2011-00100121-CU-PO
Flora Ferrari vs. Vitas Innovative Hospice Care
Nature of Proceeding:
Filed By:
Motion for Protective Order Re: Depositions
Wells, Kim M.

Vitas Innovative Hospice Care’s Motion for Protective Order Re Depositions of Timothy
O’Toole, CEO and Chief Operating Officer, and Peggy Pettit, Executive Vice President,
is granted. CCP 2025.240.

Plaintiffs allege that Defendant wrongfully admitted Mrs. Ferrari into its
hospice program, failed to detect and treat pressure sores and failed to perform basic
assessments, failed to monitor Mrs. Ferrari and to detect her pressure injury before the damage was severe, failing to chart the condition of her wound after it developed, and
failed to take action when the wound was deteriorating. (Third Amended Complaint 22
– 25.) Plaintiffs further contend that defendants’ supervisors’ absence of supervision
and training of their care-givers created the conditions that allowed this reckless
neglect to occur. Plaintiffs contend Vitas made a decision to under-staff the program
for the express purpose of maximizing profits at the expense of patient care.

Plaintiffs served deposition notices for Timothy O’Toole and Peggy Pettit two months
before the then-trial date, April 14, 2014. Both deponents live in Florida and the
depositions were unilaterally set for February 26, 2014. Vitas seeks to prevent the
depositions of these apex level employees on the grounds that Timothy O’Toole, Chief
Executive Officer and Chief Operating Officer, and Peggy Pettit, Executive Vice
President, are high level corporate officials at the apex of the corporation, and plaintiffs
have not and cannot met the burden set forth in Liberty Mutual Ins. Co. v. Superior
Court (1992) 10 Cal.App.4″‘ 1282 to depose these individuals.

The Liberty Mutual court held that, “it amounts to an abuse of discretion to withhold a
protective order when a plaintiff seek to depose a corporate president, or a corporate
officer at the apex of the corporate hierarchy, absent a reasonable indication of the
officer’s personal knowledge of the case and absent exhaustion of less intrusive
means of discovery.” Id. at 1287

Plaintiff has not engaged in any less intrusive means to determine whether or not
these two individuals have any unique knowledge, such as written interrogatories.
The Court recently granted Vita’s motion for protective order holding that plaintiffs were
not entitled to personnel files of the apex employees who had no direct involvement in
the care of decedent. (See minute order March 21, 2014.)

Plaintiffs contend that the budget was “ultimately” set by O’Toole with input from Peggy
Pettit, that O’Toole determined bonuses for Vitas’ managers based on how well they
adhered to the budgets, O’Toole has superior knowledge about the DOJ investigation
relating to the claim that Vitas admits patients who are not hospice eligible, Peggy
Pettit was the supervisor over Sacramento operations, and Peggy Pettit reported to
Mr. O’Toole. However, a review of the declaration of Dudensing does not establish
that the two individuals sought to be deposed have unique knowledge about this case
or staffing issues, nor does is specifically explain why the other depositions of less
high level employees were insufficient to obtain specific information needed by
plaintiffs, or that less intrusive means would not result in the desired information.
These methods could include interrogatories directed to the high-level employee to
explore the state of his or her knowledge or involvement in plaintiff’s case and staffing
issues; the deposition of lower level employees with appropriate knowledge and
involvement in the subject matter of the litigation; and the organizational deposition of
the corporation itself, which will require the corporation to produce for deposition the
most qualified officer or employee to testify on its behalf as to the specified matters to
be raised at the deposition [see related motion on today’s calendar re the PMQ].

Should these avenues be exhausted, and the plaintiff make a colorable showing of
good cause that the high-level official possesses necessary information to the case,
the trial court may then lift the protective order and allow the deposition to proceed.
Liberty Mutual, supra.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.