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Filing # 193459825 E-Filed 03/06/2024 03:37:36 PM
1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT 1 REMOTE APPEARANCES
IN AND FOR SARASOTA COUNTY, FLORIDA
2 CASE NO. 2018-CA-005321 2 PRESENT ON BEHALF OF PLAINTIFFS:
3 JACK KOWALSKI, individually 3 GREGORY A. ANDERSON, ESQUIRE
and on behalf of his children JENNIFER C. ANDERSON, ESQUIRE
4 MAYA KOWALSKI, a minor, and 4 NICHOLAS P. WHITNEY, ESQUIRE
KYLE KOWALSKI, a minor; and as AndersonGlenn LLP
5 Personal Representative of the 5 10751 Deerwood Park Boulevard, Suite 105
Estate of BEATA KOWALSKI, Deceased, Jacksonville, Florida 32256
6 6 (904)273-4734
Plaintiffs, nwhitney@asglaw.com
7 vs. 7 gaanderson@asglaw.com
8 JOHNS HOPKINS ALL CHILDREN'S 8 PRESENT ON BEHALF OF DEFENDANTS: JOHNS HOPKINS ALL
HOSPITAL, INC., JOHNS HOPKINS CHILDREN'S HOSPITAL, INC., and JOHNS HOPKINS HEALTH
9 HEALTH SYSTEM CORPORATION, INC.; 9 SYSTEM CORPORATION, INC., and CATHERINE BEDY:
SUNCOAST CENTER, INC.; CATHERINE
10 BEDY; and SALLY M. SMITH, M.D., 10 DAVID HUGHES, ESQUIRE
C. HOWARD HUNTER, ESQUIRE
11 Defendants. 11 Hill, Ward & Henderson
____________________________________/ 101 East Kennedy Boulevard, Suite 3700
12 12 Tampa, Florida 33602-5195
HEARING ON VARIOUS MOTIONS (813)221-3900
13 (Pages 1 through 175) 13 david.hughes@hwhlaw.com
14 14 PRESENT ON BEHALF OF DEFENDANTS: SUNCOAST CENTER, INC.,
DATE TAKEN: July 20, 2021 and SALLY M. SMITH, M.D.:
15 15
TIME: 8:30 a.m. - 12:42 p.m. BRIAN P. HASKELL, ESQUIRE
16 16 DIANE H. TUTT, ESQUIRE
BEFORE: The Honorable Hunter W. Carroll Conroy Simberg
17 Circuit Court Judge 17 201 East Kennedy Boulevard, Suite 900
Tampa, Florida 33602
18 18 (813)273-6464
bhaskell@conroysimberg.com
19 19 dtutt@conroysimberg.com
20 20 ALSO PRESENT:
21 21 FILZAH IQBAL, LAW CLERK
AndersonGlenn LLP
22 22
REPORTED BY: WILLIAM E. GANDY, JR., ESQUIRE
23 23 Florida Department of Health
Stephanie A. Walters Office of the General Counsel
24 Stenographic Shorthand Reporter 24
25 APPEARING REMOTELY FROM HILLSBOROUGH COUNTY, FLORIDA 25
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1 P-R-O-C-E-E-D-I-N-G 1 Dr. Sally Smith and Suncoast Center. Good morning.
2 THE COURT: What I'm going to do is, while we 2 THE COURT: Good morning.
3 wait for Mr. Anderson's video to come on, let's go 3 And, Ms. Tutt, is your audio and video working?
4 ahead and take appearances, starting with the 4 MS. TUTT: Can you see me and hear me?
5 individual here in the courtroom, and then we'll 5 THE COURT: I can see and hear you, yes, ma'am.
6 work around the screen. 6 MS. TUTT: Then, yes, they're both working.
7 MR. HUGHES: Yes. Good morning, Your Honor. 7 Thank you.
8 My name is David Hughes. I'm here on behalf of 8 THE COURT: Thank you.
9 Johns Hopkins All Children's Hospital; Johns Hopkins 9 Mr. Hunter.
10 Health System Corporation, Inc.; and Katherine Bedy. 10 MR. HUNTER: Howard Hunter, Your Honor, for --
11 THE COURT: Thank you. 11 along with Mr. Hughes, we represent Johns Hopkins
12 Okay. And on video already, for the Plaintiff. 12 All Children's Hospital; Johns Hopkins Health
13 MR. WHITNEY: Hello, Your Honor. Nick Whitney, 13 System; and Catherine Bedy.
14 here on behalf of the Plaintiffs. Joining me are: 14 THE COURT: And there's an individual I just
15 Greg Anderson and Jennifer Anderson and Filzah 15 let in. This is Judge Carroll. Last four digits of
16 Iqbal. 16 the telephone are 4-0-0-5. 4-0-0-5. Who is this,
17 THE COURT: Greg Anderson, Jennifer Anderson, 17 please?
18 and Filzah Iqbal. 18 MR. GANDY: Gene Gandy, Florida Department of
19 And, Ms. Iqbal, are we getting on our video? 19 Health.
20 MS. IQBAL: Yes, Your Honor. Just one moment, 20 THE COURT: Okay. And can you spell your name
21 please. 21 again?
22 THE COURT: And, Mr. Haskell, if you could make 22 MR. GANDY: Gandy, G-a-n-d-y.
23 your appearance, please. 23 THE COURT: And what was your first name?
24 MR. HASKELL: Yes, sir, Brian Haskell, Your 24 MR. GANDY: William?
25 Honor, and Diane Tutt is also on video, on behalf of 25 THE COURT: Thank you. Do you end up -- do you
Filed 03/06/2024 04:31 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
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1 have a video capability, or are you always going to 1 all on the same page when we talk about judicial
2 be by telephone? 2 notices.
3 MR. GANDY: I'll mostly be by telephone. I'm 3 This has nothing to do with admissibility or
4 just monitoring. 4 any evidentiary facts that are going to be for
5 THE COURT: Yeah, my preference, though, is, 5 trial; this is just judicial notice and not any type
6 even for those that are just monitoring, to come in 6 of adjudicative fact; is that your understanding,
7 by video. I mean, if you were here in person, I'd 7 Mr. Anderson, of what you're seeking?
8 be able to see you, and I just try to replicate the 8 MR. ANDERSON: It is, Judge. These can be used
9 court experience. That's why I insist -- it is 9 by the Court in pretrial practice, and then there
10 easier for me to keep track of what's going on. 10 would have to be a separate motion before the Court
11 MR. GANDY: I will do so going forward, sir. 11 before it could be introduced to the jury.
12 THE COURT: Thank you, Mr. Gandy. 12 THE COURT: Okay. Why don't you proceed? And
13 I think we are ready to proceed. We just took 13 if you could do all of them at the same time, and
14 appearances. This is Case No. 2018-CA-5321 MC, and 14 then I'll get my multiple responses from the
15 I know we have a significant number of motions to go 15 Defense.
16 through. Why don't we do the first, the judicial 16 MR. ANDERSON: I believe Mr. Whitney is going
17 notice, the three judicial notices, and then we'll 17 to handle the bulk of that, Judge. He's got those
18 pretty much follow the order setting hearing. 18 right in front of him.
19 The judicial notice requests are: Document 19 MR. WHITNEY: Good morning, Your Honor.
20 Identification Number, or DIN, 826, which has a 20 THE COURT: Good morning.
21 docket date of May 12, 2020; we have DIN 1077, that 21 MR. WHITNEY: Beginning with DIN No. 826,
22 has a September 4th, 2020, docket date; and DIN 22 Plaintiffs' request for judicial notice. Your
23 1514, which has a docket date of June 11th, 2021. 23 Honor, this judicial notice concerns previous
24 And Plaintiffs are making these requests, at 24 decisions within the Second Court of Appeal
25 the beginning, and I just want to make sure we're 25 regarding the testimony and lack of credibility of
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1 Dr. Sally Smith. 1 THE COURT: Okay. I just want you to
2 There are two separate cases here that we ask 2 articulate specifically what you're asking for
3 for judicial notice, and each is properly taken by 3 judicial notice. I've gotten the contents, so don't
4 the Court under 90.202, either 5, 6 or 7. In my 4 worry about the contents.
5 review, 90.202, parenthetical 6, allowing for 5 MR. WHITNEY: Understood. All right.
6 judicial notice of the records of any court of this 6 So, in the first request, Your Honor, we're
7 case seems most applicable. 7 looking for judicial notice of those two cases: the
8 The first, Your Honor, is in the Interest of 8 first -- and there is AWJ, a child, vs. Department
9 AWJ, a child, NJ vs. Department of Children and 9 of Children and Families, the second is James Duncan
10 Families, et al. -- 10 vs. State of Florida, a case in which the appeals
11 THE COURT: Mr. Whitney, I've read all of the 11 court has relinquished jurisdiction based on the
12 items. I understand what you're doing. I guess, I 12 testimony of Sally Smith and the lack of credibility
13 just wanted to confirm that everyone understood that 13 of her testimony.
14 if I were to take judicial notice, it does not -- 14 The second, Your Honor, request in addition to
15 that doesn't mean it's coming into evidence; it 15 this is a notice of filing supplemental authority in
16 doesn't mean that there is any fact that is actually 16 support of various motions and request judicial
17 agreed to for trial. 17 notice, which is DIN 1077, which is found at tab 2
18 MR. WHITNEY: That's correct, Your Honor. 18 on the hearing notice.
19 THE COURT: Right. So, Mr. Whitney, you can 19 And, Your Honor, here we have two house
20 short-circuit your presentation and tell me what's 20 resolutions regarding reflex sympathetic dystrophy.
21 in these because I've already reviewed it. 21 This is the previous nomenclature for complex
22 MR. WHITNEY: All right. Your Honor, so just 22 regional pain syndrome. One of these resolutions is
23 to clarify, would you like me to describe these 23 entered in 2004, the second in 2008. Both clarify
24 cases in detail, or just move on to what we are 24 that complex regional pain syndrome is often
25 additionally asking for judicial notice of. 25 misdiagnosed as a psychiatric condition in children.
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1 That's exactly what we have here in this case. 1 THE COURT: Mr. Hunter.
2 Johns Hopkins took the position, throughout Maya's 2 MR. HUNTER: Your Honor, the Court has
3 stay that she was a psychiatric patient, for various 3 correctly pointed out: that we're here on judicial
4 conditions -- they shifted -- but for that reason, 4 notice, not on admissibility for evidentiary
5 we ask for judicial notice of those. 5 purposes, but we're also here because these matters,
6 And I would note that judicial notice standard 6 if judicially noticed, I'm sure Plaintiff will argue
7 for the house resolutions is mandatory under 201, 7 can be cited or relied upon in such proceedings as
8 90.201(1). 8 summary judgment or pretrial proceedings; and for
9 The last, Your Honor, is DIN 1514. It's found 9 that reason, we object to the judicial notice of all
10 at tab 10 of our hearing notice. And this request 10 of them and the Court exercising its discretion.
11 is brought under 90.202(5) and/or 12, under which 11 With respect to the first --
12 official actions of the legislature or facts that 12 THE COURT: Mr. Hunter, let me ask you this:
13 are not subject to dispute because they're capable 13 If the orders that I enter reflect that nothing by
14 of accurate and ready determination by resort to 14 this judicial notice indicates that it's admissible,
15 sources whose accuracy cannot be questioned. 15 in any proceeding, or authentic -- I'm sorry. I
16 Here, Your Honor, we have: JCAHO reports -- 16 should say "admissible" -- wouldn't the Plaintiff
17 that's the Joint Commission on the Accreditation of 17 still have to, for summary judgment purposes, come
18 Hospitals -- confirmed some of the deficiencies of 18 forward with admissible evidence, and so they could
19 Johns Hopkins All Children's Hospital during the 19 not rely on a judicial notice as a summary judgment
20 relevant time period; and then, similarly, the plan 20 evidence as fact?
21 of correction. So we ask that judicial notice be 21 MR. HUNTER: That would certainly be my
22 taken of those as well, Your Honor. 22 position, Your Honor. I don't want to get -- I
23 THE COURT: From the Defense, who wishes to 23 don't want us to get sandbagged by the idea that the
24 start. 24 judicial notice permits the use of these things in
25 MR. HUNTER: I'll start, Your Honor. 25 pretrial proceedings, just not before the jury
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1 unless they're admitted into evidence. 1 its discretion to judicially notice them.
2 None of these things should be admitted into 2 The same is true of the matters pertaining to
3 evidence. They all have questions of relevancy. 3 review of the -- by the DOH or AHCA. In addition to
4 And with respect to the judicial -- to the 4 those things, Your Honor, the JCAHO matters are
5 legislative resolutions, they're not legislative 5 privileged, pursuant to section 766.101 and 395.0193
6 resolutions at all; they don't even fit within the 6 of the Florida statutes. Both of them are
7 definition of what can be judicially noticed. 7 peer-review matters.
8 They're both house resolutions. They're half the 8 And the fact that they came from JCAHO, or that
9 legislature, not a complete act of the legislature. 9 they're otherwise available, does not defeat the
10 If they were an act of the legislature, they would 10 fact that their work product of a peer-review
11 reflect, in their enacting clause, that it wasn't 11 organization. And the Supreme Court, in Krueger vs.
12 the house resolving; it was the house and the senate 12 Love Express, also recognized that JCAHO was a
13 resolving jointly, or, the house resolving with the 13 peer-review organization, subject to that privilege.
14 concurrence of the senate. But neither of those 14 So we don't believe that any of these things
15 resolutions qualify for judicial notice. 15 should be judicially noticed, Judge, for those
16 Similarly, the JCAHO matters that are before 16 reasons.
17 the Court are not judicially noticeable. They're 17 THE COURT: Do you have any basis to believe
18 not only hearsay -- but that's an evidentiary 18 that this is not the Joint Commission report and
19 point -- but they're not -- first, they're not 19 Department of Health and Human Services information?
20 relevant to the time frame at issue. They encompass 20 MR. HUNTER: I don't have any reason to
21 time frames that are not at issue in this case. 21 disbelieve it or to believe it. They haven't been
22 They don't have to do with any matter that has to do 22 authenticated. And I don't know what source of -- I
23 with this; and, in addition to that, they don't fit 23 don't know what's the source was of the JCAHO
24 within the definition of any of the cited 24 matters. I assume that the HRS matters -- excuse
25 material -- cited criteria where the Court exercises 25 me -- the HHS matters were matters that were gotten
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1 offline somewhere as public records, but the JCAHO, 1 over at DJJ, now she's at AHCA.
2 I have no idea where that came from. 2 Go ahead.
3 MR. WHITNEY: Your Honor, may I interject? 3 MR. WHITNEY: Judge --
4 THE COURT: Yes, Mr. Whitney. 4 MR. HUNTER: If I might, Judge. This --
5 MR. WHITNEY: I'm going to share my screen 5 THE COURT: Go ahead, Mr. Hunter.
6 here. Is it possible? It says that it's disabled 6 MR. HUNTER: This -- again, this does not
7 at this point. 7 indicate where the JCAHO material came from. It
8 THE COURT: Okay. I just enabled you. 8 only indicates that the "provided documents." I
9 MR. WHITNEY: Thank you. 9 don't know what "provided documents" there are.
10 Your Honor, yesterday, we filed -- we thought 10 THE COURT: Okay. Anything else, Mr. Hunter?
11 this issue -- Mr. Hunter has argued this issue 11 MR. HUNTER: That's the summary of it, Judge.
12 similarly before. 12 THE COURT: Is there going to be an attorney
13 Here is the official letterhead from the 13 from Dr. Smith's perspective that are going to
14 Florida Agency for Health Care Administration, as 14 address this?
15 custodian of records, clarifying that they provided 15 MR. HASKELL: Your Honor --
16 the documents that we're talking about here this 16 MS. TUTT: Yes, Your Honor, if I could address
17 morning. So there is no question about their 17 it.
18 authenticity, and that is filed with the Court as of 18 MR. HASKELL: Sorry.
19 yesterday. 19 MS. TUTT: Brian, is that okay if I address it?
20 THE COURT: Whoa, whoa, whoa. Go back for a 20 MR. HASKELL: Go ahead, Diane, please.
21 second. 21 MS. TUTT: Okay. With respect to the judicial
22 MR. WHITNEY: I don't have the DIN number. I 22 notice of DIN 826, which pertains to Dr. Smith
23 apologize if you're looking for that. 23 specifically, we object to the Court taking judicial
24 THE COURT: Right, but Simone Marstiller is no 24 notice.
25 longer the -- no, she is the new secretary. She was 25 Irrespective of the Court's ruling that, you
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1 know, you're not establishing admissibility at 1 The voluminous records in the James Duncan vs.
2 trial, these matters are completely separate cases 2 State case, not an appellant decision, that I could
3 in which Dr. Smith was a witness. They are not 3 see; it was all based upon motions to relinquish,
4 relevant in any proceeding here. 4 with accusations against Dr. Smith, attaching
5 I realize that there's also been a comment 5 multiple articles. It's just going to poison the
6 about, well, it wouldn't have -- documents have to 6 record. Completely irrelevant to any issue in this
7 be authenticated for summary judgment, but that is 7 case.
8 only a small part of what we're dealing with in this 8 I think it is well established that you cannot
9 case. 9 judge a person's conduct in the present case by
10 The Plaintiff has filed previously two motions 10 looking to what they might have done in a prior
11 for punitive damages. The amended one was actually 11 case. So we object on these grounds as well. We
12 heard by your predecessor. We anticipate more 12 also adopt Mr. Hunter's arguments.
13 motions of that nature. We don't want these 13 THE COURT: And, Mr. Whitney, did you want to
14 irrelevant materials to be used in a motion for 14 have any sort of reply?
15 punitive damages or motion to amend for punitive 15 MR. WHITNEY: Well, Your Honor, I kept my
16 damages, which can attach documents that are not 16 comments brief regarding relevance.
17 authenticated. 17 Regarding the decisions involving Sally Smith,
18 So we believe that these are completely 18 I heard that word "relevancy" thrown around a lot,
19 irrelevant, will poison the record, and I know Your 19 but I didn't hear any cogent argument about what the
20 Honor said that you looked at them. 20 lack of relevance is.
21 The first item just a published opinion of the 21 As I mentioned briefly, the Court --
22 Second District Court of Appeal. There is really no 22 THE COURT: I don't understand why we're
23 need to take judicial notice of that, even if it 23 talking about relevance when we're talking about
24 were relevant, which, of course, we contend that it 24 judicial notice. The question is: Are these what
25 is not. 25 they are?
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1 MR. ANDERSON: Exactly. 1 yesterday, that's going to be insufficient time. So
2 MS. TUTT: But, Judge, you have discretion to 2 I'll do it without prejudice.
3 accept them or not, at least the Sally Smith 3 Mr. Whitney, you're going to do the order. And
4 documents is based upon 90.202, which says the Court 4 in the future, with providing more notice, you can
5 may. 5 do it again, but for now, I'm going to deny that
6 MR. WHITNEY: They are what they are, Your 6 without prejudice.
7 Honor. 7 MR. WHITNEY: Your Honor, if I could clarify:
8 THE COURT: Right. Here's what we're going to 8 DIN 1077 is the request that dealt with the Florida
9 do: As it relates to the documents associated with 9 legislative resolutions. I believe your order is
10 826 and 1514 -- 826 and 1514, those are the DINs -- 10 meant --
11 the Court is going to go ahead and grant judicial 11 THE COURT: Oh, 1514. I apologize. 1514.
12 notice, but there's going to be disclaimers in 12 You're right. Now, the house resolutions, I will
13 there. 13 take judicial notice. It's 1514, the Joint
14 And, Mr. Whitney, you're going to take the 14 Commission report, the statement of deficiencies, on
15 first pass at this order, and what I'm looking for 15 the basis of insufficient time to allow the
16 is a very vanilla, you know, "I take judicial 16 Defendants to examine whether these are in fact the
17 notice," but I also want express statements in there 17 documents that they purport to be.
18 that nothing about taking judicial notice has 18 MR. WHITNEY: Understood, Your Honor.
19 anything to do with any adjudicative fact or 19 THE COURT: Anything else about judicial notice
20 relevance or admissibility. 20 before we move on?
21 MR. WHITNEY: Understood. 21 MR. ANDERSON: On behalf of the Plaintiff, no.
22 THE COURT: As it relates to DIN 1077, the 22 MR. WHITNEY: No, Your Honor.
23 Court is going to deny it without prejudice. There 23 THE COURT: Now, we're going to start talking
24 was insufficient time to allow the Defendants to 24 about tax returns, Document Identification Number
25 review the source materials. If something was filed 25 1326, DIN 1326. This is a Plaintiffs' motion for
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1 order compelling production of Defendant, Sally 1 everyone is on notice now, going forward.
2 Smith, M.D.'s 2015 through 2018 tax returns; 2015 2 Okay. Who from the Plaintiffs is going to
3 through 2018 contracts with the State Department of 3 argue this?
4 Health; and non-evasive answer to Plaintiffs' 12th 4 MR. WHITNEY: I will, Your Honor.
5 request for production. 5 THE COURT: Mr. Whitney.
6 Before we start -- and I understand that I was 6 MR. WHITNEY: And may it please the Court.
7 not the judge assigned to the case when this motion 7 First, my apologies for not complying with the
8 was filed. I do note that this motion violates the 8 rule there. This motion, understanding that we're
9 standards of professionalism here in the 12th 9 now on the third presiding judge here, it is
10 Circuit, e1(d), as in delta -- so echo, 1, paren D, 10 subsequent to several other motions in the
11 as in delta -- which requires that the actual 11 request -- although I don't have it before me --
12 interrogatory question or deposition request for 12 would be for all pay records of Dr. Sally Smith
13 admission, whatever the request is, to be put 13 evidencing her compensation, evidencing her
14 forward completely, and then the answer or response 14 contracts with Suncoast, the Department of Health,
15 to be put forth completely. And, frankly, on a lot 15 and her employment by Johns Hopkins and compensation
16 of this, I don't even know what the document request 16 from Johns Hopkins.
17 is that you're referring to. 17 THE COURT: Why don't we focus on tax returns,
18 So, Plaintiffs, you need to, you know, help me 18 because I've got a constitutional right of privacy
19 out with that. But going forward, everyone has to 19 on that, so I need to know what the specific request
20 comply -- on any sort of motion to compel, you've 20 was and what the objections are.
21 got to comply with the standards of professionalism. 21 So can you help me out as to where I should
22 But being that I wasn't the judge before -- and 22 find the actual requests?
23 I know that I am inheriting a whole bunch of motions 23 MR. WHITNEY: That would take a minute for me
24 that were filed -- I'm not going to not hear the 24 to look at the actual request, Your Honor. I don't
25 motion today because of that, but please know that 25 know off the top of my head, to be perfectly
21 22
1 candid with -- 1 MS. TUTT: Oh, it's on the list, yeah.
2 THE COURT: How are you supposed to do a motion 2 THE COURT: Oh, okay. Yeah, that's the one --
3 to compel when you don't tell the judge what the 3 I'm sorry. That's DIN 1464.
4 request was? Not what a summary of the request is, 4 MS. TUTT: Yes.
5 but what the actual request is. I need to know what 5 THE COURT: Yeah, I have that one right here.
6 that information is, please. 6 MS. TUTT: Exhibit A is the -- on page 3 of
7 MR. WHITNEY: Judge, can we can take five so we 7 Exhibit A has the request in Question 4 and the
8 can gather that information for you? 8 response.
9 THE COURT: Y'all can take it. I'm just going 9 MR. WHITNEY: Your Honor, I found our request,
10 to sit here, though. I need the requests, please. 10 corresponding request.
11 MR. WHITNEY: Yes, Your Honor. I'm going to go 11 THE COURT: Sure.
12 on mute while we figure that out, for a few minutes. 12 MR. WHITNEY: The filing did not have the DIN
13 THE COURT: And while the Plaintiffs are 13 number. I can tell that you that our 12th request
14 finding the request, the Defendants better find 14 to produce to Defendant, Sally Smith was filed on
15 where the response is. 15 November 30th, 2020.
16 MS. TUTT: I did. 16 THE COURT: Okay. The 12th request is
17 THE COURT: Where is the response, Ms. Tutt? 17 DIN 1204.
18 MS. TUTT: If you look at our response to the 18 And what request number within that one,
19 motion to compel, which we furnished in Exhibit A, 19 Mr. Whitney, please?
20 and that should be bookmarked -- 20 MR. WHITNEY: Request No. 4, Your Honor.
21 THE COURT: Can you give me a DIN number, 21 THE COURT: And, Ms. Tutt, you said yours was
22 please? 22 Exhibit A, page 3?
23 MS. TUTT: Not immediately. Sorry. 23 MS. TUTT: Page 3 of Exhibit A, correct, and
24 MR. HUNTER: I have it, Judge. The DIN number 24 that's Exhibit A to DIN 1464.
25 for the response -- 25 THE COURT: Yeah, I've got both of those up.
23 24
1 Okay. Mr. Whitney, you may continue with your 1 investigation of Maya Kowalski, and she was combing
2 argument. 2 through her medical records, outside of any active
3 MR. WHITNEY: Thank you, Your Honor. 3 investigation by the Department of Children and
4 Your Honor, our request, in November of last 4 Families.
5 year, followed multiple efforts by our firm to 5 So after the phone call was screened out, she
6 understand the compensation of Dr. Sally Smith, 6 was contacted, independent of any DCF involvement,
7 through both deposition, written discovery and 7 by physicians at the hospital, and there are medical
8 conferences with Mr. Haskell as Sally Smith's 8 records to this effect, that they texted her
9 counsel. At no time -- 9 directly, and asked her to take a look, and she did
10 THE COURT: Now, Mr. Whitney, let me stop you. 10 so without being officially involved. So that goes
11 When you say "to understand the compensation," are 11 to our civil conspiracy count.
12 you talking about the dollars and cents or are you 12 The second is, we have count 12 of our fifth
13 talking about who pays her, or both? 13 amended complaint, is the negligent hiring,
14 MR. WHITNEY: We're talking about both, Your 14 retention and supervision of Sally Smith at Johns
15 Honor. Who pays her and how much? 15 Hopkins All Children's Hospital.
16 THE COURT: Okay. How is there any -- any 16 It requires some education of this Court to
17 claim that you brought that would give you a right 17 take you through the saga that we've had to
18 to anyone's personal financial information? 18 persevere in, to understand Smith's various roles at
19 MR. WHITNEY: Your Honor, two counts are 19 this hospital. And because it's been such an uphill
20 relevant here: the first is civil conspiracy, the 20 battle, we are entitled to the tax returns, because
21 depth of the relationship between Johns Hopkins and 21 at no point have we received a coherent explanation
22 Sally Smith. 22 of who compensates her, for what, and how much she
23 If you recall, when I briefly gave my 23 is paid.
24 recitation of the basic facts of this case last 24 To begin, Your Honor, we begin our motion by
25 week, Dr. Sally Smith was involved in an 25 asking that you compare two exhibits: the 2016 W-2
25 26
1 of Dr. Sally Smith, which is attached as Exhibit A, 1 compensation, they just don't add up.
2 and the Suncoast Physician Detail Sheet, which is 2 With respect to Johns Hopkins, the Court was
3 the budget submitted from the Department of Health, 3 not involved at the time, but Ms. -- Dr. Smith's
4 which included Sally Smith's apparent salary. 4 role as the rotation director of the child abuse
5 There is an extreme disparity between these two 5 residency program was concealed from us for years,
6 documents. The tax return shows that she earned 6 and only upon us discovering a publicly available
7 $62,000. The budget submitted to the Florida 7 site maintained by Johns Hopkins, in which they had
8 Department of Health claims that her pay is $189,000 8 listed her on a roster as the child abuse rotation
9 and change. We've asked, on multiple occasions, for 9 director, did we discover her involvement in
10 them to explain this. At no point, have we received 10 training the young physicians at Johns Hopkins.
11 a coherent explanation. 11 Now, beyond that, even upon discovery of that
12 THE COURT: Who have you asked to explain it? 12 arrangement, it was further denied by Smith's
13 MR. WHITNEY: We -- we've asked Mr. Haskell, on 13 counsel, and we received kind of trickling in
14 multiple occasions, and myself and Ms. Iqbal had a 14 ever-growing responses that are more and more candid
15 telephone conference with Mr. Haskell and his 15 about her actual role.
16 paralegal -- I believe it was Tracy Kosky at the 16 So you'll see in Smith's response that they
17 time -- and we tried to talk through this. 17 maintain that Smith's role as a rotation director in
18 We were told that she works 12 hours a week at 18 the child abuse residency program only pertains to a
19 $90 an hour, and even if you do the math there, it 19 2019 memorandum of understanding.
20 doesn't add up to the $62,000 claim. Not to 20 They maintain that in their filing as of
21 mention, it doesn't stand to reason that Suncoast 21 May 18th of this year, just two months ago. That is
22 would submit a budget to the State and have $189,000 22 directly contradicted by responses provided to us by
23 allocated to Suncoast for her work, and then turn 23 Johns Hopkins, in which they've now confirmed that
24 around and pay her only $62,000. Exhibit B, if you 24 she had been in that role for seven years, from 2014
25 try to add the rows across, with Sally Smith's 25 to 2021.
27 28
1 They denied, on multiple occasions, any pay -- 1 The first is, Smith's counsel mentioned, in his
2 any compensation from Johns Hopkins to Dr. Sally 2 recitation of the facts last week, that Smith
3 Smith. And only as this motion was scheduled to be 3 offered a 50-page report provided to the dependency
4 heard in May, days before, did we learn that, in 4 court at the time.
5 fact, Johns Hopkins had compensated her for work 5 Ahead of authoring that report, she contacted
6 related to the child abuse residency program. They 6 Maya Kowalski's treating physician, Dr. Kirkpatrick,
7 phrased it as an "honorarium for a grand rounds' 7 who told her, in no uncertain terms, that Maya
8 lecture." 8 Kowalski had complex regional pain syndrome. This
9 Nonetheless, it directly contradicts their 9 was not a case of child abuse. He had seen
10 prior assertions that there was no compensation 10 inexperienced physicians take this stance before,
11 received by Dr. Sally Smith from Johns Hopkins All 11 and if there was going to be any allegation of child
12 Children's Hospital. 12 abuse, and if she was going to continue to pursue
13 The suggestion from Defense counsel, and 13 that, to please call him back, that he would like to
14 Smith's counsel in particular, to date has been, 14 talk to her further, and she did not call him back
15 "Well, given these inconsistencies and our ability 15 and, more egregiously, she did not disclose to the
16 to explain it, we suggest that the best way to go 16 Court that she had had that conversation with the
17 about this is to ask Dr. Sally Smith at her next 17 treating physician, and that he had advised her that
18 deposition what's going on here." 18 this was not child abuse. So the report presented
19 Dr. Sally Smith, in this case -- in this case, 19 in court was one sided.
20 not in any cases that were just taken judicial 20 The second instance here, Your Honor, is,
21 notice of -- has been proven to be not credible. 21 Dr. Smith had been previously sanctioned, in this
22 I'll give you three examples to educate you 22 case, for withholding 150 pages of handwritten notes
23 briefly why it is not a viable alternative for us to 23 out of her production, in this case.
24 ask Dr. Sally Smith the question of who pays her and 24 Those were discovered during her deposition
25 how much. 25 testimony. As she consulted her file, we realized
29 30
1 that she was looking at notes that had not been 1 related entities, appear on her tax returns; and, if
2 produced to us. And if you look at Judge Walker's 2 so, we would like to know that information.
3 order there, you'll see that he concluded, "There is 3 Alternatively, we would also enter into a
4 no coherent explanation offered by Dr. Smith," and 4 confidentiality order whereby the tax returns, the
5 for that reason, she was sanctioned. 5 relevant portions of the tax returns, that is, the
6 So the only way for us to get a candid, frank 6 portion of the tax returns that shows us the income
7 look at her compensation and who it comes from is 7 and the source of that income, is produced to us
8 from looking at her tax returns. 8 under a confidentiality agreement, and we do not
9 Johns Hopkins had provided an affidavit 9 disclose that outside this case, and we destroy
10 claiming that Dr. Smith was not paid through two 10 those at the end of the case. Those would be two
11 specific entities. They left off, however, that 11 measures that would protect the privacy of Dr. Sally
12 none of the employees are paid through those two 12 Smith.
13 entities. And we attached the Form 990 as Exhibit G 13 MR. ANDERSON: And, Judge, if I may interject
14 to our motion, which clarified that all employees of 14 one other point. This is Mr. Anderson for the
15 All Children's Hospital are paid through All 15 Plaintiffs. We're also open to sealing the record,
16 Children's Health System. 16 so that if we --
17 In the affidavit provided by Johns Hopkins, I 17 THE COURT: Mr. Anderson, we need to -- and I'm
18 guess in a further attempt to clarify this, but only 18 going to allow you to talk, but we need to get to a
19 to create more ambiguity, they did not mention 19 habit of: we've got a motion that's going to be one
20 anything about whether she was paid by All 20 person for each side that's going to talk for it as
21 Children's Health System. 21 opposed to just a continuous attack, but I will
22 Your Honor, I'll leave it there. We ask that 22 allow you to add additional comments here for this
23 the tax returns be disclosed. One more thing, Your 23 one, Mr. Anders
Preview
1 2 Filing # 193459825 E-Filed 03/06/2024 03:37:36 PM 1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT 1 REMOTE APPEARANCES IN AND FOR SARASOTA COUNTY, FLORIDA 2 CASE NO. 2018-CA-005321 2 PRESENT ON BEHALF OF PLAINTIFFS: 3 JACK KOWALSKI, individually 3 GREGORY A. ANDERSON, ESQUIRE and on behalf of his children JENNIFER C. ANDERSON, ESQUIRE 4 MAYA KOWALSKI, a minor, and 4 NICHOLAS P. WHITNEY, ESQUIRE KYLE KOWALSKI, a minor; and as AndersonGlenn LLP 5 Personal Representative of the 5 10751 Deerwood Park Boulevard, Suite 105 Estate of BEATA KOWALSKI, Deceased, Jacksonville, Florida 32256 6 6 (904)273-4734 Plaintiffs, nwhitney@asglaw.com 7 vs. 7 gaanderson@asglaw.com 8 JOHNS HOPKINS ALL CHILDREN'S 8 PRESENT ON BEHALF OF DEFENDANTS: JOHNS HOPKINS ALL HOSPITAL, INC., JOHNS HOPKINS CHILDREN'S HOSPITAL, INC., and JOHNS HOPKINS HEALTH 9 HEALTH SYSTEM CORPORATION, INC.; 9 SYSTEM CORPORATION, INC., and CATHERINE BEDY: SUNCOAST CENTER, INC.; CATHERINE 10 BEDY; and SALLY M. SMITH, M.D., 10 DAVID HUGHES, ESQUIRE C. HOWARD HUNTER, ESQUIRE 11 Defendants. 11 Hill, Ward & Henderson ____________________________________/ 101 East Kennedy Boulevard, Suite 3700 12 12 Tampa, Florida 33602-5195 HEARING ON VARIOUS MOTIONS (813)221-3900 13 (Pages 1 through 175) 13 david.hughes@hwhlaw.com 14 14 PRESENT ON BEHALF OF DEFENDANTS: SUNCOAST CENTER, INC., DATE TAKEN: July 20, 2021 and SALLY M. SMITH, M.D.: 15 15 TIME: 8:30 a.m. - 12:42 p.m. BRIAN P. HASKELL, ESQUIRE 16 16 DIANE H. TUTT, ESQUIRE BEFORE: The Honorable Hunter W. Carroll Conroy Simberg 17 Circuit Court Judge 17 201 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 18 18 (813)273-6464 bhaskell@conroysimberg.com 19 19 dtutt@conroysimberg.com 20 20 ALSO PRESENT: 21 21 FILZAH IQBAL, LAW CLERK AndersonGlenn LLP 22 22 REPORTED BY: WILLIAM E. GANDY, JR., ESQUIRE 23 23 Florida Department of Health Stephanie A. Walters Office of the General Counsel 24 Stenographic Shorthand Reporter 24 25 APPEARING REMOTELY FROM HILLSBOROUGH COUNTY, FLORIDA 25 3 4 1 P-R-O-C-E-E-D-I-N-G 1 Dr. Sally Smith and Suncoast Center. Good morning. 2 THE COURT: What I'm going to do is, while we 2 THE COURT: Good morning. 3 wait for Mr. Anderson's video to come on, let's go 3 And, Ms. Tutt, is your audio and video working? 4 ahead and take appearances, starting with the 4 MS. TUTT: Can you see me and hear me? 5 individual here in the courtroom, and then we'll 5 THE COURT: I can see and hear you, yes, ma'am. 6 work around the screen. 6 MS. TUTT: Then, yes, they're both working. 7 MR. HUGHES: Yes. Good morning, Your Honor. 7 Thank you. 8 My name is David Hughes. I'm here on behalf of 8 THE COURT: Thank you. 9 Johns Hopkins All Children's Hospital; Johns Hopkins 9 Mr. Hunter. 10 Health System Corporation, Inc.; and Katherine Bedy. 10 MR. HUNTER: Howard Hunter, Your Honor, for -- 11 THE COURT: Thank you. 11 along with Mr. Hughes, we represent Johns Hopkins 12 Okay. And on video already, for the Plaintiff. 12 All Children's Hospital; Johns Hopkins Health 13 MR. WHITNEY: Hello, Your Honor. Nick Whitney, 13 System; and Catherine Bedy. 14 here on behalf of the Plaintiffs. Joining me are: 14 THE COURT: And there's an individual I just 15 Greg Anderson and Jennifer Anderson and Filzah 15 let in. This is Judge Carroll. Last four digits of 16 Iqbal. 16 the telephone are 4-0-0-5. 4-0-0-5. Who is this, 17 THE COURT: Greg Anderson, Jennifer Anderson, 17 please? 18 and Filzah Iqbal. 18 MR. GANDY: Gene Gandy, Florida Department of 19 And, Ms. Iqbal, are we getting on our video? 19 Health. 20 MS. IQBAL: Yes, Your Honor. Just one moment, 20 THE COURT: Okay. And can you spell your name 21 please. 21 again? 22 THE COURT: And, Mr. Haskell, if you could make 22 MR. GANDY: Gandy, G-a-n-d-y. 23 your appearance, please. 23 THE COURT: And what was your first name? 24 MR. HASKELL: Yes, sir, Brian Haskell, Your 24 MR. GANDY: William? 25 Honor, and Diane Tutt is also on video, on behalf of 25 THE COURT: Thank you. Do you end up -- do you Filed 03/06/2024 04:31 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 5 6 1 have a video capability, or are you always going to 1 all on the same page when we talk about judicial 2 be by telephone? 2 notices. 3 MR. GANDY: I'll mostly be by telephone. I'm 3 This has nothing to do with admissibility or 4 just monitoring. 4 any evidentiary facts that are going to be for 5 THE COURT: Yeah, my preference, though, is, 5 trial; this is just judicial notice and not any type 6 even for those that are just monitoring, to come in 6 of adjudicative fact; is that your understanding, 7 by video. I mean, if you were here in person, I'd 7 Mr. Anderson, of what you're seeking? 8 be able to see you, and I just try to replicate the 8 MR. ANDERSON: It is, Judge. These can be used 9 court experience. That's why I insist -- it is 9 by the Court in pretrial practice, and then there 10 easier for me to keep track of what's going on. 10 would have to be a separate motion before the Court 11 MR. GANDY: I will do so going forward, sir. 11 before it could be introduced to the jury. 12 THE COURT: Thank you, Mr. Gandy. 12 THE COURT: Okay. Why don't you proceed? And 13 I think we are ready to proceed. We just took 13 if you could do all of them at the same time, and 14 appearances. This is Case No. 2018-CA-5321 MC, and 14 then I'll get my multiple responses from the 15 I know we have a significant number of motions to go 15 Defense. 16 through. Why don't we do the first, the judicial 16 MR. ANDERSON: I believe Mr. Whitney is going 17 notice, the three judicial notices, and then we'll 17 to handle the bulk of that, Judge. He's got those 18 pretty much follow the order setting hearing. 18 right in front of him. 19 The judicial notice requests are: Document 19 MR. WHITNEY: Good morning, Your Honor. 20 Identification Number, or DIN, 826, which has a 20 THE COURT: Good morning. 21 docket date of May 12, 2020; we have DIN 1077, that 21 MR. WHITNEY: Beginning with DIN No. 826, 22 has a September 4th, 2020, docket date; and DIN 22 Plaintiffs' request for judicial notice. Your 23 1514, which has a docket date of June 11th, 2021. 23 Honor, this judicial notice concerns previous 24 And Plaintiffs are making these requests, at 24 decisions within the Second Court of Appeal 25 the beginning, and I just want to make sure we're 25 regarding the testimony and lack of credibility of 7 8 1 Dr. Sally Smith. 1 THE COURT: Okay. I just want you to 2 There are two separate cases here that we ask 2 articulate specifically what you're asking for 3 for judicial notice, and each is properly taken by 3 judicial notice. I've gotten the contents, so don't 4 the Court under 90.202, either 5, 6 or 7. In my 4 worry about the contents. 5 review, 90.202, parenthetical 6, allowing for 5 MR. WHITNEY: Understood. All right. 6 judicial notice of the records of any court of this 6 So, in the first request, Your Honor, we're 7 case seems most applicable. 7 looking for judicial notice of those two cases: the 8 The first, Your Honor, is in the Interest of 8 first -- and there is AWJ, a child, vs. Department 9 AWJ, a child, NJ vs. Department of Children and 9 of Children and Families, the second is James Duncan 10 Families, et al. -- 10 vs. State of Florida, a case in which the appeals 11 THE COURT: Mr. Whitney, I've read all of the 11 court has relinquished jurisdiction based on the 12 items. I understand what you're doing. I guess, I 12 testimony of Sally Smith and the lack of credibility 13 just wanted to confirm that everyone understood that 13 of her testimony. 14 if I were to take judicial notice, it does not -- 14 The second, Your Honor, request in addition to 15 that doesn't mean it's coming into evidence; it 15 this is a notice of filing supplemental authority in 16 doesn't mean that there is any fact that is actually 16 support of various motions and request judicial 17 agreed to for trial. 17 notice, which is DIN 1077, which is found at tab 2 18 MR. WHITNEY: That's correct, Your Honor. 18 on the hearing notice. 19 THE COURT: Right. So, Mr. Whitney, you can 19 And, Your Honor, here we have two house 20 short-circuit your presentation and tell me what's 20 resolutions regarding reflex sympathetic dystrophy. 21 in these because I've already reviewed it. 21 This is the previous nomenclature for complex 22 MR. WHITNEY: All right. Your Honor, so just 22 regional pain syndrome. One of these resolutions is 23 to clarify, would you like me to describe these 23 entered in 2004, the second in 2008. Both clarify 24 cases in detail, or just move on to what we are 24 that complex regional pain syndrome is often 25 additionally asking for judicial notice of. 25 misdiagnosed as a psychiatric condition in children. 9 10 1 That's exactly what we have here in this case. 1 THE COURT: Mr. Hunter. 2 Johns Hopkins took the position, throughout Maya's 2 MR. HUNTER: Your Honor, the Court has 3 stay that she was a psychiatric patient, for various 3 correctly pointed out: that we're here on judicial 4 conditions -- they shifted -- but for that reason, 4 notice, not on admissibility for evidentiary 5 we ask for judicial notice of those. 5 purposes, but we're also here because these matters, 6 And I would note that judicial notice standard 6 if judicially noticed, I'm sure Plaintiff will argue 7 for the house resolutions is mandatory under 201, 7 can be cited or relied upon in such proceedings as 8 90.201(1). 8 summary judgment or pretrial proceedings; and for 9 The last, Your Honor, is DIN 1514. It's found 9 that reason, we object to the judicial notice of all 10 at tab 10 of our hearing notice. And this request 10 of them and the Court exercising its discretion. 11 is brought under 90.202(5) and/or 12, under which 11 With respect to the first -- 12 official actions of the legislature or facts that 12 THE COURT: Mr. Hunter, let me ask you this: 13 are not subject to dispute because they're capable 13 If the orders that I enter reflect that nothing by 14 of accurate and ready determination by resort to 14 this judicial notice indicates that it's admissible, 15 sources whose accuracy cannot be questioned. 15 in any proceeding, or authentic -- I'm sorry. I 16 Here, Your Honor, we have: JCAHO reports -- 16 should say "admissible" -- wouldn't the Plaintiff 17 that's the Joint Commission on the Accreditation of 17 still have to, for summary judgment purposes, come 18 Hospitals -- confirmed some of the deficiencies of 18 forward with admissible evidence, and so they could 19 Johns Hopkins All Children's Hospital during the 19 not rely on a judicial notice as a summary judgment 20 relevant time period; and then, similarly, the plan 20 evidence as fact? 21 of correction. So we ask that judicial notice be 21 MR. HUNTER: That would certainly be my 22 taken of those as well, Your Honor. 22 position, Your Honor. I don't want to get -- I 23 THE COURT: From the Defense, who wishes to 23 don't want us to get sandbagged by the idea that the 24 start. 24 judicial notice permits the use of these things in 25 MR. HUNTER: I'll start, Your Honor. 25 pretrial proceedings, just not before the jury 11 12 1 unless they're admitted into evidence. 1 its discretion to judicially notice them. 2 None of these things should be admitted into 2 The same is true of the matters pertaining to 3 evidence. They all have questions of relevancy. 3 review of the -- by the DOH or AHCA. In addition to 4 And with respect to the judicial -- to the 4 those things, Your Honor, the JCAHO matters are 5 legislative resolutions, they're not legislative 5 privileged, pursuant to section 766.101 and 395.0193 6 resolutions at all; they don't even fit within the 6 of the Florida statutes. Both of them are 7 definition of what can be judicially noticed. 7 peer-review matters. 8 They're both house resolutions. They're half the 8 And the fact that they came from JCAHO, or that 9 legislature, not a complete act of the legislature. 9 they're otherwise available, does not defeat the 10 If they were an act of the legislature, they would 10 fact that their work product of a peer-review 11 reflect, in their enacting clause, that it wasn't 11 organization. And the Supreme Court, in Krueger vs. 12 the house resolving; it was the house and the senate 12 Love Express, also recognized that JCAHO was a 13 resolving jointly, or, the house resolving with the 13 peer-review organization, subject to that privilege. 14 concurrence of the senate. But neither of those 14 So we don't believe that any of these things 15 resolutions qualify for judicial notice. 15 should be judicially noticed, Judge, for those 16 Similarly, the JCAHO matters that are before 16 reasons. 17 the Court are not judicially noticeable. They're 17 THE COURT: Do you have any basis to believe 18 not only hearsay -- but that's an evidentiary 18 that this is not the Joint Commission report and 19 point -- but they're not -- first, they're not 19 Department of Health and Human Services information? 20 relevant to the time frame at issue. They encompass 20 MR. HUNTER: I don't have any reason to 21 time frames that are not at issue in this case. 21 disbelieve it or to believe it. They haven't been 22 They don't have to do with any matter that has to do 22 authenticated. And I don't know what source of -- I 23 with this; and, in addition to that, they don't fit 23 don't know what's the source was of the JCAHO 24 within the definition of any of the cited 24 matters. I assume that the HRS matters -- excuse 25 material -- cited criteria where the Court exercises 25 me -- the HHS matters were matters that were gotten 13 14 1 offline somewhere as public records, but the JCAHO, 1 over at DJJ, now she's at AHCA. 2 I have no idea where that came from. 2 Go ahead. 3 MR. WHITNEY: Your Honor, may I interject? 3 MR. WHITNEY: Judge -- 4 THE COURT: Yes, Mr. Whitney. 4 MR. HUNTER: If I might, Judge. This -- 5 MR. WHITNEY: I'm going to share my screen 5 THE COURT: Go ahead, Mr. Hunter. 6 here. Is it possible? It says that it's disabled 6 MR. HUNTER: This -- again, this does not 7 at this point. 7 indicate where the JCAHO material came from. It 8 THE COURT: Okay. I just enabled you. 8 only indicates that the "provided documents." I 9 MR. WHITNEY: Thank you. 9 don't know what "provided documents" there are. 10 Your Honor, yesterday, we filed -- we thought 10 THE COURT: Okay. Anything else, Mr. Hunter? 11 this issue -- Mr. Hunter has argued this issue 11 MR. HUNTER: That's the summary of it, Judge. 12 similarly before. 12 THE COURT: Is there going to be an attorney 13 Here is the official letterhead from the 13 from Dr. Smith's perspective that are going to 14 Florida Agency for Health Care Administration, as 14 address this? 15 custodian of records, clarifying that they provided 15 MR. HASKELL: Your Honor -- 16 the documents that we're talking about here this 16 MS. TUTT: Yes, Your Honor, if I could address 17 morning. So there is no question about their 17 it. 18 authenticity, and that is filed with the Court as of 18 MR. HASKELL: Sorry. 19 yesterday. 19 MS. TUTT: Brian, is that okay if I address it? 20 THE COURT: Whoa, whoa, whoa. Go back for a 20 MR. HASKELL: Go ahead, Diane, please. 21 second. 21 MS. TUTT: Okay. With respect to the judicial 22 MR. WHITNEY: I don't have the DIN number. I 22 notice of DIN 826, which pertains to Dr. Smith 23 apologize if you're looking for that. 23 specifically, we object to the Court taking judicial 24 THE COURT: Right, but Simone Marstiller is no 24 notice. 25 longer the -- no, she is the new secretary. She was 25 Irrespective of the Court's ruling that, you 15 16 1 know, you're not establishing admissibility at 1 The voluminous records in the James Duncan vs. 2 trial, these matters are completely separate cases 2 State case, not an appellant decision, that I could 3 in which Dr. Smith was a witness. They are not 3 see; it was all based upon motions to relinquish, 4 relevant in any proceeding here. 4 with accusations against Dr. Smith, attaching 5 I realize that there's also been a comment 5 multiple articles. It's just going to poison the 6 about, well, it wouldn't have -- documents have to 6 record. Completely irrelevant to any issue in this 7 be authenticated for summary judgment, but that is 7 case. 8 only a small part of what we're dealing with in this 8 I think it is well established that you cannot 9 case. 9 judge a person's conduct in the present case by 10 The Plaintiff has filed previously two motions 10 looking to what they might have done in a prior 11 for punitive damages. The amended one was actually 11 case. So we object on these grounds as well. We 12 heard by your predecessor. We anticipate more 12 also adopt Mr. Hunter's arguments. 13 motions of that nature. We don't want these 13 THE COURT: And, Mr. Whitney, did you want to 14 irrelevant materials to be used in a motion for 14 have any sort of reply? 15 punitive damages or motion to amend for punitive 15 MR. WHITNEY: Well, Your Honor, I kept my 16 damages, which can attach documents that are not 16 comments brief regarding relevance. 17 authenticated. 17 Regarding the decisions involving Sally Smith, 18 So we believe that these are completely 18 I heard that word "relevancy" thrown around a lot, 19 irrelevant, will poison the record, and I know Your 19 but I didn't hear any cogent argument about what the 20 Honor said that you looked at them. 20 lack of relevance is. 21 The first item just a published opinion of the 21 As I mentioned briefly, the Court -- 22 Second District Court of Appeal. There is really no 22 THE COURT: I don't understand why we're 23 need to take judicial notice of that, even if it 23 talking about relevance when we're talking about 24 were relevant, which, of course, we contend that it 24 judicial notice. The question is: Are these what 25 is not. 25 they are? 17 18 1 MR. ANDERSON: Exactly. 1 yesterday, that's going to be insufficient time. So 2 MS. TUTT: But, Judge, you have discretion to 2 I'll do it without prejudice. 3 accept them or not, at least the Sally Smith 3 Mr. Whitney, you're going to do the order. And 4 documents is based upon 90.202, which says the Court 4 in the future, with providing more notice, you can 5 may. 5 do it again, but for now, I'm going to deny that 6 MR. WHITNEY: They are what they are, Your 6 without prejudice. 7 Honor. 7 MR. WHITNEY: Your Honor, if I could clarify: 8 THE COURT: Right. Here's what we're going to 8 DIN 1077 is the request that dealt with the Florida 9 do: As it relates to the documents associated with 9 legislative resolutions. I believe your order is 10 826 and 1514 -- 826 and 1514, those are the DINs -- 10 meant -- 11 the Court is going to go ahead and grant judicial 11 THE COURT: Oh, 1514. I apologize. 1514. 12 notice, but there's going to be disclaimers in 12 You're right. Now, the house resolutions, I will 13 there. 13 take judicial notice. It's 1514, the Joint 14 And, Mr. Whitney, you're going to take the 14 Commission report, the statement of deficiencies, on 15 first pass at this order, and what I'm looking for 15 the basis of insufficient time to allow the 16 is a very vanilla, you know, "I take judicial 16 Defendants to examine whether these are in fact the 17 notice," but I also want express statements in there 17 documents that they purport to be. 18 that nothing about taking judicial notice has 18 MR. WHITNEY: Understood, Your Honor. 19 anything to do with any adjudicative fact or 19 THE COURT: Anything else about judicial notice 20 relevance or admissibility. 20 before we move on? 21 MR. WHITNEY: Understood. 21 MR. ANDERSON: On behalf of the Plaintiff, no. 22 THE COURT: As it relates to DIN 1077, the 22 MR. WHITNEY: No, Your Honor. 23 Court is going to deny it without prejudice. There 23 THE COURT: Now, we're going to start talking 24 was insufficient time to allow the Defendants to 24 about tax returns, Document Identification Number 25 review the source materials. If something was filed 25 1326, DIN 1326. This is a Plaintiffs' motion for 19 20 1 order compelling production of Defendant, Sally 1 everyone is on notice now, going forward. 2 Smith, M.D.'s 2015 through 2018 tax returns; 2015 2 Okay. Who from the Plaintiffs is going to 3 through 2018 contracts with the State Department of 3 argue this? 4 Health; and non-evasive answer to Plaintiffs' 12th 4 MR. WHITNEY: I will, Your Honor. 5 request for production. 5 THE COURT: Mr. Whitney. 6 Before we start -- and I understand that I was 6 MR. WHITNEY: And may it please the Court. 7 not the judge assigned to the case when this motion 7 First, my apologies for not complying with the 8 was filed. I do note that this motion violates the 8 rule there. This motion, understanding that we're 9 standards of professionalism here in the 12th 9 now on the third presiding judge here, it is 10 Circuit, e1(d), as in delta -- so echo, 1, paren D, 10 subsequent to several other motions in the 11 as in delta -- which requires that the actual 11 request -- although I don't have it before me -- 12 interrogatory question or deposition request for 12 would be for all pay records of Dr. Sally Smith 13 admission, whatever the request is, to be put 13 evidencing her compensation, evidencing her 14 forward completely, and then the answer or response 14 contracts with Suncoast, the Department of Health, 15 to be put forth completely. And, frankly, on a lot 15 and her employment by Johns Hopkins and compensation 16 of this, I don't even know what the document request 16 from Johns Hopkins. 17 is that you're referring to. 17 THE COURT: Why don't we focus on tax returns, 18 So, Plaintiffs, you need to, you know, help me 18 because I've got a constitutional right of privacy 19 out with that. But going forward, everyone has to 19 on that, so I need to know what the specific request 20 comply -- on any sort of motion to compel, you've 20 was and what the objections are. 21 got to comply with the standards of professionalism. 21 So can you help me out as to where I should 22 But being that I wasn't the judge before -- and 22 find the actual requests? 23 I know that I am inheriting a whole bunch of motions 23 MR. WHITNEY: That would take a minute for me 24 that were filed -- I'm not going to not hear the 24 to look at the actual request, Your Honor. I don't 25 motion today because of that, but please know that 25 know off the top of my head, to be perfectly 21 22 1 candid with -- 1 MS. TUTT: Oh, it's on the list, yeah. 2 THE COURT: How are you supposed to do a motion 2 THE COURT: Oh, okay. Yeah, that's the one -- 3 to compel when you don't tell the judge what the 3 I'm sorry. That's DIN 1464. 4 request was? Not what a summary of the request is, 4 MS. TUTT: Yes. 5 but what the actual request is. I need to know what 5 THE COURT: Yeah, I have that one right here. 6 that information is, please. 6 MS. TUTT: Exhibit A is the -- on page 3 of 7 MR. WHITNEY: Judge, can we can take five so we 7 Exhibit A has the request in Question 4 and the 8 can gather that information for you? 8 response. 9 THE COURT: Y'all can take it. I'm just going 9 MR. WHITNEY: Your Honor, I found our request, 10 to sit here, though. I need the requests, please. 10 corresponding request. 11 MR. WHITNEY: Yes, Your Honor. I'm going to go 11 THE COURT: Sure. 12 on mute while we figure that out, for a few minutes. 12 MR. WHITNEY: The filing did not have the DIN 13 THE COURT: And while the Plaintiffs are 13 number. I can tell that you that our 12th request 14 finding the request, the Defendants better find 14 to produce to Defendant, Sally Smith was filed on 15 where the response is. 15 November 30th, 2020. 16 MS. TUTT: I did. 16 THE COURT: Okay. The 12th request is 17 THE COURT: Where is the response, Ms. Tutt? 17 DIN 1204. 18 MS. TUTT: If you look at our response to the 18 And what request number within that one, 19 motion to compel, which we furnished in Exhibit A, 19 Mr. Whitney, please? 20 and that should be bookmarked -- 20 MR. WHITNEY: Request No. 4, Your Honor. 21 THE COURT: Can you give me a DIN number, 21 THE COURT: And, Ms. Tutt, you said yours was 22 please? 22 Exhibit A, page 3? 23 MS. TUTT: Not immediately. Sorry. 23 MS. TUTT: Page 3 of Exhibit A, correct, and 24 MR. HUNTER: I have it, Judge. The DIN number 24 that's Exhibit A to DIN 1464. 25 for the response -- 25 THE COURT: Yeah, I've got both of those up. 23 24 1 Okay. Mr. Whitney, you may continue with your 1 investigation of Maya Kowalski, and she was combing 2 argument. 2 through her medical records, outside of any active 3 MR. WHITNEY: Thank you, Your Honor. 3 investigation by the Department of Children and 4 Your Honor, our request, in November of last 4 Families. 5 year, followed multiple efforts by our firm to 5 So after the phone call was screened out, she 6 understand the compensation of Dr. Sally Smith, 6 was contacted, independent of any DCF involvement, 7 through both deposition, written discovery and 7 by physicians at the hospital, and there are medical 8 conferences with Mr. Haskell as Sally Smith's 8 records to this effect, that they texted her 9 counsel. At no time -- 9 directly, and asked her to take a look, and she did 10 THE COURT: Now, Mr. Whitney, let me stop you. 10 so without being officially involved. So that goes 11 When you say "to understand the compensation," are 11 to our civil conspiracy count. 12 you talking about the dollars and cents or are you 12 The second is, we have count 12 of our fifth 13 talking about who pays her, or both? 13 amended complaint, is the negligent hiring, 14 MR. WHITNEY: We're talking about both, Your 14 retention and supervision of Sally Smith at Johns 15 Honor. Who pays her and how much? 15 Hopkins All Children's Hospital. 16 THE COURT: Okay. How is there any -- any 16 It requires some education of this Court to 17 claim that you brought that would give you a right 17 take you through the saga that we've had to 18 to anyone's personal financial information? 18 persevere in, to understand Smith's various roles at 19 MR. WHITNEY: Your Honor, two counts are 19 this hospital. And because it's been such an uphill 20 relevant here: the first is civil conspiracy, the 20 battle, we are entitled to the tax returns, because 21 depth of the relationship between Johns Hopkins and 21 at no point have we received a coherent explanation 22 Sally Smith. 22 of who compensates her, for what, and how much she 23 If you recall, when I briefly gave my 23 is paid. 24 recitation of the basic facts of this case last 24 To begin, Your Honor, we begin our motion by 25 week, Dr. Sally Smith was involved in an 25 asking that you compare two exhibits: the 2016 W-2 25 26 1 of Dr. Sally Smith, which is attached as Exhibit A, 1 compensation, they just don't add up. 2 and the Suncoast Physician Detail Sheet, which is 2 With respect to Johns Hopkins, the Court was 3 the budget submitted from the Department of Health, 3 not involved at the time, but Ms. -- Dr. Smith's 4 which included Sally Smith's apparent salary. 4 role as the rotation director of the child abuse 5 There is an extreme disparity between these two 5 residency program was concealed from us for years, 6 documents. The tax return shows that she earned 6 and only upon us discovering a publicly available 7 $62,000. The budget submitted to the Florida 7 site maintained by Johns Hopkins, in which they had 8 Department of Health claims that her pay is $189,000 8 listed her on a roster as the child abuse rotation 9 and change. We've asked, on multiple occasions, for 9 director, did we discover her involvement in 10 them to explain this. At no point, have we received 10 training the young physicians at Johns Hopkins. 11 a coherent explanation. 11 Now, beyond that, even upon discovery of that 12 THE COURT: Who have you asked to explain it? 12 arrangement, it was further denied by Smith's 13 MR. WHITNEY: We -- we've asked Mr. Haskell, on 13 counsel, and we received kind of trickling in 14 multiple occasions, and myself and Ms. Iqbal had a 14 ever-growing responses that are more and more candid 15 telephone conference with Mr. Haskell and his 15 about her actual role. 16 paralegal -- I believe it was Tracy Kosky at the 16 So you'll see in Smith's response that they 17 time -- and we tried to talk through this. 17 maintain that Smith's role as a rotation director in 18 We were told that she works 12 hours a week at 18 the child abuse residency program only pertains to a 19 $90 an hour, and even if you do the math there, it 19 2019 memorandum of understanding. 20 doesn't add up to the $62,000 claim. Not to 20 They maintain that in their filing as of 21 mention, it doesn't stand to reason that Suncoast 21 May 18th of this year, just two months ago. That is 22 would submit a budget to the State and have $189,000 22 directly contradicted by responses provided to us by 23 allocated to Suncoast for her work, and then turn 23 Johns Hopkins, in which they've now confirmed that 24 around and pay her only $62,000. Exhibit B, if you 24 she had been in that role for seven years, from 2014 25 try to add the rows across, with Sally Smith's 25 to 2021. 27 28 1 They denied, on multiple occasions, any pay -- 1 The first is, Smith's counsel mentioned, in his 2 any compensation from Johns Hopkins to Dr. Sally 2 recitation of the facts last week, that Smith 3 Smith. And only as this motion was scheduled to be 3 offered a 50-page report provided to the dependency 4 heard in May, days before, did we learn that, in 4 court at the time. 5 fact, Johns Hopkins had compensated her for work 5 Ahead of authoring that report, she contacted 6 related to the child abuse residency program. They 6 Maya Kowalski's treating physician, Dr. Kirkpatrick, 7 phrased it as an "honorarium for a grand rounds' 7 who told her, in no uncertain terms, that Maya 8 lecture." 8 Kowalski had complex regional pain syndrome. This 9 Nonetheless, it directly contradicts their 9 was not a case of child abuse. He had seen 10 prior assertions that there was no compensation 10 inexperienced physicians take this stance before, 11 received by Dr. Sally Smith from Johns Hopkins All 11 and if there was going to be any allegation of child 12 Children's Hospital. 12 abuse, and if she was going to continue to pursue 13 The suggestion from Defense counsel, and 13 that, to please call him back, that he would like to 14 Smith's counsel in particular, to date has been, 14 talk to her further, and she did not call him back 15 "Well, given these inconsistencies and our ability 15 and, more egregiously, she did not disclose to the 16 to explain it, we suggest that the best way to go 16 Court that she had had that conversation with the 17 about this is to ask Dr. Sally Smith at her next 17 treating physician, and that he had advised her that 18 deposition what's going on here." 18 this was not child abuse. So the report presented 19 Dr. Sally Smith, in this case -- in this case, 19 in court was one sided. 20 not in any cases that were just taken judicial 20 The second instance here, Your Honor, is, 21 notice of -- has been proven to be not credible. 21 Dr. Smith had been previously sanctioned, in this 22 I'll give you three examples to educate you 22 case, for withholding 150 pages of handwritten notes 23 briefly why it is not a viable alternative for us to 23 out of her production, in this case. 24 ask Dr. Sally Smith the question of who pays her and 24 Those were discovered during her deposition 25 how much. 25 testimony. As she consulted her file, we realized 29 30 1 that she was looking at notes that had not been 1 related entities, appear on her tax returns; and, if 2 produced to us. And if you look at Judge Walker's 2 so, we would like to know that information. 3 order there, you'll see that he concluded, "There is 3 Alternatively, we would also enter into a 4 no coherent explanation offered by Dr. Smith," and 4 confidentiality order whereby the tax returns, the 5 for that reason, she was sanctioned. 5 relevant portions of the tax returns, that is, the 6 So the only way for us to get a candid, frank 6 portion of the tax returns that shows us the income 7 look at her compensation and who it comes from is 7 and the source of that income, is produced to us 8 from looking at her tax returns. 8 under a confidentiality agreement, and we do not 9 Johns Hopkins had provided an affidavit 9 disclose that outside this case, and we destroy 10 claiming that Dr. Smith was not paid through two 10 those at the end of the case. Those would be two 11 specific entities. They left off, however, that 11 measures that would protect the privacy of Dr. Sally 12 none of the employees are paid through those two 12 Smith. 13 entities. And we attached the Form 990 as Exhibit G 13 MR. ANDERSON: And, Judge, if I may interject 14 to our motion, which clarified that all employees of 14 one other point. This is Mr. Anderson for the 15 All Children's Hospital are paid through All 15 Plaintiffs. We're also open to sealing the record, 16 Children's Health System. 16 so that if we -- 17 In the affidavit provided by Johns Hopkins, I 17 THE COURT: Mr. Anderson, we need to -- and I'm 18 guess in a further attempt to clarify this, but only 18 going to allow you to talk, but we need to get to a 19 to create more ambiguity, they did not mention 19 habit of: we've got a motion that's going to be one 20 anything about whether she was paid by All 20 person for each side that's going to talk for it as 21 Children's Health System. 21 opposed to just a continuous attack, but I will 22 Your Honor, I'll leave it there. We ask that 22 allow you to add additional comments here for this 23 the tax returns be disclosed. One more thing, Your 23 one, Mr. Anders