November 20th, 2015

Appellate Court Exonerates Dr. Katz; Lays Down Law on Recording Medical-Legal Exams (Updated)

Michael J. Katz

Michael J. Katz

The Appellate Division (Second Department) this week exonerated Dr. Michael Katz for lying under oath in a personal injury case before Justice Duane Hart in April 2014. Justice Hart’s condemnation of Katz as a liar — “more than 60 times” by the count of the appellate court — was covered here extensively at the time. And it was covered yet again when Katz brought a frivolous defamation suit against me after reporting Justice Hart’s comments.

The court also leveled sanctions against plaintiff’s counsel, who had surreptitiously recorded a medical-legal exam that Katz had conducted on the plaintiff. That video ran five minutes in total length with the actual exam part lasting just one minute and fifty-six seconds. It was this video that led both to Justice Hart’s condemnation of Katz and the appellate court’s condemnation of plaintiff’s counsel.

This is the executive summary of the decision (Bemejo v. New York City Health & Hosps. Corp.):

  1. A lawyer cannot surreptitiously video a medical-legal exam, and must obtain court permission to do so.
  2. If an exam is recorded, the video must be exchanged in advance of trial.
  3. The court held that Katz did not lie (though I think the analysis was incomplete, as described below).
  4. The court will allow the defendants to hire a new physician to do medical-legal exams, despite the fact that he is physically available (i.e. not dead or in jail) because of the unusual circumstances here that has Dr. Katz refusing to set foot in the courtroom again for this case.
  5. If the trial lawyer attends the defense physical exam with the client, he risks becoming a witness to what happened and being disqualified.
  6. The plaintiff’s lawyer was directed to pay the costs of the first trial and appeal.
  7. Updated: The matter actually settled in March 2015, but the court rendered this decision anyway.

The decision is very long in the facts department because it’s so unusual. The short version is that Katz did a medical-legal exam for the defendants, and in his report claimed that plaintiff’s counsel interfered with it, writing that he was:

…a nasty and obstructive front toward getting a proper history. . . . [he] just became nastier as questions were asked…

So when a second exam came around, plaintiff’s counsel secretly recorded it to protect himself, and presumably to shred Dr. Katz if he lied about what happened.

The video was revealed at trial only when plaintiff’s counsel called his paralegal to the stand in rebuttal to Katz, to testify about the brevity of the exam, as she had been there as a Spanish-English interpreter. And then she revealed the existence of the video only on re-direct exam.  It’s revelation came as a complete surprise.

The issues of interest in this damages-only trial (with liability having been previously determined in favor of the plaintiff):

Surreptitious Exams: While the existing law was pretty thin on the subject previously — only appellate cases in the Third (Lamendola, Cooper) and Fourth (Flores) departments were cited as having addressed the subject —  it certainly isn’t thin anymore. The court was emphatic that while plaintiffs can have representatives attend the exams, which the court calls “independent” medical exams, they will need court approval in order to record them. The court cited approvingly prior case law that held:

a plaintiff will normally be entitled to have his or her attorney present at an IME, but that permission to employ the additional measure of videotaping the examination will be granted only where the plaintiff establishes the existence of special and unusual circumstances.

There is no law from the legislature on the subject of recording, one way or the other. The court used the logic that the Legislature could have authorized it, but didn’t, and that is its support for not allowing the video. And that is a particularly weak argument.

So let me say here that I think the court badly misjudged this issue as a matter of public policy. The defense medical exam is not independent, no matter how often the courts try to pretend it is. Even Chief Judge Jonathon Lippman is on record as having said so.

What is really weird is that the court failed to give a decent rationale, other than citing to a 1989 case (Lamendola) where “videotaping has not been allowed in the absence of special and unusual circumstances.”

But the days of large, intrusive video cameras have vanished. Without a camera, the exam is like a deposition without a stenographer. Since we know these exams are exceptionally contentious, and the defense industry is rife with quickie exams, there is now no colorable reason not to document them.

This case is, in fact, the poster child for why these exams should be recorded. There were claims of interference by counsel and claims regarding the length of the exam and claims regarding the tests that were done. It’s a shame the court missed the irony.

Who, exactly, benefits from the failure to record the exam? Only the ones conducting them, who can say what they please in their reports. If court permission is needed to simply turn on a smartphone — and it shouldn’t be —  then the courts should be liberal in allowing it to happen.

We often tell juries that a trial is a search for the truth, and that we want them to be the proverbial fly on the wall that determines what actually happened. Well, technology now allows that for these exams.

This decision is, plain and simple, very bad law.

Exchange of Videos: The court was pretty clear that the video had to be exchanged, based on two provisions of the CPLR that call for “full disclosure of all matter material and necessary in the prosecution or defense of an action” as well as for the exchange of all video of a party related to the action. No further comment needed.

Justice Hart's opinion of Dr. Katz

Justice Hart’s opinion of Dr. Katz

Katz Didn’t Lie:  The court was greatly displeased with Justice Hart’s repeated condemnation of Katz as a liar, and cited to the video that was taken. That video, which was on YouTube for awhile before being taken down, showed a total of five minutes spent with the plaintiff, of which just one minute and fifty-six seconds was an actual physical exam.

Katz had testified a number of times that he couldn’t remember the actual length of this exam, and was then pressed by the court for an answer as to his custom and practice for such an exam. Katz said 10 to 20 minutes.

The appellate court cited this as an example of why Katz did not lie — because he was discussing his custom and practice and not this particular exam. The problem is that Justice Hart didn’t just rely on the time spent on the exam, and went on to say that:

You see this is the part that you are missing. I am not making a big thing of 10, 20 minutes. Witnesses confuse time all the time but he didn’t do the tests that he said he did in the minute 56 seconds. That is the problem. . . . He didn’t do the tests that he said he did. How do you screw that one up? You either do the test or you don’t do the test.

…Again counsel, it is not the time so much if the doctor thinks that he can explain the time. It is not the time problem. It is that there are tests that he testified to that he didn’t do. That is the perjury…

So while Justice Hart specifically said at these points that it wasn’t the actual time that was most important to him, the appellate court failed to do any analysis of the tests that were referred to, and whether they could, or could not, be done in the minute and 56 seconds. Instead, the court just stated a conclusion:

At the hearing on the appellants’ post-mistrial motions, the Supreme Court apparently shifted its theory as to what was false about Dr. Katz’s testimony, advancing a new theory that Dr. Katz had lied about the quantity or nature of the tests he had performed. This theory had never been proffered by plaintiff’s counsel, either as a justification for revealing the secret video recording for the first time in the presence of the jury, or for any other purpose. In any event, this alternate theory was likewise not supported by the video recording. (emphasis added)

This failure by the appellate court is inexplicable to me given its very extensive discussion of the facts that will likely run 20-25 pages in the official reports. How did they determine it was not supported by the video? And no discussion of the tests Katz testified he did? I feel like there’s a big, gaping hole in the decision regarding what tests were claimed to have been done, or not done.

If this is going to be the basis that Katz did, or did not, lie, logic would dictate that the appellate court send the matter back down to the trial court level (with a new judge) to hold a hearing, and let independent orthopedists (chosen by the court, not the parties) compare Katz’s testimony regarding tests he claimed to have done with the video that was taken.

Nonetheless, attorneys that may cross-examine Katz in the future should expect him to say, if a judge even allows the issue to be raised, that the appellate court specifically wrote:

At this point, we dispel the premise that underlies the plaintiff’s arguments on these appeals, and the actions taken by the Supreme Court after declaring the mistrial, namely, the notion that Dr. Katz lied. The record does not reflect that Dr. Katz committed perjury. Dr. Katz was asked how long the second IME took, and his answer was that he did not know. There is no evidence in this record that, at the time Dr. Katz gave that testimony, he actually did know how long the second IME took. Thus, that answer (or series of answers) has not been shown to be untruthful. (emphasis added)

Defendants Get A New Exam:  It is often very difficult for a defense firm to get a new exam if their doctor should have some, shall we say, problems. The standard is that “a defendant must demonstrate that unusual and unanticipated circumstances,” and even being arrested and temporarily losing a medical license doesn’t qualify.

Here, the court cites  Katz’s unwillingness to testify given the circumstances. But this is, frankly, an unusual ruling. Since the court also precluded the use of the video due to the manner in which it was obtained and the failure to properly exchange it, and directed the matter to a new judge for a new trial, it is easy enough to keep all of this stuff away from any future jury. With that protection, why shouldn’t he come in?

One hopes that future courts won’t allow the simple “But I don’t wanna testify!” be enough for a defense firm to obtain new physicals. For if this happens, the motions will be legion.

Trial Attorney Shouldn’t Go on the Physical: The case stands for a good example of why the trial lawyer should not attend a defendant’s physical exam: You run the risk of becoming a witness and therefore being disqualified on ethical grounds. (Defense lawyers might also make themselves witnesses.)

When I was a young pup lawyer, I went on a bunch of these exams, as I wasn’t going to be trying the cases. Today, I send other representatives that can track what the doctors do. But it isn’t the same as video, that’s for sure.

Plaintiff’s Lawyer was Directed to Pay Costs: The defense asserted it wasn’t Katz lying about the exam that caused the mistrial, but the conduct of plaintiff’s counsel. Plaintiff’s counsel, by contrast, said the video wouldn’t even have come up if Katz hadn’t lied.

The court accepted the defense argument, because they said that Katz didn’t lie. The only problem with that, from where I sit in the cheap seats, is that the actual analysis was incomplete, as I noted above, as Justice Hart asserted it wasn’t so much the time spent that led him to call Katz a liar, but that he thought all the tests couldn’t be done in the brief time that the exam lasted.

It seems to me that if the appellate court is going to absolve Katz of lying, rip into plaintiff’s counsel and force him to pay significant costs, the very least they could have done is specifically addressed Justice Hart’s assertion that he thought Katz was a liar because he couldn’t have done all the tests so quickly. But nothing on that subject other than a conclusory comment. Zippo. Nada. No hearing ordered.

What was particularly odd was that the court concluded that the mistrial was caused, in part, by the conduct of the trial justice. If that is so, then why sanction plaintiff’s counsel?  If the court concludes that the proper judicial action was to simply preclude the use of the video, the trial could have continued without mistrial. The video, after all, came out only on re-direct. A simple objection, sustained by the court as it was beyond the scope of the cross exam, would have been all that was necessary.

It was also unusual to me that the court leveled the costs at all. Why unusual? Because our lower courts are so hesitant to do so. In both cases where I was sued for defamation, the first time by Rakofsky and the second by Katz, there were judges that refused. Despite the fact that the cases were so godawful bad.

On a final semi-related note, I did end out with a small judgment against Katz, by the way, after his “hilariously stupid” case against me was tossed. A judgment, I might add, that I think he still hasn’t paid.

Updated:  I’ve been informed that this matter actually settled in March of 2015 to the satisfaction of all parties. So why did the Second Department issue a 36-page decision on a case that was already concluded?


February 4th, 2015

New York Needs More Robust Anti-SLAPP Legislation (Op-Ed)

SLAPPThis piece I wrote appears in today’s New York Law Journal. [Brackets] refer to endnotes in the original, and I’ve added some links:


I’ve now been sued twice for defamation over postings I’ve made on my law blog. And you know what? It sucks.

On both occasions, I was reporting on what happened in a courtroom, on cases I was not involved with either as counsel or litigant. And on both occasions judges tossed the lawsuits in the pleadings stage as the suits assaulted my right to fairly report and comment on judicial proceedings.[1] You can’t (successfully) sue people for reporting on what transpired in court, or for their opinions on what happened.

But, you know what else also happened twice? Despite both cases being utterly without merit, and both cases aggressively acting to discourage free and robust newsgathering and discussion, both plaintiffs were able to walk away while I was forced to spend enormous time on my defense including preparing documents, hiring counsel and wrestling with my insurer.

When empty lawsuits are used to retard free speech, all writers suffer.

This problem affects institutions above me in the pecking order of journalistic influence (traditional media) as well as those below (anonymous or pseudonymous commenters in countless Internet forums).

For example, in Rakofsky v. Washington Post, et al., I was part of the massive “et al.” [2] that included about 80 other lawyers, law firms, media companies, and John Doe/pseudonymous defendants. It seems that one Joseph Rakofsky, a neophyte New Jersey lawyer, went down to Washington D.C. to lead a murder defense. Except that he had never tried a case before. Of any kind.

The trial didn’t work out so well for Rakofsky or the client. The judge declared a mistrial partway through, and said (among other things), that it was “readily apparent” that Rakofsky’s performance was “not up to par under any reasonable standard of competence under the Sixth Amendment,” and “below what any reasonable person could expect in a murder trial.”

After The Washington Post wrote the story up, so too did many law bloggers, of which I was one, as well as the ABA Journal, Reuters and others, giving a variety of perspectives and adding depth to the already-reported story. Rakofsky sued so many people and companies that discussed what happened that the suit was instantly dubbed Rakofsky v. Internet. [3] Ultimately it was dismissed, since writers were relying on what transpired in court, or how Rakofsky presented his skills and qualifications on his websites. But there were no sanctions for his efforts to try to quash free speech.

The second suit, reported on the front page of this newspaper on Jan. 2, 2015, involved orthopedist Michael Katz. Dr. Katz had conducted a defense medical exam in a personal injury case (not one of mine). I found out that Queens Supreme Court Justice Duane Hart had repeatedly called Dr. Katz a liar in open court regarding his testimony. I then had the audacity to use my blog for original reporting on the subject, as well as offering my opinions on its significance.

Dr. Katz sued me. Once again the case was tossed at its initial stage, and once again there was no sanction for a litigant trying to suppress free speech by means of a lawsuit. [4]

But make no mistake about this, bringing hollow lawsuits that can’t even state a claim, and that clearly violate the robust freedoms ensconced in the First Amendment and fair reporting laws, have a chilling effect on others. While I continue to write about issues that I find important, there is no doubt that others hold back, fearful that they will be sued in order to intimidate them from writing, if that writing is critical.

Did I say that this affects writers? Well it also affects readers, who are deprived of the news and opinions that have been fearfully withheld.

Lawsuits to silence critics, such as these two against me, are called Strategic Lawsuits Against Public Participation, or “SLAPP suits.” They have become so common, with clearly significant free speech repercussions, that many states now have powerful anti-SLAPP legislation that stop the suits cold and award costs and attorneys fees to the victims.

According to Harvard University’s Berkman Center for Internet & Society, 28 states have anti-SLAPP statutes. [5] Unfortunately, the one for New York is exceptionally limited, and applies only to permits and applications in the real estate context. [6] It does not protect free speech in the abstract.

But legislation is pending in both the Assembly and Senate that would ameliorate that unnecessary limitation, and hold litigants and lawyers accountable for attempting to restrict the rights of others to speak and write freely. [7]

While some suits would nevertheless continue with pro se litigants, lawyers would be on notice that attempting to use litigation as a cudgel upon which to exert free speech concessions would backfire. Both litigants against me, it’s important to note, were represented by counsel. And both lawyers must have known that the suits were doomed from the outset.

This is, thankfully, one of those issues about which there is no partisan divide. Vexatious litigants trying to silence others are not part of any political party. The chilling effect such suits have on free speech effects us all equally, from the most prominent newspapers to the most casual individual looking to discuss the issues of the day.

In 2008, both the New York Senate and Assembly took a big step forward when they unanimously passed the Libel Terrorism Protection Act, which protects us from lawsuits in foreign jurisdictions that don’t have the same free speech protections as the First Amendment. [8]

The Legislature should be able to rally around this anti-SLAPP bill in the same manner, and protect the First Amendment rights of all New Yorkers.


1. New York Civil Rights Law §74.

2. 2013 NY Slip Op 50739 (2013).

3. Scott Greenfield, Simple Justice,, May 11, 2011.

4. Katz v. Lester Schwab, Dwyer & Katz, et al., 153581/2014.


6. Civil Rights Law §70-a and §76-a.

7. S1638-2015 and A258-2015; also, S1539-2015.

8. Matthew Pollack, New York Strikes Back Against Libel Tourism,, Reporters Committee for Freedom of the Press, April 1, 2008, last viewed January 25, 2015.



January 6th, 2015

On Suing and Being Sued


A new graphic, for lawyers that bring idiotic defamation cases: The dunce cap.

So I bring lawsuits for a living. And I’ve repeatedly railed against the tort “reformers” that seek to limit suits.

But now I’ve been sued twice in idiotic defamation suits for my writings on this blog,  both of which were thrown out in the pleadings stage. The first was Rakofsky v. Internet and the second was by Dr. Michael J. Katz.

It’s reasonable to ask (as Daniel Fisher did yesterday in Forbes) since I’ve now been on the other side of the “v” twice: Have my thoughts changed on the subject?

And the answer is no.

True, these were both a pain in the ass and a diversion of both time and resources for me.

But the answer to such suits is not to close the courthouse doors by offering protections and immunities against suits — for the real damage and danger there is closing the doors to legitimate issues.

No, the real solution is punishment with the proper use of sanctions. In both cases against me the judges refused to sanction, despite the fact that the cases were such dogs.

We have, I think, a judicial culture in New York against punishing frivolous and idiotic behavior in our courts. Compare, for example this federal judge in California lowering the boom on a frivolous suit against the National Law Journal that was also reporting on courthouse activities.

The laws are on the books (see CPLR 8303-a). They may not be strong, but the Legislature put them there. That is the place to seek redress for the boneheaded suit. Not closing courthouse doors.

Updated: See New York Needs More Robust Anti-SLAPP Legislation



January 5th, 2015

Things Get Worse for Dr. Michael Katz…(Updated x2)

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

Samson Freundlich with New York Law Journal front page story: Criticism of Doctor was Protected Speech, Judge Finds

So there’s the story, as the feature on the front page of Friday’s New York Law Journal: Justice Cynthia Kern‘s decision throwing out the defamation case Dr. Michael J. Katz  stupidly started against me and my co-blogger Samson Freundlich.

I previously blogged about this dismissal, but now it’s front page news. (NYLJ: Criticism of Doctor Was Protected Speech, Judge Finds)

And if the whole legal community didn’t already know that Justice Duane Hart had eviscerated Katz by repeatedly calling him a liar, they surely know now.

The story also introduces a new term to the legal lexicon, boneheaded, as in, this was a boneheaded suit to bring. That was the quote the paper elected to use:

Turkewitz said he was disappointed of the deep reluctance of judges to find cases frivolous and impose sanctions. “This was a really bone-headed lawsuit to bring, and all it did was make Dr. Katz look even worse,” he said.

Now I think that boneheaded should be one word, and not hyphenated, but lexicography isn’t my long suit, and I suppose that is a digression for another day.

While I was disappointed that Katz and his lawyers weren’t sanctioned, it’s clear to me that rebroadcasting in this suit the lacerating remarks Justice Hart made about Katz was one of the dumber moves I’ve seen in my 28 years practicing law.

And now, due to the prominence of the story, the legal community also knows that it was the Nassau County firm of  Ruskin Moscou Faltishek that led to this debacle. Well played, gentlemen, well played.

Readers are left to guess for themselves why a firm would elect to start a case it must inevitably lose that also embarrasses the client.

Update (1/5/15):  Forbes now has the story also: Personal Injury Lawyer Gets Personal About Lawyers that Sue Him

Updated #2 (1/6/15 @ 12:15 pm): From Techdirt’s Tim Cushing:   Hilariously Stupid Defamation Suit Against A Blogging Lawyer Tossed By New York Judge


December 10th, 2014

Dr. Katz Defamation Case Against Me Gets Chucked


Justice Hart’s opinion of Dr. Michael Katz

Ahh, the sweet smell of victory. Not that I ever doubted it. But it is nice to see this over so quickly.

So. You remember that idiotic defamation case against me by New York orthopedist Michael Katz? He was the one that was called a liar by Justice Duane Hart over and over and over and over and over again. The one that dealt with his testimony during a medical-legal exam, where he said it was likely 10-20 minutes long but a surreptitiously made video showed that the actual examination part was only one minute and 56 seconds?

Yeah, that Dr. Katz.

And then he sued me for reporting on what transpired in the courtroom? Yeah, that lawsuit. (See also, opinions on suit by Scott Greenfield and Marc Randazza.)

Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern.

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.

Dr. Katz also conceded that Justice Hart threatened to report him to the District Attorney to investigate perjury, the Office of Professional Medical Conduct to investigate action against his license and to the the Administrative Judge for potential civil contempt.

And when I use the word eviscerating above, I am quoting Justice Kern on page 3 of her decision. Katz Case Chucked

Specifically, Judge Kern held that I, and my co-blogger for those posts Samson Freundlich, were immune from suit because the comments we made here were  “fair and true reports of Justice Hart’s findings and assertions made during the course of the proceedings.” (p. 9)

And I kinda liked this quote:

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.

The court next addressed those statements that were not facts, but opinions. And you know where that goes, don’t you? Chucked. They are “nonactionable as they are constitutionally protected assertions of opinion.” (p. 10)

Two quirks to the opinion that might interest others: The court held that the standard for suing someone for comments on the Internet is higher than if the comments were made in a “physical official publication.” Because Internet.

Second, I thought I had a very strong case to have the lawyer and law firm sanctioned, since there was no colorable way they could succeed. Katz conceded in his very own complaint that Justice Hart made those lacerating comments about him. Yet the court, without discussion, simply denied my motion for sanctions. If Dr. Katz is dumb enough to appeal, I will press the point again.

All in all, every time an idiotic defamation case against a blogger gets tossed out, it’s a good day for free speech.

Now if only we could do something about our judiciary’s deep reluctance to sanction clearly frivolous lawsuits…