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Filing # 136212814 E-Filed 10/08/2021 02:51:17 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2017-CA-000174 MP
TODD COPELAND, Esquire, as Guardian
Ad Litem for J.C. a minor, and as Trustee
of the J.C. Special Needs Trust, ASHLEY
CALZADA and JUAN L. CALZADA,
individually and on behalf
of J.C., a minor,
Plaintiffs,
Vv.
OSCEOLA REGIONAL HOSPITAL
d/b/a/ OSCEOLA REGIONAL MEDICAL
CENTER, ERIK FRENDAK, CRNA.,
OSCEOLA OB/GYN, MICHAEL R.
DENARDIS, D.O., OB HOSPITALIST
GROUP, LLC., EZER A. OJEDA, M.D.,
OSCEOLA ANESTHESIA
ASSOCIATES, PL., RODNEY DEL
VALLE, M.D., PEDIATRIX MEDICAL
GROUP, INC., PEDIATRIX MEDICAL
GROUP OF FLORIDA, INC., MEDNAX,
INC., JOSE I. GIERBOLINI, M.D., JOHN
LONGHI, M_D., HCA, INC., HCA
HEALTH SERVICES OF FLORIDA,
INC., AND HCA HEALTHCARE
SERVICES-FLORIDA, INC.,
Defendants.
/
PLAINTIFFS’ MOTION TO RE-OPEN DEPOSITION OF
KIMBERLY SHANTZ, TO DEPOSE DAVID S. NELSON AND
JOHN D. EMMANUEL, AND FOR COSTS
COME NOW, Plaintiffs, TODD COPELAND, Esquire, as Guardian Ad Litem for J.C., a
minor, and as Trustee of the J.C. Special Needs Trust, ASHLEY CALZADA and JUAN L.
CALZADA, individually and on behalf of J.C., a minor, by and through the undersigned counsel,
hereby move this Honorable Court for an Order permitting Plaintiffs to Re-Open the Deposition
of Kimberly Shantz along with the depositions of Davis S. Nelson, Esquire, Attorney for
Defendant, OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL
CENTER, and John D. Emmanuel, Esquire, Attorney for Defendants, HCA, INC., HCA
HEALTHCARE SERVICES OF FLORIDA, INC., AND HCA, and for Costs, and in support states
as follows:
1 On August 27, 2021, Plaintiff took the video deposition of Kimberly Shantz (hereafter
“Ms. Shantz”) via Zoom.
Ms. Shantz is an employee of the movant, HCA, Inc. (hereafter “HCA”). She is also
the corporate representative to testify at deposition for Osceola Regional Medical
Center (hereafter “ORMC”). See Exhibit A, Deposition Transcript of Kimberly Shantz,
T. 8.
During her August 27, 2021 video deposition, Ms. Shantz testified in response to
several questions about the role and relationship that HCA played with the Osceola
Regional Medical Center. When directly asked in her direct testimony “does HCA own
and operate Osceola Regional Hospital?” Ms. Shantz simply answered “yes,” twice,
thus confirming that HCA does own and operate ORMC. Ex. A, 10.
Neither HCA’s nor ORMC’s attorneys attempted to question Ms. Shantz with regard
to the ownership and operation of ORMC during her deposition testimony. Ex. A.
On September 15, 2021, Ms. Shantz signed the attached errata sheet with significant
changes in direct contradiction of her sworn deposition testimony. All of these
significant changes seek to entirely change her previous testimony about the role of
HCA, Inc. as the owner and operator of ORMC. Ms. Shantz seeks to completely alter
her previous testimony by changing her two “yes” answers to “Yes. I understand that
according to AHCA Agency for Health Care Administration, Osceola Regional
Medical Center, Inc. an affiliate of HCA, Inc. owns and operates Osceola Regional
Medical Center.” See Exhibit B, Errata Sheet of Kimberly Shantz. These significant
changes are clearly in response to the Response in Opposition to Defendant’s Motion
for Summary Judgment filed by Plaintiffs two (2) days prior to the filing of the errata
sheet.
Well-established case law holds that when a witness makes changes to her deposition
testimony a party may re-open the deposition to inquire about the changes. Feltner v.
Internationale Nederlanden Bank, 622 So.2d 123 (4DCA 1993) and Motel 6 v.
Dowling, 595 So.2d 260 (1st DCA 1992). While the attorney-client privilege must be
respected, the facts and circumstances of the consultation may be brought out. “Counsel
could have asked questions which were made necessary by the changed answers,
questions about the reasons the changes were made, and questions about where the
changes originated, whether with the deponent or his attorney.” Dowling.
The Florida Supreme Court has also held that the deposition testimony and the errata
sheet are admissible at trial. Dowling and Pena v. Design Build Interamerican, Inc.,
132 So.3d 1179 states: “Two months after his deposition was taken, Joel Gonzalez
changed this testimony in an errata sheet prepared two months after his deposition, in
which he stated that Zambrana was employed by Royal Plumbing, not One Stop
Plumbing. Of course, both the deposition testimony and the errata sheet itself constitute
admissible evidence. Motel 6, Inc. v. Dowling, 595 So.2d 260 (Fla. 1st DCA 1992).”
Pena vy. Design Build Interamerican, Inc., 132 So.3d 1179. Citing Motel 6 v. Dowling,
595 So.2d 260 (1st DCA 1992).
Further, “[i]t is well-established Florida law that a party may not rely on an affidavit
that contradicts or repudiates prior deposition testimony simply to defeat a motion for
summary judgment.” Baker v. Airguide Mfg., LLC, 151 So.2d 38 (Fla. 3d DCA 2000).
Citing Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). Here, Plaintiffs dispute that
Ms. Shantz’s errata sheet in-fact alters her prior testimony and opinion that HCA, Inc.
owns and operates Osceola Regional Medical Center (hereafter “ORMC”).
A more recent case from 2020, Dungan v. Memorial Health Systems, Inc., --- So.3d --
-- (Fla. 5th DCA 2020), expanded on Dowling’s establishment of the fact that “[o]nce
the changes are made, they become a part of the deposition just as if the deponent gave
the testimony while being examined, and they can be read at trial just as any other part
of the deposition is subject to use at trial.” Motel 6, Inc. v. Dowling, 595 So. 2d 260
(Fla. lst DCA 1992). Dungan furthered this decision by stating, “[t]he original and
changed answers can also be used to cross-examine and to impeach Dr. Weldon at
trial.” See Motel 6, Inc. v. Dowling, 595 So. 2d 260 (Fla. 1st DCA 1992); Dungan v.
Memorial Health Systems, Inc., --- So.3d ---- (Fla. 5th DCA 2020).
10. In Usiak v. New York Tank Barge Company, 299 F.2d 808 (2d Cir. 1962), it was
established that “[t]rial court should have permitted introduction of plaintiff's original
answer to question on deposition although an answer was subsequently changed,
because the original answer was an admission, but failure to admit such answer was
not prejudicial.” Usiak v. New York Tank Barge Company, 299 F.2d 808 (2d Cir. 1962).
11. Again, it is well-established case law that “[a]fter witness changes deposition
testimony, original answer to deposition question will remain part of record and can be
read at trial since there is no requirement that original answers be stricken, even when
changes are made. Fed. Rules Civ. Proc. rule 30(e), 28 U.S.C.A.” Lugtig v. Thomas, 89
F.R.D. 639, 642 (N.D.III.1981). If those changes made in the deposition make it
“incomplete or useless without further testimony, party who took deposition can reopen
examination... wherein defendant made numerous changes in his deposition testimony,
since it was defendant’s actions which would necessitate reopening examination of
defendant, costs and attorney fees connected with continued deposition, should plaintiff
require reopening of deposition, would be borne by defendant. Fed. Rules Civ. Proc.
rule 30(e), 28 U.S.C.A.” Id.
12. In Lugtig, the District Court held:
[T]he defendant was allowed to change his deposition testimony; however,
since the defendant made the changes on correction sheets appended to the
transcript, not the original deposition, and the changes were made by the
defendant, not the court reporter, the deposition was required to be amended
at the defendant’s expense so that the original answer, the changed answer
and the reason for the change would appear after every question affected by
the changes, and, further, if any of the changes rendered the deposition
incomplete or useless without further testimony, the plaintiff was entitled to
reopen the examination and the costs and attorney fees connected with the
continued deposition would be borne by the defendant.
Td.
13. In Lugtig, the District Court finds that “[p]olicy also supports that conclusion,”
through:
The witness who changes his testimony on a material matter between the
giving of his deposition and his appearance at trial may be impeached by
his former answers, and the cross-examiner and the jury are likely to be
keenly interested in the reasons he changed his testimony. There is no
apparent reason why the witness who changes his mind between the giving
of the deposition and its transcript should stand in any better case.
Wright & Miller, Federal Practice and Procedure, § 2118; Id.
14. Further, “[i]t is well-established Florida law that a party may not rely on an affidavit
that contradicts or repudiates prior deposition testimony simply to defeat a motion for
summary judgment.” Baker v. Airguide Mfg., LLC, 151 So.2d 38 (Fla. 3d DCA 2000).
Citing Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). Here, Plaintiffs dispute that
Ms. Shantz’s errata sheet in-fact alters her prior testimony and opinion that HCA, Inc.
owns and operates Osceola Regional Medical Center (hereafter “ORMC”).
1S The decision by the Court in Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954)
supports this by stating: “[a] party when met by a motion for summary judgment should
not be permitted by his own affidavit, or by that of another, to baldly repudiate his
previous deposition so as to create a jury issue, especially when no attempt is made to
exclude or explain the discrepancy.” Ellison v. Anderson, 74 So.2d 680, 681 (Fla. 1954).
16 In Lesnik v. Duval Ford, LLC, 185 So.3d 577 (Fla. Dist. Ct. App. 2016), the First DCA
affirmed the trial court’s ruling to strike an expert affidavit filed on the eve of a hearing
on summary judgment because the affidavit was “irreconcilably inconsistent” with the
expert’s prior deposition testimony. Lesnik v. Duval Ford, LLC, 185 So.3d 577 (Fla.
Dist. Ct. App. 2016). Lesnik, involved an action against, inter alia, a car dealership,
after a truck, lifted by after-market modifications, caused a single car accident. /d. The
plaintiff retained expert, Alan Moore, P.E., who testified during his deposition that he
had no opinions regarding any conduct by the dealership or its individual owner causing
the accident. Jd. at 579. Consequently, the dealership and its individual owner filed
motions for summary judgment. Id. After the filing of the motions, the plaintiff
submitted an affidavit by the expert, Mr. Moore, raising several facts and allegations
of negligence against both the dealership and its owner. The trial court struck the
affidavit as “irreconcilably inconsistent with his earlier deposition testimony without
any explanation for the inconsistency.” Citing to Ellison v. Anderson, 74 So. 2d 680,
681 (Fla. 1954) (“a litigant when confronted with an adverse motion for summary
judgment, may not contradict or disavow prior sworn testimony with contradictory
sworn affidavit testimony.”).
17 Likewise, in Baker, the Third DCA upheld the trial court’s order refusing to consider
plaintiff's affidavit and errata sheet to plaintiff's deposition which the court noted were
made in an attempt to create a factual dispute to avoid summary judgment. The Third
DCA reasoned:
[I]n this case, Baker testified in a sworn deposition that Airguide had nearly
complete control over her everyday work activities and that Pacesetter
merely provided paycheck. Then, curiously, nearly four months after her
deposition and only two days before the summary judgment hearing,
Baker filed her affidavit and errata sheet to state that she checked in with
Pacesetter every morning, that Pacesetter supervisors often checked on her
at Airguide, and that Airguide had limited authority to direct her work,
determine her hours, or terminate her. These statements clearly contradict
Baker's deposition testimony, and they evidence an attempt on Baker's
part to contravene her prior testimony and create a factual dispute
regarding Airguide's ability to control her workplace conduct—one of the
main factors considered under the ‘borrowed servant’ doctrine.
Id. (emphasis added).
18. The testimony produced in the errata sheet arguably creates a question of fact as to Ms.
Shantz’s reliability. Considering the timing of the above filing, clearly in response to
Plaintiffs’ Response in Opposition to Defendant, HCA, Inc.’s Amended and Restated
Motion for Summary Judgment and Incorporated Motion to Strike Defendant’s Motion
for Summary Judgment Evidence, Defendant clearly chose only now to produce the
errata sheet in order to artificially create a question of fact where none exists — nor has
existed until Plaintiffs’ motion was filed. Thus, this errata sheet was completed and
produced in bad faith, for the sole purpose of altering this Court’s prospective ruling
on summary judgment.
WHEREFORE, Plaintiffs, TODD COPELAND, Esquire, as Guardian Ad Litem for J.C.,
a minor, and as Trustee of the J.C. Special Needs Trust, ASHLEY CALZADA and JUAN L.
CALZADA, individually and on behalf of J.C., a minor, respectfully request this Court for an
Order compelling the Defendants to provide not only Ms. Shantz for the re-opened deposition, but
also both her attorney, David S. Nelson, and the attorney for Defendant, HCA, Inc., John D.
Emmanuel, for depositions of their own, with all costs and fees for the deposition going to these
defendants, in order to determine how these significant and inconsistent changes occurred. Or in
the alternative, the Court should strike the errata sheet.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing has been electronically
filed with the Clerk of the Court by using the Florida Courts E-Filing Portal and furnished via
electronic mail to all counsel on the service list below, this 8th day of October, 2021.
/s/ Carlos R. Diez-Arguelles
Carlos R. Diez-Arguelles
FBN: 0500569
DIEZ-ARGUELLES & TEJEDOR
505 North Mills Avenue
Orlando, Florida 32803
Telephone: (407) 705-2880
Attorney for Plaintiffs
mail@theorlandolawyers.com
leah@theorlandolawyers.com
SERVICE LIST
Thomas E. Dukes, III, Esquire
McEwan, Martinez & Dukes, P.A.
108 East Central Boulevard
Orlando, Florida 32801
NOS@mmdorl.com; tdukes@mmdorl.com; rosborne@mmdorl.com
Attorneys for Defendants, Eric Frendak, CRNA, Rodney Del Valle, M.D. and
Osceola Anesthesia Associates, PL
Pierre J. Seacord, Esquire
Henry, Seacord, & Justice, P.A.
200 South Orange Ave, Suite 2850
Orlando, FL 32801
service-seacord@bsj-law.com; service-lopez@pbsj-law.com
Attorneys for Defendants, Osceola OB/GYN and Michael R. Denardis, D.O.
Eric F. Ochotorena, Esquire
Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.
1 North Dale Mabry Highway, 11th Floor
Tampa, FL 33609
Email: efo.service@rissman.com; cmb.service@rissman;
Attorneys for OB Hospitalist Group, LLC., Ezer A. Ojeda, M.D.
Patrick H. Telan, Esquire
Ketcham, Eide, Telan, Meltz, & Wallace, P.A.
Post Office Box 538065
Orlando, Florida 32853-8065
phtelan@ketmw.com, enotice@ ketmw.com, cboals@ ketmw.com
Attorneys for Pediatrix Medical Group, INC., Pediatrix Medical Group of Florida, INC.,
Mednax, INC., Jose I. Gierbolini, M.D. and Juan Longhi, M.D.
David S. Nelson, Esquire
LaCava, Jacobson, & Goodis, P.A.
501 East Kennedy Blvd., Suite 1250
Tampa, FL 33602
DNelson@LJGlegal.com; LNader@LJGlegal.com
Co-Counsel for Defendant, Osceola Regional Hospital d/b/a Osceola Regional Medical Center
John D. Emmanuel, Esquire
Buchanan, Ingersoll, & Rooney, PC
401 East Jackson Street, Suite 2400
Tampa, FL 33602
john.emmanuel@bipe.com
Attorneys for Defendants HCA, Inc.., HCA Healthcare Services Of Florida, Inc. And HCA
Healthcare Services-Florida, Inc.
Paul R Borr, Esq.
Tache’ Bronis Christianson & Descalzo, P.A.
150 SE 2nd St., Suite 600
Miami, FL 33131
pborr@tachebronis.com; service@tachebronis.com
Co-Counsel for Osceola Regional Hospital d/b/a Osceola Regional Medical
10
Exhibit A
COPY
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO.: 2017-CA-000174 MP
TODD COPELAND, ESQUIRE, AS GUARDIAN
AD LITEM FOR JARIEL CALZAD, A MINOR,
ASHLEY CALZADA AND JUAN L.
CALZADA, INDIVIDUALLY AND ON BEHALF OF
JARIEL CALZADA, A MINOR,
PLAINTIFFS,
Vs.
OSCEOLA REGIONAL HOSPITAL
D/B/A/ OSCEOLA REGIONAL MEDICAL
CENTER, ERIK FRENDAK, CRNA.,
OSCEOLA OB/GYN, MICHAEL R.
DENARDIS, D.O., OB HOSPITALIST
a
10 GROUP, LLC., EZER A. OJEDA, M.D.,
OSCEOLA ANESTHESIA
11 ASSOCIATES, PL., RODNEY DEL
VALLE, M.D., JMJ FAMILY PRACTICE,
12 INC., JOSE RAMON FERNANDEZ,
t
M.D., PEDIATRIX MEDICAL GROUP,
13 INC., PEDIATRIX MEDICAL GROUP
°
OF FLORIDA, INC., MEDNAX, INC.,
Zz
14 JOSE I. GIERBOLINI, M.D., JOHN
LONGHI, M.D., HCA, INC., HCA
til 15 HEALTH SERVICES OF FLORIDA,
INC., AND HCA HEALTHCARE
16 SERVICES-FLORIDA, INC.,
Ww
6 DEFENDANTS.
17
© VIDEO DEPOSITION OF KIMBERLY SCHANTZ
18 DATE: AUGUST 19, 2021
REPORTER: NICOLE WARD
19 PLACE: ALL PARTIES APPEARED VIA VIDEOCONFERENCE
20
©
21
22
23
24
25
A400 North Ashley Drive, Suite 2600 100 East Pine Street, Suite 308 4651 Salisbury Road, 4*" Floor
TAMPA, FL33602 ORLANDO, FL 32801 JACKSONVILLE, FL 32256
CORPORATE
187440 Schantz Kimberly 08-19-2021 Page 2
APPEARANCES
ON BEHALF OF THE PLAINTIFFS, TODD COPELAND, ESQUIRE, AS
GUARDIAN AD LITEM FOR JARIEL CALZAD, A MINOR, ASHLEY
CALZADA AND JUAN L. CALZADA, INDIVIDUALLY AND ON BEHALF
OF JARIEL CALZADA, A MINOR:
Carlos R. Diez-Arguelles, Esquire
Diez-Arguelles & Tejedor, P.A.
505 North Mills Avenue
Orlando, Florida 32803
Telephone No.: (407) 705-2880
Facsimile No.: (407) 737-6078
E-mail: carlos@theorlandolawyers.com
(Appeared Via Videoconference)
ON BEHALF OF THE DEFENDANT, OSCEOLA REGIONAL HOSPITAL
D/B/A OSCEOLA REGIONAL MEDICAL CENTER:
David Ss. Nelson, Esquire
10 LaCava & Jacobson, P.A.
501 East Kennedy Boulevard
11 Suite 1250
Tampa, Florida 33602-5245
12 Telephone No.: (813) 209-9611
Facsimile No.: (813) 209-9511
13 E-mail: dnelson@lacavajacobson.com
ON BEHALF OF THE DEFENDANTS, PEDIATRIX MEDICAL GROUP,
14 INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC.,
MEDNAX, INC., JOSE I. GIERBOLINI, M.D. AND JUAN LONGHI,
15 M.D.:
Marshall E. McKinstry, Esquire
16 Grower, Ketcham, Eide, Telan & Meltz, P.A.
PO Box 530865
17 Orlando, Florida 32853
Telephone No.: (407) 423-9545
18 Facsimile No.: (407) 425-7104
E-mail: mmckinstry@growerketcham.com
19 (Appeared Via Videoconference)
20 ON BEHALF OF THE DEFENDANTS, ERIC FRENDAK, CRNA, RODNEY
DEL VALLE, M.D. AND OSCEOLA ANESTHESIA ASSOCIATES, PL:
21 David A. Zika, Esquire
McEwan, Martinez, Dukes & Hall, P.A.
22 108 East Central
Boulevard
Orlando, Florida
32801
23 Telephone No.: (407) 423-8571
Facsimile No.: (407) 423-8637
24 E-mail: dzika@mmdorl.com
(Appeared Via Videoconference)
25
ON BEHALF OF THE DEFENDANTS, OSCEOLA OB/GYN AND MICHAEL
Ill
407.423.9900
MILESTONE
TOMORROW'S
| REPORTING
TECHNOLOGY
COMPANY
TODAY
www.MILESTONEREPORTING.com
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
187440 Schantz Kimberly 08-19-2021 Page 3
1] R. DENARDIS, D.O.:
Pierre J. Seacord, Esquire
2 Buckley, Seacord & Justice, P.A.
200 South Orange Avenue
3 Suite 2850
Orlando, Florida 32801
4 Telephone No.: (407) 841-3800
Facsimile No.: (407) 841-3855
E-mail: pseacord@bsj-law.com
(Appeared Via Videoconference)
ON BEHALF OF THE DEFENDANT, OB HOSPITALIST GROUP, LLC.,
EZER A. OJEDA, M.D.:
Jesse L. Shurman, Esquire
Rissman, Barrett, Hurt, Donahue, McLain & Mangan
1 North Dale Mabry Highway
Suite 1100
Tampa, Florida 33609
10 Telephone No.: (813) 221-3114
Facsimile No.: (813) 221-3033
11 E-mail: jesse.shurman@rissman.com
(Appeared Via Videoconference)
12
13
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15
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21
22
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Ill
407.423.9900
MILESTONE
TOMORROW'S
| REPORTING
TECHNOLOGY
COMPANY
TODAY
www.MILESTONEREPORTING.com
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
187440 Schantz Kimberly 08-19-2021 Page 4
1 INDEX
Page
2| PROCEEDINGS
DIRECT EXAMINATION BY MR. DIEZ-ARGUELLES
3
4 EXHIBITS
Exhibit Page
5 1 Daily Note from the Meditech
System 19
6 Audit Trail 21
PDoc Document 22
Discharge Report 22
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Ill
407.423.9900
MILESTONE | REPORTING
TOMORROW'S TECHNOLOGY TODAY
COMPANY
www.MILESTONEREPORTING.com
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
187440 Schantz Kimberly 08-19-2021 Page 5
STIPULATION
The video deposition of Kimberly Schantz taken remotely
on Thursday the 19th day of August 2021 at approximately
10:02 a.m.; said deposition was taken pursuant to the
Florida Rules of Civil Procedure.
It is agreed that Nicole Ward, being a Notary Public and
Court Reporter for the State of Florida, may swear the
10 witness and that the reading and signing of the
11 completed transcript by the witness is not waived.
12
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Ill
407.423.9900
MILESTONE
TOMORROW'S
| REPORTING
TECHNOLOGY
COMPANY
TODAY
www.MILESTONEREPORTING.com
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
187440 Schantz Kimberly 08-19-2021 Page 6
PROCEEDINGS
COURT REPORTER: My name's Nicole Ward. I'm
the video technician and court reporter today.
Today is the 19th day of August 2021. The time is
10:02 a.m. We're convened by video conference to
take the deposition of Kimberly Schantz. Will
everyone but the witness please state your
appearance, how you're attending, and the location
you're attending from starting with Plaintiff's
10 counsel?
11 MR. DIEZ-ARGUELLES: Carlos Diez-Arguelles from
12 Orlando.
13 MR. SEACORD: Pierre Seacord for Dr. DeNardis
14 attending by Zoom.
15 MR. ZIKA: David Zika for Eric Frendak, Dr. Del
16 Valle and Osceola Anesthesia Associates attending by
17 Zoom from Orlando
18 MR. SHURMAN: Jesse Shurman for Dr. Ojeda by
19 Zoom in Tampa.
20 MR. MCKINSTRY: And this is Marshall McKinstry
21 for Dr. Gierbolini in Long Beach attending by Zoom
22 in Orlando.
23 COURT REPORTER: And I think we lost Mr.
24 Nelson. I think he just happened to pop right back
25 in. So give us a second for him to announce his
Ill
407.423.9900
MILESTONE
TOMORROW'S
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TECHNOLOGY
COMPANY
TODAY
www.MILESTONEREPORTING.com
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
Toll Free 855-MYDEPOS
187440 Schantz Kimberly 08-19-2021 Page 7
appearance. Mr. Nelson, are you back with us?
MR. NELSON: Yes, I am. Sorry about that.
COURT REPORTER: No problem. If you want to
just announce yourself for the record?
MR. NELSON: David Nelson on behalf of Osceola
Regional Medical Center.
COURT REPORTER: Okay, and Ms. Schantz, will
you please state your full name for the record?
THE WITNESS: Kimberly Schantz.
10 COURT REPORTER: And thank you, Ms. Schantz for
11 providing your driver's license. Do all parties
12 agree that the witness is, in fact, Kimberly
13 Schantz?
14 MR. SEACORD: I do.
15 MR. DIEZ-ARGUELLES: If the defendants say she
16 is, I do. Oh, look at that pretty picture. That's
17 nice.
18 MR SEACORD: Are you talking about me and my
19 wife?
20 MR DIEZ-ARGUELLES: Yes.
21 MR SEACORD: Yeah. She has that up there all
22 the time.
23 MR. DIEZ-ARGUELLES: She loves you.
24 MR. SEACORD: I don't know why but I think I've
25 like, over the years worn her down like a Chinese
Ill
407.423.9900
MILESTONE
TOMORROW'S
| REPORTING
TECHNOLOGY
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COMPANY
TODAY
8 ORLANDO, FL 32801
JACKSONVILLE, FL 32256
TAMPA, FL 33602
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187440 Schantz Kimberly 08-19-2021 Page 8
water torture.
MR. DIEZ-ARGUELLES: That --
COURT REPORTER: Ms. Schantz, if you want to go
ahead and raise your right hand? Do you solemnly
swear or affirm the testimony you're about to give
in this case will be the truth, the whole truth, and
nothing but the truth?
THE WITNESS: I do.
COURT REPORTER: Thank you.
10 DIRECT EXAMINATION
11 BY MR. DIEZ-ARGUELLES:
12 Ma'am, can you please state your name?
13 I'm sorry?
14 Please state your name.
15 A Kimberly Schantz.
16 Q And Ms. Schantz, if at any time you need to
17 take a break or you don't understand a question, you
18 know, just tell us, okay?
19 A Thank you.
20 Q And could you please tell us who you work for?
21 A I work for HCA Healthcare North Florida
22 Division. Information Technology Group.
23 Q And what do you do for them, ma'am?
24 A I am the clinical applications manager for EHR
25 support.
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187440 Schantz Kimberly 08-19-2021 Page 9
And do you work with the -- ma'am? Hello?
I'm sorry?
MR. DIEZ-ARGUELLES: Can you hear me --
THE WITNESS: I can't -- I can hear you but you
-- I think there's some lag in the --
MR. DIEZ-ARGUELLES: All right. Let me see
what's happening here. All right. Is it better
now?
THE WITNESS: I think he's having some --
10 MR DIEZ-ARGUELLES: Ma'am, is it better --
11 THE WITNESS: -- connectivity issues.
12 MR. DIEZ-ARGUELLES: -- now? Hello?
13 THE WITNESS: Okay.
14 COURT REPORTER: Mr. Diez-Arguelles, can you
15 say something one more time?
16 MR. DIEZ-ARGUELLES: I -- this is Carols Diez-
17 Arguelles from Orlando, Florida.
18 COURT REPORTER: I can hear you now.
19 MR. DIEZ-ARGUELLES: Okay. Ma'am, can you hear
20 me?
21 THE WITNESS: I can.
22 MR. DIEZ-ARGUELLES: All right. Is it better?
23 THE WITNESS: A little bit. Yes, sir.
24 MR. DIEZ-ARGUELLES: All right. If there's any
25 issues just tell me and I'll go to my iPhone or
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187440 Schantz Kimberly 08-19-2021 Page 10
something, okay?
THE WITNESS: Okay.
BY MR. DIEZ-ARGUELLES:
Q So do you run the EMR -- what's your
relationship or HCA's relationship to the EMR system at
6 Osceola Regional Hospital?
A So we -- we -- my -- my team specifically
supports the Meditech system for Osceola Regional
Medical Center from a technology standpoint.
10 Q And does HCA own and operate Osceola Regional
11 Hospital?
12 A Yes.
13 MR. NELSON: Object to the form.
14 Ma'am?
15 MR. NELSON: Object to the form.
16 You can answer, ma'am
17 A Yes.
18 Q All right, ma'am. so this audit trail that we
19 have here today, are you the one that produced it for
20 the attorneys on this case, ma'am?
21 A No, sir.
22 Q Have you seen it?
23 A Yes, sir.
24 Q All right. So I'm going to ask you some
25 questions about it. So the audit trail, is there a
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187440 Schantz Kimberly 08-19-2021 Page ll
separate audit trail for the NICU unit as opposed to the
other portions of the hospital?
A That would depend on the application used for
the documentation.
Q And --
A If the Meditech system was used, then there's
a Meditech audit. If the CPN system was used, then
there would be a separate audit for that.
Q And from the document produced, do we have the
10 Meditech and the CPN documents or just the Meditech
11 documents?
12 A I'm only aware of the Meditech documents.
13 Q And then is there a CPN documents that apply
14 to the child at issue in this case?
15 A I would not know that.
16 Q And who would know that, ma'am?
17 A The facility.
18 Q And who -- the hospital?
19 A Correct.
20 Q And then do you know who I would need to speak
21 to at the hospital, ma'am?
22 A I would suggest the labor and delivery manager
23 or director. I do not have their names.
24 Q Okay, but they would know that the audit trail
25 that that's used in labor and delivery?
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187440 Schantz Kimberly 08-19-2021 Page 12
A Yes, sir.
Q
Preview
Filing # 136212814 E-Filed 10/08/2021 02:51:17 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2017-CA-000174 MP TODD COPELAND, Esquire, as Guardian Ad Litem for J.C. a minor, and as Trustee of the J.C. Special Needs Trust, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of J.C., a minor, Plaintiffs, Vv. OSCEOLA REGIONAL HOSPITAL d/b/a/ OSCEOLA REGIONAL MEDICAL CENTER, ERIK FRENDAK, CRNA., OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST GROUP, LLC., EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA ASSOCIATES, PL., RODNEY DEL VALLE, M.D., PEDIATRIX MEDICAL GROUP, INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, INC., JOSE I. GIERBOLINI, M.D., JOHN LONGHI, M_D., HCA, INC., HCA HEALTH SERVICES OF FLORIDA, INC., AND HCA HEALTHCARE SERVICES-FLORIDA, INC., Defendants. / PLAINTIFFS’ MOTION TO RE-OPEN DEPOSITION OF KIMBERLY SHANTZ, TO DEPOSE DAVID S. NELSON AND JOHN D. EMMANUEL, AND FOR COSTS COME NOW, Plaintiffs, TODD COPELAND, Esquire, as Guardian Ad Litem for J.C., a minor, and as Trustee of the J.C. Special Needs Trust, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of J.C., a minor, by and through the undersigned counsel, hereby move this Honorable Court for an Order permitting Plaintiffs to Re-Open the Deposition of Kimberly Shantz along with the depositions of Davis S. Nelson, Esquire, Attorney for Defendant, OSCEOLA REGIONAL HOSPITAL d/b/a OSCEOLA REGIONAL MEDICAL CENTER, and John D. Emmanuel, Esquire, Attorney for Defendants, HCA, INC., HCA HEALTHCARE SERVICES OF FLORIDA, INC., AND HCA, and for Costs, and in support states as follows: 1 On August 27, 2021, Plaintiff took the video deposition of Kimberly Shantz (hereafter “Ms. Shantz”) via Zoom. Ms. Shantz is an employee of the movant, HCA, Inc. (hereafter “HCA”). She is also the corporate representative to testify at deposition for Osceola Regional Medical Center (hereafter “ORMC”). See Exhibit A, Deposition Transcript of Kimberly Shantz, T. 8. During her August 27, 2021 video deposition, Ms. Shantz testified in response to several questions about the role and relationship that HCA played with the Osceola Regional Medical Center. When directly asked in her direct testimony “does HCA own and operate Osceola Regional Hospital?” Ms. Shantz simply answered “yes,” twice, thus confirming that HCA does own and operate ORMC. Ex. A, 10. Neither HCA’s nor ORMC’s attorneys attempted to question Ms. Shantz with regard to the ownership and operation of ORMC during her deposition testimony. Ex. A. On September 15, 2021, Ms. Shantz signed the attached errata sheet with significant changes in direct contradiction of her sworn deposition testimony. All of these significant changes seek to entirely change her previous testimony about the role of HCA, Inc. as the owner and operator of ORMC. Ms. Shantz seeks to completely alter her previous testimony by changing her two “yes” answers to “Yes. I understand that according to AHCA Agency for Health Care Administration, Osceola Regional Medical Center, Inc. an affiliate of HCA, Inc. owns and operates Osceola Regional Medical Center.” See Exhibit B, Errata Sheet of Kimberly Shantz. These significant changes are clearly in response to the Response in Opposition to Defendant’s Motion for Summary Judgment filed by Plaintiffs two (2) days prior to the filing of the errata sheet. Well-established case law holds that when a witness makes changes to her deposition testimony a party may re-open the deposition to inquire about the changes. Feltner v. Internationale Nederlanden Bank, 622 So.2d 123 (4DCA 1993) and Motel 6 v. Dowling, 595 So.2d 260 (1st DCA 1992). While the attorney-client privilege must be respected, the facts and circumstances of the consultation may be brought out. “Counsel could have asked questions which were made necessary by the changed answers, questions about the reasons the changes were made, and questions about where the changes originated, whether with the deponent or his attorney.” Dowling. The Florida Supreme Court has also held that the deposition testimony and the errata sheet are admissible at trial. Dowling and Pena v. Design Build Interamerican, Inc., 132 So.3d 1179 states: “Two months after his deposition was taken, Joel Gonzalez changed this testimony in an errata sheet prepared two months after his deposition, in which he stated that Zambrana was employed by Royal Plumbing, not One Stop Plumbing. Of course, both the deposition testimony and the errata sheet itself constitute admissible evidence. Motel 6, Inc. v. Dowling, 595 So.2d 260 (Fla. 1st DCA 1992).” Pena vy. Design Build Interamerican, Inc., 132 So.3d 1179. Citing Motel 6 v. Dowling, 595 So.2d 260 (1st DCA 1992). Further, “[i]t is well-established Florida law that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment.” Baker v. Airguide Mfg., LLC, 151 So.2d 38 (Fla. 3d DCA 2000). Citing Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). Here, Plaintiffs dispute that Ms. Shantz’s errata sheet in-fact alters her prior testimony and opinion that HCA, Inc. owns and operates Osceola Regional Medical Center (hereafter “ORMC”). A more recent case from 2020, Dungan v. Memorial Health Systems, Inc., --- So.3d -- -- (Fla. 5th DCA 2020), expanded on Dowling’s establishment of the fact that “[o]nce the changes are made, they become a part of the deposition just as if the deponent gave the testimony while being examined, and they can be read at trial just as any other part of the deposition is subject to use at trial.” Motel 6, Inc. v. Dowling, 595 So. 2d 260 (Fla. lst DCA 1992). Dungan furthered this decision by stating, “[t]he original and changed answers can also be used to cross-examine and to impeach Dr. Weldon at trial.” See Motel 6, Inc. v. Dowling, 595 So. 2d 260 (Fla. 1st DCA 1992); Dungan v. Memorial Health Systems, Inc., --- So.3d ---- (Fla. 5th DCA 2020). 10. In Usiak v. New York Tank Barge Company, 299 F.2d 808 (2d Cir. 1962), it was established that “[t]rial court should have permitted introduction of plaintiff's original answer to question on deposition although an answer was subsequently changed, because the original answer was an admission, but failure to admit such answer was not prejudicial.” Usiak v. New York Tank Barge Company, 299 F.2d 808 (2d Cir. 1962). 11. Again, it is well-established case law that “[a]fter witness changes deposition testimony, original answer to deposition question will remain part of record and can be read at trial since there is no requirement that original answers be stricken, even when changes are made. Fed. Rules Civ. Proc. rule 30(e), 28 U.S.C.A.” Lugtig v. Thomas, 89 F.R.D. 639, 642 (N.D.III.1981). If those changes made in the deposition make it “incomplete or useless without further testimony, party who took deposition can reopen examination... wherein defendant made numerous changes in his deposition testimony, since it was defendant’s actions which would necessitate reopening examination of defendant, costs and attorney fees connected with continued deposition, should plaintiff require reopening of deposition, would be borne by defendant. Fed. Rules Civ. Proc. rule 30(e), 28 U.S.C.A.” Id. 12. In Lugtig, the District Court held: [T]he defendant was allowed to change his deposition testimony; however, since the defendant made the changes on correction sheets appended to the transcript, not the original deposition, and the changes were made by the defendant, not the court reporter, the deposition was required to be amended at the defendant’s expense so that the original answer, the changed answer and the reason for the change would appear after every question affected by the changes, and, further, if any of the changes rendered the deposition incomplete or useless without further testimony, the plaintiff was entitled to reopen the examination and the costs and attorney fees connected with the continued deposition would be borne by the defendant. Td. 13. In Lugtig, the District Court finds that “[p]olicy also supports that conclusion,” through: The witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he changed his testimony. There is no apparent reason why the witness who changes his mind between the giving of the deposition and its transcript should stand in any better case. Wright & Miller, Federal Practice and Procedure, § 2118; Id. 14. Further, “[i]t is well-established Florida law that a party may not rely on an affidavit that contradicts or repudiates prior deposition testimony simply to defeat a motion for summary judgment.” Baker v. Airguide Mfg., LLC, 151 So.2d 38 (Fla. 3d DCA 2000). Citing Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954). Here, Plaintiffs dispute that Ms. Shantz’s errata sheet in-fact alters her prior testimony and opinion that HCA, Inc. owns and operates Osceola Regional Medical Center (hereafter “ORMC”). 1S The decision by the Court in Ellison v. Anderson, 74 So.2d 680, 681 (Fla.1954) supports this by stating: “[a] party when met by a motion for summary judgment should not be permitted by his own affidavit, or by that of another, to baldly repudiate his previous deposition so as to create a jury issue, especially when no attempt is made to exclude or explain the discrepancy.” Ellison v. Anderson, 74 So.2d 680, 681 (Fla. 1954). 16 In Lesnik v. Duval Ford, LLC, 185 So.3d 577 (Fla. Dist. Ct. App. 2016), the First DCA affirmed the trial court’s ruling to strike an expert affidavit filed on the eve of a hearing on summary judgment because the affidavit was “irreconcilably inconsistent” with the expert’s prior deposition testimony. Lesnik v. Duval Ford, LLC, 185 So.3d 577 (Fla. Dist. Ct. App. 2016). Lesnik, involved an action against, inter alia, a car dealership, after a truck, lifted by after-market modifications, caused a single car accident. /d. The plaintiff retained expert, Alan Moore, P.E., who testified during his deposition that he had no opinions regarding any conduct by the dealership or its individual owner causing the accident. Jd. at 579. Consequently, the dealership and its individual owner filed motions for summary judgment. Id. After the filing of the motions, the plaintiff submitted an affidavit by the expert, Mr. Moore, raising several facts and allegations of negligence against both the dealership and its owner. The trial court struck the affidavit as “irreconcilably inconsistent with his earlier deposition testimony without any explanation for the inconsistency.” Citing to Ellison v. Anderson, 74 So. 2d 680, 681 (Fla. 1954) (“a litigant when confronted with an adverse motion for summary judgment, may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony.”). 17 Likewise, in Baker, the Third DCA upheld the trial court’s order refusing to consider plaintiff's affidavit and errata sheet to plaintiff's deposition which the court noted were made in an attempt to create a factual dispute to avoid summary judgment. The Third DCA reasoned: [I]n this case, Baker testified in a sworn deposition that Airguide had nearly complete control over her everyday work activities and that Pacesetter merely provided paycheck. Then, curiously, nearly four months after her deposition and only two days before the summary judgment hearing, Baker filed her affidavit and errata sheet to state that she checked in with Pacesetter every morning, that Pacesetter supervisors often checked on her at Airguide, and that Airguide had limited authority to direct her work, determine her hours, or terminate her. These statements clearly contradict Baker's deposition testimony, and they evidence an attempt on Baker's part to contravene her prior testimony and create a factual dispute regarding Airguide's ability to control her workplace conduct—one of the main factors considered under the ‘borrowed servant’ doctrine. Id. (emphasis added). 18. The testimony produced in the errata sheet arguably creates a question of fact as to Ms. Shantz’s reliability. Considering the timing of the above filing, clearly in response to Plaintiffs’ Response in Opposition to Defendant, HCA, Inc.’s Amended and Restated Motion for Summary Judgment and Incorporated Motion to Strike Defendant’s Motion for Summary Judgment Evidence, Defendant clearly chose only now to produce the errata sheet in order to artificially create a question of fact where none exists — nor has existed until Plaintiffs’ motion was filed. Thus, this errata sheet was completed and produced in bad faith, for the sole purpose of altering this Court’s prospective ruling on summary judgment. WHEREFORE, Plaintiffs, TODD COPELAND, Esquire, as Guardian Ad Litem for J.C., a minor, and as Trustee of the J.C. Special Needs Trust, ASHLEY CALZADA and JUAN L. CALZADA, individually and on behalf of J.C., a minor, respectfully request this Court for an Order compelling the Defendants to provide not only Ms. Shantz for the re-opened deposition, but also both her attorney, David S. Nelson, and the attorney for Defendant, HCA, Inc., John D. Emmanuel, for depositions of their own, with all costs and fees for the deposition going to these defendants, in order to determine how these significant and inconsistent changes occurred. Or in the alternative, the Court should strike the errata sheet. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been electronically filed with the Clerk of the Court by using the Florida Courts E-Filing Portal and furnished via electronic mail to all counsel on the service list below, this 8th day of October, 2021. /s/ Carlos R. Diez-Arguelles Carlos R. Diez-Arguelles FBN: 0500569 DIEZ-ARGUELLES & TEJEDOR 505 North Mills Avenue Orlando, Florida 32803 Telephone: (407) 705-2880 Attorney for Plaintiffs mail@theorlandolawyers.com leah@theorlandolawyers.com SERVICE LIST Thomas E. Dukes, III, Esquire McEwan, Martinez & Dukes, P.A. 108 East Central Boulevard Orlando, Florida 32801 NOS@mmdorl.com; tdukes@mmdorl.com; rosborne@mmdorl.com Attorneys for Defendants, Eric Frendak, CRNA, Rodney Del Valle, M.D. and Osceola Anesthesia Associates, PL Pierre J. Seacord, Esquire Henry, Seacord, & Justice, P.A. 200 South Orange Ave, Suite 2850 Orlando, FL 32801 service-seacord@bsj-law.com; service-lopez@pbsj-law.com Attorneys for Defendants, Osceola OB/GYN and Michael R. Denardis, D.O. Eric F. Ochotorena, Esquire Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A. 1 North Dale Mabry Highway, 11th Floor Tampa, FL 33609 Email: efo.service@rissman.com; cmb.service@rissman; Attorneys for OB Hospitalist Group, LLC., Ezer A. Ojeda, M.D. Patrick H. Telan, Esquire Ketcham, Eide, Telan, Meltz, & Wallace, P.A. Post Office Box 538065 Orlando, Florida 32853-8065 phtelan@ketmw.com, enotice@ ketmw.com, cboals@ ketmw.com Attorneys for Pediatrix Medical Group, INC., Pediatrix Medical Group of Florida, INC., Mednax, INC., Jose I. Gierbolini, M.D. and Juan Longhi, M.D. David S. Nelson, Esquire LaCava, Jacobson, & Goodis, P.A. 501 East Kennedy Blvd., Suite 1250 Tampa, FL 33602 DNelson@LJGlegal.com; LNader@LJGlegal.com Co-Counsel for Defendant, Osceola Regional Hospital d/b/a Osceola Regional Medical Center John D. Emmanuel, Esquire Buchanan, Ingersoll, & Rooney, PC 401 East Jackson Street, Suite 2400 Tampa, FL 33602 john.emmanuel@bipe.com Attorneys for Defendants HCA, Inc.., HCA Healthcare Services Of Florida, Inc. And HCA Healthcare Services-Florida, Inc. Paul R Borr, Esq. Tache’ Bronis Christianson & Descalzo, P.A. 150 SE 2nd St., Suite 600 Miami, FL 33131 pborr@tachebronis.com; service@tachebronis.com Co-Counsel for Osceola Regional Hospital d/b/a Osceola Regional Medical 10 Exhibit A COPY IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2017-CA-000174 MP TODD COPELAND, ESQUIRE, AS GUARDIAN AD LITEM FOR JARIEL CALZAD, A MINOR, ASHLEY CALZADA AND JUAN L. CALZADA, INDIVIDUALLY AND ON BEHALF OF JARIEL CALZADA, A MINOR, PLAINTIFFS, Vs. OSCEOLA REGIONAL HOSPITAL D/B/A/ OSCEOLA REGIONAL MEDICAL CENTER, ERIK FRENDAK, CRNA., OSCEOLA OB/GYN, MICHAEL R. DENARDIS, D.O., OB HOSPITALIST a 10 GROUP, LLC., EZER A. OJEDA, M.D., OSCEOLA ANESTHESIA 11 ASSOCIATES, PL., RODNEY DEL VALLE, M.D., JMJ FAMILY PRACTICE, 12 INC., JOSE RAMON FERNANDEZ, t M.D., PEDIATRIX MEDICAL GROUP, 13 INC., PEDIATRIX MEDICAL GROUP ° OF FLORIDA, INC., MEDNAX, INC., Zz 14 JOSE I. GIERBOLINI, M.D., JOHN LONGHI, M.D., HCA, INC., HCA til 15 HEALTH SERVICES OF FLORIDA, INC., AND HCA HEALTHCARE 16 SERVICES-FLORIDA, INC., Ww 6 DEFENDANTS. 17 © VIDEO DEPOSITION OF KIMBERLY SCHANTZ 18 DATE: AUGUST 19, 2021 REPORTER: NICOLE WARD 19 PLACE: ALL PARTIES APPEARED VIA VIDEOCONFERENCE 20 © 21 22 23 24 25 A400 North Ashley Drive, Suite 2600 100 East Pine Street, Suite 308 4651 Salisbury Road, 4*" Floor TAMPA, FL33602 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 CORPORATE 187440 Schantz Kimberly 08-19-2021 Page 2 APPEARANCES ON BEHALF OF THE PLAINTIFFS, TODD COPELAND, ESQUIRE, AS GUARDIAN AD LITEM FOR JARIEL CALZAD, A MINOR, ASHLEY CALZADA AND JUAN L. CALZADA, INDIVIDUALLY AND ON BEHALF OF JARIEL CALZADA, A MINOR: Carlos R. Diez-Arguelles, Esquire Diez-Arguelles & Tejedor, P.A. 505 North Mills Avenue Orlando, Florida 32803 Telephone No.: (407) 705-2880 Facsimile No.: (407) 737-6078 E-mail: carlos@theorlandolawyers.com (Appeared Via Videoconference) ON BEHALF OF THE DEFENDANT, OSCEOLA REGIONAL HOSPITAL D/B/A OSCEOLA REGIONAL MEDICAL CENTER: David Ss. Nelson, Esquire 10 LaCava & Jacobson, P.A. 501 East Kennedy Boulevard 11 Suite 1250 Tampa, Florida 33602-5245 12 Telephone No.: (813) 209-9611 Facsimile No.: (813) 209-9511 13 E-mail: dnelson@lacavajacobson.com ON BEHALF OF THE DEFENDANTS, PEDIATRIX MEDICAL GROUP, 14 INC., PEDIATRIX MEDICAL GROUP OF FLORIDA, INC., MEDNAX, INC., JOSE I. GIERBOLINI, M.D. AND JUAN LONGHI, 15 M.D.: Marshall E. McKinstry, Esquire 16 Grower, Ketcham, Eide, Telan & Meltz, P.A. PO Box 530865 17 Orlando, Florida 32853 Telephone No.: (407) 423-9545 18 Facsimile No.: (407) 425-7104 E-mail: mmckinstry@growerketcham.com 19 (Appeared Via Videoconference) 20 ON BEHALF OF THE DEFENDANTS, ERIC FRENDAK, CRNA, RODNEY DEL VALLE, M.D. AND OSCEOLA ANESTHESIA ASSOCIATES, PL: 21 David A. Zika, Esquire McEwan, Martinez, Dukes & Hall, P.A. 22 108 East Central Boulevard Orlando, Florida 32801 23 Telephone No.: (407) 423-8571 Facsimile No.: (407) 423-8637 24 E-mail: dzika@mmdorl.com (Appeared Via Videoconference) 25 ON BEHALF OF THE DEFENDANTS, OSCEOLA OB/GYN AND MICHAEL Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 3 1] R. DENARDIS, D.O.: Pierre J. Seacord, Esquire 2 Buckley, Seacord & Justice, P.A. 200 South Orange Avenue 3 Suite 2850 Orlando, Florida 32801 4 Telephone No.: (407) 841-3800 Facsimile No.: (407) 841-3855 E-mail: pseacord@bsj-law.com (Appeared Via Videoconference) ON BEHALF OF THE DEFENDANT, OB HOSPITALIST GROUP, LLC., EZER A. OJEDA, M.D.: Jesse L. Shurman, Esquire Rissman, Barrett, Hurt, Donahue, McLain & Mangan 1 North Dale Mabry Highway Suite 1100 Tampa, Florida 33609 10 Telephone No.: (813) 221-3114 Facsimile No.: (813) 221-3033 11 E-mail: jesse.shurman@rissman.com (Appeared Via Videoconference) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 4 1 INDEX Page 2| PROCEEDINGS DIRECT EXAMINATION BY MR. DIEZ-ARGUELLES 3 4 EXHIBITS Exhibit Page 5 1 Daily Note from the Meditech System 19 6 Audit Trail 21 PDoc Document 22 Discharge Report 22 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ill 407.423.9900 MILESTONE | REPORTING TOMORROW'S TECHNOLOGY TODAY COMPANY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 5 STIPULATION The video deposition of Kimberly Schantz taken remotely on Thursday the 19th day of August 2021 at approximately 10:02 a.m.; said deposition was taken pursuant to the Florida Rules of Civil Procedure. It is agreed that Nicole Ward, being a Notary Public and Court Reporter for the State of Florida, may swear the 10 witness and that the reading and signing of the 11 completed transcript by the witness is not waived. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 6 PROCEEDINGS COURT REPORTER: My name's Nicole Ward. I'm the video technician and court reporter today. Today is the 19th day of August 2021. The time is 10:02 a.m. We're convened by video conference to take the deposition of Kimberly Schantz. Will everyone but the witness please state your appearance, how you're attending, and the location you're attending from starting with Plaintiff's 10 counsel? 11 MR. DIEZ-ARGUELLES: Carlos Diez-Arguelles from 12 Orlando. 13 MR. SEACORD: Pierre Seacord for Dr. DeNardis 14 attending by Zoom. 15 MR. ZIKA: David Zika for Eric Frendak, Dr. Del 16 Valle and Osceola Anesthesia Associates attending by 17 Zoom from Orlando 18 MR. SHURMAN: Jesse Shurman for Dr. Ojeda by 19 Zoom in Tampa. 20 MR. MCKINSTRY: And this is Marshall McKinstry 21 for Dr. Gierbolini in Long Beach attending by Zoom 22 in Orlando. 23 COURT REPORTER: And I think we lost Mr. 24 Nelson. I think he just happened to pop right back 25 in. So give us a second for him to announce his Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 7 appearance. Mr. Nelson, are you back with us? MR. NELSON: Yes, I am. Sorry about that. COURT REPORTER: No problem. If you want to just announce yourself for the record? MR. NELSON: David Nelson on behalf of Osceola Regional Medical Center. COURT REPORTER: Okay, and Ms. Schantz, will you please state your full name for the record? THE WITNESS: Kimberly Schantz. 10 COURT REPORTER: And thank you, Ms. Schantz for 11 providing your driver's license. Do all parties 12 agree that the witness is, in fact, Kimberly 13 Schantz? 14 MR. SEACORD: I do. 15 MR. DIEZ-ARGUELLES: If the defendants say she 16 is, I do. Oh, look at that pretty picture. That's 17 nice. 18 MR SEACORD: Are you talking about me and my 19 wife? 20 MR DIEZ-ARGUELLES: Yes. 21 MR SEACORD: Yeah. She has that up there all 22 the time. 23 MR. DIEZ-ARGUELLES: She loves you. 24 MR. SEACORD: I don't know why but I think I've 25 like, over the years worn her down like a Chinese Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY www.MILESTONEREPORTING.com COMPANY TODAY 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 8 water torture. MR. DIEZ-ARGUELLES: That -- COURT REPORTER: Ms. Schantz, if you want to go ahead and raise your right hand? Do you solemnly swear or affirm the testimony you're about to give in this case will be the truth, the whole truth, and nothing but the truth? THE WITNESS: I do. COURT REPORTER: Thank you. 10 DIRECT EXAMINATION 11 BY MR. DIEZ-ARGUELLES: 12 Ma'am, can you please state your name? 13 I'm sorry? 14 Please state your name. 15 A Kimberly Schantz. 16 Q And Ms. Schantz, if at any time you need to 17 take a break or you don't understand a question, you 18 know, just tell us, okay? 19 A Thank you. 20 Q And could you please tell us who you work for? 21 A I work for HCA Healthcare North Florida 22 Division. Information Technology Group. 23 Q And what do you do for them, ma'am? 24 A I am the clinical applications manager for EHR 25 support. Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 9 And do you work with the -- ma'am? Hello? I'm sorry? MR. DIEZ-ARGUELLES: Can you hear me -- THE WITNESS: I can't -- I can hear you but you -- I think there's some lag in the -- MR. DIEZ-ARGUELLES: All right. Let me see what's happening here. All right. Is it better now? THE WITNESS: I think he's having some -- 10 MR DIEZ-ARGUELLES: Ma'am, is it better -- 11 THE WITNESS: -- connectivity issues. 12 MR. DIEZ-ARGUELLES: -- now? Hello? 13 THE WITNESS: Okay. 14 COURT REPORTER: Mr. Diez-Arguelles, can you 15 say something one more time? 16 MR. DIEZ-ARGUELLES: I -- this is Carols Diez- 17 Arguelles from Orlando, Florida. 18 COURT REPORTER: I can hear you now. 19 MR. DIEZ-ARGUELLES: Okay. Ma'am, can you hear 20 me? 21 THE WITNESS: I can. 22 MR. DIEZ-ARGUELLES: All right. Is it better? 23 THE WITNESS: A little bit. Yes, sir. 24 MR. DIEZ-ARGUELLES: All right. If there's any 25 issues just tell me and I'll go to my iPhone or Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY www.MILESTONEREPORTING.com COMPANY TODAY 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 10 something, okay? THE WITNESS: Okay. BY MR. DIEZ-ARGUELLES: Q So do you run the EMR -- what's your relationship or HCA's relationship to the EMR system at 6 Osceola Regional Hospital? A So we -- we -- my -- my team specifically supports the Meditech system for Osceola Regional Medical Center from a technology standpoint. 10 Q And does HCA own and operate Osceola Regional 11 Hospital? 12 A Yes. 13 MR. NELSON: Object to the form. 14 Ma'am? 15 MR. NELSON: Object to the form. 16 You can answer, ma'am 17 A Yes. 18 Q All right, ma'am. so this audit trail that we 19 have here today, are you the one that produced it for 20 the attorneys on this case, ma'am? 21 A No, sir. 22 Q Have you seen it? 23 A Yes, sir. 24 Q All right. So I'm going to ask you some 25 questions about it. So the audit trail, is there a Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page ll separate audit trail for the NICU unit as opposed to the other portions of the hospital? A That would depend on the application used for the documentation. Q And -- A If the Meditech system was used, then there's a Meditech audit. If the CPN system was used, then there would be a separate audit for that. Q And from the document produced, do we have the 10 Meditech and the CPN documents or just the Meditech 11 documents? 12 A I'm only aware of the Meditech documents. 13 Q And then is there a CPN documents that apply 14 to the child at issue in this case? 15 A I would not know that. 16 Q And who would know that, ma'am? 17 A The facility. 18 Q And who -- the hospital? 19 A Correct. 20 Q And then do you know who I would need to speak 21 to at the hospital, ma'am? 22 A I would suggest the labor and delivery manager 23 or director. I do not have their names. 24 Q Okay, but they would know that the audit trail 25 that that's used in labor and delivery? Ill 407.423.9900 MILESTONE TOMORROW'S | REPORTING TECHNOLOGY COMPANY TODAY www.MILESTONEREPORTING.com 8 ORLANDO, FL 32801 JACKSONVILLE, FL 32256 TAMPA, FL 33602 Toll Free 855-MYDEPOS 187440 Schantz Kimberly 08-19-2021 Page 12 A Yes, sir. Q