A SLAPP AGAINST PLAINTIFF'S EXPERT TESTIMONY IN MED MAL CASES

An interesting but troubling hole in our anti-SLAPP/First Amendment jurisprudence has recently been brought to my attention by a number southern California attorneys who represent plaintiffs in medical malpractice cases. Typically, large healthcare provider organizations (HMOs), iner alia, throughout California have binding arbitration agreements in their health care policy/provider agreements with patients/insureds. In most instances, it is the defendant provider that pays for the arbitrators to sit on panels. As a result, many believe their is inherent bias in the arbitration forum. Many on the plaintiff's side of the bar say that the forced arbitration clause is the first assault on plaintiff's due process and petition rights when they have suffered an injury due to medical negligence. I come from a family of physicians but I am also a professional patient myself. While I believe that there are too many frivolous medical malpractice cases, I also believe there are not enough meritorious ones that should be filed or that there are too many meritorious cases where the plaintiff is not adequately compensated. But regardless of what you or I may believe on whether tort reform is needed or not, a sinister affront to the First Amendment petition rights of plaintiff's expert witnesses in medical malpractice arbitrations and lawsuits appears to be taking place right under our noses.

Many lawyers who represent plaintiff's in medical negligence cases have noticed a nefarious pattern and practice of large medical provider/defendants. For example, plaintiff's expert testifies in a medical negligence case. Expert testimony from the defense is also presented. Win or lose, many of these large organizational defendants will then file a letter complaint to the private accreditation board/medical association for the specialty to which the plaintiff's medical expert belongs and makes his livelihood from. Kind of like ABOTA for lawyers - it is a purely private accredication and professional specialty organization with its own standards of achievment and ethics. Many of these private organizations have their own rules for regulating conduct of its members as well as for admission, suspension, public censure, and expulsion from the group. Public discipline or loss of accreditation - let's say to a cardiac surgeon or an eye surgeon - would be devastating to their reputation, career, and livelihood. These complaints are routinely lodged against plaintiff's medical experts only and they seek to have the physician expert who happens belong to one of these prestigious organizations disciplined, suspended, or expelled as the price for daring to provide expert testimony for a plaintiff against a large HMO or medical organization. According to members of plaintiff's med mal bar, many physician specialists who have testified as experts now find themselves defending against disciplinary complaints initiated by letters from these provider groups. This attack on the petition rights of plaintiff's medical experts to provide medical expert witness testimony in a judicial or quasi-judicial forum has had a direct chilling effect on plaintiff's right to bring a medical malpractice suit and obtain competent legal representation. Experts are everything in medical malpractice cases. The key allegation that invariably shows up in these complaint letters to various prestigious private medical organizations is that the Doctor provided an expert opinion that is false, misleading, or deceptive in violation of the organizations rules of ethics for its members. Lawyers know from defamation 101 that there is no such thing as a false opinion. Because these arbitrations in which the experts testify are private proceedings that are often not authorized by law and may not be reviewable by writ of mandate, which is required to put it within the ambit of the litigation privilege and the anti-SLAPP statute under Kibler v. Northern Inyo County Hospital Medical Group (2006) 39 Cal.4th 192. More importantly, the private acceditation organizations for various medical specialities promulgate their own membership and ethics rules and hearing procedures, which are neither authorized by law nor reviewable by writ of mandate. Often these medical assocations are out of state. So the plaintiff's medical expert is now on trial out of state in a purely private forum without the protections of the Anti-SLAPP laws, the litigation privilege, or the First Amendment. Even if the Doctor prevails at the disciplinary hearing, the cost, expense, and risk to the Doctor's career and livelihood chills the Doctor's willingness to testify as an expert again. Hence, a new involuntary conspiracy of silence has arisen.

Our legislature at the state and federal level needs to enact a law that will deter this kind of abuse of disciplinary proceedings against those who testify as expert witnesses. If the Doctor, after prevailing at the administrative hearing, attempts to sue the defendant provider organization for malicious prosecution in court, he will surely be met with a fierce anti-SLAPP motion.

I am no expert in medical malpractice cases, arbitrations, or private disciplinary proceedings. But I do see big hole in the First Amendment/Anti-SLAPP protections afforded doctors who testify in good faith from having to fend off these kinds of disciplinary complaints with private prestigious medical associations just because they testified as an expert on behalf of a med mal plaintiff.

Based on my information and belief, this pattern and practice is systematically being committed against Doctors who testify as experts on behalf of plaintiffs in med mal cases. But even if this practice was just as frequently aimed at defense experts, either way this practice is wholly repugnant to the both the parties' and the witnesses' First Amendment petition rights. Consequently, this gaping hole in our anti-SLAPP/First Amendment jurisprudence is unacceptable and must be plugged up with appropriate state and federal legislation.

Comments appreciated!!!

SLAPP Fees Orders - Appeal Connundrum

Beginning with Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322 and Johnston v. Corrigan (2005) 127 Cal.App.4th 553, it was simply assumed that orders granting or denying SLAPP fee awards were immediately appealable prior to judgment just as orders granting or denying SLAPP motions have been since the amendment to CCP 425.16 and 904.1(a)(13) in October 1999 - AB 1675. But in 2005, the Second District in Doe v. Luster (2nd. Dist., Div. 7, 2006) 145 Cal.App.4th 139 for the first time gave some real thought to the issue - albeit in a limited factual context that, I believe, undermines the holding that orders granting or denying SLAPP fee awards prior to judgment are not appealable orders. Doe v. Luster premised its holding on the fact that interlocutory fee orders are not appealable. Doe went through an exhaustive analysis of the cases on point and showed that because there is no statutory provision that specifically makes pre-judgment SLAPP fee orders appealable, the Courts of Appeal lack jurisdiction to hear such appeals. The facts in Doe involve a plaintiff who successfully opposed a SLAPP motion. The SLAPP motion was denied in its entirety. Defendant appealed the order denying the SLAPP motion. While Defendant's SLAPP appeal was pending, plaintiff filed an attorney's fee motion pursuant to subd. (c) of CCP 425.16 claiming that defendant's SLAPP motion was either frivolous or solely intended to cause unnecessary delay. The trial court denied the fee motion finding essentially that defendant's SLAPP motion was not frivolous. Plaintiff appealed the order denying the SLAPP fee motion. Defendant filed a motion to dismiss, which the Court of Appeal granted after oral argument on the motion. While the Court's ruling was right on the money on these facts, it is questionable as to whether the holding in Doe applies in a situation where the defendant obtains a substantial pre-judgment award of attorneys' fees after prevailing on a SLAPP motion where all causes of action were stricken pursuant to CCP 425.16 leaving nothing further for the court to decide. In Doe, the fee order was truly interloctory - the plaintiff's claims had not been stricken or dismissed - each of plaintiff's claims survived - as the trial court denied the SLAPP motion in its entirety. Then the plaintiff filed a pre-judgment motion for SLAPP fees, which was denied. In contrast, the situation where a defendant is awarded a substantial sum of SLAPP attorney's fees pre-judgment after striking all claims pursuant to a SLAPP motion stands in my mind on a wholly different footing - nothing is left to be decided by the trial court. I believe the Doe court makes an artificial distinction between an order merely granting the SLAPP motion in its entirety and stricking all the claims and an order granting a SLAPP motion in its entirety stating that each of plaintiff's claims are "Dismissed." In the latter situation, a fee order is appealable as an order after judgment. In the former situation, the same fee order is not appealable because it is considered a "pre-judgment" order. Now here comes the rub. What if you are a plaintiff who has lost the SLAPP motion in the trial court, the court has awarded $100K to the prevailing SLAPP defendant. You have a clearly meritorious appeal. Pursuant to Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1431-1434 (I was lead counsel for prevailing defendant), you are able and willing to put up a bond as security for the attorney's fees. But now you are unable to appeal and the defendant has purposefully failed to obtain a judgment and has objected to your attempt to file a judgment. The Court refused to file a judgment because of the one final judgment rule and because of the automatic stay imposed by CCP 916 under Varian Medical Systems v. Delfino (2005) 35 Cal.4th 180. In the meantime, the defendant is enforcing that judgment against your client because you have no appeal which you can bond. Now what do you do?

The good news is that you appeal anyway because there is a direct and significant conflict of authority. Under the recent decision Chitsazzadeh v. Kramer & Kaslow (filed 9/27/11 2nd Dist., Div. 3 No. B222988), see footnote 2 the Court held: "An attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275; BUT SEE Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150.)"

In fact you must appeal to cover yourself. A plaintiff or defendant would not want to wait until final judgment to appeal the fee award if it was in fact immediately appealable with the order on the SLAPP motion. If you wait until final judgment is entered, you take the risk that the Court of Appeal may rule that the pre-judgment SLAPP fee order was immediately appealable under Chitsazzadeh and is thus untimely and that the Court lacks jurisdiction to hear an untimely appeal. See Martin v. Inland Empire Utilities Agency (4th Dist., Div. 2, 2011) 2011 WL 3621599. No matter what court you are in, you need to do both - you must appeal immediately from the pre-judgment SLAPP fee order. Id. The worst that can happen is that the Court of Appeal dismisses the appeal as premature. Then you may file a writ or you can wait until final judgment to file your appeal from the SLAPP fee order. Finally, you must to do everything you can to stay enforcement of the judgment pending the SLAPP appeal pursuant to Dowling, supra and CCP 917.1(a)(1).

Comments Welcome!!!

James J. Moneer, Esq.

In Defense of The Mann rule - the SLAPP Equalizer

In so far as prong one is concerned, the anti-SLAPP statute's application to a given cause of action, the Legislature has made clear that CCP section 425.16 is to be broadly construed. Once defendant meets this prong one showing ( i.e. that the cause of action arises at least in part from protected speech or petition activity described in subd. (e) of section 425.16), the burden shifts to plaintiff to show a probability of prevailing on the merits of each claim in order to defeat the SLAPP motion on prong two. In mixed SLAPP causes of action - i.e. causes of action that base liability in part on protected activity and in part on non-protected activity - the groundbreaking case of Mann v. Quality Old Time Service (2004) 120 Cal.App.4th 90, 106 holds essentially that the SLAPP statute is to be broadly construed to apply to a cause of action and shift the burden to plaintiff in mixed SLAPP causes of action in accordance with the preamble. But on prong two, Mann created a well recognized prong-two rule for the plaintiff to use in discharging its burden on prong two - the notorious Mann rule.

The Mann rule essentially holds that in any cause of action subject to anti-SLAPP treatment on prong one, the plaintiff need only prove up any part of its claim to defeat the anti-SLAPP motion on prong two. A court need not parse causes of action and strike only those parts of a claim that plaintiff cannot prove up. Example: Jean Newton is a vet tech that has worked for ABC animal hospital for 2 years. Dr. Borjal is the owner and manager. Newton sues Borjal and the Clinic for retaliation on the following grounds: (1) Dr. Borjal demanded Newton to perform sexual favors; Newton refused the Dr. 's demands; and she was terminated the next day; and (2) Dr. Borjal reported Newton to the police for stealing narcotics from the Clinic the day she was terminated and participated as a witness in the subsequent criminal prosecution. This is clearly a mixed cause of action. Defendant can easily meet its first prong burden by showing that at least one act of petitioning activity is a basis of liability - i.e. the false police report and participation in the criminal trial. This is protected petition activity under subdivisions (e)(1) and (2). It is also barred by the absolute litigation privilege of CC 47(b) on the merits. So to the extent the retaliation were excluisively based on the police report and criminal trial activity, the cause of action would be stricken as a meritless SLAPP suit. But this cause of action has several counts. The first count bases liability squarely on the act of firing her in retaliation for refusing sexual favors - no protected SLAPP petitioning or speech activity here. Assume there is no privilege or Statute of limitations defense otherwise barring the claim. If plaintiff can offer a declaration with proper foundation averring that the Dr. demanded sex from her, that she refused, and that she was fired the next day, and that she suffered specific harm as a result, she has adduced competent admissible evidence that, if credited, by the trier of fact would entitle her to judgment
as a matter of law on a retaliation claim. One could argue that the result under Mann is that the litigation privilege allegations survive to chill another day. Here, the plaintiff has shown a probability of prevailing on "any part of its claim" regardless of whether it is protected activity or unprotected activity, like the termination.

The Mann rule has recently been vituperatively criticized by one Justice in the First Dist. Division 5 Court of Appeal. It started out as Justice Needham's thought provoking dissent in the 2010 Haight-Ashbury Free Clinic v. Happening House (2010) 184 Cal.App.4th 1539. This dissent has more recently morphed into 20-pages of dicta in the majority opinion in Wallace v. McCubbin (2011) 196 Cal.App.4th 1169. Justice Needham engaged in an exhaustive analysis of why the Mann rule impairs that anti-SLAPP statute's efficacy in striking meritless SLAPP suits.
The first argument is based on the plain language of the the statute arguing essentially that the Legislature intended something different when it used the terms "cause of action" and "claim"
in subd (b)(1). He is correct that the false police report allegations and participation in the criminal trial would survive to chill another day under Mann. He argues that the plain language of the statute, Legislative History, and the broad construction would dictate that Mann be rejected. However, the broad plain language construction was intended to get as many causes of action that arise even partly from petition or free speech activity within the broad swath of the SLAPP statute's early screening test on prong one. But as Justice Jones pointed out in a cogent concurring opinion, the Mann rule has been the well established precedent in this State for over seven years now and the Legislature has amended the anti-SLAPP statute at least three times since the Mann rule was first announced in 2004. More importantly, when one examines the Legislative History of the statute, it is apparent that the definition of a SLAPP suit was one that entirely lacked merit was filed to chill First Amendment speech and petition rights. These suits that were filed by wealthy land developers against environmental activists has no potential merit. According to the plain language of the statute itself, a SLAPP suit is defined as a lawsuit that arises from the protected speech or petition activity AND lacks merit. In the Legislative History and the writings of Pring and Canaan - two professors who discovered and defined the phenomenon of SLAPP suits - found that "the sine qua none of a SLAPP suit is it lack of merit."
So the intent and the law is that you can sue people all day long for speaking out or petitioning as long as the suit has some merit. This interpretation is buttressed by numerous California Supreme Court decisions beginning with Navallier v. Sletten (2002) 29 Cal.4th 82, 92 stating that plaintiff may discharge its secondary burden of showing a probability of prevailing by showing the claims have "minimal merit". Navellier predated Mann by two years. Here, allowing Newton's claim under the Mann rule to proceed is consistent with the policy and purpose of the anti-SLAPP statute especially when considered in light of the early stage at which the SLAPP motion is brought, the no leave to amend rule in Simmons v. Allstate 92 Cal.App.4th 1063, and the automatic stay on discovery under subd, (g).

While Justice Needham certainly has some good points, in my opinion, the biggest problem with adopting the rule he would suggest is administrability. He has not satisfactorily shown how a court, without unduly complicating matters, gets around the problem of striking parts of causes of action based on protected activity and allowing the nonprotected activity to survive. Nor has he even discussed how attorneys fees and costs might be apportioned under that rule when a part of a cause of action is stricken.

Most importantly, the one thing that stopped Justice Needham from making his 20 pages of dicta in Wallace into conflicting authority was his acknowledgment that our Supreme Court has recently approved of the Mann rule and applied it in a closely related context and found no reason why the Supreme Court would disapprove of applying Mann in the way it was applied in the Newton v. Borjal example above. Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 citing (Oasis West Realty v. Goldman (2011) 51 Cal.4th at 820). Fortunately, it was Oasis that stopped the Wallace majority from creating authority that would conflict with Mann and necessitate Supreme Court review. After all is a claim that is based on at least some actionable conduct a lawsuit that constitutes "abuse of the judicial process"? [CCP 425.16, subd. (a)]

As a SLAPP specialist who represents both defendants and plaintiffs, I believe that Mann rule creats an appropriate state of equipoise. In fact, it is the only counterbalancing rule that gives some credence to a plaintiff's due process rights in the context of a SLAPP motion on prong two and comports with the policy and purpose of the anti-SLAPP statute as envisioned by the Legislature. The Mann rule is the ultimate equalizer balancing the clear advantage a moving SLAPP defendant has over a plaintiff once the SLAPP motion is filed in state court.

Comments welcome

By James J. Moneer, Esq.

SLAPP Trap for Unwary: Recent case shortens SOL for malicious prosecution against attorneys

In March of 2011, Vafi v. McCloskey (2011) 193 Cal.App.4th 874 held that the shorter one-year statute of limitations applied to malicious prosecution actions brought against attorneys instead of the two-year that applies to malicious prosecution actions generally against non-lawyers.

SLAPP MALPRACTICE. IT'S HERE TO STAY!! ANGRY SLAPP PLAINTIFF SUES ATTORNEY

With the ever increasing number of anti-SLAPP motions that are being filed, granted, and won by defendants throughout California in state, federal, trial, and appellate courts every month, the number of angry SLAPP plaintiffs that get hit with high fee awards is rising exponentially. [CCP 425.16(c)] Every civil litigation attorney who files an action on behalf of a plaintiff or cross-complainant is now at an ever increasing risk of being hit with a malpractice suit filed by an irate client who lost an anti-SLAPP motion and got hit hard with a hefty SLAPP fee award. To make the point eminently clear, every time an attorney represents a losing plaintiff in a SLAPP case, SLAPP fees are mandatory and often exceed $100K. If this state of affairs is not enough to make an angry client sue for malpractice, the losing SLAPP plaintiff and the attorney are also simultaneously exposed to a SLAPPback malicious prosecution suit from the prevailing SLAPP defendant in the underlying action under CCP 425.18. Soukup v. Hafif (2006) 39 Cal.4th 260. So the former client's potential damages against his attorney for malpractice have now escalated dramatically. And even if the attorney is able to successfully defend the malpractice action, it can irreparabley ruin the attorney's reputation even if the attorney successfully defends the action years later. Moreover, defending a malpractice action is a a major expense, time waster, and source of stress for attorneys facing such an action. What follows is a case in point.

In January of 2011, I testified as a defense expert in a case that resulted in what is believed to be the first anti-SLAPP malpractice verdict in California. In a case called Lefkowitz v. Gruenberg (Case No. 37-2009-00101969-CU-PN-CTL) San Diego Superior Court, I was retained by Lewis Brisbois, San Diego to testify as a standard of care and attorney fee/ethics expert for the defense in a legal malpractice/breach of fiduciary duty action against an attorney where the key allegation was that the attorney allegedly mishandled the underlying defamation action by failing oppose the motion SLAPP motion properly and failing to spot the SLAPP issue and properly advise the client/plaintiff that he would be liable for substantial attorney's fees and costs if he lost the SLAPP motion and appeal. In the underlying defamation action, the court awarded the prevailing SLAPP defendant $86,000.00 in SLAPP fees against plaintiff after losing SLAPP motion on appeal. Even though the attorney obtained a net positive settlement of $35, 000.00 in a related whistleblower cause of action, the former client/defamation plaintiff sued his attorney claiming he would have obtained a better settlement had he not been saddled with the $86K SLAPP fee award against him.

We believe that Lefkowitz is the first SLAPP malpractice verdict in the State of California as the LA Daily Journal and other verdict commentators are unaware of any other legal malpractice verdicts arising from the attorney's representation of a client in an underlying SLAPP case.

DEFENSE VERDICT - 1/6/11 - HON. JOHN S. MEYER SAN DIEGO SUPERIOR COURT

The jury found "no negligence" as to whether the attorney failed to timely and properly advise his former client of the risk of paying the defendant's attorney's fees if the employer's SLAPP appeal was successful. The jury did not reach the issues of causation and damage. Mr. Moneer testified that two attorneys and one trial judge misapplied the anti-SLAPP law to the defamation claim in the prior action. Simply because the Court of Appeal reversed and remanded for mandatory SLAPP fees does not mean that the attorney fell below the standard of care in handling the defamation/SLAPP action for the ordinary employment litigation practitioner.

ATTORNEYS: Peter Garchie, Esq. , Lewis Brisbois, San Diego - Defense
Shauna Hagan, Esq., Lewis Brisbois, San Diego - Defense

Alicia I . Dearn, San Diego - Plaintiff

EXPERTS: James J. Moneer, Esq. San Diego - Defense

Peter R. Thompson, Esq. - Plaintiff


For more facts and details about the case see www.slapplaw.com and click on attorney profile and scroll down to Lefkowitz v. Gruenberg.

WHAT CAN PLAINTIFF'S CIVIL LITIGATION ATTORNEYS DO?

1. SCREEN, SCREEN, SCREEN FOR SLAPP ISSUES BEFORE THE PLEADING IS FILED.

2. ADVISE YOUR CLIENTS IN WRITING REGARDING SLAPP FEES

3. CONSULT AN EXPERT TO SCREEN THE COMPLAINT, ASSIST WITH OPPOSITION, AND/OR GIVE EXPERT TESTIMONY TO CUT THE FEE AWARD DOWN SUBSTANTIALLY

CALIFORNIA SHOULD ADOPT D.C. ANTI-SLAPP LAW'S PROTECTION FOR ANONYMOUS ONLINE POSTERS

The District of Columbia anti-SLAPP legislation just went into effect on 3/31/11. The new law was modeled after California's anti-SLAPP legislation with one added feature - a special motion to quash a subpoena seeking to discover the identity of online posters. California's anti-SLAPP laws are the strongest in the nation with this one loophole. Unlike the California law, the D.C. law makes attorney's fees to a prevailing SLAPP defendant merely discretionary instead of mandatory as it is in California. But the big strength of the D.C. statute is its provision for a special motion to quash subpoenas and other discovery in suits filed against "Doe" defendants who are alleged to have published defamatory material on the internet. California's anti-SLAPP laws (CCP 425.16, 425.17, 425.18) do not have any such special motion to quash provision and recent California case law has held that an anti-SLAPP motion cannot be used to challenge a motion or a subpoena that arises from the exercise of First Amendment speech or petition rights - SLAPP motions challenge only "causes of action" in a complaint, cross-complaint, or petition (CCP 425.16, subd. (h)). Moreover, because the anonymous online poster is named only as Doe and not as a named defendant, the anonymous poster served with a subpoena demanding production of their computer hard drive is defenseless for the poster cannot file an anti-SLAPP motion and stay the discovery until they are sued as a named defendant. So the discovery stay provision that benefits traditional SLAPP defendants who are named in the action provide no protection for the Doe defendant who happens to get served with a subpoena to produce such private and highly sensitive information. Subpoenas designed to disclose the identity of online posters can be highly intimidating to anonymous online posters because of the excessive scope, cost, and intrusiveness of such demands.

Th D.C. statute counters this problem by providing online posters with an additional weapon to combat SLAPPs - they special motion to quash a subpoena or discovery aimed at disclosing an anonymous poster's real identity. It is a burden shifting motion to quash that works similarly to the two step process of the anti-SLAPP motion. The plaintiff/propounding party must show a probability of prevailing on the claim and that such probability outweighs the intrusiveness of the discovery sought and the method used. If the plaintiff/propounding party is unsuccessful in meeting this burden, the anonymous poster can recover attorney's fees and costs.

Many public interest commentators have observed that the rise in web-based commentary and the ever increasing number of lawsuits that ensue are a motivating force behind many other states enacting their own anti-SLAPP legislation. Texas became the 30th state to adopt their own anti-SLAPP laws in June 2011. Another commentator found that with the explosion of the internet, there are many more of these sorts of suits. Moreover, anonymous posters now feel empowered to say things they wouldn't otherwise say. They don't often realize that their identities can be uncovered.

AGREE OR DISAGREE?? YOUR COMMENTS APPRECIATED. I THINK THIS IS SOMETHING OUR CALIFORNIA LEGISLATURE SHOULD SERIOUSLY CONSIDER.