Appendix — Barrett v. Koren (No. 07-1233)

qO ena 3 3 bene

(\) 07123 3MAR 25 2008

OFFICE OF THE CLERK

No.

October Term, 2008

IN THE

SUPREME COURT OF THE UNITED STATES

STEPHEN BARRETT, M.D.

Petitioner

Versus

TEDD KOREN D.C. and

KOREN PUBLICATIONS, INC.

Respondent

On Petition For Writ of Certiorari

from the Order of the Pennsylvania Supreme

Court

APPENDIX TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF THE UNITED STATES

Richard J. Orloski

Attorney ID# 09857

Attorney for Petitioner

111 N. Cedar Crest Blvd.

Allentown, PA 18104-4602

619 433-2363

TABLE OF CONTENT.

Order of Supreme Court of

Pennsylvania dated January 8, 2008

per curiam

Order and Opinion of Superior Court

of Pennsyivania dated June 11, 2007

before Ford Elliot, Bowes and

McEwen

Bowes Concu'ring & Dissenting

Opinion

Entry of Final Judgment dated

April 7, 2006

Pennsylvania Rule of Appellate

Procedure 1925(a) Statement

dated May 16, 2006

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IN THE SUPREME COURT OF PENNSYLVANIA

_MIDDLE DISTRICT

STEPHEN BARRETT, M.D. :NO. 502 MAL 2007

Petitioner :

V. :Petition For Allowance

TEDD KOREN and :of Appeal from the

KOREN PUBLICATIONS ~~ :Order of the Superior

INC. :Court

Respondents

ORDER

PER CURIAM

AND NOW, this 2" day of January, 2008, the

Petition for Allowance of Appeal is hereby DENIED.

TRUE & CORRECT COPY

ATTEST: January 2, 2008

Norina K. Blynn, Chief Clerk

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR

COURT 1.0.P. 65.37

STEPHEN BARRETT, M.D. ‘NO. 502 MAIL 2007

Appellant :

We -IN THE SUPERIOR COURT

TEDD KOREN and ‘OF PENNSYLVANIA

KOREN PUBLICATIONS _ :

INC. ‘NO. 1035 EDA 2006

Appellees :

Appeal from the Judgment entered April 7,

2006, in the Court of Common Pleas, Lehigh

County, Civil No. 2002-C-1837

BEFORE: FORD ELLIOTT, P.J. BOWES, J., and

McEWEN P.J.E.

MEMORANDUM: FILED JUNE 11, 2007

Appellant, Stephen Barrett, M.D. has taken this appeal

from the judgment entered in favor of Appellees, Tedd

Koren, D.C. ' and Koren Publications, Inc. following the

grant of appellees’ motion for directed verdict and

denial of appellant’s post-trial motions in this

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1 Doctor of Chiropractic Medicine

health at Penn State University. He donated

royalties from his first Dook to start a television

snow called 7a/k With Your Doctor to further

educate people in the Lehigh Valley. One of his

mail fraud investigations ultimately resulted in

passage of a federal law strengthening the U.S.

Postal Service’s ability to crack down on mail-

order health frauds. He has assisted the FBI,

State Attorney Generals, the Federal Trade

Commission and local law enforcement agencies

on similar matters, as both a paid and unpaid

consultant. Dr. Barrett has been a peer reviewer

for seven medical journals, including the Journa/

of the American medical Association. His

websites are the target of more than 100,000

hits each month. He has appeared on the Today

Show and CNN to educate on healthcare. He

earned numerous awards for his work.

After thirty-five years, at age sixty (60), Dr.

Barrett opted to inactivate his Pennsylvania

medical license in December, 1993. He was

voluntarily retiring, without any negative marks

upon his license or career. Dr. Barrett never had

his license taken away from him. He simply

chose to retire to an inactive status.

Appeliee Koren is [a chiropractor and] the

president of Appellee Koren Publications, Inc.

He publishes an_ electronic subscription

newsletter. He also publishes a free electronic

se

newsletter [of]which he is the sole author.

Inside this free newsletter, Appellee has

published several things pertaining to Dr.

Barrett...

Brief of Appellant, pp. 4-5

Appellee’s August, 2001 newsletter stated, in relevant

part:

Contents

Palmer

Fear and loathing in Rio de Janiero

Quackbusters Buste[d]

The Therapeutic State

Tedd Koren Patient Newsletter

February Unseminar

Vitamin K shots

Weird hospital stuff

Fascinating Letters from you

I just got back from Palmer Lyceuri...

WE OK ok

Speaking of Sportelli, there’s good news about

[plaintiff] Stephen Barrett, M.D., the de-

licensed quackbuster. Not good news for him,

but it’s pretty good for us.

Quackbusters Busted

Barrett and other ‘Quack Busters’ who have

made a career of attacking chiropractic and

other non-pharmaceutical health care arts have a

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very thin skin when they are attacked. Their

modus operandi is to attack, threaten and start

legal actions against those who don’t share their

bigotry...

..One person Christ[e]ned Stephen Barrett a

‘QuackPot’. It seems that this label drives him

especially crazy. (Let’s use it all the time when

referring to him.)...

But there’s more...(is this starting to sound

like a TV infomercial?).

Stephen Barrett, M.D., William Jarvis and the

entire Quackbuster gang including many of

Barrett’s business enterprises, associates and

organizations are being sued for $10 million

for racketeering, malicious prosecution,

abuse of process and other charges by New

Century Press...

But there’s more... 14 months ago I was told

about the above lawsuit. Barrett is now in

trouble. I can’t tell you more but I will keep

you abreast with the late breaking reports as the

case develops.

Tedd Koren’s August 2001 newsletter, Exhibit P-4

(emphasis supplied.

Appellant filed a complaint in defamation on

March 10, 2003. More than two years later, on October

10, 2005, a jury trial commenced and, at the close of

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appellees’ case, both parties moved for a directed

verdict. The trial court, on October 13, 2005, granted

appellees’ motion, and denied appellant’s motion, and

appellant thereafter filed post-trial motions seeking a

new trial, which were denied. This appeal followed;

Preliminarily, we note our standard of review:

When assessing the trial court’s denial of a

motion for new trial, we apply a deferential

Standard of review. The decision whether to

grant or deny a new trial is one that lies within

the discretion of the trial court. The appellate

court will not overturn such a decision unless the

trial court grossly abused its discretion or

committed an error of law that controlled the

outcome of the case.

McCandless v. Edwards 908 A.2d 900, 903

(Pa.Super. 2006) (citation omitted). In reviewing a trial

court’s decision to direct a verdict in favor of a

defendant,

we must view the evidence in the light most

favorable to the plaintiff in order to determine

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whether plaintiff failed to prove his case as a

matter of law. If a jury reasonably could have

concluded, on the basis of the evidence and all

reasonable inferences therefrom, that the

defendant was liable, then the directed verdict

must be reversed. Our review over questions of

law is, as always, plenary.

Id. (citation omitted).

In this case, appellant, as the plaintiff below, had

the burden to prove the elements of defamation”, and

further, as a public figure’ had to further dernonstrate

that the statements were made with actual malice:

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? In Pennsytvania, the uniform Single Publication Act prescribes

basic elements of the plaintiff's burden of proof in an action for

defamation. See 42 Pa. C.S. §§8341-8345. Section 8343 provides:

(a) Burden of plaintiff.--In an action for defamation, the

plaintiff has the burden of proving, when the issue is properly

raised: (1) The defamatory character of the communication.

(2) Its publication by the defendant.

(3) Its application to the plaintiff.

(4) The understanding by the recipient of its defamatory meaning.

(5) The understanding by the recipient of it as intended to be

applied to the plaintiff.

(6) special harm resulting to the plaintiff from its publication.

(7) Abuse of a conditionally privileged occasion.

42 Pa. C.S. §8434(a).

3 There is no dispute that appellant is a public figure.

When the plaintiff is a public figure,..., he must

prove that the statements he characterizes as

defamatory were made with actual malice,

that is, the speaker either knew that they

were false, or recklessly disregarded their

falsity. [ Tucker v. Philadelphia Daily News,

577 Pa. 598, 624, 848 A.2d 113, 130 (2004)]

The burden of proof imposed is substantial, as

‘[t]he actual malice standard goes so far as to

forbid imposition of liability even in those

instances where the defendant negligently

publishes false, defamatory statements about a

public figure or public official.” MWorton v.

Glenn, 580 Pa. 212, 860 A.2d 48, d56 (2004),

cert. denied, 544 U.S. 956, 125 S.Ct. 1700 161

L.Ed.2d 539 (2005). Indeed, ‘[fjailure to check

sources, or negligence alone, is _ simply

insufficient to maintain a cause of action for

defamation. Recklessness generally and in the

context of actual malice is not easily shown.”

Tucker, supra at 135. Moreover, establishment

of a defamation claim requires clear and

convincing evidence, the highest level of proof

for civil claims. Bartlett v. Bradford

Publishing, Inc. 885 A.2d 562, 566 (Pa. Super.

2005) (citation omitted). A showing of actual

malice requires “sufficient evidence to permit the

conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication.”

Curran v. Philadelphia Newspapers, Inc.

$546 A.2d 639, 642 (Pa.Super. 1988), appeal

9a

denied 522 Pa. 576, 559 A.2d 37 (1989)

(quoting St. Amant v. Thompson, 390 U.S.

727, 731, [88 S.Ct. 1323, 20 L.Ed.2d- 262]

(1968).

Blackwell v. Eskin 2007 Pa. Super 20 at 46 (Pa.

Super. 2007) (emphasis supplied).

The trial court granted appellees’ motion for

directed verdict based on the conclusion that appellant,

a public figure, could not establish actual malice.

Specifically, the trial court determined that appellant

could not meet his burden since (1) the statements

“quackpot” and “in trouble were merely opinion, (2) the

statement ‘racketeering lawsuit for 10 million” wasn't

proven to be false, and (3) the statement that appellant

was “de-licensed” was taken by Appellee from another

author’s website, without serious doubts as to its truth

or falsity. The trial court concluded that on this record

there was not sufficient evidence presented to permit

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the conclusion by a jury, by clear and convincing

evidence, that defendant, in fact, entertained serious

doubts as to the truth of any of his publications. See:

N.T. October 13, 2005. p. 19.

Appellant, in challenging the decision of the trial

court that granted appellees’ motion for a directed

verdict, claims that he established actual malice as

follows: (1) “appellee’s ill will toward appellant

provide[d} a motive for appellee’s reckless disregard for

the truth of his statements” (2) “Appellee made his

statements with knowledge that they were false or with

reckless disregard of their truth or falsity, (3) Koren’s

use of the word ‘delicensed’ was intended to mean that

Barrett’s license was involuntarily taken away,” and (4)

“the trial court improperly condoned appellee’s attempt

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* At trial, appellant testified that he had retired and place his

license on “inactive’ status. N.T. October 11, 2005. p. 71.

to sanitize the publication of the ‘de-licensed’ statement

by claiming he simply took the statement from another

author's writings.°

Specifically, appellant contends that Appellees

“had a high degree of awareness that their publication

contained falsehoods.°® Appellant argues that

“[a]lthough “delicensed” is not really a word, the clear

implication of placing “de” in front of “licensed” when

referring to a doctor is that the doctor’s license was

taken away.’ In support of his position, appellant, at

trial, introduced Tedd Koren’s deposition testimony. In

his deposition Appellee Koren testified that he had been

a licensed chiropractor in West Virginia and

Pennsylvania, and that had let his West Virginia license

lapse by not paying the fees and not attending the

12a

> Brief of Appellant, pp. 12-17

© Id. p. 13

7 Id. p. 14.

required post-graduate education. Appellant’s counsel

then asked Koren “Well, were you de-licensed by West

Virginia? In response, Appellee answered “no-I just

stopped paying the fees.® Appellant claims that this

testimony demonstrates that Appellee intended to

convey that appeliant’s “delicens[ing]” was involuntary

and not related to lapsing.

We have carefully rev.cwed these arguments, but

are not persuaded of their merit. It is well settled that

‘evidence of ill will or a defendant’s desire to harm the

plaintiffs reputation, although probative of the

defendant’s state of mind, without more, does not

establish ‘actual malice”. Blackwell v. Eskin, supra

2007 Pa. Super at 910, quoting Lewis v. Philadelphia

Newspapers, Inc. 833 A.2d 553 (2004). Furthe;,

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8 N.T. October 10, 2005, pp. 154-156.

ever accepting appellant’s position that Appellee

uridersteod the word “de-licensed to mean an

involuntary loss of license, the trial court properly

determined that “delicensed” which the parties

stipulated is a made-up word,’ was adopted by

appellant from the website of another author, that he

had his own understanding of the word, and that he

had no reason to believe this information was false.

Although appellant argues that Appellee, a licensed

health care professional, should have checked with the

licensing boards before republishing the statement

“delicensed” this argument fails since, as this Court

pointed out in Blackwell, supra “|e|jven were

Appellee to be deemed negligent for failure to

investigate, either by obtaining independent

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° See N.T. October 11, 2005, pp. 103-104.

confirmation of his information or consulting other

possibly more reliable sources, that finding would be

insufficient to demonstrate actual malice.” Blackwell

v. Eskin, supra, 2007 PA Super 20 at 49 (citation

omitted).

Appellant also argues that the trial court erred

“in isolating appellees’ alleged defamatory comments

instead of construing them as a whole.’? Specifically,

appellant argues that the implied meaning of Koren’s

statement that “14 months ago I was told about the

above lawsuit.[;] Barrett is now in trouble[/]” is that

Koren “knew the details of the sit, was privy to its

planning and believed that the suit was justified.” ™

Appellant claims that the cross examination testimony

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© Brief of Appellant, p. 17.

“ Id. p. 18.

of Koren, demonstrates that he did not know of the —

lawsuit 14 months before it was filed.’2 Accordifig to

appellant, Appeilee “falsely suggested that he was

familiar with the facts” of the lawsuit.”

In determining whether there is clear and

convincing evidence of actual malice, the statements

must be read in context. Refter v. Manna, 647 A.2d

562, 566 (Pa. Super. 1994), citing Baker v. Lafayette

College, 516 Pa. 291, 532 A.2d 399 (1987). Here, the

record reflects that the trial judge did properly consider

the statements in context in making his ruling. The

learned Judge J. Brian Johnson, in his on-the-record

ruling on appellees’ motion for directed verdict, stated:

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12 Td pp. 18-19.

‘3 Tdp. 19.

With regard to “quackpot,” this is something

that is not capable of being true or false. It is

name-calling. And under the caselaw, name-

calling, no matter how offensive’* is not

actionable. So we move to the next one.

“De-licensed.” The defendant heard this--or

read this, I should say, from another author,

Tim Bolen, and copied Bolen’s writing to his

website and e-mail and repeated the term.

There is no evidence that he entertained

serious doubts as to the truth or falsity of this

term. He had his own understanding, he

accepted the term from Bolen, he had heard it

before, he accepted his understanding without

question. So there is no evidence that he

entertained serious doubts as to the truth of

the term.

With regard to the “racketeering suit for 10

million dollars”, there was no proof provided by

the plaintiff that a racketeering suit for 10

million dollars was not filed. There’s no

requirement by the defendant that he

investigate. There is o evidence that he

entertained serious doubts as to the truth of

this statement before he published it.

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4 The appellant is certainly an aggrieved party. Moreover, the ill

will of Appellee is apparent as is his desire to harm the reputation

of appellant. Nevertheless, as we have hereinabove noted, this

Court has dearly established that such conduct, however

repugnant, without more, does not equate to “actual malice.”

Finally, the phrase, “in trouble” in reference

fo the 10 million-dollar lawsuit, is an

opinion. Only statements of fact, not

expressions of opinion, can support a

defamation action. There is a distinction here

with opinions, depending upon whether they

are based on facts, if the facts are expressed.

Let me go back to that.

A simple expression of opinion based on

disclosed or assumed non-defamatory facts is

not sufficient for an action of defamation, no

matter how [un]justified and unreasonable the

opinion may be or how derogatory it is.

The opinion “in trouble” flows from the

Statement about the racketeering suit.

That is a disclosed fact, and we have

determined it to be a non-defamatory fact. So

this is important because of the context of the

opinion. And we need to deal with that, which

we have now done.

N.T. October 13, 2005, pp. 17-18 (emphasis

supplied)

We discern no basis upon which to disagree with

this quite precise, clear and cogent analysis, and find,

contrary to the argument of appellant, that the trial

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court properly considered the statements in context in

determining whether appellant had established a

defamation action against Appellees. We simply add

that Koren’s non-defamatory embellishment, namely,

that he was told “14 months ago, about the lawsuit,

along with his opinion that appellant was “in trouble”,

cannot subject Appellees to liability.

Nor do we find merit in the argument of

appellant that he established actual malice because

Appellees kept the information on the website after

appellant requested a retraction. Specifically, appellant

argues that after he informed Appellee that he was not

“de-licensed” Appellee was “acting with actual malice

when he kept false information on his website.”!> As

the trial judge correctly noted, the United States

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‘5 Brief of Appellant. p. 21

Supreme Court, in Mew York Times Company v.

Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686

(1964), held that a defendant’s failure to retract a

defamatory statement complained of is not adequate

evidence of actual malice for constitutional purposes.

The trial court further explained:

[W]hen you talk about what he [Appellee]

believed, just because Dr. Barrett asked for the

retraction, that didn’t necessarily mean that Dr.

Koren agreed with him.

And again we go back to the measure that it is

not what a reasonable person would do, it is

what Koren actually believed and he still

believed those things were true.

N.T. October 13, 2005, pp. 23-24.

As we agree with the trial judge, we find that appellant

failed to show actual malice based on appellees’ refusal

to issue a retraction.

Lastly, appellant complains that the “the granting

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of a directed verdict in favor of Appellees violates the

sanction order of the court.'© Appellant claims that the

trial court erred by not enforcing its own discovery

sanction order, and by refusing to permit appellant to

read into evidence statements that had been ruled

admitted as a result of appellees’ failure to comply with

discovery rules.

During discovery, in July, 2003, appellant filed a

Third Request for Admissions which sought admissions

from Appellee, including the following:

1. I know of no evidence that the racketeering

suit filed in 2001 against appellant was

justified.

2. I know of no evidence that appellant is or

was delicensed.

3. I know of no evidence that appellant was

ever disciplined by the Pennsylvania Board

of Medicine.

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16 Id,

Appellee did not respond or object to this discovery

request, and ten months later, on April 24, 2004, the

trial court entered the following order:

IT IS ORDERED that the matters regarding

which the questions were asked shail be taken

to be established for the purposes of the action

in accordance with the claims of plaintiff...

IT IS FURTHER ORDERED that defendants are

prohibited from opposing the claims of

appellant at trial...

Subsequently, at trial the trial court sustained appellees’

belated objections to appellant’s Third Request For

Admissions, finding that the admissions improperly

asked for conclusions of law based on the use of the

word “evidence” and therefore they were not

admissions by definition. The trial court precluded

appellant from reading the Third Request For

Admissions into evidence and, at the close of appellees’

case, granted appellees’ motion for a directed verdict.

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Appellant argues that the trial court violated its

order of April 27, 2004, order, which had imposed

sanctions on Appellees for failure to respond to

discovery. Specifically, appellant contends that “the

trial court failed to follow its own order prohibiting

Appellees from opposing claims in unanswered

discovery requests.” In support of his position,

appellant relies on the “law of the case” doctrine. This

Court, however, rejected a similar argument in

Gateway Towers Condominium Association v.

Krohn, 845 A.2d 855 (Pa. Super. 2004):

The doctrine of law of the case provides that if

an appellate court has considered and decided

a question on appeal, neither that court nor

any trial court may revisit that question during

another phase of the same case. See PPG

Indus., Inc. v. Commonwealth Bd. of Fin.,

567 Pa. 580, 790 A.2d 261 267 n. 11 (2001);

Peden v. Gambone Bros. Dev. Corp., 798

23a

7 Td at 24.

A.2d 305, 310 (Pa. Cmwith. 2002). “The

doctrine is designed to promote judicial

economy, uniformity of decision making,

protect the settled expectations of the parties,

maintain the consistency of the litigation and

end the case.” Peden, 798 A.2d at 310.

Significantly, however, the doctrine applies

only to the actions of an appellate court, see

Tarantino v. Kutztown Univ., 654 A.2d 115,

117 (Pa. Cmwith. 1995), and cannot be applied

to prevent a trial judge from reconsidering his

or her prior ruling, see Farber v. Engle, 106

Pa. Cmmw. 173, 525 A.2d 864, 866 (Pa.

Cmwith. 1987). Although the _ related

“coordinate jurisdiction” rule may prevent one

trial judge from revising the rulings of another

trial judge on the same question, that rule

applies only where a second judge purports to

review the order cf a different judge. See

Leoni v. Whitpain Twp., 708 A.2d 999, 1001

(Pa. Cmwith 1998). Jt does not prevent a

judge from re-examining and correcting

his or her own rulings. See id.

Id. 845 A.2d at 861 (emphasis supplied). As the “law

of the case” doctrine is not controlling, and appellant

has not stated any other basis for this Court to conclude

that the trial court erred, we find that this argument

24a

presents no basis upon which to grant relief.

Having reviewed the contentions of appellant, and

finding that they present no grounds upon which to

overturn the decision of the trial judge, we affirm the

judgment entered upon the directed verdict in favor of

Appellee.

Judgment affirmed.

BOWES, J. FILES A CONCURRING AND DISSENTING

MEMORANDUM.

Judgment Entered.

Prothonotary

STEPHEN BARRETT, M.D. :NO. 502 MAL 2007

Appellant ;

V. ‘IN THE SUPERIOR COURT

TEDD KOREN and >OF PENNSYLVANIA

KOREN PUBLICATIONS ~ :

INC. -NO. 1035 EDA 2006

Appellees :

25a

Appeal from the Judgment entered April 7,

2006, in the Court of Common Pleas, Lehigh

County, Civil No. 2002-C-1837

BEFORE: FORD ELLIOTT, P.J. BOWES, J., and

McEWEN P.J.E.

MEMORANDUM: FILED JUNE 11, 2007

I concur with the majority’s decision in this case

with one exception. I believe Appellees’ publication of

the information that Appellant was “de-licensed” was

capable of defamatory meaning. I further believe that

it was published with actual malice once Appellees were

informed that Appellant had not been de-licensed and

yet failed to remove that assertion from their website or

otherwise indicate on the website that it was incorrect.

Hence, the question of whether Appellant was defamed

with respect to the continued publication that he had

been de-licensed should have been submitted to the

jury.

Our Supreme Court delineated whether a

publication can have defamatory meaning as follows:

To determine whether a statement is capable

of a defamatory meaning, we consider whether

the statement “tends so to harm the reputation

of another as to lower him in the estimation of

the community or to deter third parties from

associating or dealing with him.” Birf v.

Philadelphia Elec. Co., 402 Pa. 297167 A.2d

472, 475 (1960) (quoting RESTATEMENT

(FIRST) OF TORTS, §559 (1989). “Libel is the

malicious publication of printed or written

matter which tends to blacken a person’s

reputation and expose him to public hatred,

contempt or ridicule.” Schnabel v. Meredith,

378 Pa. 609, 107 A.2d 860, 862 (1954); see

also Corabi v. Curtis Publishing Co. 441

Pa. 432, 273 A.2d 899, 904 (1971) (same).

“The court must view the statements in

context.” Baker v. Lafayette College 516

Pa. 291, 532 A.2d 399, 402 (1987).

Words which standing alone may reasonably

be understood as defamatory may be so

explained or qualified by their context as to

make such an interpretation unreasonable.

Thus, we must consider the full context of the

article to determine the effect the article is

fairly calculated to produce, the impression it

would naturally engender, in the minds of the

27a

average persons among whom it is intended to

circulate.

Thomas Merton, 442 A.2d at 216. “It is not

enough that the victim of the statements be

embarrassed or annoyed, he must have

suffered the kind of harm which has grievously

fract 'red his standing in the community of

respectable society.” Scott-Taylor, Inc. v.

Stokes, 425 Pa. 426, 229 A.2d 733, 734

(1967)

Tucker v. Philadelphia Daily News, 577 Pa. 598,

615, 848 A.2d 113, 124 (2004).

In the present case, the entire article about

Appeliant was derogatory. It referred to him as a

quack pot, and indicated that he was the defendant in

a potentially meritorious multi-million lawsuit and was

“now in trouble”. While the first assertion was an

opinion and the latter was true when published, even

though the lawsuit was subsequently withdrawn, the

article continued by stating that Appellant was de-

licensed. Viewed contextually in this critical article,

“de-licensed” unequivocally conveyed that Appellant’s

license to practice medicine had been revoked by the

pertinent medical authority. This statement was false

since Appellant had voluntarily let his license lapse,

which, as Ted Koren admitted at his deposition, is not

being “de-licensed.” That term devalued Appellant’s

professional status, diminished his community

28a

standing, and would discourage association with him

by people in the field; it was defamatory. Jd.

(newspaper article was defamatory because it

incorrectly implied that community activists were overly

interested in money and sex, which would lessen their

reputation in the community and likelihood that

members of community would want to associate with

them); MacElree v. Philadelphia Newspapers, Inc.

544 Pa. 117, 674 A.2d 1050, 1054 (1996) (publication

that implied plaintiff in defamation suit was abusing his

elected office and was racist was defamatory because

it accused plaintiff of professional misconduct).

Furthermore, Appellees were informed that

Appellant had not been delicensed but then failed to

remove this information from their website or otherwise

indicate therein that the information was incorrect. In

my view, the continued appearance of the information

on the website was not the equivalent of failing to print

a retraction. A newspaper is printed once and then

archived. On the other hand, when information is

placed on a website and not removed, it remains readily

available and reviewed, and hence, continues to be

29a

published. By retaining that information on their

website without indicating that the fact was incorrect,

Appellees published the information with actual

knowledge that it was false. The internet can be a

dangerous tool, and when someone is informed that

information detrimental to a person’s professional

standing is factually wrong, the person who chooses to

maintain that information on their website should not

be permitted to do so with impunity. When this

comment is viewed in a light most favorable to

Appellant as we must, I find that a jury could

reasonably have concluded that the defendant was

liable. Hence, in my view, this defamation action should

not have been removed from consideration by the jury.

I therefore respectfully dissent.

30a

IN THE COURT OF COMMON PLEAS OF LEHIGH

COUNTY, PENNSYLVANIA - CIVIL DIVISION

STEPHEN BARRETT M.D.:

Plaintiff :CIVIL ACTION

vs. :NO. 12002-C -1837

TEDD KOREN D.C. and :

KOREN PUBLICATIONS :

INC. Defendants :

‘NOTICE OF FILING JUDGMENT

NOTICE is hereby given that a Final Judgment in the

above captioned matter has been entered on April 7,

2006.

A copy of all documents filed with the Clerk of Court in

support of the within judgment are enclosed.

Andrea E. Naugle, Clerk of Court

IN THE COURT OF COMMON PLEAS OF LEHIGH

COUNTY, PENNSYLVANIA - CIVIL DIVISION

STEPHEN BARRETT M.D.:

Plaintiff :CIVIL ACTION

vs. :NO. 12002-C -1837

TEDD KOREN D.C. and :

KOREN PUBLICATIONS :

INC. Defendants :

PENNSYLVANIA RULE OF APPELLATE

PROCEDURE 1925(a) STATEMENT

AND NOW, this 16 day of May, 2006, the undersigned

enters the following statement pursuant’ to

Pennsyivania Rule of Appellate Procedure 1925(a):

A. INTRODUCTION

On October 13, 2005, at the close of the

evidence in a jury trial and upon consideration of the

Defendants’ Motion For Directed Verdict, this Court

entered an Order, for the reasons set forth on the

record, granting said motion. At the same time, upon

consideration -of the Plaintiff's Motion For Directed

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Verdict, this Court entered an Order for the reasons set

forth on the record, denying said motion. The Plaintiff

immediately made an oral motion for reconsideration

which this Court denied on October 13, 2005.

On October 21, 2005, the Plaintiff filed a motion

for post-trial relief. After delays due to transcription of

the record, a continuance request by the Defendant

due to vacation and two (2) requests by the Plaintiff

for extension of time to file a brief in support of his

motion for post-trial relief, argument was ultimately

held on March 29, 2006. By Order dated march 31,

2006, this court denied the Plaintiff’s post-trial motions.

On April 7, 2006, the Plaintiff filed a Praecipe For

Judgment for entry of judgment in favor of the

defendants and against the Plaintiff in zero amount.

On April 12, 2006, the Plaintiff filed an appeal from the

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judgment entered in this matter on April 7, 2006 with

the Superior Court of Pennsylvania at Docket number

1035 EDA 2006. On April 18, 2006, this Court entered

an Order directing the Plaintiff to file a Concise

Statement of Matters Complained of on Appeal

pursuant to Pa.R.C.P. 1925(b). On April 26, 2006, the

Plaintiff filed a “Statement Of Issues”. Each of these

issues will now be addressed individually.

B. DISCUSSION OF THE PLAINTIFF'S

STATEMENT OF ISSUES.

1. Whether or not the Trial Court erred as a

matter of law in directing a_ verdict for

Defendants against the Plaintiff?

The Court fully addressed this issue on the record as

reflected in the Notes of Testimony of October 13,

2005, pages 8 to 25.

2. Whether or not the evidence viewed most

favorably to the Plaintiff that: 1) the

communication was defamatory; 2) the

defendants published the communication; 3) the

communication applied to Plaintiff; 4) the

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communication injured the Plaintiff; 5)

Defendants published the communication with

actual malice; and 6) the actual malice was

established because, after notice of the falsity of

the Internet communication, the Defendants

continually posted it on the web site?

The Court fully addressed this issue on the record as

reflected I the Notes of Testimony of October 13, 2005,

pages 8 to 25.

3... Whether or not the Trial Court erred by

dissecting the multiple defamatory words,

instead of construing the communication as a

whole as required by Rutt v. Bethlehem's Globe

Publishing Company. 335 Pa. Sup. 163,484 A.2d

72 (1984)?

The Court fully addressed this issue on the

record as reflected in the Notes of Testimony of

October 13, 2005, pages 8 to 19 (in particular pages 15

to 19).

the Plaintiff asserts that ail of the alleged

defamatory statements, “quack pt”, “de-licensed”,

“racketeering suit for a million dollars” and “in trouble”

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must be read together, based on the holding in Rutt v.

Bethlehem’s Globe Publishing Company 335 Pa. Super.

163, 484 A.2d 72 (1984). However, Rutt states that

alleged defamatory words in an article must be read in

the context of that article.

In Rutt, the challenged article was an extended

obituary of the appellant’s son, who died as a result of a

self-inflicted gunshot wound and the language at issue

was “[c]ity police said [the victim] apparently shot

himself to death with a rifle belonging to his father at

the home of [friends], a couple of days after the

victim’s father asked him to leave his home...” The Rutt

Court decided that for the purposes of determining

whether the newspaper article was defamatory, the

article must be construed as a whole, and each word

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must be read in the context of the other words.

The context in which each statement was made

was considered by the Court in its analysis of whether

any of these statements were capable of defamatory

meaning. Unlike the situation in Rutt, where the Court

decided that the above quoted language, when read in

the context of the entire article, was defamatory

because it gave the article in inference that the victim

shot himself because of his father, the statements at

issue in the instant case do not depend on each other

for their individual meanings and inferences. The

Plaintiff offers no authority for the argument that all of

the alleged defamatory statements must be read

together. These were separate statements, each

appearing in separate articles and therefore having their

own context. Only “racketeering suit for a million

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dollars” and “in trouble” were used in the same article

and relate to each other, namely, the “in trouble”

statement appears to relate back to the “racketeering

Suit for a million dollars statement and appears to be

saying that Barrett is in trouble because he was sued in

a racketeering suit for a million dollars. The Court

considered this context when it made its ruling.

Even when read together, the statements at

issue in this case are incapable of a defamatory

meaning. Nothing about the statements changes when

they are read together versus being read separately.

Whether read separately or together, the statements

“quackpot”, “delicensed” and racketeering suit for a

million dollars” and “in trouble” are incapable of

defamatory meaning for the reasons stated on the

record as cited above.

4. Whether or not the evidence viewed most

favorably to the. Plaintiff established that

Defendants knew that the defamatory

statements were false, or with reckless disregard

of their truth or falsity, particularly where the

Defendant, Koren was a licensed health care

practitioner, and he was using a made-up word--

delicensed--to describe Dr. Barrett?

The Court fully addressed this issue on the

record as reflected in the Notes of Testimony of October

13, 2005 pages 8 to 25.

5. Whether or not the testimony of defendant,

Dr. Koren, that he had “ill will” towards the

Plaintiff plus keeping the defamatory information

on the web-site is evidence of “actual malice”?

The Court fully addressed this issue on the record as

reflected in the Notes of Testimony of October 13, 2005

pages 8 to 25.

6. Whether or not the defense by a licensed

health care professional that he was using a

made-up perjorative word about the Plaintiff-

delicensed- merely because someone else used it

eliminates “actual malice”?

The Court fully addressed this issue on the record as

reflected in the Notes of Testimony of October 13, 2005

pages 8 to 25.

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6. Whether or not the fact that Plaintiff's counsel

received an admission from Defendant that his

communication was _ false-knew about the

lawsuit 14 months before it happened-is

evidence of actual malice? [Plaintiff's

“Statement Of Issues” contains two different

issues identified as number 6)

The Court: fully addressed this issue on the record as

reflected in the Notes of Testimony of October 13, 2005

pages 8 to 25.

7. Whether or not the Court erred as a matter of

law in not allowing the unanswered “third

request for admissions” into evidence which

facts clearly established “actual malice”?

The Court fully addressed this issue on the record as

reflected in the Notes of Testimony of October 13, 2005

pages 33 to 37.

The Court did not allow the Plaintiff's Third

Request For Admissions into evidence because the

Court granted the Defendants’ objections to said

admissions as they were conclusions of law, and

therefore they were not the proper subject of

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admissions.

The Court found that use of the word “evidence”

in the Plaintiffs Third Request For Admissions was

improper, as it required the Defendants to make a legal

determination of what is evidence; a decision which

must be made by a judge. The Court found that the

Plaintiff should have used language such as “facts,

documents, records and those such things”.

As to the issue of the timeliness of the

Defendants’ objections, the Court found that while the

objections were not made within thirty (30) days, if the

requests are improper and if they are not provided for

under the Rules and_the caselaw, then they are not

really requests for admissions in the first place.

Therefore, the procedural rules guiding admissions are

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inapplicable and the Court could, and in fact was

required to, address the defendants’ objections when

they were voiced at trial.

8. Whether or not the Trial Court eviscerated its

own order of April 27, 2004 ordering that

“...Defendants are prohibited from opposing the

claim of Plaintiff at trial...” by allowing the

Defendants to defend, despite not providing

timely discovery responses?

The Court fully addressed this issue on the

record as reflected in the Notes of Testimony of October

10, 2005, pages 50 to 68.

The Court’s decision to allow the Defendants to

present a defense at trial is moot. The Court did not

base its decision to grant the Defendants’ Motion for

Directed Verdict on the defense presented. The Court

based its decision on the fact that the alleged

defamatory statements were incapable of a defamatory

meaning and that, therefore, the Plaintiff was unable to

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present a prima facie case of defamation. Therefore,

the evidence and testimony presented by _ the

Defendants had no bearing on the Court’s decision to

grant the Motion For Directed Verdict, and this issue is

moot.

Even if the issue were not moot, it is the Court's

strong position that it did, in fact, interpret and enforce

its own April 27, 2004 Order properly. Relevant

portions of the Order state that “the matters regarding

which the questions were asked shall be taken to be

established for the purposes of the action in accordance

with the claims of the Plaintiff...” and that the

“Defendants are prohibited from opposing the claims of

Plaintiff at trial and from introducing in evidence

designated documents, things or testimony.” The Court

did not inte: .d this Order to preclude the Defendant

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from opposing any claims by the Plaintiff, but only those

directly related to the unanswered discovery requests

propounded on the Defendants by the Plaintiff. When

reading the above language as a whole, it is the Court's

position that the Order reflects that intention.

Therefore, the Court did, in fact, properly interpret and

enforce its own Order.

The Plaintiff raised this issue in his Motion For

Post-Trial Relief, which motion the Court denied. In

that motion, the Plaintiff made four arguments based

on his interpretation of the April 27, 2004 Order: (1)

that the Plaintiff was entitled--at a minimum--to a

binding instruction at the close of the case, as

requested by the Plaintiff, that the Defendants could not

oppose the status of the Plaintiff’s testimony concerning

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Plaintiff's claim that the California racketeering lawsuit

was groundless; (2) that by failing to enforce its own

Order, the Plaintiff was denied the opportunity to

present his case before the jury; (3) that if the trial

court enforced the Order, the trial court would have

permitted the Plaintiff to read into evidence the

Plaintiff's Request For Admission No. 3; and (4) that if

the trial court enforced the Order, the Defendant's

Motion For Directed Verdict would have been properly

denied. The Court will address each of these

arguments.

Even if argument (1) were true, that the Plaintiff

was entitled to a binding instruction at the close of the

case regarding the Plaintiff's license and _ the

racketeering lawsuit, it would be harmless error. Such

a binding instruction to the jury regarding the Plaintiff's

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testimony about his license and as to the Plaintiff's

claim that the California racketeering lawsuit was

groundiess would not necessarily have been enough for

a jury to conclude that the defendants were liable for

defamation.

In the Plaintift’s second argument that, were the

Court to enforce the Order as the Plaintiff interpreted

it, rather than as the Court intended and applied it, the

Plaintiff would have had the opportunity to present his

case to the jury. The Plaintiff did, in fact, present his

case to the jury. After that opportunity, the Court

granted the Directed Verdict.

The Plaintiff's third argument that, “if the trial

court enforced the Order, the trial court wouid have

permitted the Plaintiff to read into evidence the

Plaintiff's Request For Admission No. 3” is misplaced

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entirely. The Court reiterates that it did enforce its

Order, just not as the Plaintiff would have preferred it to

be enforced. The Court’s decision to preclude the

Plaintiff from reading the Plaintiffs Request For

Admission No. 3 into evidence was not based in any

way on its Order. It was based on the fact that the

Court granted the Defendants’ objections to the

admissions because they improperly asked for legal

conclusions.

The Plaintiff's fourth and final argument that if

the Court had enforced the Order, the Motion For

Directed Verdict would have been denied, is erroneous

as well. Admittedly, if the Court had enforced the Order

as the Plaintiff is interpreting it, that the Defendants

could not oppose any or the Plaintiff's claims and that

the Plaintiff's Request For Admissions No. 3 should have

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been read into evidence, then the Plaintiff might be

right. However, the Court did enforce its Order, in the

context of how it was written and as the Court intended

it to be enforced. The Order did not preclude the

Defendants from opposing every claim of the Plaintiff,

but only those specifically addressed by the Plaintiff in

his discovery requests and left unanswered by the

Defendants. Regarding the Plaintiff's Request For

Admission No. 3, the Court precluded the admissions

from being read into evidence because the admissions

improperly asked for legal conclusions and therefore

they were not admissions by definition.

BY THE COURT:

J. Brian Johnson, J.

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