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Filing # 148582390 E-Filed 04/28/2022 01:40:16 PM
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1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
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3 CASE NP.: 2017-CA-000174 MP
4 ASHLEY CALZADA and JUAN L. CALZADA, Individually and on
behalf of JARIEL LUIZ CALZADA OYUELA, a minor,
5 PLAINTIFFS,
6 V.
7 OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL
CENTER, ERIC FRENDAK, CRNA, OSCEOLA OB/GYN, MICHAEL R.
8 DENARDIS, D.O. OB HOSPITALIST GROUP, LLC, EZER A. OJEDA,
M.D. OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DEL
9 VALLE, M.D. JMJ FAMILY PRACTICE, INC., JOSE RAMON
FERNANDEZ, M.D., MID-FLORIDA WOMANS'S CENTER, INC.
10 BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP,
INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX,
11 INC., JOSE I GIERBOLINI M.D., JUAN LONGHI, M.D., HCA,
INC., HCA HEALTHCARE SERVICES OF FLORIDA, INC. and HCA
12 HEALTHCARE SERVICES- FLORIDA INC.,
DEFENDANTS.
13 ________________________________________/
VIDEOCONFERENCE HEARING BEFORE THE HONORABLE MARGARET
14 SCHREIBER **APPEAL TRANSCRIPT**
DATE: NOVEMBER 8, 2021
15 REPORTER: MADISON MARTINEZ
PLACE: ALL PARTIES APPEARED VIA VIDEOCONFERENCE
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1 APPEARANCES
2 ON BEHALF OF THE PLAINTIFF, ASHLEY CALZADA and JUAN L.
CALZADA, Individually and on behalf of JARIEL LUIZ
3 CALZADA OYUELA, a minor:
Carlos Diez-Arguelles, Esquire
4 Diez-Arguelles and Tejedor, P.A.
505 North Mills Avenue
5 Orlando, Florida 32803
Telephone No.: (407) 705-2880
6 Facsimile No.: (888) 611-7870
E-mail: carlos@theorlandolawyers.com
7 (Appeared via videoconference)
8 ON BEHALF OF THE DEFENDANT, HCA INC:
John Emmanuel, Esquire
9 Buchanan Ingersoll and Rooney PC
401 East Jackson Street
10 Suite 2400
Tampa, Florida 33602
11 Telephone No.: (813) 222-8180
E-mail: john.emmanuel@bipc.com
12 (Appeared via videoconference)
13 ON BEHALF OF THE DEFENDANT, OSCEOLA OB/GYN AND MICHAEL
R. DENARDIS D.O.:
14 Pierre Seacord, Esquire
Ringer, Henry, Buckley and Seacord, P.A.
15 P.O. Box 4922
Orlando, Florida 32802
16 Telephone No.: (407) 841-3800
E-mail: pseacord@bsj-law.com
17 (Appeared via videoconference)
18 ON BEHALF OF THE DEFENDANT, PEDIATRIX MEDICAL GROUP,
INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX,
19 INC., JOSE I. GIERBOLINI, M.D. AND JUAN LONGHI, M.D.:
Marshall McKinstry, Esquire
20 Ketcham Eide Telan Meltz and Wallace, PA
PO Box 530865
21 Orlando, Florida 32853
Telephone No.: (407) 423-9545
22 E-mail: mmckinistry@ketmw.com
(Appeared via videoconference)
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1 APPEARANCES CONTINUED
2 ON BEHALF OF THE DEFENDANT, OSCEOLA REGIONAL HOSPITAL
d/b/a OSCEOLA REGIONAL MEDICAL CENTER:
3 David Nelson, Esquire
LaCava and Jacobson PA
4 501 East Kennedy Boulevard
Suite 1250
5 Tampa, Florida 33602
Telephone No.: (813) 209-9611
6 E-mail: dnelson@ljglegal.com
(Appeared via videoconference)
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ON BEHALF OF THE DEFENDANT, OB HOSPITALIST GROUP, LLC,
8 EZER A. OJEDA, M.D.
Taylor Brooks, Esquire
9 Rissman, Barrett, Hurt, Donahue, McLain and Mangan, P.A.
1 North Dale Mabry Highway
10 11th Floor
Tampa, Florida 33609
11 Telephone No.: (813) 221-3114
E-mail: taylor.brooks@rissman.com
12 (Appeared via videoconference)
13 ON BEHALF OF THE DEFENDANT, ERIC FRENDAK, CRNA, RODNEY
DEL VALLE, M.D. AND OSCEOLA ANETHESIA ASSOCIATES, P.L.
14 Danielle Boring, Esquire
McEwan, Martinez and Dukes, P.A.
15 108 East Central Boulevard
Orlando, Florida 32801
16 Telephone No.: (407) 423-8571
E-mail: dboring@mmdorl.com
17 (Appeared via videoconference)
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1 STIPULATION
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3 The videoconference hearing before the Honorable
4 Margaret Schreiber taken remotely on Monday the 8th day
5 of November 2021 at approximately 10:59 a.m.; said
6 hearing was taken pursuant to the Florida Rules of Civil
7 Procedure.
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1 PROCEEDINGS
2 JUDGE SCHREIBER: And we are here on Calzada v.
3 Osceola Regional Hospital, specifically, HCA, Inc.'s
4 amended and restated motion for summary judgment. I
5 did receive the materials in advance of today's
6 hearing, but didn't have an opportunity to review
7 them. Why don't we go ahead and get appearances
8 because I believe we have a court reporter present.
9 Let's find out who our court reporter is first.
10 COURT REPORTER: Hi. My name --
11 JUDGE SCHREIBER: Could you put your name and
12 company on?
13 COURT REPORTER: -- yeah. My name is Madison
14 Martinez, and I'm with --
15 JUDGE SCHREIBER: What company are you with?
16 COURT REPORTER: -- Milestone Reporting
17 Company.
18 JUDGE SCHREIBER: Great. Thank you. Who's
19 here for the plaintiff today? All right. You're
20 muted.
21 MR. DIEZ-ARGUELLES: Good morning, Your Honor.
22 Carlos Diez-Arguelles.
23 JUDGE SCHREIBER: Thank you. Who's here for
24 HCI, Inc.?
25 MR. EMMANUEL: Your Honor, John Emanuel.
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1 JUDGE SCHREIBER: HCA, Inc. I'm sorry.
2 MR. EMMANUEL: John Emmanuel for HCA, Inc.
3 Thank you.
4 JUDGE SCHREIBER: That's the motorcycles
5 outside. Give me one second. All right. I'm just
6 going to go down the list. Ms. Boring, Danielle
7 Boring, who are you here for?
8 MS. BORING: Good morning, Your Honor. I'm
9 here on behalf of Eric Frendak, CRNA, Rodney Del
10 Valle, Osceola Anesthesia Associates, PL.
11 JUDGE SCHREIBER: Thank you. David Nelson, who
12 are you here for?
13 MR. NELSON: On behalf of Defendant Osceola
14 Regional Hospital, DBA Osceola Regional Medical
15 Center.
16 JUDGE SCHREIBER: Thank you. Marshall
17 McKinstry, who are you here for?
18 MR. MCKINSTRY: Yes, Your Honor. I'm here for
19 Dr. Gierbolini, Dr. Longhi, Mednax, Inc., and the
20 two pediatric entities.
21 JUDGE SCHREIBER: We have a law clerk with us,
22 Philip Keperna (phonetic). Okay. How about Pierre
23 Seacord, who are you here for?
24 MR. SEACORD: Yes, ma'am. Dr. Calzada -- I'm
25 sorry. Dr. Denardis. Dr. Denardis. My apologies.
Page 7
1 JUDGE SCHREIBER: Pick a doctor today. Okay.
2 Taylor Brooks, who are you here for?
3 MS. BROOKS: Good morning, Your Honor. I'm
4 here for Defendants, Dr. Ojeda and OB Hospitalist
5 Group.
6 JUDGE SCHREIBER: Thank you. And Tamika
7 Thompson?
8 MS. THOMPSON: Hi. Good morning, Your Honor. I
9 am -- I was hired by the -- one of the attorneys.
10 I'm the court reporter with Esquire Deposition
11 Solutions.
12 JUDGE SCHREIBER: And you're a court reporter?
13 MS. THOMPSON: I am.
14 JUDGE SCHREIBER: Okay. So we have two court
15 reporters today, Madison and Tamika. I'm fine with
16 that. Just making sure you all want two today. All
17 right. So let's go forward with the motion. HCA,
18 please.
19 MR. EMMANUEL: Yes, Your Honor. Your Honor, as
20 you indicated, we're here today on HCA Inc.'s
21 amended motion for summary judgment. Your Honor may
22 recall that in this case I previously represented
23 two other defendants, namely HCA Health Services of
24 Florida, Inc.
25 and Health Services Delaware, Inc. The
Page 8
1 plaintiff's claims against those two defendants is
2 identical to the claim asserted against the movant,
3 HCA Inc. Your Honor granted summary judgment in
4 favor of those other two defendants back on October
5 15, 2020. And in that order, you made a number of
6 detailed findings and conclusions law. The
7 plaintiffs initially appealed that order but later
8 voluntarily dismissed the appeal before it was
9 breached, but because that appeal was taken and then
10 dismissed, the findings contained in that order are
11 final and binding on the plaintiffs. Your Honor, in
12 regards to the motion today, we have filed materials
13 in support, including the following, the initial
14 affidavit of Michael Bray from June of 2020, a
15 supplemental affidavit from him June 25, 2021, his
16 deposition transcript taken back in June of 2020,
17 the order on HCA, Inc.'s motion to dismiss, and then
18 the order granting the co-defendant's motion for
19 summary judgment. The plaintiffs have filed an
20 opposition brief, but it is 90 percent a repetition
21 of the opposition they filed back with the prior
22 motion for summary judgment. Your Honor, do I need
23 to take any time discussing the new summary judgment
24 standard if you've had -- okay. I'm going to skip
25 that.
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1 JUDGE SCHREIBER: I think I got that one down.
2 Thank you.
3 MR. EMMANUEL: Yes, Your Honor. Your Honor, I
4 want to briefly review the facts giving rise to this
5 lawsuit. Plaintiff Ashley Calzada delivered her
6 son, J., on July 12, 2012 at Osceola Regional
7 Medical Center. The plaintiff sued numerous
8 physicians and their practices alleging medical
9 negligence. The plaintiffs also sued Osceola
10 Regional Medical Center and its owner, Osceola
11 Regional Hospital, Inc., for negligence based on the
12 alleged nondelegable duty and vicarious liability
13 for the physicians. As indicated just a minute ago,
14 Mr. Nelson represents the hospital. And while the
15 hospital denies any liability, there's no dispute
16 between the hospital and my client that Osceola
17 Regional Hospital, Inc. is the licensed owner and
18 operator of the hospital. So this is not a finger
19 pointing situation. In fact, the plaintiffs
20 specifically allege that in their complaint, and Mr.
21 Nelson admitted it in his answer. So Your Honor,
22 then you get to my client HCA, Inc. The plaintiff's
23 claims against it along with the co- defendants that
24 have already been dismissed was not clear, so we
25 filed a motion to dismiss. It would -- it was heard
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1 on October 31, 2017. And the order granting that
2 motion is located at tab 2B of our notebook. And
3 here's what the order says, "The plaintiff's claims
4 against the movant shall proceed solely on the
5 theory that the movant's 'operate and/or maintain'
6 the hospital and all allegations that the movants
7 are liable as parent companies are deemed stricken."
8 So, Your Honor, that's the claim that we're focused
9 on here today, and that was also the claim that was
10 asserted against the co-defendants who already had
11 summary judgment granted in their favor. The first
12 item we filed in support of our motion is the
13 initial affidavit by Mr. Bray. He confirms that Mr.
14 Nelson's client is in fact the licensed owner and
15 operator of the hospital and was so back in 2012.
16 He attaches various documents from the Florida
17 Secretary of State and AHCA that shows that, Agency
18 for Health Care Administration. And then regarding
19 HCA, Inc., he states under oath that it is a non-
20 operating holding company without any employees or
21 operations of its own. He states clearly that it
22 does not own, operate, or maintain the hospital.
23 And he further states that HCA, Inc. did not employ
24 any of the physicians or have any involvement in the
25 medical care at issue in this case. You may recall,
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1 Your Honor, that the plaintiffs previously made an
2 ore tenus motion to strike Mr. Bray's affidavit.
3 That motion was denied by order dated October 15,
4 2020. They make the same request in their current
5 opposition materials, and it should likewise be
6 denied. Your Honor, the plaintiffs then took Mr.
7 Bray's deposition. He testified as follows. That
8 the Securities and Exchange Commission requires
9 related companies to file their filings on a
10 consolidated basis, that the SEC filings have a
11 definitional section that defines HCA as HCA
12 Healthcare Inc., and all of its subsidiaries. He
13 confirms that Mr. Nelson's client does in fact own
14 and operate the hospital. He states that if the
15 hospital makes a profit in a particular year, it
16 keeps that profit. It's not transferred to another
17 company. And he also confirms that there were no
18 agreements or contracts between HCA, Inc. and any of
19 the other co-defendants. So, Your Honor, at this
20 point, we have met our burden through Mr. Bray's
21 affidavit and testimony that there is no basis for
22 the allegation that HCA, Inc. operates or maintains
23 the hospital. Under the new rule, that then shifts
24 the burden to the plaintiffs. So we have to look at
25 what they filed in opposition. First, Your Honor,
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1 at Plaintiff's Exhibit 4, they cite to the 10-K
2 filed by HCA Holdings, the ultimate parent company,
3 with the SEC in 2012. The only section of that
4 document that mentions the hospital is at Exhibit
5 21, which lists subsidiaries by state. And it
6 confirms that Osceola Regional Hospital, Inc., Mr.
7 Nelson's client, does in fact own this hospital.
8 They also found HCA, Inc.'s articles of
9 incorporation. That again confirms Mr. Bray's
10 testimony. They also, again, rely on an affidavit
11 from the plaintiff back in 2020. She states in her
12 affidavit that she viewed certain unspecified
13 information on the Internet and based on that she
14 made a decision to come to this hospital. Your
15 Honor, while that testimony might have been relevant
16 perhaps to an apparent agency claim, it's not
17 relevant to the claim which is asserted here, namely
18 that HCA, Inc. operate or maintain the hospital.
19 Further, she does not attach copies of what she
20 looks at, and her affidavit does not reference the
21 movant HCA, Inc. Then they rely on Mr. Bray's
22 deposition that we already discussed. Then they
23 rely on two affidavits from an IT type expert named
24 Jeff Boyce. He looked at websites relating to both
25 the hospital and HCA Healthcare. And he attaches
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1 some documents that he Bates labels HCA Florida 001,
2 et cetera. I'd like to point out that those
3 exhibits were not produced by me or my client. They
4 were apparently just printed off the Internet
5 recently. They are not from the time period back in
6 2012. Even setting that aside, his affidavits do
7 not create any factual dispute as to this motion.
8 First of all, one of the websites he looks at,
9 flahospitals.com, it simply has links to the various
10 HCA affiliated hospitals. And if you go to hospital
11 number 29, you can click on the link to Osceola
12 Regional and go to this hospital's website. Also,
13 we filed a supplemental affidavit by Mr. Bray
14 regarding the websites. He confirms that my client,
15 HCA, Inc., did not own, operate, or maintain the
16 websites or the domain names. And he states that in
17 fact two other affiliated companies, HCA Management
18 Services, LP, or a company called C-HCA, Inc.,
19 apparently from the websites, is the owner of those
20 websites. He also points out that all of the
21 websites have definitional sections that say what
22 the definition of HCA is, and that the facilities
23 are owned by subsidiaries. Furthermore, Your Honor,
24 regarding Mr. Boyce's affidavits, as I've indicated
25 just a minute -- moment ago, the printouts he relies
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1 on are from about a year ago, not 2012. The
2 websites make no mention of my client, HCA, Inc.,
3 and the websites all have the definitional sections
4 referred to by Mr. Bray. Your Honor, the final two
5 items submitted by the plaintiffs are two recent
6 deposition transcripts. The first is the deposition
7 of Ms. Kimberly Schantz. By way of background,
8 sometime ago, the plaintiffs asked the hospital for
9 a corporate representative deposition on the issue
10 of who operates or maintains the hospital. And the
11 plaintiffs took that corporate rep deposition. More
12 recently, they asked for a different corporate
13 representative deposition on a very narrow topic
14 dealing with electronic medical record audit trails.
15 The hospital put up Ms. Schantz, and during her
16 deposition, the plaintiff's counsel asked her
17 questions about the ownership and operation of the
18 hospital, even though that was not the designated
19 topic. After the deposition, she executed an errata
20 sheet. The plaintiffs already redeposed her about
21 that errata sheet. Last week, she testified that
22 she looked at the AHCA website, and that based on
23 that website, she noted who the direct owner of the
24 hospital was, Mr. Nelson's client, and she typed up
25 the errata sheet herself to make those corrections.
Page 15
1 So that's the first deposition. The second
2 deposition, Your Honor, is a woman named Ms. Click,
3 C-L-I-C-K. She was actually deposed by the
4 plaintiff's counsel in a totally unrelated lawsuit
5 against St. Joseph's Hospital in Tampa. This
6 witness happened to be currently employed by another
7 HCA affiliated hospital, Brandon Regional Hospital.
8 And during this deposition, the plaintiff's counsel
9 asked her who owns and operates that hospital, even
10 though she was there as a former employee of St.
11 Joseph's Hospital. After the deposition, she used an
12 errata sheet to correct her answers to indicate who
13 the correct owner was. And the plaintiff's counsel
14 has indicated that they want to take her deposition.
15 However, she's not a witness in this case. She
16 doesn't work for any of the defendants in this case.
17 And she did not testify about the hospital in this
18 case. She testified about Brandon Regional
19 Hospital. So, Your Honor, we believe that the
20 motion -- our motion is well-founded. Frankly, if
21 Your Honor goes back and reads your prior detailed
22 order granting the prior motion for summary
23 judgment, you will see that 90 percent of this has
24 already been ruled on by the Court. And we believe
25 that the motion should be granted. Thank you, Your
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1 Honor.
2 JUDGE SCHREIBER: Thank you, Counsel. Mr.
3 Diez-Arguelles?
4 MR. DIEZ-ARGUELLES: Thank you, Your Honor. May
5 I screenshare, please?
6 JUDGE SCHREIBER: You may.
7 MR. DIEZ-ARGUELLES: Okay. All right, Judge.
8 Here's why they're moving for summary judgment.
9 Prior to and during the incident date the hospital
10 was owned and operated by Osceola Regional Hospital.
11 That's what they're moving for summary judgment.
12 HCA does not own and operate this hospital. It's
13 owned and operated by Osceola Regional Hospital. My
14 record evidence is the deposition of Kimberly
15 Schantz, who works for HCA. "Could you please tell
16 us who you work for?" "I work for HCA Healthcare
17 North Florida Division." This is HCA, obviously, is
18 the party moving for summary judgment here saying
19 they don't own and operate this hospital. And I ask
20 her, "And does HCA own and operate Osceola
21 Regional?" She says, "Yes." And there's an
22 objection. And she says, "Yes." Judge, we're done.
23 That's record evidence. They're done. They can't
24 explain it away. They can't file an errata sheet and
25 say, hey, that's not true. What I really meant to
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1 say is by reviewing Internet documents -- based on
2 my review of the Internet documents, it's Osceola
3 that owns and operates. That's a question of fact.
4 They've also attacked my exhibits, saying they're
5 not good exhibits. We stipulated to the
6 authenticity of my exhibits. But how can their
7 exhibits be any good based on their review of the
8 Internet, but not mine? It's a question of fact.
9 You got a clear answer. Now, here's what's most
10 puzzling to me. Had we been before you on a slip
11 and fall case today, and my client testified at
12 deposition, I have no clue how that substance got on
13 the floor or how long it went on the floor. And
14 they move for summary judgment based on that, that
15 she had no clue. And I filed out an affidavit
16 and/or an errata sheet, which completely changes her
17 testimony, you will be moving to strike -- I mean,
18 Defense would be moving to strike by affidavit
19 filing a motion for fraud on the Court, and either
20 granting summary judgment or dismissing my case.
21 Now, for some reason, HCA thinks a different
22 standard applies to them because they're a worldwide
23 corporation. It's the same identical standard, Your
24 Honor. So that does it. I mean, we're done.
25 Summary judgment should be denied based on that. And
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1 then we go to these HCA filings -- or SEC filings.
2 Based on my knowledge, does this -- this report does
3 not contain any untrue statements of material fact.
4 And this is the chief financial officer of HCA. And
5 I requested to depose this gentleman after this
6 errata sheet came in a few weeks ago totally
7 changing the testimony of a witness. And it's not
8 only that witness, Your Honor, it's a witness on
9 another case involving HCA where that other witness
10 says that HCA owns and operates hospitals in the
11 State of Florida. And then, what's the filing say?
12 As of December 2012, we owned and operated 38
13 hospitals and 32 surgery centers in the State of
14 Florida. Their own financial filings say they own
15 and operate hospitals. We go to the Osceola Regional
16 Medical website. Again, these exhibits are
17 stipulated to because when I was preparing for this,
18 I asked Mr. Emmanuel, "Do you stipulate to my
19 exhibits, or do you want me to take discovery." He
20 says, "Carlos, I stipulate to the exhibits." You
21 know, he disagrees what's in them, but he obviously
22 stipulates. And then they got this HCA North
23 Florida Hospitals. And if we go down here, we go to
24 Osceola Regional Medical Center. And then we do
25 physician, and then it says "copyright HCA, Inc."
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1 So HCA, Inc. is copyrighted. One of the hospitals
2 in the State of Florida that they own and operate as
3 Osceola Regional Hospital. And then we go to
4 physicians, what physicians are part of HCA? And
5 they list the Florida hospitals again, Osceola
6 Regional Medical Center. That's where we stand. And
7 then let me go over the rest of the evidence we had.
8 That was just bullet pointed. But let me go -- let
9 me stop screen sharing. And then I'll go back to
10 the screen share. Your Honor, what other evidence
11 we have, the HCA financial filings from the annual
12 report says they have 204,000 employees. They have a
13 financial statement where they list Osceola Regional
14 Medical Center as one of its hospitals. We have a
15 problem with this affidavit they're relying on, Mr.
16 Bray's affidavit, where he basically says, hey, we
17 don't own and operate this hospital. But that's in
18 complete contradiction with what I just showed you.
19 And it's also a conclusionary allegation. So what's
20 the standard for summary judgment? What's the
21 standard for summary judgment under the federal
22 standard that, yes, Your Honor, you're familiar with
23 it, and I'm familiar with it also. And I cited it
24 in my memo, page 11, the Court must view the
25 evidence in every favorable inference in my favor.
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1 You may not weigh the evidence or the credibility of
2 my witnesses. You can't weigh my affidavit -- the
3 credibility of my affidavit, and you can't say, hey,
4 I find Mr. Emmanuel's evidence to be super evidence,
5 better than yours. And I cite -- I cite plenty of
6 case law on that, you know, on page 14, I cite --
7 you know, I'm citing federal case law on page 14
8 from the 11th Circuit. A.L. v. Walt Disney case,
9 the Court does not weigh conflicting evidence or
10 determine the credibility of the witnesses. And
11 that's what they're asking you to do. And then it
12 says on page 14, on another summary judgment case,
13 the evidence -- my evidence is to be believed. You
14 must -- you must view my evidence and all factual
15 inferences arising from it in the light most
16 favorable to us. All reasonable doubts are resolved
17 in my favor. All inferences are drawn in my favor.
18 You must credit my evidence. That's basically the
19 same summary judgment standard as before in Florida
20 once I come forward with evidence. So the -- as for
21 credibility, inferences, weighing of evidence is
22 basically the same standard under the federal law.
23 I cite Supreme Court case law from -- on summary
24 judgment, my papers need to be liberally construed.
25 And then I cite that conclusionary allegations, like
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1 they have in the affidavit that I moved to strike
2 previously, but it's still conclusionary
3 allegations, are insufficient to create an issue of
4 fact. So what have I done since I've learned that
5 these two errata sheets, one in this case, has been
6 changed by employees of HCA, especially the lady at
7 issue here, when that happened a few weeks ago? I
8 immediately moved the strike her affidavit -- or her
9 errata sheet that she filed in this case because
10 it's in complete contradiction to her testimony that
11 HCA owns and operates this hospital. I cite the
12 Ellison case on my motion to strike, Your Honor,
13 that we filed in this case on October 8th, and says,
14 "A party, when met by a motion for summary judgment
15 should not be permitted by his own affidavits or by
16 that of another to badly repudiate his previous
17 deposition testimony so as to create a jury issue."
18 And that's what they're doing in this case, Your
19 Honor. You need to repudiate that affidavit. And I
20 cite more case law and the Lesnik v. Duval Ford case
21 where they struck an expert affidavit in that case,
22 which was in complete contradiction to the
23 deposition testimony. Once they filed an errata
24 sheet, Your Honor, the law is perfectly clear that
25 I'm entitled to take a deposition of the witness and
Page 22
1 the attorneys involved in this case. And once that
2 errata sheet was filed, I said I want to take some
3 depositions. I want to take the deposition of Mr.
4 Emmanuel that represents HCA. I want to take the
5 deposition of the witness. I want to take the
6 deposition of Mr. Nelson that represents Osceola
7 Hospital. I want to take the deposition of his
8 chief financial officer that swore under oath to the
9 United States of America that all the statements in
10 his SEC filings are correct and truthful, especially
11 the one that says that they own and operate
12 hospitals throughout the United States. And I ask
13 for the deposition of various other people. The
14 only two I've been able to depose is Mr. Nelson and
15 the witness that changed her testimony. And at that
16 -- at those depositions that came in, I think they
17 filed them last week or may have filed one, I'm not
18 quite sure -- I asked those witnesses, "What is the
19 subject matter of your discussion," regarding your
20 discussion to get to this new errata sheet and
21 affidavit they filed. And they objected based on
22 the attorney-client privilege. And I filed the
23 motion based on their objections. I think the
24 depositions were last week. And I said, "Hey, I'm
25 entitled to discuss the subject matter of the
Page 23
1 conversations because that is not protected by the
2 attorney-client privilege." And I asked that
3 question very precisely, Your Honor, because I'm
4 very familiar with the case law and attorney-client
5 privilege in a medical malpractice case, and what
6 can be asked of a client. And my case is the
7 Coffey-Garcia v. South Miami Hospital case that I
8 cited in my motion to get answers to this discovery
9 from the two witnesses on November 4th. And Coffey-
10 Garcia, they we're trying to pinpoint my client down
11 as to when the statute of limitations commenced to
12 run on a baby case, because, you know, we always
13 argued to the eight-year statute of repose, and the
14 defense always argues it starts at birth. And they
15 asked my client at deposition, "Hey, did you go meet
16 with attorneys prior to Diez-Arguelles & Tejedor,"
17 or my law firm, and she said, "Yes." And they asked
18 her, "Hey, what was the subject matter of those
19 conversations?" We had instructed her not to answer
20 thinking it was protected by the attorney-client
21 privilege. The Third DCA corrected us and ruled
22 that courts have consistently held that the general
23 subject matter of client representations are not
24 privileged. So I'm entitled to know what happened,
25 what the subject matter was that led to it. So I
Page 24
1 did that. So I filed a motion to strike Schantz. I
2 filed a motion against those answers. I filed a
3 motion to set the deposition of Mr. Emmanuel that
4 knows all the facts here. Well, because I want to
5 know how this errata sheet came into play. Because
6 Mr. Nelson was at the deposition and at Mr.
7 Nelson's, the client testified clearly that owned
8 and operated by HCA. I took another deposition,
9 another HCA case where that happened, and again, a
10 new errata sheet was filed. So HCA is obviously
11 involved in filing these errata sheets, and the case
12 law is clear as day, once this is filed, I'm
13 entitled to depose the attorneys. Mr. Emmanuel has
14 objected to me deposing him. I'm entitled to -- I'm
15 entitled to depose as chief financial officer to go
16 over this errata sheet. It's all basically new to
17 me. And -- but what I'm really asking you to do,
18 Your Honor, the simplest thing to do is just deny
19 their motion for summary judgment based on that
20 answer, and then they could -- they could move for
21 directed verdict as well. So I have a bunch of
22 discovery that I've asked, and it's not new or late.
23 It's all directed towards that errata sheet that
24 they filed in this case. So I asked for the John
25 Emmanuel corporate rep of HCA, but the guy I really
Page 25
1 want regarding the errata sheet is the chief
2 financial officer signed off those 10-K filings. I
3 want the corporate rep of Osceola Regional Hospital,
4 and I want the adjusters from HCA on this matter. I
5 want to know how this errata sheet came up -- came
6 about and how a witness just totally changes her
7 testimony. So let me screen share some other
8 materials, Your Honor.
9 JUDGE SCHREIBER: Go ahead. And we are running
10 late -- low on time. So --
11 MR. DIEZ-ARGUELLES: Great. I'll be quick. So
12 what's the new summary judgment standard? "A movant
13 must serve the motion for summary judgment at least
14 40 days prior to the hearing." They think that.
15 The problem is they started amending it after the
16 errata sheet and changed the errata sheet all
17 around. "If a non-movant chose by affidavit or
18 declaration -- this is pertaining to me -- "it
19 cannot present facts essential to justify
20 opposition." This is all the new rule. "Defer
21 considering a motion or deny it," that's what we
22 refer -- we want you to do is just deny it. But if
23 you're going to even consider it, I would request
24 that you defer consideration until I'm allowed to
25 take the discovery that came up. "Allow time to
Page 26
1 take discovery, issue any other appropriate order,"
2 and then, if they start blaming me, which I'm sure
3 I'm going to get blamed, "if a party fails to
4 properly support an assertion or properly address
5 another party's assertion, give an opportunity to
6 properly support or address the facts." And that's
7 what I'm asking for, Your Honor. I'm asking you to
8 deny or give me an opportunity to do further
9 discovery. Because I think the record is clear and
10 it can never change in this case that we got record
11 evidence. I don't know how to stop sharing. And
12 I'm sure you can read my memorandum of law, Your
13 Honor. There's plenty of evidence in this case that
14 they own and operate, and it should be going in my
15 favor. Thank you for your time, Your Honor.
16 JUDGE SCHREIBER: Thank you, sir. Mr.
17 Emmanuel, brief response?
18 MR. EMMANUEL: Yes, Your Honor. What I would
19 ask Your Honor to do, with your permission, and this
20 is like we did last time, is ask the parties to
21 submit competing orders on this. But I do want to
22 briefly address what Mr. Diez-Arguelles argued.
23 First of all, we found the Motel 6 v. Dowling case
24 as part of our hearing notebook. And the Court
25 specifically states, "One of the reasons a witness
Page 27
1 reads his testimony is to make permissible
2 corrections to his testimony. Once the changes are
3 made, they become part of the deposition, just as if
4 the deponent gave the testimony while being
5 examined." And Your Honor, I'm repeating myself,
6 but very briefly, Ms. Schantz was deposed, not as a
7 corporate representative on ownership and operation
8 of the hospital. They already deposed somebody two
9 years ago on that. They deposed her on medical
10 audit trails, and then threw her a curveball and
11 started asking her about ownership and operation of
12 the hospital, which she then corrected. They've
13 already redeposed her. She testified very clearly
14 at her second deposition that the only person in the
15 world she spoke to about her errata sheet was her
16 counsel, David Nelson. I specifically asked her on
17 the record did she speak to me? She said "No." Did
18 she speak to anyone at HCA, Inc.? "No." So all of
19 these requests by the Plaintiff's counsel to take
20 all these other depositions is a red herring because
21 the witness has already testified that she didn't
22 speak to anyone but Mr. Nelson, and they've already
23 deposed him. And she clearly testified how she made
24 the changes, that she'd looked at the AHCA website.
25 She saw documentation there about who owns and
Page 28
1 operates the hospital. She typed up the deposition
2 errata sheet herself. And that's what it says. So
3 they know how the errata sheet came about. And I
4 will finally point out, Your Honor, that this motion
5 hearing was already continued once at the
6 plaintiff's request. It was set for hearing about
7 two months ago, and they said they needed more time.
8 And this is just an ongoing effort by the
9 plaintiff's counsel to kick the can down the road.
10 But we believe, Your Honor, once the parties submit
11 competing orders, if you'll allow us to do that,
12 that it's very clear that the motion should be
13 granted. Thank you, Judge.
14 MR. DIEZ-ARGUELLES: Judge, may I just say one
15 thing in response to the case they cited and I'll be
16 brief?
17 JUDGE SCHREIBER: You may.
18 MR. DIEZ-ARGUELLES: Your Honor, the case they
19 cited, I addressed in page 3 of my Plaintiff's
20 motion to reopen the depositions served on October
21 8th. Both the deposition testimony and the errata
22 sheet constitute admissible evidence. So it
23 constitutes admissible evidence. I don't want to
24 prepare a 20-page order. I think you should deny it
25 based on the law that my deposition testimony is
Page 29
1 admissible evidence. Thank you, Your Honor.
2 JUDGE SCHREIBER: So Mr. Diez-Arguelles, are
3 you saying that since both the deposition testimony
4 and the errata sheet are evidence for purposes of
5 today's summary judgment hearing, that that innately
6 contains a contradiction that would preclude the
7 entry of summary judgment?
8 MR. DIEZ-ARGUELLES: Yes, Your Honor. I mean,
9 of course. I mean, that's what -- it's admissible
10 evidence. You can't --
11 JUDGE SCHREIBER: Taking your argument to that
12 extrapolation, Mr. Emmanuel, are you disputing that?
13 MR. EMMANUEL: Of course, Your Honor. The
14 whole purpose that you allow a witness to review
15 their transcript and make changes is to make a
16 change. So you don't -- if I said, you know, I
17 graduated from law school in 1985, and I meant to
18 say 1995, I misspoke. I would use the errata sheet
19 to correct the correct date. But that doesn't mean
20 my initial answer is still there. My correction is
21 what stands. That's why you do a correction.
22 JUDGE SCHREIBER: This is the basic issue,
23 guys. So Mr. Diez-Arguelles, what's your response
24 to that?
25 MR. DIEZ-ARGUELLES: Judge, I'm a little bit
Page 30
1 shocked. So are you telling me when in all my cases
2 from now on, my client can testify to A, and then if
3 A doesn't help me later on in the case, I can
4 prepare an affidavit and start explaining away B?
5 It doesn't work that way. The law is clear; once
6 you contradict yourself at this level, you have the
7 authority to either strike their case -- I mean,
8 strike their entire case for fraud on the Court or
9 strike the affidavit. The other thing, you have no
10 choice but to let it in. This -- but it's still
11 good substantive evidence what she testified. Now,
12 does she want to explain it away for trial so the
13 jury can make that determination? Of course. But,
14 Judge, they're telling you this is super evidence
15 that you can correct an affidavit. I'm telling you
16 the law is all inferences go my way. And this
17 inference goes my way, Your Honor. Thank you.
18 JUDGE SCHREIBER: Thank you, folks. I'm going
19 to reserve ruling, and I'm not asking anybody to
20 prepare a proposed order. I'll do it myself on this
21 one, all right.
22 MR. EMMANUEL: Thank you, Judge.
23 JUDGE SCHREIBER: Thank you very much. Do you
24 have a trial date?
25 MR. EMMANUEL: It was continued, Your Honor.
Page 31
1 JUDGE SCHREIBER: Right. Do you have a new
2 one? Is it next spring?
3 MR. DIEZ-ARGUELLES: I think my paralegal told
4 me before today that we're waiting on your office to
5 issue an order.
6 JUDGE SCHREIBER: Fair enough.
7 MR. DIEZ-ARGUELLES: Your Honor, do you need a
8 follow up, Your Honor?
9 JUDGE SCHREIBER: No. She has it, I'm sure.
10 She does them in the order that she gets them.
11 MR. DIEZ-ARGUELLES: Thank you.
12 MR. EMMANUEL: My final request is if you would
13 read Your Honor's prior summary judgment order,
14 you'll see that we've -- a lot of this is going to
15 be deja vu to you.
16 JUDGE SCHREIBER: I did in preparing for
17 today's hearing. Thank you.
18 MR. EMMANUEL: Thank you, Judge.
19 JUDGE SCHREIBER: I -- in these cases, I like
20 to hear the argument and then go back through the
21 paper, so I appreciate your giving everything to me
22 in advance so I can do that.
23 MR. EMMANUEL: Yes, ma'am.
24 JUDGE SCHREIBER: All right. Have a nice day.
25 You all are excused.
Page 32
1 (HEARING CONCLUDED AT 11:37 A.M.)
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1 INDEX
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1 CERTIFICATE
2
3 STATE OF FLORIDA)
4 COUNTY OF ORANGE)
5
6 I, MADISON MARTINEZ, Court Reporter and Notary
7 Public for the State of Florida at Large, do hereby
8 certify that I was authorized to and did report the
9 foregoing proceeding, and that said transcript is a true
10 record of the said proceeding.
11
12 I FURTHER CERTIFY that I am not of counsel for,
13 related to, or employed by any of the parties or
14 attorneys involved herein, nor am I financially
15 interested in said action.
16
17 Submitted on: April 28, 2022.
18
19
20
21
22 ______________________________
23 MADISON MARTINEZ
24 Court Reporter, Notary Public
25
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A amended 5:4 23:2,6,15,17 2:8,13,18 3:2,72:6
A.L 20:8 7:21 24:22,24 27:16 3:13 6:9,13 case 1:3 7:22
a.m 4:5 32:1 amending 25:15 asking 20:11 believe 5:8 10:25 15:15,16
able 22:14 America 22:9 24:17 26:7,7 15:19,24 28:10 15:18 17:11,20
action 34:15 and/or 10:5 27:11 30:19 believed 20:13 18:9 20:6,7,8
address 26:4,6 17:16 asserted 8:2 better 20:5 20:12,23 21:5
26:22 Anesthesia 1:8 10:10 12:17 BHUPENDR... 21:9,12,13,18
addressed 28:19 6:10 assertion 26:4,5 1:10 21:20,20,21
adjusters 25:4 ANETHESIA Associates 1:8 binding 8:11 22:1 23:4,5,6,7
Administration 3:13 3:13 6:10 birth 23:14 23:12 24:9,11
10:18 annual 19:11 attach 12:19 bit 29:25 24:24 26:10,13
admissible answer 9:21 attaches 10:16 blamed 26:3 26:23 28:15,18
28:22,23 29:1 17:9 23:19 12:25 blaming 26:2 30:3,7,8
29:9 24:20 29:20 attacked 17:4 Boring 3:14 6:6cases 30:1 31:19
admitted 9:21 answers 15:12 attorney-client 6:7,8 Center 1:7,9 3:2
advance 5:5 23:8 24:2 22:22 23:2,4 Boulevard 3:4 6:15 9:7,10
31:22 anybody 30:19 23:20 3:15 18:24 19:6,14
affidavit 8:14,15 apologies 6:25 attorneys 7:9 Box 2:15,20 centers 18:13
10:13 11:2,21 apparent 12:16 22:1 23:16 Boyce 12:24 Central 3:15
12:10,12,20 apparently 13:4 24:13 34:14 Boyce's 13:24 certain 12:12
13:13 17:15,18 13:19 audit 14:14 Brandon 15:7 certify 34:8,12
19:15,16 20:2 appeal 1:14 8:8 27:10 15:18 cetera 13:2
20:3 21:1,8,19 8:9 authenticity Bray 8:14 10:13change 26:10
21:21 22:21 appealed 8:7 17:6 13:13 14:4 29:16
25:17 30:4,9 appearances 2:1 authority 30:7 changed 21:6
Bray's 11:2,7,20
30:15 3:1 5:7 authorized 34:8 12:9,21 19:16 22:15 25:16
affidavits 12:23 Appeared 1:15 Avenue 2:4 breached 8:9 changes 17:16
13:6,24 21:15 2:7,12,17,22 brief 8:20 26:17 25:6 27:2,24
3:6,12,17 B 28:16 29:15
affiliated 13:10
13:17 15:7 applies 17:22 B 30:4 changing 18:7
briefly 9:4 26:22
agency 10:17 appreciate baby 23:12 27:6 chief 18:4 22:8
12:16 31:21 back 8:4,16,21 Brooks 3:8 7:2,3 24:15 25:1
ago 9:13 13:25 appropriate 10:15 12:11 Buchanan 2:9 choice 30:10
14:1,8 18:6 26:1 13:5 15:21 Buckley 2:14 chose 25:17
21:7 27:9 28:7 approximately 19:9 31:20 bullet 19:8 Circuit 1:1,1
agreements 4:5 background bunch 24:21 20:8
11:18 April 34:17 14:7 burden 11:20,24cite 12:1 20:5,5
AHCA 10:17 argued 23:13 badly 21:16 20:6,23,25
26:22 Barrett 3:9 C 21:11,20
14:22 27:24
ahead 5:7 25:9 argues 23:14 based 9:11 C 34:1,1 cited 19:23 23:8
allegation 11:22 argument 29:11 12:13 14:22 C-HCA 13:18 28:15,19
19:19 31:20 17:1,7,14,25 C-L-I-C-K 15:3 citing 20:7
allegations 10:6 arising 20:15 18:2 22:21,23 called 13:18 Civil 4:6
20:25 21:3 articles 12:8 24:19 28:25 Calzada 1:4,4,4 claim 8:2 10:8,9
allege 9:20 Ashley 1:4 2:2 basic 29:22 2:2,2,3 5:2 12:16,17
alleged 9:12 9:5 basically 19:16 6:24 9:5 claims 8:1 9:23
alleging 9:8 aside 13:6 20:18,22 24:16 care 10:18,25 10:3
allow 25:25 asked 14:8,12 basis 11:10,21 Carlos 2:3 5:22 clear 9:24 17:9
28:11 29:14 14:16 15:9 Bates 13:1 18:20 21:24 24:12
allowed 25:24 18:18 22:18 behalf 1:4 2:2,2 carlos@theorl... 26:9 28:12
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clearly 10:21 25:24 5:10,13,16 defer 25:20,24 29:8,23,25
24:7 27:13,23 considering 7:10,12,14 defines 11:11 31:3,7,11
clerk 6:21 25:21 15:24 17:19 definition 13:22 different 14:12
click 13:11 15:2 consistently 19:24 20:9,23 definitional 17:21
client 9:16,22 23:22 26:24 30:8 11:11 13:21 direct 14:23
10:14 11:13 consolidated 34:6,24 14:3 directed 24:21
12:7 13:3,14 11:10 courts 23:22 deja 31:15 24:23
14:2,24 17:11 constitute 28:22 create 13:7 21:3Del 1:8 3:13 6:9 disagrees 18:21
23:6,10,15,23 constitutes 21:17 Delaware 7:25 discovery 18:19
24:7 30:2 28:23 credibility 20:1delivered 9:5 23:8 24:22
clue 17:12,15 construed 20:24 20:3,10,21 Denardis 1:8 25:25 26:1,9
co- 9:23 contain 18:3 credit 20:18 2:13 6:25,25 discuss 22:25
co-defendant's contained 8:10 CRNA 1:7 3:13 denied 11:3,6 discussed 12:22
8:18 contains 29:6 6:9 17:25 discussing 8:23
co-defendants continued 3:1 current 11:4 denies 9:15 discussion 22:19
10:10 11:19 28:5 30:25 currently 15:6 deny 24:18 22:20
Coffey- 23:9 contracts 11:18 curveball 27:10 25:21,22 26:8 dismiss 8:17
Coffey-Garcia contradict 30:6 28:24 9:25
23:7 contradiction D deponent 27:4 dismissed 8:8,10
come 12:14 19:18 21:10,22 D.O 1:8 2:13 depose 18:5 9:24
20:20 29:6 d/b/a 1:7 3:2 22:14 24:13,15 dismissing
commenced conversations Dale 3:9 deposed 15:3 17:20
23:11 23:1,19 Danielle 3:14 27:6,8,9,23 Disney 20:8
Commission copies 12:19 6:6 deposing 24:14 dispute 9:15
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Preview
Filing # 148582390 E-Filed 04/28/2022 01:40:16 PM Page 1 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA 2 3 CASE NP.: 2017-CA-000174 MP 4 ASHLEY CALZADA and JUAN L. CALZADA, Individually and on behalf of JARIEL LUIZ CALZADA OYUELA, a minor, 5 PLAINTIFFS, 6 V. 7 OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL CENTER, ERIC FRENDAK, CRNA, OSCEOLA OB/GYN, MICHAEL R. 8 DENARDIS, D.O. OB HOSPITALIST GROUP, LLC, EZER A. OJEDA, M.D. OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DEL 9 VALLE, M.D. JMJ FAMILY PRACTICE, INC., JOSE RAMON FERNANDEZ, M.D., MID-FLORIDA WOMANS'S CENTER, INC. 10 BHUPENDRAKUMAR M. PATEL, M.D., PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, 11 INC., JOSE I GIERBOLINI M.D., JUAN LONGHI, M.D., HCA, INC., HCA HEALTHCARE SERVICES OF FLORIDA, INC. and HCA 12 HEALTHCARE SERVICES- FLORIDA INC., DEFENDANTS. 13 ________________________________________/ VIDEOCONFERENCE HEARING BEFORE THE HONORABLE MARGARET 14 SCHREIBER **APPEAL TRANSCRIPT** DATE: NOVEMBER 8, 2021 15 REPORTER: MADISON MARTINEZ PLACE: ALL PARTIES APPEARED VIA VIDEOCONFERENCE 16 17 18 19 20 21 22 23 24 25 Page 2 1 APPEARANCES 2 ON BEHALF OF THE PLAINTIFF, ASHLEY CALZADA and JUAN L. CALZADA, Individually and on behalf of JARIEL LUIZ 3 CALZADA OYUELA, a minor: Carlos Diez-Arguelles, Esquire 4 Diez-Arguelles and Tejedor, P.A. 505 North Mills Avenue 5 Orlando, Florida 32803 Telephone No.: (407) 705-2880 6 Facsimile No.: (888) 611-7870 E-mail: carlos@theorlandolawyers.com 7 (Appeared via videoconference) 8 ON BEHALF OF THE DEFENDANT, HCA INC: John Emmanuel, Esquire 9 Buchanan Ingersoll and Rooney PC 401 East Jackson Street 10 Suite 2400 Tampa, Florida 33602 11 Telephone No.: (813) 222-8180 E-mail: john.emmanuel@bipc.com 12 (Appeared via videoconference) 13 ON BEHALF OF THE DEFENDANT, OSCEOLA OB/GYN AND MICHAEL R. DENARDIS D.O.: 14 Pierre Seacord, Esquire Ringer, Henry, Buckley and Seacord, P.A. 15 P.O. Box 4922 Orlando, Florida 32802 16 Telephone No.: (407) 841-3800 E-mail: pseacord@bsj-law.com 17 (Appeared via videoconference) 18 ON BEHALF OF THE DEFENDANT, PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, 19 INC., JOSE I. GIERBOLINI, M.D. AND JUAN LONGHI, M.D.: Marshall McKinstry, Esquire 20 Ketcham Eide Telan Meltz and Wallace, PA PO Box 530865 21 Orlando, Florida 32853 Telephone No.: (407) 423-9545 22 E-mail: mmckinistry@ketmw.com (Appeared via videoconference) 23 24 25 Page 3 1 APPEARANCES CONTINUED 2 ON BEHALF OF THE DEFENDANT, OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL CENTER: 3 David Nelson, Esquire LaCava and Jacobson PA 4 501 East Kennedy Boulevard Suite 1250 5 Tampa, Florida 33602 Telephone No.: (813) 209-9611 6 E-mail: dnelson@ljglegal.com (Appeared via videoconference) 7 ON BEHALF OF THE DEFENDANT, OB HOSPITALIST GROUP, LLC, 8 EZER A. OJEDA, M.D. Taylor Brooks, Esquire 9 Rissman, Barrett, Hurt, Donahue, McLain and Mangan, P.A. 1 North Dale Mabry Highway 10 11th Floor Tampa, Florida 33609 11 Telephone No.: (813) 221-3114 E-mail: taylor.brooks@rissman.com 12 (Appeared via videoconference) 13 ON BEHALF OF THE DEFENDANT, ERIC FRENDAK, CRNA, RODNEY DEL VALLE, M.D. AND OSCEOLA ANETHESIA ASSOCIATES, P.L. 14 Danielle Boring, Esquire McEwan, Martinez and Dukes, P.A. 15 108 East Central Boulevard Orlando, Florida 32801 16 Telephone No.: (407) 423-8571 E-mail: dboring@mmdorl.com 17 (Appeared via videoconference) 18 19 20 21 22 23 24 25 Page 4 1 STIPULATION 2 3 The videoconference hearing before the Honorable 4 Margaret Schreiber taken remotely on Monday the 8th day 5 of November 2021 at approximately 10:59 a.m.; said 6 hearing was taken pursuant to the Florida Rules of Civil 7 Procedure. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 1 PROCEEDINGS 2 JUDGE SCHREIBER: And we are here on Calzada v. 3 Osceola Regional Hospital, specifically, HCA, Inc.'s 4 amended and restated motion for summary judgment. I 5 did receive the materials in advance of today's 6 hearing, but didn't have an opportunity to review 7 them. Why don't we go ahead and get appearances 8 because I believe we have a court reporter present. 9 Let's find out who our court reporter is first. 10 COURT REPORTER: Hi. My name -- 11 JUDGE SCHREIBER: Could you put your name and 12 company on? 13 COURT REPORTER: -- yeah. My name is Madison 14 Martinez, and I'm with -- 15 JUDGE SCHREIBER: What company are you with? 16 COURT REPORTER: -- Milestone Reporting 17 Company. 18 JUDGE SCHREIBER: Great. Thank you. Who's 19 here for the plaintiff today? All right. You're 20 muted. 21 MR. DIEZ-ARGUELLES: Good morning, Your Honor. 22 Carlos Diez-Arguelles. 23 JUDGE SCHREIBER: Thank you. Who's here for 24 HCI, Inc.? 25 MR. EMMANUEL: Your Honor, John Emanuel. Page 6 1 JUDGE SCHREIBER: HCA, Inc. I'm sorry. 2 MR. EMMANUEL: John Emmanuel for HCA, Inc. 3 Thank you. 4 JUDGE SCHREIBER: That's the motorcycles 5 outside. Give me one second. All right. I'm just 6 going to go down the list. Ms. Boring, Danielle 7 Boring, who are you here for? 8 MS. BORING: Good morning, Your Honor. I'm 9 here on behalf of Eric Frendak, CRNA, Rodney Del 10 Valle, Osceola Anesthesia Associates, PL. 11 JUDGE SCHREIBER: Thank you. David Nelson, who 12 are you here for? 13 MR. NELSON: On behalf of Defendant Osceola 14 Regional Hospital, DBA Osceola Regional Medical 15 Center. 16 JUDGE SCHREIBER: Thank you. Marshall 17 McKinstry, who are you here for? 18 MR. MCKINSTRY: Yes, Your Honor. I'm here for 19 Dr. Gierbolini, Dr. Longhi, Mednax, Inc., and the 20 two pediatric entities. 21 JUDGE SCHREIBER: We have a law clerk with us, 22 Philip Keperna (phonetic). Okay. How about Pierre 23 Seacord, who are you here for? 24 MR. SEACORD: Yes, ma'am. Dr. Calzada -- I'm 25 sorry. Dr. Denardis. Dr. Denardis. My apologies. Page 7 1 JUDGE SCHREIBER: Pick a doctor today. Okay. 2 Taylor Brooks, who are you here for? 3 MS. BROOKS: Good morning, Your Honor. I'm 4 here for Defendants, Dr. Ojeda and OB Hospitalist 5 Group. 6 JUDGE SCHREIBER: Thank you. And Tamika 7 Thompson? 8 MS. THOMPSON: Hi. Good morning, Your Honor. I 9 am -- I was hired by the -- one of the attorneys. 10 I'm the court reporter with Esquire Deposition 11 Solutions. 12 JUDGE SCHREIBER: And you're a court reporter? 13 MS. THOMPSON: I am. 14 JUDGE SCHREIBER: Okay. So we have two court 15 reporters today, Madison and Tamika. I'm fine with 16 that. Just making sure you all want two today. All 17 right. So let's go forward with the motion. HCA, 18 please. 19 MR. EMMANUEL: Yes, Your Honor. Your Honor, as 20 you indicated, we're here today on HCA Inc.'s 21 amended motion for summary judgment. Your Honor may 22 recall that in this case I previously represented 23 two other defendants, namely HCA Health Services of 24 Florida, Inc. 25 and Health Services Delaware, Inc. The Page 8 1 plaintiff's claims against those two defendants is 2 identical to the claim asserted against the movant, 3 HCA Inc. Your Honor granted summary judgment in 4 favor of those other two defendants back on October 5 15, 2020. And in that order, you made a number of 6 detailed findings and conclusions law. The 7 plaintiffs initially appealed that order but later 8 voluntarily dismissed the appeal before it was 9 breached, but because that appeal was taken and then 10 dismissed, the findings contained in that order are 11 final and binding on the plaintiffs. Your Honor, in 12 regards to the motion today, we have filed materials 13 in support, including the following, the initial 14 affidavit of Michael Bray from June of 2020, a 15 supplemental affidavit from him June 25, 2021, his 16 deposition transcript taken back in June of 2020, 17 the order on HCA, Inc.'s motion to dismiss, and then 18 the order granting the co-defendant's motion for 19 summary judgment. The plaintiffs have filed an 20 opposition brief, but it is 90 percent a repetition 21 of the opposition they filed back with the prior 22 motion for summary judgment. Your Honor, do I need 23 to take any time discussing the new summary judgment 24 standard if you've had -- okay. I'm going to skip 25 that. Page 9 1 JUDGE SCHREIBER: I think I got that one down. 2 Thank you. 3 MR. EMMANUEL: Yes, Your Honor. Your Honor, I 4 want to briefly review the facts giving rise to this 5 lawsuit. Plaintiff Ashley Calzada delivered her 6 son, J., on July 12, 2012 at Osceola Regional 7 Medical Center. The plaintiff sued numerous 8 physicians and their practices alleging medical 9 negligence. The plaintiffs also sued Osceola 10 Regional Medical Center and its owner, Osceola 11 Regional Hospital, Inc., for negligence based on the 12 alleged nondelegable duty and vicarious liability 13 for the physicians. As indicated just a minute ago, 14 Mr. Nelson represents the hospital. And while the 15 hospital denies any liability, there's no dispute 16 between the hospital and my client that Osceola 17 Regional Hospital, Inc. is the licensed owner and 18 operator of the hospital. So this is not a finger 19 pointing situation. In fact, the plaintiffs 20 specifically allege that in their complaint, and Mr. 21 Nelson admitted it in his answer. So Your Honor, 22 then you get to my client HCA, Inc. The plaintiff's 23 claims against it along with the co- defendants that 24 have already been dismissed was not clear, so we 25 filed a motion to dismiss. It would -- it was heard Page 10 1 on October 31, 2017. And the order granting that 2 motion is located at tab 2B of our notebook. And 3 here's what the order says, "The plaintiff's claims 4 against the movant shall proceed solely on the 5 theory that the movant's 'operate and/or maintain' 6 the hospital and all allegations that the movants 7 are liable as parent companies are deemed stricken." 8 So, Your Honor, that's the claim that we're focused 9 on here today, and that was also the claim that was 10 asserted against the co-defendants who already had 11 summary judgment granted in their favor. The first 12 item we filed in support of our motion is the 13 initial affidavit by Mr. Bray. He confirms that Mr. 14 Nelson's client is in fact the licensed owner and 15 operator of the hospital and was so back in 2012. 16 He attaches various documents from the Florida 17 Secretary of State and AHCA that shows that, Agency 18 for Health Care Administration. And then regarding 19 HCA, Inc., he states under oath that it is a non- 20 operating holding company without any employees or 21 operations of its own. He states clearly that it 22 does not own, operate, or maintain the hospital. 23 And he further states that HCA, Inc. did not employ 24 any of the physicians or have any involvement in the 25 medical care at issue in this case. You may recall, Page 11 1 Your Honor, that the plaintiffs previously made an 2 ore tenus motion to strike Mr. Bray's affidavit. 3 That motion was denied by order dated October 15, 4 2020. They make the same request in their current 5 opposition materials, and it should likewise be 6 denied. Your Honor, the plaintiffs then took Mr. 7 Bray's deposition. He testified as follows. That 8 the Securities and Exchange Commission requires 9 related companies to file their filings on a 10 consolidated basis, that the SEC filings have a 11 definitional section that defines HCA as HCA 12 Healthcare Inc., and all of its subsidiaries. He 13 confirms that Mr. Nelson's client does in fact own 14 and operate the hospital. He states that if the 15 hospital makes a profit in a particular year, it 16 keeps that profit. It's not transferred to another 17 company. And he also confirms that there were no 18 agreements or contracts between HCA, Inc. and any of 19 the other co-defendants. So, Your Honor, at this 20 point, we have met our burden through Mr. Bray's 21 affidavit and testimony that there is no basis for 22 the allegation that HCA, Inc. operates or maintains 23 the hospital. Under the new rule, that then shifts 24 the burden to the plaintiffs. So we have to look at 25 what they filed in opposition. First, Your Honor, Page 12 1 at Plaintiff's Exhibit 4, they cite to the 10-K 2 filed by HCA Holdings, the ultimate parent company, 3 with the SEC in 2012. The only section of that 4 document that mentions the hospital is at Exhibit 5 21, which lists subsidiaries by state. And it 6 confirms that Osceola Regional Hospital, Inc., Mr. 7 Nelson's client, does in fact own this hospital. 8 They also found HCA, Inc.'s articles of 9 incorporation. That again confirms Mr. Bray's 10 testimony. They also, again, rely on an affidavit 11 from the plaintiff back in 2020. She states in her 12 affidavit that she viewed certain unspecified 13 information on the Internet and based on that she 14 made a decision to come to this hospital. Your 15 Honor, while that testimony might have been relevant 16 perhaps to an apparent agency claim, it's not 17 relevant to the claim which is asserted here, namely 18 that HCA, Inc. operate or maintain the hospital. 19 Further, she does not attach copies of what she 20 looks at, and her affidavit does not reference the 21 movant HCA, Inc. Then they rely on Mr. Bray's 22 deposition that we already discussed. Then they 23 rely on two affidavits from an IT type expert named 24 Jeff Boyce. He looked at websites relating to both 25 the hospital and HCA Healthcare. And he attaches Page 13 1 some documents that he Bates labels HCA Florida 001, 2 et cetera. I'd like to point out that those 3 exhibits were not produced by me or my client. They 4 were apparently just printed off the Internet 5 recently. They are not from the time period back in 6 2012. Even setting that aside, his affidavits do 7 not create any factual dispute as to this motion. 8 First of all, one of the websites he looks at, 9 flahospitals.com, it simply has links to the various 10 HCA affiliated hospitals. And if you go to hospital 11 number 29, you can click on the link to Osceola 12 Regional and go to this hospital's website. Also, 13 we filed a supplemental affidavit by Mr. Bray 14 regarding the websites. He confirms that my client, 15 HCA, Inc., did not own, operate, or maintain the 16 websites or the domain names. And he states that in 17 fact two other affiliated companies, HCA Management 18 Services, LP, or a company called C-HCA, Inc., 19 apparently from the websites, is the owner of those 20 websites. He also points out that all of the 21 websites have definitional sections that say what 22 the definition of HCA is, and that the facilities 23 are owned by subsidiaries. Furthermore, Your Honor, 24 regarding Mr. Boyce's affidavits, as I've indicated 25 just a minute -- moment ago, the printouts he relies Page 14 1 on are from about a year ago, not 2012. The 2 websites make no mention of my client, HCA, Inc., 3 and the websites all have the definitional sections 4 referred to by Mr. Bray. Your Honor, the final two 5 items submitted by the plaintiffs are two recent 6 deposition transcripts. The first is the deposition 7 of Ms. Kimberly Schantz. By way of background, 8 sometime ago, the plaintiffs asked the hospital for 9 a corporate representative deposition on the issue 10 of who operates or maintains the hospital. And the 11 plaintiffs took that corporate rep deposition. More 12 recently, they asked for a different corporate 13 representative deposition on a very narrow topic 14 dealing with electronic medical record audit trails. 15 The hospital put up Ms. Schantz, and during her 16 deposition, the plaintiff's counsel asked her 17 questions about the ownership and operation of the 18 hospital, even though that was not the designated 19 topic. After the deposition, she executed an errata 20 sheet. The plaintiffs already redeposed her about 21 that errata sheet. Last week, she testified that 22 she looked at the AHCA website, and that based on 23 that website, she noted who the direct owner of the 24 hospital was, Mr. Nelson's client, and she typed up 25 the errata sheet herself to make those corrections. Page 15 1 So that's the first deposition. The second 2 deposition, Your Honor, is a woman named Ms. Click, 3 C-L-I-C-K. She was actually deposed by the 4 plaintiff's counsel in a totally unrelated lawsuit 5 against St. Joseph's Hospital in Tampa. This 6 witness happened to be currently employed by another 7 HCA affiliated hospital, Brandon Regional Hospital. 8 And during this deposition, the plaintiff's counsel 9 asked her who owns and operates that hospital, even 10 though she was there as a former employee of St. 11 Joseph's Hospital. After the deposition, she used an 12 errata sheet to correct her answers to indicate who 13 the correct owner was. And the plaintiff's counsel 14 has indicated that they want to take her deposition. 15 However, she's not a witness in this case. She 16 doesn't work for any of the defendants in this case. 17 And she did not testify about the hospital in this 18 case. She testified about Brandon Regional 19 Hospital. So, Your Honor, we believe that the 20 motion -- our motion is well-founded. Frankly, if 21 Your Honor goes back and reads your prior detailed 22 order granting the prior motion for summary 23 judgment, you will see that 90 percent of this has 24 already been ruled on by the Court. And we believe 25 that the motion should be granted. Thank you, Your Page 16 1 Honor. 2 JUDGE SCHREIBER: Thank you, Counsel. Mr. 3 Diez-Arguelles? 4 MR. DIEZ-ARGUELLES: Thank you, Your Honor. May 5 I screenshare, please? 6 JUDGE SCHREIBER: You may. 7 MR. DIEZ-ARGUELLES: Okay. All right, Judge. 8 Here's why they're moving for summary judgment. 9 Prior to and during the incident date the hospital 10 was owned and operated by Osceola Regional Hospital. 11 That's what they're moving for summary judgment. 12 HCA does not own and operate this hospital. It's 13 owned and operated by Osceola Regional Hospital. My 14 record evidence is the deposition of Kimberly 15 Schantz, who works for HCA. "Could you please tell 16 us who you work for?" "I work for HCA Healthcare 17 North Florida Division." This is HCA, obviously, is 18 the party moving for summary judgment here saying 19 they don't own and operate this hospital. And I ask 20 her, "And does HCA own and operate Osceola 21 Regional?" She says, "Yes." And there's an 22 objection. And she says, "Yes." Judge, we're done. 23 That's record evidence. They're done. They can't 24 explain it away. They can't file an errata sheet and 25 say, hey, that's not true. What I really meant to Page 17 1 say is by reviewing Internet documents -- based on 2 my review of the Internet documents, it's Osceola 3 that owns and operates. That's a question of fact. 4 They've also attacked my exhibits, saying they're 5 not good exhibits. We stipulated to the 6 authenticity of my exhibits. But how can their 7 exhibits be any good based on their review of the 8 Internet, but not mine? It's a question of fact. 9 You got a clear answer. Now, here's what's most 10 puzzling to me. Had we been before you on a slip 11 and fall case today, and my client testified at 12 deposition, I have no clue how that substance got on 13 the floor or how long it went on the floor. And 14 they move for summary judgment based on that, that 15 she had no clue. And I filed out an affidavit 16 and/or an errata sheet, which completely changes her 17 testimony, you will be moving to strike -- I mean, 18 Defense would be moving to strike by affidavit 19 filing a motion for fraud on the Court, and either 20 granting summary judgment or dismissing my case. 21 Now, for some reason, HCA thinks a different 22 standard applies to them because they're a worldwide 23 corporation. It's the same identical standard, Your 24 Honor. So that does it. I mean, we're done. 25 Summary judgment should be denied based on that. And Page 18 1 then we go to these HCA filings -- or SEC filings. 2 Based on my knowledge, does this -- this report does 3 not contain any untrue statements of material fact. 4 And this is the chief financial officer of HCA. And 5 I requested to depose this gentleman after this 6 errata sheet came in a few weeks ago totally 7 changing the testimony of a witness. And it's not 8 only that witness, Your Honor, it's a witness on 9 another case involving HCA where that other witness 10 says that HCA owns and operates hospitals in the 11 State of Florida. And then, what's the filing say? 12 As of December 2012, we owned and operated 38 13 hospitals and 32 surgery centers in the State of 14 Florida. Their own financial filings say they own 15 and operate hospitals. We go to the Osceola Regional 16 Medical website. Again, these exhibits are 17 stipulated to because when I was preparing for this, 18 I asked Mr. Emmanuel, "Do you stipulate to my 19 exhibits, or do you want me to take discovery." He 20 says, "Carlos, I stipulate to the exhibits." You 21 know, he disagrees what's in them, but he obviously 22 stipulates. And then they got this HCA North 23 Florida Hospitals. And if we go down here, we go to 24 Osceola Regional Medical Center. And then we do 25 physician, and then it says "copyright HCA, Inc." Page 19 1 So HCA, Inc. is copyrighted. One of the hospitals 2 in the State of Florida that they own and operate as 3 Osceola Regional Hospital. And then we go to 4 physicians, what physicians are part of HCA? And 5 they list the Florida hospitals again, Osceola 6 Regional Medical Center. That's where we stand. And 7 then let me go over the rest of the evidence we had. 8 That was just bullet pointed. But let me go -- let 9 me stop screen sharing. And then I'll go back to 10 the screen share. Your Honor, what other evidence 11 we have, the HCA financial filings from the annual 12 report says they have 204,000 employees. They have a 13 financial statement where they list Osceola Regional 14 Medical Center as one of its hospitals. We have a 15 problem with this affidavit they're relying on, Mr. 16 Bray's affidavit, where he basically says, hey, we 17 don't own and operate this hospital. But that's in 18 complete contradiction with what I just showed you. 19 And it's also a conclusionary allegation. So what's 20 the standard for summary judgment? What's the 21 standard for summary judgment under the federal 22 standard that, yes, Your Honor, you're familiar with 23 it, and I'm familiar with it also. And I cited it 24 in my memo, page 11, the Court must view the 25 evidence in every favorable inference in my favor. Page 20 1 You may not weigh the evidence or the credibility of 2 my witnesses. You can't weigh my affidavit -- the 3 credibility of my affidavit, and you can't say, hey, 4 I find Mr. Emmanuel's evidence to be super evidence, 5 better than yours. And I cite -- I cite plenty of 6 case law on that, you know, on page 14, I cite -- 7 you know, I'm citing federal case law on page 14 8 from the 11th Circuit. A.L. v. Walt Disney case, 9 the Court does not weigh conflicting evidence or 10 determine the credibility of the witnesses. And 11 that's what they're asking you to do. And then it 12 says on page 14, on another summary judgment case, 13 the evidence -- my evidence is to be believed. You 14 must -- you must view my evidence and all factual 15 inferences arising from it in the light most 16 favorable to us. All reasonable doubts are resolved 17 in my favor. All inferences are drawn in my favor. 18 You must credit my evidence. That's basically the 19 same summary judgment standard as before in Florida 20 once I come forward with evidence. So the -- as for 21 credibility, inferences, weighing of evidence is 22 basically the same standard under the federal law. 23 I cite Supreme Court case law from -- on summary 24 judgment, my papers need to be liberally construed. 25 And then I cite that conclusionary allegations, like Page 21 1 they have in the affidavit that I moved to strike 2 previously, but it's still conclusionary 3 allegations, are insufficient to create an issue of 4 fact. So what have I done since I've learned that 5 these two errata sheets, one in this case, has been 6 changed by employees of HCA, especially the lady at 7 issue here, when that happened a few weeks ago? I 8 immediately moved the strike her affidavit -- or her 9 errata sheet that she filed in this case because 10 it's in complete contradiction to her testimony that 11 HCA owns and operates this hospital. I cite the 12 Ellison case on my motion to strike, Your Honor, 13 that we filed in this case on October 8th, and says, 14 "A party, when met by a motion for summary judgment 15 should not be permitted by his own affidavits or by 16 that of another to badly repudiate his previous 17 deposition testimony so as to create a jury issue." 18 And that's what they're doing in this case, Your 19 Honor. You need to repudiate that affidavit. And I 20 cite more case law and the Lesnik v. Duval Ford case 21 where they struck an expert affidavit in that case, 22 which was in complete contradiction to the 23 deposition testimony. Once they filed an errata 24 sheet, Your Honor, the law is perfectly clear that 25 I'm entitled to take a deposition of the witness and Page 22 1 the attorneys involved in this case. And once that 2 errata sheet was filed, I said I want to take some 3 depositions. I want to take the deposition of Mr. 4 Emmanuel that represents HCA. I want to take the 5 deposition of the witness. I want to take the 6 deposition of Mr. Nelson that represents Osceola 7 Hospital. I want to take the deposition of his 8 chief financial officer that swore under oath to the 9 United States of America that all the statements in 10 his SEC filings are correct and truthful, especially 11 the one that says that they own and operate 12 hospitals throughout the United States. And I ask 13 for the deposition of various other people. The 14 only two I've been able to depose is Mr. Nelson and 15 the witness that changed her testimony. And at that 16 -- at those depositions that came in, I think they 17 filed them last week or may have filed one, I'm not 18 quite sure -- I asked those witnesses, "What is the 19 subject matter of your discussion," regarding your 20 discussion to get to this new errata sheet and 21 affidavit they filed. And they objected based on 22 the attorney-client privilege. And I filed the 23 motion based on their objections. I think the 24 depositions were last week. And I said, "Hey, I'm 25 entitled to discuss the subject matter of the Page 23 1 conversations because that is not protected by the 2 attorney-client privilege." And I asked that 3 question very precisely, Your Honor, because I'm 4 very familiar with the case law and attorney-client 5 privilege in a medical malpractice case, and what 6 can be asked of a client. And my case is the 7 Coffey-Garcia v. South Miami Hospital case that I 8 cited in my motion to get answers to this discovery 9 from the two witnesses on November 4th. And Coffey- 10 Garcia, they we're trying to pinpoint my client down 11 as to when the statute of limitations commenced to 12 run on a baby case, because, you know, we always 13 argued to the eight-year statute of repose, and the 14 defense always argues it starts at birth. And they 15 asked my client at deposition, "Hey, did you go meet 16 with attorneys prior to Diez-Arguelles & Tejedor," 17 or my law firm, and she said, "Yes." And they asked 18 her, "Hey, what was the subject matter of those 19 conversations?" We had instructed her not to answer 20 thinking it was protected by the attorney-client 21 privilege. The Third DCA corrected us and ruled 22 that courts have consistently held that the general 23 subject matter of client representations are not 24 privileged. So I'm entitled to know what happened, 25 what the subject matter was that led to it. So I Page 24 1 did that. So I filed a motion to strike Schantz. I 2 filed a motion against those answers. I filed a 3 motion to set the deposition of Mr. Emmanuel that 4 knows all the facts here. Well, because I want to 5 know how this errata sheet came into play. Because 6 Mr. Nelson was at the deposition and at Mr. 7 Nelson's, the client testified clearly that owned 8 and operated by HCA. I took another deposition, 9 another HCA case where that happened, and again, a 10 new errata sheet was filed. So HCA is obviously 11 involved in filing these errata sheets, and the case 12 law is clear as day, once this is filed, I'm 13 entitled to depose the attorneys. Mr. Emmanuel has 14 objected to me deposing him. I'm entitled to -- I'm 15 entitled to depose as chief financial officer to go 16 over this errata sheet. It's all basically new to 17 me. And -- but what I'm really asking you to do, 18 Your Honor, the simplest thing to do is just deny 19 their motion for summary judgment based on that 20 answer, and then they could -- they could move for 21 directed verdict as well. So I have a bunch of 22 discovery that I've asked, and it's not new or late. 23 It's all directed towards that errata sheet that 24 they filed in this case. So I asked for the John 25 Emmanuel corporate rep of HCA, but the guy I really Page 25 1 want regarding the errata sheet is the chief 2 financial officer signed off those 10-K filings. I 3 want the corporate rep of Osceola Regional Hospital, 4 and I want the adjusters from HCA on this matter. I 5 want to know how this errata sheet came up -- came 6 about and how a witness just totally changes her 7 testimony. So let me screen share some other 8 materials, Your Honor. 9 JUDGE SCHREIBER: Go ahead. And we are running 10 late -- low on time. So -- 11 MR. DIEZ-ARGUELLES: Great. I'll be quick. So 12 what's the new summary judgment standard? "A movant 13 must serve the motion for summary judgment at least 14 40 days prior to the hearing." They think that. 15 The problem is they started amending it after the 16 errata sheet and changed the errata sheet all 17 around. "If a non-movant chose by affidavit or 18 declaration -- this is pertaining to me -- "it 19 cannot present facts essential to justify 20 opposition." This is all the new rule. "Defer 21 considering a motion or deny it," that's what we 22 refer -- we want you to do is just deny it. But if 23 you're going to even consider it, I would request 24 that you defer consideration until I'm allowed to 25 take the discovery that came up. "Allow time to Page 26 1 take discovery, issue any other appropriate order," 2 and then, if they start blaming me, which I'm sure 3 I'm going to get blamed, "if a party fails to 4 properly support an assertion or properly address 5 another party's assertion, give an opportunity to 6 properly support or address the facts." And that's 7 what I'm asking for, Your Honor. I'm asking you to 8 deny or give me an opportunity to do further 9 discovery. Because I think the record is clear and 10 it can never change in this case that we got record 11 evidence. I don't know how to stop sharing. And 12 I'm sure you can read my memorandum of law, Your 13 Honor. There's plenty of evidence in this case that 14 they own and operate, and it should be going in my 15 favor. Thank you for your time, Your Honor. 16 JUDGE SCHREIBER: Thank you, sir. Mr. 17 Emmanuel, brief response? 18 MR. EMMANUEL: Yes, Your Honor. What I would 19 ask Your Honor to do, with your permission, and this 20 is like we did last time, is ask the parties to 21 submit competing orders on this. But I do want to 22 briefly address what Mr. Diez-Arguelles argued. 23 First of all, we found the Motel 6 v. Dowling case 24 as part of our hearing notebook. And the Court 25 specifically states, "One of the reasons a witness Page 27 1 reads his testimony is to make permissible 2 corrections to his testimony. Once the changes are 3 made, they become part of the deposition, just as if 4 the deponent gave the testimony while being 5 examined." And Your Honor, I'm repeating myself, 6 but very briefly, Ms. Schantz was deposed, not as a 7 corporate representative on ownership and operation 8 of the hospital. They already deposed somebody two 9 years ago on that. They deposed her on medical 10 audit trails, and then threw her a curveball and 11 started asking her about ownership and operation of 12 the hospital, which she then corrected. They've 13 already redeposed her. She testified very clearly 14 at her second deposition that the only person in the 15 world she spoke to about her errata sheet was her 16 counsel, David Nelson. I specifically asked her on 17 the record did she speak to me? She said "No." Did 18 she speak to anyone at HCA, Inc.? "No." So all of 19 these requests by the Plaintiff's counsel to take 20 all these other depositions is a red herring because 21 the witness has already testified that she didn't 22 speak to anyone but Mr. Nelson, and they've already 23 deposed him. And she clearly testified how she made 24 the changes, that she'd looked at the AHCA website. 25 She saw documentation there about who owns and Page 28 1 operates the hospital. She typed up the deposition 2 errata sheet herself. And that's what it says. So 3 they know how the errata sheet came about. And I 4 will finally point out, Your Honor, that this motion 5 hearing was already continued once at the 6 plaintiff's request. It was set for hearing about 7 two months ago, and they said they needed more time. 8 And this is just an ongoing effort by the 9 plaintiff's counsel to kick the can down the road. 10 But we believe, Your Honor, once the parties submit 11 competing orders, if you'll allow us to do that, 12 that it's very clear that the motion should be 13 granted. Thank you, Judge. 14 MR. DIEZ-ARGUELLES: Judge, may I just say one 15 thing in response to the case they cited and I'll be 16 brief? 17 JUDGE SCHREIBER: You may. 18 MR. DIEZ-ARGUELLES: Your Honor, the case they 19 cited, I addressed in page 3 of my Plaintiff's 20 motion to reopen the depositions served on October 21 8th. Both the deposition testimony and the errata 22 sheet constitute admissible evidence. So it 23 constitutes admissible evidence. I don't want to 24 prepare a 20-page order. I think you should deny it 25 based on the law that my deposition testimony is Page 29 1 admissible evidence. Thank you, Your Honor. 2 JUDGE SCHREIBER: So Mr. Diez-Arguelles, are 3 you saying that since both the deposition testimony 4 and the errata sheet are evidence for purposes of 5 today's summary judgment hearing, that that innately 6 contains a contradiction that would preclude the 7 entry of summary judgment? 8 MR. DIEZ-ARGUELLES: Yes, Your Honor. I mean, 9 of course. I mean, that's what -- it's admissible 10 evidence. You can't -- 11 JUDGE SCHREIBER: Taking your argument to that 12 extrapolation, Mr. Emmanuel, are you disputing that? 13 MR. EMMANUEL: Of course, Your Honor. The 14 whole purpose that you allow a witness to review 15 their transcript and make changes is to make a 16 change. So you don't -- if I said, you know, I 17 graduated from law school in 1985, and I meant to 18 say 1995, I misspoke. I would use the errata sheet 19 to correct the correct date. But that doesn't mean 20 my initial answer is still there. My correction is 21 what stands. That's why you do a correction. 22 JUDGE SCHREIBER: This is the basic issue, 23 guys. So Mr. Diez-Arguelles, what's your response 24 to that? 25 MR. DIEZ-ARGUELLES: Judge, I'm a little bit Page 30 1 shocked. So are you telling me when in all my cases 2 from now on, my client can testify to A, and then if 3 A doesn't help me later on in the case, I can 4 prepare an affidavit and start explaining away B? 5 It doesn't work that way. The law is clear; once 6 you contradict yourself at this level, you have the 7 authority to either strike their case -- I mean, 8 strike their entire case for fraud on the Court or 9 strike the affidavit. The other thing, you have no 10 choice but to let it in. This -- but it's still 11 good substantive evidence what she testified. Now, 12 does she want to explain it away for trial so the 13 jury can make that determination? Of course. But, 14 Judge, they're telling you this is super evidence 15 that you can correct an affidavit. I'm telling you 16 the law is all inferences go my way. And this 17 inference goes my way, Your Honor. Thank you. 18 JUDGE SCHREIBER: Thank you, folks. I'm going 19 to reserve ruling, and I'm not asking anybody to 20 prepare a proposed order. I'll do it myself on this 21 one, all right. 22 MR. EMMANUEL: Thank you, Judge. 23 JUDGE SCHREIBER: Thank you very much. Do you 24 have a trial date? 25 MR. EMMANUEL: It was continued, Your Honor. Page 31 1 JUDGE SCHREIBER: Right. Do you have a new 2 one? Is it next spring? 3 MR. DIEZ-ARGUELLES: I think my paralegal told 4 me before today that we're waiting on your office to 5 issue an order. 6 JUDGE SCHREIBER: Fair enough. 7 MR. DIEZ-ARGUELLES: Your Honor, do you need a 8 follow up, Your Honor? 9 JUDGE SCHREIBER: No. She has it, I'm sure. 10 She does them in the order that she gets them. 11 MR. DIEZ-ARGUELLES: Thank you. 12 MR. EMMANUEL: My final request is if you would 13 read Your Honor's prior summary judgment order, 14 you'll see that we've -- a lot of this is going to 15 be deja vu to you. 16 JUDGE SCHREIBER: I did in preparing for 17 today's hearing. Thank you. 18 MR. EMMANUEL: Thank you, Judge. 19 JUDGE SCHREIBER: I -- in these cases, I like 20 to hear the argument and then go back through the 21 paper, so I appreciate your giving everything to me 22 in advance so I can do that. 23 MR. EMMANUEL: Yes, ma'am. 24 JUDGE SCHREIBER: All right. Have a nice day. 25 You all are excused. Page 32 1 (HEARING CONCLUDED AT 11:37 A.M.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 33 1 INDEX Page 2 3 PROCEEDINGS 5 4 EXHIBITS 5 (None Marked) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 34 1 CERTIFICATE 2 3 STATE OF FLORIDA) 4 COUNTY OF ORANGE) 5 6 I, MADISON MARTINEZ, Court Reporter and Notary 7 Public for the State of Florida at Large, do hereby 8 certify that I was authorized to and did report the 9 foregoing proceeding, and that said transcript is a true 10 record of the said proceeding. 11 12 I FURTHER CERTIFY that I am not of counsel for, 13 related to, or employed by any of the parties or 14 attorneys involved herein, nor am I financially 15 interested in said action. 16 17 Submitted on: April 28, 2022. 18 19 20 21 22 ______________________________ 23 MADISON MARTINEZ 24 Court Reporter, Notary Public 25 Page 35 A amended 5:4 23:2,6,15,17 2:8,13,18 3:2,72:6 A.L 20:8 7:21 24:22,24 27:16 3:13 6:9,13 case 1:3 7:22 a.m 4:5 32:1 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