Preview
Filing # 142363593 E-Filed 01/20/2022 04:39:39 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,
v.
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.
/
PLAINTIFF'S REPLY TO HCA'S RESPONSE TO PLAINTIFF'S MOTION TO
RECONSIDER OR REHEAR
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,
and hereby replies Defendant, HCA’S Response to Plaintiff’s Motion to Reconsider or Rehear
the Order Granting HCA’s Amended and Restated Motion for Summary Judgment.
1. Plaintiff filed relevant deposition testimony and documentary evidence, making it a
factual issue as to whether or not HCA owned and operated the Osceola Regional Hospital. The
deposition testimony was clear and unambiguous. The deponent, Kimberly Schantz, testified
that HCA owned and operated Osceola Hospital. The fact that her testimony is in direct conflict
with another HCA representative, Michael Bray, makes it a question of fact. The fact that she
was "not prepared" is irrelevant as her testimony alone makes it a question of fact.
2. The fact that Ms. Schantz signed an errata sheet does not negate her testimony. The
law in Florida is clear that both her direct testimony and the errata sheet are admissible as
discussed in Plaintiffs’ motion for rehearing. If the Defendant’s position was correct, all kinds of
fraud would be presented in the court system where deposition testimony can be changed
materially through an errata sheet.
3. The documentary evidence also indicates that HCA owned and operated hospitals. The
fact that the documents conflict within themselves makes it a question of fact. Based on the
conflicting statements in HCA’s own documents, the jury needs to decide whether HCA owned
and operated the hospital at issue. Those are all questions of fact that need to be resolved by a
jury. See Oracle Elevator Company v. Omni at Coral Way, Inc. (Fla. 3rd DCA Jan 12, 2022),
2022 WL 108430:
The parties provided copies of the same alleged contract to the trial court, one
signed and one unsigned. There is a genuine issue of material fact on the basic
question of whether the parties had a signed agreement. This is a question for
the trier of fact that cannot be resolved on summary judgment.
4. Notwithstanding the changes in the procedural rule, the law does not require the
Plaintiff to supply conclusive and irrefutable proof of her claims to survive summary judgement.
See, Britt v. Wal-Mart Stores E., LP, 18-61323-CIV, 2019 WL 3890458 (S.D. Fla. May 13,
2019). The Britt Court reasoned that Rule 56, imposed no such requirement and that summary
judgement must be denied where reasonable minds can disagree on the inferences to be drawn
from the record evidence. St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d
815, 819 (11th Cir. 1999).
5. The court must view all evidence and draw all reasonable inferences in favor of the
non- moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). "[I]f reasonable minds might differ
on the inferences arising from undisputed facts, then the court should deny summary judgment."
St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999)
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order granting
Plaintiffs’ Motion to Reconsider or Rehear the Order Granting HCA’s Amended and Restated
Motion for Summary Judgment and any other relief this Court deems necessary and proper.
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 20th day of January, 2022.
/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@bsj-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@bipc.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
Preview
Filing # 142363593 E-Filed 01/20/2022 04:39:39 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, v. 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. / PLAINTIFF'S REPLY TO HCA'S RESPONSE TO PLAINTIFF'S MOTION TO RECONSIDER OR REHEAR 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, and hereby replies Defendant, HCA’S Response to Plaintiff’s Motion to Reconsider or Rehear the Order Granting HCA’s Amended and Restated Motion for Summary Judgment. 1. Plaintiff filed relevant deposition testimony and documentary evidence, making it a factual issue as to whether or not HCA owned and operated the Osceola Regional Hospital. The deposition testimony was clear and unambiguous. The deponent, Kimberly Schantz, testified that HCA owned and operated Osceola Hospital. The fact that her testimony is in direct conflict with another HCA representative, Michael Bray, makes it a question of fact. The fact that she was "not prepared" is irrelevant as her testimony alone makes it a question of fact. 2. The fact that Ms. Schantz signed an errata sheet does not negate her testimony. The law in Florida is clear that both her direct testimony and the errata sheet are admissible as discussed in Plaintiffs’ motion for rehearing. If the Defendant’s position was correct, all kinds of fraud would be presented in the court system where deposition testimony can be changed materially through an errata sheet. 3. The documentary evidence also indicates that HCA owned and operated hospitals. The fact that the documents conflict within themselves makes it a question of fact. Based on the conflicting statements in HCA’s own documents, the jury needs to decide whether HCA owned and operated the hospital at issue. Those are all questions of fact that need to be resolved by a jury. See Oracle Elevator Company v. Omni at Coral Way, Inc. (Fla. 3rd DCA Jan 12, 2022), 2022 WL 108430: The parties provided copies of the same alleged contract to the trial court, one signed and one unsigned. There is a genuine issue of material fact on the basic question of whether the parties had a signed agreement. This is a question for the trier of fact that cannot be resolved on summary judgment. 4. Notwithstanding the changes in the procedural rule, the law does not require the Plaintiff to supply conclusive and irrefutable proof of her claims to survive summary judgement. See, Britt v. Wal-Mart Stores E., LP, 18-61323-CIV, 2019 WL 3890458 (S.D. Fla. May 13, 2019). The Britt Court reasoned that Rule 56, imposed no such requirement and that summary judgement must be denied where reasonable minds can disagree on the inferences to be drawn from the record evidence. St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999). 5. The court must view all evidence and draw all reasonable inferences in favor of the non- moving party. Scott v. Harris, 550 U.S. 372, 380 (2007). "[I]f reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment." St. Charles Foods, Inc. v. America's Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) WHEREFORE, Plaintiffs respectfully request that this Court enter an Order granting Plaintiffs’ Motion to Reconsider or Rehear the Order Granting HCA’s Amended and Restated Motion for Summary Judgment and any other relief this Court deems necessary and proper. 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 20th day of January, 2022. /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@bsj-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@bipc.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