(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.
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:
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.
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.
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:
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.
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:
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.
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."
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:”
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:”