Bala Cynwyd, PA / Philadelphia, PA / Marlton, NJ
(The dates are links to the referenced documents provided)
In April, 2000 I filed a medical malpractice lawsuit against Herbert Nevyas
and his daughter Anita Nevyas-Wallace, two Philadelphia area LASIK doctors and
their practice, Nevyas Eye Associates.
I found out I was not alone. At the time I started this website, there had
been multiple cases of medical malpractice (including mine) filed against these
doctors and their business, as listed in the
Philadelphia Civil Docket Access System.
000402621 or
031100946
In response to posting this website, and including the Nevyases names, I have
been sued. Through threats of lawsuit, intimidation, and (I believe) violation
of my First Amendment rights, my website was shut down
three times previously, the 2nd time after a temporary restraining order was
sought, and denied (by the courts). Because of the way my medical malpractice
lawsuit was handled through the courts, I believe it necessary to document this
case in its entirety.
Below is a chronology of my latest litigation with the Drs. Herbert Nevyas,
Anita Nevyas-Wallace, and
Nevyas Eye Associates (Nevyases), Bala Cynwyd, PA (I could not name them
previously due to litigation). All of the documents are filed with the courts,
and are public record:
Dates are separated to reduce page load times due to volume. Click date
to view date filings in new window:
July/August 2003
I updated my website to include information obtained about Drs.
Herbert Nevyas and Anita Nevyas-Wallace, and Nevyas Eye Associates.
After receiving a cease and desist letter from Nevyases
attorney, I put my website back to its original state and responded with a
letter of intent. In the course of a week, my website was shut down after
YAHOO also received a letter. After hosting with a new company and determining
the legal extent of their threat and making changes to the site, I posted new
information with documents to support.
November 2003
On November 7th, the Nevyases filed a lawsuit against me for
defamation, also claiming I broke an agreement with them. They were asked
numerous times by my (then) attorney and also filed with the courts, to state
what they felt were legally objectionable with my website. They refused, and
filed an emergency petition for a
Temporary Restraining Order (TRO), which was denied. On November 26th,
Nevyases filed a motion for reconsideration (TRO),
which was also denied.
In December, I filed an answer to a complaint, with
New Matter and a Counterclaim.
2004
After the Nevyases were denied reconsideration for TRO, they
withdrew the lawsuit against me in Philadelphia Court, and filed in
Federal Court. This time Nevyases tried for subject matter jurisdiction by
claiming the content on my site violated the Lanham Act, and also joined my
attorney for letters he wrote to the FDA on my behalf which I posted on my
site. I published those letters because they supported all of the other
documents on my site, and the documents on my site supported those letters (Due
to ongoing litigation, those letters cannot be published at this time). The
Nevyases also attempted another restraining order, which they never got. This
action was dismissed for failure to state a federal claim.
The Nevyases again brought suit against me in Philadelphia court
using the same method as federal court, by joining my attorney as a defendant.
The court filings listed below are by the Nevyases, and my responses:
2005
The case went to trial on July 26, 2005 on the claim for specific
performance, and the
court
ruled in the Nevyas' favor. It found that the Nevyases and I had entered
into an agreement whereby in exchange for the Nevyases not filing a lawsuit
against me, that I would remove all defamatory statements about the Nevyases
from the site and refrain from defaming them in the future. But the trial
court's order went a bit further -- it forbid me from mentioning the Nevyases at
all, on this, or any other website.
I believed the judge erred in his ruling, and
sought the help of Public
Citizen for appeal, who also felt this decision was wrong. The ACLU helped
me to obtain local counsel for my appeal.
2007
THE OPINION OF THE SUPERIOR COURT OF PENNSYLVANIA AS OF MARCH 09, 2007
In his 2009 run for Pennsylvania Supreme Court Justice, the
Honorable Judge Panella answers to questions posed by the Pennsylvania State
Education Association in their 2009 Supreme Court Questionnaire. He cites this
case as one of his most important:
SOURCE
11. What are the most important cases you have handled
as an attorney or as a Judge?
"In my private practice as an
attorney, and as a judge, I have always considered family law cases as the most
important because the personal lives of the litigants are at stake. Custody,
divorce, support and related issues affect the welfare, living conditions and
wellbeing of all of our citizens. However, these cases are highly fact driven,
and it is impossible to classify them into groups.
In addition to these family law cases, I have
always been very sensitive to First Amendment issues. I strongly believe that
our democratic system in America would not continue to exist without a free
press to report on the dealings of government. The following cases, from my
career as an appellate and trial judge, represent my approach when freedom of
speech and freedom of the press are involved:
1. Nevyas v. Morgan, 921 A.2d 8 (Pa.Super.
2007).
First Amendment Rights - Internet Users
A Pennsylvania resident left legally blind
after lasik eye surgery created a website which included criticism of his
doctors. Under threat of suit, he agreed to eliminate certain statements the
doctors alleged were defamatory. He later added new material criticizing the
doctors. The doctors sued, claiming that because they had agreed not to sue him
if he removed the initial defamatory allegations, the agreement was binding in
perpetuity, and he could not comment negatively on them.
I authored an Opinion which upheld the
patient's freedom of speech rights. Speech on the internet receives First
Amendment protection. There was no agreement to withhold assertions which were
not libelous although critical of the doctors' performance."
2008
June 09, 2008:
“Plaintiffs Herbert J, Nevyas, M.D., Anita Nevyas-Wallace, M.D. and Nevyas
Eye Associates, P.C., by and through their undersigned counsel, hereby Motion
this Honorable Court to order an evidentiary hearing to determine whether
Morgan’s website postings violate his contractual agreement with Plaintiffs and
whether any new postings are false and defamatory. In support of their petition,
Plaintiffs aver as follows:”
2009
June 17, 2009:
"Before this court can rule on the merits of the defamation claim, it must first
determine the Public Figure status of Plaintiffs. This determination of a
plaintiff’s public figure status is a particularized and fact sensitive
analysis, but it is also a question of law to be determined by the court."
July 09, 2009:
“PRO SE DEFENDANT MORGAN’S RESPONSE TO DEFENDANT
FRIEDMAN’S MOTION TO DETERMINE PLAINTIFFS’ PUBLIC FIGURE STATUS, AND
CROSSMOTIONS FOR COMPULSORY NONSUIT OR JUDGMENT OF NON PROS, AND/OR JUDGMENT ON
THE PLEADINGS; AND/OR SUMMARY JUDGEMENT TO COUNTS I AND II OF PLAINTIFFS’
AMENDED COMPLAINT.
1. The Nevyas plaintiffs ignored Judge Sylvester’s instructions.
See Section 1 of the Factual and Procedural History in the attached Memorandum.
2. The Nevyas plaintiffs filed an erroneous federal lawsuit.
See Section 2 of the Factual and Procedural History in the attached Memorandum.
3. The Nevyas plaintiffs failed to properly transfer their federal
action back to this court.
See Section 3 of the Factual and Procedural History in the attached Memorandum.
4. The Nevyas plaintiffs exceeded the one-year statute of
limitations against defendant Morgan’s pro bono attorney.
See Section 4 of the Factual and Procedural History in the attached Memorandum.
5. The Nevyas plaintiffs improperly claimed that Morgan conspired
with Friedman, in their reinstated claim.
See Section 5 of the Factual and Procedural History in the attached Memorandum.
6. There were motions decided while the case was officially in
abeyance.
See Section 6 of the Factual and Procedural History in the attached Memorandum.
7. There was a motion decided while the case was officially in
stay.
See Section 7 of the Factual and Procedural History in the attached Memorandum.
8. The Superior Court’s Remand.
See Section 8 of the Factual and Procedural History in the attached Memorandum.
(This quotes from the Superior Court’s Remand - there is no
question presented and no argument for this section.)
9. The Nevyas plaintiffs fail to allege that defendant Morgan
re-posted the same statements that had been on his website as of July 30, 2003.
See Section 9 of the Factual and Procedural History in the attached Memorandum.
10. The Nevyas plaintiffs try to excuse and exclude their failure
to allege that defendant Morgan re-posted the same statements that had been on
his website as of July 30, 2003.
See Section 10 of the Factual and Procedural History in the attached Memorandum.
11. The Nevyas plaintiffs failed to honor their contract with
defendant Morgan.
See Section 11 of the Factual and Procedural History in the attached Memorandum.
12. The statements posted on Morgan’s website are not defamatory
because they are true.
See Section 12 of the Factual and Procedural History in the attached Memorandum.
13. The statements on Morgan’s website are either fact or opinion.
See Section 13 of the Factual and Procedural History in the attached Memorandum.
14. The Nevyas plaintiffs are at least limited purpose public
figures.
See Section 14 of the Factual and Procedural History in the attached Memorandum.
15. If the Nevyas plaintiffs had not sworn falsely, and had
produced the documents they withheld, this instant case would not exist.
See Section 15 of the Factual and Procedural History in the attached Memorandum.
16. The above are relevant to defendant Morgan’s counter-suit.
See Section 16 of the Factual and Procedural History in the attached Memorandum.
WHEREFORE
defendant Morgan moves this Honorable Court enter a suitable order granting the
Motion of defendant Friedman and the instant Cross Motions of defendant Morgan.”
July 17, 2009:
“Plaintiffs
deny that the outcome of the surgery was poor and further deny that Morgan is
legally blind.”
July 20, 2009:
“PRO SE DEFENDANT MORGAN’S REPLY TO “PLAINTIFFS’ RESPONSE TO DEFENDANT’S
MOTION TO DETERMINEWHETHER PLAINTIFFS ARE PRIVATE FIGURES OR LIMITED PURPOSE
PUBLIC FIGURES”
The Nevyas plaintiffs’ Response shows them again trying to have it both ways,
saying one thing to this court and a different thing outside this court.
Examples include:
1. At paragraph 4 plaintiffs tell this court: “Plaintiffs deny that the outcome
of the surgery was poor and further deny that Morgan is now legally blind.”
Outside this court, plaintiff
Herbert Nevyas states: “...he reported vision as low as 20/200 in each eye when
I last saw him. I know he has been judged legally blind....and that he is
presently receiving Social Security Disability payments because of his legal
blindness.” Exhibit D.
2. At paragraph 5 plaintiffs tell this court: “Plaintiffs, after reasonable
investigation, have insufficient information to determine whether Defendant
Friedman is a practicing physician....”
July 27, 2009: “Plaintiffs are also incorrect in the facts as they have
ignored the evidence indicating that they voluntarily injected themselves into
the public discussion concerning LASIK surgery, and admittedly sought to
influence the public debate. Yet, even under plaintiffs’ narrow and misguided
interpretation of the public controversy requirement, the facts still indicate
that Plaintiffs are limited purpose public figures with regard to the defamation
claim against Friedman.”
August 03, 2009: “More basically, a general concern over the safety of LASIK
is just that - - a concern. It is not a public controversy. An actual public
controversy must be a “real dispute, the outcome of which
affects the general public or some segment of it in some appreciable way.”
August 05, 2009: “PRO SE DEFENDANT MORGAN’S SUR-REPLY TO “PLAINTIFFS’ SUR-REPLY
MEMORANDUM IN OPPOSITION TO DEFENDANT FRIEDMAN’S MOTION CONCERNING PLAINTIFF’S
PUBLIC FIGURE STATUS.”
Plaintiffs’ Sur-Reply shows them again trying to have it both ways, saying one
thing to this court in their Amended Complaint, and a different thing in their
Sur-Reply.
Plaintiffs worked hard purporting themselves as “doctor’s doctors” at the
forefront of eye care and LASIK surgery. For argument’s sake, even if they did
not make themselves limited purpose public figures, Morgan did. By the time
Friedman purportedly defamed them (by supposedly having Morgan post letters to
the FDA), Morgan’s website was already prominent for almost one year and the
public was already researching plaintiffs on the internet. As plaintiffs
documented in their Amended Complaint at paragraphs 15, 17, 22, 23, 25, 52, 56,
57, 58:”
November 09, 2009:
THE COURT FINDS THAT PLTFS ARE
"LIMITED PURPOSE PUBLIC FIGURES" RELATIVE TO THE INSTANT DEFAMATION CASE. BY THE
COURT
...ROGERS,J 10/14/09
November 12, 2009: “10. Moreover, the finding that plaintiffs are limited
purpose public figures changes the burden of proof, requiring that plaintiffs
prove that defendant’s statements are false, rather than requiring defendants to
prove as an affirmative defense that their statements were true. 11. This
sea-change in the burden of proof may require additional issues to be decided at
trial. For example, it may re-open issues which were litigated in the underlying
malpractice action upon which plaintiffs prevailed. The court’s ruling may give
plaintiffs a second bite at the apple.”
November 30, 2009: “At a May 5, 2009 Status Conference, both Plaintiffs’ counsel
and Friedman counsel advised this Court that the matter of Plaintiffs’ public
figure status needed to be resolved. Under Pennsylvania law, in any defamation
case where the plaintiff is alleged to be a public figure, a court must first
make a threshold determination as to the plaintiff’s public figure status. That
determination will clarify the parties’ respective burden of proof at any
upcoming trial. This Court then set a briefing schedule and each side submitted
briefs. By Order dated October 14, 2009, this Court ruled that plaintiffs were
“limited purpose public figures” for purposes of the defamation claim.”
December 02, 2009: “Plaintiffs’ instant motion does not claim that this Court’s
Order eliminates the need for trial, but only that this Court’s Order makes
plaintiffs’ success at trial more difficult.
According to plaintiffs’ argument, almost anything a judge orders is a
“controlling issue of law” and subject to piecemeal appeal, including defendant
Morgan’s unopposed cross-motions currently before this Court.”
December 08, 2009: REPLY
BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION TO AMEND ORDER TO CERTIFY FOR PURPOSES OF
TAKING AN INTERLOCUTORY APPEAL
An interlocutory appeal is appropriate in this action because the question of
whether Dr. Nevyas, Dr.Wallace and their medical practice are limited purpose
public figures is the controlling question in this litigation. The Court’s
finding that plaintiffs are limited purpose public figures has a profound effect
on this litigation. It requires
Plaintiffs to prove actual malice.
December 23, 2009: “Plaintiffs’ reply continues to ignore the proper standard
for determining whether an interlocutory appeal should be permitted. Plaintiffs
argue that an interlocutory appeal is warranted because the public figure
determination is “a controlling question in this litigation” and that the
Court’s finding has “a profound effect on this litigation”. That argument
ignores the proper standard under 42 Pa. C.S.A. §702(b). Indeed, if Plaintiff’s
argument were accepted, then any significant ruling by a trial court which
decides an important issue or which effects the parties in a case, would be
grounds for an interlocutory appeal.”
December 24, 2009: “Plaintiffs assert that, if trial occurs with plaintiffs
designated limited purpose public figures, they will appeal post-trial.
Plaintiffs thus purport that is in everyone's interest to have an interlocutory
appeal now, purportedly to save time, etc.
Plaintiffs lack credibility since, as the United States Supreme Court states,
interlocutory appeals can increase trial court difficulty, delay, add costs,
diminish coherence, and create additional and unnecessary appellate court work:” |