Opinion by Consumer Advocate Tim Bolen
As you might suspect, things are going VERY BADLY for Stephen Barrett, and the other Defendants, in the Doctor’s Data v Barrett Federal Court case. Go ahead and smile.
In fact – Grin.
However, as you might also suspect, there is growing concern that Barrett’s masters and minions, desperate as they are, might fall back on the kind of tactics the “skeptics” employed against Meryl Dorey and the Australian Vaccination Network (AVN). There, you will remember, the “skeptics” were caught calling Dorey’s home telephone with death threats – in fact, “death by fire,” death threats. Then too, violent pornography was sent to her in the mail.
You can read about those “rape, mutilation and death threats against Meryl Dorey,” by clicking on the blue words.
Of course, all of my long-time readers, will remember the fact that in the early days of this case, the “skeptics” lowlifes tried their very best to destroy Doctor’s Data’s business with an organized “Googlebomb.” I wrote about that in an article called “Quackpots in a Tizzy Over Barrett Getting Sued… 7/9/10.” I said:
“What “Orac” was doing was soliciting MALICE – and he was successful. The kiss-ups went to work organizing what’s called a “Googlebomb” insuring that their totally libelous version of Doctor’s Data, and their version alone, dominated the internet search engines.
WHOA! Enter the bank robber from stage left…
Stupid? You bet. Legal “Malice” is just about indefensible in Court, and comes with the penalty, in virtually every jurisdiction in the US, of bringing on massive punitive damages without having to prove any damages in the first place. The punitive damages are applied JUST BECAUSE there was Legal Malice. Like this:
“Malice – A desire to harm others or to see others suffer: despitefulness, ill will, malevolence, maliciousness, malignancy, malignity, meanness, nastiness, poisonousness, spite, spitefulness, venomousness, viciousness. See attitude/good attitude/bad attitude/neutral attitude.”
“Malice, to most people, is a nasty feeling of wanting to hurt another person. What many people do not know is that if malicious action is taken against one party, the other party has the civil right to bring a lawsuit. This is called legal malice, or one party’s intent to cause harm to another party. What is important to note here is that malice is the intention of causing harm. Criminal offenses of causing actual harm to another party is separate from legal malice. It is important, also, to determine whether the malice is expressed or implied. In expressed malice, one party gives an outward indication of the intention to cause harm to another party. This may include an oral statement or printed statement. Implied then, is the implied intention of harm in a killing or harming of another party. ”
Frankly, the word “malice” sums up the entire “skeptic” operation. There isn’t anything else. Nothing.
So, what’s happening here?
Doctor’s Data, knowing how Barrett, and company, operate, are simply asking the Court to officially protect their “Expert Witnesses.” Below you will find the Motion, in its entirety, except for the footnotes and signatures.
MOTION FOR PROTECTIVE ORDER PURSUANT TO FRCP 26(c)(1)
NOW COMES Doctor’s Data, Inc., Plaintiff, by its counsel, Augustine, Kern and Levens, Ltd., and Kulwin, Masciopinto and Kulwin, LLP, and moves for a protective order pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure1, seeking to prohibit Defendants from annoying, embarrassing, or oppressing Plaintiff’s expert witnesses or causing them any undue burden or expense. In support, Plaintiff submits as follows.
BACKGROUND FACTS
- This Court is very familiar with the facts of this case, so only a brief summary is provided here. Doctor’s Data was forced to sue Defendants, Stephen J. Barrett, M.D., National Council Against Healthfraud, Inc., and Quackwatch, Inc. (collectively, “Barrett Defendants”), after they employed their websites and Internet resources to:
(a) widely publish false and libelous Internet statements that Doctor’s Data was a “shady lab” that conspired with so-called “nonstandard” physicians to “defraud” patients/families, and
(b) actively encourage third-party patients/families – for whom Plaintiff merely processed lab specimens consistent with physicians’ ordering instructions – to file baseless state court lawsuits against Plaintiff Doctor’s Data and their physicians.
To date, Doctor’s Data has documented millions of dollars in on-going reputational harm and lost business income caused by the Barrett Defendants’ defamatory/wrongful conduct. Indeed, to this very day, the Barrett Defendants’ defamatory statements prominently appear on the very first page of any Google search of Plaintiff’s name.
- Based on the foregoing and other facts to be explained below, Plaintiff’s liability experts – all of whom are medical professionals – have expressed concern that the Barrett Defendants will retaliate against them for their supportive role in this litigation by targeting them just as the Barrett Defendants have done against Doctor’s Data and many other health care providers nationwide. In particular, Plaintiff recently served on the Barrett Defendants three expert disclosure reports relating to certain liability issues. Plaintiff’s three liability experts are all medical providers who are highly supportive of Doctor’s Data in this matter. (SeeExhs. A, B, C)
- As such, Plaintiff’s experts requested Doctor’s Data to seek the Court’s protection for them. Accordingly, Plaintiff seeks a protective order, prohibiting the Barrett Defendants from either directly or indirectly annoying, embarrassing, or oppressing Plaintiff’s expert witnesses or causing them any undue burden or expense.
LEGAL ANALYSIS
- “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Nieves v. OPA, Inc., 2013 WL 2435084, *3 (N.D. Ill. 2013); Fed. R. Civ. P. 26(c)(1). “The only requirement in deciding whether or not to issue a protective order is the statutory mandate of ‘good cause.’” Nieves, at *3.
The party moving for the protective order must establish that good cause exists. Fed. R. Civ. P. 26(c).
- Good cause “generally signifies a sound basis or legitimate need to take judicial action.” Wiggins v. Burge, 173 F.R.D. 226, 229 (N.D. Ill. 1997). It is established by showing that disclosure will cause a clearly defined and serious injury. Nieves, at *3. Specific factual demonstrations are required to establish good cause. Id.
- In this instance, there are numerous factual grounds for a finding of good cause for entry of the requested protective order. First, the Barrett Defendants possess the means to cause significant financial and reputational harm to Doctor’s Data’s experts via Defendants’ vast Internet resources and capabilities. In particular, Defendant Stephen Barrett owns and operates Quackwatch.org and Quackwatch.com, along with dozens of other “consumer health advocate”websites, with the expressed mission to “[f]ocus upon [what Defendants’ believe to be] health misinformation, fraud, and quackery as public health problems.” (Defendant NCAHF Mission Statement).
- Second, the Barrett Defendants have a track record of actively and aggressively employing these websites and Internet resources to harass, annoy, embarrass, and oppress. The Barrett Defendants’ Internet publication that Doctor’s Data is a “shady lab” which accepts urine samples from “nonstandard” or “offbeat” physicians (or “cuckoos”) is just a small sampling. (Compl., Exh. D, p.1; Compl., Exh. G; Exh. H, Barrett Dep., pp. 76-77; Exh. I, Baratz Dep., pp.154-55, 169, 1712) Other examples just from this litigation exist as well, including:
(1) “Provoked [urine] testing is a scam” (Compl., Exh. A, p.1);
(2) “The “provoked urine toxic metals test is a fraud” (Compl., Exh. B, p.1); and
(3) Doctor’s Data’s provoked “urine test is used to defraud [or “trick”] patients” into falsely believing that their “body has dangerously high levels of lead, mercury, or other heavy metals and should be ‘detoxified’” (Compl., Exh. A, p.1; Exh. F, p.1)
- Moreover, notwithstanding this litigation (or perhaps because of it), the Barrett Defendants appear as committed as ever in employing their Internet resources and websites to harass, embarrass, and malign. To this day, the Barrett Defendants, undeterred by this lawsuit, continue to republish their defamatory pieces; indeed, an individual who searches “Doctor’s Data” in Google will see the Barrett Defendants’ defamatory statements against Doctor’s Data on the very first results page.
- Third, Defendant Stephen Barrett has already twice during the course of this litigation harassed, embarrassed, oppressed, and caused undue expense and burden for a physician witness who Defendant Stephen Barrett perceived as aligned with Plaintiff. Here, some background is required in the form of a short chronology. On March 4, 2011, Plaintiff filed a response to the Barrett Defendants’ motion to dismiss, in which Plaintiff referenced a physician who subsequently was targeted by Defendant Stephen Barrett. In particular, Plaintiff’s response brief stated, (Doc. Rec. #56, p.1-2):
[Plaintiff’s counsel’s] first encounter with Defendant Stephen Barrett was in 2004, when his name showed up on a witness list in a disciplinary complaint brought by the Illinois Department of Financial and Professional Regulation (IDFPR) against Dr. Joseph Mercola, who is a prominent voice for practitioners of “alternative medicine” in this country and the world. Dr. Mercola was charged with having made false representations on his website . . . . In the course of defending him, [Plaintiff’s counsel AKL] learned the disciplinary action had been based on a letter tendered to IDFPR by Barrett . . . .
When IDFPR tendered its witness list, Barrett was listed as its expert witness. It became apparent to AKL that Barrett’s modus operandi was to accuse doctors of wrongdoing, then offer to testify against them as an expert for a fee. Meanwhile, he would report all this on his website, Quackwatch.com, where he would solicit donations and sell advertising space. . . . Dr. Mercola’s case resulted in no discipline.
- Ten days later, Defendant Stephen Barrett harassed, indeed threatened Dr. Mercola, when he emailed Dr. Mercola saying, in part:
REDACTED DUE TO CONFIDENTIALITY ORDER
- Defendant Stephen Barrett made good on his threat to harass, oppress, embarrass, and subject Dr. Mercola to undue expense. In particular, 5½ weeks later, on April 23, 2011, Defendant Stephen Barrett tendered another complaint against Dr. Mercola to the Illinois Department of Professional Regulation. (Exh. D, 4/23/11 Barrett Letter to IDPFR) In this complaint, Defendant Barrett attacked Dr. Mercola’s medical license, professionalism, and integrity by calling for an investigation into allegations that Dr. Mercola was
REDACTED DUE TO CONFIDENTIALITY ORDER
Like the prior complaint, this one has not resulted in any discipline, but still, Defendant Barrett succeeded in harassing, oppressing, and embarrassing Dr. Mercola and subjecting him to undue burden and expense. It is clear from his own email of March 14, 2011, that Defendant Barrett engaged in this campaign of harassment because Plaintiff’s counsel did not respond to his threat.
- Fourth, the Barrett Defendants have a long, established history of using their websites and Internet resources to annoy, embarrass, oppress, and impose undue burden and expense upon health care practitioners and entities with whom they disagree. For instance, Defendant Stephen Barrett fomented at least two private party lawsuits against Doctor’s Data and numerous health care practitioners alleging, among other claims, medical malpractice, negligence, and fraud. SeeComan v. Usman M.D., et al., 2010 L 2776 (Circuit Court of Cook County, Illinois); Stemp v. CARE Clinics, et al., 0-1-GN-2279 (Travis County, Texas); see also Pfister v. Doctor’s Data & Patel M.D., et al., 49 D 10-802-5046 (Marion Superior Court, Indiana). Although the Pfister litigation has resolved in favor of Doctor’s Data on summary judgment, the cost and burden of prevailing was substantial. (Exh. F, SJ ruling in favor of Doctor’s Data) Indeed, in an email to one of his referring attorneys used by him to sue Doctor’s Data and medical professionals, Defendant Stephen Barrett exclaimed,
REDACTED DUE TO CONFIDENTIALITY ORDER
(Exh. G, 3/26/10 Barrett Email, DEF06430)
- Finally, through his prolific muckraking over the past three decades, Defendant Stephen Barrett’s websites have earned him the reputation as one of Wikipedia’s ten most controversial persons. Defendant Stephen Barrett does not shy away from using his power and influence to try to control outcomes, foment litigation, and destroy careers. As such, Plaintiff’s experts have legitimate, real concerns.
- Based on the foregoing, Doctor’s Data respectfully submits that “good cause” exists for the entry of the requested protective order. This Court should prohibit the Barrett Defendants from either directly or indirectly annoying, embarrassing, oppressing, or causing undue burden or expense for Plaintiff’s expert witnesses, Russell Jaffe, M.D., Ph.D.; Gregory D. Clark, Ph.D., DABCC; and Robin A. Bernhoft, MD, FACS, FAAEM, DABEM. Such a protective order is necessary to prevent Plaintiff’s expert’s from suffering the type of “clearly defined and serious injury” that the Barrett Defendants are capable of causing, have in the past been willing to cause, and have, in fact, caused both within and outside of this litigation.
WHEREFORE, Plaintiff Doctor’s Data, Inc. prays that this Court enter a protective order enjoining Defendants from either directly or indirectly annoying, embarrassing, or oppressing Plaintiff’s expert witnesses or causing them any undue burden or expense.
What I really think...
I kind of wish that Barrett’s masters and minions would actually try to attack Doctor’s Data’s expert witnesses. Especially after the judge issues a Protective Order. Jail would be a really good place to hold their “Amazing” meetings. They’d certainly be better attended than the ones the “skeptics” are holding in Las Vegas.
But, don’t get your hopes up. These people are not known for bravery.
Stay tuned…
Tim Bolen – Consumer Advocate
– See more at: https://bolenreport.com/feature_articles/Doctor’s-Data-v-Barrett/protectiv%20order.htm#sthash.faOyWVFw.dpuf