`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`DEMAND FOR JURY TRIAL
`Case No: 21 -
`Honorable:
`
`VANESSA HOTOPH,
`
`Plaintiff,
`
`vs.
`
`
`
`MVC CLINICAL PRACTICE-MI PC,
`A Michigan professional corporation,
`d/b/a METRO VEIN CENTERS,
`A and G Aesthetics PLLC, a
`Michigan professional limited liability
`Company, d/b/a METRO VEIN CENTERS,
`MVC MSO LLC, a Delaware corporation,
`And ALBARON PARTNERS LP,
`A New York Limited Partnership,
`
`Defendant.
`
`Gregory A. Jones (P75318)
`GASIOREK, MORGAN, GRECO,
`McCAULEY & KOTZIAN, P.C.
`30500 Northwestern Hwy, Ste 425
`Farmington Hills, MI 48334
`P: (248) 865-0001
`F: (248) 865-0002
`gjones@gmgmklaw.com
`rdonegan@gmgmklaw.com
`
`COMPLAINT AND JURY DEMAND
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.2 Filed 02/24/21 Page 2 of 19
`
`NOW COMES, Plaintiff, VANESSA HOTOPH, by and through her
`
`attorneys, GASIOREK, MORGAN, GRECO, McCAULEY & KOTZIAN, P.C.,
`
`and for her complaint against Defendants, MVC CLINICAL PRACTICE-MI
`
`PC; A and G AESTHETICS, PLLC; MVC MSO, LLC; and ALBARON
`
`PARTNERS, LP (collectively, “METRO VEIN CENTERS”) hereby submits
`
`the following:
`
`1.
`
`This complaint arises out of the wrongful termination of Plaintiff’s
`
`employment with Defendant in violation of the anti-retaliation provisions of
`
`the False Claims Act, 31 U.S.C. § 3730(h), the Michigan Whistleblower’s
`
`Protection Act, M.C.L. § 15.361 et seq., and in violation of established public
`
`policy in Michigan, after Plaintiff raised concerns that Defendant’s employees
`
`were
`
`intentionally misreading diagnostic studies
`
`in order
`
`to
`
`justify
`
`unnecessary procedures, thereby defrauding patients, private health
`
`insurance companies, and the State and Federal government.
`
`PARTIES
`
`2.
`
`Plaintiff, VANESSA HOTOPH (hereinafter, “HOTOPH”), is an
`
`individual residing in the City of Livonia, County of Wayne, State of Michigan.
`
`3.
`
`Defendant, MVC CLINICAL PRACTICE-MI PC is a Michigan
`
`Professional Corporation which does business and operates as METRO
`
`VEIN CENERS (hereinafter, “MVC Clinical Practice” or “METRO VEIN
`
`2
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.3 Filed 02/24/21 Page 3 of 19
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`CENTERS”) with offices and a principal place of business in West
`
`Bloomfield, County of Oakland, State of Michigan.
`
`4.
`
`Defendant A and G Aesthetics PLLC is a Michigan professional
`
`limited liability corporation which also does business and operates as Metro
`
`Vein Centers (hereinafter, “A and G Aesthetics PLLC” or “METRO VEIN
`
`CENTERS”) with offices and a principal place of business in West
`
`Bloomfield, County of Oakland, State of Michigan.
`
`5.
`
`Defendant MVC MSO LLC is a Delaware corporation with offices
`
`and a principal place of business in West Bloomfield, County of Oakland,
`
`State of Michigan, where it manages the operations, human resources, and
`
`other functions of Metro Vein Centers and employs individuals who work or
`
`Metro Vein Centers (hereinafter, “MVC MSO” or “METRO VEIN CENTERS”).
`
`6.
`
`Defendant ALBARON PARTNERS LP (hereinafter “ALBARON”)
`
`is a New York Limited Partnership with offices in Long Island, New York, and
`
`West Bloomfield, County of Oakland, State of Michigan, and it owns and
`
`operates METRO VEIN CENTERS.
`
`JURISDICTION AND VENUE
`
`7.
`
`This Court has subject matter jurisdiction over HOTOPH’S
`
`claims under and pursuant to 28 U.S.C. §1331 (federal question jurisdiction)
`
`and 31 U.S.C. §§ 3730 and 3732(a) (False Claims Act).
`
`3
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.4 Filed 02/24/21 Page 4 of 19
`
`8.
`
`This Court has supplemental jurisdiction pursuant to 28 U.S.C.
`
`§1367 over HOTOPH’S pendant state claims for violations of the Michigan
`
`Whistleblowers’ Protection Act, M.C.L. § 15.361 et seq., the Michigan Health
`
`Care False Claims Act, M.C.L. § 752.1001 et seq., and the Michigan
`
`Medicaid False Claims Act, M.C.L. § 400.601 et seq.
`
`9.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C.
`
`§1391(b) as the judicial district wherein a substantial part of the events or
`
`omissions giving rise to HOTOPH’S claims occurred and 31 U.S.C. § 3732(a)
`
`as the judicial district within which Defendants transact business.
`
`COMMON FACTUAL ALLEGATIONS
`
`10. HOTOPH is a registered vascular technician.
`
`11. METRO VEIN CENTERS operate as a clinical practice
`
`specializing in the diagnosis and treatment of varicose veins, spider veins,
`
`and other venous conditions.
`
`12. METRO VEIN CENTERS hired HOTOPH as an ultrasound
`
`technician in or around April 2017.
`
`13. HOTOPH initially worked part-time out of a clinic in Canton,
`
`Michigan.
`
`14. While employed at the Canton, Michigan location, HOTOPH
`
`observed another technician (hereinafter referred to as “TS”) improperly
`
`4
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.5 Filed 02/24/21 Page 5 of 19
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`conducting ultrasound scans. Specifically, HOTOPH witnessed TS measure
`
`noise on the scan as disease in order to justify unnecessary medical
`
`procedures.
`
`15.
`
`In or around December 2017 HOTOPH began working full-time
`
`for METRO VEIN CENTERS.
`
`16. Recognizing a pattern of concerning practices in diagnostic
`
`studies at METRO VEIN CENTERS, Dr. Max Hutton established a
`
`Compliance and Quality Assurance Team in or about October 2019.
`
`17. HOTOPH was appointed to assist the Quality Assurance Team
`
`with the goal of making sure that ultrasounds were not being misread to
`
`justify unnecessary procedures.
`
`18. HOTOPH and other members of the Quality Assurance Team
`
`utilized spreadsheets to track performance of METRO VEIN CENTERS’
`
`ultrasound technicians in order to assess whether they were engaging in
`
`inappropriate or unethical behaviors.
`
`19. Ultimately, the Quality Assurance Team came to the conclusion
`
`that METRO VEIN CENTERS technologists were routinely measuring noise
`
`or artifact as reflux, and over-measuring diameters in reflux in order to justify
`
`unnecessary medical procedures.
`
`5
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.6 Filed 02/24/21 Page 6 of 19
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`20.
`
`In or around January 2020, HOTOPH was promoted to
`
`supervisor for Michigan and Pennsylvania.
`
`21. HOTOPH reported to another member of the Quality Assurance
`
`Team, “CK.”
`
`22.
`
`In March 2020, the Canton location closed due to the COVID-19
`
`pandemic.
`
`23. On or about May 4, 2020, HOTOPH returned to work in the West
`
`Bloomfield location.
`
`24. Upon returning to work, HOTOPH learned that CK had been told
`
`by METRO VEIN CENTERS Chief Operating Officer, Art Golden
`
`(hereinafter, “GOLDEN”) to put the quality assurance work “on hold” for a
`
`period of time.
`
`25. CK and HOTOPH were instead directed to focus their efforts on
`
`performing ultrasound scans.
`
`26. Upon information and belief, METRO VEIN CENTERS required
`
`HOTOPH to return to scanning full-time in order to curtail her efforts to
`
`oppose the ongoing fraudulent practices at the clinics.
`
`27.
`
`In or around June 2020, HOTOPH and the Quality Assurance
`
`Team resumed the review of METRO VEIN CENTERS’ technicians’ scans.
`
`6
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.7 Filed 02/24/21 Page 7 of 19
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`Their findings confirmed that the unethical and inappropriate behavior had
`
`continued without improvement.
`
`28. On or about July 21, 2020, CK sent an e-mail summarizing the
`
`Quality Assurance Team’s findings in performance reviews of METRO VEIN
`
`CENTER ultrasound technicians to GOLDEN, Chief Executive Officer Dimiti
`
`Ivanov (hereinafter, “IVANOV”), Chief Legal Officer Debo Adesina, and Chief
`
`Medical Officer Dr. Mason Mandy.
`
`29.
`
`In this e-mail, CK raised concerns with ongoing unethical
`
`practices, and specifically noted that ultrasound technicians were inverting
`
`their spectral Doppler while performing ultrasounds, resulting in inaccurate
`
`findings of venous reflux.
`
`30. CK attached “Quality Assurance Audit” documentation to support
`
`her concerns.
`
`31. Specifically, CK attached a July 21, 2020 “Quality Assurance
`
`Audit” for METRO VEIN CENTERS technician “KC”. She specifically noted
`
`as follows:
`
`[KC] is not following proper protocol in regards to the
`diagnostic quality of her imaging. The technologist is
`using unethical techniques to demonstrate reflux,
`including; augmenting with her probe, overmeasure
`spectral Doppler tracing to get to or over 500msec,
`and measuring noise on the spectral tracing to
`demonstrate reflux that is not evidence. [KC] reduces
`the scale when imaging the superficial system and
`7
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.8 Filed 02/24/21 Page 8 of 19
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`this causes above the baseline noise that is being
`measured as reflux.
`
`All of these techniques cause a patient to receive
`procedures that are not medically necessary. This
`practice is unethical and fraudulent.
`
`Metro Vein Centers and the physician could be liable
`for prosecution under the CMS guidelines.
`
`I am informing you that this practice must cease
`immediately.
`
`32. CK also attached a July 20, 2020 Quality Assurance Audit for
`
`METRO VEIN CENTER technician “ND,” which stated as follows:
`
`It appears that if a patient does not have very evident
`venous
`insufficiency
`the
`technologist
`is using
`unethical
`techniques
`to demonstrate
`reflux,
`including; inverting her spectral Doppler to have
`normal flow show above the baseline and measure
`as reflux, overmeasure spectral Doppler tracing to
`get to or over 500 msec, and measuring noise on the
`spectral tracing to demonstrate reflux that is not
`evident.
`
`All of these techniques cause a patient to receive
`procedures that are not medically necessary. This
`practice is unethical and fraudulent.
`
`Metro Vein Centers and the physician could be liable
`for prosecution under the CMS guidelines.
`
`I am informing you that this practice must cease
`immediately.
`
`33. CK also attached her July 20, 2020 “Quality Assurance Audit” for
`
`METRO VEIN CENTERS technician “SM,” and again reiterated as follows:
`8
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.9 Filed 02/24/21 Page 9 of 19
`
`[SM] is not following proper protocol in regards to the
`diagnostic quality of her imaging. It appears that if a
`patient does not have very evident venous
`insufficiency the technologist is using unethical
`techniques to demonstrate reflux, including; inverting
`her spectral Doppler to have normal flow show above
`the baseline and measure as reflux, overmeasure
`spectral Doppler tracing to get to or over 500msec,
`and measuring noise on the spectral tracing to
`demonstrate reflux that is not evident.
`
`All of these techniques cause a patient to receive
`procedures that are not medically necessary. This
`practice is unethical and fraudulent.
`
`Metro Vein Centers and the physician could be held
`liable for prosecution under the CMS guidelines.
`
`I am informing you that this practice must cease
`immediately.
`
`34. CK was terminated by METRO VEIN CENTERS in a meeting
`
`with IVANOV on July 23, 2020, two days after sending the aforementioned
`
`email.
`
`35. After CK was terminated, HOTOPH continued her work as
`
`supervisor and continued Quality Assurance activities.
`
`36. As part of her activities, HOTOPH discovered that METRO VEIN
`
`CENTERS technicians had been inappropriately instructed not to rule out
`
`deep vein thrombosis (“DVT”) for follow up examinations, and to only look
`
`for findings that required treatment.
`
`9
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.10 Filed 02/24/21 Page 10 of 19
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`37. HOTOPH directed the technicians to cease this practice because
`
`the failure to rule out DVT before augmenting the leg could cause injury to
`
`the patient.
`
`38.
`
`In or around August 2020, GOLDEN requested that all the
`
`technicians and physicians visit a METRO VEIN CENTERS clinic in New
`
`York to see how they do things there.
`
`39. HOTOPH objected and told GOLDEN that she had seen the
`
`scans from the New York technicians as part of her work with the Quality
`
`Assurance Team, and that their work product was inferior and unethical.
`
`40. HOTOPH further expressed to GOLDEN that she felt as though
`
`by objecting she was putting a target on her back. When asked why she felt
`
`that way, she reminded GOLDEN that anyone who speaks out at METRO
`
`VEIN CLINICS ends up terminated. At that time, HOTOPH was the last
`
`remaining employee at METRO VEIN CLINICS who worked on the Quality
`
`Assurance Team.
`
`41. On or about August 26, 2020, HOTOPH filed a report with the
`
`United States Department of Health and Human Services, Office of the
`
`Inspector General, citing METRO VEIN CENTERS unethical practices,
`
`including, but not limited to routinely taking inaccurate measurements,
`
`10
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.11 Filed 02/24/21 Page 11 of 19
`
`improperly reading noise as disease, and inverting images in order to justify
`
`unnecessary medical procedures.
`
`42. On or about November 25, 2020, METRO VEIN CENTERS
`
`terminated HOTOPH’s employment.
`
`COUNT I
`Unlawful Retaliation in Violation of the False Claims Act
`Against all Defendants
`
`43. HOTOPH
`
`re-alleges and
`
`incorporates by
`
`reference
`
`the
`
`preceding paragraphs of her Complaint as though more specifically restated
`
`and set forth herein.
`
`44. While employed with METRO VEIN CENTERS, HOTOPH
`
`objected to and attempted to stop METRO VEIN CENTERS from knowingly
`
`presenting false or fraudulent claims by their technicians engaging in
`
`unethical practices designed to cause patients to receive unnecessary
`
`procedures.
`
`45. The practices to which HOTOPH objected in fact lead patients of
`
`METRO VEIN CENTERS to receive fraudulent and unnecessary medical
`
`procedures.
`
`46. Some of these fraudulent and unnecessary medical procedures
`
`performed by METRO VEIN CENTERS were in fact presented for
`
`11
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.12 Filed 02/24/21 Page 12 of 19
`
`reimbursement to the United States Government through the Centers for
`
`Medicare & Medicaid Services (“CMS”).
`
`47. 31 U.S.C. § 3729 provides, in relevant part:
`
`Any person who (A) knowingly presents, or causes to be
`presented, a false or fraudulent claim for payment or approval;
`[or] (B) knowingly makes, uses, or causes to be made or used, a
`false record or statement material to a false or fraudulent claim…
`is liable to the United States Government for a civil penalty of not
`less than $5,000.0 and not more than $10,000.00… plus 3 times
`the amount of damages which the Government sustains because
`of the act of that person.
`
`48. By opposing METRO VEIN CENTERS’ unethical and fraudulent
`
`practices, described above, HOTOPH engaged in efforts to stop METRO
`
`VEIN CENTERS’ violations of the False Claims Act, 31 U.S.C. § 3729 et seq.
`
`49. METRO VEIN CENTERS terminated HOTOPH’s employment in
`
`retaliation for her efforts to stop METRO VEIN CENTERS’ violations of the
`
`False Claims Act, supra.
`
`50. 31 U.S.C. § 3730(h) provides as follows:
`
`Any employee, contractor, or agent shall be entitled
`to all relief necessary to make that employee,
`contractor, or agent whole,
`if
`that employee,
`contractor, or agent
`is discharged, demoted,
`suspended, threatened, harassed, or in any other
`manner discriminated against in the terms and
`conditions of employment because of lawful acts
`done by
`the employee, contractor, agent or
`associated others in furtherance of an action under
`this section or other efforts to stop 1 or more
`violations of this subchapter.
`12
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.13 Filed 02/24/21 Page 13 of 19
`
`51. As a direct and proximate result of METRO VEIN CENTERS’
`
`retaliatory and unlawful discrimination, HOTOPH
`
`incurred damages,
`
`including but not limited to a loss of compensation, loss of fringe benefits,
`
`embarrassment, humiliation, betrayal and emotional distress, and other
`
`incidental and consequential losses.
`
`COUNT II
`Violation of Michigan Whistleblower’s Protection Act
`Against all Defendants
`
`52. HOTOPH
`
`re-alleges and
`
`incorporates by
`
`reference
`
`the
`
`preceding paragraphs of her Complaint as though more specifically restated
`
`and set forth herein.
`
`53. MVC Clinical Practice, A and G Aesthetics, MVC MSO, and
`
`ALBARON are “employers” as that term is defined by the Whistleblower’s
`
`Protection Act (hereinafter, “WPA”).
`
`54. The U.S. Department of Health and Human Services Office of
`
`the Inspector General is a public body within the meaning of the WPA.
`
`55. HOTOPH was at all relevant times an individual employee within
`
`the meaning of the WPA.
`
`56. During her employment with METRO VEIN CENTERS, as
`
`alleged above, HOTOPH objected to unethical and illegal fraudulent
`
`diagnostic and billing practices performed by METRO VEIN CENTERS.
`13
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.14 Filed 02/24/21 Page 14 of 19
`
`57. These illegal practices were in violation of multiple state and
`
`federal laws, including but not limited to:
`
`a. The False Claims Act, 31 U.S.C. § 3729 et seq.;
`
`b. Michigan’s Prohibition on Common Law Fraud, M.C.L §
`
`750.280;
`
`c. The Michigan Public Health Code, M.C.L. §333.2894;
`
`d. The Michigan Consumer Protection Act, M.C.L. §445.901 et
`
`seq.;
`
`e. The Michigan Health Care False Claims Act, M.C.L.
`
`§752.1001 et seq.; and
`
`f. The Michigan Medicaid False Claims Act, M.C.L. §400.601 et
`
`seq.
`
`58. On or about August 26, 2020, HOTOPH reported METRO VEIN
`
`CENTERS violation of law to the United States Department of Health and
`
`Human Services, Office of the Inspector General.
`
`59. The WPA prohibits employers from discharging or otherwise
`
`discriminating against an employee because that employee has reported or
`
`is about to report a violation or suspected violation of law to a member of a
`
`public body.
`
`14
`
`
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`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.15 Filed 02/24/21 Page 15 of 19
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`60. Defendants METRO VEIN CENTERS decision to terminate
`
`HOTOPH’s employment was motivated, in whole or in part, by retaliatory
`
`animus resulting from HOTOPH’s actions of reporting and/or being about to
`
`report the violations of law described above to a member of a public body in
`
`violation of the WPA.
`
`61. Defendants actions in violating HOTOPH’s rights under the WPA
`
`were intentional.
`
`62. As a direct and proximate result of Defendants’ wrongdoing,
`
`HOTOPH has suffered damages including but not limited to loss of earnings,
`
`loss of earning capacity, past and future lost earnings, the value of fringe and
`
`retirement benefits, lost job and career opportunities, damage to her good
`
`name and reputation in the community, mental and emotional distress,
`
`humiliation and embarrassment, loss of enjoyment of the ordinary pleasures
`
`of everyday life, and the loss of the ability to pursue employment of choice.
`
`COUNT III
`Wrongful Discharge in Violation of Michigan Public Policy
`Against all Defendants
`
`63. HOTOPH
`
`re-alleges and
`
`incorporates by
`
`reference
`
`the
`
`preceding paragraphs of her Complaint as though more specifically restated
`
`and set forth herein.
`
`15
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.16 Filed 02/24/21 Page 16 of 19
`
`64. During the course of her employment with Defendants, HOTOPH
`
`refused to acquiesce in violations of law, and directly objected to METRO
`
`VEIN CENTERS’ fraudulent and illegal practices to METRO VEIN
`
`CENTERS’ executives and upper management.
`
`65.
`
`In objecting to METRO VEIN CENTERS’ technicians unethical
`
`and unlawful diagnostic practices, HOTOPH communicated to METRO VEIN
`
`CENTERS that she would not participate or engage in activities that were
`
`fraudulent or illegal.
`
`66. METRO VEIN CENTERS’ decision to terminate HOTOPH’s
`
`employment violates the clearly established public policy of the State of
`
`Michigan and constitutes a wrongful discharge.
`
`67. As a direct and proximate result of Defendants’ wrongdoing,
`
`HOTOPH has suffered damages including but not limited to loss of earnings,
`
`loss of earning capacity, past and future lost earnings, the value of fringe and
`
`retirement benefits, lost job and career opportunities, damage to her good
`
`name and reputation in the community, mental and emotional distress,
`
`humiliation and embarrassment, loss of enjoyment of the ordinary pleasures
`
`of everyday life, and the loss of the ability to pursue employment of choice.
`
`RELIEF REQUESTED
`
`16
`
`
`
`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.17 Filed 02/24/21 Page 17 of 19
`
`WHEREFORE, Plaintiff, VANESSA HOTOPH, demands judgment
`
`against each of the Defendants as follows:
`
`A.
`
`Plaintiff prays that the Court exercise its equitable power under
`
`the WPA and the False Claims Act and immediately reinstate her
`
`to her previous position;
`
`B.
`
`Award Plaintiff all lost wages and restore all fringe benefits, past
`
`(backpay) and future (frontpay), that she has or will suffer;
`
`C. Award Plaintiff compensatory damages for the mental anguish
`
`and emotional distress that she has suffered, in addition to the
`
`harm that Defendants have inflicted upon Plaintiff’s reputation
`
`and future employability;
`
`D. Award Plaintiff exemplary damages;
`
`E.
`
`Award Plaintiff’s reasonable attorney fees, costs and interest;
`
`and
`
`F.
`
`Award such other relief as this Court deems just and proper.
`
`17
`
`
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`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.18 Filed 02/24/21 Page 18 of 19
`
`Respectfully submitted,
`
`GASIOREK, MORGAN, GRECO,
`McCAULEY & KOTZIAN, P.C.,
`
`__________________________
`Greg Jones (P75318)
`Attorneys for Plaintiff
`30500 Northwestern Hwy, Ste 425
`Farmington Hills, MI 48334
`248-865-0001
`
`Date: February 24, 2021
`
`18
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`
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`Case 2:21-cv-10421-MFL-DRG ECF No. 1, PageID.19 Filed 02/24/21 Page 19 of 19
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`DEMAND FOR TRIAL BY JURY
`
`Plaintiff VANESSA HOTOPH, by her attorneys GASIOREK,
`
`MORGAN, GRECO, McCAULEY & KOTZIAN, P.C., demands a trial by jury.
`
`Respectfully submitted,
`
`GASIOREK, MORGAN, GRECO,
`McCAULEY & KOTZIAN, P.C.,
`
`__________________________
`Greg Jones (P75318)
`Attorneys for Plaintiff
`30500 Northwestern Hwy, Ste 425
`Farmington Hills, MI 48334
`248-865-0001
`
`Date: February 24, 2021
`
`19
`
`