June 24th, 2011

Rakofsky Motion #7 – Doudna Moves to Dismiss and for Sanctions

The seventh motion in the Joseph Rakofsky defamation case against 81 defendants is now being served. (Background on the case here).

This motion is by defendant Michael Doudna, a California criminal defense lawyer. He is represented by Thomas Catalano of Lester Schwab Katz & Dwyer here in New York.

The motion seeks two types of relief:

  1. Dismissal based on a lack of long-arm jurisdiction;
  2. Sanctions. The sanctions motion is based on Rakofsky sending an email shortly after suit was started, where he tries to quickly settle the case for $5,000, an amount that would no doubt be below defense costs.

And so we now have multiple defendants weighing in on the case, and in doing show the diverse ways that attorneys elect to defend:

Our group of 35 defendants (repesenting 16 authors) started out of the gate with procedural issues dealing with a pro hac vice admission for Marc Randazza and trying to get a unified date for all defendants to answer or move.

Defendants Seddiq, Koehler and Kennerly elected to make a straight up motion to dismiss on the merits, despite the fact that all are outside New York and therefore not subject to our courts’ jurisdiction. They left the jurisdictional issue aside.

By contrast, Defendant Doudna today does the opposite, focuising only on the jurisdictional question, and not the merits (or lack thereof).

Defendant Yampolsky elected to put in an answer, perhaps allowing other defendants to do the heavy lifting and then come in at the end with a simple (and cost-effective) “me too” motion.

Defendant Reuters moved on the merits.

Different lawyers, different strategies. The practice of law is often an art, not simply a matter of dredging up case law.

Moving to the substance of the Doudna papers, I saw an interesting sidenote: The Doudna blog was created and maintained by a marketing company, not the lawyer. The details are described in the Doudna and Kenney Affidavits, Kenney being the marketer. While it won’t be relevant to this particular case, the concept of outsourcing your marketing has a huge risk to it as attorney ethics are part of marketing. When you outsource your marketing, you outsource your ethics. It may not amount to a hill of beans in this particular case, but trouble clearly lurks when a lawyer asks a non-lawyer to be his agent and publish under his name

The marketing company relationship is summarized this way in the Memo of Law:

The marketing service that maintained the Doundna blog located the ABA Journal article concerning Rakofsky, drafted a synopsis, and placed it on the Doudna blog, along with a hyperlink to the ABA website where the original source article could be viewed.

The following are the documents being filed:

DoudnaMemoOfLaw

CatalanoSupportingAffirmation

DoudnaSupportingAffidavit

KenneySupportingAffidavit

NoticeOfMotion

 

June 23rd, 2011

Wrong Site Surgery Continues To Be a Problem

You would think that easy mistakes, like surgery on the wrong part of the body or wrong patient, could be easily eliminated. Well it can. But it hasn’t.

An article this week in Kaiser Health News highlights the continuing problem (Effort To End Surgeries On Wrong Patient Or Body Part Falters). Seven years after universal protocols were instituted by the Joint Commission on Accreditation, “some researchers and patient safety experts say the problem of wrong-site surgery has not improved and may be getting worse.” These were some of the facts:

Based on state data, Joint Commission officials estimate that wrong-site surgery occurs 40 times a week in U.S. hospitals and clinics. Last year 93 cases were reported to the accrediting organization, compared with 49 in 2004. Reporting to the commission is voluntary and confidential — to encourage doctors and hospitals to come forward and to make improvements, officials say. About half the states, including Virginia, do not require reporting. In two states that track and intensively study these errors, 48 cases were reported in Minnesota last year, up from 44 in 2009; Pennsylvania has averaged about 64 cases for the past few years.

Medical workers continue to mix up left and right sides, view x-rays backwards, fail to take timeouts to insure they have the right patient and right surgery, and make other routine errors. There is also this study cited by the article:

Reported cases are “clearly the tip of the iceberg,” said Philip F. Stahel, director of orthopedic surgery at Denver Health Medical Center.

Stahel was lead author of a 2010 study of 132 wrong-site and wrong-patient cases reported by doctors to a large malpractice insurer in Colorado between 2002 and 2008, one-third of which resulted in death or serious injury. Among them were three men who underwent prostate cancer surgery although they were cancer-free. In 72 percent of cases there was no timeout.

There is much more in the article, and I encourage others to read it, but there something else buried at the end, which deals with a doctor apologizing for doing a carpal tunnel surgery when he was supposed to do a trigger finger release. He confessed to the patient, then did the proper surgery. The hospital paid out a small settlement and there was no litigation. And that is likely because, as one book argues saying “I’m sorry” works, which happens to be in tune with my own observations of human behavior.

 

June 23rd, 2011

Rakofsky Case: Reuters Moves To Dismiss (Updated x2)

Reuters has moved to dismiss the case that Joseph Rakofsky recently brought against 81 defendants  for defamation. I am one of the defendants, and you can read the background on the case and my response here.

Since I am also now local counsel to 35 of the defendants, I’ve elected to refrain from further commentary, though I have been publishing many of the filings here.

The Reuters motion to dismiss includes its writer Dan Slater. The motion is directed toward the merits, even though Reuters alleges a failure to properly serve the suit.

Counsel for Reuters is Mark Weissman of Herzfeld & Rubin.

This represents the sixth motion in this young case:

1.  Our motion to extend time to answer or move,  and for pro hac vice admission of Marc Randazza

2.  Kennerly Motion to dismiss

3, 4  Seddiq and Koehler motions to dismiss.

5.  Borzouye motion to withdraw as counsel for Rakofsky

The documents for the Reuters motion to dismiss:

Notice of Motion,  Mark Weissman Affidavit and Exhibits

Daniel Slater Affidavit

Reuters Memo of Law

Updated 5/24/12: Rakofsky’s Memo of Law in Opposition: Rakofsky Opp Memo Of Law

Updated 6/26/12: Reuters Reply Memo and Opposition to cross-motion to amend the amended complaint:Reply Memo-Law:Opp-x-m

 

June 20th, 2011

Rakofsky Lawyer Asks To Quit Suit (Updated x3; Motion Granted)

The lawyer for Joseph Rakofsky who sued me and 80 other people/companies and other entities for defamation — has asked the Court for permission to withdraw as counsel. Richard Borzouye, counsel for Rakofsky, asserts in his moving papers that he had been threatened by Marc Randazza (seeking pro hac vice admission on my behalf and that of 34 other named defendants) with a wiretapping criminal complaint. This is a copy of the motion papers:Borzouye Motion to Withdraw

A copy of Mr. Randazza’s affidavit in reply to another motion gives a fuller recitation of the conversation(s) at issue. My own affidavit in another motion also discusses the problematic issue of Mr. Rakofsky’s corporation as a party to this suit,  and the difficulties Mr. Rakofsky will have trying to act as its counsel.

For the out of town readers, under New York law an attorney can withdraw by asking the court to be relieved as counsel or with a stipulation substituting new counsel. But one cannot simply walk away from a case.

I will leave the commentary to others.

Update – 6/27/11: We have submitted an Affidavit in partial opposition to Borzouye’s motion to be relieved as counsel. The opposition is limited to making sure that the corporate plaintiff (Joseph Rakofsky, P.C.) has proper counsel before the court since a corporation can only proceed with a lawyer:Turkewitz-PartialOpp; also ExhibitB-PartialOpp

Update – 7/1/11: Mr. Borzouye has put in a Reply that is substantially identical to his moving affirmation. But the moving affirmation was apparently pulled from this motion and submitted in the pro hac vice motion. The details of how that occured can be read here.

Update – 7/23/11: The court grants Borzouye’s motion to be relieved with this language (though it disregards the Borzouye’s Reply Affirmation for this reason:”Not accepted as it was not filed”):Decison-RelievedAsCounsel

Upon the foregoing papers, the motion for an order permitting Richard D. Borzouye, of the law firm of Borzouye Law Firm, P.C., to withdraw as attorney of record for Plaintiffs, to which Plaintiffs do not object (and to which movant represents Plaintiffs consent), but to which some of the Defendants object, is granted in accordance with the following.  Although Defendants objection to movant’s withdrawal is limited to their concern that new counsel should be substituted because a corporate defendant must appear by counsel, that is Plaintiffs concern, not theirs.  It is hereby
ORDERED that the motion to withdraw is granted to the extent that Richard D. Borzouye, of the law firm of Borzouye Law Firm, P.C., is relieved as counsel for Plaintiffs, upon service of a copy of this Decision and Order, upon Plaintiffs by August 3, 2011, and service upon all appearing parties, with proof of service faxed to the court at 212-401-9045, and it is further
ORDERED that this action is stayed until September 14, 2011 for Plaintiffs to locate new counsel.  Argument will be heard on the motion to admit pro hac vice on September 15, 2011 at 3PM.
This constitutes the Decision and Order of the Court.

 

June 20th, 2011

Rakofsky v. Internet (First Motion, Pro Hac Vice) – Bumped and Updated x3

Initial post on June 3rd:  Attached at the bottom are a set of motion papers being served today in Joseph Rakofsky’s suit against 81 defendants (including me) for defamation. I have previously given my thoughts on it, as a defendant, and my defense of vade et caca in pilleum. (Updated 6/20/11 below, Rakofsky’s opposition and our Reply)

But since I am now the attorney of record for 33 out of the 81 defendants, I will no longer be providing much in the way of opinion on this blog (other than what may be in papers being filed).

The motion is to extend the time to answer for all defendants, so that we have unified scheduled for making motions and answering, and to admit Marc Randazza pro hac vice.

Attached are the following:

Moving Papers:

NoticeOfMotion

TurkewitzAffidavit

RandazzaPetition

Exhibits to motion include:

Complaint

AmendedComplaint

Washington Post story of April 1, 2011

Washington Post story of April 9, 2011

“Trick” email

RakofskyTrialTranscript

Update 1:  6/20/11 Updated Docs (Opposition and Reply):

Rakofsky Memorandum Of Law In Opposition

Turkewitz Reply Affidavit

Randazza Reply Affidavit

Update 2:  6/30/11 Updated Docs (Sur-Replies and court appearance 6/29/11)

BorzouyeSupplementalAffirmation

Turkewitz-Sur-Reply

Randazza-Sur-Reply

Update 3:  9/21 Update: The motion was heard on oral argument on September 15th and the motion to admit Randazza pro hac vice was granted. An order will follow. The court also granted Rakofsky more time to find new counsel and set down a briefing schedule for motions to dismiss. The schedule is as follows:

Nov 15: Plaintiff to obtain new counsel by this date or the corporate defendant (Rakofsky PC) is dismissed as corporations must have a lawyer. Rakofsky can proceed pro se in his individual capacity.

January 13, 2012: Due date for all pre-answer motions to dismiss or answers;

February 13: Opposition due for all motions to dismiss;

March 13: All Replies due on motions to dismiss

March 14: Return date of the motions

All other activity is stayed by the Court.

Documents: Order (Typed Version Unofficial)