Documents presented to a Colorado court suggest why biological dentists and others funded the bogus lawsuit Cavitat Medical Technologies filed against Aetna, Inc. The company markets the Cavitat ultrasound device, which is claimed to help dentists diagnose neuralgia-inducing cavitational ostenecrosis (NICO), a condition that lacks scientific recognition. In 2002, Aetna issued a Clinical Policy Bulletin which explained why Aetna would not cover diagnostic or treatment procedures related to use of the device. In 2004, Cavitat and its owner filed a lawsuit falsely accusing Aetna of “racketeering” and other wrongdoing and alleging that it engaged in an illegal conspiracy with Dr. Robert Baratz and me. After depositions demonstrated that we were not involved in preparing Aetna’s Clinical Policy Bulletin, the court dismissed the racketeering charge and Aetna filed a countersuit charging Cavitat and its owner with malicious prosecution. In January 2006, the judge ruled on narrow legal grounds that Aetna did not have standing to sue Cavitat because the claims had been filed by individual providers and not the company. The underlying suit was settled a few months later.
Although Aetna’s countersuit did not succeed, I believe that its allegations were well founded. Documents obtained during the discovery proceeding have revealed that the lawsuit was backed by “biological dentists” who purchased shares that would entitle them to a percentage of any money collected if Cavitat prevailed. These documents also indicate that the shareholders also planned to add dental boards as defendants in their racketeering suit if they did not agree to stop disciplining dentists who diagnose and treat “NICO.” Cavitat’s attorney asked the court to permit him to share Dr. Baratz’s deposition with lawyers who represent dentists who face, or who might face, such disciplinary action. The document below is Aetna’s opposition to that request. Exhibit 1 describes the funding scheme. Exhibit 5 states: “We are trying a different tactic with the state dental boards but if they do not comply, they will be named in the Aetna legal action as co-defendants, individually and as a board.” On July 15, 2005, the judge sided with Aetna and ruled that the deposition must remain sealed.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 04-CV-1849-MSK-OES
CAVITAT MEDICAL TECHNOLOGIES, INC.,
Plaintiff and Counterclaim-Defendant,
AND ROBERT J. JONES,
Defendant and Counterclaim-Plaintiff.
AETNA’S RESPONSE TO PLAINTIFFS’ OBJECTIONS TO ORDERS
RE: BARATZ DEPOSITION TRANSCRIPT
Comes now Defendant, Aetna, Ine. (“Aetna”), and respectfully requests that the Court overrule Plaintiff’s Objections To Orders Re: Baratz Deposition Transcript (“Plaintiff’s Objections”), and would show as follows:
I. INTRODUCTION AND SUMMARY
In seeking unsupervised disclosure of non-public pretrial discovery taken in this case, Cavitat relies upon an inapplicable legal standard for public access to public trial proceedings. Cavitat’s argument ignores the Supreme Court authority giving trial court’s broad discretion to deny access to pretrial civil discovery for II cause II shown. The magistrate found cause and minimally required those ‘who wish to use (or misuse)
Dr. Baratz’s deposition to appear in this Court, state their reasons, and subject themselves to the Court’s oversight and discipline. The Magistrate’s decision was more than reasonable, and, on this record, Cavitat is powerless to reverse it.
Unlike Cavitat’s unsupported allegations, the record shows that Magistrate Schlatter did not abuse his discretion in placing limits on the use of Dr. Baratz’s deposition:
- Dr. Baratz’s testimony is not subject to disclosure as an expert because, in this case, he was not deposed as an expert. He is a third party fact witness that Cavitat accused of racketeering and crimes without any basis in fact or substantial justification.
- In Dr. Baratz’s deposition, Cavitat’s counsel made no effort to establish his allegations that Dr. Baratz was part of a racketeering enterprise with Aetna. Instead, Cavitat sought discovery concerning malpractice lawsuits and dental disciplinary proceedings in which Dr. Baratz has or might be opposite dentists who treat patients outside evidence-based, scientifically valid standards of care for medicine and dentistry.
- Cavitat’s own records, produced only after two court orders mandating their disclosure, establish beyond peradventure that Cavitat is using this proceeding for the improper purpose of attacking dental boards targeting its customers.
- Part of that cadre of practitioners is funding or coordinating this lawsuit against Aetna, and they use the services of Tim Bolen, a “paid troublemaker,” and self-styled “crisis manager” engaged by “alternative medicine” practitioners to attack witnesses like Dr. Baratz and interfere with medical and dental boards.
- That same Tim Bolen posted a false, defamatory, and sensationalistic account of the deposition of Dr. Stephen Barrett, another witness in this case, on the internet within a couple of hours of it having occurred, all intended to intimidate Dr. Baratz, whose testimony was to occur two days later.
- Cavitat’s counsel first claimed on the record that he had “nothing to do” with Mr. Bolen, all the while resisting discovery of records concerning the Cavitat legal fund showing that Bolen is in fact a “partner” and “consultant” in the Cavitat lawsuit. The truth became known only after Magistrate Schlatter ordered production of the documents.
The lawyers and their clients to whom Cavitat wishes to disclose Dr. Baratz’s deposition are associated with Bolen and others of his ilk who have attacked and attempted to intimidate Dr. Baratz and other witnesses for years. Indeed, Cavitat seeks to disclose the deposition to lawyers who have in the past and or presently use Bolen’s “services.” Under the correct legal standard, this Court obviously has power protect itself, the parties, or the witness from the potential misuse of these proceedings. It is certainly not asking much to require the alternative dentistry bar to appear in this Court and convince the Court that they are “on the level” before subjecting the Court, Dr. Baratz and Aetna to more abuse.
II. FACTUAL BACKGROUND
A. Dr. Baratz Is An Innocent Third Party At Whom Cavitat Leveled Its Conclusory RICO Allegations That Have Since Been Dismissed
When Cavitat brought this claim, it complained that it was the victim of a criminal enterprise that was aligned to destroy its ability to try and profit from a condition called Neuralgia Inducing Cavitational Osteonecrosis (“NICO”).1 Cavitat sells its device to “biologic dentists” who purport to detect and treat this contorversial condition. Dr. Baratz is a physician who has testified on behalf of the Government with respect to practitioners who do not follow an evidence-based, scientific approach to medicine or dentistry.2 Without a shred of factual support Cavitat accused him of being part of a criminal enterprise with Aetna.3
This Court held, among other things, that the Plaintiffs’ allegations concerning the supposed RICO enterprise were insufficient and conclusory. The Plaintiff failed and refused to amend the allegations and the claims were dismissed. Prior to the dismissal, however, Aetna deposed Dr. Baratz and the other alleged “RICO” conspirators. That testimony demonstrated that there was never any substantial justification for the Plaintiffs’ claims, especially the contention that Aetna was part of a criminal enterprise with Dr. Baratz or anyone else. Indeed, as even a cursory pretrial investigation would have established, Dr. Baratz had no substantial connection to Aetna prior to Cavitat’s allegations.4
Tellingly, the Plaintiff never even tried to look for a fig leaf to cover its naked racketeering allegations. Cavitat’s counsel essentially made no effort to establish any connection between the third parties like Dr. Baratz and Aetna. Cavitat’s counsel only nquired about Aetna iI, two questions on one page of the deposition for a grand total of 40 seconds.5 Instead, Cavitat attempted to obtain information from Dr. Baratz about ongoing regulatory investigations relating to non-party practitioners.6 Even the witness complained that the questions had nothing to do with this case or his alleged nvolvement with Aetna.7 Beyond being irrelevant, Cavitat’s proxy was to misuse discovery and court proceedings to attempt to intimidate witnesses like Dr. Baratz who dare to testify in Government investigations and court proceedings.
B. Tim Bolen, Cavitat’s Partner, Is A “Paid Trouble Maker” Who Has Tried To Intimidate Dr. Baratz And Influence His Testimony
During the course of the third-party depositions, a sensationalistic posting appeared on the Internet, which clearly were designed to abuse and intimidate the testimony of upcoming witnesses, including Dr. Baratz.8 The author of the statements is Tim Bolen.
Cavitat concedes that Jones, its president, discussed with Mr. Bolen after the deposition of Dr. Stephen Barrett on April 14, 2005, which resulted in Mr. Bolen posting an attack account of the deposition on the internet. Cavitat’s counsel claimed this attack was indeed false and that he had nothing to do with Tim Bolen and that he is a “loose cannon” (who) “gets out there and says whatever he wants on the internet. . . .”9 The truth, however, is that Bolen is a part-owner of the instant litigation against Aetna,10 a matter only disclosed after this Court required disclosure of records concerning the Cavitat Legal Fund.11 Despite Cavitat’s effort to distance itself from Bolen, the Cavitat Legal Fund agreement and associated documents describes him in II partnership” with Cavitat as its public relations agent and consultant.12
Cavitat’s allegations concerning Mr. Bolen in its objections are not of record nor under oath. Dr. Baratz’s testimony concerning Mr. Bolen is. Bolen is no “journalist” and Cavitat did not argue below (much less prove) that he was. Bolen is a “paid trouble maker” and self-styled” crisis manager” for practitioners being investigated by medical or dental boards.13 He has defamed and threatened Dr. Baratz by posting statements about him on the internet.14 He accosted Dr. Baratz in a courthouse where Dr. Baratz was prepared to testify, after which he gave Df. Baratz the” one finger salute” that was captured in a photograph.15 Dr. Baratz, who is Jewish, takes particular and understandable offense to Mr. Bolen’s attempt to equate him as a Nazi who is due for a “health cafe Nuremberg.”16 Mr. Bolen recently bragged that “Bobbie [Dr. Baratz] is terribly afraid of me – mentally and physically – and he should be.”17 Mr. Bolen wrote this after traveling across the country to attend a hearing at which Dr. Baratz was testifying as a state expert witness. Cavitat wishes to provide this deposition to the parties who hired Mr. Bolen to do this.
C. Aetna Demanded And The Plaintiffs Acquiesced In An Agreement To Allow The Court To Regulate Disclosure Prevent Abuse Of The Deposition
Given what had occurred, Dr. Baratz’s counsel and Aetna demanded some form of protection for witnesses like Dr. Baratz who dutifully provided testimony in response to this Court’s subpoenas. The agreement of counsel, which Cavitat did not supply to the Magistrate in its initial request speaks for itself:
MR. SCHUH [Dr. Baratz’s Counsel]: Mr. Reid, are you going to have contact directly or indirectly with anyone who is going to post anything about this deposition on the Internet?
MR. REID: I will have contact with my client and explain what happened during the proceedings, if my client is interested. I have assured counsel last time and I will do it again that I will instruct my client not to discuss what happened here today with anyone, including Mr. Bolen specifically.
MR. SCHUH: And do 1 take it you are representing that you personally will do nothing other than communicate with your client that would causc directly or indirectly anything about this deposition to be posted on the Internet?
MR. REID: Yes, and without a court order or getting a stipulation by counselor anything like that, sure.
MR SCHUH: Thank you for that representation.
MR. REID: I’m not going to say that forevermore this deposition will be secret. I think we have court proceedings here, and it will be used—I’m ensured it’ll be used in motions filed with the Court and so forth. This is not subject to any confidentiality order. I think the question here is whether or not we have another situation like that that occurred with Mr. Bolen, and I understand your concern; and I assure you I will not participate in that. If it’s disclosed to anyone, I will let you—I think I have your card or at least have your address. If you let me know; I’ll make sure that you and defense counsel knows before itls disclosed and have an opportunity to object if you wish to object.18
Although Cavitat later and purposefully kept Dr. Baratz’s counsel out of the loop when he sua sponte19 approached the Magistrate seeking permission to disclose the deposition, Aetna objected. The Magistrate did not abuse its discretion in regulating how the deposition could be used.
D. The Magistrate Was Justified In Concluding That There Was Danger In Unregulated Disclosure Of Dr. Baratz’s Deposition
The Magistrate had substantial basis to conclude that Cavitat’s proposed disclosure of Dr. Baratz’s deposition raised the dangers the parties had sought to guard against in making their agreement. Dr. Baratz has testified at other proceedings in which dentists used Mr. Bolen’s “services” to try to combat his testimony or intimidate its source.20 That nexus is also present here.
Consistent with the improper pattern of abuse against Dr. Baratz in the past, one of the persons to whom Cavitat’s counsel wishes to disclose the deposition is counsel for Dr. Shankland who admits he is being investigated by the State of Ohio. Dr. Shankland is a member of Cavitat’s so-called board of scientific advisers. He is represented by Mr. Recker, to whom Cavitat’s counsel also wishes to give a “courtesy copy” of the deposition. Mr. Recker, who Cavitat has previously listed as a Rule 26 fact witness, has previously posted depositions and exhibits relating to dental-related disdplinary actions in which Dr. Baratz appeared as a state expert witness.21 Mr. Recker is now obviously asking for a copy of the deposition to do precisely that again.
Likewise, Ms. Hunter, the attorney who hired Mr. Bolen to sit at counsel table as her consultant because Dr. Baratz was supposedly “terribly afraid” of him, intends to reciprocate for Mr. Bolen’s” service” by providing him a copy of the deposition so that he can ply his trade. In fact, Cavitat’s attempt to disclose the deposition of Dr. Baratz is further evidence that its suit against Aetna is for the improper purpose of attacking state dental boards who are investigating its customers.22
All the Magistrate’s order requires is that anyone having a legitimate need for Dr. Baratz’s deposition first allow the court to balance that need against the risk that Dr. Baratz will again be subjected to abuse that no witness should have to bear. Under the law, the Magistrate’s decision presents no reversible error.
III. ARGUMENTS AND AUTHORITIES
A. Pretrial Civil Discovery Is Not Public And Protection May Be Granted For Cause
Cavitat is trying to create error in the Magistrate’s decision by erecting an artificially high standard of review. Cavitat relies upon an order of this Court in another proceeding denying a motion to seal court filed summary judgment exhibits—i.e. the actual trial proceedings of the court.23 An altogether different and much lower standard applies to protecting participants in pretrial civil discovery. In fact, the very order on which Cavitat relies specifically recognizes that difference.24 Even though Cavitat’s counsel was counsel of record in the case upon which he relies, Cavitat ignores the distinction drawn bv this Court.
“Pretrial depositions. . . are not public components of a civil trial.” Seattle Times Co. v. Rhinehart, 467 U.S, 20, 33 (1984) (emphasis added). Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice. Id. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information. Id.
Much of the information that surfaces during pretrial discovery, especially as it is conducted by Cavitat, is “unrelated, or only tangentially related to the underlying cause of action.” Id. There is thus” a significant potential for abuse,” Id. Because of the liberality of pretrial discovery, trial courts have” ample powers” to issue protective orders conferred by Rule 26(c). Seattle Times, 467 U.s. at 34 & n. 20. Public access to discovery materials may be limited upon a showing of good cause. FED. R. CN. p, 26(c); Taylor D. Solvay Pharmaceuticals, 223 F.R.D. 544, 547 (D. Colo. 2004) (citing Seattle Times).
A magistrate’s decision to order such protection is not reversed absent an abuse of his or her” considerable discretion.” Taylor, 223 F.R.D. at 547 (citing Otero v. Buslee, 695 F.2d 1244,1247 (10th Cir.1982)). No such abuse can be shown here.
B. The Magistrate Did Not Ahuse His Discretion In Finding Cause On This Record
Cavitat’s argument that expert testimony is subject to disclosure holds no water because Dr. Baratz was not deposed as an expert. He is a third party fact witness who was minding his own business until Cavitat, without substantial justification, falsely accused him of being part of a criminal enterprise. Dr. Baratz’s opinions and testimony in unrelated actions against dentists accused of being scoundrels or charlatans is not a proper subject of discovery in this action. Moreover, had Cavitat restricted itself to seeking discovery that was minimally relevant to its accusations of criminal conduct, Dr. Baratz’s testimony would have little or no relevance to third parties with which Cavitat seeks to share the deposition.
Next, Cavitat’s argument that none of the material is confidential or privileged is simply irrelevant. No such privilege need be shown in order to protect discovery from misuse and witnesses from harassment. The rules under which the Court acts to protect litigants and third parties from the misuse of civil discovery specifically speak to the prevention of “annoyance” “embarrassment” and” oppression.” Seattle Times, 467 U.S. at 35 n.21. The parties here obviously recognized the potential for such misuse if, as happened before, false and sensationalistic accounts of the deposition were posted on the internet by the likes of Mr. Bolen. Thus, they agreed that it shouldn not be disseminated in such a manner that it would directly or indirectly make its way to the world wide web. The Magistrate did not abuse his discretion in finding that the proposed disclosure would be in violation of this agreement.
Further, in the absence of an agreement, this Court is not impotent to protect witnesses.like Dr. Baratz from “annoyance,” “embarrassment” and “oppression.” Seattle Times, 467 US at 35 n.21. Bolen is in league with several other lawyers for biologic dentists, and the Magistrate’s ruling does little more than bring these lawyers within the disciplinary ambit of this Court before increasing the potential for misuse of the Court’s discovery products. If Cavitat had compelling evidence that disclosure would not lead to the annoyance, embarrassment, oppression and witness tampering that already appear on this record, it could have supplied that evidence at the time that arguments were made. Taylor, 223 F.R.D. at 547. Absent that”the Magistrate Judge did not abuse [his] considerable discretion,” Id.
Cavitat has shown no abuse of discretion by the Magistrate’s decision to restrict unsupervised access to the deposition of a witness who has been harassed in the past by Cavitat’s associates and is threatened with such harassment in the future. Beyond that, Cavitat did not even cite the controlling legal standard for sealing pretrial discovery, but partially quoted an order, from a case in which its counsel participated, that recognized the inapplicability of the standard on which it relies. There was and is no substantial justification for Cavitat to challenge the Magistrate’s decision, and more to the point, Cavitat’s actions in taking discovery about third party disciplinary proceedings and attempting to disseminate that information to third parties shows that this suit and Cavitat’s method of maintaining it are not substantially justified.
- Complaint and Demand for Jury Trial at 2-3.
- DKT# 66 (Baratz Dep.) at 258-267.
- Complaint and Demand for Jury Trial at 2-3, 7
- DKT# 66 (Baratz Dep.) at 17-19, 21-23, 25.
- DKT# 66 (Baratz Dep.) at 170.
- See, e.g., DKT# 66 (Baratz Dep.) at 107, 110, 112, 121, 133, 150, 164.
- DKT# 66 (Baratz Dep.) at 252.
- See DKT# 66 (Baratz Dep,) at 33-34.
- DKT# 66 (Baratz Dep.) at 264, 267;ivlay 23rd, 2005 Hearing Transcript, p, 12, Docket No. 67.
- Ex. 1. (Subscription Agreement awarding Bolen shares in return for his “public relations and consulting services.”)
- See DKT# 60, DKT# 61 and DKT# 84 and DKT# 87.
- Ex. 2 (Correspondence from Cavitat to Bolen describing his contibutions to the “partnership.”
- DKT# 66 (Baratz Dep.) at 260. See also Ex. 3 where Bolen describes himself as a “crisis manager.”
- DKT# 66 (Baratz Dep.) at 262, 267.
- DKT# 66 (Baratz Dep.) at 259.
- DKT# 66 (Baratz Dep.) at 33-34.
- See Ex. 3. Also available at http://www.quackpotwatch.org.
- DKT# 66 (Baratz Dep.) at 278-79 (emphasis added). Lest there be any doubt, Aetna has in fact designated the deposition as confidential under the terms of this Court’s protective order.
- At the May 23rd hearing, Cavitat strategically elected to make this Application in oral form, ex parte to Dr. Baratz and his counsel and did not provide the Court with the transcript at that hearing. Cavitat now claims the Court was not sufficiently informed to make a judicial determination. Aetna did however properly represent the agreement of the parties and provided the Court with the relevant transcript citations. See Ex. 5.
- DKT# 66 (Baratz Dep.) at 258-267.
- See website http//dclslaw.com/State Board/MedicalBoard/Kadile/Kadile.shtml (accessed 6-3-05).
- See Ex. 5 (Cavitat letter to Cavitat Legal Fund members advising of tactic to name state boards as defendants in “the Aetna legal action”).
- See Plaintiffs Objections at 8,
- See Cause No. 03-2589, DKT# 43 at 3 (“Documents subject to discovery are not customarily filed with the Court and thus are not available to the public. As to those documents which are filed with the Court, the parties are not in a position to finally determine whether the public has an interest in them,”). Cavitat’s counsel is well aware of this distinction because he was counsel of record in Cause No. 03-2589.
John B. Shely
Texas Bar No. 18215300
Kendall M. Gray
Texas Bar No. 007907282
ANDREWS KURTH LLP
600 Travis, Suite 4200
Houston, Texas 77002
John M. Palmeri
WHITE AND STEELE, P.C.
950 17th Street, Suite 2100
Denver, Colorado 80202
(303) 296-2828 (303)
John M. Elliott
James C. Crumlish III
Mark J. Schwemler
ELLIOTT GREENLEAF & SIEDZIKOWSKI, P.C.
925 Harvest Drive
P.O . Box 3010
Blue Bell, Pennsylvania 19422
Telephone: (215) 977-1000
ATTORNEYS FOR DEFENDANT
CERTIFICATION OF SERVICE
I hereby certify that on July 13, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:
John B. Shely
Attorney for Defendant
Andrews Kurth LLP
600 Travis, Suite 4200
Houston, Texas 77002
This article was revised on February 13, 2008.