from the in-lieu-of-anti-SLAPP,-am-willing-to-take-eviscerating-dismissal dept
The state of New York -- like several others -- has no anti-SLAPP statute. [Charles Glasser writes in to say that New York does have a very limited anti-SLAPP statute, but that it "has not been applied to publications in any form, on-line or by news organizations."] Hence, people are forced to put up with litigants who have (often intentionally) mistaken criticism for defamation. Shutting people up is the name of the game, using the threat of long, expensive court battles. This particularly egregious attempt to stifle a critic involved a disgraced doctor and Eric Turkewitz, a personal injury lawyer whose sharp-tongued blog has also seen him targeted by similarly misguided litigants whose own words and actions have done them the most damage. (See also: Joseph Rakofsky.)
Dr. Michael J. Katz performed medical examinations for insurance companies involved in personal injury claims. While trotting out his expertise as a medical examiner, he was called out by Queens Supreme Court Justice Duane Hart for his inability to provide an honest account of a medical examination.
Katz's complaint against Turkewitz [pdf link], detailing the supposed defamation that occurred in a blog post, contained far more damaging quotes from Justice Duane Hart than anything concoted by the blogging lawyer. In short, Katz presented his own bleeding body (and disgraced reputation) as evidence that he had been defamed by Turkewitz, even if Turkewitz's post (and Katz's complaint) were composed mostly of direct (and incredibly damning) quotes from Justice Hart's bench slam.
Here are just a few (Turkewitz's post on the lawsuit contains many, many more):
… off-the-record, that Dr. Katz’s career doing IME work might be over, calling him a “no good liar,” and told him to retain a lawyer...This was all included in Katz's complaint. And this was all previously reported by Turkewitz, using actual court transcripts, etc. Katz's argument was -- unbelievably -- that, yeah, the judge said all those mean things, but Turkewitz's post created some negative "impressions" that weren't based in fact.
[Hart] threatened Dr, Katz with criminal prosecution and imprisonment multiple times, off-the-record, throughout the morning[...]
The doctor’s career doing IME’s might be over. If he gets caught in a lie on something that’s material at trial his future use to anyone is useless, correct? That will follow the doctor forever[...]
Justice Hart announced, in open court, but off- the-record, “Your client is a liar and a thief.” [...]
[Hart:] I unsealed the record. Everybody from now on when he testifies as to the tests that he performed, it is always going to be questioned from now on. After about a month or two, nobody is going to go near him anyway. So he is not giving up much. What he is giving up is me referring it to the District Attorney and to the Administrative Judge. I would think that he wants to consider it again. Nobody is going to go near him.
Turkewitz falsely stated and implied, among other things, that Dr. Katz had committed perjury, fraud and was guilty of racketeering. Turkewitz’s blog posts were intended to create the impression that Dr. Katz had been charged with and/or convicted of criminal perjury and other crimes which would make him unfit to act as an expert witness.Katz also claimed (again, without supporting quotes) that Turkewitz posted "provocative and/or scandalous material" to drive readers to his blog.
The addition of "impressions" was supposed to make Katz's case. But Katz had nothing resembling a case in his 66-page filing. What he did have closely resembled a finely-tuned character assassination attempt, only with the barrel pointed in the wrong direction.
Eric Turkewitz has announced that the lawsuit has been tossed, nearly 8 months after it was filed.
Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern.The judge compared Katz's complaint with the court transcript and Turkewitz's post and came to a reasonable conclusion: the things that happened happened, and Turkewitz's reporting was reporting, rather than a baseless attack on Dr. Katz's reputational remnants. [pdf link]
Why was it chucked? Well, it seems that reporting on what happened in a courtroom is fair game. We have those law thingies that protect us for that. Specifically, New York Civil Rights Law 74, which reads:
A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.
Oh, that law.
Citing to Dr. Katz’s own complaint, which sets forth ad nauseum all of the eviscerating comments Judge Hart made about Dr. Katz being a liar, Justice Kern dismissed the case for failing to state a claim. In other words, we accurately reported what transpired in court, that Justice Hart called him a liar, ergo it’s impossible to make a claim.
Indeed, a side by side comparison of the posts, specifically the statements identified by the plaintiffs in their complaint, with the proceedings transcripts…clearly reveal that Turkewitz and Freundlichs’s reports of the proceedings accurately reflect Justice Hart’s statements.More ammo for anti-SLAPP laws. Even clearly baseless lawsuits still take time and effort on the part of those wrongly accused by people whose inability to live with their own actions and words prompt them to "go legal" in response to criticism. This probably won't be Turkewitz's last tango with vexatious litigants, thanks to his provocative/scandalous coverage of stupid people being stupid -- usually while under the protective "cover" of actual courtroom proceedings.