Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
RUTH SNYDER, EXECUTOR OF THE
ESTATE OF BENJAMIN SNYDER,
Case No: 22-CV-7566
Plaintiff
VS, Judge Jaiza Page
DUBLIN CONVALARUIM OPERATING
COMPANY, LLC D/B/A THE PLAINTIFF’S MOTION TO
CONVALARIUM, et al. COMPEL DISCOVERY
Defendants.
Now come the Plaintiff seeking the Court’s assistance in compelling complete discovery
responses to Plaintiff's First Set of Interrogatories and Request for Production of Documents.
The reasons supporting this Motion are attached in the brief and exhibits attached hereto.
/S/ Nancy C. Iler
NANCY C. ILER (0038955)
Nancy C. Iler Law Firm LLC
1360 West 9" Street, Ste. 202
Cleveland, Ohio 44113
Phone: 216.696.5700
Fax: 216.522.9007
Email: nancy. iler@ilerlawfirm.net
and
/s/ Craig S. Tuttle
CRAIG S. TUTTLE (0086521)
Leeseberg Tuttle
175 S. Third Street, Penthouse One
Columbus, Ohio 43215
Phone: 614.221.2223
Fax: 614.221.3106
Email: ctuttle@leeseberglaw.com
Counsel for Plaintiff
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
BRIEF
Introduction
This negligence and wrongful death action is brought on behalf of Plaintiff, Ruth Snyder wife
of Benjamin Snyder who was admitted to Defendants nursing home for only 18 days for short term
rehabilitation .The facts here are simple and compelling . Mr. Snyder did not have a pressure ulcer
when he was admitted to Defendants’ nursing home but within 10 days had a large ulcer on his
sacrum. This pressure ulcer became infected, the infection spread causing his untimely and
preventable death just weeks later .
Facts
The case was filed on October 28, 2022 against Defendants Dublin Convalarium DBA, The
Convalarium and HG Ohio Operations, LLC . On February 17, 2023, Plaintiff's served her first
set of Interrogatories and Request for Production of Documents. Defendants responses which were
due on March 17 but responses were not served until weeks after the due date. When they did
respond, the responses were woefully incomplete, for example failing to supply name of a nurse
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
aide who first reported the large pressure ulcer ( Interrogatory No. 3) and failing to produced a
complete care record for Mr. Snyder’s 18 day stay. ( Exhibit 1)
Counsel reached out with an email on May 11" setting forth the incomplete answers and
requested supplementation by May 19" ( Exhibit 2). No phone call, no email , no response.
There continues to be no response from Defendants about these incomplete discovery
responses which are necessary for the planning of depositions and further written discovery so
that all the facts are known .
Plaintiff is requesting an order compelling full and complete responses to this discovery.
Law and Argument
The Ohio rules are clear that discovery requests must be fully and completely answered.
Ohio Civil Rule 37 allows for a party to move for complete and timely answers to discovery and
states in part:
Motion for an order compelling discovery.
(1) In general. On notice to other parties and all affected persons, a party may move for an
order compelling discovery. The motion shall include a certification that the movant has
in good faith conferred
(2) or attempted to confer with the person or party failing to make discovery in an effort to
obtain it without court action.
(2) Appropriate court, A motion for an order to a party or a deponent shall be made to the
court where the action is pending.
(3) Specific motions. (a) To compel a discovery response. A party seeking discovery may
move for an order compelling an answer, designation, production, or inspection. This motion
may be made if: (i) A deponent fails to answer a question asked under Civ.R. 30 or Civ.R. 31; (ii)
A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A);
(iii) A party fails to answer an interrogatory submitted under Civ.R. 33; (iv) A party fails to
respond that inspection will be permitted--or fails to permit inspection--as requested under
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
Civ.R. 34. (b) Related to a deposition. When taking an oral deposition, the party asking a
question may complete or adjourn the examination before moving for an order.
(4) Evasive or incomplete answer or response. For purposes of division (A) of this rule, an
evasive or incomplete answer or response shall be treated as a failure to answer or respond.
Probably most important to the issue before this Court, is subsection 4 of rule 37 , which
states that an incomplete answer is a failure to answer .
The discovery requests have not been onerous and Plaintiffs counsel has reach out many
time to engage in a solution and yet no response from Defendants .
Conclusion
For the reasons set forth herein Plaintiff's request this Court to grant Plaintiff's Motion to
Compel Discovery and Order the Defendants to respond completely to Plaintiffs’ First set of
Interrogatories and First, Request for Production of Documents with 10 days of this Court’s
order granting Plaintiff's Motion.
Respectfully Submitted,
/S/ Nancy C. Iler
NANCY C. ILER (0038955)
Nancy C, Iler Law Firm LLC
1360 West 9" Street, Ste. 202
Cleveland, Ohio 44113
Phone: 216.696.5700
Fax: 216.522.9007
Email: nancy.iler@ilerlawfirm.net
and
/s/ Craig S. Tuttle
CRAIGS, TUTTLE (0086521)
Leeseberg Tuttle
175 S. Third Street, Penthouse One
Columbus, Ohio 43215
Phone: 614.221.2223
Fax: 614.221.3106
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
Email: ctuttle@leeseberglaw.com
Counsel for Plaintiff
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the forgoing has been filed this day 25"
day of May via the electronic filing system and as such will be forwarded to all counsel of
record
/s/ NANCY C. ILER
NANCY C. ILER (0038955)
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
RUTH SNYDER, Executor of the Estate ) CASE NO. 22 CV 007566
of BENJAMIN SNYDER, Deceased, )
JUDGE JAIZA N PAGE
Plaintiff,
DEFENDANTS ANSWERS,
Vv. RESPONSES, AND OBJECTIONS TO
PLAINTIFF’S FIRST SET OF
DUBLIN CONVALARIUM INTERROGATORIES AND
OPERATING COMPANY, LLC d/b/a REQUESTS FOR PRODUCTION OF
THE CONVALARIUM, et al., DOCUMENTS
Defendants.
Now come the Defendants, Dublin Convalarium Operating Company, LLC d/b/a
The Convalarium and HG Ohio Operations, LLC (hereinafter “Defendants”), by and
through the undersigned legal counsel, and submit the following for their Answers,
Responses and Objections to Plaintiff's First Set of Interrogatories and First Requests for
Production of Documents as follows:
General Objections
1 Defendants object to Plaintiff's Discovery Requests to the extent that they seek
information protected by the attorney-client privilege, work product doctrine
(including, without limitation, Defendants’ attorneys’ mental impressions,
conclusions, opinions, and legal theories), and the joint defense and common
interest privilege. Any inadvertent disclosure of material protected by any such
applicable privilege is not intended to, and should not be construed to, constitute a
waiver of such privilege. Defendants request that any inadvertently produced
privileged document be returned immediately to Defendants.
Defendants also object to Plaintiff’s Discovery Requests to the extent that they seek
information that Defendants considers proprietary and/or confidential. Defendants
may produce their proprietary and/or confidential information, if any, subject to the
parties stipulating to a protective order.
PLAINTIFF'S
EXHIBIT
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L5
Defendants object to the “Instructions” and “Definitions” preceding the Discovery
Requests on the grounds that they are vague, ambiguous, seek irrelevant
information that is not proportional to the needs of the case in violation of Ohio
Civil Rule 26(B)(1), and seek to impose obligations on Defendants which are
greater than, or inconsistent with, those obligations imposed by the Ohio Rules of
Civil Procedure. Defendants will respond to the Discovery Requests in accordance
with its obligations under the Ohio Rules of Civil Procedure.
Defendants object to the Discovery Requests to the extent they seek “all,” “any,”
“any and all,” “each and every,” and/or “every” document, information, or facts.
Defendants reserve their right to amend responses to these Discovery Requests.
These “General Objections” are applicable to and are incorporated into each of
Defendants’ responses to the Discovery Requests. Moreover, Defendants’
responses are made subject to and without waiving these objections. Failing to state
a specific objection to a particular Discovery Request should not be construed as a
waiver of these General Objections.
Defendants’ discovery responses are made without a waiver of, and with preservation of:
. All questions as to competency, relevancy, materiality, privilege and admissibility
of the responses and the subject matter thereof as evidence for any purpose in any
further proceedings in this action and in any other action.
The right to object to the use of any such responses or the subject matter thereof,
on any ground in any further proceedings of this action and in any other action.
The right to object on any ground at any time to a demand or request for a further
response to the Discovery Requests or any other discovery involving or relating to
the subject matter of the Discovery Requests herein responded to.
The right at any time to revise, correct, add to, supplement or clarify any of the
responses contained herein and to provide information and produce evidence of any
subsequently discovered facts.
The right to assert additional privileges if warranted by new documents or evidence
discovered at a later date.
The right to assert the attorney-client privilege, attorney work product doctrine,
joint defense or common interest privilege, proprietary nature, or confidentiality of
any information inadvertently produced herein and to object to the use of any such
information, or the information obtained therefrom, for any purpose in any further
proceedings in this action and in any other action.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
ANSWERS TO INTERROGATORIES
INTERROGATORY NO. 1:
Identify the name of the person answering or assisting with answering these Interrogatories.
ANSWER: Objection. These Interrogatories are directed to entities and
corporations with Answers not derived from the personal knowledge of any single
individual, but rather records, knowledge that cannot be attributed to any single
individual or employee. Without waiving the objection, Shawn McMahon, in part,
with objections and assistance of counsel.
INTERROGATORY NO. 2:
Describe the exact legal relationship between each corporate Defendant set forth in
Plaintiffs Compliant.
ANSWER: HG Ohio Operations owned The Convalarium until December 31, 2022.
INTERROGATORY NO. 3:
Identify by name, home address the STNA who was referenced in the note on 10/29/21 “
STNA came to this nurse while changing patient on assessment, patient noted to have
pressure wound to coccyx.....” (see attached note)
ANSWER: Defendant does not have this information at this time. Will supplement.
INTERROGATORY NO. 4:
Please identify each registered nurse, licensed practical nurse, nursing aide, and/or certified
nursing assistants who were assigned to care for Benjamin Snyder and is believed to have
provided care during his admission beginning on October 17, 2021 until his discharge.
(referring to the chart instead of answering this interrogatory is a failure to answer as many
of the individuals are not identified in the record)
ANSWER: See previously provided records, including Point Click Care records that
clearly identify individual providers by name. Defendants may provide supplemental
response to more specifically tailored request.
DAY/DATE Morning Afternoon/Evening | Night
Sunday --/--/--
Monday --/--/--
Tuesday --/--/--
Wednesday --/--/--
Thursday --/--/--
Friday --/-/--
Saturday ll
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
INTERROGATORY NO. 5:
Identify by name, most current or last known home address and dates employed,
individuals who held the following positions at the facility for the relevant time period
October 1, 2021- November 30, 2021 ;
(a) Medical Director;
(b) Nursing Home Administrator(s);
(c) Director of Nursing(s);
(d) Assistant Director(s) of Nursing;
(e) Head, charge, and/or floor nurses for the unit, wing or hallway on which Mr.
Snyder resided;
(f) Wound nurse
(g) Wound physician
(i) MDS nurse
ANSWER:
(a) Raymond Pongonis
(b) Jennifer Mattison
(c) Erin Phillips
(d) Will supplement
(e) Will supplement
(f) Will supplement
(g)Vohra Wound Physicians
(i) Jennifer Williams
INTERROGATORY NO. 6:
Do you contend that any other persons or entities, including the Plaintiff or Decedent, are
at fault or contributed to the damages complained of in this lawsuit, and, if so, please state
the names and addresses of all persons or entities whom the Defendant claims are at fault
or contributed to the damages complained of and state a summary of the grounds for such
allegation of fault or contribution
ANSWER: Objection. This Interrogatory is premature as discovery is just beginning
and seeks an expert opinion. Without waiving the objection, Defendants will
supplement this response as appropriate.
INTERROGATORY NO. 7:
Please state any and all facts upon which you base each of the affirmative defenses this
Defendant has asserted in your answer to Plaintiff's complaint.
ANSWER: Objection. This Interrogatory is premature as discovery is just
beginning. Without waiving the objection, Defendants. will consider withdrawal of
affirmative defenses unsupported by the facts as discovery continues.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L6é
INTERROGATORY NO. 8:
List the title of every Policy and Procedure Manuel that was in effect in 2021, that had as
its subject manner any aspect of the operation and management of a nursing home, hiring
, training and supervision of staff, and/or any aspect of the care and treatment of the nursing
home resident.
ANSWER: Will supplement.
INTERROGATORY NO. 9:
Please state the name and address of every person known to you to have knowledge of the
occurrence in question or to possess other facts or information discoverable in this action
pursuant to the Civil Rules.
ANSWER: Objection. The decision as to which witness, if any, to produce at Trial is
a decision that will have to be made by Defendant’s Trial counsel after completion of
Plaintiff’s case at Trial. This Interrogatory is an attempt to invade the Work Product
Rule set forth in Hickman y. Taylor, 329 U.S. 495 (1947) and its progeny. Without
waiving the objection, Defendant will identify witnesses at the appropriate time in
accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any
applicable Court Orders. Without waiving the foregoing objections, at a minimum,
any and all medical and care providers of Mr. Snyder identified in the records.
INTERROGATORY NO. 10:
Please state the name and address of each and every lay witness whom you expect to call
at the trial of this action, and for each witness, briefly state the subject matter of the
anticipated testimony.
ANSWER: Objection. The decision as to which witness, if any, to produce at Trial is
a decision that will have to be made by Defendant’s Trial counsel after completion of
Plaintiff’s case at Trial. This Interrogatory is an attempt to invade the Work Product
Rule set forth in Hickman v. Taylor, 329 U.S. 495 (1947) and its progeny. Without
waiving the objection, Defendant will identify witnesses at the appropriate time in
accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any
applicable Court Orders. Without waiving the foregoing objections, at a minimum,
any and all medical and care providers of Mr. Snyder.
INTERROGATORY NO. 11:
Please state the name and address of each and every expert witness whom you expect to
call at the trial of this action, and for each witness, briefly state the subject matter of the
anticipated testimony and the facts known and opinions held by said expert relative to the
subject matter of this action.
ANSWER: Objection. Work product, premature. Without waiving the objection,
Defendants will identify its expert witnesses and produce their reports in accordance
with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any applicable
Court Orders.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
Email: ctuttle@leeseberglaw.com
Counsel for Plaintiff
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the forgoing has been filed this day 25"
day of May via the electronic filing system and as such will be forwarded to all counsel of
record
/s/ NANCY C. ILER
NANCY C. ILER (0038955)
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
INTERROGATORY NO. 12:
Please identify all exhibits, which you intend to use at trial.
ANSWER: Objection. Work product, premature. Without waiving the objection,
Defendant will identify exhibits in accordance with the Local Rules of Court, the Ohio
Rules of Civil Procedure, and any applicable Court Orders. Answering further and
without waiver, Defendants anticipate that at a minimum the medicals records
obtained and/or produced in discovery will be introduced as exhibits at trial.
AS TO OBJECTIONS:
/s/Jason P. Ferrante
JASON P. FERRANTE (0078480)
Counsel for Defendants
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
RESPONSES TO REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1:
Produce copies of all insurance documents in their entirety that afford potential coverage for
the alleged negligence and damages contained in Plaintiff's Complaint.
ANSWER: See attached Declaration Page. Will Supplement.
REQUEST FOR PRODUCTION NO. 2:
Produce the personnel file for the following named persons or for person who had the title
from October 1, 2021- November 30, 2021. The social security number, personal health
information and banking information can be redacted:
a) Medical Director
b) Administrator,
°) Director of Nursing ( Erin Phillips)
d) Kristen Bohland LPN
°) George Matalda LPN
f) Yinghong Guo, RN
8) Lori Berning LPN
h) Alia Shubally RN
i) Bartilyn Seneh LPN
i Jennifer Williams RN
k) Jennifer Bidka RN
ANSWER: Defendant does not currently possess responsive documents. Will
supplement.
REQUEST FOR PRODUCTION NO. 3:
Produce the job descriptions for the following positions in effect during the relevant time
period (see definitions) :
Medical Director
Administrator,
Director of Nursing,
Assisted Director of Nursing ,
‘Wound care nurse,
Wound care physician ,
RN,
LPN
STNA
MDS Nurse
ANSWER: Defendant does not currently possess responsive documents. Will
supplement.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
REQUEST FOR PRODUCTION NO. 4:
Produce all contracts that each Defendant has with each other or other vendors which
concerned the operation of the facility, in effect for the year 2020 and 2021.
ANSWER: Objection. This request is vague, ambiguous, overly broad and not
reasonably calculated to lead to the discovery of admissible evidence.
REQUEST FOR PRODUCTION NO. 5:
Produce the title page and complete indexes for all Policy and Procedure Manuals (including
but not limited to care manuals) in effect at the facility during the year 2021.
ANSWER: Defendant does not currently possess responsive documents. Will
supplement.
REQUEST FOR PRODUCTION NO. 6:
Produce the specific Policies and Procedures which refer to and/or discuss skin assessments,
pressure ulcer assessment, pressure ulcer prevention and treatment, change of condition,
Pressure Injury Prevention and Management Policy and care plan.
ANSWER: Defendant does not currently possess responsive documents. Will
supplement.
REQUEST FOR PRODUCTION NO. 7:
Map of the facility, showing all units and hallways.
ANSWER: Will supplement.
REQUEST FOR PRODUCTION NO. 8:
Produce the complete Resident Care Record for Benjamin Snyder for his admission to
Defendants facility, including any and all care records, ADLs records, medical records and
business files. Please produce these records as color copies, bates-stamped and certified.
ANSWER: See previously provided documents and Point Click Care records produced
on or about April 13, 2023.
REQUEST FOR PRODUCTION NO. 9:
Produce copies billing that you submitted to any provider concerning your care and treatment
of Benjamin Snyder.
ANSWER: See attached.
REQUEST FOR PRODUCTION NO. 10:
Produce copies of Daily Shift Logs or staffing sheets which identify the persons working at
the facility from October 1, 2021 to November 6, 2021.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
ANSWER: Defendant does not currently possess responsive documents. Will
supplement.
REQUEST FOR PRODUCTION NO. 11:
Any and all medical literature that you will introduce at trial of this case.
ANSWER: Objection. This seeks work product and is premature as discovery is just
beginning. Without waving the objection, Defendants will identify experts and exhibits
in accordance with Local Rules, Rules of Civil Procedure and applicable Court Orders.
REQUEST FOR PRODUCTION NO. 12:
Any and all exhibits you plan to use at trial.
ANSWER: See Objection and Answer to Interrogatory No. 12.
REQUEST FOR PRODUCTION NO. 13:
Any and all emails or other communication that reference in any way Benjamin Snyder and
his admission to the Defendants facility
ANSWER: Objection. This Request is vague, ambiguous, overly broad and unduly
burdensome. Defendants may consider responding to a more tailored request.
AS TO OBJECTIONS:
/s/Jason P. Ferrante
JASON P. FERRANTE (0078480)
Counsel for Defendants
Respectfully submitted,
MARSHALL, DENNEHEY, WARNER,
COLEMAN & GOGGIN
By: /s/Jason P. Ferrante
JASON P. FERRANTE (0078480)
127 Public Square, Suite 3510
Cleveland, Ohio 44114
Phone: (216) 912-3800
Fax: (216) 344-9006
Email: jpferrante@mdweg.com
Counsel for Defendants
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - Lé
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was forwarded to all
counsel of record by:
X___ E-Mail Transmission
at the following address:
Nancy C. Idler, Esq. Craig S. Tuttle, Esq.
Nancy. iler@ilerlawfirm.net ctuttle@leeseberglaw.com
Counsel for Plaintiff Counsel for Plaintiff
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGIN
By:__/s/Jason P. Ferrante
JASON P. FERRANTE (0078480)
Counsel for Defendants
Date: May 2, 2023
10
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566
0G402 - L6é
Nancy C. Iler
From Nancy C. ller
Sent: Thursday, May 11, 2023 3:15 PM
To: Peterson, Bridget; Craig S. Tuttle
Ce: Ferrante, Jason P.; Nancy C. ller
Subject: RE: Snyder v. Dublin Convalarium // Defendants’ Responses to Plaintiff's Discovery
Follow Up Flag: Follow up
Due By: Thursday, May 18, 2023 11:00 AM
Flag Status: Flagged
Jason,
The Defendants responses to Plaintiff’s First Set of Interrogatories and Request for Production of Documents are
woefully incomplete as to be a failure to answer . For example:
. Interrogatory No. 3 asks for the name and address of the STNA who was referenced in the note of 10/29/21
and the response is “ Defendant does not have this information at this time “. Will supplement
. Interrogatory No. 5 ( E) requests the names of the nurses who cared for Mr. Snyder and the response is “
Will Supplement “
e Interrogatory No. 5 (F) requests the name of the wound nurse and the response is “ Will supplement “
. Interrogatory No. 8 requests the title to all Policy Manuals and the response is “ Will supplement “
The responses to the document requests are equally unresponsive :
. Request for Production of Documents No. 2 requests the personnel files for 11 persons who cared for Mr.
Snyder including the Administrator, Director of Nursing and nurses and the response is “ Defendant does not
currently possess responsive documents . Will Supplement”
Request for Production of Documents No. 3 requests the job descriptions for Administrator, Director of
Nursing and nurses other and the response is “ Defendant does not currently possess responsive documents
. Will Supplement.”
Request for Production of Documents No. 5 requests the Indexes to all Policy and Procedure Manuals and
the response is “ Defendant does not currently possess responsive documents . Will Supplement.”
Request for Production of Documents No. 7 requests a map of the facility and the response is, “ Will
Supplement.”
Request for Production of Documents No. 8 requests the complete Resident Care Record for Mr. Snyder and
the response is previously provided . The care record provided is not at all complete and was not bates
stamped or certified as complete .
Request for Production of Documents No. 10 requests the Daily Shift or staffing logs for October 1, 2021 -
November 6, 2021 and the response is “ Defendant does not currently possess responsive documents . Will
Supplement.”
These incomplete responses constitute a failure to respond .Without complete responses we cannot proceed
with taking depositions . Also Defendants have failed to produce a complete and certified Resident Care record for Mr.
Snyder .
Please fully and completely respond to this discovery, which was served in February, on or before May 19" or |
will have no choice but to file a Motion to Compel .
It is clear we need assistance in moving this case along , | am advising the Court that a status conference is
needed and ask that one we scheduled as soon as possible
Best,
PLAINTIFF’S
Nancy EXHIBIT
Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO RUTH SNYDER, EXECUTOR OF THE ESTATE OF BENJAMIN SNYDER, Case No: 22-CV-7566 Plaintiff VS, Judge Jaiza Page DUBLIN CONVALARUIM OPERATING COMPANY, LLC D/B/A THE PLAINTIFF’S MOTION TO CONVALARIUM, et al. COMPEL DISCOVERY Defendants. Now come the Plaintiff seeking the Court’s assistance in compelling complete discovery responses to Plaintiff's First Set of Interrogatories and Request for Production of Documents. The reasons supporting this Motion are attached in the brief and exhibits attached hereto. /S/ Nancy C. Iler NANCY C. ILER (0038955) Nancy C. Iler Law Firm LLC 1360 West 9" Street, Ste. 202 Cleveland, Ohio 44113 Phone: 216.696.5700 Fax: 216.522.9007 Email: nancy. iler@ilerlawfirm.net and /s/ Craig S. Tuttle CRAIG S. TUTTLE (0086521) Leeseberg Tuttle 175 S. Third Street, Penthouse One Columbus, Ohio 43215 Phone: 614.221.2223 Fax: 614.221.3106 Email: ctuttle@leeseberglaw.com Counsel for Plaintiff Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 BRIEF Introduction This negligence and wrongful death action is brought on behalf of Plaintiff, Ruth Snyder wife of Benjamin Snyder who was admitted to Defendants nursing home for only 18 days for short term rehabilitation .The facts here are simple and compelling . Mr. Snyder did not have a pressure ulcer when he was admitted to Defendants’ nursing home but within 10 days had a large ulcer on his sacrum. This pressure ulcer became infected, the infection spread causing his untimely and preventable death just weeks later . Facts The case was filed on October 28, 2022 against Defendants Dublin Convalarium DBA, The Convalarium and HG Ohio Operations, LLC . On February 17, 2023, Plaintiff's served her first set of Interrogatories and Request for Production of Documents. Defendants responses which were due on March 17 but responses were not served until weeks after the due date. When they did respond, the responses were woefully incomplete, for example failing to supply name of a nurse Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 aide who first reported the large pressure ulcer ( Interrogatory No. 3) and failing to produced a complete care record for Mr. Snyder’s 18 day stay. ( Exhibit 1) Counsel reached out with an email on May 11" setting forth the incomplete answers and requested supplementation by May 19" ( Exhibit 2). No phone call, no email , no response. There continues to be no response from Defendants about these incomplete discovery responses which are necessary for the planning of depositions and further written discovery so that all the facts are known . Plaintiff is requesting an order compelling full and complete responses to this discovery. Law and Argument The Ohio rules are clear that discovery requests must be fully and completely answered. Ohio Civil Rule 37 allows for a party to move for complete and timely answers to discovery and states in part: Motion for an order compelling discovery. (1) In general. On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion shall include a certification that the movant has in good faith conferred (2) or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action. (2) Appropriate court, A motion for an order to a party or a deponent shall be made to the court where the action is pending. (3) Specific motions. (a) To compel a discovery response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) A deponent fails to answer a question asked under Civ.R. 30 or Civ.R. 31; (ii) A corporation or other entity fails to make a designation under Civ.R. 30(B)(5) or Civ.R. 31(A); (iii) A party fails to answer an interrogatory submitted under Civ.R. 33; (iv) A party fails to respond that inspection will be permitted--or fails to permit inspection--as requested under Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 Civ.R. 34. (b) Related to a deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. (4) Evasive or incomplete answer or response. For purposes of division (A) of this rule, an evasive or incomplete answer or response shall be treated as a failure to answer or respond. Probably most important to the issue before this Court, is subsection 4 of rule 37 , which states that an incomplete answer is a failure to answer . The discovery requests have not been onerous and Plaintiffs counsel has reach out many time to engage in a solution and yet no response from Defendants . Conclusion For the reasons set forth herein Plaintiff's request this Court to grant Plaintiff's Motion to Compel Discovery and Order the Defendants to respond completely to Plaintiffs’ First set of Interrogatories and First, Request for Production of Documents with 10 days of this Court’s order granting Plaintiff's Motion. Respectfully Submitted, /S/ Nancy C. Iler NANCY C. ILER (0038955) Nancy C, Iler Law Firm LLC 1360 West 9" Street, Ste. 202 Cleveland, Ohio 44113 Phone: 216.696.5700 Fax: 216.522.9007 Email: nancy.iler@ilerlawfirm.net and /s/ Craig S. Tuttle CRAIGS, TUTTLE (0086521) Leeseberg Tuttle 175 S. Third Street, Penthouse One Columbus, Ohio 43215 Phone: 614.221.2223 Fax: 614.221.3106 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 Email: ctuttle@leeseberglaw.com Counsel for Plaintiff CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the forgoing has been filed this day 25" day of May via the electronic filing system and as such will be forwarded to all counsel of record /s/ NANCY C. ILER NANCY C. ILER (0038955) Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO RUTH SNYDER, Executor of the Estate ) CASE NO. 22 CV 007566 of BENJAMIN SNYDER, Deceased, ) JUDGE JAIZA N PAGE Plaintiff, DEFENDANTS ANSWERS, Vv. RESPONSES, AND OBJECTIONS TO PLAINTIFF’S FIRST SET OF DUBLIN CONVALARIUM INTERROGATORIES AND OPERATING COMPANY, LLC d/b/a REQUESTS FOR PRODUCTION OF THE CONVALARIUM, et al., DOCUMENTS Defendants. Now come the Defendants, Dublin Convalarium Operating Company, LLC d/b/a The Convalarium and HG Ohio Operations, LLC (hereinafter “Defendants”), by and through the undersigned legal counsel, and submit the following for their Answers, Responses and Objections to Plaintiff's First Set of Interrogatories and First Requests for Production of Documents as follows: General Objections 1 Defendants object to Plaintiff's Discovery Requests to the extent that they seek information protected by the attorney-client privilege, work product doctrine (including, without limitation, Defendants’ attorneys’ mental impressions, conclusions, opinions, and legal theories), and the joint defense and common interest privilege. Any inadvertent disclosure of material protected by any such applicable privilege is not intended to, and should not be construed to, constitute a waiver of such privilege. Defendants request that any inadvertently produced privileged document be returned immediately to Defendants. Defendants also object to Plaintiff’s Discovery Requests to the extent that they seek information that Defendants considers proprietary and/or confidential. Defendants may produce their proprietary and/or confidential information, if any, subject to the parties stipulating to a protective order. PLAINTIFF'S EXHIBIT Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L5 Defendants object to the “Instructions” and “Definitions” preceding the Discovery Requests on the grounds that they are vague, ambiguous, seek irrelevant information that is not proportional to the needs of the case in violation of Ohio Civil Rule 26(B)(1), and seek to impose obligations on Defendants which are greater than, or inconsistent with, those obligations imposed by the Ohio Rules of Civil Procedure. Defendants will respond to the Discovery Requests in accordance with its obligations under the Ohio Rules of Civil Procedure. Defendants object to the Discovery Requests to the extent they seek “all,” “any,” “any and all,” “each and every,” and/or “every” document, information, or facts. Defendants reserve their right to amend responses to these Discovery Requests. These “General Objections” are applicable to and are incorporated into each of Defendants’ responses to the Discovery Requests. Moreover, Defendants’ responses are made subject to and without waiving these objections. Failing to state a specific objection to a particular Discovery Request should not be construed as a waiver of these General Objections. Defendants’ discovery responses are made without a waiver of, and with preservation of: . All questions as to competency, relevancy, materiality, privilege and admissibility of the responses and the subject matter thereof as evidence for any purpose in any further proceedings in this action and in any other action. The right to object to the use of any such responses or the subject matter thereof, on any ground in any further proceedings of this action and in any other action. The right to object on any ground at any time to a demand or request for a further response to the Discovery Requests or any other discovery involving or relating to the subject matter of the Discovery Requests herein responded to. The right at any time to revise, correct, add to, supplement or clarify any of the responses contained herein and to provide information and produce evidence of any subsequently discovered facts. The right to assert additional privileges if warranted by new documents or evidence discovered at a later date. The right to assert the attorney-client privilege, attorney work product doctrine, joint defense or common interest privilege, proprietary nature, or confidentiality of any information inadvertently produced herein and to object to the use of any such information, or the information obtained therefrom, for any purpose in any further proceedings in this action and in any other action. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé ANSWERS TO INTERROGATORIES INTERROGATORY NO. 1: Identify the name of the person answering or assisting with answering these Interrogatories. ANSWER: Objection. These Interrogatories are directed to entities and corporations with Answers not derived from the personal knowledge of any single individual, but rather records, knowledge that cannot be attributed to any single individual or employee. Without waiving the objection, Shawn McMahon, in part, with objections and assistance of counsel. INTERROGATORY NO. 2: Describe the exact legal relationship between each corporate Defendant set forth in Plaintiffs Compliant. ANSWER: HG Ohio Operations owned The Convalarium until December 31, 2022. INTERROGATORY NO. 3: Identify by name, home address the STNA who was referenced in the note on 10/29/21 “ STNA came to this nurse while changing patient on assessment, patient noted to have pressure wound to coccyx.....” (see attached note) ANSWER: Defendant does not have this information at this time. Will supplement. INTERROGATORY NO. 4: Please identify each registered nurse, licensed practical nurse, nursing aide, and/or certified nursing assistants who were assigned to care for Benjamin Snyder and is believed to have provided care during his admission beginning on October 17, 2021 until his discharge. (referring to the chart instead of answering this interrogatory is a failure to answer as many of the individuals are not identified in the record) ANSWER: See previously provided records, including Point Click Care records that clearly identify individual providers by name. Defendants may provide supplemental response to more specifically tailored request. DAY/DATE Morning Afternoon/Evening | Night Sunday --/--/-- Monday --/--/-- Tuesday --/--/-- Wednesday --/--/-- Thursday --/--/-- Friday --/-/-- Saturday ll Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé INTERROGATORY NO. 5: Identify by name, most current or last known home address and dates employed, individuals who held the following positions at the facility for the relevant time period October 1, 2021- November 30, 2021 ; (a) Medical Director; (b) Nursing Home Administrator(s); (c) Director of Nursing(s); (d) Assistant Director(s) of Nursing; (e) Head, charge, and/or floor nurses for the unit, wing or hallway on which Mr. Snyder resided; (f) Wound nurse (g) Wound physician (i) MDS nurse ANSWER: (a) Raymond Pongonis (b) Jennifer Mattison (c) Erin Phillips (d) Will supplement (e) Will supplement (f) Will supplement (g)Vohra Wound Physicians (i) Jennifer Williams INTERROGATORY NO. 6: Do you contend that any other persons or entities, including the Plaintiff or Decedent, are at fault or contributed to the damages complained of in this lawsuit, and, if so, please state the names and addresses of all persons or entities whom the Defendant claims are at fault or contributed to the damages complained of and state a summary of the grounds for such allegation of fault or contribution ANSWER: Objection. This Interrogatory is premature as discovery is just beginning and seeks an expert opinion. Without waiving the objection, Defendants will supplement this response as appropriate. INTERROGATORY NO. 7: Please state any and all facts upon which you base each of the affirmative defenses this Defendant has asserted in your answer to Plaintiff's complaint. ANSWER: Objection. This Interrogatory is premature as discovery is just beginning. Without waiving the objection, Defendants. will consider withdrawal of affirmative defenses unsupported by the facts as discovery continues. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L6é INTERROGATORY NO. 8: List the title of every Policy and Procedure Manuel that was in effect in 2021, that had as its subject manner any aspect of the operation and management of a nursing home, hiring , training and supervision of staff, and/or any aspect of the care and treatment of the nursing home resident. ANSWER: Will supplement. INTERROGATORY NO. 9: Please state the name and address of every person known to you to have knowledge of the occurrence in question or to possess other facts or information discoverable in this action pursuant to the Civil Rules. ANSWER: Objection. The decision as to which witness, if any, to produce at Trial is a decision that will have to be made by Defendant’s Trial counsel after completion of Plaintiff’s case at Trial. This Interrogatory is an attempt to invade the Work Product Rule set forth in Hickman y. Taylor, 329 U.S. 495 (1947) and its progeny. Without waiving the objection, Defendant will identify witnesses at the appropriate time in accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any applicable Court Orders. Without waiving the foregoing objections, at a minimum, any and all medical and care providers of Mr. Snyder identified in the records. INTERROGATORY NO. 10: Please state the name and address of each and every lay witness whom you expect to call at the trial of this action, and for each witness, briefly state the subject matter of the anticipated testimony. ANSWER: Objection. The decision as to which witness, if any, to produce at Trial is a decision that will have to be made by Defendant’s Trial counsel after completion of Plaintiff’s case at Trial. This Interrogatory is an attempt to invade the Work Product Rule set forth in Hickman v. Taylor, 329 U.S. 495 (1947) and its progeny. Without waiving the objection, Defendant will identify witnesses at the appropriate time in accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any applicable Court Orders. Without waiving the foregoing objections, at a minimum, any and all medical and care providers of Mr. Snyder. INTERROGATORY NO. 11: Please state the name and address of each and every expert witness whom you expect to call at the trial of this action, and for each witness, briefly state the subject matter of the anticipated testimony and the facts known and opinions held by said expert relative to the subject matter of this action. ANSWER: Objection. Work product, premature. Without waiving the objection, Defendants will identify its expert witnesses and produce their reports in accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any applicable Court Orders. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé Email: ctuttle@leeseberglaw.com Counsel for Plaintiff CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the forgoing has been filed this day 25" day of May via the electronic filing system and as such will be forwarded to all counsel of record /s/ NANCY C. ILER NANCY C. ILER (0038955) Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé INTERROGATORY NO. 12: Please identify all exhibits, which you intend to use at trial. ANSWER: Objection. Work product, premature. Without waiving the objection, Defendant will identify exhibits in accordance with the Local Rules of Court, the Ohio Rules of Civil Procedure, and any applicable Court Orders. Answering further and without waiver, Defendants anticipate that at a minimum the medicals records obtained and/or produced in discovery will be introduced as exhibits at trial. AS TO OBJECTIONS: /s/Jason P. Ferrante JASON P. FERRANTE (0078480) Counsel for Defendants Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé RESPONSES TO REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: Produce copies of all insurance documents in their entirety that afford potential coverage for the alleged negligence and damages contained in Plaintiff's Complaint. ANSWER: See attached Declaration Page. Will Supplement. REQUEST FOR PRODUCTION NO. 2: Produce the personnel file for the following named persons or for person who had the title from October 1, 2021- November 30, 2021. The social security number, personal health information and banking information can be redacted: a) Medical Director b) Administrator, °) Director of Nursing ( Erin Phillips) d) Kristen Bohland LPN °) George Matalda LPN f) Yinghong Guo, RN 8) Lori Berning LPN h) Alia Shubally RN i) Bartilyn Seneh LPN i Jennifer Williams RN k) Jennifer Bidka RN ANSWER: Defendant does not currently possess responsive documents. Will supplement. REQUEST FOR PRODUCTION NO. 3: Produce the job descriptions for the following positions in effect during the relevant time period (see definitions) : Medical Director Administrator, Director of Nursing, Assisted Director of Nursing , ‘Wound care nurse, Wound care physician , RN, LPN STNA MDS Nurse ANSWER: Defendant does not currently possess responsive documents. Will supplement. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé REQUEST FOR PRODUCTION NO. 4: Produce all contracts that each Defendant has with each other or other vendors which concerned the operation of the facility, in effect for the year 2020 and 2021. ANSWER: Objection. This request is vague, ambiguous, overly broad and not reasonably calculated to lead to the discovery of admissible evidence. REQUEST FOR PRODUCTION NO. 5: Produce the title page and complete indexes for all Policy and Procedure Manuals (including but not limited to care manuals) in effect at the facility during the year 2021. ANSWER: Defendant does not currently possess responsive documents. Will supplement. REQUEST FOR PRODUCTION NO. 6: Produce the specific Policies and Procedures which refer to and/or discuss skin assessments, pressure ulcer assessment, pressure ulcer prevention and treatment, change of condition, Pressure Injury Prevention and Management Policy and care plan. ANSWER: Defendant does not currently possess responsive documents. Will supplement. REQUEST FOR PRODUCTION NO. 7: Map of the facility, showing all units and hallways. ANSWER: Will supplement. REQUEST FOR PRODUCTION NO. 8: Produce the complete Resident Care Record for Benjamin Snyder for his admission to Defendants facility, including any and all care records, ADLs records, medical records and business files. Please produce these records as color copies, bates-stamped and certified. ANSWER: See previously provided documents and Point Click Care records produced on or about April 13, 2023. REQUEST FOR PRODUCTION NO. 9: Produce copies billing that you submitted to any provider concerning your care and treatment of Benjamin Snyder. ANSWER: See attached. REQUEST FOR PRODUCTION NO. 10: Produce copies of Daily Shift Logs or staffing sheets which identify the persons working at the facility from October 1, 2021 to November 6, 2021. Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé ANSWER: Defendant does not currently possess responsive documents. Will supplement. REQUEST FOR PRODUCTION NO. 11: Any and all medical literature that you will introduce at trial of this case. ANSWER: Objection. This seeks work product and is premature as discovery is just beginning. Without waving the objection, Defendants will identify experts and exhibits in accordance with Local Rules, Rules of Civil Procedure and applicable Court Orders. REQUEST FOR PRODUCTION NO. 12: Any and all exhibits you plan to use at trial. ANSWER: See Objection and Answer to Interrogatory No. 12. REQUEST FOR PRODUCTION NO. 13: Any and all emails or other communication that reference in any way Benjamin Snyder and his admission to the Defendants facility ANSWER: Objection. This Request is vague, ambiguous, overly broad and unduly burdensome. Defendants may consider responding to a more tailored request. AS TO OBJECTIONS: /s/Jason P. Ferrante JASON P. FERRANTE (0078480) Counsel for Defendants Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: /s/Jason P. Ferrante JASON P. FERRANTE (0078480) 127 Public Square, Suite 3510 Cleveland, Ohio 44114 Phone: (216) 912-3800 Fax: (216) 344-9006 Email: jpferrante@mdweg.com Counsel for Defendants Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - Lé CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was forwarded to all counsel of record by: X___ E-Mail Transmission at the following address: Nancy C. Idler, Esq. Craig S. Tuttle, Esq. Nancy. iler@ilerlawfirm.net ctuttle@leeseberglaw.com Counsel for Plaintiff Counsel for Plaintiff MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN By:__/s/Jason P. Ferrante JASON P. FERRANTE (0078480) Counsel for Defendants Date: May 2, 2023 10 Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 25 11:24 AM-22CV007566 0G402 - L6é Nancy C. Iler From Nancy C. ller Sent: Thursday, May 11, 2023 3:15 PM To: Peterson, Bridget; Craig S. Tuttle Ce: Ferrante, Jason P.; Nancy C. ller Subject: RE: Snyder v. Dublin Convalarium // Defendants’ Responses to Plaintiff's Discovery Follow Up Flag: Follow up Due By: Thursday, May 18, 2023 11:00 AM Flag Status: Flagged Jason, The Defendants responses to Plaintiff’s First Set of Interrogatories and Request for Production of Documents are woefully incomplete as to be a failure to answer . For example: . Interrogatory No. 3 asks for the name and address of the STNA who was referenced in the note of 10/29/21 and the response is “ Defendant does not have this information at this time “. Will supplement . Interrogatory No. 5 ( E) requests the names of the nurses who cared for Mr. Snyder and the response is “ Will Supplement “ e Interrogatory No. 5 (F) requests the name of the wound nurse and the response is “ Will supplement “ . Interrogatory No. 8 requests the title to all Policy Manuals and the response is “ Will supplement “ The responses to the document requests are equally unresponsive : . Request for Production of Documents No. 2 requests the personnel files for 11 persons who cared for Mr. Snyder including the Administrator, Director of Nursing and nurses and the response is “ Defendant does not currently possess responsive documents . Will Supplement” Request for Production of Documents No. 3 requests the job descriptions for Administrator, Director of Nursing and nurses other and the response is “ Defendant does not currently possess responsive documents . Will Supplement.” Request for Production of Documents No. 5 requests the Indexes to all Policy and Procedure Manuals and the response is “ Defendant does not currently possess responsive documents . Will Supplement.” Request for Production of Documents No. 7 requests a map of the facility and the response is, “ Will Supplement.” Request for Production of Documents No. 8 requests the complete Resident Care Record for Mr. Snyder and the response is previously provided . The care record provided is not at all complete and was not bates stamped or certified as complete . Request for Production of Documents No. 10 requests the Daily Shift or staffing logs for October 1, 2021 - November 6, 2021 and the response is “ Defendant does not currently possess responsive documents . Will Supplement.” These incomplete responses constitute a failure to respond .Without complete responses we cannot proceed with taking depositions . Also Defendants have failed to produce a complete and certified Resident Care record for Mr. Snyder . Please fully and completely respond to this discovery, which was served in February, on or before May 19" or | will have no choice but to file a Motion to Compel . It is clear we need assistance in moving this case along , | am advising the Court that a status conference is needed and ask that one we scheduled as soon as possible Best, PLAINTIFF’S Nancy EXHIBIT