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Filing # 193461171 E-Filed 03/06/2024 03:44:40 PM
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1 THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR SARASOTA COUNTY
2 CIVIL DIVISION
3 JACK KOWALSKI,
JACK KOWALSKI and on behalf of his
4 children, MK, a minor,
JACK KOWALSKI and on behalf of his
5 children, KK, a minor,
JACK KOWALSKI and as Personal
6 Representative of the
Estate of BEATA KOWALSKI, Deceased,
7 Case No.
Plaintiffs, 2018-CA-005321-NC
8 vs. Division H Circuit
9 JOHNS HOPKINS ALL CHILDREN'S
HOSPITAL, INC.,
10 SUNCOAST CENTER, INC.,
CATHERINE BEDY; THE DEPARTMENT OF
11 CHILDREN AND FAMILIES CUSTODIAN
OF RECORDS, and SALLY M. SMITH, M.D.,
12
13 Defendants.
______________________________________/
14
15 HEARING BEFORE THE HONORABLE HUNTER W. CARROLL
16
DATE: October 13, 2021
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TIME: 1:34 p.m. to 5:24 p.m.
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PLACE: Via Zoom Videoconference
19
BEFORE: CAROLYN R. LOUDEN, RPR
20 Notary Public, State of
Florida at Large
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Pages 1 - 144
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Michael Musetta & Associates, Inc. (813) 221-3171
Filed 03/06/2024 04:48 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
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1 APPEARANCES:
2 GREGORY A. ANDERSON, ESQUIRE
NICHOLAS P. WHITNEY, ESQUIRE
3 JENNIFER C. ANDERSON, ESQUIRE
AndersonGlenn, LLP
4 10751 Deerwood Park Boulevard, Suite 105
Jacksonville, Florida 32256
5 (904) 273-4734
Attorneys for Plaintiff
6
C. HOWARD HUNTER, III, ESQUIRE
7 DAVID W. HUGHES, ESQUIRE
Hill Ward Henderson
8 101 East Kennedy Boulevard, Suite 3700
Tampa, Florida 33602
9 (813) 221-3900
Attorneys for Defendants
10 Johns Hopkins All Children's Hospital,
Johns Hopkins Health System,
11 and Catherine Bedy
12 BRIAN P. HASKELL, ESQUIRE
Conroy Simberg
13 201 East Kennedy Boulevard, Suite 900
Tampa, Florida 33602
14 (813) 273-6464
Attorney for Defendants
15 Suncoast Center, Inc.,
and Sally M. Smith, M.D.
16
17 ALSO PRESENT:
18 FILZAH IQBAL
19 INDEX
20 PROCEEDINGS 3
21 REPORTER'S CERTIFICATE 144
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25
Michael Musetta & Associates, Inc. (813) 221-3171
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1 P R O C E E D I N G S
2 THE COURT: This is Case No. 2018-CA-5321,
3 Jack Kowalski, Et Cetera, Et Al., versus
4 Johns Hopkins All Children's Hospital, Inc., Et Al.
5 Starting with the plaintiff, let's take
6 appearances, please.
7 MR. ANDERSON: Greg Anderson, Nick Whitney,
8 and Jennifer Anderson. And I think Filzah Iqbal
9 will enter, too, by phone for the plaintiff.
10 THE COURT: Mr. Hunter?
11 MR. HUNTER: Howard Hunter and David Hughes,
12 for defendant -- for the Johns Hopkins defendants.
13 MR. HASKELL: Brian Haskell, on behalf of
14 Dr. Sally Smith and Suncoast Center.
15 THE COURT: Was there any discussion between
16 the lawyers as to an order you wanted to perform,
17 or do you want me to just do the order?
18 MR. ANDERSON: (Unintelligible crosstalk.)
19 THE COURT: I'm sorry?
20 MR. HUNTER: Which matter, Judge?
21 THE COURT: Well, there's a number of matters
22 set for today, and I didn't -- I don't think I
23 specifically asked or said that I was going to set
24 the order or ask you to talk about which ones
25 you --
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1 MR. HUNTER: I see. I'm sorry. I
2 misunderstood your question, Your Honor. We can go
3 in the order that is on our notice of hearing, if
4 that's agreeable to everyone.
5 MR. WHITNEY: No objection, Your Honor.
6 THE COURT: There is a lot of issues to
7 address today. So let's try to keep our comments
8 directed to the various specific motions, and we'll
9 try to accomplish everything.
10 We're first going to DIN 1625, which is the
11 defendants' motion to compel production or permit
12 discovery of Kyle Kowalski's medical records, and,
13 Mr. Hunter, is it you or Mr. Hughes going to make
14 this argument?
15 MR. HUGHES: I will be making the argument.
16 Mr. Hughes will be.
17 THE COURT: Mr. Hughes, you have the floor,
18 sir.
19 MR. HUGHES: May it please the Court.
20 Your Honor, we're here on defendants' motion
21 to compel production or permit discovery of
22 Kyle Kowalski's medical records. Your Honor, the
23 plaintiffs have indicated that this is an
24 end-around to a prior order, and that is simply not
25 true.
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1 Judge Walker was very clear back in a hearing
2 on this matter, back in March of 2020, that he
3 thought, at least preliminarily, there should be a
4 boundary regarding Kyle Kowalski's medical records,
5 but he did say, "It may be that depending on how
6 the Daubert issue is litigated that all of or
7 certainly a much broader examination of Kyle's
8 medical records is necessary."
9 Judge Walker also indicated he would reserve
10 ruling on the broader issue for Kyle's records
11 until we've litigated the issue, the Daubert issue.
12 That Daubert issue, Your Honor, has been disposed
13 of. It went in defendants' favor.
14 The Daubert issue was a request by Plaintiffs
15 to strike any reference to Munchausen syndrome by
16 proxy or medical child abuse or any other number of
17 terms that are central to this case, and
18 Judge Walker appropriately denied that request.
19 And we moved on.
20 So let's talk about why we are revisiting this
21 issue, this request, for Kyle Kowalski's records.
22 There has been a substantial development in this
23 case that strikes to the very heart of the
24 scientific issues in this case, namely
25 Beata Kowalski's brother, Maya Kowalski's uncle,
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1 Piotr Zurawski, who during the times at issue came
2 down every other week and was with the family very
3 often, he was deposed in June of this year,
4 June 2021, and volunteered and testified in no
5 uncertain terms that he observed Kyle Kowalski on
6 occasion behaving normally and fine when his father
7 was around, but when Mom would come home he would
8 complain and thrash around of pain throughout the
9 entire body.
10 Those are the type of symptoms that Maya had,
11 as well, and that on a date that we're not entirely
12 sure about, Mr. Zurawski and his sister Beata took
13 Kyle Kowalski to an unknown facility or facilities
14 for an assessment and treatment of this whole-body
15 pain, this undescribable whole-body pain that
16 Mr. Zurawski specifically said "the kid seemed
17 fine," which was his words.
18 But then Mom came home, and all of a sudden
19 the kid is complaining of the same type of symptoms
20 that Maya Kowalski complained of that are central
21 to this case. And we are looking at -- we're
22 trying to get discovery, by way of subpoena, of any
23 type of facility from where the Kowalskis lived
24 down south that could have seen Kyle on the date or
25 dates in question.
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1 You may ask why is this relevant to the case.
2 One of the black-letter hallmarks and cornerstones
3 of the diagnosis of Munchausen syndrome by proxy is
4 that other siblings will start to show similar
5 symptoms or symptomatology as the affected child.
6 The affected child here was Maya Kowalski, who
7 was complaining of complete body-wide pain that
8 Plaintiffs say is CRPS. There's a dispute about
9 that. And when Maya Kowalski was sheltered at
10 Johns Hopkins All Children's Hospital and Beata no
11 longer had access to her daughter, mysteriously
12 Kyle Kowalski starts complaining of the same
13 behaviors that his sister was and was getting care
14 and treatment for that. And diagnostically that is
15 absolutely relevant to the issues in this case.
16 I could point Your Honor to a number of
17 different diagnostic studies, et cetera, that talk
18 about the importance of this. I'll use one as an
19 example. The American Professional Society on the
20 Abuse of Children, also known as APSAC, their
21 practice guidelines on Munchausen by proxy, their
22 clinical case management guidelines, specifically
23 indicate the warning signs of Munchausen by proxy
24 include -- and I'm quoting here -- "other
25 individuals in the home where the caregiver have or
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1 have had unusual or unexplained illnesses or
2 condition."
3 I'll continue on with the warning sign.
4 Warning Sign No. 9, "Conditions or illnesses
5 significantly improve or disappear in one child and
6 then appear in another child."
7 What we have here, Your Honor -- this is not
8 an end-around Judge Walker's prior order.
9 Judge Walker was very clear in a hearing that we
10 would revisit this issue pending the Daubert
11 matter. The Daubert matter was reserved.
12 Since that time we have had independent sworn
13 testimony from a family member saying that
14 Kyle Kowalski was experiencing the same exact
15 symptomatology that his sister was. The issue of
16 Munchausen syndrome by proxy is at the heart of
17 this case.
18 Whether or not Mom moved on to Kyle Kowalski
19 and was subjecting him to treatment or diagnoses
20 for unexplained pain symptoms that mimicked his
21 sister is absolutely at issue. We believe it would
22 be reversible error for us not to be allowed to
23 have access to Kyle's records, wherever that visit
24 may have been.
25 But Mr. Zurawski spoke in detail about it,
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1 that they went down in two separate cars, because
2 they thought that Kyle may have to stay overnight.
3 He thought that it was a facility in Fort Myers.
4 He made reference to a facility perhaps that's in
5 Sarasota, we think maybe Sarasota Memorial.
6 He didn't have specifics about where they
7 were, but he was very clear about the symptoms, the
8 fact that they drove down there together. The
9 child was assessed and seemed to be completely
10 fine.
11 So we think it would be reversible error not
12 to allow us to have this, and I would also just
13 close by saying what's the harm here? If we
14 subpoena these records and if, as Plaintiffs
15 contend, this never happened, this visit at issue
16 never happened, then we'll get a big goose egg in
17 response to our subpoenas.
18 But I think we're entitled to discover this
19 issue. Nothing that Judge Walker said in the
20 March 2020 hearing forecloses that, and based on
21 the central issue here, the scientific issue of
22 Munchausen syndrome by proxy and the importance
23 that Kyle's condition plays here, we believe we're
24 entitled.
25 And I'd like to have a couple minutes for
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1 rebuttal, if it please the Court.
2 THE COURT: And, just so I'm clear, you're
3 seeking this discovery in a defensive capacity
4 against the affirmative claims associated with --
5 or claims that Maya did or did not have Munchausen
6 proxy syndrome -- syndrome by proxy?
7 MR. HUGHES: That's part of it, yes,
8 Your Honor, because, again, there is a dispute as
9 to whether Maya Kowalski had a disorder known as
10 complex regional pain syndrome or was the subject
11 or was the victim of medical child abuse in the
12 form of perhaps Munchausen syndrome by proxy.
13 And if, in fact, it's proven that Kyle was
14 demonstrating very similar symptoms, that is
15 directly, squarely diagnostically relevant to
16 Munchausen syndrome by proxy, and that could tend
17 to prove or disprove whether Maya was the victim of
18 medical child abuse and/or Munchausen syndrome by
19 proxy, which in the DSM-IV is now known as
20 factitious disorder imposed upon another.
21 THE COURT: Well, we know that individuals
22 have a constitutional right of privacy with their
23 medical records. So when you say "what is the
24 harm," there's a pretty significant harm when we
25 talk about someone's private medical information.
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1 So what can you explain to the Court if I have
2 to balance his privacy constitutional right versus
3 what you claim you need for discovery? How do I
4 balance those?
5 MR. HUGHES: Sure. First off, Your Honor, we
6 will agree to an airtight confidentiality order for
7 all records, and we will do whatever Plaintiffs
8 want in that regard.
9 Secondly, I'll also note that Judge Walker has
10 already authorized production of Kyle's
11 psychological records, which, as Your Honor is
12 probably aware, have even more protections than
13 medical records themselves. That was something
14 Judge Walker has already ruled on.
15 We've received Kyle's psychiatric and
16 psychological treatment records, and, again,
17 pending the Daubert issue and because of this new
18 revolution, we would request very, very
19 confidential records. We'll do whatever the Court
20 wants to make sure they stay confidential, but at
21 this point Kyle is a party, although we contend
22 he's not.
23 Ultimately, we do think, though, that we can
24 address any of the Court's concerns with the
25 confidentiality order, and we would point out again
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1 that we already have his psychiatric records.
2 THE COURT: Well, it seems like you're not
3 seeking these records to defend against, you know,
4 a survivor claim in a wrongful death type of
5 situation, that this is really being used to show
6 evidence that his sister did or did not have this
7 syndrome.
8 What other ways could you discover evidence
9 that would alleviate the need of having to get this
10 specific confidential, constitutionally protected
11 information?
12 MR. HUGHES: I'm not sure you can, Judge. I
13 don't know what facility this was. I don't know
14 who the doctors were. All I have is an uncle
15 saying that, "We definitely drove down to take care
16 of this child and get him assessed, when he wasn't
17 showing any pain, but then he started showing pain
18 when Mom showed up," which, by the way, is a
19 hallmark of medical child abuse that was also
20 observed in Maya Kowalski by a number of different
21 providers.
22 I'm not really sure there's another way that
23 we can, Judge, other than to confirm or disconfirm
24 that this visit happened and then look at the notes
25 and confirm that the child presented with this
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1 full-body complaint of pain.
2 THE COURT: Assume for the sake of argument it
3 existed. How does that really show that Maya did
4 or didn't have it?
5 MR. HUGHES: Because, again, Your Honor, one
6 of the diagnostic features of Munchausen syndrome
7 by proxy, as I quoted from the APSAC guidelines and
8 several other treatises I could point this Court
9 to, that is one of the diagnostic hallmarks of the
10 disorder of Munchausen syndrome by proxy, i.e., if
11 Mom -- and it's usually a mom -- but if the mother
12 that is suspected of child abuse doesn't have
13 access to one child, the child that's being
14 affected, in this case Maya, they typically will
15 move on to another child in the family, if they
16 have access to them.
17 And that's exactly what happened here, at
18 least so far as Piotr Zurawski has testified to
19 under oath.
20 THE COURT: And so this is an incident that
21 occurred after the sheltering of Maya occurred?
22 MR. HUGHES: That is correct, Your Honor.
23 Again, we suspect it may -- based on what
24 Mr. Zurawski said, we think it may have been in
25 December of 2016, which would have been,
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1 approximately, 60 days into the sheltering. That
2 sheltering ended in mid-January of 2017.
3 So squarely within the period of time that
4 Maya Kowalski does not have access to her mother
5 and is being sheltered at Johns Hopkins All
6 Children's Hospital pursuant to court order,
7 Kyle Kowalski mysteriously starts to show the same
8 symptoms that his sister did.
9 When the uncle is observing this child and
10 saying, "The kid's fine. There's no pain," Mom all
11 of a sudden shows up at home, and the kid is now
12 writhing around in pain. And the family is now
13 going in two separate cars to somewhere south of
14 Sarasota.
15 I believe the term "Fort Myers" was used, but
16 we think that there's reason to believe it could be
17 any number of hospitals in the region. You'll have
18 to keep in mind that Beata Kowalski took
19 Maya Kowalski to almost every hospital known to man
20 within a couple-hundred-mile radius.
21 And so, again, Mr. Zurawski didn't remember
22 the name of the facility or the name of the doctor,
23 but he was very specific in his testimony about
24 what happened, what led up to the visit, and the
25 result of the visit. But that's all we know.
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1 And I'd also point out that Mr. Zurawski --
2 English is not his forte. We had a translator
3 there. A lot of what he said was in very broken
4 English, and then we segued over to a translator.
5 But the transcript reads very clear, and,
6 again, we believe that given that Munchausen
7 syndrome by proxy is at the heart of this case -- I
8 mean, it's so central Plaintiffs filed a Daubert
9 motion to try to rid any reference to medical child
10 abuse, and here we are, central issue.
11 And we would just request limited discovery,
12 and we'll put any safeguards in place.
13 THE COURT: And your subpoenas are directed
14 relating to both Maya, as well as Kyle. Why both,
15 if we're talking about an incident that occurred
16 when Maya was at All Children's in St. Petersburg?
17 MR. HUGHES: Well, this is specifically
18 related to Kyle. We have sent a number of
19 subpoenas out for Maya Kowalski, because, again, we
20 find out places that she's received treatment all
21 the time. New stuff comes to light, and we send
22 out additional subpoenas. But this narrow issue
23 here is specifically for Kyle Kowalski's records,
24 and if it would please the Court, I could prepare a
25 supplemental subpoena that only pertains to Kyle
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1 and put a number of facilities on there we think
2 may be responsible.
3 THE COURT: Well, make sure I'm looking at the
4 right one, because the proposed subpoenas that I
5 see reference "Name, Maya Kowalski," and then
6 there's some redaction. "Name, Kyle Kowalski."
7 Then there's some redaction.
8 And it looks like you're seeking to subpoena
9 Lee Memorial, Golisano, G-o-l-i-s-a-n-o,
10 Children's Hospital of Southwest Florida,
11 Cape Coral Hospital, Lehigh Regional Medical
12 Center, and Venice Regional Bayfront Health.
13 So am I looking at the right --
14 MR. HUGHES: You are, Your Honor. And, again,
15 we sent that out because we've received records
16 from Maya from all over the place, and we thought
17 it would be prudent to do both. But if it would
18 please the Court, I can do a separate subpoena that
19 just focuses on Kyle.
20 And Maya's, of course, are clearly relevant.
21 We have volumes and volumes of medical records for
22 Maya from places in Chicago and all throughout the
23 state of Florida. There was also some care in
24 Mexico that we've never been able to track down
25 that's very important to this case, but the amount
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1 of discovery on Maya has been voluminous to date.
2 And there's never been an objection, because
3 obviously her medical and psychological condition
4 is squarely at issue.
5 With Kyle, we're simply seeking records from a
6 party who is demonstrating symptomatology that
7 mimics exactly what his sister was doing before the
8 shelter. The care at issue occurred during the
9 shelter period, and we believe we are entitled to
10 that because it strikes the core of Munchausen
11 syndrome by proxy.
12 THE COURT: Thank you very much.
13 Mr. Whitney, is it going to be you or
14 Mr. Anderson?
15 MR. WHITNEY: It will be me, Your Honor. May
16 it please the Court.
17 Several liberties have been taken with
18 Mr. Zurawski's testimony. I think it's worth
19 emphasizing at the start that Mr. Zurawski speaks
20 Polish as his native language, and his testimony
21 was quite broken and at times indecipherable,
22 despite the presence of a translator. And often
23 there was a need for a clarification.
24 And I point that out because even the time
25 period at which Kyle Kowalski may or may not have
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1 been taken to the hospital for pain is unclear, and
2 his testimony -- Mr. Zurawski's testimony is
3 attached to their motion, and you'll see that
4 there's no pinpoint of that date to
5 December of 2016, as was just relayed to you.
6 It's ambiguous. It might have been sometime
7 in 2016. It's not clear. The second thing is this
8 request is premature because Mr. Zurawski's
9 deposition was not concluded, and Johns Hopkins'
10 counsel took, to my recollection, two or so hours
11 of questioning Mr. Zurawski, at which time, due to
12 a scheduling conflict with Mr. Zurawski, it had to
13 be prematurely terminated and has not yet been
14 reset, meaning that we have not had a chance to
15 clarify with him what he's referring to.
16 Moreover, Kyle Kowalski is set to be deposed
17 shortly. So surely Defendants can ask him
18 questions about which hospital he may have been
19 taken to and what issues he was taken to those
20 hospitals to by his uncle, Piotr Zurawski.
21 I'll represent to the Court that there are
22 several things that Mr. Zurawski said that were
23 quite speculative and unbelievable, and we believe
24 this to be one of those. So we would like the
25 opportunity to conclude his deposition before the
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1 Court considers this motion.
2 As to Judge Walker's prior order, the Daubert
3 issues have not been litigated. Johns Hopkins'
4 counsel, who just argued the motion, is not an
5 expert in Munchausen by proxy or medical child
6 abuse. He's made several representations about
7 what the hallmarks are. Those Daubert issues have
8 not been litigated at this point.
9 Judge Walker allowed the psychological records
10 of Kyle Kowalski to be discovered because we
11 admitted that we had put those at issue through our
12 claims, but we have not put Kyle Kowalski's
13 physical health at issue in this lawsuit. And so
14 his right of privacy should be respected.
15 I'll remind the Court that Kyle Kowalski, at
16 the outset of all of this, was subject to the DCF
17 proceedings, and he was investigated alongside
18 Maya Kowalski. At that time Dr. Sally Smith had
19 the power to send out discovery requests, records
20 requests, to all of the hospitals involved.
21 And the determination by the Court and even
22 Dr. Smith and those involved back then was that
23 Kyle Kowalski should be dropped from the case. So
24 there's no evidence in the record that he was ever
25 a victim of Munchausen by proxy despite the
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1 representations that were just made.
2 This is a propensity argument much like the
3 toxicology testing argument. Even if he was taken
4 once upon a time to a hospital for a pain
5 complaint, that does nothing to support the idea
6 that Maya Kowalski was a victim of Munchausen by
7 proxy.
8 And, lastly, I'll point out this. By the end
9 of Maya's hospitalization, even the hospital didn't
10 believe that she was a Munchausen by proxy victim.
11 They shifted their diagnosis to conversion disorder
12 and factitious disorder and abandoned that
13 altogether.
14 So the evidence alone suggests through the
15 hospital's medical records that she was not a
16 Munchausen by proxy victim. There's no need for
17 them to inquire and provide blanket subpoenas to
18 all of the hospitals on the West Coast of Florida
19 based on some ambiguous testimony from a
20 non-English-native speaker that was difficult to
21 understand.
22 I'd invite the Court to review the testimony
23 before making the determination. Thank you.
24 THE COURT: When is Kyle Kowalski's deposition
25 set?
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1 MR. ANDERSON: The day after tomorrow, I
2 believe.
3 Your Honor, it's Greg Anderson. The day after
4 tomorrow, I think.
5 MR. HUGHES: Plaintiffs also said they wanted
6 to cancel it, Judge, recently.
7 MR. ANDERSON: No. What happened was we had
8 to switch out counsel to accommodate the defense.
9 We wanted to keep it on. It is on for Friday.
10 Jennifer Anderson is covering it.
11 MR. HUGHES: Okay.
12 THE COURT: Now --
13 MR. HUGHES: Your Honor, may I have a brief
14 moment for rebuttal?
15 THE COURT: In a moment. I'm not finished
16 with my questions of Mr. Whitney, but I do --
17 Mr. Hughes, let me ask you this specific question
18 first.
19 Assume that Kyle says that he went to
20 Hospital A, as opposed to you have, like, five or
21 six different hospitals. Would you agree that no
22 matter how I rule, the other four or five are no
23 longer relevant, and it would just be the one
24 hospital that Kyle testified to, if he made an
25 affirmative declaration?
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1 MR. HUGHES: We're dealing with a
2 seven-year-old child. I think he was seven at the
3 time, Your Honor. So I think it's going to be
4 tough to rely on anything that he said, and, again,
5 Mr. Zurawski was very clear about it being
6 somewhere south of where they lived.
7 And, again, it was also during the period of
8 time of sheltering, which is very, very clear from
9 the face of his testimony.
10 THE COURT: I'm going back to Mr. Whitney now.
11 Now, Mr. Whitney, I understand the propensity
12 argument, but what about Mr. Hughes's contention
13 that he needs this evidence to help demonstrate in
14 his mind a diagnosis of Munchausen syndrome by
15 proxy?
16 MR. WHITNEY: A singular hospital visit does
17 nothing to prove or disprove Maya's Munchausen by
18 proxy. So even if a record is located that says
19 Kyle Kowalski was taken to the hospital in pain, it
20 does nothing to prove that Maya suffered from
21 Munchausen by proxy. And that's all there is in
22 the testimony, is that perhaps the uncle drove him
23 to the hospital one time.
24 MR. ANDERSON: Which we do not believe.
25 MR. WHITNEY: And we don't believe that to be
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1 credible, but we haven't had a chance to question
2 him yet.
3 THE COURT: Now, the proposed subpoenas
4 reference both names, Kyle and Maya. What's your
5 position with respect to Maya and these
6 institutions?
7 MR. WHITNEY: It seems like a bit of a
8 fishing expedition. I think her health history is
9 well known. Her physical health certainly is at
10 issue here. So I don't have an objection on the
11 basis of somehow that's invasive of her right of
12 privacy unnecessarily, but I think as Mr. Hughes
13 mentioned, it's going to present a big goose egg.
14 MR. ANDERSON: (Inaudible).
15 MR. HUGHES: I didn't catch that.
16 THE REPORTER: Yes, Judge. I cannot hear
17 Mr. Anderson. So if he's wanting things on the
18 record, I cannot hear him.
19 THE COURT: I think he was whispering to
20 Mr. Whitney, so Mr. Whitney could articulate the
21 argument, I think.
22 MR. ANDERSON: You're right, Judge.
23 THE REPORTER: Okay. I just wanted to be
24 sure, Judge.
25 THE COURT: But Mr. Whitney hasn't relayed
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1 what Mr. Anderson was just relaying to Mr. Whitney.
2 MR. ANDERSON: It was very complimentary to
3 the Court. That's all I can say.
4 MR. WHITNEY: Your Honor, I think his comment
5 was that it's extremely unlikely that these were
6 produced at --
7 MR. ANDERSON: What I said, Judge, was that
8 given the proctology exam that Kyle -- that she's
9 had so far, it is rather unbelievable that the name
10 of another hospital or other treatment would not
11 appear somewhere in the myriad of records that has
12 already been produced.
13 It would be impossible to keep something like
14 that hidden, particularly if it had anything to do
15 with this case. There's been three or four
16 different entities that have searched all of these
17 records to see if there was anything more.
18 THE COURT: Mr. Hughes, your rebuttal?
19 MR. HUGHES: Yes, Your Honor. First, with
20 respect to the termination or continuation of
21 Mr. Zurawski's deposition, we were questioning him.
22 We had to segue to a Polish translator, and out of
23 the blue Mr. Zurawski said he needed to quit the
24 deposition.
25 And as a courtesy to him, I let him go. I
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1 could have kept him there, I could have, but I
2 didn't. He just randomly out of the blue decided,
3 "I've got to go. I'm done with this."
4 And I said, "Okay."
5 Secondly, we have litigated these Daubert
6 issues. You can check the DIN numbers. You can
7 check the file. They did a Daubert motion. The
8 Daubert motion with Judge Walker is plainly
9 indicated on the face of the transcript. We've had
10 an up-and-down ruling on that in Defense favor.
11 This is not a propensity argument, Judge, at
12 all. This is -- this strikes at the heart of the
13 diagnostic features of this case, which is
14 Munchausen syndrome by proxy. And I think if the
15 Court reviews the transcript of Mr. Zurawski
16 attached to our motion, he is absolutely abundantly
17 clear that this happened during the sheltering
18 proceedings.
19 He says it happened after they left court for
20 a shelter hearing and drove down in separate cars,
21 with Kyle and Beata and Mr. Zurawski, because the
22 child had all of a sudden started complaining of
23 the same system-wide pain that his sister did, even
24 though Mr. Zurawski observed that he was completely
25 100 percent fine.
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1 And the reason I sent subpoenas out to a lot
2 of different places is there's a lot of different
3 hospitals this could have been. In fact, I think
4 there -- we probably didn't put enough on our
5 subpoena, to be frank with you. I think there's
6 probably other facilities.
7 I know that Lee Memorial Hospital is one of
8 the ones we put on there. Lee owns a ton of
9 clinics throughout Lee County, and it could have
10 been any number of one of those. Again, I think we
11 are pretty narrow with our subpoenas, and what's
12 the harm here if there's a goose egg?
13 Any harm can be remedied by a confidentiality
14 agreement, and Plaintiffs' claims about what the
15 evidence might or might not show is an issue of
16 fact. It's an issue for experts. It's not
17 something that they need to come out here and claim
18 it's foreclosed because they don't view it to be an
19 issue of fact. It plainly is.
20 THE COURT: Was this information available to
21 DCF when they were investigating whether Kyle
22 should be sheltered?
23 MR. HUGHES: Not to our knowledge, Judge.
24 From what we've seen from the DCF file, it's not in
25 there, and Kyle was, for lack of a better term --
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1 the spotlight shifted off of him very, very early
2 in this process. This was a ninety-some-odd-day
3 process.
4 I mean, he was visiting his sister within two
5 to three weeks and was not the subject of the
6 investigation. So, no, not to our knowledge,
7 Judge.
8 THE COURT: Mr. Haskell, do you have anything
9 to say in this motion, or are you going to --
10 you're not involved in this one?
11 MR. HASKELL: The only thing I would add,
12 Judge, is -- if I may -- and thank you -- is that
13 this is -- this is something that -- the timing of
14 this, it's germane to the case. My client
15 performed her medical evaluation and did the final
16 report in early December 2016.
17 Assuming this hospital visit -- whatever it
18 was that the uncle was taking Kyle to -- occurred
19 sometime in December, it would have been after the
20 time frame that anybody was really looking at or
21 assessing whether Kyle should be brought back in or
22 further evaluated, at least that's what it appears
23 to be, Your Honor.
24 So I do agree with Mr. Hughes that with proper
25 safeguards in place and confidentiality provisions
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1 and agreements this is a potential -- likely
2 relevant discovery, if there is something there,
3 and proper safeguards can be applied.
4 THE COURT: I think, Mr. Whitney, you were
5 trying to say something else?
6 MR. WHITNEY: Yes, Your Honor. Thank you.
7 Regarding the comment that there has been an
8 up-and-down ruling on the Daubert issue, that's not
9 the case. It was denied as being premature. It
10 was not denied on the merits. So those Daubert
11 issues have not been litigated. They have not been
12 litigated to the conclusion.
13 MR. HUGHES: They weren't even Daubert issues
14 to start with.
15 THE COURT: Well, look, I'm not going to
16 re-litigate that issue right this second.
17 So, Mr. Whitney, anything else? This is your
18 last chance to talk on this motion.
19 MR. ANDERSON: Judge, if I may, really, if
20 this all happened after the alleged -- the
21 diagnosis of alleged Munchausen by proxy, I'm not
22 sure what the relevance would even be. Whatever
23 facts a defense counsel can turn up four years
24 later that occurred after all of these things
25 happened to -- or that the diagnosis was reached by
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1 Sally Smith and JHACH ER doctors would have to be
2 based on what they knew at the time, if you catch
3 my drift.
4 I mean, whether it was a reasonable thing to
5 drop a dime on these folks, turn them into DCF,
6 would be based on facts as they knew them at the
7 time, not facts that occurred months and months
8 down the road and then dug up in litigation years
9 after.
10 That's going to be an argument for another
11 day, I realize, but if we're going to whether this
12 is absolutely necessary for them to prove up
13 something, to disprove our case, I can't see how it
14 would.
15 THE COURT: Anything else, Mr. Hughes?
16 MR. HUNTER: Judge, if I could be heard on
17 this just a moment?
18 THE COURT: Yes, Mr. Hunter.
19 MR. HUNTER: The ultimate correctness of the
20 diagnosis, if any, is very much an issue here. It
21 doesn't matter when the events occurred. It may
22 matter to state of mind with respect to what
23 happened in the ER or what happened in the PICU,
24 but ultimately the question is was this a correct
25 diagnosis, was this a justified suspicion.
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1 And if this young man was, in fact, exhibiting
2 the same or similar symptoms as his sister, that
3 fact is highly relevant to that determination.
4 MR. HASKELL: May I add to that, Your Honor,
5 briefly?
6 THE COURT: Actually, I think I'm ready to
7 rule, and so from my review of the transcript, such
8 that it exists right now, it occurs to me that this
9 alleged trip to the hospital occurred sometime
10 during the shelter process of his sister.
11 Is that a fair statement from -- do both sides
12 agree with that?
13 MR. HUGHES: Yes, Your Honor.
14 MR. WHITNEY: I would say it's unclear from
15 the transcript, Your Honor.
16 THE COURT: Okay. Well, here's where I'm at,
17 and this is what I'm going to rule. I start with
18 the proposition that Kyle Kowalski has a
19 constitutional right of privacy in his medical
20 records, and that's a pretty weighty constitutional
21 provision.
22 The defendants in this particular case,
23 especially the hospital, seeks to obtain evidence
24 that his sister, Maya, was correctly diagnosed with
25 Munchausen syndrome by proxy, and the defense
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1 contends that the diagnosis that occurs in a
2 sibling may speak to that diagnosis.
3 I agree with Mr. Hunter in the sense that the
4 timing of what Dr. Sally Smith knew or her
5 colleagues or fellow -- I don't want to say she's
6 an employee or not an employee. That's not what
7 I'm trying to say, but the other individuals
8 associated with All Children's that she was working
9 with I don't think is as relevant, because if from
10 a medical perspective the diagnosis would be
11 supported by what happens to a sibling, then I
12 think the defense has shown some need to have
13 access to Kyle Kowalski's medical records.
14 Now, I do think we're going to put some very
15 strict limitations on it. I am going to narrow the
16 scope of the proposed subpoenas. The beginning
17 date will be the beginning of the date that the
18 shelter was granted, and the ending date of the
19 subpoena will be the date that the shelter
20 concluded. I don't have those dates in front of
21 me, but those are the two goalposts.
22 I'm going to separate out Maya from Kyle, and
23 you're going to do a separate subpoena directed to
24 these institutions for Kyle only. These will be
25 produced -- I want them to be sent to the
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1 plaintiffs' counsel -- not to the defense counsel,
2 but to the plaintiffs' counsel -- who once they get
3 them will have an opportunity to look through and
4 see if ultimately there's anything that they seek
5 to object to.
6 If they do, they're going to do a privilege
7 log and be specific. And, Mr. Whitney, you're
8 going to have to disclose how many pages, and we're
9 not going to play hide the ball here. But,
10 ultimately, if you do a privilege log and it's
11 challenged by Mr. Hughes, then obviously I'm
12 probably buying myself an in camera inspection of
13 those records.
14 To the extent any records ultimately are
15 produced to the defense counsel, they will be
16 produced via a confidentiality -- do we have one --
17 I think we do, but if we don't, there has to be a
18 confidentiality agreement that it can't go beyond
19 the defense counsel and defense counsel's experts.
20 MR. WHITNEY: Very well, Your Honor.
21 THE COURT: Now, Mr. Whitney, my hope is if
22 there are any such records, that because of the
23 existence of the confidentiality order there
24 probably is not a reason to withhold them, but I
25 will give you the opportunity to look at them first
Michael Musetta & Associates, Inc. (813) 221-3171
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1 and see if, in fact, you feel like there is a need
2 to withhold something. But I'll probably end up
3 having to review those documents.
4 MR. WHITNEY: A point of clarification,
5 Your Honor.
6 THE COURT: Yes, sir, Mr. Whitney.
7 MR. WHITNEY: So let's say that we end up
8 getting some records and Kyle had to go to the
9 hospital to get stitches on his finger for some
10 accident. It's clearly not related to the
11 allegation that he was experiencing whole-body pain
12 or some other pain disorder.
13 Do you want those produced, as well,
14 underneath the confidentiality agreement, or do we
15 hold those back under privilege?
16 THE COURT: Well, my view is it sounds like
17 there's only going to be records from one facility,
18 and if it was for just one day, there's not going
19 to be a significant number of documents. So I'm
20 starting with the proposition that there's not
21 going to be much.
22 I also am starting with the proposition that
23 there is going to be a confidentiality order. If
24 you're looking at those medical records and he's
25 got stitches in his finger, you know, do you really
Michael Musetta & Associates, Inc. (813) 221-3171
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1 need to withhold those on a privilege given the
2 existence of the confidentiality?
3 So my hope is that there's only one facility,
4 if there's any facilities at all, and there's not
5 going to be a ton of records. You'll look at them
6 and then let us know very quickly whether or not
7 there is a need for you to withhold any of the
8 documents.
9 MR. WHITNEY: Okay.
10 THE COURT: Now, when you do receive the
11 documents, I am going to direct that you let
12 Mr. Hughes's office know that you've received them
13 and how many total pages you have received, so that
14 they have an idea as to when the documents have
15 been received.
16 Even though, Mr. Whitney, your office is going
17 to receive the documents, if there are copying
18 charges that the hospital -- Mr. Hughes, your
19 office is on the hook for those.
20 MR. HUGHES: Very well.
21 THE COURT: Mr. Hughes, you're going to draft
22 the order. I want to make sure that everyone is
23 clear, because I don't want to have, you know, a
24 continued fight over the scope of the order. If
25 there is, let's deal with it now as opposed to in
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1 the future.
2 MR. HUGHES: We're going to stat order the
3 transcript, Judge, and we will give fidelity to
4 your oral ruling today and run it by Plaintiffs and
5 see what we can do. I hope we can avoid that.
6 MR. ANDERSON: Can I have -- Judge, this is
7 Greg Anderson. Can I have from Mr. Hughes -- we
8 obviously have become relative experts on
9 Munchausen by proxy and have compiled all of the
10 diagnoses -- where the -- what source they have for
11 this idea that a sibling complaining of whole-body
12 pain is an indication --
13 THE COURT: Mr. Anderson, we have a ton of
14 motions to deal with. I really -- I'm pretty
15 confident that my ruling is pretty in accord with
16 the law. I feel like this is something that I'm
17 going to allow the defense an opportunity to
18 explore a little bit under the conditions that I've
19 given.
20 Now, we dealt with --
21 MR. ANDERSON: Understood.
22 THE COURT: We just dealt with Kyle. It
23 doesn't seem like, Mr. Hughe
Preview
Filing # 193461171 E-Filed 03/06/2024 03:44:40 PM 1 1 THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR SARASOTA COUNTY 2 CIVIL DIVISION 3 JACK KOWALSKI, JACK KOWALSKI and on behalf of his 4 children, MK, a minor, JACK KOWALSKI and on behalf of his 5 children, KK, a minor, JACK KOWALSKI and as Personal 6 Representative of the Estate of BEATA KOWALSKI, Deceased, 7 Case No. Plaintiffs, 2018-CA-005321-NC 8 vs. Division H Circuit 9 JOHNS HOPKINS ALL CHILDREN'S HOSPITAL, INC., 10 SUNCOAST CENTER, INC., CATHERINE BEDY; THE DEPARTMENT OF 11 CHILDREN AND FAMILIES CUSTODIAN OF RECORDS, and SALLY M. SMITH, M.D., 12 13 Defendants. ______________________________________/ 14 15 HEARING BEFORE THE HONORABLE HUNTER W. CARROLL 16 DATE: October 13, 2021 17 TIME: 1:34 p.m. to 5:24 p.m. 18 PLACE: Via Zoom Videoconference 19 BEFORE: CAROLYN R. LOUDEN, RPR 20 Notary Public, State of Florida at Large 21 Pages 1 - 144 22 23 24 25 Michael Musetta & Associates, Inc. (813) 221-3171 Filed 03/06/2024 04:48 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2 1 APPEARANCES: 2 GREGORY A. ANDERSON, ESQUIRE NICHOLAS P. WHITNEY, ESQUIRE 3 JENNIFER C. ANDERSON, ESQUIRE AndersonGlenn, LLP 4 10751 Deerwood Park Boulevard, Suite 105 Jacksonville, Florida 32256 5 (904) 273-4734 Attorneys for Plaintiff 6 C. HOWARD HUNTER, III, ESQUIRE 7 DAVID W. HUGHES, ESQUIRE Hill Ward Henderson 8 101 East Kennedy Boulevard, Suite 3700 Tampa, Florida 33602 9 (813) 221-3900 Attorneys for Defendants 10 Johns Hopkins All Children's Hospital, Johns Hopkins Health System, 11 and Catherine Bedy 12 BRIAN P. HASKELL, ESQUIRE Conroy Simberg 13 201 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 14 (813) 273-6464 Attorney for Defendants 15 Suncoast Center, Inc., and Sally M. Smith, M.D. 16 17 ALSO PRESENT: 18 FILZAH IQBAL 19 INDEX 20 PROCEEDINGS 3 21 REPORTER'S CERTIFICATE 144 22 23 24 25 Michael Musetta & Associates, Inc. (813) 221-3171 3 1 P R O C E E D I N G S 2 THE COURT: This is Case No. 2018-CA-5321, 3 Jack Kowalski, Et Cetera, Et Al., versus 4 Johns Hopkins All Children's Hospital, Inc., Et Al. 5 Starting with the plaintiff, let's take 6 appearances, please. 7 MR. ANDERSON: Greg Anderson, Nick Whitney, 8 and Jennifer Anderson. And I think Filzah Iqbal 9 will enter, too, by phone for the plaintiff. 10 THE COURT: Mr. Hunter? 11 MR. HUNTER: Howard Hunter and David Hughes, 12 for defendant -- for the Johns Hopkins defendants. 13 MR. HASKELL: Brian Haskell, on behalf of 14 Dr. Sally Smith and Suncoast Center. 15 THE COURT: Was there any discussion between 16 the lawyers as to an order you wanted to perform, 17 or do you want me to just do the order? 18 MR. ANDERSON: (Unintelligible crosstalk.) 19 THE COURT: I'm sorry? 20 MR. HUNTER: Which matter, Judge? 21 THE COURT: Well, there's a number of matters 22 set for today, and I didn't -- I don't think I 23 specifically asked or said that I was going to set 24 the order or ask you to talk about which ones 25 you -- Michael Musetta & Associates, Inc. (813) 221-3171 4 1 MR. HUNTER: I see. I'm sorry. I 2 misunderstood your question, Your Honor. We can go 3 in the order that is on our notice of hearing, if 4 that's agreeable to everyone. 5 MR. WHITNEY: No objection, Your Honor. 6 THE COURT: There is a lot of issues to 7 address today. So let's try to keep our comments 8 directed to the various specific motions, and we'll 9 try to accomplish everything. 10 We're first going to DIN 1625, which is the 11 defendants' motion to compel production or permit 12 discovery of Kyle Kowalski's medical records, and, 13 Mr. Hunter, is it you or Mr. Hughes going to make 14 this argument? 15 MR. HUGHES: I will be making the argument. 16 Mr. Hughes will be. 17 THE COURT: Mr. Hughes, you have the floor, 18 sir. 19 MR. HUGHES: May it please the Court. 20 Your Honor, we're here on defendants' motion 21 to compel production or permit discovery of 22 Kyle Kowalski's medical records. Your Honor, the 23 plaintiffs have indicated that this is an 24 end-around to a prior order, and that is simply not 25 true. Michael Musetta & Associates, Inc. (813) 221-3171 5 1 Judge Walker was very clear back in a hearing 2 on this matter, back in March of 2020, that he 3 thought, at least preliminarily, there should be a 4 boundary regarding Kyle Kowalski's medical records, 5 but he did say, "It may be that depending on how 6 the Daubert issue is litigated that all of or 7 certainly a much broader examination of Kyle's 8 medical records is necessary." 9 Judge Walker also indicated he would reserve 10 ruling on the broader issue for Kyle's records 11 until we've litigated the issue, the Daubert issue. 12 That Daubert issue, Your Honor, has been disposed 13 of. It went in defendants' favor. 14 The Daubert issue was a request by Plaintiffs 15 to strike any reference to Munchausen syndrome by 16 proxy or medical child abuse or any other number of 17 terms that are central to this case, and 18 Judge Walker appropriately denied that request. 19 And we moved on. 20 So let's talk about why we are revisiting this 21 issue, this request, for Kyle Kowalski's records. 22 There has been a substantial development in this 23 case that strikes to the very heart of the 24 scientific issues in this case, namely 25 Beata Kowalski's brother, Maya Kowalski's uncle, Michael Musetta & Associates, Inc. (813) 221-3171 6 1 Piotr Zurawski, who during the times at issue came 2 down every other week and was with the family very 3 often, he was deposed in June of this year, 4 June 2021, and volunteered and testified in no 5 uncertain terms that he observed Kyle Kowalski on 6 occasion behaving normally and fine when his father 7 was around, but when Mom would come home he would 8 complain and thrash around of pain throughout the 9 entire body. 10 Those are the type of symptoms that Maya had, 11 as well, and that on a date that we're not entirely 12 sure about, Mr. Zurawski and his sister Beata took 13 Kyle Kowalski to an unknown facility or facilities 14 for an assessment and treatment of this whole-body 15 pain, this undescribable whole-body pain that 16 Mr. Zurawski specifically said "the kid seemed 17 fine," which was his words. 18 But then Mom came home, and all of a sudden 19 the kid is complaining of the same type of symptoms 20 that Maya Kowalski complained of that are central 21 to this case. And we are looking at -- we're 22 trying to get discovery, by way of subpoena, of any 23 type of facility from where the Kowalskis lived 24 down south that could have seen Kyle on the date or 25 dates in question. Michael Musetta & Associates, Inc. (813) 221-3171 7 1 You may ask why is this relevant to the case. 2 One of the black-letter hallmarks and cornerstones 3 of the diagnosis of Munchausen syndrome by proxy is 4 that other siblings will start to show similar 5 symptoms or symptomatology as the affected child. 6 The affected child here was Maya Kowalski, who 7 was complaining of complete body-wide pain that 8 Plaintiffs say is CRPS. There's a dispute about 9 that. And when Maya Kowalski was sheltered at 10 Johns Hopkins All Children's Hospital and Beata no 11 longer had access to her daughter, mysteriously 12 Kyle Kowalski starts complaining of the same 13 behaviors that his sister was and was getting care 14 and treatment for that. And diagnostically that is 15 absolutely relevant to the issues in this case. 16 I could point Your Honor to a number of 17 different diagnostic studies, et cetera, that talk 18 about the importance of this. I'll use one as an 19 example. The American Professional Society on the 20 Abuse of Children, also known as APSAC, their 21 practice guidelines on Munchausen by proxy, their 22 clinical case management guidelines, specifically 23 indicate the warning signs of Munchausen by proxy 24 include -- and I'm quoting here -- "other 25 individuals in the home where the caregiver have or Michael Musetta & Associates, Inc. (813) 221-3171 8 1 have had unusual or unexplained illnesses or 2 condition." 3 I'll continue on with the warning sign. 4 Warning Sign No. 9, "Conditions or illnesses 5 significantly improve or disappear in one child and 6 then appear in another child." 7 What we have here, Your Honor -- this is not 8 an end-around Judge Walker's prior order. 9 Judge Walker was very clear in a hearing that we 10 would revisit this issue pending the Daubert 11 matter. The Daubert matter was reserved. 12 Since that time we have had independent sworn 13 testimony from a family member saying that 14 Kyle Kowalski was experiencing the same exact 15 symptomatology that his sister was. The issue of 16 Munchausen syndrome by proxy is at the heart of 17 this case. 18 Whether or not Mom moved on to Kyle Kowalski 19 and was subjecting him to treatment or diagnoses 20 for unexplained pain symptoms that mimicked his 21 sister is absolutely at issue. We believe it would 22 be reversible error for us not to be allowed to 23 have access to Kyle's records, wherever that visit 24 may have been. 25 But Mr. Zurawski spoke in detail about it, Michael Musetta & Associates, Inc. (813) 221-3171 9 1 that they went down in two separate cars, because 2 they thought that Kyle may have to stay overnight. 3 He thought that it was a facility in Fort Myers. 4 He made reference to a facility perhaps that's in 5 Sarasota, we think maybe Sarasota Memorial. 6 He didn't have specifics about where they 7 were, but he was very clear about the symptoms, the 8 fact that they drove down there together. The 9 child was assessed and seemed to be completely 10 fine. 11 So we think it would be reversible error not 12 to allow us to have this, and I would also just 13 close by saying what's the harm here? If we 14 subpoena these records and if, as Plaintiffs 15 contend, this never happened, this visit at issue 16 never happened, then we'll get a big goose egg in 17 response to our subpoenas. 18 But I think we're entitled to discover this 19 issue. Nothing that Judge Walker said in the 20 March 2020 hearing forecloses that, and based on 21 the central issue here, the scientific issue of 22 Munchausen syndrome by proxy and the importance 23 that Kyle's condition plays here, we believe we're 24 entitled. 25 And I'd like to have a couple minutes for Michael Musetta & Associates, Inc. (813) 221-3171 10 1 rebuttal, if it please the Court. 2 THE COURT: And, just so I'm clear, you're 3 seeking this discovery in a defensive capacity 4 against the affirmative claims associated with -- 5 or claims that Maya did or did not have Munchausen 6 proxy syndrome -- syndrome by proxy? 7 MR. HUGHES: That's part of it, yes, 8 Your Honor, because, again, there is a dispute as 9 to whether Maya Kowalski had a disorder known as 10 complex regional pain syndrome or was the subject 11 or was the victim of medical child abuse in the 12 form of perhaps Munchausen syndrome by proxy. 13 And if, in fact, it's proven that Kyle was 14 demonstrating very similar symptoms, that is 15 directly, squarely diagnostically relevant to 16 Munchausen syndrome by proxy, and that could tend 17 to prove or disprove whether Maya was the victim of 18 medical child abuse and/or Munchausen syndrome by 19 proxy, which in the DSM-IV is now known as 20 factitious disorder imposed upon another. 21 THE COURT: Well, we know that individuals 22 have a constitutional right of privacy with their 23 medical records. So when you say "what is the 24 harm," there's a pretty significant harm when we 25 talk about someone's private medical information. Michael Musetta & Associates, Inc. (813) 221-3171 11 1 So what can you explain to the Court if I have 2 to balance his privacy constitutional right versus 3 what you claim you need for discovery? How do I 4 balance those? 5 MR. HUGHES: Sure. First off, Your Honor, we 6 will agree to an airtight confidentiality order for 7 all records, and we will do whatever Plaintiffs 8 want in that regard. 9 Secondly, I'll also note that Judge Walker has 10 already authorized production of Kyle's 11 psychological records, which, as Your Honor is 12 probably aware, have even more protections than 13 medical records themselves. That was something 14 Judge Walker has already ruled on. 15 We've received Kyle's psychiatric and 16 psychological treatment records, and, again, 17 pending the Daubert issue and because of this new 18 revolution, we would request very, very 19 confidential records. We'll do whatever the Court 20 wants to make sure they stay confidential, but at 21 this point Kyle is a party, although we contend 22 he's not. 23 Ultimately, we do think, though, that we can 24 address any of the Court's concerns with the 25 confidentiality order, and we would point out again Michael Musetta & Associates, Inc. (813) 221-3171 12 1 that we already have his psychiatric records. 2 THE COURT: Well, it seems like you're not 3 seeking these records to defend against, you know, 4 a survivor claim in a wrongful death type of 5 situation, that this is really being used to show 6 evidence that his sister did or did not have this 7 syndrome. 8 What other ways could you discover evidence 9 that would alleviate the need of having to get this 10 specific confidential, constitutionally protected 11 information? 12 MR. HUGHES: I'm not sure you can, Judge. I 13 don't know what facility this was. I don't know 14 who the doctors were. All I have is an uncle 15 saying that, "We definitely drove down to take care 16 of this child and get him assessed, when he wasn't 17 showing any pain, but then he started showing pain 18 when Mom showed up," which, by the way, is a 19 hallmark of medical child abuse that was also 20 observed in Maya Kowalski by a number of different 21 providers. 22 I'm not really sure there's another way that 23 we can, Judge, other than to confirm or disconfirm 24 that this visit happened and then look at the notes 25 and confirm that the child presented with this Michael Musetta & Associates, Inc. (813) 221-3171 13 1 full-body complaint of pain. 2 THE COURT: Assume for the sake of argument it 3 existed. How does that really show that Maya did 4 or didn't have it? 5 MR. HUGHES: Because, again, Your Honor, one 6 of the diagnostic features of Munchausen syndrome 7 by proxy, as I quoted from the APSAC guidelines and 8 several other treatises I could point this Court 9 to, that is one of the diagnostic hallmarks of the 10 disorder of Munchausen syndrome by proxy, i.e., if 11 Mom -- and it's usually a mom -- but if the mother 12 that is suspected of child abuse doesn't have 13 access to one child, the child that's being 14 affected, in this case Maya, they typically will 15 move on to another child in the family, if they 16 have access to them. 17 And that's exactly what happened here, at 18 least so far as Piotr Zurawski has testified to 19 under oath. 20 THE COURT: And so this is an incident that 21 occurred after the sheltering of Maya occurred? 22 MR. HUGHES: That is correct, Your Honor. 23 Again, we suspect it may -- based on what 24 Mr. Zurawski said, we think it may have been in 25 December of 2016, which would have been, Michael Musetta & Associates, Inc. (813) 221-3171 14 1 approximately, 60 days into the sheltering. That 2 sheltering ended in mid-January of 2017. 3 So squarely within the period of time that 4 Maya Kowalski does not have access to her mother 5 and is being sheltered at Johns Hopkins All 6 Children's Hospital pursuant to court order, 7 Kyle Kowalski mysteriously starts to show the same 8 symptoms that his sister did. 9 When the uncle is observing this child and 10 saying, "The kid's fine. There's no pain," Mom all 11 of a sudden shows up at home, and the kid is now 12 writhing around in pain. And the family is now 13 going in two separate cars to somewhere south of 14 Sarasota. 15 I believe the term "Fort Myers" was used, but 16 we think that there's reason to believe it could be 17 any number of hospitals in the region. You'll have 18 to keep in mind that Beata Kowalski took 19 Maya Kowalski to almost every hospital known to man 20 within a couple-hundred-mile radius. 21 And so, again, Mr. Zurawski didn't remember 22 the name of the facility or the name of the doctor, 23 but he was very specific in his testimony about 24 what happened, what led up to the visit, and the 25 result of the visit. But that's all we know. Michael Musetta & Associates, Inc. (813) 221-3171 15 1 And I'd also point out that Mr. Zurawski -- 2 English is not his forte. We had a translator 3 there. A lot of what he said was in very broken 4 English, and then we segued over to a translator. 5 But the transcript reads very clear, and, 6 again, we believe that given that Munchausen 7 syndrome by proxy is at the heart of this case -- I 8 mean, it's so central Plaintiffs filed a Daubert 9 motion to try to rid any reference to medical child 10 abuse, and here we are, central issue. 11 And we would just request limited discovery, 12 and we'll put any safeguards in place. 13 THE COURT: And your subpoenas are directed 14 relating to both Maya, as well as Kyle. Why both, 15 if we're talking about an incident that occurred 16 when Maya was at All Children's in St. Petersburg? 17 MR. HUGHES: Well, this is specifically 18 related to Kyle. We have sent a number of 19 subpoenas out for Maya Kowalski, because, again, we 20 find out places that she's received treatment all 21 the time. New stuff comes to light, and we send 22 out additional subpoenas. But this narrow issue 23 here is specifically for Kyle Kowalski's records, 24 and if it would please the Court, I could prepare a 25 supplemental subpoena that only pertains to Kyle Michael Musetta & Associates, Inc. (813) 221-3171 16 1 and put a number of facilities on there we think 2 may be responsible. 3 THE COURT: Well, make sure I'm looking at the 4 right one, because the proposed subpoenas that I 5 see reference "Name, Maya Kowalski," and then 6 there's some redaction. "Name, Kyle Kowalski." 7 Then there's some redaction. 8 And it looks like you're seeking to subpoena 9 Lee Memorial, Golisano, G-o-l-i-s-a-n-o, 10 Children's Hospital of Southwest Florida, 11 Cape Coral Hospital, Lehigh Regional Medical 12 Center, and Venice Regional Bayfront Health. 13 So am I looking at the right -- 14 MR. HUGHES: You are, Your Honor. And, again, 15 we sent that out because we've received records 16 from Maya from all over the place, and we thought 17 it would be prudent to do both. But if it would 18 please the Court, I can do a separate subpoena that 19 just focuses on Kyle. 20 And Maya's, of course, are clearly relevant. 21 We have volumes and volumes of medical records for 22 Maya from places in Chicago and all throughout the 23 state of Florida. There was also some care in 24 Mexico that we've never been able to track down 25 that's very important to this case, but the amount Michael Musetta & Associates, Inc. (813) 221-3171 17 1 of discovery on Maya has been voluminous to date. 2 And there's never been an objection, because 3 obviously her medical and psychological condition 4 is squarely at issue. 5 With Kyle, we're simply seeking records from a 6 party who is demonstrating symptomatology that 7 mimics exactly what his sister was doing before the 8 shelter. The care at issue occurred during the 9 shelter period, and we believe we are entitled to 10 that because it strikes the core of Munchausen 11 syndrome by proxy. 12 THE COURT: Thank you very much. 13 Mr. Whitney, is it going to be you or 14 Mr. Anderson? 15 MR. WHITNEY: It will be me, Your Honor. May 16 it please the Court. 17 Several liberties have been taken with 18 Mr. Zurawski's testimony. I think it's worth 19 emphasizing at the start that Mr. Zurawski speaks 20 Polish as his native language, and his testimony 21 was quite broken and at times indecipherable, 22 despite the presence of a translator. And often 23 there was a need for a clarification. 24 And I point that out because even the time 25 period at which Kyle Kowalski may or may not have Michael Musetta & Associates, Inc. (813) 221-3171 18 1 been taken to the hospital for pain is unclear, and 2 his testimony -- Mr. Zurawski's testimony is 3 attached to their motion, and you'll see that 4 there's no pinpoint of that date to 5 December of 2016, as was just relayed to you. 6 It's ambiguous. It might have been sometime 7 in 2016. It's not clear. The second thing is this 8 request is premature because Mr. Zurawski's 9 deposition was not concluded, and Johns Hopkins' 10 counsel took, to my recollection, two or so hours 11 of questioning Mr. Zurawski, at which time, due to 12 a scheduling conflict with Mr. Zurawski, it had to 13 be prematurely terminated and has not yet been 14 reset, meaning that we have not had a chance to 15 clarify with him what he's referring to. 16 Moreover, Kyle Kowalski is set to be deposed 17 shortly. So surely Defendants can ask him 18 questions about which hospital he may have been 19 taken to and what issues he was taken to those 20 hospitals to by his uncle, Piotr Zurawski. 21 I'll represent to the Court that there are 22 several things that Mr. Zurawski said that were 23 quite speculative and unbelievable, and we believe 24 this to be one of those. So we would like the 25 opportunity to conclude his deposition before the Michael Musetta & Associates, Inc. (813) 221-3171 19 1 Court considers this motion. 2 As to Judge Walker's prior order, the Daubert 3 issues have not been litigated. Johns Hopkins' 4 counsel, who just argued the motion, is not an 5 expert in Munchausen by proxy or medical child 6 abuse. He's made several representations about 7 what the hallmarks are. Those Daubert issues have 8 not been litigated at this point. 9 Judge Walker allowed the psychological records 10 of Kyle Kowalski to be discovered because we 11 admitted that we had put those at issue through our 12 claims, but we have not put Kyle Kowalski's 13 physical health at issue in this lawsuit. And so 14 his right of privacy should be respected. 15 I'll remind the Court that Kyle Kowalski, at 16 the outset of all of this, was subject to the DCF 17 proceedings, and he was investigated alongside 18 Maya Kowalski. At that time Dr. Sally Smith had 19 the power to send out discovery requests, records 20 requests, to all of the hospitals involved. 21 And the determination by the Court and even 22 Dr. Smith and those involved back then was that 23 Kyle Kowalski should be dropped from the case. So 24 there's no evidence in the record that he was ever 25 a victim of Munchausen by proxy despite the Michael Musetta & Associates, Inc. (813) 221-3171 20 1 representations that were just made. 2 This is a propensity argument much like the 3 toxicology testing argument. Even if he was taken 4 once upon a time to a hospital for a pain 5 complaint, that does nothing to support the idea 6 that Maya Kowalski was a victim of Munchausen by 7 proxy. 8 And, lastly, I'll point out this. By the end 9 of Maya's hospitalization, even the hospital didn't 10 believe that she was a Munchausen by proxy victim. 11 They shifted their diagnosis to conversion disorder 12 and factitious disorder and abandoned that 13 altogether. 14 So the evidence alone suggests through the 15 hospital's medical records that she was not a 16 Munchausen by proxy victim. There's no need for 17 them to inquire and provide blanket subpoenas to 18 all of the hospitals on the West Coast of Florida 19 based on some ambiguous testimony from a 20 non-English-native speaker that was difficult to 21 understand. 22 I'd invite the Court to review the testimony 23 before making the determination. Thank you. 24 THE COURT: When is Kyle Kowalski's deposition 25 set? Michael Musetta & Associates, Inc. (813) 221-3171 21 1 MR. ANDERSON: The day after tomorrow, I 2 believe. 3 Your Honor, it's Greg Anderson. The day after 4 tomorrow, I think. 5 MR. HUGHES: Plaintiffs also said they wanted 6 to cancel it, Judge, recently. 7 MR. ANDERSON: No. What happened was we had 8 to switch out counsel to accommodate the defense. 9 We wanted to keep it on. It is on for Friday. 10 Jennifer Anderson is covering it. 11 MR. HUGHES: Okay. 12 THE COURT: Now -- 13 MR. HUGHES: Your Honor, may I have a brief 14 moment for rebuttal? 15 THE COURT: In a moment. I'm not finished 16 with my questions of Mr. Whitney, but I do -- 17 Mr. Hughes, let me ask you this specific question 18 first. 19 Assume that Kyle says that he went to 20 Hospital A, as opposed to you have, like, five or 21 six different hospitals. Would you agree that no 22 matter how I rule, the other four or five are no 23 longer relevant, and it would just be the one 24 hospital that Kyle testified to, if he made an 25 affirmative declaration? Michael Musetta & Associates, Inc. (813) 221-3171 22 1 MR. HUGHES: We're dealing with a 2 seven-year-old child. I think he was seven at the 3 time, Your Honor. So I think it's going to be 4 tough to rely on anything that he said, and, again, 5 Mr. Zurawski was very clear about it being 6 somewhere south of where they lived. 7 And, again, it was also during the period of 8 time of sheltering, which is very, very clear from 9 the face of his testimony. 10 THE COURT: I'm going back to Mr. Whitney now. 11 Now, Mr. Whitney, I understand the propensity 12 argument, but what about Mr. Hughes's contention 13 that he needs this evidence to help demonstrate in 14 his mind a diagnosis of Munchausen syndrome by 15 proxy? 16 MR. WHITNEY: A singular hospital visit does 17 nothing to prove or disprove Maya's Munchausen by 18 proxy. So even if a record is located that says 19 Kyle Kowalski was taken to the hospital in pain, it 20 does nothing to prove that Maya suffered from 21 Munchausen by proxy. And that's all there is in 22 the testimony, is that perhaps the uncle drove him 23 to the hospital one time. 24 MR. ANDERSON: Which we do not believe. 25 MR. WHITNEY: And we don't believe that to be Michael Musetta & Associates, Inc. (813) 221-3171 23 1 credible, but we haven't had a chance to question 2 him yet. 3 THE COURT: Now, the proposed subpoenas 4 reference both names, Kyle and Maya. What's your 5 position with respect to Maya and these 6 institutions? 7 MR. WHITNEY: It seems like a bit of a 8 fishing expedition. I think her health history is 9 well known. Her physical health certainly is at 10 issue here. So I don't have an objection on the 11 basis of somehow that's invasive of her right of 12 privacy unnecessarily, but I think as Mr. Hughes 13 mentioned, it's going to present a big goose egg. 14 MR. ANDERSON: (Inaudible). 15 MR. HUGHES: I didn't catch that. 16 THE REPORTER: Yes, Judge. I cannot hear 17 Mr. Anderson. So if he's wanting things on the 18 record, I cannot hear him. 19 THE COURT: I think he was whispering to 20 Mr. Whitney, so Mr. Whitney could articulate the 21 argument, I think. 22 MR. ANDERSON: You're right, Judge. 23 THE REPORTER: Okay. I just wanted to be 24 sure, Judge. 25 THE COURT: But Mr. Whitney hasn't relayed Michael Musetta & Associates, Inc. (813) 221-3171 24 1 what Mr. Anderson was just relaying to Mr. Whitney. 2 MR. ANDERSON: It was very complimentary to 3 the Court. That's all I can say. 4 MR. WHITNEY: Your Honor, I think his comment 5 was that it's extremely unlikely that these were 6 produced at -- 7 MR. ANDERSON: What I said, Judge, was that 8 given the proctology exam that Kyle -- that she's 9 had so far, it is rather unbelievable that the name 10 of another hospital or other treatment would not 11 appear somewhere in the myriad of records that has 12 already been produced. 13 It would be impossible to keep something like 14 that hidden, particularly if it had anything to do 15 with this case. There's been three or four 16 different entities that have searched all of these 17 records to see if there was anything more. 18 THE COURT: Mr. Hughes, your rebuttal? 19 MR. HUGHES: Yes, Your Honor. First, with 20 respect to the termination or continuation of 21 Mr. Zurawski's deposition, we were questioning him. 22 We had to segue to a Polish translator, and out of 23 the blue Mr. Zurawski said he needed to quit the 24 deposition. 25 And as a courtesy to him, I let him go. I Michael Musetta & Associates, Inc. (813) 221-3171 25 1 could have kept him there, I could have, but I 2 didn't. He just randomly out of the blue decided, 3 "I've got to go. I'm done with this." 4 And I said, "Okay." 5 Secondly, we have litigated these Daubert 6 issues. You can check the DIN numbers. You can 7 check the file. They did a Daubert motion. The 8 Daubert motion with Judge Walker is plainly 9 indicated on the face of the transcript. We've had 10 an up-and-down ruling on that in Defense favor. 11 This is not a propensity argument, Judge, at 12 all. This is -- this strikes at the heart of the 13 diagnostic features of this case, which is 14 Munchausen syndrome by proxy. And I think if the 15 Court reviews the transcript of Mr. Zurawski 16 attached to our motion, he is absolutely abundantly 17 clear that this happened during the sheltering 18 proceedings. 19 He says it happened after they left court for 20 a shelter hearing and drove down in separate cars, 21 with Kyle and Beata and Mr. Zurawski, because the 22 child had all of a sudden started complaining of 23 the same system-wide pain that his sister did, even 24 though Mr. Zurawski observed that he was completely 25 100 percent fine. Michael Musetta & Associates, Inc. (813) 221-3171 26 1 And the reason I sent subpoenas out to a lot 2 of different places is there's a lot of different 3 hospitals this could have been. In fact, I think 4 there -- we probably didn't put enough on our 5 subpoena, to be frank with you. I think there's 6 probably other facilities. 7 I know that Lee Memorial Hospital is one of 8 the ones we put on there. Lee owns a ton of 9 clinics throughout Lee County, and it could have 10 been any number of one of those. Again, I think we 11 are pretty narrow with our subpoenas, and what's 12 the harm here if there's a goose egg? 13 Any harm can be remedied by a confidentiality 14 agreement, and Plaintiffs' claims about what the 15 evidence might or might not show is an issue of 16 fact. It's an issue for experts. It's not 17 something that they need to come out here and claim 18 it's foreclosed because they don't view it to be an 19 issue of fact. It plainly is. 20 THE COURT: Was this information available to 21 DCF when they were investigating whether Kyle 22 should be sheltered? 23 MR. HUGHES: Not to our knowledge, Judge. 24 From what we've seen from the DCF file, it's not in 25 there, and Kyle was, for lack of a better term -- Michael Musetta & Associates, Inc. (813) 221-3171 27 1 the spotlight shifted off of him very, very early 2 in this process. This was a ninety-some-odd-day 3 process. 4 I mean, he was visiting his sister within two 5 to three weeks and was not the subject of the 6 investigation. So, no, not to our knowledge, 7 Judge. 8 THE COURT: Mr. Haskell, do you have anything 9 to say in this motion, or are you going to -- 10 you're not involved in this one? 11 MR. HASKELL: The only thing I would add, 12 Judge, is -- if I may -- and thank you -- is that 13 this is -- this is something that -- the timing of 14 this, it's germane to the case. My client 15 performed her medical evaluation and did the final 16 report in early December 2016. 17 Assuming this hospital visit -- whatever it 18 was that the uncle was taking Kyle to -- occurred 19 sometime in December, it would have been after the 20 time frame that anybody was really looking at or 21 assessing whether Kyle should be brought back in or 22 further evaluated, at least that's what it appears 23 to be, Your Honor. 24 So I do agree with Mr. Hughes that with proper 25 safeguards in place and confidentiality provisions Michael Musetta & Associates, Inc. (813) 221-3171 28 1 and agreements this is a potential -- likely 2 relevant discovery, if there is something there, 3 and proper safeguards can be applied. 4 THE COURT: I think, Mr. Whitney, you were 5 trying to say something else? 6 MR. WHITNEY: Yes, Your Honor. Thank you. 7 Regarding the comment that there has been an 8 up-and-down ruling on the Daubert issue, that's not 9 the case. It was denied as being premature. It 10 was not denied on the merits. So those Daubert 11 issues have not been litigated. They have not been 12 litigated to the conclusion. 13 MR. HUGHES: They weren't even Daubert issues 14 to start with. 15 THE COURT: Well, look, I'm not going to 16 re-litigate that issue right this second. 17 So, Mr. Whitney, anything else? This is your 18 last chance to talk on this motion. 19 MR. ANDERSON: Judge, if I may, really, if 20 this all happened after the alleged -- the 21 diagnosis of alleged Munchausen by proxy, I'm not 22 sure what the relevance would even be. Whatever 23 facts a defense counsel can turn up four years 24 later that occurred after all of these things 25 happened to -- or that the diagnosis was reached by Michael Musetta & Associates, Inc. (813) 221-3171 29 1 Sally Smith and JHACH ER doctors would have to be 2 based on what they knew at the time, if you catch 3 my drift. 4 I mean, whether it was a reasonable thing to 5 drop a dime on these folks, turn them into DCF, 6 would be based on facts as they knew them at the 7 time, not facts that occurred months and months 8 down the road and then dug up in litigation years 9 after. 10 That's going to be an argument for another 11 day, I realize, but if we're going to whether this 12 is absolutely necessary for them to prove up 13 something, to disprove our case, I can't see how it 14 would. 15 THE COURT: Anything else, Mr. Hughes? 16 MR. HUNTER: Judge, if I could be heard on 17 this just a moment? 18 THE COURT: Yes, Mr. Hunter. 19 MR. HUNTER: The ultimate correctness of the 20 diagnosis, if any, is very much an issue here. It 21 doesn't matter when the events occurred. It may 22 matter to state of mind with respect to what 23 happened in the ER or what happened in the PICU, 24 but ultimately the question is was this a correct 25 diagnosis, was this a justified suspicion. Michael Musetta & Associates, Inc. (813) 221-3171 30 1 And if this young man was, in fact, exhibiting 2 the same or similar symptoms as his sister, that 3 fact is highly relevant to that determination. 4 MR. HASKELL: May I add to that, Your Honor, 5 briefly? 6 THE COURT: Actually, I think I'm ready to 7 rule, and so from my review of the transcript, such 8 that it exists right now, it occurs to me that this 9 alleged trip to the hospital occurred sometime 10 during the shelter process of his sister. 11 Is that a fair statement from -- do both sides 12 agree with that? 13 MR. HUGHES: Yes, Your Honor. 14 MR. WHITNEY: I would say it's unclear from 15 the transcript, Your Honor. 16 THE COURT: Okay. Well, here's where I'm at, 17 and this is what I'm going to rule. I start with 18 the proposition that Kyle Kowalski has a 19 constitutional right of privacy in his medical 20 records, and that's a pretty weighty constitutional 21 provision. 22 The defendants in this particular case, 23 especially the hospital, seeks to obtain evidence 24 that his sister, Maya, was correctly diagnosed with 25 Munchausen syndrome by proxy, and the defense Michael Musetta & Associates, Inc. (813) 221-3171 31 1 contends that the diagnosis that occurs in a 2 sibling may speak to that diagnosis. 3 I agree with Mr. Hunter in the sense that the 4 timing of what Dr. Sally Smith knew or her 5 colleagues or fellow -- I don't want to say she's 6 an employee or not an employee. That's not what 7 I'm trying to say, but the other individuals 8 associated with All Children's that she was working 9 with I don't think is as relevant, because if from 10 a medical perspective the diagnosis would be 11 supported by what happens to a sibling, then I 12 think the defense has shown some need to have 13 access to Kyle Kowalski's medical records. 14 Now, I do think we're going to put some very 15 strict limitations on it. I am going to narrow the 16 scope of the proposed subpoenas. The beginning 17 date will be the beginning of the date that the 18 shelter was granted, and the ending date of the 19 subpoena will be the date that the shelter 20 concluded. I don't have those dates in front of 21 me, but those are the two goalposts. 22 I'm going to separate out Maya from Kyle, and 23 you're going to do a separate subpoena directed to 24 these institutions for Kyle only. These will be 25 produced -- I want them to be sent to the Michael Musetta & Associates, Inc. (813) 221-3171 32 1 plaintiffs' counsel -- not to the defense counsel, 2 but to the plaintiffs' counsel -- who once they get 3 them will have an opportunity to look through and 4 see if ultimately there's anything that they seek 5 to object to. 6 If they do, they're going to do a privilege 7 log and be specific. And, Mr. Whitney, you're 8 going to have to disclose how many pages, and we're 9 not going to play hide the ball here. But, 10 ultimately, if you do a privilege log and it's 11 challenged by Mr. Hughes, then obviously I'm 12 probably buying myself an in camera inspection of 13 those records. 14 To the extent any records ultimately are 15 produced to the defense counsel, they will be 16 produced via a confidentiality -- do we have one -- 17 I think we do, but if we don't, there has to be a 18 confidentiality agreement that it can't go beyond 19 the defense counsel and defense counsel's experts. 20 MR. WHITNEY: Very well, Your Honor. 21 THE COURT: Now, Mr. Whitney, my hope is if 22 there are any such records, that because of the 23 existence of the confidentiality order there 24 probably is not a reason to withhold them, but I 25 will give you the opportunity to look at them first Michael Musetta & Associates, Inc. (813) 221-3171 33 1 and see if, in fact, you feel like there is a need 2 to withhold something. But I'll probably end up 3 having to review those documents. 4 MR. WHITNEY: A point of clarification, 5 Your Honor. 6 THE COURT: Yes, sir, Mr. Whitney. 7 MR. WHITNEY: So let's say that we end up 8 getting some records and Kyle had to go to the 9 hospital to get stitches on his finger for some 10 accident. It's clearly not related to the 11 allegation that he was experiencing whole-body pain 12 or some other pain disorder. 13 Do you want those produced, as well, 14 underneath the confidentiality agreement, or do we 15 hold those back under privilege? 16 THE COURT: Well, my view is it sounds like 17 there's only going to be records from one facility, 18 and if it was for just one day, there's not going 19 to be a significant number of documents. So I'm 20 starting with the proposition that there's not 21 going to be much. 22 I also am starting with the proposition that 23 there is going to be a confidentiality order. If 24 you're looking at those medical records and he's 25 got stitches in his finger, you know, do you really Michael Musetta & Associates, Inc. (813) 221-3171 34 1 need to withhold those on a privilege given the 2 existence of the confidentiality? 3 So my hope is that there's only one facility, 4 if there's any facilities at all, and there's not 5 going to be a ton of records. You'll look at them 6 and then let us know very quickly whether or not 7 there is a need for you to withhold any of the 8 documents. 9 MR. WHITNEY: Okay. 10 THE COURT: Now, when you do receive the 11 documents, I am going to direct that you let 12 Mr. Hughes's office know that you've received them 13 and how many total pages you have received, so that 14 they have an idea as to when the documents have 15 been received. 16 Even though, Mr. Whitney, your office is going 17 to receive the documents, if there are copying 18 charges that the hospital -- Mr. Hughes, your 19 office is on the hook for those. 20 MR. HUGHES: Very well. 21 THE COURT: Mr. Hughes, you're going to draft 22 the order. I want to make sure that everyone is 23 clear, because I don't want to have, you know, a 24 continued fight over the scope of the order. If 25 there is, let's deal with it now as opposed to in Michael Musetta & Associates, Inc. (813) 221-3171 35 1 the future. 2 MR. HUGHES: We're going to stat order the 3 transcript, Judge, and we will give fidelity to 4 your oral ruling today and run it by Plaintiffs and 5 see what we can do. I hope we can avoid that. 6 MR. ANDERSON: Can I have -- Judge, this is 7 Greg Anderson. Can I have from Mr. Hughes -- we 8 obviously have become relative experts on 9 Munchausen by proxy and have compiled all of the 10 diagnoses -- where the -- what source they have for 11 this idea that a sibling complaining of whole-body 12 pain is an indication -- 13 THE COURT: Mr. Anderson, we have a ton of 14 motions to deal with. I really -- I'm pretty 15 confident that my ruling is pretty in accord with 16 the law. I feel like this is something that I'm 17 going to allow the defense an opportunity to 18 explore a little bit under the conditions that I've 19 given. 20 Now, we dealt with -- 21 MR. ANDERSON: Understood. 22 THE COURT: We just dealt with Kyle. It 23 doesn't seem like, Mr. Hughe