1 in the court of common pleas cuyahoga … in the court of common pleas cuyahoga county, ohio 2...

1 IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

2

ESTATE OF LEONA MAXIM, §

3 etc., §

Plaintiff, § CASE NO. CV 15 845038

4 §

VS. § Judge Shirley Strickland

5 § Saffold

KINDRED NURSING & REHAB - §

6 STRATFORD, et al., §

Defendants. §

7

8

9

10

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11 ORAL DEPOSITION OF

ERNEST TOSH

12 JULY 27, 2016

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13

14

15 ORAL DEPOSITION OF ERNEST TOSH, produced as a

16 witness at the instance of the Defendants, and duly

17 sworn, was taken in the above-styled and -numbered cause

18 on July 27, 2016, from 10:31 a.m. to 11:55 a.m., before

19 Angela L. Mancuso, CSR No. 4514 in and for the State of

20 Texas, reported by Stenographic method, at the offices

21 of Veritext Legal Solutions, 300 Throckmorton Street,

22 Suite 1600, Fort Worth, Texas, pursuant to the Ohio

23 Rules of Civil Procedure, Notice, and any provisions

24 stated on the record.

25 Job No. 2345672

Veritext Legal Solutions800-567-8658 973-410-4040

1 A P P E A R A N C E S

2

FOR THE PLAINTIFF:

3

MR. WILLIAM B. EADIE

4 SPANGENBERG, SHIBLEY & LIBER

1001 Lakeside Avenue, East

5 Suite 1700

Cleveland, Ohio 44114

6 (216) 696-3232

[email protected]

7

8 FOR THE DEFENDANTS:

9 MR. PAUL W. McCARTNEY

BONEZZI SWITZER POLITO & HUPP CO. L.P.A.

10 312 Walnut Street

Suite 2530

11 Cincinnati, Ohio 45202-9914

(513) 345-5501

12 [email protected]

13

14

15

16

17

18

19

20

21

22

23

24

25


1 INDEX

PAGE

2

Appearances...................................... 2

3

ERNEST TOSH

4

Examination by Mr. McCartney..................... 4

5 Examination by Mr. Eadie......................... 44

6 Changes and Signature............................ 50

Reporter's Certification......................... 52

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15

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23 REPORTER'S NOTE:

Quotation marks are used for clarity and do

24 not necessarily reflect a direct quote.

25


1 P R O C E E D I N G S

2 (July 27, 2016, 10:31 a.m.)

3 (Witness sworn by reporter)

4 ERNEST TOSH,

5 having been first duly sworn, testified as follows:

6 EXAMINATION

7 BY MR. McCARTNEY:

8 Q. Would you please state your full name.

9 A. Ernest Charles Tosh.

10 Q. Mr. Tosh, my name is Paul McCartney. I

11 represent the defendants in the lawsuit that's been

12 filed on behalf of the estate of Leona Maxim, in the

13 Court of Common Pleas of Cuyahoga County, in Ohio. I'm

14 going to be taking your deposition today.

15 Have you given a deposition before?

16 A. Yes.

17 Q. On how many occasions have you given depos?

18 A. One other one.

19 Q. And in what circumstances did you give that

20 deposition?

21 A. Similar to this one. It was a testifying

22 expert about CMS cost reports.

23 Q. And when did you give that deposition?

24 A. Earlier this spring.

25 Q. Do you recall the name of the case?


1 A. I do not remember the case. The plaintiff's

2 attorney on that case was Joseph Earley from Paradise,

3 California.

4 Q. Do you remember the name of the defense

5 lawyer?

6 A. Tom Hall.

7 Q. I assume, also from California?

8 A. Yes.

9 Q. Do you remember -- did it involve a skilled

10 nursing facility or nursing home?

11 A. Yes, it did.

12 Q. Do you remember the name of the nursing home?

13 A. No.

14 Q. Do you remember whether it was part of a

15 company of nursing -- that owned several nursing homes

16 or operated several nursing homes?

17 A. Yes, it was.

18 Q. What was the company?

19 A. Lifehouse. I think that's one word,

20 L-i-f-e-h-o-u-s-e.

21 Q. Had you ever heard of Lifehouse before you

22 gave a deposition in that case -- or were retained in

23 that case, I should say?

24 A. No. I'm not familiar with them.

25 Q. You are a licensed attorney?


1 A. Yes, sir.

2 Q. How long have you been a licensed attorney?

3 A. Twenty-six years.

4 Q. What is the nature of your practice?

5 A. Medical malpractice here in Texas, primarily.

6 Q. And do you have a specialty? Is there

7 concentrations within the field of medical malpractice?

8 A. Yes. Nursing home litigation.

9 Q. What percentage of your practice would you

10 estimate -- of your attorney practice would you estimate

11 is nursing home litigation?

12 A. Ninety percent or so.

13 Q. Have you ever sued a Kindred facility?

14 A. Yes.

15 Q. On how many occasions have you sued a Kindred

16 facility?

17 A. I would estimate maybe three or four times. I

18 don't think it's more than that.

19 Q. Do you have any cases presently active against

20 a Kindred facility?

21 A. I could not tell you. I'm not exactly sure.

22 I know we settled one recently with Kindred. But I

23 don't know if I have any current ones against Kindred.

24 Q. Have the three to four cases that you've had

25 against Kindred facilities, have they involved nursing


1 homes or some other kind of facility or service?

2 A. The two most recent ones, I believe, were

3 postacute care hospitals.

4 Q. Healthtex?

5 A. Yeah. Not specifically nursing homes like

6 SNFs. I'm not -- I'm not sure that we've ever -- I'm

7 not sure that Kindred has any SNFs in Texas. If so, I

8 don't think I've sued an SNF that was a Kindred

9 facility.

10 Q. How long have you been doing nursing home

11 litigation as an attorney?

12 A. About five years.

13 Q. What made up your practice before you filled

14 in that 90 percent?

15 A. I was board certified in criminal law and had

16 been both a prosecutor and a defense attorney; and then

17 a friend introduced me to nursing home litigation, and

18 it was kind of like crack and I got addicted.

19 Q. Would you have an estimate as to the number of

20 pending cases you have against nursing homes?

21 A. My law firm, which is not just me doing it,

22 we've got three attorneys that do nursing home

23 litigation. I think we currently have about a hundred

24 pending nursing home cases.

25 Q. Before approximately five years ago, had you


1 handled any nursing home cases?

2 A. No.

3 Q. As an attorney, I should say?

4 A. No.

5 Q. And the two most recent cases that you settled

6 with Kindred, do you recall the name of the attorney for

7 Kindred?

8 A. No.

9 Q. Were those cases pending in the

10 Dallas-Fort Worth area?

11 A. Yes.

12 Q. Have you ever sued a Kindred facility outside

13 of the state of Texas?

14 A. I don't believe so.

15 Q. Do you practice at all outside the state of

16 Texas?

17 A. I am not licensed outside of Texas, but I do

18 have some cases that I work on outside of Texas with

19 local counsel there. Mississippi, I think I have one

20 case in Oklahoma, and maybe one case in Colorado.

21 Q. Do any of those cases involve a Kindred entity

22 as a defendant?


24 Q. Now, you mentioned that you've given one

25 deposition in the past related to a staffing issue as an


1 expert.

2 Have you ever testified in court as an expert

3 on staffing issues?

4 A. I have not.

5 Q. How many cases have you been retained,

6 approximately, to look at in terms of analyzing whether

7 there was a staffing issue in a nursing home?

8 A. I would say in excess of 500.

9 Q. Have any of those in the past involved a

10 Kindred facility?

11 A. Yes.

12 Q. Were any of those in suit?

13 A. I would -- I would believe some were, but I'm

14 not exactly sure.

15 Q. Did you submit reports in any of the other

16 cases involving a Kindred facility?

17 A. That would kind of depend on what you mean by

18 a report. I do a lot of spreadsheet work where I

19 analyze all their cost report numbers. And if that's

20 considered a report, then every one of those cases would

21 have a report. As far as a more detailed, like written

22 summary, like a designation by an expert, there has only

23 been a handful.

24 Q. I'm looking for something more along the lines

25 of what you did in this case.


1 A. Okay. Then probably three or four.

2 Q. Have any of the other cases in which you've

3 done a report involved a Kindred facility?

4 A. No.

5 Q. Do you remember the names of the companies

6 involved in the other cases?

7 A. No, I do not.

8 Q. Other than maybe you gave -- did you do a

9 report in the case you gave a deposition in?

10 A. Yeah. Lifehouse. Uh-huh.

11 Q. How long have you been working analyzing as a

12 non-attorney, so to speak, staffing levels at nursing

13 homes?

14 A. About five years.

15 Q. And is that through -- was it Full Financial,

16 LLC?

17 A. Yes.

18 Q. Does that have a Web site?

19 A. No.

20 Q. What is Full Financial, LLC?

21 A. That is a LLC that I own that basically does

22 the financial analysis on SNFs.

23 Q. And how did five years ago you get into doing

24 this analysis?

25 A. At that time, a good friend of mine needed


1 some assistance in reading and trying to understand cost

2 reports, and he knew that I had a financial background,

3 and so we went to lunch and he showed me some cost

4 reports, and I went through them with him, and his law

5 firm asked if they could hire me to do some consulting

6 on that. And I agreed. And that's how it started.

7 Q. To date, do you know of any cases which you've

8 been retained in which you've been precluded as serving

9 as an expert by a Court?

10 A. No.

11 Q. Do you know of any cases in which the Court

12 has held that you are an expert on staffing issues in

13 nursing homes?

14 A. No.

15 Q. And I'm saying nursing homes. You're saying

16 SNFs or SNFs?

17 A. Right.

18 Q. We're talking the same thing, right?

19 A. Exactly.

20 Q. Okay. You understand what I mean when I say

21 nursing homes?

22 A. Yes.

23 Q. And I understand what you mean when you say

24 SNFs or SNFs. All right?

25 A. Yes, sir.


1 Q. So what is your background that leads you to

2 believe that you're an expert in determining whether

3 staffing is adequate or not in a nursing home?

4 A. My educational background is that I have a

5 Bachelor's of Business Administration in finance with

6 significant hours in economics, accounting, mathematics,

7 and computer science.

8 With that educational background, I'm able to

9 look at the cost reports and the information provided by

10 the federal agency that oversees nursing homes, CMS, and

11 do a comparison and analysis based on that publicly

12 available data.

13 Q. When did you graduate from college?

14 A. 1987.

15 Q. Other than over the last five years doing

16 these staffing analyses, have you been involved at all

17 in finance since you graduated in 1987?

18 A. I would say yes in that I've run law firms in

19 the past that I've been a member of, you know. So as

20 far as that portion of it, yes. I did not ever take my

21 degree and go into stockbroking or banking or anything

22 like that that you would normally do with a finance

23 degree.

24 Q. Do you have any kind of background in the

25 nursing home industry?


1 A. Not outside of doing this analysis and the

2 litigation that I've been involved in.

3 Q. Never been licensed as a nursing home

4 administrator?

5 A. No, sir.

6 Q. Never worked for a nursing home company at

7 all?

8 A. No, sir.

9 Q. Have you had anybody review the process by

10 which you go about analyzing staffing levels to

11 determine whether it's a sound process or not?

12 A. I have discussed it with a couple of CPAs, but

13 I wouldn't say that I hired them to analyze it.

14 Q. You are not a CPA; is that correct?

15 A. No, I'm not.

16 Q. You do not have an accounting degree; is that

17 correct?

18 A. That is correct.

19 Q. Do you know of any literature out there that

20 has suggested the method that you follow is an

21 appropriate method in terms of determining or analyzing

22 whether staffing is appropriate in a nursing home?

23 A. Yes. It's the -- if you consult the Technical

24 Users' Guide for CMS's Five-Star Rating System, the --

25 basically their methodology is what I use.


1 Q. What is the Five-Star Rating System?

2 A. It is CMS's way of comparing nursing homes,

3 where they grade them on their RN staffing, overall

4 staffing, health inspections, quality measures, and then

5 all of those are then used to calculate an overall star

6 rating between 1 and 5.

7 Q. Would you agree with the following -- agree or

8 disagree with the following statement: Nursing staffing

9 levels are just one part of staffing; the actual skill

10 and turnover of the staff are also important and aren't

11 represented in the numbers in the Five-Star System?

12 A. Yes, I would agree with that statement.

13 Q. Are the numbers that CMS -- in the Technical

14 Users' Guide that you referenced, are the numbers in

15 terms of staffing, are those required numbers? Expected

16 numbers? Suggested numbers? Recommended numbers?

17 A. CMS phrases it as expected staffing.

18 Q. Would you agree with me that expected is not

19 the same as required?

20 A. Yes.

21 Q. Would you agree with me that in terms of

22 staffing levels, what is required of a nursing home is

23 to do what a reasonable nursing home would do under like

24 or similar circumstances or conditions?

25 A. Yes.


1 Q. And in terms of the expected staffing levels

2 through the Technical Users' Guide from CMS, do you have

3 any idea what percentage of nursing homes in the

4 United States meet those expected numbers, exceed those

5 expected numbers, or are below those expected numbers?

6 A. No. I'm not aware of those.

7 Q. Are there facilities that have appropriate

8 staffing yet don't meet the expected number from the CMS

9 Technical Users' Guide?

10 A. I don't think -- could you explain what you

11 mean by "appropriate staffing"?

12 Q. Staffing that is reasonable for a nursing home

13 under like or similar circumstances or conditions.

14 A. That doesn't meet CMS's expected staffing

15 levels?

16 Q. Yes.

17 A. I don't think so.

18 Q. So in your mind, the expected levels are the

19 floor for what a nursing home must do in terms of

20 staffing?

21 A. Correct.

22 Q. Has CMS ever held that?

23 A. Have they issued a statement that says that?

24 Q. Yes.

25 A. Not that I'm aware of.


1 Q. Do you know of any Court in the United States

2 that has held that the expected staffing levels from the

3 Technical Users' Guide from CMS creates a floor for the

4 amount of staffing a facility must have?

5 A. I'm not aware of a ruling either way on that,

6 no.

7 Q. Are you aware of any kind of study that has

8 looked at the expected levels from the CMS Technical

9 Users' Guide and determined whether or not the failure

10 to meet the expected levels increases the chances of a

11 resident suffering any kind of injury as a result?

12 A. Yeah. I believe there is actually -- in the

13 Technical Users' Guide there is a reference to a study

14 performed by a group out of California led by a -- I

15 believe it's an RN by the name of Harrington that

16 discusses increased injuries when staffing levels are

17 lower.

18 Q. And if I remember correctly, that article

19 didn't directly look at the CMS expected user guide. Is

20 that correct?

21 A. Right. Right. I don't think -- yeah, it's

22 referenced in the users' guide. So I don't imagine it

23 was the basis of the investigation.

24 Q. And wasn't the premise of Harrington's

25 article -- is that the 2004 article that you're


1 referencing?

2 A. I believe that's correct.

3 Q. Wasn't the premise of the -- the conclusion of

4 the article more that facilities with more staffing have

5 lower injury outcomes, so to speak?

6 A. I believe that is the general premise, yes.

7 Q. I don't remember. Did they actually suggest

8 an actual number of what staffing should be?

9 A. Like a State minimum type of number?

10 Q. Yes.

11 A. No. I don't think they ever did that.

12 Q. And I think I asked you this question. You've

13 taken depositions, too, I'm sure.

14 A. A few.

15 Q. And I'm sure you've been in a situation, too,

16 where you're not sure if you asked a question, so you

17 repeat it. So if I'm repeating a question, you can even

18 say, Paul, you already asked me that one, and I'll say

19 okay.

20 Do you have any information as to what

21 percentage of nursing homes in the United States are

22 meeting or exceeding the expected staffing levels from

23 the CMS Technical Users' Guide?

24 A. No.

25 Q. Now, CMS in that -- CMS has the power to


1 regulate nursing homes to a certain extent; is that

2 correct?


4 Q. And one of the things they would look at for a

5 nursing home in terms of deciding whether they could be

6 a Medicare or Medicaid provider is whether or not the

7 staffing levels are sufficient; is that correct?

8 A. Correct.

9 Q. And they could choose to decide that a

10 facility would no longer be a Medicare or Medicaid

11 recipient if they believed the staffing levels were

12 insufficient; isn't that correct?

13 A. Yes.

14 Q. Do you know how many nursing homes in a given

15 year they revoke their ability to be Medicare or

16 Medicaid providers based on staffing alone?

17 A. No.

18 Q. Do you know whether -- and I'm going to call

19 it Stratford. You know what I mean? That's Kindred --

20 the facility Kindred Transitional Care and

21 Rehabilitation - Stratford?

22 A. Correct.

23 Q. I'm going to call it Stratford so I don't have

24 to say all that.

25 Do you know whether Stratford ever had its


1 ability to be a Medicaid or Medicare provider revoked

2 because it was not providing adequate staff?

3 A. I do not know.

4 Q. And how often does CMS take a look at a

5 facility to determine whether or not it's providing

6 appropriate staff?

7 A. I believe it's once a year when they do their

8 inspection.

9 Q. Now, you agreed to the statement earlier that

10 staffing is just but one component -- or the level of

11 staffing is just one component of staffing.

12 Would you agree there are situations in which,

13 because of the staff and how the staff are allocated,

14 they might be below the CMS Technical Users' Guide's

15 expected level of staffing and still providing

16 reasonable care?

17 A. Are you asking is it possible or probable?

18 Q. I'm asking if it's possible, and then I will

19 ask you if it's probable.

20 A. Okay. I will say it's possible.

21 Q. You do not believe it's probable?

22 A. I do not believe it's probable.

23 Q. Well, would you agree that even a facility

24 that is below the CMS expected levels of staffing could

25 at times be providing appropriate care?


1 A. I think if a facility was within a very close,

2 you know, hours per patient per day, or HPPD, if they

3 were very close to the CMS expected staffing levels,

4 then on any given day they might be able to provide

5 services. But I think as you get farther and farther

6 away from that expected staffing number, the probability

7 of that occurring becomes much more remote.

8 Q. And on what do you base it that you do not

9 believe it's probable they can provide appropriate care

10 below the CMS Technical Users' Guide's expected staffing

11 level?

12 A. Because the expected staffing levels are

13 correspondent with the, in your case, Kindred Stratford

14 submitted MDSs, or minimum data sets, that contained the

15 RUG score or the care requirement for each of the people

16 in their facility, so when CMS looks at all those care

17 requirements or all the RUGs, that's how they calculate

18 their expected staffing level. So that's the acuity of

19 the facility.

20 And CMS has done massive time studies that

21 says to take care of each of these people, at different

22 RUG levels, takes X amount of time for each of the RNs,

23 LVNs, CNAs. So when you look at those time studies and

24 the acuity of the individuals in this facility, that's

25 what CMS does to get their expected staffing level.


1 So to say that you could routinely deliver

2 reasonable medical care while being under the CMS

3 expected staffing levels, I don't think that that's

4 probable.

5 Q. Do you have any scientific data, any kind of

6 studies that have been done to support that conclusion

7 that you've made?

8 A. Yeah. I believe the STRIVE study in 2011

9 would be consistent with that.

10 Q. The Strauss study?

11 A. STRIVE, S-T-R-I-V-E. And that's an acronym.

12 I don't know exactly what all the words are there. But

13 it's a CMS study that was published in 2011.

14 Q. Do you know if there are any nursing homes in

15 this country that are meeting or exceeding the CMS

16 Technical Users' Guide expected staffing level?

17 A. Yes, there are.

18 Q. But you don't know the percentage?

19 A. No, sir.

20 Q. Do you have a copy of your report? If you'd

21 like to refer to your report, I didn't bring a copy with

22 me.

23 A. I've got it on my computer.

24 Q. If you'd like -- I don't want -- this is not

25 meant to be a memory contest for you. If I ask a


1 question and which you want to refer to your report,

2 please don't be afraid to say -- just go ahead and look

3 at it.

4 A. Okay.

5 Q. Did you specifically look at June 3rd, 2013,

6 to determine whether or not the staffing on that

7 particular day was appropriate?

8 A. Yes.

9 Q. And what did you determine?

10 A. That it was not.

11 Q. And how did you go about determining that on

12 June 3rd, 2013, that the staffing was not appropriate?

13 A. By taking the actual staffing timecards that

14 you provided to the plaintiff in this case, I was able

15 to determine the hours per patient per day based on the

16 census that you also provided, and could calculate the

17 amount of nursing care that was available per patient

18 per day for the month of June, subsequently June 3rd,

19 and then compare that to CMS expecteds for that quarter.

20 Q. What was the HPPD for June 3, 2013?

21 A. Do you have that e-mail I sent? I've got that

22 on my computer. It was -- well, I know it was 3.2 or

23 3.3. I'm not sure exactly which one it was, though.

24 That's close enough?

25 Q. Whether it was 3.2 or 3.3, you're saying that


1 was inadequate?

2 A. Correct.

3 Q. What should it have been that day?

4 A. That quarter, CMS says that it should have

5 been 4.85.

6 Q. But that's over 90 days, approximately?

7 A. Correct. Now, for me to determine what the

8 expected should have been on that particular day, I

9 would need to have the individual RUG scores for the

10 individuals that were in the facility that day.

11 Q. Does the CMS expected staffing level take into

12 account time that residents spend in therapy on a given

13 day?

14 A. Their calculations do not include therapy

15 hours. It is just RNs, LVNs or LPNs, and CNAs, not

16 therapy.

17 Q. Since -- and I don't know -- I don't think

18 there is a date on your report. Maybe I'm missing it.

19 A. It would have been, I think, in mid-June,

20 maybe.

21 Q. Well, and I might be off by a day or two, but

22 I think it was sent to me on June 10th.

23 A. Okay.

24 Q. So is it something you completed, say, within

25 a week of that date?


1 A. Yeah. I would think so, yeah.

2 Q. Have you reviewed any additional materials

3 relative to this case since June 10th of 2013?

4 A. The staffing information that we just talked

5 about that was provided by the defense.

6 Q. The Timecard Lite reports?

7 A. Correct.

8 Q. You had not looked at those previously?

9 A. Correct.

10 Q. And if you look on page -- your first page

11 there, 3.b, you write, "The following records have been

12 provided or reviewed." And 3.b says, "Nursing home

13 staffing records including census data and staffing

14 data."

15 What was included in that that you --

16 A. I would have to go back and look at my stuff.

17 It's possible that I was provided the defense stuff at

18 that time and I didn't do the individual day calculation

19 until later. The individual day calculation stuff I

20 didn't do until recently.

21 Q. Okay. Have you done anything else since you

22 completed your report besides the individual day

23 calculation?


25 Q. And putting this in the gray area, we do not


1 know whether you just received the time -- you received

2 the Timecard Lite reports since your report or you had

3 them before, putting that in the gray area of we're not

4 sure, is there any other material that you may have

5 received and reviewed relative to this case since you

6 completed your report?

7 A. No, not all that. That's all I looked at.

8 Q. Have you seen the report that was produced on

9 behalf of the staffing expert for my clients?

10 A. Oh, yes. I can't remember that guy's name.

11 Q. Mark Levine?

12 A. Yeah, Levine. Yes, I did see that report.

13 Q. Do you have any disagreements with

14 Mr. Levine's conclusions?

15 A. Yes.

16 Q. What disagreements do you have with his

17 conclusions?

18 A. I think he concluded that the Kindred facility

19 was adequately staffed because it met or exceeded the

20 State minimum requirement in Ohio. And I do not believe

21 that that's an accurate analysis of if somebody is

22 staffed correctly or not.

23 Q. Why is that not an accurate analysis for

24 staffing?

25 A. Because that doesn't take into account the


1 individual nursing care needs of each of the individuals

2 that are in the facility.

3 Q. How do you know what the individual nursing

4 care needs were for the residents?

5 A. I don't know their individual care needs

6 because I do not have access to each of their individual

7 RUG scores. But CMS uses those RUG scores to generate

8 the expected care or expected staffing levels. So all

9 of that was provided by Kindred to CMS, and so --

10 Q. Well, the RUG scores is a quantitative

11 analysis, and there will be residents that will require

12 that amount of care with their RUG score and others that

13 require less even with the same RUG score. Isn't that

14 true?

15 A. There would be a certain amount of

16 variability.

17 Q. And without really going through each

18 individual resident's chart at the facility on June 3rd,

19 you wouldn't be able to determine whether -- how much

20 staffing was needed on that particular day, would you?

21 A. No. I think when you look at each of their

22 individual RUG scores, each one of those RUG scores has

23 a certain amount of medical care attached to it, and as

24 such you can get a general idea of how much staffing

25 they should have.


1 Q. You mentioned that you disagreed with the

2 methodology of Mr. Levine and how he concluded that

3 Stratford was appropriately staffed, and you mentioned

4 that because he used the Ohio -- the State regulations

5 on staffing?

6 A. Right.

7 Q. And you said that was not an appropriate way

8 to do it?

9 A. Correct.

10 Q. Any other criticisms you have of Mr. Levine's

11 methodology?

12 A. Not off the top of my head. My biggest issue

13 was that he didn't take into account the acuity.

14 Q. Of course, your analysis doesn't take into

15 account the skill level of the individual nurses and

16 other staff?

17 A. Right. I don't know of any analysis that does

18 that.

19 Q. Well, the Five-Star Rating does look at things

20 like that, doesn't it?

21 A. The skill level?

22 Q. The competency of the staff.

23 A. The Five-Star Rating looks at how much

24 staffing time they have. I believe --

25 Q. Well, maybe I'm getting this from page 6 of


1 your report, paragraph 29. You say, "In reviewing

2 staffing for sufficiency there are five general areas of

3 review." And the second one is, "Quality refers to the

4 amount of training, scope, and competency of the staff."

5 A. Right. Right. That's just in general. I

6 wasn't saying that that was part of the Five-Star Rating

7 System.

8 Q. Okay. And I think I confused the two. I

9 remembered that from somewhere. I thought it was from

10 Five-Star. It was from your report.

11 And where did you get these five elements?

12 A. Discussions with my experts that I've used in

13 my litigation, you know.

14 Q. What experts have you used in your litigation?

15 A. Facility administrators, nursing experts,

16 medical experts, certified medical directors of nursing

17 homes. I've also had discussions with another

18 individual that does staffing analysis and depositions

19 on that type stuff.

20 Q. And this other individual, what is that

21 individual's background?

22 A. She's from Florida and was involved in

23 Florida's state medical -- I can't remember the exact

24 name, but anyway, it was medical care provided by the

25 State of Florida, and she was involved in that area but


1 not in medical providing. She was in some kind of

2 financial area.

3 Q. Do you believe that the turnover ratio of a

4 facility plays any role in whether there is appropriate

5 staffing or not?

6 A. I believe the turnover ratio can certainly

7 affect the quality of the staffing, but I don't think

8 that that really -- are you asking if that plays into

9 how much staffing they should have?

10 Q. Yes.

11 A. Yeah. I would say generally it probably does.

12 I don't know how you would quantify that.

13 Q. What about the number of admissions and

14 discharges on a particular day?

15 A. Yes. That can affect -- that could certainly

16 affect your staffing levels.

17 Q. Or the number of residents out to a hospital

18 or to a doctor's appointment on a given day?

19 A. Yes, because that would change your census.

20 Q. Did you look at Stratford in terms of

21 comparing its quality indicators versus those of other

22 nursing homes in the state or those in the

23 United States?

24 A. Quality indicators meaning the quality

25 indicators used in the Five-Star Rating System?


1 Q. Yes.

2 A. No, I did not.

3 Q. Do you believe that would be an important item

4 to look at to determine whether or not a facility is

5 providing appropriate staff?

6 A. I believe that can be an indicator, although I

7 would not say that it's an important indicator because

8 that is self-reported information, and I'm not -- you

9 know, with my experience, I'm not exactly sure they

10 always self-report that accurately.

11 Q. Well, that would be reflected across a large

12 body, and so that would sort of even up, wouldn't it?

13 A. Are you saying across a large --

14 Q. Well, if you're looking at the number of, say,

15 quality indicators -- say, let's talk about Foley

16 catheters.

17 A. Uh-huh.

18 Q. Every facility in the state of Ohio reporting

19 it, that should even out in terms of those that report

20 accurately and don't report accurately?

21 A. Oh, right. Across a large sample, yes, the

22 individual facility would get evened out.

23 What I'm saying is, if I'm looking at a

24 specific facility, I'm not sure how much I trust their

25 specific quality indicators because I know those are


1 self-reported, and maybe the facility I'm looking at was

2 not completely honest in their discussions on that

3 point.

4 Q. Do you have any information as to whether or

5 not Stratford was honest in their reporting of quality

6 indicators?

7 A. No, I do not.

8 Q. Do you have any information as to how the

9 staff was deployed at Stratford in 2013?

10 A. I have their timesheets that say when they

11 checked in and checked out, so I can see what their

12 staffing level was. But as far as like who was assigned

13 to what area, I don't believe I have that information.

14 Q. Do you know anything about the quality of the

15 supervision, quality assurance planning and methods for

16 determining staffing resources at Stratford in 2013?

17 A. No.

18 Q. If you could turn to page 8, please, of your

19 report.

20 A. Yes, sir.

21 Q. The middle block, LVN Time --

22 A. Yes.

23 Q. -- which, in Ohio, we refer to as LPNs --

24 A. Okay.

25 Q. -- the second quarter number under LVN


1 Expected, it's 46.92. That seems to be -- all the other

2 numbers are vastly different. Why is that one such a

3 large number compared to the other ones?

4 A. Let me pull that up on my computer just to

5 make sure, because the actual difference out here to the

6 side, that doesn't add up with that number.

7 Q. I was thinking that might be a typo.

8 A. Yeah, I think it is a typo --

9 Q. Okay.

10 A. -- because if that was the actual expected,

11 because this is in hours, there is no way they expected

12 you to have 47 hours of LPN time.

13 Q. And that's why I just asked.

14 A. So, yeah, that's -- if you want me to check, I

15 can check. But I'm sure that's a typo.

16 Q. I would like to find out what you believe the

17 actual -- I mean, I guess we could add reported and

18 difference and come up and that would be 1.865.

19 A. Yeah. It's supposed to be 1.323 is the

20 expected -- I'm sorry -- is the reported. The expected

21 is supposed to be 0.78. And so the difference would be

22 0.542.

23 Q. Okay. So I'm getting is that they reported

24 more LPN time than was expected.



1 Q. And that goes to your whole discussion is that

2 Stratford was using more LPN time than RN time?

3 A. Correct.

4 Q. And still between the two, if I remember

5 correctly, that the total time, staff time, would be

6 acceptable to you. Is that fair?

7 A. I'm sorry. The total licensed time?

8 Q. Yes.

9 A. Okay. The total licensed time that they

10 reported, so you're adding RNs, plus LPNs -- let's see

11 here -- would be basically 1.7 hours, and the

12 expected -- CMS expected total licensed time for that

13 quarter is 2.2.

14 Q. Could you say those again, please. I'm sorry.

15 A. Sure. 1.7 reported, 2.2 expected.

16 Q. Correct me if I'm wrong because I might be

17 wrong about this. CMS, in terms of their analysis,

18 looks at RN time and total licensed time; is that

19 correct?

20 A. They -- CMS looks at RN time, LPN time, and

21 CNA time. Now, they also calculate a combined license

22 time.

23 Q. Is it -- maybe I'm -- and I might just be

24 misremembering this. In terms of the Five-Star Rating

25 at least, the two factors they look at is the RN time


1 and the total licensed time; is that right?

2 A. To determine the star rating?

3 Q. Yes.

4 A. I'd have to go back and look at the users'

5 guide for that. I don't remember that formula off the

6 top of my head. But I think CNA time is actually in

7 that calculation.

8 Q. It might be. I think it is, that it might be

9 all three.

10 A. Uh-huh.

11 Q. Those are the two numbers they look at to

12 determine the star rating for staffing --

13 A. Uh-huh.

14 Q. -- at least part of how they determine

15 staffing is that. You're not sure. I might be right; I

16 might not be?

17 A. Right. I'm just saying I know they look at

18 all three of those classifications. I don't remember

19 exactly how much they weigh each one of them. I know

20 that RN time has its own star rating and then total

21 staffing has a star rating.

22 Q. That might be the better way to say it than

23 I've been trying to say it.

24 A. So -- but there is no star rating for just

25 licensed time, so -- although they do, like I say,


1 report that in one of their expected categories.

2 Q. And I'm not trying to underestimate what you

3 have done, but you came to this calculation as to

4 Stratford was inadequately staffed based on the RUG

5 scores and what CMS's expected staffing level would be

6 on those, the number of residents versus what it

7 actually was?

8 A. Correct.

9 Q. And so it's a calculation that anyone with

10 some kind of mathematical smarts could probably figure

11 out on their own?

12 A. Right. I mean, CMS's expected staffing stuff

13 is publicly available.

14 Q. You're just --

15 A. And then Kindred's cost reports, their CMS

16 cost reports they file every year is -- there's staffing

17 information in there. That's where we got Kindred's

18 staffing information. So, yeah, it's all publicly

19 available if you know where to look for it, and then

20 just, you know, do your very simple math to figure it

21 out.

22 Q. It's an equation, basically?

23 A. Yeah.

24 Q. What is the significance of your discussion in

25 here about payments to related parties and overpayments


1 to related parties?

2 A. Corporations -- I'm going back to make sure we

3 have an understanding of related parties. Corporations

4 such as Kindred have a overriding corporation. They

5 also have many, many, many subcorporations, one of

6 which, of course, owns Stratford.

7 They also may own a corporation that has a

8 pharmacy, therapy services, management services, any

9 number of other type of services that can be purchased

10 by their facility. In this case, Stratford could

11 purchase all those services from those facilities that

12 are owned by Kindred.

13 So a related company is a company that has the

14 same or substantially the same ownership. And then what

15 we look at in that analysis is to try to figure out if a

16 facility is moving a large amount of money to its

17 related parties in an effort to move profits off of

18 their income statement into one of these satellite

19 companies that would then answer to the same parent

20 corporation.

21 Q. And why would they do that?

22 A. Why would they do that?

23 Q. Yes.

24 A. To basically show a lower income on their

25 income statement. So if someone is to look at their


1 income statement, they would not have an accurate

2 picture of how profitable that facility was.

3 Q. And how did you determine -- you must have had

4 some kind of formula for expected payments to related

5 parties.

6 A. It's not expected payments. It's basically

7 CMS requires -- in their annual filings, they have to

8 identify all related parties that they did business

9 with.

10 Q. Right.

11 A. They have to specifically state how much they

12 paid them, and then they also have to state how much it

13 cost the related party to provide that service to this

14 facility. So what we're looking at there is the cost of

15 providing the service versus the payments that were made

16 for those services.

17 Q. And do you know whether any accounting

18 principles are used to determine what the costs are to

19 provide those services? For instance, let's talk about

20 therapy. Let's say it's therapy.

21 A. Sure.

22 Q. Do you know whether there is any accounting

23 principles used to make that determination?

24 A. Oh, I'm sure there are accounting principles

25 that would have to be used in making that determination.


1 Q. And is there anything wrong with the related

2 company making a profit on the services it provides?

3 A. That's -- no. I mean, I'm not saying that

4 they should or shouldn't make a profit. I'm just

5 identifying that they did make a profit.

6 Q. Well, overpayments, I mean, that word could be

7 profit to related parties rather than overpayments.

8 A. Yeah, however you want to phrase it.

9 Q. Well, it doesn't sound quite as pejorative

10 when you say profit rather than overpayments. Would you

11 agree with that?

12 A. Well, I mean, I would say that there's several

13 different ways. I mean, I don't want to get into

14 semantics. I mean, you could put, you know, the word

15 "siphon" there, "siphon to related parties," if you

16 really wanted to make it sound bad.

17 Q. And you've not looked at -- is there any kind

18 of industry standard as to what a related party can

19 receive in excess of the actual cost?

20 A. There is no regulation as to that, as far as

21 CMS is concerned. CMS just wants them to identify the

22 related parties, the cost, and how much they were paid.

23 Q. This amount over what the actual cost was to

24 related parties, do you know whether that is -- that was

25 at Stratford in 2012 through 2014, whether that was


1 similar to what -- to the industry as a whole

2 experiences? More or less than what the industry as a

3 whole experiences?

4 A. I can't speak to the whole industry. I can

5 just speak to the -- you know, the ones that I've looked

6 at.

7 Q. And based on the ones you've looked at, what

8 is your experience?

9 A. That most of them move over, however you want

10 to put it, payments in excess of their costs they will

11 make to the related parties.

12 Q. Well, if they were hiring outside vendors to

13 provide the services, wouldn't you expect that they

14 would have payments in excess of the cost to the outside

15 vendors?

16 MR. EADIE: Could you repeat that or read

17 it back?

18 Q. (BY MR. McCARTNEY) Sure. If a facility

19 contracted with an outside vendor/unrelated party to

20 provide services, wouldn't you expect the outside vendor

21 to bill more than the actual cost to provide those

22 services?

23 A. I think what you're asking is would I expect a

24 third-party vendor to make a profit off their services.

25 Q. That's one way of saying it.


1 A. And I would say yes, I would expect them to

2 make a profit off their services.

3 Q. And do you know whether the profit, so to

4 speak, at Stratford from July 1, 2011, through June 30,

5 2014, was in excess of what a reasonable profit was for

6 the payments to related parties?

7 A. No, I do not know.

8 MR. EADIE: Can we take a break?

9 MR. McCARTNEY: Sure.

10 (Recess from 11:25 a.m. to 11:41 a.m.)

11 Q. (BY MR. McCARTNEY) Are there any opinions or

12 testimony that you've given me so far today that you

13 need to change or want to change? I just ask -- I don't

14 have an issue with it, but I assume that you and

15 Mr. Eadie had stepped out to talk, and I wanted to make

16 sure that there wasn't something that needed

17 clarification before I went on.

18 A. No. He was just asking me about -- basically

19 reasking some of the questions you asked about staffing

20 stuff, and so we were going -- we were going over that.

21 Q. Okay. I'm not trying to ask what he talked to

22 you about necessarily, but this is a deposition, not a

23 trial, and so things are a little more, as you know, are

24 more lenient. I just want to make sure that there

25 wasn't anything missing there.


1 Other than the opinions that we've expressed

2 today and the opinions you've expressed in the report

3 that was provided to me, do you have any other opinions

4 about this case that we have not discussed?

5 A. Just two seconds. You had asked me earlier

6 about if I had any thoughts or feelings on Kindred's

7 honesty in reporting on the Five-Star Rating System.

8 And I think it may have been specifically to quality

9 assurance.

10 Q. Quality indicators.

11 A. Yeah, quality indicators, or if it was a wider

12 question than that.

13 Q. Well, it was limited, I think, at that time to

14 quality indicators. Is your answer still the same?

15 A. On quality indicators, it is the same.

16 Q. Okay. Now, that leads me to believe that you

17 have some concern about the reliability of reporting

18 information of Kindred in some other areas. Would that

19 be fair?

20 A. Yes, that would be fair.

21 Q. In what other areas do you have some kind of

22 concerns?

23 A. In the analysis that I did, I noticed that

24 Kindred on their -- what's called a CMS Form 671, that

25 Kindred reported a higher staffing level on that form


1 than they did on their annual cost report, which is

2 known as a CMS Form 2540.

3 The 671 is what the Five-Star staffing star is

4 calculated on. So it appears that they have overstated

5 their staffing in some of the time periods that we were

6 looking at.

7 Q. On which form?

8 A. On 671.

9 Q. Do you have any -- do you know whether the

10 person who did Form 671 is the same as the person that

11 did Form 2540?

12 A. I would not expect them to be the same person.

13 I expect the 671 was given to the inspector by the

14 facility administrator, and the 2540 was probably

15 prepared by somebody in the Kindred corporation

16 accounting office.

17 Q. And that alone could explain the discrepancy?

18 A. I wouldn't say that alone.

19 Q. Well, you have different reporters, and

20 different people reporting might report different

21 numbers.

22 A. Well, okay. Let me back up.

23 The 671 is a two-week window of staffing right

24 before the inspector got to the facility. And the 2540

25 is an annual cost report. So it's going to be 52 weeks.


1 So there will be a difference in numbers.

2 But I'm saying, when you look at their hours

3 per patient per day for their nursing numbers, they are

4 higher on the 671 than they are on the 2540.

5 Q. But that's a two-week snippet versus a

6 52-week?


8 Q. Have there been any materials that you have

9 requested that you have not received?

10 A. That I have requested?

11 Q. Yes.

12 A. No.

13 Q. Do you believe that you received sufficient

14 materials in order to reach the conclusions you have in

15 this case, the opinions that you have in this case?

16 A. Yes.

17 Q. And again, so we're clear, because you might

18 have -- to be full disclosure, I think you were trying

19 to do, brought up a couple additional things here.

20 Are there any other opinions that you hold

21 relative to this case that are not contained within your

22 report or that we have discussed today, to the best of

23 your knowledge?

24 A. No. I think we've discussed them.

25 Q. Or they're in your report?


1 A. Right. Correct.

2 MR. McCARTNEY: Okay. Then I don't have

3 any further questions for you. Thank you, Mr. Tosh.

4 MR. EADIE: I just have a couple

5 questions.

6 EXAMINATION

7 BY MR. EADIE:

8 Q. You were asked about factors like high staff

9 turnover or a high number of admissions and discharges

10 and their effect on staffing requirements at a facility.

11 How would high staff turnover or a high number

12 of admissions and discharges affect the staffing needs

13 of a facility?

14 A. I believe generally it would cause the

15 staffing needs to go up.

16 Q. So in terms of those factors versus the CMS

17 expected numbers, is CMS and, therefore, your analysis

18 basically giving the benefit of the doubt to the nursing

19 home that they have adequate training and an average

20 number of staff turnover and admissions and discharge

21 and things like that?

22 MR. McCARTNEY: Objection. Go ahead.

23 A. I believe that's a good assumption.

24 Q. (BY MR. EADIE) You were asked about your

25 expertise, and I think you touched on your college


1 degree and during the course of the deposition talked

2 about your work with analyzing these types of numbers.

3 Can someone just go on the publicly available

4 Web site somewhere and download the spreadsheets that

5 you have put together?

6 A. No.

7 Q. What type of experience did you require or

8 develop over the course of doing your work to go from

9 publicly available data to the analysis that you are

10 providing in this case?

11 A. Well, originally we used reports that were

12 obtained through Freedom of Information requests to CMS.

13 That would be the annual cost reports. We found out

14 very quickly that trying to use the hard copy of those

15 was very inefficient.

16 We later were able to develop a database that

17 now contains all of the annual cost reports for all the

18 facilities in the country. And then we wrote a program

19 that does the spreadsheets that we have now that

20 generate, I think, over 400 charts and graphs that look

21 at all the underlying information from the CMS cost

22 reports.

23 Q. And are those charts and graphs things that

24 you developed in terms of developing expertise to

25 produce those over the course of the time that you've


1 been doing this work?

2 A. Yes. That's correct.

3 Q. Have you given any -- have you done any

4 teaching or lectures or presentations on this subject

5 matter?

6 A. Yeah. Actually, I have traveled all over the

7 country giving lectures on this subject matter both to

8 small, you know, private groups, to State-sponsored

9 CLEs, and then also to national presentations both in

10 Webinar format and personal format.

11 Q. Have you developed experience and expertise

12 with regard to how CMS structures its data and what that

13 data means?

14 A. Yes.

15 Q. Was that an easy, one-day process, or did that

16 take some time?

17 A. Oh, no, no. That -- well, it's still

18 evolving. I mean, we are constantly looking at new

19 information that's available. It wasn't until last fall

20 that we actually found the staffing information that

21 we're now using to analyze staffing.

22 So it's constantly evolving. It's taken the

23 full five years that I've been working on it to get to

24 where we are today.

25 Q. How does CMS or what data does CMS rely on in


1 understanding the individual care needs and staffing

2 time to address those care needs in residents in a

3 nursing home like Kindred Stratford?

4 MR. McCARTNEY: Objection.

5 A. Kindred Stratford and all other nursing homes

6 do individual assessments of each resident at their

7 facility, and those assessments are called a minimum

8 data set, also just referred to as an MDS. That

9 takes -- you know, it tracks all their health issues,

10 how much assistance they need with transfers and

11 dressing and eating and all that kind of stuff.

12 At the very end of that MDS, it calculates a

13 score for that individual that basically, if you look at

14 a chart, tells you how much nursing care that individual

15 will need on a daily basis.

16 Q. (BY MR. EADIE) Is that the RUG score that you

17 guys were discussing?

18 A. That is -- that's called the RUG score. And

19 so when Kindred submits that MDS to CMS, CMS uses that

20 to then calculate their expected staffing levels, which,

21 in turn, is what we rely on to do our analysis.

22 Q. So is it fair to say that the Kindred

23 Stratford facility itself is doing the evaluations of

24 how much care its residents need?



1 Q. Were you able to determine, based on the

2 information you have, whether or not Kindred Stratford

3 was insufficiently staffed on June 3rd, 2013?

4 A. Yes. It was -- it was understaffed.

5 Q. And how, if at all, would having the

6 individual RUG score breakdown on June 3rd, 2013, affect

7 your analysis?

8 A. The analysis that I have done right now, I can

9 see exactly the amount of nursing care that was

10 available on an hours-per-patient-per-day basis. And

11 the information I have from CMS for their expected

12 staffing levels is on a quarterly basis. So comparing

13 the numbers that I have versus their quarterly basis, I

14 can see that they're understaffed.

15 The difference would be, if I have the

16 individual RUG scores for the residents that were in the

17 facility on June 3rd, 2013, is I could calculate exactly

18 what the expected staffing level would be on that day

19 versus relying on a quarterly number.

20 Q. And are those individual care need numbers,

21 numbers that a nursing home like Kindred Stratford has?

22 A. Yes. Yeah. They're required to file the

23 minimum data set on everybody in the facility at least

24 every 90 days, and there are some requirements to file

25 it more often than that.


1 Q. Is that information that you're aware nursing

2 homes in other cases have been able to provide albeit in

3 a redacted, not personally identifiable way?

4 A. Yes.

5 MR. EADIE: That's all.

6 MR. McCARTNEY: I have nothing further.

7 MR. EADIE: We'll read.

8 MR. McCARTNEY: Yeah. We're within a

9 month of trial.

10 MR. EADIE: Have it expedited.

11 MR. McCARTNEY: As long as we both will

12 agree that we either will have signature or it will

13 constitute waiver if not signature before trial.

14 MR. EADIE: I agree with that.

15 MR. McCARTNEY: Okay.

16 MR. EADIE: Reciprocally?

17 MR. McCARTNEY: Yes. We agree

18 bilaterally, yes.

19 MR. EADIE: I mean reciprocally --

20 MR. McCARTNEY: Yes.

21 MR. EADIE: I know what you mean, but so

22 it's clear, not just about this witness.

23 MR. McCARTNEY: Yes. Yes. For all, yes.

24 (Proceedings adjourned at 11:55 a.m.)

25


1 CHANGES AND SIGNATURE

TO THE ORAL DEPOSITION OF

2 ERNEST TOSH

JULY 27, 2016

3

4 PAGELINE CHANGE/REASON

5 ________ ______________________________________________

6 ________ ______________________________________________

7 ________ ______________________________________________

8 ________ ______________________________________________

9 ________ ______________________________________________

10 ________ ______________________________________________

11 ________ ______________________________________________

12 ________ ______________________________________________

13 ________ ______________________________________________

14 ________ ______________________________________________

15 ________ ______________________________________________

16 ________ ______________________________________________

17 ________ ______________________________________________

18 ________ ______________________________________________

19 ________ ______________________________________________

20 ________ ______________________________________________

21 ________ ______________________________________________

22 ________ ______________________________________________

23 ________ ______________________________________________

24 ________ ______________________________________________

25 ________ ______________________________________________


1 I, ERNEST TOSH, have read the foregoing deposition

2 and hereby affix my signature that same is true and

3 correct, except as noted above.

4

5 ____________________________

ERNEST TOSH

6

7 STATE OF __________ )

8 COUNTY OF _________ )

9

10 Before me, ____________________________, on this

11 day personally appeared ERNEST TOSH, known to me (or

12 proved to me under oath or through ___________________

13 (description of identity card or other document) to be

14 the person whose name is subscribed to the foregoing

15 instrument and acknowledged to me that they executed the

16 same for the purposes and consideration therein

17 expressed.

18 (Seal) Given under my hand and seal of office

19 this ________ day of ______________, _______.

20

21

22 _________________________________

Notary Public in and for the

23 State of ___________

24

25


1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

2ESTATE OF LEONA MAXIM, §

3 etc., § Plaintiff, § CASE NO. CV 15 845038

4 §VS. § Judge Shirley Strickland

5 § SaffoldKINDRED NURSING & REHAB - §

6 STRATFORD, et al., § Defendants. §

78

________________________________________________________9

REPORTER'S CERTIFICATION10 ORAL DEPOSITION OF

ERNEST TOSH11 JULY 27, 2016

________________________________________________________1213 I, Angela L. Mancuso, Certified Shorthand Reporter

in and for the State of Texas, hereby certify to the14 following:15 That the witness, ERNEST TOSH, was duly sworn by

the officer and that the transcript of the oral16 deposition is a true record of the testimony given by

the witness;17

That the deposition transcript was submitted on18 ______________ to the witness or to the attorney for the

witness for examination, signature and return to19 Veritext Legal Solutions by _______________;20 That the amount of time used by each party at the

deposition is as follows:21

MR. WILLIAM B. EADIE: 9 minutes22 MR. PAUL W. McCARTNEY: 59 minutes23 That pursuant to information given to the

deposition officer at the time said testimony was taken,24 the following includes counsel for all parties of

record:25


1 FOR THE PLAINTIFF:2 MR. WILLIAM B. EADIE

SPANGENBERG, SHIBLEY & LIBER3 1001 Lakeside Avenue, East

Suite 17004 Cleveland, Ohio 44114

(216) 696-32325 [email protected] FOR THE DEFENDANTS:7 MR. PAUL W. McCARTNEY

BONEZZI SWITZER POLITO & HUPP CO. L.P.A.8 312 Walnut Street

Suite 25309 Cincinnati, Ohio 45202-9914

(513) 345-550110 [email protected] I further certify that I am neither counsel for,

related to, nor employed by any of the parties or12 attorneys in the action in which this proceeding was

taken, and further that I am not financially or13 otherwise interested in the outcome of the action.14 Further certification requirements will be

certified to after they have occurred.15

Certified to by me this 3rd day of August, 2016.1617

_<%Signature%>___18 ANGELA L. MANCUSO, CSR 4514

Expiration Date: 12/31/1719 Veritext Legal Solutions

Veritext Registration No. 57120 300 Throckmorton Street, Suite 1600

Fort Worth, Texas 7610221 Job No. 2345672 (817) 336-3042 (800) 336-400022232425


1 FURTHER CERTIFICATION

2 ________________________________________________________

3 The original deposition was/was not returned to the

4 deposition officer on _______________;

5 If returned, the attached Changes and Signature

6 page contains any changes and the reasons therefor;

7 If returned, the original deposition was delivered

8 to Mr. Paul W. McCartney, Custodial Attorney;

9 That $____________ is the deposition officer's

10 charges to the Defendants for preparing the original

11 deposition and any copies of exhibits;

12 That a copy of this certificate was served on all

13 parties shown herein.

14 Certified to by me this _____ day of _____________,

15 2016.

16

17 <%signature%>

___________________________________

18 ANGELA L. MANCUSO, CSR 4514

Expiration Date: 12/31/17

19 Veritext Legal Solutions

Veritext Registration No. 571

20 300 Throckmorton Street, Suite 1600

Fort Worth, Texas 76102

21 Job No. 2345672 (817) 336-3042 (800) 336-4000

22

23

24

25


1 Veritext Legal Solutions

290 W. Mt. Pleasant Ave. - Suite 3200

2 Livingston, New Jersey 07039

Toll Free: 800-227-8440 Fax: 973-629-1287

3

4 August 10, 2016

5 To: William B. Eadie

6 Case Name: Christine Guest (E/O Maxim) v. Kindred, Et Al.

7 Veritext Reference Number: 2345672

8 Witness: Ernest Tosh Deposition Date: 7/27/2016

9

Dear Sir:

10

Enclosed please find a deposition transcript. Please have the witness

11 review the transcript and note any changes or corrections on the

included errata sheet, indicating the page, line number, change, and

12 the reason for the change. Have the witness’ signature at the bottom

of the sheet notarized except in California where they are signing

13 under penalty of perjury and forward the errata sheet back to us at

the address shown above.

14

15

16 If the jurat is not returned within thirty days of your receipt of

17 this letter, the reading and signing will be deemed waived.

18

19

20 Sincerely,

21

22 Production Department

23

24 Encl.

25 Cc: Paul W. McCartney, Esq.


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[analysis - civil] Page 2


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[trust - years] Page 11


Ohio Rules of Civil Procedure

Title V. Discovery

Rule 30

(e) Submission to Witness; Changes; Signing.

When the testimony is fully transcribed, the

deposition shall be submitted to the witness for

examination and shall be read to or by the witness,

unless examination and reading are waived by the

witness and by the parties. Any changes in form or

substance that the witness desires to make shall be

entered upon the deposition by the officer with a

statement of the reasons given by the witness for

making them. The deposition shall then be signed by

the witness, unless the parties by stipulation

waive the signing or the witness is ill, cannot be

found, or refuses to sign. The witness shall have

thirty days from submission of the deposition to

the witness to review and sign the deposition. If

the deposition is taken within thirty days of a

trial or hearing, the witness shall have seven days

from submission of the deposition to the witness to

review and sign the deposition. If the trial or

hearing is scheduled to commence less than seven

days before the deposition is submitted to the

witness, the court may establish a deadline for the

witness to review and sign the deposition. If the

deposition is not signed by the witness during the

period prescribed in this division, the officer

shall sign it and state on the record the fact of

the waiver or of the illness or absence of the

witness or the fact of the refusal to sign together

with the reason, if any, given therefor; and the

deposition may then be used as fully as though

signed, unless on a motion to suppress the court

holds that the reasons given for the refusal to

sign require rejection of the deposition in whole

or in part.

DISCLAIMER: THE FOREGOING CIVIL PROCEDURE RULES

ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY.

THE ABOVE RULES ARE CURRENT AS OF SEPTEMBER 1,

2014. PLEASE REFER TO THE APPLICABLE STATE RULES

OF CIVIL PROCEDURE FOR UP-TO-DATE INFORMATION.

VERITEXT LEGAL SOLUTIONS

COMPANY CERTIFICATE AND DISCLOSURE STATEMENT

Veritext Legal Solutions represents that the

foregoing transcript is a true, correct and complete

transcript of the colloquies, questions and answers

as submitted by the court reporter. Veritext Legal

Solutions further represents that the attached

exhibits, if any, are true, correct and complete

documents as submitted by the court reporter and/or

attorneys in relation to this deposition and that

the documents were processed in accordance with

our litigation support and production standards.

Veritext Legal Solutions is committed to maintaining

the confidentiality of client and witness information,

in accordance with the regulations promulgated under

the Health Insurance Portability and Accountability

Act (HIPAA), as amended with respect to protected

health information and the Gramm-Leach-Bliley Act, as

amended, with respect to Personally Identifiable

Information (PII). Physical transcripts and exhibits

are managed under strict facility and personnel access

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fashion to authenticated parties who are permitted to

access the material. Our data is hosted in a Tier 4

SSAE 16 certified facility.

Veritext Legal Solutions complies with all federal and

State regulations with respect to the provision of

court reporting services, and maintains its neutrality

and independence regardless of relationship or the

financial outcome of any litigation. Veritext requires

adherence to the foregoing professional and ethical

standards from all of its subcontractors in their

independent contractor agreements.

Inquiries about Veritext Legal Solutions'

confidentiality and security policies and practices

should be directed to Veritext's Client Services

Associates indicated on the cover of this document or

at www.veritext.com.

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