Motion to Strike in JAMES MCMANUS VS GARY GANIBAN| Trellis.Law

On June 10, 2021 a Motion,Ex Parte was filed involving a dispute between 1995 Nasa Group Llc, Florida Eye Consultants Inc, James N Mcmanus Md, Southwoods Investment Llc, and Eric Straut Od, Gary J Ganiban Md, Hetal Vaishnav Md, Jason K Darlington Md, Michael N Mandese Md, for BUSINESS TORT in the District Court of Brevard County.

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Filing # 162477179 E-Filed 12/06/2022 01:37:03 PM

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA

JAMES N. McMANUS, M.D., individually, and Case No: 05-2021-CA-031847-XXXX-XX
on behalf of SOUTHWOODS INVESTMENT,
LLC, 1995 NASA GROUP, LLC and FLORIDA
EYE CONSULTANTS, INC.,

Plaintiff,
Vv,

GARY J. GANIBAN, M.D., MICHAEL N.
MANDESE, M.D., JASON K. DARLINGTON,
M.D., ERIC STRAUT, O.D., HETAL
VAISHNAV, M.D., SOUTHWOODS
INVESTMENT, LLC, 1995 NASA GROUP,
LLC, and FLORIDA EYE CONSULTANTS,
INC.,

Defendants.
/

PLAINTIFFS’ AMENDED MOTION TO STRIKE AND MOTION FOR SANCTIONS AND
MOTION FOR SANCTIONS FOR DEFENDANTS’ SPOLIATION OF EVIDENCE

Plaintiffs, JAMES N. McMANUS, M.D. (“DR. McMANUS?), individually, and on behalf of

SOUTHWOODS INVESTMENT, LLC, 1995 NASA GROUP, LLC and FLORIDA EYE

CONSULTANTS, INC., by and through their undersigned attorney, and pursuant to Florida Rules

of Civil Procedure 1.140(f), 1.150(a), and 1.280(g), hereby move to strike the Notice of Filing

Employee Affidavits filed on June 15, 2022 (Doc. No. 135), and for sanctions against Defendants,

GARY J. GANIBAN, M.D. ("DR. GANIBAN”), MICHAEL N. MANDESE, M.D. ("DR. MANDESE”),

JASON K. DARLINGTON, N.D. (DR. DARLINGTON”), ERIC STRAUT, 0.D. (‘DR. STRAUT”), and

HETAL VAISHNAV, M.D. ("DR. VAISHNAV"), and Defendants’ counsel for filing same, and for

sanctions against Defendants for spoliation of evidence, and state as follows:

Motion to Strike Notice of Filing Employee Affidavits and for Sanctions

1 On June 15, 2022, Defendants, DR. GANIBAN, DR. MANDESE, DR.

DARLINGTON, DR. STRAUT, and DR. VAISHNAV, filed a Notice of Filing with an attached Exhibit

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
“A” described as “Employee Affidavits.” (Doc. No. 135).

2. The alleged “Employee Affidavits” attached as Exhibit “A” include the following:

. “Memo to File” dated May 19, 2022, from “Charlotte Mochel, HR Director’ at the Eye
Institute for Medicine & Surgery;

E-mail from Charlotte Mochel to Donna Lemon dated May 19, 2022;

E-mail from Ann Marie Darnsteadt, self-described Assistant/Technician at the Eye
Institute for Medicine & Surgery, dated May 19, 2022;

E-mail from Danielle Hurlbert of the Eye Institute for Medicine & Surgery dated May
19, 2022;

E-mail from Latina Nousain, self-described “Dr. Darlington's Assistant” at the Eye
Institute for Medicine & Surgery, dated May 19, 2022;

E-mail from Anna Rogers dated May 24, 2022;

E-mail from Denise Brown dated May 25, 2022; and

E-mail from Jessica Beck, self-described as “Dr. Michael Mandese’s Assisatnat at
The Eye Institute,” dated May 19, 2022.

3. The various documents attached as Exhibit “A” to the Notice of Filing disclose

protected health information (PHI) concerning Plaintiff, DR. McMANUS, by various agents and

employees of Defendants.

4 Plaintiffs hereby move the Court to strike the Notice of Filing Employee Affidavits

from the docket and to impose sanctions against Defendants and their counsel for having filed the

Notice of Filing without a proper purpose and without good cause under Florida Rule of Civil

Procedure 1.280(g).

5 A motion to strike may be used to assert that a pleading or part thereof is a sham

or to remove from any pleading matter that is “redundant, immaterial, impertinent, or scandalous.”

See Parrish & Yarnell, P.A. v. Spruce River Ventures. LLC, 180 So.3d 1198, 1200 (Fla. 2d DCA

2015) (citing Fla.R.Civ.P. 1.140(b), (f); 1.150(a)). “A pleading is considered a sham only ‘when it

is palpably or inherently false, and from the plain or conceded facts in the case, must have been

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
known to the party interposing it to be untrue.” Bornstein v. Marcus, 169 So.3d 1239, 1242 (Fla.

4th DCA 2015) (citation omitted). See also Wildflower, LLC v. St. Johns River Water Management

District, 179 So. 3d 369, 373 (Fla. 5th DCA 2015) (stating that a pleading is only considered a sham

when it is inherently false and clearly known to be false at the time the pleading was made). Thus,

a sham pleading is one good on its face but absolutely false in fact. See Bornstein, 169 So.3d at

1242. See also St. John Medical Plans, Inc. v. Physician Corp. of America, 711 S0.2d 1329, 1331

(Fla. 3d DCA 1998) (“A sham pleading has been defined as ‘one that while in good form is false

in fact, or one good in form but false in fact and not pleaded in good faith”).

6 Florida Rule of Civil Procedure 1.140(f) permits a partyto “move to strike or the court

may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”

Fla.R.Civ.P. 1.140(f). “As used in the rule, redundant means allegations that are foreign to the

issues or needless repetition of allegations. immaterial means allegations having no essential or

important relationship to the issues or unnecessary elaboration of material allegations. Impertinent

means allegations that do not belong to the issue and are not necessary to it. Scandalous means

unnecessary allegations censuring or accusing a party.” Henry P. Trawick, Jr., Fla. Prac. & Proc.

§ 11:12 (2021-2022 ed.).
7. The Court should strike Defendants’ Notice of Filing Employee Affidavits for being

a sham and for including redundant, immaterial, impertinent, and/or scandalous matter.

8 First, the documents attached as Exhibit “A” to the Notice of Filing disclose protected

health information (PHI) of DR. MCMANUS by various agents and employees of Defendants.

9 DR. McMANUS disputes the accuracy and truthfulness of the allegations waged

against him in the so-called “Employee Affidavits.” Regardless of the accuracy and truthfulness

of the allegations, Defendants’ agents and employees have disclosed PHI concerning DR.

McMANUS' alleged COVID status in violation of HIPAA. Defendants and their counsel then

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
disclosed this PHI to the world at large by filing the “Employee Affidavits” in the court file.

10. Second, the documents attached to the Notice of Filing include redundant,

immaterial, impertinent, and/or scandalous matters concerning DR. MCMANUS, in particular, that

DR. McMANUS saw patients while testing, or after having tested, positive for COVID. These

allegations are foreign to the issues in this action; have no essential or important relationship to

the issues; do not belong to the issues and are not necessary to the issues; and unnecessarily

and falsely accuse DR. McMANUS of having COVID while treating patients.

11. Third, the documents have not been filed for any identified or proper purpose, as,

for example, to support or oppose a Motion for Summary Judgment. Rather, the documents have

been filed to slander DR. McMANUS and/or to cast DR. McMANUS in a disparaging light in the

eyes of the Court.

12, Florida Rule of Civil Procedure 1.280(g) prohibits the filing of documents and

discovery unless for good cause:

(g) Court Filing of Documents and Discovery. Information obtained during discovery shalt
not be filed with the court until such time as it is filed for good cause. The requirement of
good cause is satisfied only where the filing of the information is allowed or required by
another applicable rule of procedure or by court order. All filings of discovery documents
shall comply with Fiorida Rule of General Practice and Judicial Administration 2.425. The
ourt shall have authority to impose sanctions for violation of this rule.

Fla.R.Civ.P. 1.280(g) (emphasis added).

13. Fourth, the documents do not constitute proper affidavits and even if they did, are

classic hearsay that cannot be used to prove the truth of the matter asserted.

14. None of the alleged “Employee Affidavits” contains a proper jurat or notarial

certificate as required by section 117.05(4), Florida Statutes. Moreover, none of the alleged

“Employee Affidavits” reflects that it was sworn to before an individual authorized to administer

oaths. Thus, the alleged “affidavits” are legally insufficient as a matter of law. See Placide v.

State, 189 So.3d 810, 814 (Fla. 4th DCA 2015), rev. den. 2016 WL 698509 (Fla. 2016).

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
15. “The affidavit, an out-of-court statement offered to prove the truth of the matter

asserted, is the most basic form of hearsay.” Fortune v. Fortune, 61 So.3d 441, 445 (Fla. 2d DCA

2011) (citing § 90.801(1)(c), Fla. Stat.). “It is well settled that affidavits are not admissible to prove

facts in issue at an evidentiary hearing because they are not subject to cross-examination and

because they impermissibly shift the burden of proof to the other party.” Fortune, 61 So.3d at 445.

16. Even assuming the alleged “Employee Affidavits” were legally proper affidavits,

which they are not, the documents are replete with hearsay. Since they cannot be used to prove

the truth of Defendants’ agents/employees’ allegations, the so-called “Employee Affidavits” can only

be used to publicly humiliate, embarrass, and intimidate DR. McMANUS and to cast him in a

negative light in the eyes of this Court.

17. For these reasons, the Notice of Filing Employee Affidavits should be struck from

the docket.

18. The Court should also impose sanctions against both Defendants and their counsel

for violating Rule 1.280(g).

19. Defendants are barred from filing the documents attached to the Notice of Filing

unless they have “good cause” to do so, which requires a showing that the filing of the “Employee

Affidavits” is “allowed or required by another applicable rule of procedure or by court order.”

Fla.R.Civ.P. 1.280(g). The “Employee Affidavits” were clearly not filed to either support or oppose

a pending motion. Thus, the “Employee Affidavits” were filed for no discernible reason other than

to inflict public humiliation, embarrassment, or intimidation.

20. For the reasons discussed herein, the Court should strike the Notice of Filing

Employee Affidavits and impose sanctions against both Defendants and their counsel for violating

Rule 1.280(g).

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
Motion for Sanctions for Defendants’ Spoliation of Evidence

21. Plaintiffs move the Court to impose sanctions against Defendants, DR. GANIBAN,

DR. MANDESE, DR. DARLINGTON, DR. STRAUT, and DR. VAISHNAV, for spoliation of evidence.

22. In particular, Defendants spoliated two types of evidence that were the subject of

formal discovery requests: (1) patient disclosure forms advising that DR. MCMANUS and, later,

unnamed staff members had tested positive for COVID, and (2) recorded telephone calls placed

to DR. McMANUS'’ patients to reschedule with DR. McMANUS or with another physician.

23. On August 3, 2022, Defendants filed a Motion for Contempt and Sanctions Against

Plaintiff accusing DR. McMANUS of, among other things, “intentionally infecting patients and staff

with Covid-19.” (Doc. No. 166, {f 5).

24. On August 23, 2022, Plaintiffs served their Fourth Request for Production of

Documents on Defendants (Doc. No. 175).

25. Request No. 1 and Request No. 2 specifically requested
the patient disclosure forms

and recorded calls as follows:

1 Copies and/or access to telephone calls that occurred by and between FEC
an/or [sic] any of its representatives and the patients identified on the list
attached as Exhibit “A” attached hereto that occurred on either May 18,
2022 or May 19, 2022.

Copies of all consents to treatment in the form attached as Exhibit “B" for
patients of Dr. McManus that were seen on May 18, 2022 and May 19,
2022.

26. Defendants’ responses to Request No. 1 and No. 2 were identical: “None within the

possession, custody or control of the Defendants. Defendants further note that any documents

responsive to this request would be in the possession, custody or control of the entities that the

Plaintiff allegedly, although improperly, brought this action on behalf of.” (Doc. No.191).

27. On October 19, 2022, Plaintiffs deposed two employees of EYE CONSULTANTS:

Charlotte Mochel, the Human Resources Director, and Denise Brown, a Clinical Supervisor. See

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
Deposition Excerpt of Charlotte Mochel at 6:13-14, attached hereto and incorporated herein as

Exhibit “A;” Deposition Excerpt of Denise Brown at 7:3-5, attached hereto and incorporated herein

as Exhibit “B.”

28. Charlotte Mochel testified that she asked “our medical records person” to look

whether the patient disclosure forms became part of the patient’s file but “[w]e were not able to find

any of them.” See Exhibit “A” at 31:17-23. Mochel further testified that she doesn't know what

happened to the forms left at the front desk. See Exhibit A” at 32:1-6. “Nobody seems to know

what happened to them.” See Exhibit “A” at 32:21.

29. Denise Brown testified that she had been asked to locate the patient disclosure

forms and had asked the front desk “to see if maybe they had put them somewhere specific,” but

she “could not locate them.” See Exhibit “B” at 37:16-22; 38:2-17.

30. Mochel and Brown's deposition testimony supports the finding that Defendants have

spoliated the patient disclosure forms that were provided to all patients who were scheduled to see

DR. McMANUS. Initially, these forms advised patients that DR. McMANUS had tested positive for

COVID. See Exhibit “A” at 28:17-25; 30:8-18. These forms were later modified to state simply that

staff members had tested positive for COVID and requested the patient's permission to either

reschedule or continue. See Exhibit “A” at 29:1-13; 33:15-20.

31. These forms were supposed to have been placed in the patient’s medical record and

retained. See Exhibit “A” at 31:13-16.

32. These forms were apparently retained for some period of time at the front desk but

were ultimately “misplaced.”

33, During their depositions, both Charlotte Mochel and Denise Brown indicated that

they had searched for these forms — which Plaintiffs formally requested in discovery — but could

not find them in the patients’ file, in patient records, or at the front desk.

34. These staff members, which includes the Human Resources Manager for EYE

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
CONSULTANTS, could not explain what happened to the forms.

35. Defendants, however, had received Plaintiffs’ notification that, by filing the Employee

Affidavits discussed supra, Defendants violated HIPAA rules.

36. It is Plaintiffs’ belief that Defendants knowingly and intentionally destroyed these

patient disclosure forms.

37. As with the patient disclosure forms, Defendants have spoliated the recorded

telephone calls to patients to reschedule with DR. McMANUS or with another doctor.

38. Some of these calls were made by DR. MCMANUS’ surgery scheduler. Plaintiffs are

able to review those recorded calls.

39. Some of these calls were made by an employee named Barbara who works primarily

for DR. DARLINGTON.

40 There may have been other employees who called DR. McMANUS’ patients.

A These recorded calls were corrupted and cannot be reviewed.

42. Plaintiffs requested to review these recorded calls within days of the calls being

made.

43, Therefore, Defendants cannot argue that they simply recorded over the recorded

calls because they had been notified to preserve the recordings.

44. It is important to note that Incoming and outgoing calls are recorded by the practice.

See Exhibit “A” at 34:18-20.

45. It is also significant to note that all other recorded calls made that day are available

and can be reviewed.

46. Charlotte Mochel, the Human Resources Director, testified that she had not been

asked to search for these recordings and made no attempt to determine whether they are available.

See Exhibit “A” at 34:16-25, 35:1-1.

47, Defendants have, thus, spoliated the recorded calls placed to DR. MCMANUS’

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
patients.

48. Plaintiffs move the Court not only to strike Defendants’ Motion for Contempt and

Sanctions Against Plaintiff filed August 3, 2022 (Doc. No. 166), but also to strike Defendants’

pleadings or, in the alternative, strike Defendants’ pleadings related to Plaintiffs’ Motion for

Temporary Injunction and Renewed Motion for Temporary Injunction and grant the temporary

injunction without further hearing.

49. “Spoliation is ‘[t]he intentional destruction, mutilation, alteration, or concealment of

evidence [.]” Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4" DCA 2006) (citing Black's

Law Dictionary 1437 (8th ed. 2004)).

50. A duty to preserve evidence can arise by contract, by statute, or by a properly

served discovery request (after a lawsuit has already been filed). See Royal & Sunalliance v.

Lauderdale Marine Center, 877 So.2d 843, 845 (Fla. 4" DCA 2004).

51. Thus, a party has an affirmative responsibility to preserve any items or documents

that are the subject of a duly served discovery request. See Eugene Strasser, M.D. P.A. v. Bos

Yal lamachi, M.D., P.A., 783 So.2d 1087, 1093 (Fla. 4" DCA 2001), rev. den. 805 So.2d 810 (Fla.

2001).
52. “In order for a court to effect any sort of remedy for a party’s alleged spoliation of

evidence, the court must determine whether: (1) ‘the evidence existed at one time,’ (2) ‘the

spoliator had a duty to preserve the evidence, and’ (3) ‘the evidence was crucial to an opposing

party['s] being able to prove its prima facie case or a defense.” Osmulski v. Oldsmar Fine Wine.

Inc., 93 So.3d 389, 392 (Fla. 2d DCA 2012), rev. den. 109 So.3d 781 (Fla. 2013) (citing Golden

Yachts, 920 So.2d at 781).

53. “In cases involving negligent spoliation, courts prefer to utilize adverse evidentiary

inferences and adverse presumptions during trial to address the lack of evidence. In cases

involving intentional spoliation, courts more often strike pleadings or enter default judgments.”

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
Golden Yachts, 920 So.2d at 780 (citing Martino v. Wal-Mart Stores, Inc,, 908 So.2d 342, 346-47

(Fla. 2005)) (emphasis added),

54 In the present case, all three elements are satisfied.

55. First, Charlotte Mochel and Denise Brown have testified that the forms and the

recorded calls existed at one time.

56. Second, Defendants had the duty to preserve the forms and the recorded calls

because Plaintiffs had served Defendants with proper discovery requests requesting them.

57. Third, this evidence is crucial to Plaintiffs being able to prove their prima facie case

or defense that the Defendants have improperly retaliated against DR. MCMANUS, are violating

the Status Quo Order and are trying to destroy DR. McMANUS'’ business.

58. Based on the foregoing, Plaintiffs hereby move the Court to strike Defendants’

Motion for Contempt and Sanctions Against Plaintiff filed August 3, 2022 (Doc. No. 166) and to

strike Defendants’ pleadings or, in the alternative, strike Defendants’ pleadings related to Plaintiffs’

Motion for Temporary Injunction and Renewed Motion for Temporary Injunction and grant the

temporary injunction without further hearing.

WHEREFORE, Plaintiffs, DR. McMANUS, individually, and on behalf of SOUTHWOODS

INVESTMENT, LLC, 1995 NASA GROUP, LLC and FLORIDAEYE CONSULTANTS, INC., request

that the Court enter an Order:

- Striking the Notice of Filing Employee Affidavits from the docket;

Imposing sanctions against both Defendants, DR. GANIBAN, DR. MANDESE, DR.

DARLINGTON, DR. STRAUT, and DR. VAISHNAV, and Defendants’ counsel for violating

Rule 1.280(g);

Striking Defendants’ Motion for Contempt and Sanctions Against Plaintiff filed August 3,

2022 (Doc. No. 166);

Imposing sanctions against Defendants, DR. GANIBAN, DR. MANDESE, DR.

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
DARLINGTON, DR. STRAUT, and DR. VAISHNAY, by striking Defendants’ pleadings or,

alternatively, striking Defendants’ pleadings related to Plaintiffs’ Motion for Temporary

Injunction and Renewed Motion for Temporary Injunction and granting Plaintiffs’ temporary

injunction without further hearing;

Awarding them their reasonable attorneys’ fees and costs for having to bring this Motion;

and

Granting such other and further relief as this Court deems just and proper.

c E RTIFICATE OF SERVIC. E

| HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
E-Portal service to: SCOTT WIDERMAN, Esq. (scott@uslegalteam.com;
jessica@uslegalteam.com), A iggeman Malek, P.L., 1990 W. New Haven Avenue, 2nd Floor,
Melbourne, FL 32904, this day of fjevemper, 2022.

FRESE, WHITEHEAD, ANDERSON &
HENDERSON, P.A.

By: /s/ Allan P. Whitehead
ALLAN P. WHITEHEAD
Florida Bar No. 870927
JAMES D. HENDERSON
Florida Bar No. 0084257
2200 Front Street, Suite 301
Melbourne, FL 32901
Telephone: 321.984.3300; Facsimile: 321.951.3741
Primary: awhitehead@fresewhitehead.com
jhenderson@fresewhitehead.com
Secondary: dmohre@fresewhitehead.com
jmcguire@fresewhitehead.com
Attorneys for Plaintiffs

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
Exhibit A

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. vs GARY J, GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022

IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
CASE NO.: 05-2021-CA-031847-XXXXK-XX

JAMES N. McMANUS, MD, individually,
and on behalf of SOUTHWOODS
INVESTMENT, LLC, 1995 NASA GROUP,
LLC, and FLORIDA EYE CONSULTANTS, INC.

Plaintiffs,

vs.

GARY J. GANIBAN, MD, MICHAEL N.
MANDESE, MD, JASON K. DARLINGTON,
10 MD, ERIC STRAUT, OD and HETAL
VAISHNAV, MD, SOUTHWOODS INVESTMENT,
12 LLC, 1995 NASA GROUP, LLC, and
FLORIDA EYK CONSULTANT'S, INC.,
12
Defendants.
13

14
DEPOSITION OF:
15 Charlotte Mochel

17 Taken on Behalf of the Plaintiffs

18
DATE TAKEN: October 19, 2022
19 TIME : 1:47 p.m. - 3:10 p.m.
PLACE : 1990 West New Haven Avenue
20 West Melbourne, FL 32904

22
Examination of the witness taken before:
23
Patricia A. Migliaccio
24 Stenographic Machine Court Reporter
and Notary Public, State of Florida at Large.
25

www.-huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. vs GARY J, GANIBAN, MD, ET AL,
Charlotte Mochel on 10/19/2022 Page2

APPEARANCES

APPEARANCES FOR THE PLAINTIFFS

ALLAN P. WHITEHEAD, ESQUIRE
Frese, Whitehead & Anderson, PA
2200 Front Street, Suite 301
Melbourne, Florida 32901
321-984-3300/awhitehead@fresewhitehead.
com

APPEARANCES FOR THE DEFENDANTS

SCOTT WIDERMAN, ESQUIRE
10 Widerman Malek, PL
1990 West New Haven Avenue, 2nd floor
11 Melbourne, Florida 32904
321-285-2332/Scotteuslegalteam.com
12

www.huseby.com Huseby Global Litigation 800-333-2082,

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. vs GARY J. GANIBAN, MD, ET AL.
Charlotte Moche! on 10/19/2022 Page 3

INDEX OF PROCEEDINGS
Deposition of Charlotte Mochel

WITNESS PAGE
Charlotte Mochel
Direct Examination by Mr. Whitehead

Cross Examination by Mr. Widerman 57

Certificate of Oath 63
Certificate of Reporter 64
Errata 65

11 INDEX OF EXHIBITS

12 PLAINTIFF'S EXHIBITS

13 NO. DESCRIPTION PAGE
Exhibit 1 E-mail and attachments from Mochel 13
14 Exhibit 2 E-mail from Denise Brown 20
Exhibit 3 E-mail from Melissa Dougherty 20
15

16 DEFENDANT'S EXHIBITS

17 NO DESCRIPTION PAGE
**None**
18

www.huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL, vs GARY J. GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022 Page 4

WHEREUPON,

CHARLOTTE MOCHEL,

a Witness, herein, acknowledged having been duly

sworn, and testified upon her oath as follows:

THE WITNESS: So help me God.

DIRECT EXAMINATION

BY MR. WHITEHEAD:

Q. Good afternoon, ma'am. Would you state

your name please for the record?

10 A Charlotte mole.

1i Q Miss Mochel -- am I pronouncing that

12 correctly?

13 A Yes.

14 Q. What's your business address?

15 A 1995 West NASA Boulevard, Melbourne,

16 Florida, 32901.

17 Q. Are you employed?

18 A Yes.

19 Q. For whom are you employed?

20 The Institute for Medicine and Surgery.

21 Q. Have you had your deposition taken before?

22 Yes.

23 Q I'll assume you generally understand the

24 rules related to depositions, but if I ask you a

25 question you don't understand let me know and I'11

www.huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. ys GARY J, GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022 Page 5

rephrase it.

Something else I do that's a little

different, if you respond to a question and later

think you might have made a mistake in the response,

you want to go back and revisit that area, let me

know and we'll go back and do that.

A Okay.

Q. Make sure that we don't talk over each

other, that I finish my question before you start

10 your answer, and I'll do the same for you. If I

11 break that rule let me know, I'11 stop.

12 If you wish to respond in the affirmative

13 please say yes, or the negative please say no. I
14 may remind you of that rule because most people say

15 uh-huh or uh-uh. That's okay. I just want to make
16 sure the record is clear. I'm not a smart-alec. I
17 just want to make sure the record is clear.

18 If at any point in time you need to take a

19 break let me know, we'll take a break.

20 A Okay.

21 Q. Can you describe your education background

22 for me please?

23 A I have a business -- I'm sorry. T am

24 getting rattled already. My degree is in business

25 administration with a human resources emphasis.

www.huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. vs GARY J, GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022 Page 6

Q. When did you obtain that degree?

A 2003.

Q How long have you been employed with

the -- is that also known as Florida Eye

Consultants?

A Yes. That's the legal name. Florida Eye

Consultants, Inc. doing business as The Eye

Institute of Medicine and Surgery.

Q. If I refer to that as FEC is that okay?

10 A Yes.

11 Q. How long have you worked at FEC?

12 A A little over eleven years.

13 Q What do you do for them?

14 A I'm the human resources director.

15 Q. Have you held that position for all those
16 eleven years?

17 A Yes.

18 Q. Are you aware of this lawsuit that we're

19 here on today?

20 A Yes.

a1 Q And how are you aware of that?

22 A It's common knowledge throughout the

23 office, as well as I've been keeping up on what's

24 happening, been on the public record.

25 Q. You've been looking at the pleadings in

www.huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. McMANUS, MD, ET AL. vs GARY J, GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022 Page 28

might be an unpleasant experience, anything else

that you recall discussing with Miss Brown about the

substance of the facts of this case?

A No.

Q Have you shown this memo to the file to

any of the staff members at FEC?

A No.

Q. Have you showed it to anyone outside of

FEC?

10 No.

11 Q. Have you shared it with Kyle Haubrich?

12 A I don't believe I sent it to him. If he

13 has it he would have gotten it probably from one of

14 the doctors.

15 Q Now, attached to the memo are some --

16 A Disclosures.

17 Q. Yes, ma'am. It looks like on maybe page

18 four and page five there are two blank disclosure

19 forms. And what are these, ma'am?

20 A On the day that Dr. McManus returned to

21 the office to come to the clinic, which would have

22 been Thursday, May 18 I believe is the date, Kyle

23 told me that I needed to do a disclosure form for

24 the patients that were going to be seen by Dr.

25 McManus and they needed to be advised that he had

www. huseby.com Huseby Global Litigation 800-333-2082

Filing 162477179 JAMES MCMANUS VS GARY GANIBAN 05-2021-CA-031847-XXXX-XX
JAMES N. MeMANUS, MD, ET AL. ys GARY J. GANIBAN, MD, ET AL.
Charlotte Mochel on 10/19/2022 Page 29

COVID.

I ran this first one by him and he

approved it, but once the patients started coming

back into clinic and showing this to Dr. McManus or

he saw what was being handed out to his patients he

came back to my office and said that it was a HIPAA

violation and that his name needed to be taken off
of it.

It wasn't his name specifically but we did
10 do a revised draft which is the second one, and

11 that's the one from that point forward that we gave

12 to the patients to give them the opportunity to

13 reschedule or to be seen.

14 Q. Okay. So how is it that you ended up
15 having discussions with Kyle Haubrich about Dr.

16 McManus and COVID and the need for a form?

17 A Dr. Vaishnav had contacted Kyle, and he

18 was also in clinic that same day in the same

19 location.

20 Q

Case Info

Judge

GEORGE T PAULK Track Judge’s New Case

Case No.

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Document Filed Date

December 06, 2022

Case Filing Date

June 10, 2021

County

Parties

1995 NASA GROUP LLC Plaintiff
ERIC STRAUT OD Defendant
FLORIDA EYE CONSULTANTS INC Plaintiff
GARY J GANIBAN MD Defendant
HENDERSON JAMES D Attorney for the Plaintiff
HETAL VAISHNAV MD Defendant
IPPOLITI JIM Attorney for the Defendant
JAMES N MCMANUS MD Plaintiff
JASON K DARLINGTON MD Defendant
MELOON W NATHAN Attorney for the Defendant
MICHAEL N MANDESE MD Defendant
SOUTHWOODS INVESTMENT LLC Plaintiff
WHITEHEAD ALLAN P Attorney for the Plaintiff
WIDERMAN SCOTT D Attorney for the Defendant
John Frazier Attorneys for Plaintiffs
Alan Prigal Attorney
Tiffany Jones Attorneys for Defendants
Michael Mates Attorney
Andrew Hament Attorney
Alexandra Whitehead Attorney
Erika McBryde Attorney
Joseph Probasco Attorney

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Motion,Ex Parte: JAMES MCMANUS VS GARY GANIBAN

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