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Duluth Physician Gets Court Victory in Sex Assualt Trial

July 23, 2008

By Mark Stodghill, Duluth News-Tribune, Minn.

Jul. 23–In a setback for the prosecution, the testimony of five women who allege that a Duluth physician touched them inappropriately will not be allowed as evidence when he stands trial on a charge of sexually assaulting another female patient, a judge has ruled.

Dr. Javier De La Garza, 52, a gastroenterologist with St. Luke’s hospital, is charged with third-degree sexual assault, a felony. He is accused of having sexual intercourse with a patient without her consent on her parents’ boat while docked at Barker’s Island Marina in September 2006. According to the complaint against De La Garza, the patient was giving him a tour of the boat when he suggested giving her an exam. They went into the boat’s cabin area, where the assault occurred, the complaint said.

The Douglas County District Attorney’s Office had sought to admit testimony from the alleged victim and five other female patients of the defendant, who accused him of touching them inappropriately in a sexual manner while they were being treated by him at his office or in the hospital.

The other women’s testimony was presented during hearings in Douglas County Circuit Court in February and May. De La Garza has not been charged with sexually assaulting any of the other women. Four of the women have brought civil lawsuits against the doctor claiming he engaged in harmful, offensive and illegal sexual contact with them with no reasonable medical purpose. They allege they suffered and continue to suffer physical pain, humiliation, mental anguish, anxiety and emotional distress.

In an order filed Thursday, Douglas County Circuit Judge Michael Lucci found that the relevance of the other women’s testimony “does not measure up to any level near that of the danger of unfair prejudice that would result from its admission. Furthermore, the potential for undue delay, confusion of the issues and misleading of the jury resulting from its admission far outweighs its relevance and probative value.”

Assistant Douglas County District Attorney James Boughner said Tuesday that his office would discuss the case with the criminal appeal unit of the state attorney general’s office before deciding whether to petition the Wisconsin Court of Appeals for review, which is discretionary.

Richard Gondik, the Superior defense attorney who represents De La Garza, couldn’t be reached for comment Tuesday.

The trial is scheduled to begin Aug. 11.

Boughner argued in his motion to include the other women’s testimony that the alleged acts took place during the same time frame as the charged assault, in similar, secluded exam sites and under similar circumstances: taking advantage of a patient while claiming to provide medical services. He said the alleged past acts show De La Garza had a pattern of using his position to receive sexual gratification when examining women alone.

Lucci granted Boughner’s motion to admit into evidence at trial other incidents of alleged sexual contact with the one woman he is criminally charged with sexually assaulting.

De La Garza has practiced at St. Luke’s since 2004. A gastroenterologist is a physician who specializes in the diagnosis and treatment of gastrointestinal tract disorders. He reached an agreement with the Minnesota Board of Medical Practice on Sept. 26 to stop practicing medicine while the board investigates complaints against him.

In an unrelated matter in St. Louis County District Court in Duluth, the doctor is facing a charge of reckless discharge of a firearm within a municipality, fleeing a police officer in a motor vehicle and two counts of driving while under the influence of alcohol after a Nov. 30 incident that started as a domestic disturbance at his Congdon Park home.

MARK STODGHILL covers public safety and courts. He can be reached weekdays at (218) 723-5333 or by e-mail at mstodghill@duluthnews. com.

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Copyright (c) 2008, Duluth News-Tribune, Minn.

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