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Filing # 125768739 E-Filed 04/28/2021 01:43:23 PM
IN THE CIRCUIT COURT OF THE 20TH
JUDICIAL COURT IN AND FOR CHARLOTTE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2020-000616-CA
DEBORAH COOPER BURG, by and through
her Court-appointed Guardian, RICKY BURG;
NICOLE BURG, her daughter; and RICKY
BURG, her spouse,
Plaintiffs,
Vv.
WEST FLORIDA PHYSICIAN NETWORK,
LLC; DILENDRA WEERASINGHE; JOHN
RIOUX; FAWCETT MEMORIAL HOSPITAL,
INC. d/b/a FAWCETT MEMORIAL,
HOSPITAL; SUSAN BRUNER; ABIGAIL
UTECH; NANDINI KIRI, M.D., P.A.;
NANDINI KIRI; HARBOR MEDICAL
GROUP, LLC; AHSAN KAMAL; SOVI
JOSEPH, M.D., P.A.; SOVI JOSEPH;
DOMINGO E. GALLIANO, JR., P.A.;
DOMINGO GALLIANO, JR.; ARTURO
RODRIGUEZ-MARTIN, M.D., P.L.; ARTURO
RODRIGUEZ-MARTIN; MILLENNIUM
PHYSICIAN GROUP, LLC d/b/a
MILLENNIUM PHYSICIAN GROUP; CATHY
CRISS; LIFE CARE CENTERS OF AMERICA,
INC.; PUNTA GORDA MEDICAL
INVESTORS, LLC d/b/a LIFE CARE CENTER
OF PUNTA GORDA; LIFE CARE
PHYSICIAN SERVICES, LLC; and VANCE
MALONEY, III,
Defendants.
DEFENDANTS, NANDINI KIRI, M.D. AND NANDIRI KIRI M.D., P.A.’S RESPONSE
TO PLAINTIFFS’ SECOND MOTION TO COMPEL AND SUPPLEMENT
COME NOW, Defendants, Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A., by and
through their undersigned counsel, and as their response to Plaintiffs’ Motion to Compel
Compliance with Court Order of March 9, 2021 and Motion for Assessment of Sanctions and
Plaintiffs’ Supplement to same, state:
1 Plaintiffs’ counsel filed a Motion to Overrule Defendants’ Objections to
Plaintiff's Supplemental Interrogatories on November 11, 2020.
2 A hearing was held regarding Plaintiff's Motion on February 23, 2021. The
transcript from said hearing is attached as Exhibit A.
3 Throughout the hearing, Plaintiffs’ counsel’s concern was to learn Dr. Kiri’s
personal knowledge. See e.g. Hr’g 65, Feb. 23, 2021 (“[T]he last time Dr. Kiri sees the patient,
she’s not going to know what happens after that, that’s obvious, but for the time periods that
Dr. Kiri is involved, we want to know from her who... is the person or persons that had the
responsibility. .. If she knows, she has to tell us....” (emphasis added); see also id. at 70
(“Goodness knows what Dr. Kiri is aware of that’s not in the records that I’ve seen. She’s got
knowledge to recommendations from conversations that she’s had that are not reflected in the
record.”) (emphasis added).
4 At the hearing, the Honorable Judge Gentile ruled that Dr. Kiri was to answer
Plaintiffs’ Supplemental Interrogatories, detailing her role in the care of the patient after June 17,
2019, if any. Id. at 65.
5 The Honorable Judge Gentile further narrowed Dr. Kiri’s responses, requiring
“Dr. Kiri to file an amended response that lists whatever fact she actually knows, and she’s not
required to review all the records in the case.... This will be based on her personal
knowledge.” /d. at 70.
6. Accordingly, Dr. Kiri filed Amended Answers to Plaintiffs’ Supplemental
Interrogatories on March 25, 2021, detailing her personal knowledge during her specific days of
involvement on July 24, 2019 through July 25, 2019 and August 10, 2019 through August 12,
2019. See Exhibit B.
7
On March 26, 2021, Plaintiffs filed a Motion to Compel Defendants Nandini Kiri,
MLD. and Nandini Kiri, M.D., P.A.’s Compliance with Court Order of March 9, 2021 and
Motion for Assessment of Sanctions.
8 In said Motion, Plaintiffs contend Dr. Kiri failed to detail her knowledge of other
persons who had responsibility during the July 23, 2019 and August 10, 2019 admissions and,
rather, referred to “the generic phrases ‘general surgery;’ ‘ gastrointestinal medicine;’ and
‘bariatric providers.’”” Pl. Mot. to Compel, § 4, Mar. 26, 2021.
9. Moreover, Plaintiffs contend Dr. Kiri inappropriately failed to acknowledge her
involvement on July 23, 2019, referring to the medical records in support of Plaintiff's
contention that Dr. Kiri “performed a detailed History and Physical on Plaintiff.” Id. at ¥ 5.
10. In response to Plaintiffs’ Motion to Compel, the undersigned sent correspondence
to Plaintiffs’ counsel on April 6, 2021, explaining Dr. Kiri’s Amended Answers demonstrated
her personal knowledge, without reference to the medical records, and that Dr. Kiri was not
personally involved on July 23, 2019, as a Nurse Practitioner authored the History and Physical,
which was not reviewed and authenticated by Dr. Kiri until the following day, on July 24, 2019.
See Exhibit C.
11. Following a telephone call with Plaintiffs’ counsel on April 8, 2021, Plaintiffs
filed their Supplement to Motion to Compel Defendants’ Compliance with Court Order of March
9, 2021 and Motion for Assessment of Sanctions on April 9, 2021.
12. Despite the Courts’ limiting instructions for Dr. Kiri to respond regarding her
personal knowledge during days of her specific involvement, Plaintiffs, again, attempt to
broaden the scope of Dr. Kiri’s involvement to the entire July 23, 2019 and August 10, 2019
admissions, arguing that, as the admitting/attending physician, “the ‘buck’ stops with her.” See
Pl. Supp. Mot., ¥ 2, Apr. 9, 2021.
13. In said Motion, Plaintiffs contend that Florida Rule of Civil Procedure 1.340
requires Dr. Kiri to respond with more than just her personal knowledge and, rather, requires her
to respond with information known to her counsel. /d. at ¥| 4 (citing Fla. R. Civ. Pro. 1.340 and
Dupree v. Better Way, Inc., 86 So. 2d 425 (Fla. 1956)).
14. In support of same, Plaintiffs’ cite to an Authors’ Comment from 1967, which
stated, “The fact that the information needed to answer an interrogatory is within the sole
knowledge of the attorney for the party is not a valid objection.” /d. (emphasis added).
1S. In Dupree v. Better Way, Inc., the Court held that names and addresses of
persons known have knowledge to a Defendants’ attorney cannot be withheld as privileged or on
the grounds of work product. 86 So. 2d at 426. Dupree does not apply here. Dupree involved
a situation where the work product and attorney-client privilege were overruled since the identity
of the witnesses’ names obtained by the attorney were not privileged. Importantly, the party
seeking prohibition of the names could not obtain them from another source. Further, Plaintiffs
are seeking to require the defense to go obtain information that is not required by Dupree or this
Court’s directive at the prior hearing.
16. The arguments Plaintiffs originally made seeking this information sought Dr.
Kiri’s knowledge. This Court specifically ruled on the issue and made a specific order. Dr. Kiri
has complied with that order. Although the undersigned pointed this out to Plaintiffs’ counsel
and then called and discussed it with Plaintiffs’ counsel, Plaintiffs’ counsel insisted on filing yet
another motion and now requests sanctions. This Court should not condone these continued
tactics and should award the defense sanctions for defending this Motion, as it lacks a good faith
basis after a review of the transcript of the prior hearing.
WHEREFORE, Defendants Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A. respectfully
request this Court to Deny Plaintiffs’ Motion to Compel Compliance with Court Order of March
9, 2021 and Motion for Assessment of Sanctions, dated April 9, 2021 and award them sanctions
for defending the baseless Motion.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 28, 2021, I electronically filed the foregoing with the
Clerk of the Court using the Florida E-Portal system. I further certify that a true and correct copy
hereof has been furnished to:
Edward R. Blumberg, Esquire
Cosme Caballero, Esquire
Robert E. Blumberg, Esquire
Deutsch, Blumberg & Caballero, P.A.
erb@deutschblumberg.com
ccaballero@deutschblumberg.com
bblumberg@deutschblumberg.com
rmitchell@deutschblumberg.com
heastillo@deutschblumberg.com
John M. Stewart, Esquire
Michael J. Swan, Esquire
Rossway Swan Tierney Barry & Oliver, PL
jstewart@rosswayswan.com
mswan@rosswayswan.com
cdelo@rosswayswan.com.
Frances G. Prockop, Esquire
Bush, Graziano, Rice & Platter, P.A.
eserve@bgrplaw.com
fprockop@bgrplaw.com
rmessler@bgrplaw.com
Gavrila A. Brotz, Esquire
Walter J. Tache, Esquire
Tache, Bronis and Descalzo, P.A.
gbrotz@tachebronis.com
wtache@tachebronis.com
service@tachebronis.com
Brett Gliosca, Esquire
Jeffrey M. Goodis, Esquire
La Cava Jacobson & Goodis, P.A.
bgliosca@ljglegal.com
nkovacic@ljglegal.com
stp-pleadings@LJGlegal.com
Jay P. Chimpoulis, Esquire
Susanne E. Reidhammer, Esquire
Chimpoulis, Hunter & Lynn, P.A.
Jchimpoulis@chl-law.com
sriedhammer@chimpoulishunter.com
Victoria N. Ferrentino, Esquire
Rivver Cox, Esquire
Bush, Graziano, Rice & Platter, P.A.
eserve@bgrplaw.com
vferrentino@bgrplaw.com
dhensley@bgrplaw.com
rcox@begrplaw.com
Richard K. Bowers, Jr., Esquire
Brandon R. Scheele, Esquire
Banker, Lopez, Gassler, P.A.
Service-rbowers@bankerlopez.com
Service-bscheele@bankerlopez.com.
Scott B. Albee, Esquire
Fulmer LeRoy & Albee, PLLC
salbee@fulmerleroy.com
jreitz@fulmerleroy.com
amitchell@fulmerleroy.com
rstevens@fulmerleroy.com
R. Ryan Rivas, Esquire
Hall Booth Smith, PC
rrivas@hallboothsmith.com
ncontreras@hallbooth
Ron Campbell, Esquire
Daniel Calvert, Esquire,
Cole Scott & Kissane, P.A.
ron.campbell@ecsklegal.com
daniel.calvert@csklegal.com
krystal.perez@csklegal.com
daniela.perez@csklegal.com
/s/ Richard B. Mangan
RICHARD B. MANGAN, JR., ESQUIRE
Florida Bar No. 0947156
Email: rbm.service@rissman.com
KELSEY T. CAMPBELL, ESQUIRE
Florida Bar No.: 1011369
Email: ktc.service@rissman.com
RISSMAN, BARRETT, HURT
DONAHUE, McLAIN & MANGAN, P.A.
1 North Dale Mabry Highway
11th Floor
Tampa, FL 33609
Telephone: (813) 221-3114
Facsimile: (813) 221-3033
Attorneys for Defendant,
Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A
Page 1
IN THE CIRCUIT COURT, TWENTIETH
JUDICIAL CIRCUIT, IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CASE NO.: 2020-000616 CA
DEBORAH COOPER BURG, by and
through her Court-appointed
Guardian, RICKY BURG; NICOLE
BURG, her daughter; and
RICKY BURG, her spouse,
Plaintiffs,
vs.
WEST FLORIDA PHYSICIAN NETWORK, LLC;
DILENDRA WEEBRASINGHE; JOHN RIOUX;
10 FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL; SUSAN
11 BRUNER; ABIGAIL UTECH; NANDINI KIRI,
M.D., P.A.? NANDINI KIRI; HARBOR
12 MEDICAL GROUP, LLC; AHSAN KAMAL; sSOVI
JOSEPH, M.D., P.A.; SOVI JOSEPH; DOMINGO
13 E. GALLIANO, JR., P.A.; DOMINGO GALLIANO,
JR. ARTURO RODRIGUEZ-MARTIN, M.D., P.L.;
14 ARTURO RODRIGUEZ-MARTIN; MILLENNIUM
PHYSICIAN GROUP, LLC d/b/a MILLENNIUM
15 PHYSICIAN GROUP; CATHY CRISS; LIFE CARE
CENTERS OF AMERICA, INC.; PUNTA GORDA
16 MEDICAL INVESTORS, LLC d/b/a/ LIFE CARE
CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN
17 SERVICES, LLC; and VANCE MALONEY, TIl,
18 Defendants.
19
PROCEEDINGS: SPECIAL SET
20
BEFORE: HONORABLE GEOFFREY GENTILE
21
DATE: TUESDAY, FEBRUARY 23, 2021
22
TIME: 1:30 P.M. - 3:02 P.M.
23
PLACE: VIDEO CONFERENCE
24
STENOGRAPHICALLY
25 REPORTED BY: LINDY ROMANOFF, COURT REPORTER
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EXHIBIT A
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1 APPEARANCES: 1 APPEARANCES:
2 EDWARDR, BLUMBERG, ESQUIRE 2
OF; Deutsch Blumberg & Caballero, P.A. RICHARD B, MANGAN, JR., ESQUIRE,
3 ‘New World Tower 3 OF: Rissman, Barrett, Hurt, Donahve & MeLain, P.A,
100 Biscayne Boulevard, Suite 2802 1 North Dale Mabry Highway, 1th Floor
4 ‘Miami, FL 33132 4 ‘Tampa, FL 33609
205) :29 Fax: (305)358-9304 (813)221-31 14 Fax: (813)221-3033
cerb@deutschblumberg.com 55 richard.mangan@rissman.com
APPEARING ON BEHALF OF THE PLAINTIFF APPEARING ON BEHALF OF NANDINIKIRI, MD,
6 (Via video conference) 6 and NANDINIKIRI, MD.,P.A.
7 BRANDONR. SCHEELE, ESQUIRE (Via video conference)
OF: Banker Lopez Gassler, P.A. 7
8 501 East Kennedy Boulevard, Suite 1700 SCOTTB. ALBEE, ESQUIRE
‘Tampa, FL 33602 8 OF: Fulmer LeRoy & Albee, PLLC
9 (813)21- 100 Fax: (813): 3066 5544 Central Avenue
Dschoele@bankerlopez.com 9 St Petersburg, FL 33707
10 APPEARING ON BEHALF OF DILENDRA WEERASINGHE (727)217-2500Fax: (727)217-2501
(Via video conference) 10 salbee(@folmerteroy.com
APPEARING ON BEHALF OF ARTURO RODRIGUEZ-MARTIN,
SUSANNE E, RIEDHAMMER, ESQUIRE ul MD. PLL. and ARTURO RODRIGUEZ-MARTIN
2 OF; Chimpoulis& Hunter, P.A. (Vin video conference)
1150 South Pine Island Road, Suite 510 2
1B Plantation, FL 33324 R. RYAN RIVAS, ESQUIRE
(954)463-0033 Fax: (954)463-9562 13 OF: Hall Booth Smith,P.C
4 stiedhammer@chimpoulishunter.com 2202 North West Shore Boulevard, Suite 200
APPEARING ON BEHALF OF PUNTA GORDA MEDICAL, 4 ‘Tampa, FL 33607
INVESTORS, LLC d/b/a LIFE CARE CENTER OF (813)329-3880
PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; 1s rrivas@hallboothsmith.com
16 and VANCE MALONEY, IIL APPEARING ON BEHALF OF SUSAN BRUNER.
(Via video conference) 16 (Via video conference)
a 17 DANIEL C. CALVERT, ESQUIRE
VICTORIA N. FERRENTINO, ESQUIRE OF: Cole, Scott & Kissane, PLA.
18 OF: Bush Graziano Rice & Platter, P.A, 18 27300 Riverview Center Boulevard, Suite 200
100 South Ashley Drive, Suite 1400 Bonita Springs, FL 24134
19 ‘Tampa, FL 33602 19 (239)690-7900Fax: (239)738-7778
(813)228-7000 Fax: (813)273-0091 daniel calvert@esklegal.com
20 ‘vferrentino ilbgrplaw.com 20 APPEARING ON BEHALF OF CATHY CRISS and MILLENNIUM
APPEARING ON BEHALF OF WEST FLORIDA PHYSICIAN PHYSICIAN GROUP, LLC d/bia MILLENNIUM
21 NETWORK, LLC and JOHN RIOUX 21 PHYSICIAN GROUP
(Via video conference) (Via video conference)
n n
2B 2B
24
Page 3 Page 5
APPEARANCES: INDEX
DOUGLAS B. LUMPKIN, ESQUIRE (none)
OF; Wieker Smith O'Hara MeCoy & Ford, P.A,
Sarasota City Center
1819 Main Street, Suite 910
Sarasota, FL 34236
(941)366-4200Fax: (941)366-4227
dlumpkin@wiekersmith.com
APPEARING ON BEHALF OF AHSAN KAMAL, MD. and
HARBOR MEDICAL GROUP, LLC EXHIBITS
(Via video conference)
RALPH L. MARCHBANK, JR., ESQUIRE
OF: Dickinson & Gibbons, P.A. (none)
‘401 North Cattlemen Road, Suite 300
Sarasota, FL 34232
10 (941)366-4680Fax: (941)953-3136
marchbank@dglawyers.com 10
ul APPEARING ON BEHALF OF DOMINGO BE. GALLIANO, JR.
and DOMINGO GALLIANO, IR., P.A, 11
2 (Via video conference)
B BRETTP, GLIOSCA, ESQUIRE 12
OF: La Cava Jacobson & Goodis 13
4 200 Central Avenue, Suite 250
St, Petersburg, FL 33701 14
Is (813)209-9611 Fax: (727)550-0811 15
baliosca@iglegal com
16 APPEARING ON BEHALF OF SOVI JOSEPH, M.D.,P.A. 16
and SOVI JOSEPH 17
"0 (Via video conference)
18 FRANCES G. PROCKOP, ESQUIRE 18
OF: Bush, Graziano, Rice and Platter, P.A. 19
19 100 South Ashley Drive, Suite 1400
‘Tampa, FL 33602 20
20 (813)228-7000
Sprockop@iberplaw.com 21
at APPEARING ON BEHALF OF FAWCETT MEMORIAL. 22
HOSPITAL, INC. and ABIGAIL UTECH;
2 (Via video conference) 23
23 24
24
25 25
2 (Pages 2 - 5)
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PROCEEDINGS MR. MANGAN: Yes, this is Richard Mangan on
seeeeeee behalf of Dr. Kiri.
THE COURT: Burg versus West Florida Physician THE COURT: Thank you.
Network and many others, it's 20-CA-616. Assuming And then Harbor Medical Group, LLC.
that the -- one of the motions has done the math MR. LUMPKIN: Yes, Your Honor. This is Douglas
right, [understand we have three plaintiffs, 22 Lumpkin on behalf of Harbor Medical Group as well as
defendants and 13 different law firms, so people are Dr. Kamal.
still coming in. THE COURT: Okay.
I went through -- I saved my notebooks for our MR. SCHEELE: This is Attorney Brandon Scheele,
10 last hearing and all my notes from the last hearing. 10 for Dr. Weerasinghe. We were second in the pleading
I I just keep them on a shelf. It seems like this is I that I have.
12 the kind of case that justifies that. Ifyou were 12 THE COURT: Oh, sure, sure. I'm sorry, somehow
13 in my office, you would see I have three stand-up 13 I skipped over you. Tell me your name again.
14 desks that have nothing on them. I try and keep the 14 MR. SCHEELE: Brandon Scheele, S-C-H-E-E-L-E,
15 desks clear, but your case requires that I save some 15 for Dr. Weerasinghe.
16 ofthis stuff to avoid having to get up to speed 16 THE COURT: Thank you. I'm using my notes from.
7 every time. 7 the pleading from the last hearing and I colored
18 T'm going to start with introductions and then 18 over it so much that I crossed some -- I missed you.
19 about 30 or 40 minutes when we finish with the 19 Lapologize.
20 introductions of counsel, we'll start with the 20 Next is -- this is Sovi Joseph.
21 motions. 21 MR. GLIOSCA: Good afternoon, Your Honor.
22 Go ahead with plaintiff first. 22 Brett Gliosca on behalf of Dr. Joseph.
23 MR. BLUMBERG: Good afternoon, Your Honor, Ed 23 THE COURT: Thank you.
24 Blumberg, and I represent the -- actually, John 24 Next I think is Domingo Galliano, Jr., P.A.
25 Stewart is co-counsel for -- represents the 25 MR. MARCHBANK: Your Honor, this is Ralph
Page 7 Page 9
guardian. I don't know that he'll be joining us Marchbank, I represent Dr. Galliano and the P.A.
today, but I don't think he's on with us. THE COURT: Thank you.
THE COURT: Allright. And
I don’t know if Punta Gorda Medical Investors, LLC, d/b/a Life
it's best for everybody if we take appearances as Care Center Punta Gorda.
you appear in the pleadings. I think that is the MS. RIEDHAMMER: Good aftemoon, Your Honor.
simplest way to avoid having to talk over one Susanne Riedhammer on behalf of Punta Gorda, also on
another. behalf of Life Care Physician Services and
The first on I have West Florida Physician Dr. Maloney.
Network, LLC. THE COURT: Oh, terrific.
10 MS. FERRENTINO: Yes, Your Honor. Good 10 Did I miss anybody?
1 afternoon. Victoria Ferrentino on behalf of West i MR. BLUMBERG: Your Honor, there was a -- two
12 Florida and Dr. John Rioux. 12 other defendants, Millennium Physician Group and
13 THE COURT: Thank you. And it's R-I-O-U-X? 13 Cathy Criss, Dr. Cathy Criss, C-R-I-S-S.
14 MS. FERRENTINO: Yes, sir. 14 THE COURT: Mr. Albee, who do you represent?
15 THE COURT: Thank you. 15 MR. ALBEE: Well, according to Mr. Blumberg, if
16 And then next is Fawcett Memorial Hospital, 16 I'm out of the case, I will accept that notice of
17 d/b/a Fawcett Memorial Hospital. 17 dismiss, Your Honor, but I represent Arturo
18 MS. PROCKOP: Good afternoon, Your Honor. Fran 18 Rodriguez-Martin and his associated professional
19 Prockop on behalf of the hospital. 19 practice.
20 THE COURT: Thank you. 20 THE COURT: Okay. My guess is that the reason
21 Next is Abigail Utech. 21 Thad skipped you folks is you're not listed -- I
22 MS. PROCKOP: And Fran Prockop also on behalf 22 just missed the first doctor that we talked about,
of Ms. Utech. 23 but I had missed -- there's just -- that entity
24 THE COURT: Okay. And next is Nandini Kiri, 24 isn't listed in the old pleading that I'm using. So
25 M.D. 25 tell me the name again.
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MR. ALBEE: Arturo, A-R-T-U-R-O, Rodriguez, THE COURT REPORTER: Thank you.
common spelling, Martin, M-A-R-T-I-N, medical THE COURT: All right. And to save your hands
doctor, and his practice is of the same name with being cramped up today, please, folks, if I see --
some alphabet after it. if there's no objection, just remain silent. By the
THE COURT: Thank you. time we go 4, 8, 12, 16 -- even accounting for court
Did I miss anyone else? personnel, it's 12 to 15 people to say no objection.
MR. CALVERT: Yes, Your Honor. This is Daniel So if I say -- I'm going to try to ask questions, if
Calvert on behalf of Millennium Physician Group and there's no -- so you don't have to respond. You're
Dr. Criss. not required to say you have no objection.
10 THE COURT: What's the doctor's name? 10 For the first motion, is there any objection to
I MR. CALVERT: Dr. Cathy Criss. I me designating this case complex? All right. Some
12 THE COURT: Is it K or C? 12 people have themselves on mute so I'm just looking
13 MR. CALVERT: WithaC. 13 around to make sure I'm not missing anybody.
14 THE COURT: All right. Have we got everybody 14 So Mr. Blumberg's motion to have the case
15 now? 15 designated as complex is granted, And you know what
16 MR. RIVAS: Ryan Rivas on behalf of Susan 16 that means, we're going to have to set up some
7 Bruner. 7 regular meetings and other things.
18 THE COURT: You are like in a bucket. 18 So Mr. Blumberg, do you want to address any of
19 Mr. Rivas, who do you represent? 19 that now?
20 MR. RIVAS: Susan Bruner. 20 MR. BLUMBERG: Well, it -- the Court's rule, as
21 THE COURT: You're very low, slash, garble -- 21 you just indicated, you know, requires within 60
22 not really garbled, just like you're way away from. 22 days initial case management conference and -- and
23 your microphone, What's the name of your client? 23 then 20 days before that -- at least 20 days before,
24 MR. RIVAS: Susan Bruner, B-R-U-N-E-R. 24 the lawyers will be meeting and preparing a joint
25 THE COURT: Thank you. 25 statement, a discovery plan and the like, and -- and
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Anyone else? there's other things that go into that.
Allright. Mr. Blumberg, the third amended With Your Honor's permission, what I'll do, if
notice of special set hearing is what I worked from it's okay, is to have our -- my assistant get dates
in my preparation; is that a fair place to start? from your judicial assistant, clear them with all
MR. BLUMBERG: Yes, Your Honor. the other lawyers for the case management
THE COURT: Is there any reason that we conference, we'll meet -- we'll meet and confer to
shouldn't just start from the top with numbered prepare the initial case management report. We had
motion 1, plaintiffs’ motion to determine case tried to do that once before, not quite successful,
complex? but take another stab at it and -- and so we will
10 MR. BLUMBERG: That would be fine, sir. 10 abide by that rule. I'll check the local rules,
i THE COURT: Is there any objection to me i make sure we abide by the local rules too. So if
2 designating this case as a complex case? 12 that's all right, Your Honor.
13 MR. MARCHBANK: Not from Attorney Marchbank on 13 The number 2 item on our --
14 behalf of Dr. Galliano. 14 THE COURT: So motion is granted. Please do
15 THE COURT: I didn't even ask, do we have a 15 that, get a date for approximately 60 days from now
16 court reporter that we need to be careful for today? 16 from Cheryl so that we can have that hearing, and
17 THE COURT REPORTER: Yes. 17 Tl tell my case manager too because she tracks the
18 THE COURT: I see Lindy’s computer, what's your 18 complex things.
19 last name? 19 I'll make sure to tell Cheryl, if you can send
20 THE COURT REPORTER: Romanoff, R-O-M-A-N-O-F-F. 20 out an email to our case management to let them know
21 THE COURT: Ms. Romanoff, if you have any 21 that this has been designated complex and to keep
22 difficulty making a record, I didn't ask this 22 track of it.
23 earlier, I apologize, if you'll just waive and stop 23 Go ahead, Mr. Blumberg.
24 us, Pll make sure we go back and make a good 24 MR. BLUMBERG: All right. Yes, Your Honor.
25 record. 25 Thank you, sir. The number 2 item on the notice of
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hearing, I think will get resolved in the course of depositions -- and [ don't know if Your Honor has
our meeting to prepare for the initial case had this come up before, but here's some of the
management conference. This was -- as Your Honor issues that -- that we've seen that we ask Your
sees, was a motion to have a date set aside for Honor to address.
depositions and hearing time. First of all, I assume some of the initial
We have a number of depositions scheduled, and depositions will be just totally by Zoom, where
we'll work -- continue to work together, and then there's no one in the room but the witness, and of
we'll address this, if it's all right with you, Your course, the witness would be by himself, have his or
Honor, with -- at our initial case management her mask off. If -- on the other hand, if someone
10 conference. I think it might make sense to do it 10 else is going to be in the room, we would want to
11 then, now that it's been declared complex. I know who that person is. We would like to -- I
12 THE COURT: That does make sense, and 12 think we all would want to know, the lawyers would
13 understand that I'm willing to work with everybody 13 want the person or persons identified who's in the
14 and let everybody have their say about when that is, 14 room, that -- that there would -- that whoever is in
15 but I traditionally have done two things in cases 15 the room be on the Zoom camera the whole time so we
16 like this; one, giving you a standing hearing time 16 can all see that person, that there be no improper
17 every month of a certain date, at a certain time, 7 communication.
18 for a certain amount of time that we think makes 18 Now -- and I do want to say, Your Honor, I'm
19 sense across -- either all or most of the lawyers so 19 not cynical and am not casting any aspersions on any
20 that you have hearing time and you don't have to 20 lawyer. I mean, lawyers are honest and would not do
21 coordinate amongst more than a dozen law firms, and 21 anything improper, but sometimes in the heat of the
22 I'm willing to set aside, on your behalf, discovery 22 moment, it's easy to -- sometimes people get
23 time, whether it's a day or a week or whatever it 23 overzealous and forget. We found it's good to have
24 is, every month or quarter, We'll talk about that, 24 a ground rule to prevent that from happening so that
25 but I'm willing to do both of those things. 25 there be no improper communication.
Page 15 Page 17
The last one I did, the lawyers were the type So let's say it’s a situation where the only
of lawyers that they're all in multiple complex person in the room is the witness’ lawyer, the
litigation and have all kinds of court-set asides deponent's lawyer, and it would be so easy for that
and -- so [ understand how that can happen, that's lawyer to even inadvertently nod their head yes to
not as easy as it sounds, but I'm willing to talk signal to the witness a yes answer, even if they're
about it. doing it inadvertently, and I'm sure it would be
So everybody get together and think about what inadvertently, but the ground rules that there be no
that looks like for your own schedule. If you're in type of communication with the witness during the
complex litigation, whether the judges have already depo or outside of -- you can't talk about the
10 set aside days or weeks or hearings or -- hearings 10 merits while the witness is on the stand as well,
ll or discovery, please take a look at all that and see i and then if there comes a point in time where it's a
12 what makes sense. Not all complex cases are created 12 hybrid and then we may -- very soon at that point
13 equal, and I have had lawyers farm out certain parts 13 where it could be that we can get a very large
14 of cases to other lawyers in their firm so that they 14 conference room and we may have half the lawyers in
15 can give respect to all the different complex cases 15 person and half may be on Zoom, some may be on the
16 they have. 16 telephone, have a protocol in place.
17 Go ahead. 17 So if we're talking about socially distancing,
18 MR. BLUMBERG: All right, sir. Very good, 18 if one person wants a mask, then everybody has got
19 then. 19 to wear a mask, We want to certainly be respectful
20 If we could move to number 3 on the notice of 20 of the -- of health and -- and any other protocols
21 hearing -- that's all right, that is -- the 21 that Your Honor probably have dealt with and that
22 motion -- the style of the motion is to the conduct 22 T'm leaving out.
23 of depositions, and the major part of this deals 23 And then on the speaking objections -- and I'm
24 with the -- hopefully won't be forever, but the 24 sorry to raise that, we -- you know, it seems to be
25 world we're working with right now on these Zoom 25 more of a problem on the Zoom depositions than I saw
5 (Pages 14 - 17)
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in real life, and it's not lawyers doing things if at trial day-to-day until continued, I think, but
intentionally to be bad lawyers or to gain an unfair how do we practically do this, not even considering
advantage, it's just -- you know, they just forget if you had a deposition that didn't get finished,
because they're in a -- they may be in their home, now the lawyer can't talk to their client for six
they could be in the garage where these things -- months until we get them back on the schedule. Tell
and they forgot that, you know, if you say toa me what you think about that.
witness, okay, you can answer -- objection to the MR. BLUMBERG: Well, I think that it's okay to
form, answer if you remember, and of course, the talk to the client and say, hey, hang in there,
witness goes, I don't remember and -- or I ask a you're doing a good job, can I get you some water,
10 question, and they say, well, Counsel, I didn't 10 just relax, you're doing fine, listen closer to the
I understand your question, did you mean to say so and ll question, that type of stuff in a break, but talking
12 so, clarification. Well, it would be the witness 12 to the client about the merits of the subject matter
13 that would need to ask the clarification. We're all 13 of the deposition would not be the law and would not
14 experienced lawyers, we all know how to ask 14 be proper. It just as if -- so if your client is
15 questions, and so, you know, a standing order so -- 15 on the stand at a trial, during a break the lawyer
16 you know, just to remind us that -- you know, that 16 would not be allowed to talk about -- hey, look, you
7 there's -- to keep a level playing ficld these rules 17 gave the wrong answer, remember to say this answer,
18 exist for a reason, So that's the purpose of 18 that just wouldn't be proper.
19 this ~ of this motion, sir. 19 THE COURT: Allright. This is what I'm going
20 THE COURT: I'm going to boil down your motion 20 to do, we're going to reserve on this -- we, I'm
21 and your argument to really, I think, four to six 21 going to reserve, and ask that anybody who wants to
22 things, and I guess T'll just take them one at a 22 be heard on this, within five days, get me some
23 time and see if anybody objects. 23 authority about how I should craft -- if I'm going
24 To the extent that in this case there are 24 to craft any kind of ruling on this, what the proper
25 depositions taken in person, is there any objection 25 bounds of that are. What everybody has said sounds
Page 19 Page 21
to parties, witnesses and counsel being instructed right to me, and I don't think I've been asked to
to wear masks? Let's take that simply. Is there rule in this way in a preemptive way. So I'm going
any objection to that? Okay. So that's granted. to reserve on that idea of communication with
Two, this is -- this is a gray area, just deponents.
because some things I say are easy to say and hard Three, identification of all individuals in the
to apply. The second one would be an order physical presence of the deponent during the
prohibiting improper communication with a deponent deposition. I'm just telling you, I'm going to
that in any way concerns the merits of this case at grant that. Everybody in the deposition in that
all times during the deposition process. I can see room with the deponent will be required to identify
10 a bunch of different ways for that to go sideways. 10 themselves, and every time I say this, I'm reminded
1 So does anybody want to be heard about the terms of ll of a way that this went totally sideways.
12 that? 12 Everybody knows what they're supposed to do or
13 MR. MARCHBANK: Judge, I've got a big problem 13 they're going to have to learn how to do it right in
14 with the idea that off the record during a break I 14 this case, and I don't know which the answer is, but
15 cannot talk to my client. I don't think that's the 15 in terms of speaking objections, objection, form,
16 law. So I'm not going to agree to that unless 16 hearsay. All of these things I have seen in the
17 somebody shows me some law that says that my client 17 last 30 years and don't do them in this case.
18 can't talk to me when we're off the record. 18 Everybody is warned. If you start doing speaking
19 MR. MANGAN: Judge, this is Richard Mangan, I 19 objections when you have this many lawyers, just to
20 agree with Mr. Marchbank. I don't think that's the 20 have a hearing in a case like this over something
21 law, and so I do object to that portion of it. 21 like this costs tens of thousands of dollars, do not
22 THE COURT: [assume there's going to be 22 do it, okay? Comply with the rules or have a great
others, and that’s why I said it the way I said it. 23 reason to explain to me why you didn't comply with
24 Mr. Blumberg, tell me -- I think they're right 24 the rule objection, form, hearsay; objection, form,
25 about that. The rule does say, you know, proceed as 25 whatever.
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I'm also sensitive to the idea that if you each room, nobody's going to be able to see anyone,
don't properly preserve your objection, it may be 80,
waived. So that's why I'm telling you to do it THE COURT: He just asked for identification of
right and understand that if -- if it's one of all individuals in the presence -- physical presence
those -- any of the ones that are listed in this of the deponent during a deposition, that may not be
motion, I would find those to be violative of your possible. I don't know. I mean, it just depends
duties as a lawyer. where the camera is. You know, it could be hard. I
I stopped keeping track -- I was shocked as -- don't know -- tell me what you folks are thinking
I did basically rear-end auto insurance defense law who that might be. Give me an example that would be
10 in the early '90s, and I was trained as a commercial 10 difficult.
11 litigator my first -- clerks and my first year, and I MS. PROCKOP: Your Honor, if perhaps one of the
12 then I go into these car wreck cases and there were 12 attomeys had the witness in the room and maybe a
13 long speaking objections, and I was looking around 13 paralegal taking notes, that’s three cameras or
14 like I didn't know how to practice law. It turns 14 three people crowded on to one camera, and that's
15 out, I was the only one that was doing it the way it 15 just my query in terms of clarification, does
16 was supposed to be done. It was like the Wild West 16 whoever is present in the room have to be on camera,
17 in 1991.
Preview
Filing # 125768739 E-Filed 04/28/2021 01:43:23 PM IN THE CIRCUIT COURT OF THE 20TH JUDICIAL COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 2020-000616-CA DEBORAH COOPER BURG, by and through her Court-appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiffs, Vv. WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL, HOSPITAL; SUSAN BRUNER; ABIGAIL UTECH; NANDINI KIRI, M.D., P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP, LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.; SOVI JOSEPH; DOMINGO E. GALLIANO, JR., P.A.; DOMINGO GALLIANO, JR.; ARTURO RODRIGUEZ-MARTIN, M.D., P.L.; ARTURO RODRIGUEZ-MARTIN; MILLENNIUM PHYSICIAN GROUP, LLC d/b/a MILLENNIUM PHYSICIAN GROUP; CATHY CRISS; LIFE CARE CENTERS OF AMERICA, INC.; PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY, III, Defendants. DEFENDANTS, NANDINI KIRI, M.D. AND NANDIRI KIRI M.D., P.A.’S RESPONSE TO PLAINTIFFS’ SECOND MOTION TO COMPEL AND SUPPLEMENT COME NOW, Defendants, Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A., by and through their undersigned counsel, and as their response to Plaintiffs’ Motion to Compel Compliance with Court Order of March 9, 2021 and Motion for Assessment of Sanctions and Plaintiffs’ Supplement to same, state: 1 Plaintiffs’ counsel filed a Motion to Overrule Defendants’ Objections to Plaintiff's Supplemental Interrogatories on November 11, 2020. 2 A hearing was held regarding Plaintiff's Motion on February 23, 2021. The transcript from said hearing is attached as Exhibit A. 3 Throughout the hearing, Plaintiffs’ counsel’s concern was to learn Dr. Kiri’s personal knowledge. See e.g. Hr’g 65, Feb. 23, 2021 (“[T]he last time Dr. Kiri sees the patient, she’s not going to know what happens after that, that’s obvious, but for the time periods that Dr. Kiri is involved, we want to know from her who... is the person or persons that had the responsibility. .. If she knows, she has to tell us....” (emphasis added); see also id. at 70 (“Goodness knows what Dr. Kiri is aware of that’s not in the records that I’ve seen. She’s got knowledge to recommendations from conversations that she’s had that are not reflected in the record.”) (emphasis added). 4 At the hearing, the Honorable Judge Gentile ruled that Dr. Kiri was to answer Plaintiffs’ Supplemental Interrogatories, detailing her role in the care of the patient after June 17, 2019, if any. Id. at 65. 5 The Honorable Judge Gentile further narrowed Dr. Kiri’s responses, requiring “Dr. Kiri to file an amended response that lists whatever fact she actually knows, and she’s not required to review all the records in the case.... This will be based on her personal knowledge.” /d. at 70. 6. Accordingly, Dr. Kiri filed Amended Answers to Plaintiffs’ Supplemental Interrogatories on March 25, 2021, detailing her personal knowledge during her specific days of involvement on July 24, 2019 through July 25, 2019 and August 10, 2019 through August 12, 2019. See Exhibit B. 7 On March 26, 2021, Plaintiffs filed a Motion to Compel Defendants Nandini Kiri, MLD. and Nandini Kiri, M.D., P.A.’s Compliance with Court Order of March 9, 2021 and Motion for Assessment of Sanctions. 8 In said Motion, Plaintiffs contend Dr. Kiri failed to detail her knowledge of other persons who had responsibility during the July 23, 2019 and August 10, 2019 admissions and, rather, referred to “the generic phrases ‘general surgery;’ ‘ gastrointestinal medicine;’ and ‘bariatric providers.’”” Pl. Mot. to Compel, § 4, Mar. 26, 2021. 9. Moreover, Plaintiffs contend Dr. Kiri inappropriately failed to acknowledge her involvement on July 23, 2019, referring to the medical records in support of Plaintiff's contention that Dr. Kiri “performed a detailed History and Physical on Plaintiff.” Id. at ¥ 5. 10. In response to Plaintiffs’ Motion to Compel, the undersigned sent correspondence to Plaintiffs’ counsel on April 6, 2021, explaining Dr. Kiri’s Amended Answers demonstrated her personal knowledge, without reference to the medical records, and that Dr. Kiri was not personally involved on July 23, 2019, as a Nurse Practitioner authored the History and Physical, which was not reviewed and authenticated by Dr. Kiri until the following day, on July 24, 2019. See Exhibit C. 11. Following a telephone call with Plaintiffs’ counsel on April 8, 2021, Plaintiffs filed their Supplement to Motion to Compel Defendants’ Compliance with Court Order of March 9, 2021 and Motion for Assessment of Sanctions on April 9, 2021. 12. Despite the Courts’ limiting instructions for Dr. Kiri to respond regarding her personal knowledge during days of her specific involvement, Plaintiffs, again, attempt to broaden the scope of Dr. Kiri’s involvement to the entire July 23, 2019 and August 10, 2019 admissions, arguing that, as the admitting/attending physician, “the ‘buck’ stops with her.” See Pl. Supp. Mot., ¥ 2, Apr. 9, 2021. 13. In said Motion, Plaintiffs contend that Florida Rule of Civil Procedure 1.340 requires Dr. Kiri to respond with more than just her personal knowledge and, rather, requires her to respond with information known to her counsel. /d. at ¥| 4 (citing Fla. R. Civ. Pro. 1.340 and Dupree v. Better Way, Inc., 86 So. 2d 425 (Fla. 1956)). 14. In support of same, Plaintiffs’ cite to an Authors’ Comment from 1967, which stated, “The fact that the information needed to answer an interrogatory is within the sole knowledge of the attorney for the party is not a valid objection.” /d. (emphasis added). 1S. In Dupree v. Better Way, Inc., the Court held that names and addresses of persons known have knowledge to a Defendants’ attorney cannot be withheld as privileged or on the grounds of work product. 86 So. 2d at 426. Dupree does not apply here. Dupree involved a situation where the work product and attorney-client privilege were overruled since the identity of the witnesses’ names obtained by the attorney were not privileged. Importantly, the party seeking prohibition of the names could not obtain them from another source. Further, Plaintiffs are seeking to require the defense to go obtain information that is not required by Dupree or this Court’s directive at the prior hearing. 16. The arguments Plaintiffs originally made seeking this information sought Dr. Kiri’s knowledge. This Court specifically ruled on the issue and made a specific order. Dr. Kiri has complied with that order. Although the undersigned pointed this out to Plaintiffs’ counsel and then called and discussed it with Plaintiffs’ counsel, Plaintiffs’ counsel insisted on filing yet another motion and now requests sanctions. This Court should not condone these continued tactics and should award the defense sanctions for defending this Motion, as it lacks a good faith basis after a review of the transcript of the prior hearing. WHEREFORE, Defendants Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A. respectfully request this Court to Deny Plaintiffs’ Motion to Compel Compliance with Court Order of March 9, 2021 and Motion for Assessment of Sanctions, dated April 9, 2021 and award them sanctions for defending the baseless Motion. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 28, 2021, I electronically filed the foregoing with the Clerk of the Court using the Florida E-Portal system. I further certify that a true and correct copy hereof has been furnished to: Edward R. Blumberg, Esquire Cosme Caballero, Esquire Robert E. Blumberg, Esquire Deutsch, Blumberg & Caballero, P.A. erb@deutschblumberg.com ccaballero@deutschblumberg.com bblumberg@deutschblumberg.com rmitchell@deutschblumberg.com heastillo@deutschblumberg.com John M. Stewart, Esquire Michael J. Swan, Esquire Rossway Swan Tierney Barry & Oliver, PL jstewart@rosswayswan.com mswan@rosswayswan.com cdelo@rosswayswan.com. Frances G. Prockop, Esquire Bush, Graziano, Rice & Platter, P.A. eserve@bgrplaw.com fprockop@bgrplaw.com rmessler@bgrplaw.com Gavrila A. Brotz, Esquire Walter J. Tache, Esquire Tache, Bronis and Descalzo, P.A. gbrotz@tachebronis.com wtache@tachebronis.com service@tachebronis.com Brett Gliosca, Esquire Jeffrey M. Goodis, Esquire La Cava Jacobson & Goodis, P.A. bgliosca@ljglegal.com nkovacic@ljglegal.com stp-pleadings@LJGlegal.com Jay P. Chimpoulis, Esquire Susanne E. Reidhammer, Esquire Chimpoulis, Hunter & Lynn, P.A. Jchimpoulis@chl-law.com sriedhammer@chimpoulishunter.com Victoria N. Ferrentino, Esquire Rivver Cox, Esquire Bush, Graziano, Rice & Platter, P.A. eserve@bgrplaw.com vferrentino@bgrplaw.com dhensley@bgrplaw.com rcox@begrplaw.com Richard K. Bowers, Jr., Esquire Brandon R. Scheele, Esquire Banker, Lopez, Gassler, P.A. Service-rbowers@bankerlopez.com Service-bscheele@bankerlopez.com. Scott B. Albee, Esquire Fulmer LeRoy & Albee, PLLC salbee@fulmerleroy.com jreitz@fulmerleroy.com amitchell@fulmerleroy.com rstevens@fulmerleroy.com R. Ryan Rivas, Esquire Hall Booth Smith, PC rrivas@hallboothsmith.com ncontreras@hallbooth Ron Campbell, Esquire Daniel Calvert, Esquire, Cole Scott & Kissane, P.A. ron.campbell@ecsklegal.com daniel.calvert@csklegal.com krystal.perez@csklegal.com daniela.perez@csklegal.com /s/ Richard B. Mangan RICHARD B. MANGAN, JR., ESQUIRE Florida Bar No. 0947156 Email: rbm.service@rissman.com KELSEY T. CAMPBELL, ESQUIRE Florida Bar No.: 1011369 Email: ktc.service@rissman.com RISSMAN, BARRETT, HURT DONAHUE, McLAIN & MANGAN, P.A. 1 North Dale Mabry Highway 11th Floor Tampa, FL 33609 Telephone: (813) 221-3114 Facsimile: (813) 221-3033 Attorneys for Defendant, Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A Page 1 IN THE CIRCUIT COURT, TWENTIETH JUDICIAL CIRCUIT, IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 2020-000616 CA DEBORAH COOPER BURG, by and through her Court-appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, Plaintiffs, vs. WEST FLORIDA PHYSICIAN NETWORK, LLC; DILENDRA WEEBRASINGHE; JOHN RIOUX; 10 FAWCETT MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL; SUSAN 11 BRUNER; ABIGAIL UTECH; NANDINI KIRI, M.D., P.A.? NANDINI KIRI; HARBOR 12 MEDICAL GROUP, LLC; AHSAN KAMAL; sSOVI JOSEPH, M.D., P.A.; SOVI JOSEPH; DOMINGO 13 E. GALLIANO, JR., P.A.; DOMINGO GALLIANO, JR. ARTURO RODRIGUEZ-MARTIN, M.D., P.L.; 14 ARTURO RODRIGUEZ-MARTIN; MILLENNIUM PHYSICIAN GROUP, LLC d/b/a MILLENNIUM 15 PHYSICIAN GROUP; CATHY CRISS; LIFE CARE CENTERS OF AMERICA, INC.; PUNTA GORDA 16 MEDICAL INVESTORS, LLC d/b/a/ LIFE CARE CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN 17 SERVICES, LLC; and VANCE MALONEY, TIl, 18 Defendants. 19 PROCEEDINGS: SPECIAL SET 20 BEFORE: HONORABLE GEOFFREY GENTILE 21 DATE: TUESDAY, FEBRUARY 23, 2021 22 TIME: 1:30 P.M. - 3:02 P.M. 23 PLACE: VIDEO CONFERENCE 24 STENOGRAPHICALLY 25 REPORTED BY: LINDY ROMANOFF, COURT REPORTER Veritext Legal Solutions 800-726-7007 305-376-8800 EXHIBIT A Page 2 Page 4 1 APPEARANCES: 1 APPEARANCES: 2 EDWARDR, BLUMBERG, ESQUIRE 2 OF; Deutsch Blumberg & Caballero, P.A. RICHARD B, MANGAN, JR., ESQUIRE, 3 ‘New World Tower 3 OF: Rissman, Barrett, Hurt, Donahve & MeLain, P.A, 100 Biscayne Boulevard, Suite 2802 1 North Dale Mabry Highway, 1th Floor 4 ‘Miami, FL 33132 4 ‘Tampa, FL 33609 205) :29 Fax: (305)358-9304 (813)221-31 14 Fax: (813)221-3033 cerb@deutschblumberg.com 55 richard.mangan@rissman.com APPEARING ON BEHALF OF THE PLAINTIFF APPEARING ON BEHALF OF NANDINIKIRI, MD, 6 (Via video conference) 6 and NANDINIKIRI, MD.,P.A. 7 BRANDONR. SCHEELE, ESQUIRE (Via video conference) OF: Banker Lopez Gassler, P.A. 7 8 501 East Kennedy Boulevard, Suite 1700 SCOTTB. ALBEE, ESQUIRE ‘Tampa, FL 33602 8 OF: Fulmer LeRoy & Albee, PLLC 9 (813)21- 100 Fax: (813): 3066 5544 Central Avenue Dschoele@bankerlopez.com 9 St Petersburg, FL 33707 10 APPEARING ON BEHALF OF DILENDRA WEERASINGHE (727)217-2500Fax: (727)217-2501 (Via video conference) 10 salbee(@folmerteroy.com APPEARING ON BEHALF OF ARTURO RODRIGUEZ-MARTIN, SUSANNE E, RIEDHAMMER, ESQUIRE ul MD. PLL. and ARTURO RODRIGUEZ-MARTIN 2 OF; Chimpoulis& Hunter, P.A. (Vin video conference) 1150 South Pine Island Road, Suite 510 2 1B Plantation, FL 33324 R. RYAN RIVAS, ESQUIRE (954)463-0033 Fax: (954)463-9562 13 OF: Hall Booth Smith,P.C 4 stiedhammer@chimpoulishunter.com 2202 North West Shore Boulevard, Suite 200 APPEARING ON BEHALF OF PUNTA GORDA MEDICAL, 4 ‘Tampa, FL 33607 INVESTORS, LLC d/b/a LIFE CARE CENTER OF (813)329-3880 PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; 1s rrivas@hallboothsmith.com 16 and VANCE MALONEY, IIL APPEARING ON BEHALF OF SUSAN BRUNER. (Via video conference) 16 (Via video conference) a 17 DANIEL C. CALVERT, ESQUIRE VICTORIA N. FERRENTINO, ESQUIRE OF: Cole, Scott & Kissane, PLA. 18 OF: Bush Graziano Rice & Platter, P.A, 18 27300 Riverview Center Boulevard, Suite 200 100 South Ashley Drive, Suite 1400 Bonita Springs, FL 24134 19 ‘Tampa, FL 33602 19 (239)690-7900Fax: (239)738-7778 (813)228-7000 Fax: (813)273-0091 daniel calvert@esklegal.com 20 ‘vferrentino ilbgrplaw.com 20 APPEARING ON BEHALF OF CATHY CRISS and MILLENNIUM APPEARING ON BEHALF OF WEST FLORIDA PHYSICIAN PHYSICIAN GROUP, LLC d/bia MILLENNIUM 21 NETWORK, LLC and JOHN RIOUX 21 PHYSICIAN GROUP (Via video conference) (Via video conference) n n 2B 2B 24 Page 3 Page 5 APPEARANCES: INDEX DOUGLAS B. LUMPKIN, ESQUIRE (none) OF; Wieker Smith O'Hara MeCoy & Ford, P.A, Sarasota City Center 1819 Main Street, Suite 910 Sarasota, FL 34236 (941)366-4200Fax: (941)366-4227 dlumpkin@wiekersmith.com APPEARING ON BEHALF OF AHSAN KAMAL, MD. and HARBOR MEDICAL GROUP, LLC EXHIBITS (Via video conference) RALPH L. MARCHBANK, JR., ESQUIRE OF: Dickinson & Gibbons, P.A. (none) ‘401 North Cattlemen Road, Suite 300 Sarasota, FL 34232 10 (941)366-4680Fax: (941)953-3136 marchbank@dglawyers.com 10 ul APPEARING ON BEHALF OF DOMINGO BE. GALLIANO, JR. and DOMINGO GALLIANO, IR., P.A, 11 2 (Via video conference) B BRETTP, GLIOSCA, ESQUIRE 12 OF: La Cava Jacobson & Goodis 13 4 200 Central Avenue, Suite 250 St, Petersburg, FL 33701 14 Is (813)209-9611 Fax: (727)550-0811 15 baliosca@iglegal com 16 APPEARING ON BEHALF OF SOVI JOSEPH, M.D.,P.A. 16 and SOVI JOSEPH 17 "0 (Via video conference) 18 FRANCES G. PROCKOP, ESQUIRE 18 OF: Bush, Graziano, Rice and Platter, P.A. 19 19 100 South Ashley Drive, Suite 1400 ‘Tampa, FL 33602 20 20 (813)228-7000 Sprockop@iberplaw.com 21 at APPEARING ON BEHALF OF FAWCETT MEMORIAL. 22 HOSPITAL, INC. and ABIGAIL UTECH; 2 (Via video conference) 23 23 24 24 25 25 2 (Pages 2 - 5) Veritext Legal Solutions EXHIBIT A 800-726-7007 305-376-8800 Page 6 Page 8 PROCEEDINGS MR. MANGAN: Yes, this is Richard Mangan on seeeeeee behalf of Dr. Kiri. THE COURT: Burg versus West Florida Physician THE COURT: Thank you. Network and many others, it's 20-CA-616. Assuming And then Harbor Medical Group, LLC. that the -- one of the motions has done the math MR. LUMPKIN: Yes, Your Honor. This is Douglas right, [understand we have three plaintiffs, 22 Lumpkin on behalf of Harbor Medical Group as well as defendants and 13 different law firms, so people are Dr. Kamal. still coming in. THE COURT: Okay. I went through -- I saved my notebooks for our MR. SCHEELE: This is Attorney Brandon Scheele, 10 last hearing and all my notes from the last hearing. 10 for Dr. Weerasinghe. We were second in the pleading I I just keep them on a shelf. It seems like this is I that I have. 12 the kind of case that justifies that. Ifyou were 12 THE COURT: Oh, sure, sure. I'm sorry, somehow 13 in my office, you would see I have three stand-up 13 I skipped over you. Tell me your name again. 14 desks that have nothing on them. I try and keep the 14 MR. SCHEELE: Brandon Scheele, S-C-H-E-E-L-E, 15 desks clear, but your case requires that I save some 15 for Dr. Weerasinghe. 16 ofthis stuff to avoid having to get up to speed 16 THE COURT: Thank you. I'm using my notes from. 7 every time. 7 the pleading from the last hearing and I colored 18 T'm going to start with introductions and then 18 over it so much that I crossed some -- I missed you. 19 about 30 or 40 minutes when we finish with the 19 Lapologize. 20 introductions of counsel, we'll start with the 20 Next is -- this is Sovi Joseph. 21 motions. 21 MR. GLIOSCA: Good afternoon, Your Honor. 22 Go ahead with plaintiff first. 22 Brett Gliosca on behalf of Dr. Joseph. 23 MR. BLUMBERG: Good afternoon, Your Honor, Ed 23 THE COURT: Thank you. 24 Blumberg, and I represent the -- actually, John 24 Next I think is Domingo Galliano, Jr., P.A. 25 Stewart is co-counsel for -- represents the 25 MR. MARCHBANK: Your Honor, this is Ralph Page 7 Page 9 guardian. I don't know that he'll be joining us Marchbank, I represent Dr. Galliano and the P.A. today, but I don't think he's on with us. THE COURT: Thank you. THE COURT: Allright. And I don’t know if Punta Gorda Medical Investors, LLC, d/b/a Life it's best for everybody if we take appearances as Care Center Punta Gorda. you appear in the pleadings. I think that is the MS. RIEDHAMMER: Good aftemoon, Your Honor. simplest way to avoid having to talk over one Susanne Riedhammer on behalf of Punta Gorda, also on another. behalf of Life Care Physician Services and The first on I have West Florida Physician Dr. Maloney. Network, LLC. THE COURT: Oh, terrific. 10 MS. FERRENTINO: Yes, Your Honor. Good 10 Did I miss anybody? 1 afternoon. Victoria Ferrentino on behalf of West i MR. BLUMBERG: Your Honor, there was a -- two 12 Florida and Dr. John Rioux. 12 other defendants, Millennium Physician Group and 13 THE COURT: Thank you. And it's R-I-O-U-X? 13 Cathy Criss, Dr. Cathy Criss, C-R-I-S-S. 14 MS. FERRENTINO: Yes, sir. 14 THE COURT: Mr. Albee, who do you represent? 15 THE COURT: Thank you. 15 MR. ALBEE: Well, according to Mr. Blumberg, if 16 And then next is Fawcett Memorial Hospital, 16 I'm out of the case, I will accept that notice of 17 d/b/a Fawcett Memorial Hospital. 17 dismiss, Your Honor, but I represent Arturo 18 MS. PROCKOP: Good afternoon, Your Honor. Fran 18 Rodriguez-Martin and his associated professional 19 Prockop on behalf of the hospital. 19 practice. 20 THE COURT: Thank you. 20 THE COURT: Okay. My guess is that the reason 21 Next is Abigail Utech. 21 Thad skipped you folks is you're not listed -- I 22 MS. PROCKOP: And Fran Prockop also on behalf 22 just missed the first doctor that we talked about, of Ms. Utech. 23 but I had missed -- there's just -- that entity 24 THE COURT: Okay. And next is Nandini Kiri, 24 isn't listed in the old pleading that I'm using. So 25 M.D. 25 tell me the name again. 3 (Pages 6 - 9) Veritext Legal Solutions 800-726-7007 EXHIBIT A 305-376-8800 Page 10 Page 12 MR. ALBEE: Arturo, A-R-T-U-R-O, Rodriguez, THE COURT REPORTER: Thank you. common spelling, Martin, M-A-R-T-I-N, medical THE COURT: All right. And to save your hands doctor, and his practice is of the same name with being cramped up today, please, folks, if I see -- some alphabet after it. if there's no objection, just remain silent. By the THE COURT: Thank you. time we go 4, 8, 12, 16 -- even accounting for court Did I miss anyone else? personnel, it's 12 to 15 people to say no objection. MR. CALVERT: Yes, Your Honor. This is Daniel So if I say -- I'm going to try to ask questions, if Calvert on behalf of Millennium Physician Group and there's no -- so you don't have to respond. You're Dr. Criss. not required to say you have no objection. 10 THE COURT: What's the doctor's name? 10 For the first motion, is there any objection to I MR. CALVERT: Dr. Cathy Criss. I me designating this case complex? All right. Some 12 THE COURT: Is it K or C? 12 people have themselves on mute so I'm just looking 13 MR. CALVERT: WithaC. 13 around to make sure I'm not missing anybody. 14 THE COURT: All right. Have we got everybody 14 So Mr. Blumberg's motion to have the case 15 now? 15 designated as complex is granted, And you know what 16 MR. RIVAS: Ryan Rivas on behalf of Susan 16 that means, we're going to have to set up some 7 Bruner. 7 regular meetings and other things. 18 THE COURT: You are like in a bucket. 18 So Mr. Blumberg, do you want to address any of 19 Mr. Rivas, who do you represent? 19 that now? 20 MR. RIVAS: Susan Bruner. 20 MR. BLUMBERG: Well, it -- the Court's rule, as 21 THE COURT: You're very low, slash, garble -- 21 you just indicated, you know, requires within 60 22 not really garbled, just like you're way away from. 22 days initial case management conference and -- and 23 your microphone, What's the name of your client? 23 then 20 days before that -- at least 20 days before, 24 MR. RIVAS: Susan Bruner, B-R-U-N-E-R. 24 the lawyers will be meeting and preparing a joint 25 THE COURT: Thank you. 25 statement, a discovery plan and the like, and -- and Page 11 Page 13 Anyone else? there's other things that go into that. Allright. Mr. Blumberg, the third amended With Your Honor's permission, what I'll do, if notice of special set hearing is what I worked from it's okay, is to have our -- my assistant get dates in my preparation; is that a fair place to start? from your judicial assistant, clear them with all MR. BLUMBERG: Yes, Your Honor. the other lawyers for the case management THE COURT: Is there any reason that we conference, we'll meet -- we'll meet and confer to shouldn't just start from the top with numbered prepare the initial case management report. We had motion 1, plaintiffs’ motion to determine case tried to do that once before, not quite successful, complex? but take another stab at it and -- and so we will 10 MR. BLUMBERG: That would be fine, sir. 10 abide by that rule. I'll check the local rules, i THE COURT: Is there any objection to me i make sure we abide by the local rules too. So if 2 designating this case as a complex case? 12 that's all right, Your Honor. 13 MR. MARCHBANK: Not from Attorney Marchbank on 13 The number 2 item on our -- 14 behalf of Dr. Galliano. 14 THE COURT: So motion is granted. Please do 15 THE COURT: I didn't even ask, do we have a 15 that, get a date for approximately 60 days from now 16 court reporter that we need to be careful for today? 16 from Cheryl so that we can have that hearing, and 17 THE COURT REPORTER: Yes. 17 Tl tell my case manager too because she tracks the 18 THE COURT: I see Lindy’s computer, what's your 18 complex things. 19 last name? 19 I'll make sure to tell Cheryl, if you can send 20 THE COURT REPORTER: Romanoff, R-O-M-A-N-O-F-F. 20 out an email to our case management to let them know 21 THE COURT: Ms. Romanoff, if you have any 21 that this has been designated complex and to keep 22 difficulty making a record, I didn't ask this 22 track of it. 23 earlier, I apologize, if you'll just waive and stop 23 Go ahead, Mr. Blumberg. 24 us, Pll make sure we go back and make a good 24 MR. BLUMBERG: All right. Yes, Your Honor. 25 record. 25 Thank you, sir. The number 2 item on the notice of 4 (Pages 10 - 13) Veritext Legal Solutions 800-726-7007 EXHIBIT A 305-376-8800 Page 14 Page 16 hearing, I think will get resolved in the course of depositions -- and [ don't know if Your Honor has our meeting to prepare for the initial case had this come up before, but here's some of the management conference. This was -- as Your Honor issues that -- that we've seen that we ask Your sees, was a motion to have a date set aside for Honor to address. depositions and hearing time. First of all, I assume some of the initial We have a number of depositions scheduled, and depositions will be just totally by Zoom, where we'll work -- continue to work together, and then there's no one in the room but the witness, and of we'll address this, if it's all right with you, Your course, the witness would be by himself, have his or Honor, with -- at our initial case management her mask off. If -- on the other hand, if someone 10 conference. I think it might make sense to do it 10 else is going to be in the room, we would want to 11 then, now that it's been declared complex. I know who that person is. We would like to -- I 12 THE COURT: That does make sense, and 12 think we all would want to know, the lawyers would 13 understand that I'm willing to work with everybody 13 want the person or persons identified who's in the 14 and let everybody have their say about when that is, 14 room, that -- that there would -- that whoever is in 15 but I traditionally have done two things in cases 15 the room be on the Zoom camera the whole time so we 16 like this; one, giving you a standing hearing time 16 can all see that person, that there be no improper 17 every month of a certain date, at a certain time, 7 communication. 18 for a certain amount of time that we think makes 18 Now -- and I do want to say, Your Honor, I'm 19 sense across -- either all or most of the lawyers so 19 not cynical and am not casting any aspersions on any 20 that you have hearing time and you don't have to 20 lawyer. I mean, lawyers are honest and would not do 21 coordinate amongst more than a dozen law firms, and 21 anything improper, but sometimes in the heat of the 22 I'm willing to set aside, on your behalf, discovery 22 moment, it's easy to -- sometimes people get 23 time, whether it's a day or a week or whatever it 23 overzealous and forget. We found it's good to have 24 is, every month or quarter, We'll talk about that, 24 a ground rule to prevent that from happening so that 25 but I'm willing to do both of those things. 25 there be no improper communication. Page 15 Page 17 The last one I did, the lawyers were the type So let's say it’s a situation where the only of lawyers that they're all in multiple complex person in the room is the witness’ lawyer, the litigation and have all kinds of court-set asides deponent's lawyer, and it would be so easy for that and -- so [ understand how that can happen, that's lawyer to even inadvertently nod their head yes to not as easy as it sounds, but I'm willing to talk signal to the witness a yes answer, even if they're about it. doing it inadvertently, and I'm sure it would be So everybody get together and think about what inadvertently, but the ground rules that there be no that looks like for your own schedule. If you're in type of communication with the witness during the complex litigation, whether the judges have already depo or outside of -- you can't talk about the 10 set aside days or weeks or hearings or -- hearings 10 merits while the witness is on the stand as well, ll or discovery, please take a look at all that and see i and then if there comes a point in time where it's a 12 what makes sense. Not all complex cases are created 12 hybrid and then we may -- very soon at that point 13 equal, and I have had lawyers farm out certain parts 13 where it could be that we can get a very large 14 of cases to other lawyers in their firm so that they 14 conference room and we may have half the lawyers in 15 can give respect to all the different complex cases 15 person and half may be on Zoom, some may be on the 16 they have. 16 telephone, have a protocol in place. 17 Go ahead. 17 So if we're talking about socially distancing, 18 MR. BLUMBERG: All right, sir. Very good, 18 if one person wants a mask, then everybody has got 19 then. 19 to wear a mask, We want to certainly be respectful 20 If we could move to number 3 on the notice of 20 of the -- of health and -- and any other protocols 21 hearing -- that's all right, that is -- the 21 that Your Honor probably have dealt with and that 22 motion -- the style of the motion is to the conduct 22 T'm leaving out. 23 of depositions, and the major part of this deals 23 And then on the speaking objections -- and I'm 24 with the -- hopefully won't be forever, but the 24 sorry to raise that, we -- you know, it seems to be 25 world we're working with right now on these Zoom 25 more of a problem on the Zoom depositions than I saw 5 (Pages 14 - 17) Veritext Legal Solutions 800-726-7007 EXHIBIT A 305-376-8800 Page 18 Page 20 in real life, and it's not lawyers doing things if at trial day-to-day until continued, I think, but intentionally to be bad lawyers or to gain an unfair how do we practically do this, not even considering advantage, it's just -- you know, they just forget if you had a deposition that didn't get finished, because they're in a -- they may be in their home, now the lawyer can't talk to their client for six they could be in the garage where these things -- months until we get them back on the schedule. Tell and they forgot that, you know, if you say toa me what you think about that. witness, okay, you can answer -- objection to the MR. BLUMBERG: Well, I think that it's okay to form, answer if you remember, and of course, the talk to the client and say, hey, hang in there, witness goes, I don't remember and -- or I ask a you're doing a good job, can I get you some water, 10 question, and they say, well, Counsel, I didn't 10 just relax, you're doing fine, listen closer to the I understand your question, did you mean to say so and ll question, that type of stuff in a break, but talking 12 so, clarification. Well, it would be the witness 12 to the client about the merits of the subject matter 13 that would need to ask the clarification. We're all 13 of the deposition would not be the law and would not 14 experienced lawyers, we all know how to ask 14 be proper. It just as if -- so if your client is 15 questions, and so, you know, a standing order so -- 15 on the stand at a trial, during a break the lawyer 16 you know, just to remind us that -- you know, that 16 would not be allowed to talk about -- hey, look, you 7 there's -- to keep a level playing ficld these rules 17 gave the wrong answer, remember to say this answer, 18 exist for a reason, So that's the purpose of 18 that just wouldn't be proper. 19 this ~ of this motion, sir. 19 THE COURT: Allright. This is what I'm going 20 THE COURT: I'm going to boil down your motion 20 to do, we're going to reserve on this -- we, I'm 21 and your argument to really, I think, four to six 21 going to reserve, and ask that anybody who wants to 22 things, and I guess T'll just take them one at a 22 be heard on this, within five days, get me some 23 time and see if anybody objects. 23 authority about how I should craft -- if I'm going 24 To the extent that in this case there are 24 to craft any kind of ruling on this, what the proper 25 depositions taken in person, is there any objection 25 bounds of that are. What everybody has said sounds Page 19 Page 21 to parties, witnesses and counsel being instructed right to me, and I don't think I've been asked to to wear masks? Let's take that simply. Is there rule in this way in a preemptive way. So I'm going any objection to that? Okay. So that's granted. to reserve on that idea of communication with Two, this is -- this is a gray area, just deponents. because some things I say are easy to say and hard Three, identification of all individuals in the to apply. The second one would be an order physical presence of the deponent during the prohibiting improper communication with a deponent deposition. I'm just telling you, I'm going to that in any way concerns the merits of this case at grant that. Everybody in the deposition in that all times during the deposition process. I can see room with the deponent will be required to identify 10 a bunch of different ways for that to go sideways. 10 themselves, and every time I say this, I'm reminded 1 So does anybody want to be heard about the terms of ll of a way that this went totally sideways. 12 that? 12 Everybody knows what they're supposed to do or 13 MR. MARCHBANK: Judge, I've got a big problem 13 they're going to have to learn how to do it right in 14 with the idea that off the record during a break I 14 this case, and I don't know which the answer is, but 15 cannot talk to my client. I don't think that's the 15 in terms of speaking objections, objection, form, 16 law. So I'm not going to agree to that unless 16 hearsay. All of these things I have seen in the 17 somebody shows me some law that says that my client 17 last 30 years and don't do them in this case. 18 can't talk to me when we're off the record. 18 Everybody is warned. If you start doing speaking 19 MR. MANGAN: Judge, this is Richard Mangan, I 19 objections when you have this many lawyers, just to 20 agree with Mr. Marchbank. I don't think that's the 20 have a hearing in a case like this over something 21 law, and so I do object to that portion of it. 21 like this costs tens of thousands of dollars, do not 22 THE COURT: [assume there's going to be 22 do it, okay? Comply with the rules or have a great others, and that’s why I said it the way I said it. 23 reason to explain to me why you didn't comply with 24 Mr. Blumberg, tell me -- I think they're right 24 the rule objection, form, hearsay; objection, form, 25 about that. The rule does say, you know, proceed as 25 whatever. 6 (Pages 18 - 21) Veritext Legal Solutions 800-726-7007 EXHIBIT A 305-376-8800 Page 22 Page 24 I'm also sensitive to the idea that if you each room, nobody's going to be able to see anyone, don't properly preserve your objection, it may be 80, waived. So that's why I'm telling you to do it THE COURT: He just asked for identification of right and understand that if -- if it's one of all individuals in the presence -- physical presence those -- any of the ones that are listed in this of the deponent during a deposition, that may not be motion, I would find those to be violative of your possible. I don't know. I mean, it just depends duties as a lawyer. where the camera is. You know, it could be hard. I I stopped keeping track -- I was shocked as -- don't know -- tell me what you folks are thinking I did basically rear-end auto insurance defense law who that might be. Give me an example that would be 10 in the early '90s, and I was trained as a commercial 10 difficult. 11 litigator my first -- clerks and my first year, and I MS. PROCKOP: Your Honor, if perhaps one of the 12 then I go into these car wreck cases and there were 12 attomeys had the witness in the room and maybe a 13 long speaking objections, and I was looking around 13 paralegal taking notes, that’s three cameras or 14 like I didn't know how to practice law. It turns 14 three people crowded on to one camera, and that's 15 out, I was the only one that was doing it the way it 15 just my query in terms of clarification, does 16 was supposed to be done. It was like the Wild West 16 whoever is present in the room have to be on camera, 17 in 1991.