards hide behind rule 47. What does this say for their 7 years of schooling, afraid of being whipped by some mentally challenged person with no college degree?.

28. On page 3 line 12 Gilday is acting as his own expert witness. In my opinion, accepting Gildays affidavit in his motion for summary judgment, is akin to accepting a affidavit from Hitler saying that he is the Christ. It is lawful for me to act as my own expert witness, it testify on the pain, suffering , loss of enjoyment of life, and expenses.

29. OREGON BOARD of DENTISTRY and the LANE COUNTY DENTAL SOCIETY would not provide any names of dentists who have appeared as witnesses anywhere at any time, and refused to help locate an "expert witness", saying "that’s not what we do".

30. I contacted many dentists, they all declined me, regardless that ANY JUROR CAN SEE AND HEAR WITH THEIR OWN EYES, or 90 out of 100 ordinary people, the errors made on me.

31. I am suicidal among other mental disorders. Read more in my memorandum.

32. Checking the 2004 tax records, I found Gilday owns $2.6 million worth of residential real estate, not counting his 3 dental offices. And he wanted to deprive me of $5,000 of the $8,000 he made off my family, when this matter was originally filed in small claims court! I am out-of-pocket more than $15,000 because of this guy, that is MY WHOLE YEARS INCOME! (from SSD), in my opinion, that is immoral. Plus, I am entitled to sue for mental anguish, I have not, he should count his blessings.

33. I contacted many attorneys, non were interested NOT because the case lacked MERIT, but because of the "good-o-boy" wall of silence, where no brother will testify against another, utilizing rule 47 to immunize each other. I have phone recordings of lawyers are saying it is nearly impossible to sue a dentist because of this. These lawyers indicate that if an expert witness were found, he would come "from out of state", and would then be challenged on his knowledge of "local" procedures, yet Id owe him $7,000 or more for his testimony, whether it helps or not.

34. Just to be certain I include a "material fact", I embed a photo of the "Treatment Plan" from Larry Michael Over DMD, MSD, into this affidavit.

35. Just to be certain I include another "material fact", I embed a photo of chart notes from Gerald Harper DDS, into this affidavit.

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Please click on pages two and three and you can read about EXPERT WITNESS, CRYSTAL BAXTER DMD and 25 links on page four.

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