In a complaint eerily reminiscent of Rakofsky v. The Internet, Eric Turkewitz is being sued by former orthopedist turned defense expert witness Michael Katz because Queens Supreme Court Justice Duane Hart found Katz to be a liar. And how, one might wonder, can we be certain, absolutely certain, that Justice Hart found Dr. Katz lying? The complaint says so:
The surreptitious (and misleading) videotape should have resulted in an immediate mistrial, but Justice Hart inexplicably concluded that Dr. Katz lied concerning the length of the examination despite the fact that he clearly testified he could not remember how long the examination took. Justice Hart proceeded to berate Dr. Katz both on and off the record during numerous subsequent proceedings and inexplicably demanded that Dr. Katz contribute money towards a settlement with plaintiff. Justice Hart called Dr. Katz, among other things, a “no good liar” and a “thief” and implied that he was a “spy” with “little beady eyes.”
The problem is laid bare that Katz, having gotten slammed by the judge as a liar, feels compelled to lash out at somebody, and since Justice Hart is off the table, decided to see if he could shake up Turk for writing a series of posts about it at New York Personal Injury Law Blog. Unlike Katz’s self-assessment, that he is a “is an accomplished, well-known and, until recently, well respected, physician,” who was “universally regarded as a professional and unflappable witness,” liar was not a characterization to his liking.
It started with Katz’s testimony about the length of time spent performing a defense medical examination of the plaintiff in the case (which, for reasons that will never make any sense, are called “Independent Medical Exams” because it sounds so much better than “exams by the insurance company’s hired gun), which was surreptitiously videotaped.
The question raised was the length of time that Katz actually spent examining the plaintiff, meaning not the time spent taking a cursory medical history, but hands-on examination. The complaint alleges that Katz couldn’t remember, so when pressed to give his “usual,” he testified “I think a range of between ten and 20 minutes would be appropriate.”
The complaint tries desperately to spin the video to prove that the medical examination lasted more than one minute, 56 seconds:
Plaintiff’s counsel not only misconstrued the nature of Dr. Katz’s testimony but also misrepresented the length of the recording. The recording lasted for five minutes six seconds. The video also begins some time after the plaintiff entered the exam room and it is not clear how much longer Dr. Katz and the plaintiff remained in the exam room together after the video terminated.
The problem with video, of course, is that no amount of spin changes what the video shows. The issue was never the length of the video, but the length of the medical exam.
The balance of the Rakofskyesque complaint makes the usual allegations trying to smear Turk as a “blogger”:
Turkewitz is a prominent attorney who primarily represents plaintiffs in personal injury cases. He also maintains a popular internet blog called the New York Personal Injury Law Blog. Turkewitz’s blog routinely attacks the insurance defense industry including doctors who perform IME’s such as Dr. Katz. Turkewitz attempts to generate interest in his site by posting seemingly provocative and/or scandalous material.
This has nothing to do with the fact that Justice Hart found Katz to be a liar, of course, but it’s all that Turk’s fault because he posts “provocative and/or scandalous material.” Turk’s the Harvey Levin of “prominent” personal injury lawyers.
The allegations against Turk border on the surreal:
Turkewitz’s statement, made in his July 8, 2013 Blog Post, that “Last week a state trial judge unsealed a record showing falsified testimony by an New York orthopedist who conducts up to 1,000 medical-legal exams each year” is false misleading [sic]. There is no credible evidence in the record that Dr. Katz falsified his testimony. This statement unfairly and inaccurately implies that Dr. Katz had been charged with and/or convicted of criminal perjury.
So the statement is totally accurate, but Katz claims it “implies” something entirely different than what it says? Katz alleges that Turk’s fault is that he relied on the words of Justice Hart rather than revisited the testimony personally, took Katz’s side and reached the conclusion Katz would have preferred. Because being called a liar by the judge made Katz feel bad, and posting that the judge called Katz a liar so that he couldn’t keep it under wraps made Katz feel even worse.
The complaint, which involves other defendants including defense lawyer, Paul Kassirer from Lester Schwab, who made the mistake of also revealing Katz’s very bad day, goes on for 65 pages, and doesn’t get any better.
One question that invariably pops up when someone decides that suing a blawger for telling the truth too well is a good idea, because his client who is already terribly butthurt by the publicity he’s received: Has he never heard of Barbra Streisand? To the extent anyone was previously unfamiliar with Michael Katz having been called a liar by Justice Duane Hart, chances of their learning about it have just improved dramatically.
And to the extent that Katz might be able to spin it so the blame falls on the judge for getting it wrong, the video tells the story. Did he really think cheap talk in a complaint was going to overcome those lying eyes?
There is another thing, however, that is conclusively proven by this lawsuit seeking $40 million in compensatory and punitive damages against Turk, a few times over. New York needs Anti-SLAPP legislation, and until then, the judges who catch these misbegotten efforts to shut down blawgs for posting information that butthurt docs don’t want anyone to see need to impose available sanctions.