Legal Document: ESTATE OF PATRICK J. MARKSBURY, JR., BY AND THROUGH BREANNE LEE GLEASON vs. LP MANAGER, LLC

On June 22, 102 a was filed involving a dispute between Bisset, Megan Page, Estate Of Patrick J. Marksbury, Jr., By And Through Breanne Lee Gleason, and Hooks, Nursing Home Administrator, Tracy, John Doe Corporation 1, John Doe Corporation 2, John Doe Corporation 3, Lp Manager, Llc, Lpmm, Inc., Lp O Holidngs, Llc, Lp Port Charlotte, Llc, Signature Healthcare Clinical Consulting Services, Llc, Signature Healthcare Consulting Services, Llc, Signature Healthcare, Llc, Each Engaged In The Business Fictitiously Named Signature Healthcare Of Port Charlotte, Signature Payroll Services, Llc, for Nursing Home Negligence in the District Court of Charlotte County.

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Filing # 58619075 E-Filed 07/05/2017 04:12:06 PM

IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, FLORIDA, CIVIL DIVISION

CASE NO.: 16001090CA

ESTATE OF PATRICK J. MARKSBURY, JR.,
by and through BREANNE LEE GLEASON and
MEGAN PAGE BISSET as Co-Personal
Representatives,

Plaintiff,
Vv.

LP MANAGER, LLC, JOHN DOE CORPORATION 1,
JOHN DOE CORPORATION 2, LP PORT CHARLOTTE, LLC,
JOHN DOE CORPORATION 3, SIGNATURE HEALTHCARE
CLINICAL CONSULTING SERVICES, LLC, SIGNATURE
HEALTHCARE CONSULTING SERVICES, LLC,
and SIGNATURE HEALTHCARE, LLC, each engaged
in the business fictitiously named Signature Healthcare
of Port Charlotte,

Defendants.
/

PLAINTIFF’S MOTION TO COMPEL DEPOSITION
TESTIMONY AND MOTION FOR SANCTIONS, COSTS
AND ATTORNEY FEES WITH MEMORANDUM OF LAW

COMES NOW, Plaintiff, ESTATE OF PATRICK J. MARKSBURY, JR., by

and through BREANNE LEE GLEASON and MEGAN PAGE BISSET as Co-

Personal Representatives, and undersigned counsel, and pursuant Fla.R.Civ.P.

1.310(b)(6) and Fla.R.Civ.P. 1.380 moves the Court for the entry of an Order

compelling Defendant, SIGNATURE HEALTHCARE, LLC to provide deposition
testimony and awarding sanctions, costs and attorney fees. As grounds for this

motion, Plaintiff states as follows:

1 Plaintiff has alleged that the Defendants financially mismanaged a

nursing home facility in which Patrick Marksbury, Jr. resided for the purpose of

receiving rehabilitative therapy prior to returning home. (Complaint, Paragraphs 2

and 39 — 43).

2 Despite a lengthy history of repeat violations of the federal Nursing

Home Reform Act and Minimum Standards for Nursing Homes under the Florida

Administrative Code, being placed on the State of Florida “Nursing Home Watch

List,” and having its license downgraded to “conditional status,” it is alleged that the

Defendant nursing home corporations diverted funds away from the facility that

should have been utilized for staffing, training and patient care, and did so at the

expense of the life, safety, health and well-being of Patrick Marksbury, Jr. and other

residents. (Complaint, Paragraphs 39 — 43).

3 In order to insulate themselves from liability in negligence lawsuits and

government false claims actions, nursing home corporations have, in general,

resorted to creating complex corporate structures designed to hide assets and obscure

the fact of who and / or what entity is truly in control of the financial operation of

the nursing facility. (Please see the Second District’s discussion in Schwartzburg v.

Knobloch, 98 So.3d 173 (Fla. 2"! DCA 2012)). Additionally, the Plaintiff must fully
ascertain the corporate structure and identities of those entities that managed and

operated the nursing home, and their degree of involvement, so that a proper

substitution of the actual named parties may be made in place of the “John Doe

Corporations” currently stated in the Complaint.

4 In an effort to, among other things fully ascertain and establish the roles

and involvement of both the specifically named party Defendant-corporations as

well as those Defendants who have been preliminarily identified in the Complaint

as “John Doe” corporations, the Plaintiff sought to take the corporate deposition of

Defendant, SIGNATURE HEALTHCARE, LLC. The Defendant refused to

voluntarily cooperate and fought this request.

5 On November 16, 2016, Plaintiff filed its Motion to Compel

Depositions, Motion for Sanctions Pursuant to Fla.R.Civ.P. 1.380(a)(4), and Notice

of Case Management Conference Pursuant to Fla.R.Civ.P. 1.200(4), (“Motion”).

Plaintiff's Motion was heard by the Court on January 4, 2017. A copy of the

transcript from the hearing on Plaintiff's Motion is attached hereto as “Plaintiff's

Exhibit A.”

6 On January 23, 2017, the Court enter an order granting Plaintiff's

Motion and compelling the corporate designee deposition of Defendant,

SIGNATURE HEALTHCARE, LLC, and reserving ruling on Plaintiff's Motion for
Sanctions. A copy of the Order entered by the Court is attached hereto as “Plaintiff's

Exhibit B.”
7
Prior to the hearing on Plaintiff's Motion, Plaintiff filed a Notice of

Taking Video Deposition Duces Tecum of Defendant, SIGNATURE

HEALTHCARE, LLC, through its Corporate Designee(s) Pursuant to Fla.R.Civ.P.

1.310(b)(6) on December 14, 2016. Defendants and counsel for Defendants

possessed long-standing notice of the topics to be discussed at the corporate designee

deposition. A copy of the Notice is attached hereto as “Plaintiff's Exhibit C.”

8 At the hearing on the Motion, the Court directed defense counsel to

designate an appropriate witness, because the Court wished to avoid the necessity of

an additional hearing due to a deponent answering “I don’t know” during the

deposition. Please see the attached hearing transcript, Page 19, Lines 11 - 14 in

“Plaintiff's Exhibit A.”

9 On June 23, 2017, Plaintiff's counsel conducted the corporate designee

deposition of SIGNATURE HEALTHCARE, LLC. Kim Morrow was the sole

witness designated by this Defendant to testify as to all of the corporation’s

knowledge with respect to the designated matters of inquiry. A copy of Plaintiff's

Third Amended Notice of Taking Video Deposition Duces Tecum of Defendant,

SIGNATURE HEALTHCARE, LLC, through its Corporate Designee(s) Pursuant

to Fla.R.Civ.P. 1.310(b)(6) is attached hereto as “Plaintiff's Exhibit D.”
10. During this corporate deposition, the designated witness was unable to

answer specific questions with respect to matters of inquiry set forth in “Plaintiff's

Exhibit D.” Upon further questioning, Ms. Morrow admitted that she was not fully

prepared to testify as to those designated matters.

ll. Additionally, it is clear from a review of the corporate designee’s

testimony that the Defendant, SIGNATURE HEALTHCARE, LLC, acted in bad

faith by exhibiting ignorance as to specific designated matters of inquiry while, at

the same time, attempting through her testimony to affirmatively aid the cause of the

Defendant by making evasive and non-responsive statements about the wonderful

work and good that the company does.

12. The Defendant directly violated the Court’s Order compelling the

deposition of SIGNATURE HEALTHCARE, LLC and Florida law by presenting a

deponent who was not fully prepared to testify and who failed to possess knowledge

with regard to the matters of inquiry set forth in the deposition notice.

13. The Defendant also failed to produce documents which were requested

in the Notice at the time of deposition. While Defendant filed a single general

“objection” prior to the time of deposition, it failed to take the appropriate steps of

either filing specific and detailed substantive objections as to each request or filing

and having a motion for protective order heard prior to the occurrence of the

deposition.
14. The Plaintiff has suffered considerable delay in proceeding with this

case and has incurred costs as a direct result of the Defendant’s deposition

misconduct; misconduct which is sanctionable under the Florida Rules of Civil

Procedure and Florida law.

MEMORANDUM OF LAW

I A Corporation’s Obligations and Duties in Preparing for Deposition.

15. Florida courts may properly look to federal case law decisions in

construing a Florida rule where the Florida procedural rule is patterned after a federal

tule. Please see: Savage v. Rowell Distributing Corp., 95 So.2d 415 (Fla. 1957). Id.

at 417. A leading case holding and setting forth the purpose, importance, and

burdens imposed under the corporate designee deposition authorized by both the

Florida and federal rules is found in QBE Insurance Corporation v. Jorda

Enterprises, Inc., 277 F.R.D. 676 (S.D. FL 2012). Id.

16. In QBE Insurance Corporation, the court held the following:

i) “The rule’s purpose is to streamline the discovery process. In
particular, the rule serves a unique function in allowing a specialized
form of deposition.” Id. at 687.

ii) “The rule gives the corporation being deposed more control by allowing
it to designate and prepare a witness to testify on the corporation’s
behalf.” Id. at 687, 688.

iii) “Ttis a discovery device designed to avoid the bandying by corporations
where individual officers or employees disclaim knowledge of facts
clearly known to the corporation.” Id. at 688.
iv) “Therefore, one purpose is to curb any temptation by the corporation to
shunt a discovering party from ‘pillar to post’ by presenting deponents
who each disclaim knowledge of facts known to someone in the
corporation.” Id. at 688.

v) “Rule 30(b)(6) imposes burdens on both the discovering party and the
designating party. The party seeking discovery must describe the
matters with reasonable particularity and the responding corporation or
entity must produce one or more witnesses who can testify about the
corporation’s knowledge of the noticed topics.” Id. at 688.

vi) “The testimony of a Rule 30(b)(6) witness represents the collective
knowledge of the corporation, not of the specific individual deponents.
A Rule 30(b)(6) designee presents the corporation’s position on the
listed topics. The corporation appears vicariously through its
designees.” Id. at 688.

vii) “A corporation has an affirmative duty to provide a witness who is able
to provide binding answers on behalf of the corporation... Thus, a
Rule 30(b)(6) witness need not have personal knowledge of the
designated subject matter....The designating party has a duty to
designate more than one deponent if necessary to respond to questions
on all relevant areas of inquiry listed in the notice or subpoena.” Id. at
688.

viii) “TT]he corporation has a duty to make a good faith, conscientious effort
to designate appropriate persons and to prepare them to testify fully and
non-evasively about the subjects....The duty to prepare a Rule 30(b)(6)
witness goes beyond matters personally known to the designee or to
matters in which the designated witness was personally involved....The
duty extends to matters reasonably known to the responding party.
... The mere fact that an organization no longer employs a person with
knowledge on the specified topics does not relieve the organization of
the duty to prepare and produce an appropriate designee. ” Id. at 689.

ix) “[A] corporation with no current knowledgeable employees must
prepare its designees by having them review available materials, such
as fact witness deposition testimony, exhibits to depositions, documents
produced in discovery, materials in former employees’ files and, if
necessary, interviews of former employees or others with
7
knowledge.... In other words, a corporation is expected to create an
appropriate witness or witnesses from information reasonably available
to itif necessary.... As a corollary to the corporation’s duty to designate
and prepare a witness, it must perform a reasonable inquiry for
information that is reasonably available to it.” Id. at 689.

x) “A corporation must provide responsive answers even if the
information was transmitted through the corporation’s lawyers.” Id. at
689.

xi) “In responding to a Rule 30(b)(6) notice or subpoena, a corporation
may not take the position that its documents state the company’s
position and that a corporate deposition is therefore unnecessary....
Similarly, a corporation cannot point to interrogatory answers in lieu of
producing a live, in-person corporate representative designee...
Preparing a Rule 30(b)(6) may be an onerous and burdensome task, but
this consequence is merely an obligation that flows from the privilege
of using the corporate form to do business.” Id. at 689.

xii) “Not only must the designee testify about facts within the corporation’s
collective knowledge, including the results of an investigation initiated
for the purpose of complying with the 30(b)(6) notice, but the designee
must also testify about the corporation’s position, beliefs and opinions.”
Id. at 689.

xiii) “Corporations must act responsibly. They are not permitted to simply
declare themselves to be mere document gatherers. They must produce
live witnesses who have been prepared to provide testimony to bind the
entity and to explain the corporation’s position.” Id. at 690.

17. The testimony of Defendant, SIGNATURE HEALTHCARE, LLC’S,

corporate designee demonstrates, not only a lack of preparation by this Defendant-

corporation, but also a failure to participate in the discovery process in good faith.
Il. The Failure to Adequately Prepare a Corporate Designee to Testify as to
the Collective Knowledge of the Corporation is Tantamount to the
Failure to Appear at a Deposition.

18. In Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196

(5" Cir, 1993), the court held that “[w]hen a corporation or association designates a

person to testify on its behalf, the corporation appears vicariously through that agent.

If that agent is not knowledgeable about relevant facts, and the principal has failed

to designate an available, knowledgeable, and readily identifiable witness, then the

appearance is, for all practical purposes, no appearance at all.” Id. at 197. The court

affirmed the sanctions that the district court imposed. Id. at 198.

19, Once the notice is filed, the burden to educate and prepare a witness

falls on the corporation. “The corporate party then has an affirmative duty to educate

and to prepare the designated representative for the deposition. This duty requires a

Rule 30(b)(6) designee to testify to more than just what he or she personally knows.

The designee speaks for the organization as a whole and must make efforts to be

able to do so, That means the designee cannot be a potted plant.” Id. at 558. Pioneer

D rive, LLC v. Nissan Diesel America, Inc., 262 F.R.D. 552 (D. MT. 2009).

20. “Producing documents at the deposition in lieu of testimony, however,

is not a substitute for providing an educated deponent.” Id. at 560. The court

awarded sanctions, costs and attorney fees based on the corporation’s discovery

misconduct. Id. at 561.
Ii. Significant Sanctions are Appropriate Where a Corporation Fails to
Adequately Prepare its Designee or Otherwise Acts in Bad Faith During
the Conduct of a Corporate Designee Deposition.

21. Corporations must adhere to the requirements of the rule and not act in

bad faith in an attempt to circumvent the truth discovery process. A corporation’s

failure to provide adequately prepared corporate designee witnesses and other

actions taken in bad faith to circumvent the purpose and intent of the rule, warranted

an $850,000.00 award of sanctions according to the Eleventh Circuit Court of

Appeals in Sciarretta v. Lincoln Nat. Life Ins. Co., 778 F.3d 1205 (11" Cir. 2015).

Id. at 1213. In upholding the considerable sanctions award, the court held that the

“district court did not err, much less clearly err, when it found bad faith in Imperial’s

calculated preparations that produced the one-way witness that Imperial designated

to testify for it.” Id.

22. Similarly, in the present case, SIGNATURE HEALTHCARE, LLC,

and its counsels’ actions should be taken and treated as what they are: bad faith

intentions to further thwart the discovery process and stonewall the Plaintiff in its

ability to proceed with this action toward an ultimate resolution at trial. Defendant,

SIGNATURE HEALTHCARE, LLC, and its counsel have been aware of the topics,

the rules that govern the process, and the necessity to act in good faith since Plaintiff

first made its request to take the subject deposition on October 31, 2016. Please see

the deposition request letter attached hereto as “Plaintiff's Exhibit E.” They had

10
months to prepare their designee, but instead, used that time to fight and attempt to

circumvent this discovery process, thereby requiring Plaintiff to come to Court and

seek an Order compelling the deposition.

23. Then, as a last resort — and as if there would be no consequences — it

purposefully sent an ill-prepared witness to testify on the day of deposition. The

witness’ own words confirm that she was not prepared to address the duly noticed

topics which are critically important to Plaintiff's preparation of this case. These

facts and circumstances, when taken together, support a finding of bad faith of the

type that may only be properly remedied through an award of sanctions in an amount

that will communicate to this Defendant that it may no longer find it advantageous

to play fast and loose with the discovery process or further demonstrate such a lack

of disregard for the Orders of this Court.

WHEREFORE, Plaintiff respectfully requests that the Court enter an Order

compelling the deposition testimony of Defendant, SIGNATURE HEALTHCARE,

LLC, awarding sanctions, costs and attorney fees based upon the bad faith conduct

of this Defendant, and granting such other and further relief as justice requires.

11
NORTH PORT LAW FIRM
of Attorney James Keim, P.A.
4140 Woodmere Park Blvd., Suite 4
Venice, FL 34293
(941) 426-7900 Telephone
(941) 237-4904 Facsimile
staff@northportlawfirm.com

/s/ James E. Keim
JAMES E. KEIM
Florida Bar No.: 0085553
Counsel for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
furnished via email on this 5th day of July, 2017, to Counsel for Defendants, Colin P. Riley, Esq.
and John Coleman, Esq., Cole Scott & Kissane, P.A., 9150 S. Dadeland Blvd., Suite 1400, P.O.
Box 569015, Miami, FL 33256, colin.riley@csklegal.com. john.coleman@csklegal.com,
gregoria.fernandez@csklegal.com, lisa.bernardez@ecsklegal.com
ASa.DemMardezia/cskiegal.cCom and
diana.suarez@csklegal.com.

NORTH PORT LAW FIRM
of Attorney James Keim, P.A.
4140 Woodmere Park Blvd., Suite 4
Venice, FL 34293
(941) 426-7900 Telephone
(941) 237-4904 Facsimile
staff@northportlawfirm.com

/s/ James E. Keim
JAMES E. KEIM
Florida Bar No.: 0085553
Counsel for Plaintiff

12
PLAINTIFF'S
! EXHIBIT

IN THE CIRCUIT COURT OF THE TWENTIETH CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL DIVISION

ESTATE OF PATRICK J. MARKSBURY,
JUR., by and through BREANNE LEE
GLEASON and MEGAN PAGE BISSET as
Co-Personal Representatives,

Plaintiff,
-vs- CASE NO 16-1090-CA

LP MANAGER, LLC,
JOHN DOE
CORPORATION 1,
JOHN DOE
CORPORATION 2, LP PORT CHARLOTTE,
10 LLC, JOHN DOE CORPORATION 3,
SIGNATURE HEALTHCARE CLINICAL
11 CONSULTING SERVICES, LLC,
SIGNATURE HEALTHCARE CONSULTING
12 SERVICES, LLC, and SIGNATURE
HEALTHCARE, LLC, each engaged in
13 the business fictitiously named
Signature Healthcare of Port
14 Charlotte,

15 Defendants.

17 TRANSCRIPT OF PROCEEDINGS

18 DATE TAKEN Wednesday, January 4, 2017

19 TIME: 10:34 a.m. - 10:56 a.m.

20 PLACE: Charlotte County Justice Center
350 East Marion Avenue
21 Punta Gorda, Florida 33950

22 BEFORE: Honorable Lisa Porter

23 REPORTED BY: Julie D. Zittlow, RPR

24 GUARDIAN REPORTING, INC.
Serving All of Southwest Florida
25 (866) 430-DEPO

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APPEARANCES:

JAMES E. KEIM, Attorney at Law
NORTH PORT LAW FIRM of Attorney James Keim, PA.
P.O. Box 7810
North Port, Florida 34290
(941) 426-7900
email: Staff@NorthPortLawFirm.com
Appeared on behalf of the Plaintiff

COLIN P. RILEY, Attorney at Law
COLE, SCOTT & KISSANE, PA.
9150 Ss. Dadeland Blvd., Suite 1400
P.O. Box 569015
10 Miami, Florida 33256
(305) 294-4440
11 email: Colin.Riley@CSKLegal.com
John. Coleman@CSKLegal.com
12 Gregoria. Fernandez@CSKLegal.com
Lisa. Bernardez@CSKLegal.com
13 Appeared via telephone on behalf of the Defendants

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THE COURT: Marksbury versus LP Manager.

MR. KEIM: Yes, your Honor. Good morning,

James Keim on behalf of the plaintiff.

THE COURT: Who is on the phone?

MR. RILEY: Yes, your Honor, I'm sorry, this

is Colin Riley on behalf of the defendants. Can

you hear me okay?

THE COURT: IT can. Is there anyone else on

the phone? No? Okay.

10 MR. RILEY: No, just us. I represent all of

11 the defendants.

12 THE COURT: Okay, very good. All right. Go

13 ahead, Mr. Keim, your motion.

14 MR. KEIM: Thank you, your Honor. This is

15 our motion to compel the deposition date of a

16 corporate designee as well as a motion for

17 sanctions, and I have asked the Court to convene a

18 case management conference today so that we can

19 address this discovery issue. I brought my

20 calendar along and hopefully we can secure a date.

21 As you may recall, this is a nursing home

22 negligence case. We were here a couple of months

23 ago on the defendants! motions to dismiss. And at

24 that time Mr. Riley, counsel for defendants, asked

25 the Court to dismiss the corporation, the limited

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liability company that I'm seeking to depose the

designee of.

In his motion to dismiss, Page 8, he

represented that all other defendants named by the

plaintiff are either passive investors or clinical

consultants, and that included Signature

Healthcare, LLC. And as a result these passive

investors hold an ownership interest in the parent

company without any involvement in decision making

10 or operations of the licensee facility. So that's

11 the representation that was made to the Court.

12 Now, since then I have obtained through a

13 FOIA request the Medicare Cost Reports for the

14 subject nursing home facility that's located here

15 in Charlotte County. I have filed the cost report

16 for 2014 with the court record for the purpose of

17 the hearing today, and I have provided in my

18 materials a couple of pages of that cost report.

19 I have got a couple of additional pages here.

20 I think one of them is repetitive, but I would like

21 to supply it to the Court. And, for Mr. Riley's

22 benefit, it is simply Worksheet A. If I may

23 approach, your Honor?
24 THE COURT: You may.

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(Whereupon, the document was tendered to the

Court.)

MR. KEIM: It's A-81. The relevance here is

the cost report is -- basically it's -- to step

back, nursing homes get paid under Medicare's

respective payment system. For every resident

that's in the nursing home, they are required to do

an assessment called a minimum data set that's

uploaded to Medicare, and that reports all of the

10 resident's needs and also reports the census of the

11 nursing home.

12 Based on that data, Medicare determines how

13 much that particular nursing home should be

14 reimbursed or compensated. And part of that

15 component involves determining what amount of

16 resources must be provided so that adequate staff

17 is hired, trained, and provided for the benefit of

18 those residents based on the census in the building

19 and their acuity level, the level of sickness and

20 the degree to which they require assistance with

21 their activities of daily living.

22 So Medicare reimburses the nursing home based

23 on that reported data. And there's that

24 expectation built in that if your needs and your

25 census is up here (indicating) we're going to pay

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you commensurate with that up here (indicating) and

that that money will actually be used and spent

towards the hiring and employment of staff to meet

those residents that have the high-care needs.

So at the end of the year the corporate

entity comes in and files this Medicare Cost Report

on behalf of each facility that they own. This

particular company happens to own, I believe,

around 143 nursing homes throughout the country, so

10 it's one of the top ten operations in the country.

11 What this Medicare Cost Report tells us is

12 how well and to what effect they are using taxpayer

13 dollars for the purpose of paying or providing

14 adequate staffing and care to meet the needs of

15 each resident including Patrick Marksbury who was a

16 resident during this year of 2014.

17 Going back to the representation that was

18 made in the motion to dismiss where Signature

19 Healthcare, LLC was said to be just a passive

20 investor, we can see from this document alone that

21 there's a contradiction that's created.

22 Specifically if you look at the first page, I

23 highlighted "Administrative and General". What

24 this tells us is $4,365,000 and change was pulled

25 out of this building during 2014 for administrative

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=
and general costs.

Now, if you look just below that, where it

says "Skilled Nursing Facility", there's about a

million dollars less, a total of $3,383,000 and

change, that was utilized to hire and pay for

nurses, CNAs, a system director of nursing, the

director of nursing, and the administrator of that

building.

So according to this cost report more than --

10 well, they pulled out far more than they spent for

11 staffing the building for administrative and

12 general costs.

13 Now where did that money go? Well, if we

14 turn to the second page, we see codes that reflect

15 administrative and general costs, home office

16 management fees. And below that there's a figure

17 that's highlighted $925,982, almost $1 million for

18 home office costs.

19 Well, who was the home office? If we turn to

20 Worksheet A-81, at the bottom, Part 2,

21 interrelationship to related originations and/or

22 home office. Well, there they have none other than

23 Signature Healthcare, LLC, a named defendant in

24 this case. And what are they getting paid for?

25 Management. Now that sounds like it's a great deal

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more involved than simply being a passive investor

as was represented in motions filed with this

court.

Based on that management activity in the

operation of this nursing home, we believe that we

certainly have the right under the Florida Rules of

Civil Procedure to take the corporate designee

deposition of this named party defendant.

I anticipate that Mr. Riley is going to, you

10 know, say, well, Judge, this involves financial

il worth information, which it doesn't. This does not

12 get to the worth of the company. This is simply a

13 snapshot of the financial operation of this

14 individual particular nursing home for 2014.

15 But even if the Court is persuaded by that

16 argument, the Florida Supreme Court has told us

17 that if the pleadings raise an issue of finances in

18 a case, and in our case they do, particularly

19 paragraphs 39 through 43, then this information is

20 properly discoverable.

21 If I can approach, I don't believe I have

22 supplied this case. For the record, it's the Board

23 of Trustees of the Internal Improvement Trust Fund

24 versus American Educational Enterprises, LLC

25 reported at 99 So. 3d 450. It's a 2012 case.

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(Whereupon, the document was tendered to the

Court.)

THE COURT: So your claim, your complaint, is

more than just malpractice?

MR. KEIM: That's absolutely correct, your

Honor. This is a case of corporate misconduct and

the diversion of funds away from this building that

should have been used for patient care. Much like

you see in the Canavan case, which is a second

10 district case that I've provided to the Court,

11 where the argument was similar to this case you

12 have a nursing home company that for years ignored

13 common complaints of under-staffing, of the failure

14 to provide appropriate care to meet the residents'

15 needs, and each of those years those complaints

16 mounted, but they didn't change the financial

17 management of the company. And as a result people

18 continued to suffer until the subject resident

19 entered and met with a terrible result.

20 So it's analogous to the picture that's

21 presented in the Canavan case where the Court

22 reversed a directed verdict for the defendant and

23 allowed a punitive damage claim to remain based on

24 that evidence.

25 And it all derives from the Federal Nursing

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10

Home Reform Act, and I have provided the provision

of that act to the Court which is found at 42 CFR

483.25, I believe, which is the obligation that

each nursing home has an obligation to administer

and utilize the resources that the government pays

it to maximize the mental, physical, and

psychosocial well-being of each and every

individual resident. So that's where the duty

arises from.

10 I have not seen in any papers or motions or

11 responses that counsel for the defendants have

12 filed any legitimate basis that would counter our

13 right under the rules to take the deposition of the

14 corporate designee of a named party defendant in

15 this case.

16 The rules clearly say that the methods of

17 discovery may be used in any sequence. And the

18 only argument I have heard is, well this was just

19 a two-week residency, your Honor, and we have

20 provided 2,000 pages of documents.

21 I'm still waiting on discovery. Magistrate

22 Koch is going to be issuing a ruling. Mr. Riley

23 represented to the Court that he could provide

24 certain documents to us within 15 days, this was

25 back on December 16th, by letter, and we still

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11

don't have those documents. I still don't even

have verified interrogatory answers. I have been

met with nothing but obstruction from day one in

this case.

So the argument that we haven't done much

other discovery or taken other depositions? Well,

their dilatory practices, frankly, your Honor, have

prevented me from doing so.

THE COURT: Okay.

10 MR. KEIM: Thank you.

11 THE COURT: Mr. Riley?

12 MR. RILEY: Your Honor, if I may, as

13 plaintiff's counsel, Mr. Keim, alluded to, this is

14 a two-week

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PORTER, LISA S Track Judge’s New Case

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Document Filed Date

November 15, 2049

Case Filing Date

June 22, 102

County

Parties

BISSET, MEGAN PAGE Plaintiff
COLEMAN, JOHN D Attorney
COLEMAN, JOHN D Attorney for the Defendant
ESTATE OF PATRICK J. MARKSBURY, JR., BY AND THROUGH BREANNE LEE GLEASON Plaintiff
HOOKS, NURSING HOME ADMINISTRATOR, TRACY Defendant
JOHN DOE CORPORATION 1 Defendant
JOHN DOE CORPORATION 2 Defendant
JOHN DOE CORPORATION 3 Defendant
KEIM, JAMES E Attorney
LP MANAGER, LLC Defendant
LPMM, INC. Defendant
LP O HOLIDNGS, LLC Defendant
LP PORT CHARLOTTE, LLC Defendant
PORTER, LISA S Judge
RILEY, COLIN P Attorney
RILEY, COLIN P Attorney for the Defendant
SIGNATURE HEALTHCARE CLINICAL CONSULTING SERVICES, LLC Defendant
SIGNATURE HEALTHCARE CONSULTING SERVICES, LLC Defendant
SIGNATURE HEALTHCARE, LLC, EACH ENGAGED IN THE BUSINESS FICTITIOUSLY NAMED SIGNATURE HEALTHCARE OF PORT CHARLOTTE Defendant
SIGNATURE PAYROLL SERVICES, LLC Defendant
John Cole Attorney

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Document for ESTATE OF PATRICK J. MARKSBURY, JR., BY AND THROUGH BREANNE LEE GLEASON vs. LP MANAGER, LLC

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