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The Journal Gazette

Friday, December 15, 2017 1:00 am

Action in CHS suit delayed by judge

Ex-Lutheran CEO wants it dismissed

SHERRY SLATER | The Journal Gazette

An Allen County Superior Court judge on Thursday put a halt to depositions being taken in Community Health Systems' lawsuit against former Lutheran Health Network CEO Brian Bauer.

Judge Nancy Boyer said attorneys can wait to question witnesses under oath until after a Tennessee court rules next month on Bauer's request to dismiss the lawsuit.

The subpoenaed parties also are being asked to provide written documents, including any communications they've had referring to CHS, Bauer, current Lutheran Health Network CEO Mike Poore, any Fort Wayne physicians and Sajin Young, the alias used on a Facebook account critical of CHS.

Boyer described the expense of filling the requests as an “unreasonable” burden on the witnesses – if the lawsuit filed Nov. 2 ends up being dismissed. A hearing to address Bauer's dismissal request is scheduled for Jan. 25.

CHS attorney James Buchholz had argued that a Tennessee court should make all decisions regarding the lawsuit, which was filed there in Williamson County.

The lawsuit alleges both Bauer and the “Sajin Young” poster defamed and disparaged CHS to undermine the company's business relationships. The defendants are accused of trying to drive away patients and physicians and drive down Lutheran Health Network's value.

Franklin, Tennessee-based CHS is asking for unspecified damages and for Bauer and “Sajin Young” to be ordered to stop publicly criticizing CHS. Since the lawsuit was filed, the Sajin Young account has been removed from Facebook.

Mark GiaQuinta, a local attorney, argued that CHS doesn't have an urgent need to push ahead with depositions during the holiday season because no additional postings are being made.

He scoffed at the idea that the postings would harm the second-largest health care system in the country. The lawsuit, which outlined the Facebook comments, “sounds more like a junior high spat in the cafeteria” than a typical court filing, GiaQuinta told Boyer.

GiaQuinta represents Aaron Garofola, one of three people not named as defendants in the lawsuit who received subpoenas and asked the court to step in and delay their depositions. Garofola is the former CEO of Dupont Hospital, which is part of Lutheran Health Network.

Garofola accepted a lateral transfer within CHS on June 12, the same day Bauer was fired. He left the health care system after about three months, however, and started work in August as CEO of Associated Surgeons and Physicians, a local group. He and Bauer are also two of three partners who own Umi Grill, a local sushi restaurant.

Ozzie Mitson, formerly Lutheran Health Network's government relations director, and Dr. William Cast, co-founder of the nonprofit NICHE (or Northeast Indiana Citizens for Healthcare Excellence), also filed motions to delay giving sworn statements until after the Tennessee court rules on Bauer's motion to dismiss the case.

Bauer answered CHS attorneys' questions under oath for eight or nine hours last week, GiaQuinta said.

Among the allegations against Bauer, CHS says he shared confidential information with IU Health in violation of CHS' stock option agreement. The lawsuit contends that Bauer is subject to the agreement's confidentiality and nondisparagement clauses because from 2012 to 2014, Bauer cashed in 3,000 stock options for a total profit of more than $74,000.

But according to the filing made on Garofola's behalf, CHS has been unable to produce a signed contract that shows Bauer agreed to the conditions put on exercising stock options.

Norris Cunningham, an Indianapolis attorney, represented IU Health's interests during the hearing. Mitson now works for IU Health as government affairs director. An IU Health spokeswoman was unable Thursday to find out when Mitson started working there.

Judge Boyer said her order wouldn't stop CHS from deposing witnesses subpoenaed in Indianapolis. If they want a similar ruling, they would have to request it from a Marion County court, she said.