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- - - - - - - - - - - - - - - - - - - - - - - - - - - - RJI No. 33-11-1413 Index No. 2011-2128 KELLY VARANO, As Parent and Natural Guardian of Infant JEREMY BOHN; et al., Plaintiffs, vs. MOTION ARGUMENT (Group One)



- Title Page - Continued 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For the Defendants: (New Forba) BEFORE: APPEARANCES: SHANTEL JOHNSON, et al., Plaintiffs, vs. FORBA HOLDINGS, LLC, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - Onondaga County Courthouse 401 Montgomery Street Syracuse, New York 13202 Wednesday, August 14, 2013 HONORABLE DEBORAH H. KARALUNAS, Justice of the Supreme Court, Fifth Judicial District, BY: RICHARD FRANKEL, ESQ. Hackerman Frankel, PC 4203 Montrose, Suite 600 Houston, Texas 77006 By: PATRICK J. HIGGINS, ESQ. Powers & Santola, LLP 39 North Pearl Street Albany, New York 12207 BY: ROBERT CAHALAN, ESQ. Smith Sovik Kendrick & Sugnet, PC 250 South Clinton Street Syracuse, New York 13202 [Incomplete title page continued:]

- - - - - - - - - - - - - - - - - - - - - - - - - - - STATE OF NEW YORK: SUPREME COURT: COUNTY OF MONROE: MOTION TERM: (SYRACUSE)ROOM NO. 318: RJI No. 33-11-3717 Index No. 2011-7100


For the Plaintiffs:

- Title Page - Continued 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Reported By: Patrick J. Reagan, RDR Official Court Reporter Also present for Various Defendants: (Kroner, DDS; Hanna, DDS) (E. Nam, DDS) (Gusmerotti, DDS) For the Defendants: (Bonds, DDS; Izadi, DDS; Aman, Khan, et al.) (Old Forba, et al.) By: THOMAS B. WITZ, ESQ. Wilson Elser Moskowitz Edelman & Dicker, LLP 677 Broadway, 9th Floor Albany, New York 12207 By: DENNIS A. FIRST, ESQ. O'Connor O'Connor Bressee & First 20 Corporate Woods Blvd. Albany, New York 12211 By: JESSICA M. DEMICHIEL, ESQ. Damon Morey, LLP The Avant Building, Suite 1200 200 Delaware Avenue Buffalo, New York 14202 By: SANJEEV DEVABHAKTHUNI, ESQ. Hiscock & Barclay, LLP 2000 HSBC Plaza 100 Chestnut Street Rochester, New York 14604 By: SAMANTHA L. MILLIER, ESQ. Mackenzie Hughes, LLP 101 South Salina Street Syracuse, New York 13202 By: MICHAEL J. GARVEY, ESQ. 5740 Commons Park East Syracuse, New York 13057

(Poleon, DDS)

(Randazzo, DMD; Vuu, DDS; Bernal, DDS; Zoufan, DDS)

By: CHRISTINE VERONE JULIANO, ESQ. Hancock & Estabrook, LLP 1500 AXA Tower 1 Syracuse, New York 13202

- Motion Argument - 8/14/13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (The following occurred in Supreme Court, Syracuse, New

York, before Judge Karalunas, on Wednesday, August 14, 2013 at 11:35 a.m.:) THE CLERK: In re: Small Smiles. Counsel, would

you note your appearance for the record, please? MR. HIGGINS: Yes. Harris & Santola, attorneys

for the plaintiff, Patrick J. Higgins, of counsel. MR. FRANKEL: for the plaintiffs. MR. CAHALAN: Robert Cahalan of Smith Sovik, for Richard Frankel, Hackerman Frankel,

the New Forba defendants. MR. WITZ: Thomas Witz, law firm of Wilson,

Elser, Moskowitz, for defendants. MR. FIRST: Dennis First, from O'Connor O'Connor

Bresee & First, Attorneys for the defendants Old Forba. MS. DEMICHIEL: Jessica DeMichiel,

D-e-m-i-c-h-i-e-l, law firm of Damon Morey, on behalf of Kathleen Poleon. MR. DEVABHAKTHUNI: Sanjeev Devabhakthuni, of

Hiscock and Barclay for Dr. Gusmerotti. MS. MILLIER: Samantha Millier, of Mackenzie

Hughes for Drs. Kroner and Hanna. MR. GARVEY: for Dr. Ellen Nam. MS. JULIANO: Christina Verone Juliano, of Michael Garvey of Feldman Kieffer

- Motion Argument - 8/14/13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Hancock & Estabrook, for defendants Zoufan, Randazzo, Loc Vuu and Bernal. THE COURT: Mr. Higgins, we have here, if you

would approach, the notes of issues, that were? MR. HIGGINS: THE COURT: Thank you. Okay. We have got some scheduling Ready

stuff to talk about and we also have some motions. to proceed? MR. FRANKEL: MR. HIGGINS: THE COURT: MR. FRANKEL: Yes. Yes, Your Honor. Okay. Who wants to start?

Your Honor, we would like to start

with the motion for sanctions, if that's okay with Your Honor? THE COURT: MR. FRANKEL: Okay. Motion is to direct -- Richard

Frankel for the plaintiffs -- our motion is directed at the New Forba defendants. The facts are, that is what is

undisputed, is that they were, and perhaps still are, in violation of Your Honor's order. You issued an order, made Ordered them to

a ruling in April, issued an order in May. do something by June 13th. violated that order.

And it's undisputed that they

It wasn't just something that was

insignificant, where documents we have been fighting over for over a year to get. Lengthy briefing. And Your Honor

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issued that order. And they didn't comply with it.

I think there are three issues on the table now. One is, are they in compliance today? continuing to violate the order? sanctions willy-nilly. Or are they still

I don't file motions for

I told Mr. First this morning, I

couldn't remember, until this case, doing one in 30 years. I didn't know what else to do. I must have, the record, if

Your Honor has reviewed the record, there are email after email after email of: Have you produced everything? Can

you tell me you produced everything? an answer.

And I could never get

And that's gone on for a year. So first question is: Have they produced

everything at this point? the order? THE COURT:

Or are we still in violation of

That's a good question.

In reading

Miss Zoeller's [ph] affidavit, I am not sure that I know the answer to that question. I think, in the end, it But, of the

sounds like she's produced everything.

affidavit, but reading that affidavit, it also appeared that she has said that in the past too that she thought she had done a thorough search of the records. MR. FRANKEL: THE COURT: MR. FRANKEL: tell us; maybe he can. Right. So I don't know the answer to that. And I'm not sure Mr. Cahalan can My reaction was the identical one

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you had. tell. We got her affidavit Monday. And I couldn't

I thought there was a place in there that she said, But

well, I haven't been able to say that we've complied. until we did all this stuff in the last few days, she didn't, I don't think, expressly say: compliance. We are now in

But if they are not today, I mean, then we are talking about even more serious situations as far as I am concerned, which is a continuing violation. The second question is: Was their failure to

produce the documents intentional, and worthy of sanctions? And the third question is: What do we do about Documents

the documents that they still haven't produced?

that there is no question, on key witnesses we are talking about and, particularly, these dentists who are getting ready to be tried in September, where we are missing significant numbers of performance reviews. And we know

from the performance reviews we do have, that was one of the mechanisms they used to discipline their doctors to direct the dentists, to direct them to do more procedures, to put them on probation if they weren't producing enough. Ultimately, to fire some dentists. important documents. I think, as issue one, we don't know the answer. But, to me, that begs for sanctions or something that will So they are very

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 get their attention. Because Your Honor's order in May

doesn't seem to have gotten their attention. leads to issue two: this just:

Because that Or was

Was their conduct intentional?

We did our best, and we are sorry, and we just

found a few additional documents. We made the request in October of 2011, almost two years ago. These are not nebulous requests.

Performance reviews is a kind of document every employee in their company gets. personnel files. keep. It's in their manual. They are

They are what human resource companies

So it's not like they are having to make judgment It couldn't have They agreed to We had a signed rule

calls on what is it we are requesting. been more direct as to what we wanted. produce the documents. No objection.

or signed agreement between the lawyers, stipulation, when we got to September 2012, when they were obligated to give them to us. They gave us a handful of documents. Wait a minute, this can't be it. And I You're

immediately said:

not saying these are all the, we know a whole bunch of dentists who we didn't get files on. What is it in? This

went on for about a month, as the record shows, with emails. We kept asking. And they have some story about: We

We are still looking; and here are a couple more files. went on and on for a good month. Many of the documents

they did give us were blank performance reviews.

Here is

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the performance review. Only, there is nothing on it.

Which created even more doubt and suspicion on our part. We got to October, and all of a sudden, despite representations where you have everything, we had a motion for protective order. Give us back what we have given you, And our response

and we are not giving you anything more. to that was:

You didn't have a right to call back and we They didn't

want everything that you haven't given us. give us a privilege log [ph]. were objecting to produce?

So what was it that they

What documents did they have We didn't know.

that we were fighting about?

But, from October or early November, until Your Honor heard this in April, as far as I could tell, they did nothing. They filed a motion saying we shouldn't have to We filed a motion saying they It was ultimately heard

produce anymore records.

should have to produce them all.

in April, and ruled on, I think in this courtroom, on April the 4h, that they had to turn them over. Nothing had been

done, to my knowledge, based on Miss Zoller's affidavit, between October and April, even though they knew they had only given us 10 or 11 of the 32 dentists, any performance reviews for 10 of the 11. And in most instances on the 10

and 11, they have given us one out of, in some instances, several that existed. So they knew they hadn't produced. They did nothing.

And they knew we were seeking them.

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


You ordered them to produce them on April 4th, in an oral ruling. They had, it turned out, until June 13th As far as I can tell from Miss

to actually produce them.

Zoller's affidavit, they did nothing during that period. Instead, on June 13th, Mr. Cahalan emailed me 14 pages of records that we apparently, this was what we had been fighting over for six months. 10 pages were blank

performance reviews, and that was it. Well, of course I responded immediately. said, you know: Are you saying this is it? And

And he started

to say, actually, his cover letter said: looking for a couple of other people. know. I started to ask:

We are still

We will let you

Where is the rest of the And he could not respond,

documents, is this it? essentially.

He could not tell me. I wouldn't blame him for not for

THE COURT: responding. doing? MR. FRANKEL:

How is he going to know what his client is


This motion is not

directed at Mr. Cahalan and his law firm; it's directed at his client. He can only do what they give him. And there

is no -- I am not questioning his good faith in all this. He's just responding to what they are telling him. So, we were getting ready to take a deposition of another dentist who was coming from Saudi Arabia to give

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 say: his deposition. said: here. We didn't have most of his records. I


Look, what about Dr. Hahn [ph]?

He is a key player We don't have any The Friday

He worked for you for five years.

of the records, any of his performance reviews.

afternoon or evening before his Monday deposition, we get an email, here are a whole bunch of Dr. Hahn's records. They were partial. them. Some performance reviews, not all of

But, it just struck me at that point, they weren't I mean, if I hadn't

following Your Honor's order.

forwarded that, we would never have seen it despite the Court order that said they were supposed to give them to us. And that just raised more questions. Well, if you

found Hahn's records, what about the rest of these dentists? And again, Mr. Cahalan is not in a position to We have given them to you. But as far as I can tell

from Miss Zoller's affidavit, nobody was looking. When I filed a motion for sanctions, finally, it looks like they spent two days looking for records. And

Saturday, they produced them, some new records -- I think nine new performance reviews. Again, it's clear that's not But, that's the state

all of them, but it's some of them.

of the record in terms of their conduct. And I think it's, not that we are saying they had them in their possession, certainly Mr. Cahalan didn't have

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 well:


them or even Miss Zoller had them and wouldn't give them to us. THE COURT: She was too busy. She was working 80

hours a week, and they didn't have enough people employed to help them in the litigation to find the records. what she is saying in her affidavit. MR. FRANKEL: That's what she is saying. And I That's

am not questioning how busy she was. about months to get this done. THE COURT: MR. FRANKEL:

But, we are talking

Actually, since October 2011. Yes, ma'am. And even Your

Honor's -- even your oral order in April of 2013 gave them 60 more days to produce, and they didn't. So, I don't really think there is much of a dispute that it was putting your head in the sand, whether it was because they had other things to do or not. Your

Honor's order is not secondary to their other business. And that's, you know, that's an issue. So we have got, I guess the third question is, What should be done by this? Deliberately and

belatedly producing documents in disregard of a Court's order seems to me is worthy of sanctions. If you don't

issue some type of sanction, you are essentially telling Mr. Cahalan's clients for future orders, do it when you can. And for our client, we are in a terrible

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disadvantage. from now. documents.


We are getting ready to go to trial a month

And we have been deprived of these key And that leads to really a very fundamental

question on the three dentists who are defendants in the Bohn case. [ph]. It would be Dr. Bonds, Dr. Aman, and Dr. Hahn

It is abundantly clear that they are, many of their Dr. Bonds, for

performance reviews have not been produced.

example, has worked for the company, as a dentist, from March of 2006 until today, although now the company is owned by someone else. But he has been there seven years. By my count,

We have one performance review from 2009. there should be at least seven. produced.

They haven't been

Dr. Aman, another important defendant in the case, started there in June of 2005, left in 2010. worked there four and-a-half to five years. He

We don't have

his performance reviews covering the period mid-2006 to mid-2007. mid-2008. Right in the middle of our case. Or mid-2007 to We

Two very important performance reviews. They weren't produced.

don't have them.

Dr. Hahn started there in 2004, left in 2010. have nothing for 2008. We have nothing for 2009.


Other dentists, for example, Dr. Izadi, who was the lead dentist in Albany, and is a defendant in that, in the Angus case, Dr. Izadi is defended in seven of the 10

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plaintiff's cases.


We represent dozens of more kids who

were seen and treated by Dr. Izadi. THE COURT: Let me stop you for a second. It

wasn't clear to me, is your motion directed with respect to all of the plaintiffs in this action? Your notice of

motion was talking about the three cases that are Group One cases. But, like some of the oppositions' papers

suggested, that they thought you were seeking relief with respect to all of the plaintiffs? MR. FRANKEL: Well, we have two motions today.

On the sanctions motion, it is directed at, on behalf of all plaintiffs because it involves a corporate defendant that all the plaintiffs have sued, and records that pertain to all the plaintiffs. On the motion that Mr. Higgins intends to present regarding comparative negligence and fault of children, that is also on behalf of all the plaintiffs. And that's

what triggered, I think, a number of responses from many of the -- many of the defendants. It not only applies to all Our

the plaintiffs, it applies to all the defendants.

motion is aimed at only one group of defendants, Mr. Cahalan's client, but on behalf of all the plaintiffs. Certainly, this immediate issue, with respect to these three dentists who are getting ready to go to trial, as well as the regional VP's, that would be Drs. Andrus,

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Knott and Barnwell. performance reviews. They we have not got any of these They were key people. Not only


regional vice-presidents, Drs. Andrus and Knott were the designated owners of the Syracuse clinic. says: Miss Zoller

Well, once New Forba came in, which would have been

September 2006, we don't have any performance reviews for these gentlemen. I am not sure why, but that's what she But they were there Dr. Barnwell, since So there should be

says or, frankly, how she would know. years before. 2002. Dr. Andrus, since 2000.

Dr. Knott, I believe since 2002.

several performance reviews of these high level -- they were dentists. the company. And they were also high level executives at

They are witnesses that, Dr. Knott and Dr. And no records. No

Andrus will be witnesses at the trial. records.

So, I will -- I can talk about Dr. Usaw, and other dentists but I am not going to spend anymore of Your Honor's time. We believe that the remedy is obviously one of discretion with Your Honor. It ought to be significant

enough that it deters future misconduct, and make sure that our clients are not prejudiced. With respect to these

missing documents that were either lost, destroyed, we don't know. there. That they should be there, and they are not

As to these three dentists, we believe that an

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


instruction along the lines that we put in our papers, as to what the jury, what inference the jury should draw, because these documents in the past have been very damaging. That they draw similar inferences from the Thank you, Your Honor.

absence of missing documents. THE COURT:

But with respect to the corporate

executives, is your request for adverse inference the same, is that the remedy? MR. FRANKEL: Yes. I would have to say that the

inference that's directed is due to the conduct of Mr. Cahalan's clients. records. Okay, so, they are the ones who had the What

And they either lost or destroyed them.

those records say or what we could infer that they say would be with respect to the three dentist defendants and the regional vice-president, Drs. Knott, Andrus and Barnwell. THE COURT: Okay. But, I guess my question is:

Are you seeking the same adverse, seeking the same adverse inference with respect to the treating dentists as well as the owner/executive dentists? MR. FRANKEL: Well, we have really no way in

their capacity as executives where they were, they were the messenger. They were the ones who cracked the whip. The

inference is not, well, they didn't produce. THE COURT: Right. That's what I am asking you.

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 What are you asking for with respect to those? MR. FRANKEL:


What we want, I am not sure we can

ask for an adverse inference as to those, those three gentlemen on that basis. Ironically, I think probably the

inference that would be drawn as to them is that they were being promoted because they were doing exactly what they were told to do. whip. That they were -- they were cracking the

But, we don't have any performance reviews of theirs

in that capacity to be able to see how they were being evaluated. What we do know is that Drs. Knott and Andrus, once it was discovered that they had falsified their applications to get licenses in New York and other states, were fired. We know that Dr. Barnwell, when the South

Carolina dental board saw what he was doing and brought an action against him, he was gone. So we have -- but these

things only happened after the government officials got involved. The company was pleased with their performance

until then. THE COURT: MR. CAHALAN: Okay. Thank you. Mr. Cahalan? Rob

Good morning, Your Honor.

Cahalan of Smith Sovik, for the New Forba defendants. First, with respect to Drs. Barnwell, Knott and Andrus, my understanding from Linda Zoller, who provided an affidavit for CSHM, is that the executive employees didn't undergo

- Motion Argument - Cahalan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any performance reviews. review records. They don't have performance


And by that, I don't mean that it's


that they once existed and now they don't have them. don't believe they ever existed. performance reviews of that sort. anything to produce.

They didn't have written So they don't have

There shouldn't be any adverse

inference, certainly, with respect to those executive employees. With respect to the other employees, I don't believe there should be an adverse inference either. And I

know that this disclosure has been in -- it has been in phases. that. But Ms. Zoller explained there is a reason for They came

These records came to her in disarray.

from clinics that were shutting down.

They were boxed up

by employees at clinics who were on their way out the door. And they came to the offices in Nashville, and were thrown into these two cages in the basement. mis-labeled. this. Some of it was

It has not been an easy job for her to find

As she explains, she has done this while she is

trying to do lots of other things. When we provided, and I said in my papers, I understand that there were a small number of documents that were provided on June 13th, in compliance with your orders of May 29th. And the reason for that is that the fight

wasn't just about those 14 documents, over the months

- Motion Argument - Cahalan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 previously. ones.


We were also seeking to claw back the other

But yes, it was a small number because that's the

other ones had been turned over. I think it's worth noting that the first disclosure that we gave to plaintiff's counsel back on September 3rd, I believe, which was from some electronic files that Linda Zoller had looked through and found, was for all 32 of the dentists that had been requested at that time, including the corporate entities. look, at that point. They continued to

And by October, they had provided our And we scanned those

office with two boxes of hard files.

and prepared those and sent them to plaintiff's counsel. And they were, for example, folders within those personnel files that were empty file folders. "performance review" on the tab. And some of them said Do

We understand that. We don't.

we have an explanation for why that is? what the hard file from the clinic is.


That's what it

looked like when Linda Zoller put it in the box and sent it to us, when she found it in the basement. And the reason

could be, they opened the folder when the person was hired and the person didn't stay long enough to where they filled the folder. But we turned over what we had. had turned over what they had. And the client

So it wasn't like we came

in and just flat out didn't provide everything.

- Motion Argument - Cahalan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And that second disclosure was, I think, for


about 22 or more of the 32 that we had originally supplied. We continued to look, and they found more electronic files for some dentists, if that's detailed in here. turned that over. And we

They asked us about, I believe Because the file that had been We went back a And

specifically, Barnwell.

turned over was smaller than they expected.

couple times and talked to Linda Zoller about that. the file is small. It's all she has. She says it's

because he was employed for a short time by the New Forba entities. Another issue, I think that everything came to a head on June 14th, when plaintiff's counsel sent me an email saying that he had a lot of problems with what we had turned over, and it didn't really look like it was complete to him. And what they had been asking me for and, yes,

there have been a lot of emails asking me, This is that? Is this everything? Well, I am dealing with Linda Zoller,

who, by the way, when he called her up, I am talking about a very overwhelmed person for a lot of reasons and a lot it has to do with this. that I can do. and looks. And I asked her, and which is all

And you know, she goes back and goes back

Now I will tell you that when I got that first

email on June 14th, the day after we had made that disclosure of what I admit was a small number of documents

- Motion Argument - Cahalan 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


was the reason was most of that motion had more to do about claw back. My first instinct I think was to go try and go

back to reconstruct what we had provided to them because I thought we had given them everything. I didn't have

anything left in my office that we hadn't turn over, other than Barnwell and Andrus, and I wanted to make sure was completed. And over that two weeks, I got, we got another

email or two from Mr. Frankel asking us as I took it to focus on Kahn --. THE COURT: understand. I hear what you're saying. I

And again, I have no doubt that you have in

response to requests by plaintiff's counsel have contacted your client and tried to come up with records. So, I'm not

sure that you're making any headway with me on this motion. Because basically, as I see what happened is your clients, for whatever reason, didn't take seriously the requests for discovery, and the orders that require discovery. I get --

I read Miss Zoller's affidavit, she's working 80 hours a week trying to keep things up, keep up with things. But if

we allowed that to be an excuse for why people don't comply with orders, or don't follow through with discovery requests, our system wouldn't work. And so, the real question here is, you know, was there a failure to produce the records? And I think

everyone would concede that there was a failure to produce

- Motion Argument - Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the records timely. Was that willful?


Is the fact that

they didn't devote the time and energy to this make it willful? The requests for these records were first made in October 2011. Miss Zoller says, you know, we got these But at the same time the

files, and we put them in cages.

discovery demands, when those offices were closed, I believe all of the offices were closed after the discovery demands had been served, certainly after this litigation was commenced. So, why were they thrown in cages, and And again, I

nobody searched through them at that time?

don't think you're going to be in a position to be able to answer that question. And I am confident you were given records. you know, how do you know what's there? You don't. And, You

don't know what's there, or what thorough efforts were made. Miss Zoller's affidavit makes very clear that she didn't do a thorough examination for records in compliance with the Court order or the discovery demands until very recently. So, I'm not sure there is anything that you can

say that is going to change my mind that there has to be a consequence here. There has to be a consequence. We can't

have people not taking seriously orders for discovery in cases. And I'm not even blaming Miss Zoller, really. The

- Motion Argument - Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 too. company maybe put her in charge of this. charge of too many things.


But, put her in

So, really what we come down to So you want

is what is the consequence for this failure? to address that? MR. CAHALAN: that you raised.

I think I can address two issues

One, was the fact that the original But I believe that when

demand was from October of 2011.

the request to produce these records was provided to CSHM, is when we got the discovery order from Judge Cherundolo, which I believe was back around June or July of 2012. I don't believe anyone had asked them to look prior to that. And to be honest, Your Honor, I got involved in this So, I know that There I So,

in about September, beginning of October.

things happened like they set up the coordination.

was the bankruptcy that stayed this for a little while. don't think -- I don't think that -- I know Linda Zoller says we weren't asked to look until after June 1st. THE COURT: I find that kind of disingenuous,

Because CSHM bought the assets of New Forba on June And that was after commencement of the

1st 2012.

litigation, and after service of the demands for this information. and CSHM. So clearly, this was requested of New Forba

You know, the fact that they bought it doesn't She makes it sounds like they

mean they are not obligated.

are doing us a favor by looking for records because they

- Motion Argument - Court Decision 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 willful. aren't a named defendant.


Well, they bought the assets of I mean, they

New Forba and undertook to respond to stuff.

could have turned New Forba, could have turned all the records over to your law firm and paid you guys to take care of everything related to all of these clinics. But

they chose instead to give it to some third-party entity. And are trying to hide behind that third-party entity. I am going to grant the motion. And I am going to grant the motion to, and we will give it adverse inference with respect to those performance reviews. However, I'm not clear exactly what So

the scope of that adverse inference will be, what I will say, for that adverse inference. And I am going to require And

a representative of New Forba to testify at a hearing.

whether it's Miss Zoller or somebody else, I'm not going to specify. And then I will make my decision. But, clearly,

my view, based on in large part Miss Zoller's affidavit about the efforts or lack of efforts that were made, is that an adverse inference is appropriate here. I am not going to strike the answer. think that's appropriate. But I do think that the failure to produce was They could have devoted additional people, and So we I don't

effort, to complying with the outstanding discovery.

are going to have a hearing on the -- scope of that adverse

- Motion Argument - Court Decision 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 records. inference.


And we will talk about the date for that when

we talk to about the scheduling stuff. MR. CAHALAN: Could I be heard just on one issue

that I think touches that? THE COURT: MR. CAHALAN: Sure. And the adverse inference? At this

point, the Court asked early on in Mr. Frankel's argument, that there was some discussion as to whether CSHM has now turned over everything that it has. Our intention, I think

Linda Zoller's intention, was to say, yes, our search is complete. We cannot think of any place further to look. So, drawing

We have turned over everything that we have.

an adverse inference, I think, requires a fair amount of speculation in that if she's turned over everything that she has, that she says she has, and I know some of it was blank, she said she can't, she can't say why it was blank, but that's the records that she has. You know, the adverse

inference, I don't think it makes sense in that situation, where she has turned over what she has. It assumes that

there was some record to turn over at sometime. THE COURT: Clearly, she didn't look for the We don't

And we don't know what was turned over.

know what New Forba did.

We know they didn't turn over.

We know that they had policies with respect to how frequently performance reviews were done. So, perhaps the

- Motion Argument - Court Decision 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adverse inference will be related to that. is what their policy was.


But that this

But they didn't produce, didn't That's what I am

produce performance evaluations for that.

leaving open exactly how I am going to phrase that adverse inference during the course of the trial until I have a little more testimony on the subject. But, you know, the

bottom line is, it is very clear from Miss Zoller's affidavit that they didn't take seriously this, the obligation to preserve these records, to obtain and preserve these records during the course of the litigation. We don't know what happened. They had, for two years, and I

didn't look through the boxes that were down there. don't know the answer to that. point. But I understand your

And I am going to grant the adverse inference. MR. WITZ: May I just be heard briefly, Your

Honor -- Tom Witz -- on the adverse inference issue? THE COURT: MR. WITZ: Yes, Thank you. Judge, we represent Dr.

Hahn, Dr. Aman, Dr. Bonds, the three treating dentists who are going to be tried come September 16th. We intend to

make a motion next week that make the issue moot, that is, one of several malpractice claims from the intentional tort claim, the remaining claims. Which would eliminate a lot The prejudice

of the prejudice that I am concerned about.

that an adverse inference with regard to the corporate

- Motion Argument - Witz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


defendant is -- there is no way to separate that from our dentists, the adverse inference that we didn't produce, they didn't produce the performance review of Dr. Aman, which required him to, you know, told him to produce more. How could that be separated from Dr. Aman? It's, you know,

the information is to automatically go to him that he actually did it. He actually, you know, did what they told Now I don't know how you could I understand Your

him to do and produced.

make an adverse inference in this case.

Honor hasn't decided what that adverse inference will be. But I am sure it's going to be -- plaintiffs are going to ask for something along the lines of, well: to infer that there is bad stuff in it. The jury has

And if there is

bad stuff in that, they have to infer that the dentists then did that bad stuff. prejudicial. THE COURT: MR. FIRST: Okay. Thank you. Dennis First, I I think that's highly

Judge, if I may?

represent the Old Forba defendants.

Mr. Witz actually

expressed my concern of, I am afraid with this particular remedy or sanction, that there is a serious possibility of spillover against my clients. business. My clients sold this Some of the And a

The records went to New Forba.

records they are asking for are Old Forba records. lot of them have been produced.

And there is a claim that

- Motion Argument - First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 some of them haven't been.


I would be very concerned with

any charge that suggests some kind of inference from that. Because I think there should seriously be spillover against my clients. And it would be very hard to limit that from There are other

happening, with an inference.

possibilities, sanctions, if Your Honor is inclined to grant sanctions. THE COURT: MR. FIRST: THE COURT: What would you suggest? Well, I am not going to. Do you want me to consider something

else, tell me, tell me what to consider? MR. FIRST: I would observe out there, there are

monetary sanctions, for instance, that wouldn't have any direct impact on the trial of the matter but, you know, may be something Your Honor could consider. THE COURT: MR. FIRST: THE COURT: MR. FIRST: THE COURT: settlement. Monetary sanctions? Yes. All right. Thank you.

Thank you, Judge. Okay. So the only other issue is

Okay, so the Court is going to schedule a

hearing for the purpose of determining the scope of the adverse inference. And that theory will also address the And confirmation as to

issue of hearing -- the search.

whether or not all performance reviews in all cases have

- Motion Argument - Scheduling 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been turned over.


So I think for certain then, if Miss Zoller is the person who was the person who was able to testify, about her review, and it sounds like she is saying that: I looked through every single box, at one point in her affidavit, that she will be a necessary witness at that hearing. Because the Court needs to determine whether in And I think that

fact all of them had been turned over.

the affidavit was a little bit unclear about that, and what she has done to insure that every place has been checked. So, at the hearing, Miss Zoller will be required to appear. Okay. That's that. And I will do the order on

this case, on that motion. Okay. We have another motion. May it please the Court, Patrick J. Judge,


Higgins, representing the coordinated plaintiffs. this is a motion to dismiss brought by 10 of the

coordinated plaintiffs in the first three groups that came in, which is: The Angus, Johnson and Varano allegations. It is brought on

And the motion is basically two parts.

behalf of the parents and legal guardians to dismiss the affirmative defenses of certain defendants in those 30 cases that have alleged the parents are negligent, in that the parents should be held responsible comparatively negligent and put on the verdict sheet, things of that

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nature.


In our case, in our motion, we cited Holodook v. There has been no opposition And in

Spencer, and GUO [ph] 3111.

substantively as to those, that part of the motion.

other words, there is timeliness objections either early or late, but no party has cited anything that would indicate that that law does not control in this case. So we would

ask that the Court grant that aspect of the motion as to the 30 plaintiffs, 30 plaintiff parents and legal guardians. The next part of the motion is to the children, and what we have, 30 children. through 10. Zukowski. And they are in groups, 1

Group 11 is Zukowski, we didn't move under And within those 30 I mean,

It's coming along.

children, they are broken down into three groups. not groups, legally, but by age.

There are 15 plaintiff

children who were between the ages of one and four during the treatment. And would the Court like me to read those? No, no. I understand what your And I don't think there


position is with respect to those. is opposition with respect to those. MR. HIGGINS: Right.

And then, so the next group

is children who straddled, essentially, from ages one through seven at the time of treatment. of those. And then finally, we have children who were eight And there are 13

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion. MR. HIGGINS: premature motion. discovery. Okay. and nine and there are two of those Parker and Taberg.



you know, the opposition, I will rely on my papers for my moving arguments. three issues. Okay. But the opposition, basically, is two or

One, is that, well, this is a late motion.

And this Court, on April 4th at page 106 of the

transcript -THE COURT: You don't need to address that

The next part is that it's a

It's too early because, it hasn't been Only

This is a motion on the pleadings alone. So, discovery is not relevant.

on the pleadings. not relevant.

3212 is

And so that's our argument on that.

And then, really the issue is, their argument is basically saying, well, at a certain age, a child goes from non sui generis to sui generis, somewhere around, right after four, you know. don't really know. It's a factual question, so you

In other words, you know, there are

cases where a child's riding a bike, and he goes out into the street. So is the child old enough to know better?

Does he have a duty of care, the threshold? THE COURT: understand. I think that I just find difficult to

Are the defendants really going to try to Is that going to be your strategy at But be

blame the kids? trial?

I know you're opposing this motion.

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. realistic. It seems that you guys just like to fight.



you guys think that some jury is going to blame the kids for the treatment that they got from these dentists, I don't know what you're smoking. MR. HIGGINS: Well, just to follow up on that,

Judge, you know, and in one sense, it would be fine if they made that argument. THE COURT: Yes, I don't know why you're opposing

Let them argue that. MR. HIGGINS: THE COURT: MR. HIGGINS: THE COURT: MR. HIGGINS: Right. I just can't see a jury. I am just trying to. -- doing anything but getting mad. I am just trying to clean up But anyway, the

everything before we get to trial.

threshold cases Comardo v. New York, 247 NY 111, and the law is that: If there is only one instance of that can

arise on the pleadings, then it's a question of law for the court. care. And in this case, these kids did not have a duty of They were being strapped down by the dentist, They never had any control And

drilled on by the dentists. over their fate.

They never had a duty of care.

that's an issue of law. issue of law.

The scope of duty is always an

And in this case on the pleadings, the

complaint is very clear is that we are alleging, you know,

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 taken. Judge. THE COURT: MR. FIRST: Okay. Response?


excessive treatment, restraints, everything, that that is within the scope of a dental, a dental or professional conduct. Nothing that is like a child just deciding

whether to ride a bike down the street or anything like that. So for that reason, I mean, it's in our papers but

what we are saying is that only one inference can arise from this set of pleadings on this particular set of facts. THE COURT: MR. HIGGINS: I understand. That's our argument. Thank you,

First, Your Honor, your point is well

I think as a matter of trial tactics, if nothing

else, it's very unlikely that the children will be blamed for anything. By that said, you know, they are making an across-the-board motion here. And as they used a word sui

generis for kids over four, every one of these cases has a different set of facts. presentations. Different ages. Different And

Different care and treatment.

different sequelae.

So just to throw into one bag and say I

one result applies, just really isn't fair or correct. think that the cases have to be decided one by one. And

you know, there is, for instance, there is case law that we actually cited where a two year old was treated but the

- Motion Argument - First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case of course was brought much later. And there were


issues of comparative fault when the kid was 10, 15 years old, and the court said, well, that's actually relevant to whether there is comparative fault. these cases are also children. Many of these kids in

I am not saying there are But they

specific instances I can give you in these cases.

haven't given us any specific instance either, other than ages at the time of treatment. So I would suggest that the

issue deferred until it's ripe or if they want to fight it out on every case based on those facts, I think there is a very good chance that there will be stipulated to, on a particular case, on particular facts. THE COURT: to the parents. So you don't oppose it with respect

You don't oppose with respect to the But you oppose

children between the ages of one and four. it with respect to the older children? MR. FIRST:

It's a little more complicated I am talking

between the kids and one and four. theoretically. I admit that. Right.

They are much older now.


There are issues now that could raise

a comparative fault argument. THE COURT: counseling. that? For example, that they aren't getting

Is what you're suggesting, something like

- Motion Argument - First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know. THE COURT: MR. FIRST: So give me an example? MR. FIRST: THE COURT: It could be that.


That these 6 and 7 year olds ought to

set up appointments with a psychologist, for them to? MR. FIRST: THE COURT: still suffering from? MR. FIRST: In that example, I don't know, you Yes. -- to get treatment because they are

Well, I have to make it up, I guess.

I mean, it could be related to dental care, in terms of taking care of themselves, you know. THE COURT: MR. FIRST: THE COURT: MR. FIRST: THE COURT: Explain that one for me. Well. I am a very practical person. Yes. So I don't like having stuff that's And give you guys more

just floating out there and afloat.

fuel to take discovery on things that aren't relevant. Give me an example. MR. FIRST: To bring it closer to the case law in One

the Cunningham case, the two-year-old who was treated.

of the things that was brought out is that child refused to go to school. He was much older, of course. But he was

old enough to be accountable.

At least the Court felt for

- Motion Argument - First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 not going to school.


If a claim in this case is that, you

know, somehow this dental care caused him to not be able to attend school and, in fact, the fact so that he just has chosen not to go to school, I think an argument could be made. Again, I am making those facts up but I am getting

them out of the Cunningham case which we cited to you. THE COURT: MR. FIRST: Okay. Okay. Thank you.

MS. DEMICHIEL: Jessica DeMichiel. Poleon.

Good afternoon, Your Honor.

I am here on behalf of Dr. Kathleen

She is only alleged in this case to have treated -- Santos and Brandy Allstadt [ph] . Just by

two infants:

way of background,

A. Santos arrived at this clinic for

her treatments, they were treated by several different dentists over a -- she arrived needing three extractions and one pulpotomy. She was cited as having gross decay of

her teeth, meaning her parents had obviously waited to bring her to get the necessary dental care that she needed. Same thing with Brandy Allstadt. When she arrived for her

first treatment, she is cited as having gross decay as well. She needed seven pulpotomies and three extractions.

Now we have opposed the motion saying that plaintiff did not meet their prima facie case showing that just based on the pleadings that the case against the culpable conduct affirmative defense against the parents should be

- Motion Argument - DeMichiel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dismissed. You know, we said that as a whole that they


didn't meet their prima facie case.

Looking at, hold up

more closely, although the case held that in general there isn't a negligent supervision cause of action or culpable conduct affirmative defense, the Court indicia did talk about from the case from the duties arising from the parent/child relation, only a very few give rise to legal consequences for their breach. Parents are obligated in accordance with their needs and support to maintain their children, such as to furnish adequate medical attention to their child. that cited the Family Court Act, Section 1012. Now


Section 1012 of the Family Court Act, which gives us a cause of action to take away custody of the child, that states that a parent can't neglect the child. The neglect

is defined in the Family Court act as causing either physical or mental harm to that child as a result of failing to provide medical or dental care to their infant. In this case, that's what we would be alleging, as culpable conduct. And then Grivas v. Grivas, 113 AD2d

264, which cited Holodook in there, that court specifically held: Where a patient breeches a duty it owes to the world

at large, the doctor in a parental immunity doesn't shield the parent against apportionment and contribution as a consequence of that parental relationship.

- Motion Argument - DeMichiel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So for that reason alone, just based on the


pleadings, that was culpable conduct, affirmative defenses against the parents, shouldn't just be tossed out just on their dental records alone. It shows that the parents

obviously waited long after the child started having dental issues, long after a decay first appeared to even bring those children into the clinic. Then the records of the

infant show over time that decay continued and continued and continued. Many of them didn't bring their children

back for treatment in a timely basis when they were scheduled to do so. They sometimes waited months, So, to throw it out in the

sometimes years to do that.

pleadings alone and not have the opportunity at least, in Santos and Allstadt, to depose the parents to determine when did that decay start? the child back? How long did you wait to bring

Why didn't you bring them back in a timely That

manner when they were scheduled for appointments?

right there raises an issue of fact, and the motion to strike that affirmative defense should be denied. THE COURT: MR. HIGGINS: THE COURT: Thank you. Judge, may I just? No, let's hear if anybody else wants

to speak first on their behalf, then I will let you get back. Any other? MR. CAHALAN: We will rest on our papers on that

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion as well for Dr. Izadi and Dr. Azby [ph], Judge. MR. HIGGINS: Thank you.


Just with respect to

the last argument, Judge, that none of those arguments were raised in the motion record of this. So I don't know, I

have a two-page affidavit from Ms. DeMichiel which is undated which contains none of those arguments. I get any memorandum of law. We didn't

I don't know where those

arguments came from but I would ask the Court to disregard them because they weren't served on us before the return date. So, at any rate I think that all of those arguments, basically, if you look at the Howlett Docks [ph] case and the cases, we cited prejudice that negligence is not just out -- it's just barred. Where children

tragically die, where parents are letting their kids run out into the street, it's all gone. And you know, there is None of those

nothing in the record saying otherwise. papers were served upon us.

With respect to the Cunningham case, most of that cases on mitigation and damages -- and there are mitigation damages, affirmative defenses -- we haven't moved to strike those. those. It's causation defense, we haven't moved to strike There will be motions too, in limine, but that's a This is just on the comparative

whole different issue.

negligence, saying that these children had a duty of care

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to somehow, do what, to fight their dentists off? away? I mean, that's what this motion is about. THE COURT: MR. HIGGINS: THE COURT: grant the motion. order? MR. HIGGINS: THE COURT: Yes, Judge. Thank you. Okay. Okay. Thank you. All right. The Court is going to


To run

And Mr. Higgins, will you prepare an

So we have some

scheduling issues to address.

I have two letters One,

requesting some scheduling issues be addressed here.

Are there any rough estimates for time allotted for jury selection for plaintiff and defendant? Two, Whether the Court will take general requests from jurors to be excused before individual jurors be sealed, and attorney questioning begins? Three, The expected length of the trial. And Four, The editing and use of videotaped depositions at the Bonds trial. Okay. How

So, let's start with the plaintiffs first. long do you think you will be in drawing a jury? MR. HIGGINS: Well, Judge, I would like to

obviously move the case as quickly as possible.

We think

that we could probably get the jury picked in a day, maybe. Maybe if it spills over to the next morning or something,

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


you know, we don't want to spend all week picking a jury. THE COURT: Okay. Defendants' counsel, would one And then

person like to speak on behalf of the defendants?

anybody could stand up if they have disagreement with that statement. MR. FIRST: Judge, one of the problems here is

that, in Two, the trial lawyers for the defendants are not here. I am going to be trying the case. But it's a little

hard to address these issues.

I don't think it was

anticipated, although a letter was sent to Your Honor that these trial issues would be addressed today. think the trial lawyers may be more involved. Otherwise, I I think it's Maybe the

going to be hard to address these issues today.

Court can set it down for a conference to discuss these issues, or conference call. THE COURT: MR. WITZ: Okay. Judge, I did have an opportunity to I think a day Whatever might work.

speak briefly with our trial counsel.

and-a-half is simply not going to be enough, considering the number of parties involved. issues get tried together. Especially, if all these

I mean, he could see three or

four days of jury selection. THE COURT: I tell you that much. Well, that's not happening, I think. One of the things that I am

contemplating is drawing a jury on September -- September

- Motion Argument - (Scheduling) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9th.


The trial is scheduled to begin on September 16th.

And if there is anybody, would that be a problem for anybody if you start jury selection on the 9th? MR. HIGGINS: We are available, Judge, between

now and September, it's fine with us. MR. CAHALAN: Your Honor, counsel for the New He is down --

Forba defendants, he couldn't be here today. Kevin Hulslander, he is down in New York. calendar with me today. THE COURT: All right.

I don't have his

So I think what we are

going to have to do is probably going to have to set up a telephone conference call with trial counsel. all have my secretary's email address. I know you

I would like you to

at some point, by the end of the day tomorrow, email her. Actually, this is what I would like to do. would like to set up the telephone conference call. just going to pick a time. I We are

And if the actual trial counsel

is unavailable to participate in the telephone conference call, then they need to have somebody who is going to be versed enough in this trial in the issues to be able to discuss scheduling. their clients: And so everybody can go back and tell

I am inclined to draw the jury on the 9th.

And we will able to talk about whether it will go to the next day or not, with the trial not starting until the 16th. So we are going to set up a conference call to

- Motion Argument - (Scheduling) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be filing? discuss this scheduling on -- we will do that at 1:30 August 20th. Okay.


And I do know that pursuant to my trial

order of July 10th 2013, there were certain things that were not, for example, the witness list was not to be disclosed or could be disclosed on August 23rd. However, I

want everybody to know that they need to be prepared during this conference call to talk about: Jury selection; the

length of the trial; what witnesses they are expecting to call; as well as the lengths of time they expect that witness to be. We will talk about the videotaped

depositions and the -- months that we are going to use this. But I also want to know what videotaped depositions I'm not sure that we will talk

we are planning to use. about exhibits.

I know that people have motions in limine

that could be filed by August 23rd, returnable September 11th. Who has motions in limine that they are going to And I want to know what those are right now. MR. HIGGINS: one working on those. THE COURT: MR. HIGGINS: Okay. So I can first, from memory, let Okay, we do, Judge. And I am the

me, one would be excluding unrelated medical treatment from for the children.

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 now. THE COURT: MR. HIGGINS: of right now. Okay. may be? MR. HIGGINS: Yes, I am working on them right No. 2, would be to excluding any evidence of bankruptcy of the non-party Charles Bohn, who was the


father of Jeremy, and lives with Kelly, who is the mother. No. 3, would be excluding any evidence of prior involvement with the criminal justice system with Mr. Bohn, a non-party -- approximately 19 years removed. No. 4, would be barring any of the defendants from making any reference about the parents what we just dealt with. So that would be pretty much taking care of --

and I have an actual list that I am working on in my office. I could fax that by or email that by the end of

the day, Judge. THE COURT: But still, what these other motions

And I think that's all I can think So I think I

But there is about 10 of them.

have got half a list now.

So I can send the rest to you as

soon as I get back to my office today, if that's acceptable. THE COURT: MR. CAHALAN: Yes. How about the defendants?

Your Honor, I'm not the attorney in I can give some

my office working on the motion in limine.

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 degree of a list.


I can tell you one of the motions we are

working on is to bifurcate or phase the trial with malpractice, first, followed by other issues. And I believe they are making some similar motions to exclude evidence regarding settlement communications and prior litigation, evidence regarding prior investigations such as licensure investigations. believe there will be some motions in limine. THE COURT: investigation? You're talking about the government's I

And what happened with those? Yes. And I know that there are


some others but I could also, we could try and put together a list for you? THE COURT: MR. WITZ: Okay. We are making similar motions, Judge.

And in addition, plaintiff would disclose over three hundred document trial exhibits, many of which pertain to other clinics that have nothing to do with Syracuse or Jeremy Bohn. well. Again, we are working on several as well. upwards of 20, Judge. would like. THE COURT: MR. WITZ: Yes. Okay. But So those will be subject of some motions as

And we can get you a list, if you

- Motion Argument - Higgins 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:


I would like to have those lists to

me certainly by the end of the day tomorrow, of any motions in limine you're making. In retrospect, I was wrong to

push off the filing of those until August 23rd because I should have known that there would be a lot. MR. HIGGINS: Judge, I just remembered a few more

if you want to take them down. THE COURT: MR. HIGGINS: Okay. One is the fact that this child It's part

received Medicaid is not going to be contested. of the case.

But the fact that the family was on social

services, in general, and how long they were on social services, or that Chuck Bohn was out of work for certain periods of time, would be a motion in limine. Also the

fact that they have, Jeremy Bohn, after this happened, was hit by a car. So he's got another lawsuit out there. We

would be moving to preclude -- I think the case is Palmieri [ph] but we would be moving to preclude any evidence of another lawsuit. Oh, and the fact and how they got to or Okay. I think there

how they contacted their attorneys.

is some pretty good case law on that, so. THE COURT: MR. FIRST: to send you a list. THE COURT: Okay. Just if I could, just, I would like I could give you some of them. Yes. Why don't you give me a couple.

- Motion Argument - First 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FIRST: A lot of it has to do with the


actions of the New York State and the Federal government that resulted in the settlements that were entered into. There are some disciplinary proceedings against a couple of my clients, I would move to preclude. There are certain statements made by New Forba regarding Old Forba, and I would move to preclude. There are a number of, more that I would like to supplement it with a list to you by, you said, tomorrow? THE COURT: MR. FIRST: Yes. I will do that. Judge, I don't think either of


our clients are a party to the motion and trial. THE COURT: MR. GARVEY: THE COURT: Anybody in the back row? No, Your Honor. The other thing I wanted to explore Has a demand been made in this

is a settlement demand.

case, in the case that I am trying? MR. FRANKEL: THE COURT: MR. FRANKEL: Mr. Jeremy Bohn's case? Yes. I believe the fair answer to that,

Your Honor, is that in the context of a big settlement negotiation, which we have, I think, mentioned to you once when we first came to you a year ago to settle, we made local demands. We also presented a model that if you

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a demand.


applied that model to Jeremy Bohn, would be a number for Jeremy Bohn. As I think I mentioned before, we have been

told directly at least sometime ago, there was no interest in trying to resolve individual cases by the defendants. So, that's where we are, I believe, in fairness. not. We have

We made a global demand that had an ability through

the model to figure out what Jeremy Bohn's portion would be. We were told there is no interest in settling And that's where we have been and that's where


we are, as far as I know. THE COURT: Okay. Defendants? I guess I will

hear from the defendants for New Forba, Old Forba, and the dentists who are defendants in the Bohn trial. your positions with regard to settlement? MR. WITZ: We would be willing to take any What are

separate demand back to our client and discuss that, Your Honor. MR. CAHALAN: New Forba would certainly listen to

We haven't received anything from the Bohn case. MR. FIRST: I just would note, for Old Forba, we We were not part of I don't

were not parties to those discussions. that.

I don't know exactly what transpired there.

know the model that Richard is referring to, in any detail. I heard a little bit about it. But of course, you know, we

would welcome any individual settlement demand for the Bohn

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case, and I would report it. THE COURT: MR. FRANKEL: Okay.


Your Honor, if these gentlemen are

speaking for their clients and for their insurance carriers, then that's news to us. absolutely correct. What Mr. First said is

I stand corrected to the extent I was

putting his clients, they were not part of what I described. But, go back to our office, if they're

representing that they are carriers, and their clients are interested in negotiating, then we will have to evaluate what we do with respect to our case. we have heard of that. THE COURT: Okay. So, what I am going to do then But this is the first

is require you -- how much time would you need to put together a written settlement demand for defendants, for this case? MR. FRANKEL: THE COURT: MR. FRANKEL: For just Jeremy Bohn's case? Yes. Three or four days? I think the

issue really has to do, from our standpoint and theirs, really, as to what the consequences of that may be on other cases. And that's all, in all candor, Your Honor, and

that's part of the stance -- still, we had until now, like say until five minutes ago, for the past, certainly, the past year-plus, since the subject of settlement first came

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


up, we were told point blank by the lawyers representing Mr. Cahalan and Mr. Witz's client, as a group, that we are only interested in -- we are not interested in talking separately. THE COURT: Okay. So, would the defendants

entertain a global settlement offer? MR. WITZ: Your Honor. I wasn't involved in this

MR. CAHALAN: conversation. time.

And I didn't speak with anyone ahead of

I think our position is, if they have a settlement

demand for a case, it's our obligation to take it back to our client. THE COURT: Well, do you have any reason to

believe your clients are unwilling to settle under any circumstance? Because I think that's the point that Mr. That he doesn't want to make a global

Frankel is making.

demand, where an individual demand, he hadn't specifically made, because it was his understanding you would not consider an individual settlement demand. And so, my question to you, with respect to the Bohn case, are you willing to entertain it? Yes. Now my question is: And you said,

Should I have him prepare Whether it's the

another global settlement demand to you?

same demand or not, if there has never been a positive response, I guess, I don't know. But, you know, my job is,

- Motion Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


as the judge, is not only to try the case, and to decide all the millions of motions that you guys make but to see how if you can get it resolved, too. And I haven't

exercised that to any degree in this case because I have just been dealing with your motions. Clearly, that's

something that should be explored in every case. MR. CAHALAN: I think maybe the thing to do is I

would be happy to go back and talk to my client about that, see if they have some reservation about, whether it's global or individual, in the Jeremy Bohn case. do is ask them. All I could

Maybe we could get back to the Court with I know we need to report back Maybe we could, or you

some information on that.

with the list of motions in limine.

could call up the Court and say, yes, our client is interested or no. THE COURT: Well, everybody is going to be faxing

me, only going to be the defendants in the Bohn case who are going to be faxing me the list. I am going to, I am going to require that you submit a written settlement demand, both the global one and an individual one, to the defendants. And you know, you I am not

tell me when you think you could do that by. asking you to bid against yourself.

If you made a demand

already, globally, you can utilize that one. MR. FRANKEL: They have pled the absence of their

- Motion Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 colleagues on things.


They weren't ready to discuss that I am asking, as Your Honor It's

on this particular issue.

knows, there is a team -- of lawyers working on this.

a very significant issue that, as I say, we never, never thought that until five minutes ago. commit our team. So I am reluctant to

Just give me a couple of days to find out I wasn't ready to

what our position is going to be.

discuss settlement at this meeting and hadn't talked to my colleagues about it. I reported as best I can where we I mean, it's been "Forget And "We are going to

have been and it's been nowhere.

that, we are going to try the case."

try some cases and then we will see what happens." And I will say this, Your Honor, for whatever it's worth, you have been a lawyer as long or longer than me, but particularly in these group cases, typically, that's all I can say, typically, the defendants at some point decide: get resolved. We want to explore whether this case could They did that 15 months ago. You guys mediated -In a mediation where we had jams And it was an And it's their


and days of sessions in New York City. expensive exercise that went nowhere. money. can.

And if they want to try to resolve the case, they If they don't, well, that's why we have juries. And

we are certainly prepared to go either way.

- Motion Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


But, we are reluctant to treat it just like any single case. Okay. Let's just make a demand. Given where

we have been already, which is nowhere, having spent a lot of money through a mediation, gotten nowhere, being told point blank we are going to negotiate on a group basis, and only we are not interested in anything else. fine. Okay, that's

Unless the real decision-makers say, no, that's not

what we are -- we changed our mind. THE COURT: MR. FRANKEL: THE COURT: MR. FRANKEL: Well, that oftentimes happens. Sure. -- in for a trial. No question it does. Usually on

that particular issue, whether they want to negotiate separately or not, pretty unusual to change. It could.

But these gentlemen don't have the benefit of, they can't make that decision. They have got to ask people who have

already made statements and commitments, so. THE COURT: Okay. So what I want is every

defense counsel to submit a letter by the end of Friday as to whether or not their clients will entertain a settlement, a global settlement demand. And then with

respect to the Bohn defendants, whether their clients also include a statement as to whether or not you will entertain an individual case settlement demand. will you need? Then, how much time

Because I think you should be working on

- Motion Argument - (Scheduling) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 getting together that even before you get to this on Friday. MR. FRANKEL: THE COURT: Yes.


But, how much time would you need to Knowing that what you

put together a demand after that?

have already done at least one demand. MR. FRANKEL: Right. I would think, when I

talked to my colleagues this afternoon, I would think by next, let's say, next Wednesday? THE COURT: MR. FRANKEL: Okay. Next three or four days after they

tell us, if they say, Yes. Now, to just get a little bit more specific, when you talk about a global demand, Your Honor, let me just make sure you know what the facts are because it impacts this whole discussion. We represent approximately 35

children who have actually filed claims, filed cases in New York. We represent probably five hundred other children in

New York whose claims are not subject to limitation problems. And so, we are using these 35 to see where we go But we represent those. We represent, we

on litigation.

or other counsel, represent a substantial number of clients in other jurisdictions. When we negotiated before, not to

say that we couldn't do it differently here, when we negotiated before, this concept of a global settlement and

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


it's important when you have got insurance that's driving all this and there is a limited fund, was intended or the discussion was okay, there are X-hundred cases or a thousand cases. We need to bring them all into a

settlement arena and see whether we can resolve this litigation. Including, what they said. And again, not

uncommon for defendants in the position they are in, we don't want to pay the money to one group, and then start to get sued again by a bunch of other people. Or, pay some of

your clients, and then you use that money to go bring more cases against us. In the instance of a dentist, they typically have each three million dollars worth of coverage. As regarding

the corporate defendants, there is dispute as to how much coverage they have. But, where that all leads is If you're going to --

attempting to rein in everything.

the insurance company's attitude is if you're going to do this, we want to stop paying for all these lawyers to come to hearings and try cases, and use the money to try to resolve litigation. We don't want to do some of it and

then have other litigation. THE COURT: MR. FRANKEL: I understand. So in terms of a global settlement We can make that as broad or as But it's the demand we

offer, we are making that.

narrow as Your Honor has requested.

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


made in the settlement mediation that did not include Mr. First's clients, was included, for example, it included lawyers who have lots of cases out in Oklahoma or Ohio. They were part of this whole thing because that's what was requested by the insurance company. the fold. Bring everyone in to

So, I don't know what exactly what you mean by

global settlement? THE COURT: So you're saying that you couldn't, You couldn't,

you couldn't put a global settlement demand?

you couldn't make one with respect to cases you don't represent the parties in, right? MR. FRANKEL: Couldn't do that. But what I think

is more important is that when they are being asked, would they entertain a global settlement demand, we need to be real specific as to what are we talking. When we say

global settlement demands, are we talking about clients represented in New York? represented by our firm? we know that's out there? THE COURT: Are we talking about clients Are we talking about every case Yes or no?

So the defendants, you need to be We will

specific in your letter that I get on Friday.

entertain a settlement demand with respect to those cases in the lawsuit, that lawsuits in New York, separately. We

will entertain a settlement demand in cases that, including the five hundred plaintiffs who have not sued yet. You

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 try. MR. FRANKEL: THE COURT: Sure. If I can't settle it, okay. All


need to specify specifically what your clients are willing to entertain a demand as to: We are willing to entertain a

demand as to all the lawsuits throughout the country, no matter who the lawyers are? Obviously, you're not going to get a demand in response to that. But, respond what you're willing to And that In

entertain, your clients are willing to entertain. way you will be in a position to be able to decide. response to No. 1, this is my demand.

In response to No.

2, I can't give you a demand, or whatever. MR. FRANKEL: We could. And much more like

mediation, Your Honor, I think we are of course willing to explore all of this, if we sense there is good faith on their side. I am skeptical only because of a very strong

statements that it's "all or nothing." THE COURT: demand, in my view. MR. FRANKEL: THE COURT: Okay. It helps the Court out a lot, if I am But it doesn't hurt to give, make a

able to settle this case. MR. FRANKEL: THE COURT: Sure. If we are able to. I am going to

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 apologize. right? MR. FRANKEL: THE COURT: MR. FRANKEL:


I have one other thing, if I could? Yes. I know it's lunch time, I

On the subject we are talking about, on August

the 20th, one thing that's very important on the video depositions that's now raised its head in the last few days is that there are four witnesses, two names came up in an earlier motion. Knott and Andrus, where we want to We did take the And

question those witnesses live. depositions.

We did take the videotaped depositions.

for Andrus, Knott, Lindley and Smith -- Lindley and Smith being the two high level executives at New Forba, Knott and Andrus being vice-presidents at both New Forba and Old Forba. And so they are very important witnesses. Their

names are all over a lot of the documents that were represented on the summary judgment papers. We know that

Dr. Andrus and Knott, when they left the company, signed cooperation agreements, severance agreements, agreeing to cooperate including show up for testimony. We served

subpoenas on Mr. Hulslander and Mr. Cahalan, actually on the companies where they worked who have control, contractual control over them and are being told, well, we don't have control over them. So we need some ruling or guidance on this to

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know whether we need to be editing tapes for these gentlemen or what, or view.


And we pointed out the law to

them that, no, they have got a contractual obligation to rein them in. They have the right, they have control. And

therefore the subpoena that we have served on them obligates them to exercise that control. And in order for

us to know whether we have to do the tapes, we don't want to. If some, if there is some basis for they can't bring

them, despite the subpoena, we need to somehow flush that out or we are going to be scrambling at trial on these videotapes, are going to be used or not used? And we want

to bring it to Your Honor's attention now, not a month from now. THE COURT: All right. So, Mr. Cahalan, I need

you to find out whether or not you are going to be producing Knott, Andrus, Lindley and Smith for trial. you were going to talk about witnesses on Tuesday. will address that issue. And

So we

But you need to find out whether

they will be testifying live or not. MR. FRANKEL: Just so Your Honor is clear, they We have said, we have And that's the

told us, no, we can't bring them.

got a subpoena, you have got to bring them. issue. or not. them.

It's not so much, well, do they want to bring them They basically told us they don't want to bring

But we don't -- we would much rather for the jury to

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25


see them, and cross-examine them live, than they have to watch a tape. THE COURT: You're asking me to rule on a I don't know whether you properly

subpoena I haven't seen? served them.

I don't know the basis for how I could compel

them to come without knowing this subpoena, what your legal basis is for me to require them to come. MR. FRANKEL: THE COURT: All right. I guess that would be the subject of That's not getting

a motion in limine, unfortunately. heard until September 11th. MR. HIGGINS:

Judge, could we bring on an order

to show cause just to, you know, compel the subpoena? Would that be a way that we could get a ruling before that time? THE COURT: I am not sure I understand. So I

sign a show cause order but I would make it returnable September 11th? You're saying you would want me to make it

returnable on a different day? MR. HIGGINS: asking, if possible. Yes, if the Court could? I am just

Just a request.

And at least if I

could get it, you know, tee it up earlier, get at least, we could get it resolved one way or the other earlier. would probably benefit Mr. Cahalan. Which

If we went -- he is

going to bring his people in, he is going to have to prep

- Motion Argument - Frankel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. for trial. videotape.


If he wins, they are -- we are going to cut the Either or. MR. FRANKEL: It just seems to me that's why I

raised it today, it just seems me that that's an issue that needs, in the context of trial management, whether we sit there and say who are the ones going to be, you said we have these four people. If we have to play a videotape, But

the testimony is probably going to be a lot shorter. the jury is, you know, it's not going to be nearly as effective. live. And we think we have a right to bring them

And we have a dispute.

So, we will present, prepare

something for Your Honor's consideration. THE COURT: Okay. Thank you.


Your Honor, I just have one quick

I am sure there is many attorneys here who are As far as jury selection goes,

going to be at the trial.

will that be somewhere if you're an attorney who is a party to all the -THE COURT: I am sorry. Sure. You're talking too fast.


I am sure there are a lot

of attorneys who are involved in the Small Smiles litigation in New York that don't necessarily have a defendant in the first case going to trial, but are going to be monitoring the trial as it proceeds. Is jury

selection in your court open to those attorneys attending?

- Adjourn 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 C E R T I F I C A T E Or will it be closed off just to the attorneys who are involved? THE COURT: The courtrooms are open. Okay. Thank you very much.



She is not going to get to ask

Thank you, Judge.

(End of Motion argument at 1:08 p.m.) * * *

I, Patrick J. Reagan, a Senior Court Reporter, Fifth Judicial District, State of New York, do hereby certify that the foregoing is a true and correct transcript of my stenographic notes, to the best of my ability, taken in the above-entitled matter, recorded at the time and place first above-mentioned. Date: ____ _____________________________ Patrick J. Reagan, CSR, RDR 250 Criminal Courts Building 505 South State Street Syracuse, New York 13202 (315) 671-1086