Roca Labs' Lawyer Accused Of Intimidation After Threatening Expert Witness With *Criminal* Charges Over Billing Rates

from the prices-so-high-they-must-be-CRIMINAL! dept

The United State's leading purveyor of packed-in-garages stomach cement weight loss product can't be expected to let the merits of its offerings speak for themselves. I mean, it theoretically could allow this to happen, but it has already taken steps to ensure any positive reviews of its "gastric bypass alternatives" can only be viewed with skepticism.

Roca Labs will give purchasers a cut rate if they agree to proselytize on the company's behalf. Unhappy customers who tie themselves into this agreement are forced to display a public rictus or face additional withdrawals from their credit cards/bank accounts, as well as lawsuits for defamation and breach of contract. Those who pay the higher price initially are somewhat better off, although Roca Labs still seems intent on shutting down any negative portrayal of its products.

Given this background, it comes as no surprise that its courtroom tactics are just as surly and underhanded. A new motion for "case-terminating sanctions" has been filed in one of Roca's many, many lawsuits.

For the third time, Plaintiff and its attorney have engaged in unlawful witness intimidation. The prior times, this Court just told them not to do it again. They did not respect that warning. This time, Roca’s attorney is attempting to intimidate an expert witness from testifying by threatening criminal sanctions, and that threat has placed this witness in fear, requiring a rebuke from this Court sufficient to assuage his fears. A simple “don’t do it again” did not work last time. (Doc. # 17.) Defendants request a harsher rebuke from this Court, lest this continue.
This lawsuit, brought in Florida's middle district, features Roca suing PissedConsumer for negative reviews. Roca is suing everyone involved, from the reviewers themselves to the company owning the company owning the PissedConsumer brand. In its voluminous discovery demands, Roca is seeking pretty much every detail about every involved entity, including innocuous business dealings and, weirdly, the account holder info behind some negative tweets.

Several months and 100+ documents later, there's been some fighting over depositions and witnesses. That's where this gets uglier. Marc Randazza's filing notes that this isn't even the first time in this particular case that Roca's attempted to intimidate witnesses into withdrawing.
This action began with a request from Roca for this Court to impose an unconstitutional prior restraint on Defendants, in the form of their Motion for Entry of a Temporary Injunction. In Defendants’ Opposition to this Motion, filed September 18, 2014, Defendants contacted Roca’s former customers and attached declarations from them detailing their experience with Roca’s products. Very shortly after Defendants filed their Opposition, Plaintiff contacted these witnesses with threats of litigation for breach of an unenforceable contract. This timing was anything but coincidental, and so Defendants then brought a motion for a temporary restraining order against Plaintiff to cease this witness intimidation. While the Court denied Defendants’ motion on September 23, 2014, it “remind[ed] the parties that it will not hesitate to impose sanctions on any party that engages in witness tampering, in violation of 18 U.S.C. § 1512.”
This stern talking to didn't work. Roca sued the witness, as well as Randazza himself. Now, it's attempting to do the same thing to another potential witness, only going further by claiming (baselessly) that the witness could be subject to criminal charges.
Fast forward to May 2015. The parties have been in the process of attempting to schedule depositions prior to the discovery cutoff, including the deposition of Defendants’ expert witness Thomas Parisi, MD. Defendants’ counsel retained Dr. Parisi as an expert witness, and the two worked together to determine a fair expert billing rate for all parties to this action. (See Declaration of Marc J. Randazza [“Randazza Decl.”], attached as Exhibit 3, ¶¶ 2-7.)

On May 22, 2015, Mr. Berger contacted Dr. Parisi by phone. (Declaration of Thomas Parisi [“Parisi Decl.”], attached as Exhibit 4, ¶ 8.) During this conversation, Mr. Berger asked Dr. Parisi about his expert witness billing rates, and Dr. Parisi informed him of them. (Parisi Decl. ¶ 9.) After being told of Dr. Parisi’s rates, Mr. Berger threatened him with criminal prosecution, stating that charging different rates for written testimony and trial testimony was “illegal” and that he would need to retain legal representation. (Parisi Decl. ¶ 10.) Berger went so far as to threaten Dr. Parisi with criminal prosecution. (Parisi Decl. ¶ 10.) Dr. Parisi felt intimidated and frightened by Mr. Berger’s threats, especially in light of Roca’s prior behavior. (Parisi Decl. ¶¶ 11-12, 15.) Dr. Parisi is hesitant to testify on Defendants’ behalf, specifically due to Mr. Berger’s threats. (Parisi Decl. ¶ XX.)
In defense of its actions, Roca Lab's lawyer, Paul Berger, claims Randazza somehow "fixed" the prices to make it, I don't know, prohibitively expensive? (Randazza has to pay the same amount for Parisi's testimony.) Berger's email is included in the exhibits, and it's filled with allegations that Parisi could do the work cheaper, and that Randazza drove the price up. Cited in support are the fact that Parisi closes his office at noon every Friday (Parisi's higher in-person rate cites having to close his office as justification for the increase), as well as the fact that the average Las Vegas vein surgeon makes $375,000 a year -- both of which seem mostly irrelevant to the issue at hand -- that issue being that expert witnesses are free to charge whatever they'd like for court appearances.

From Florida's laws on expert witness fees:
Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs. In instances where services are provided for the state, including for state-paid private court-appointed counsel, payment from state funds shall be in accordance with standards adopted by the Legislature.
Here's Parisi's statement:
As with the majority of expert witnesses, I charge a different billable rate for research and preparation of written reports than I do for in-person testimony.

Part of the reason I charge a higher rate for in-person testimony is that when I am doing research and drafting reports, I can do that in the comfort of my home, during down-time, when I would otherwise not be working or spending time with my family. Therefore, for reports, I only charge $300 per hour.

For in-person testimony, I charge a minimum of $3,000 for a half day. This is because I must take my practice offline for that much time, if I am going to report to a court or a court reporter’s office. In addition, it requires me to shut down my clinic for a large portion of a given day, as I am the only doctor working at my clinic. Further, I find in person testimony to be unpleasant and undesirable, and while I am willing to do it for the right pay, I can think of no other activity that would be as unpleasant as being deposed.
Parisi's statement also points out that it's not out of the realm of the imagination that Roca Labs would follow through with its threat to bring criminal charges against him (or, at least, attempt to, despite having no basis for doing so) considering it has already sued an opposing counsel for statements made in court.

Furthermore, Parisi offers his sworn statement that Berger's assertions in his email to Marc Randazza are wholly untrue:
It is my sworn testimony that Mr. Berger is lying in this email to Mr. Randazza, and that his statements regarding the contents of our phone conversation are not true. Mr. Berger’s statements are completely false, and seem calculated to try and create a rift between the defendants and myself.
Now, whether Roca's threats were prompted by a desire to keep Parisi from testifying or simply because its sludge slush fund for testimony reimbursement is running a little low because of its many litigations remains to be seen. But what it looks like is the standard Roca legal strategy: threaten, sue, threaten, sue, ad nauseum -- which apparently even extends to witnesses otherwise uninvolved (i.e., without "bypass alternative" currently or recently residing in their stomachs) with the lawsuits.

The allegations on either side are ugly. Roca is accused of baselessly threatening a witness with criminal charges. Randazza is accused of inflating the witness' testimony price (which would be odd, considering that's the price he also has to pay). The question before the court is: did Roca's lawyer's action rise to the level of sanctionable intimidation? A prior verbal warning by the court doesn't seem to have had any effect on Berger and Roca. If this sort of behavior continues, Roca may soon find itself being referred to as the "Prenda" of questionable weight loss products.








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  • identicon
    Edward Teach, 2 Jun 2015 @ 4:17pm

    Case-terminating sanctions!?!?!!

    Ha ha ha ha!

    It is to laugh - no judge is going to impose case-terminating sanctions! The Judge in question is probably an ex-lawyer himself, and therefore realizes the importance of billing a few hours here and there. If the Judge does anything other than issue a 'stern' warning, that both lawyers know won't go anywhere, I'll eat my Jolly Roger. The Judges are in on the joke, no?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 2 Jun 2015 @ 4:39pm

      Re: Case-terminating sanctions!?!?!!

      Yeah, the judge showed a complete lack of spine with their previous 'warning', I doubt they'll suddenly grow one now. Odds are they'll just issue another 'warning', which Roca will of course ignore, because why wouldn't they?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 4:22pm

    it already is

    What do you mean "Roca may soon find itself being referred to..." In my mind they already are. As a result of this trial if it is publicized enough no one in their right mind would have anything to do with them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 4:28pm

    risk vs. reward

    "The question before the court is: did Roca's lawyer's action rise to the level of sanctionable intimidation?"

    It's not uncommon in the US legal system for lawyers to "hit below the belt" in attacking the opponents of a well-paying client, who generally stands much more to gain than to lose from such actions, since any penalty (however slight) would tend to fall on the lawyers, rather than the person or company that hires, pays, and instructs them to do their dirty work.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 6:02pm

    Next up, Roca Labs sues the courts for making any ruling other than positive against Roca Labs.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 6:10pm

    Roca is suing everyone involved ... Roca is seeking pretty much every detail about every involved entity, including innocuous business dealings... But what it looks like is the standard Roca legal strategy: threaten, sue, threaten, sue, ad nauseum...
    It's almost like Roca is trying to clog the courts with so much worthless crap that the system will slow to a crawl and its targets'll simply give up and capitulate to its demands. Roca Non-Surgical Legal Bypass.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 2 Jun 2015 @ 6:50pm

    something something ethics.
    something something rule of law.
    something something bar review.
    something something and that was the year we stopped allowing lawyers to provide self oversight and started taking the Bards advice.

    Lawyers will do anything. Those charged with keeping them in line are more concerned with the appearance of the profession than taking one of these fools to task. Tis better to let stupid lawyers lawyer, than to take them to the woodshed. A majority of the time these are small in-house stories told over drinks at conventions... the problem is regular people are now paying more attention as they more and more find themselves the targets of this rabid legal minds.

    If us regular folks were as getting as many passes as these lawyers are... Manson would still be on the streets.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 7:37pm

    Roca is threatening their own witness because they don't like the rates he charges for testifying? Expert witnesses can charge whatever they want for their testimony. There is no law that states that expert witnesses have to charge a certain rate for their testimony.

    If Roca doesn't like it, they are free to choose a different expert.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Jun 2015 @ 10:19pm

    Error

    Suing Randazza for statements made in court has got to be one of the stupidest things they could have done. He does not suffer fools lightly. I suspect that his response will be the legal equivalent of cutting your heart out and feeding it to you, although I suspect his description would be MUCH more colorful.

    reply to this | link to this | view in chronology ]

  • icon
    G Thompson (profile), 3 Jun 2015 @ 12:53am

    Further, I find in person testimony to be unpleasant and undesirable, and while I am willing to do it for the right pay, I can think of no other activity that would be as unpleasant as being deposed.

    As an expert witness in certain situations I am gleefully going to steal and use this statement a lot now! Awesome and so so true!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2015 @ 7:59am

    During this conversation, Mr. Berger asked Dr. Parisi about his expert witness billing rates, and Dr. Parisi informed him of them. (Parisi Decl. ¶ 9.) After being told of Dr. Parisi’s rates, Mr. Berger threatened him with criminal prosecution, stating that charging different rates for written testimony and trial testimony was “illegal” and that he would need to retain legal representation. (Parisi Decl. ¶ 10.)

    Sounds like Roca Labs wanted to use Dr. Parisi as an expert witness. Otherwise, why ask him about his witness billing rates, which have nothing to do with the filed lawsuit.

    reply to this | link to this | view in chronology ]

    • identicon
      WTF, 6 Jun 2015 @ 2:32pm

      Re:

      "Sounds like Roca Labs wanted to use Dr. Parisi as an expert witness."

      No, it doesn't sound like that at all.


      "Otherwise, why ask him about his witness billing rates, which have nothing to do with the filed lawsuit."

      Duh. Because Roca will be paying those costs when they lose.

      reply to this | link to this | view in chronology ]

  • identicon
    Not Jim Ardis, 3 Jun 2015 @ 8:30am

    Point about fees and paying them

    While it is true that initially Randazza will have to foot the bill for his witnesses, I somehow suspect that in the end the fees and costs will end up shifted to Roca...

    So I suppose they might really care about how much Marc is paying for Expert Witnesses, but only if they think that if this plays out they are going to end up getting benchslapped...

    reply to this | link to this | view in chronology ]


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