An administrative law judge has postponed until May 5 the resumption of proceedings in the Federal Trade Commission’s data security fight with medical testing company LabMD Inc.

The case, which has been on hold nearly a year, had been scheduled to resume March 19.

The FTC’s data security suit rests in large part on claims by the data security firm Tiversa that its routine scanning activities found that a large LabMD patient file had leaked outside the company.

The Counts Law Group is defending LabMD CEO Michael Daugherty in a separate libel action brought by Tiversa after Mr. Daugherty wrote a book about his company’s debilitating experiences with Tiversa and his concerns about Tiversa’s use of federal government connections. The book is titled “The Devil Inside the Beltway.”

While Tiversa has contended that it found multiple copies of the LabMD file on different web sites, LabMD has vigorously maintained no such data breach occurred.

The case attracted the attention of the House Oversight Committee, which conducted hearings on the matter and last December issued a report calling Tiversa’s credibility in the FTC matter into question.

Recently, Chief Administrative Law Judge D. Michael Chappell granted LabMD’s request to grant immunity to a former Tiversa employee, Rick Wallace. He is expected to testify that the LabMD patient file in question was found only on the LabMD server.

 

A Cobb County Superior Court judge has dismissed a libel claim in which a physician alleged that investigative television news coverage of the deaths of several of her cosmetic surgery patients led to the suspension of her license.

Judge S. Lark Ingram concluded that the case was a SLAPP suit and that it met the criteria under Georgia’s anti-SLAPP statute for early disposition of First Amendment cases. The complaint had been lodged against CBS46 News, its reporter Adam Murphy, and WSB-TV.

The plaintiff, Nedra Dodds, operated a cosmetic surgery clinic in Kennesaw, Georgia. In February 2014, her license was suspended by the Georgia Composite Medical Board, which cited the particulars of her treatment of several patients. One patient, Erica Jenkins, died following a liposuction procedure during which her liver and diaphragm were lacerated. According to an account given to police by an employee present during the procedure, when the patient protested that she was in pain, Dodds told her to “be quiet” and that she had “paid for the procedure.” It was also noted that “a rag was placed in Jenkins’ mouth” to quiet her.

Another case involved a woman who wanted silicone removed from her buttocks, as well as liposuction. Heart failure from excessive bleeding ultimately was the cause of death as a result of Dodds suturing only two of the patient’s nine surgical incisions. The board concluded that care given to the patient before, during and after surgery was all “significantly below” the acceptable standard of care and led to her death.

In her complaint, Dodds went so far as to allege that reporter Adam Murphy "pressured" the Board to suspend Dodds' medical license, and allege that "had it not been due to [Murphy's] involvement there in fact would have been no suspension of the Plaintiff s license."

Georgia’s anti-SLAPP statute was designed to protect citizens who participate in matters of public significance through the exercise of their constitutional rights of freedom of speech and the right to petition government for redress of grievances from the abuse of the judicial process.

In order to protect this purpose, the statute provides an early disposition mechanism for First Amendment cases. The statute includes verification requirements in which plaintiffs must affirm that their claim does not arise “from an act" by any person or entity that "could reasonably be construed as an act in furtherance of the right of free speech or the right to petition the government for redress of grievances ... in connection with an issue of public interest or concern" O.C.G.A. § 9-11-11.l (b).

No verifications were filed in this case, so the only question for the court was whether the case stemmed from an act covered by the anti-SLAPP statute. 

Citing well-established case law, the judge noted that acts covered by the anti-SLAPP statute include any statement “made in connection with an issueunder consideration by an official proceeding” ( “commenting speech”) or “made to any official proceeding authorized by law” ( “petitioning speech”). The Court held that CBS46 News' investigative news reports met both alternative definitions.

Specifically, the court concluded that the reports fell within the ambit of “commenting speech” in that “the investigative news series was made ‘in connection’ with various official proceedings, including (1) the police investigation into the deaths of Dodds' patients, (2) the medical examiner's investigation into those deaths (3) the civil lawsuits brought against Dodds, (4) the many complaints to the Board, and (5) the Board's actions against Dodds.

The court also concluded that the reports met the requirements of “petitioning speech,” noting that the Plaintiff’s own allegations, “—that reporter Murphy successfully pressured the Board into suspending her medical license – conclusively establish that the statements she challenges fall within the anti-SLAPP statute's definition of protected activity.”  

Plaintiff was represented by Frank J. Marquez of Frank Marquez P.C.. Cynthia Counts of Counts Law Group represented Defendants CBS News 46 and Adam Murphy. Tom Clyde and Lesli Gaither of Kilpatrick, Townsend & Stockton LLP represented Defendant WSB-TV.

 

The presence of video cameras in Georgia courtrooms has been a regular part of news reporting for decades, but now that kind of transparency – for the first time in Georgia – may be expanded to other quasi-judicial proceedings, specifically disciplinary hearings for physicians.

A Fulton County Superior Court judge has upheld the order of an administrative law judge permitting CBS46 News to video and audio record portions of a hearing in which a surgeon is appealing her license suspension.

The physician, Nedra Dodds, operated a cosmetic surgery clinic in Kennesaw. In February 2014, her license was suspended by the Georgia Composite Medical Board, which cited the particulars of several cases. One involved a woman who died following a liposuction procedure during which her liver and diaphragm were lacerated. When the woman protested she was in pain, a staff member said the doctor placed a rag in the patient’s mouth to quiet her. Another involved a woman who wanted silicone removed from her buttocks, as well as liposuction. Heart failure from excessive bleeding ultimately was the cause of death; the board concluded care given to the patient before, during and after surgery was all “significantly below” the acceptable standard of care and led to her death.

Dodds filed an appeal, seeking to get her license reinstated. CBS46 requested the right to record and broadcast any hearings on the matter. Dodds filed a motion opposing the request. The Counts Law Group, on behalf of CBS46, filed a brief in support.

In his ruling, Administrative Law Judge Michael Malihi largely agreed with the arguments advanced by CBS46. While noting that prohibitions on the release of patient treatment information precluded an unrestricted grant of media coverage, he concluded that the signed privacy waivers from the families of the two dead patients opened the door to coverage of hearing testimony about those cases. Moreover, Judge Malihi embraced the concept that allowing electronic media coverage of portions of the hearing comported with the state’s policy favoring open judicial proceedings, especially “in light of the seriousness of the allegations.”

Dodds then petitioned for an interlocutory review of the administrative law judge’s order. Following oral arguments, Superior Court Judge Henry M. Newkirk denied the petition on December 19.

Arguing for access, Cynthia Counts noted that the hearing at issue in the Dodds case was not unlike administrative deportation proceedings, which federal courts have concluded bear a strong resemblance to judicial trials, meaning the First Amendment favors access to such proceedings.

She also argued that “because the State has no compelling interest in keeping patient information confidential where the patient has waived his or her privacy rights, prohibiting public access to such testimony and evidence would violate the First Amendment.”

Before any further medical board hearings on the matter take place, Dodds is expected to seek further review by the Georgia Court of Appeals.

 

 

A Fulton County Superior Court judge has rejected a fencing contractor’s claim that the company was defamed by negative reviews posted by an Atlanta couple on Angie’s List, Yelp and a consumer review blog.

In the spring of 2014, the Atlanta couple hired an area fence company to build a fence and custom gate for their home. As the owner of the fence company himself acknowledged in a letter to the couple, the job went badly awry. There were a host of issues, including ill-fitting pieces, misaligned fence sections and delays in completing the job. Indeed the owner said “We haven’t had a disaster like this in a couple of years.”

The dissatisfied customers subsequently posted online reviews in which they quoted from the fence company owner's letter. He in turn filed a claim for defamation. Counts Law Group and Lisa Richardson and Barbara Marschalk of Drew Eckl and Farnham LLP represented the couple and moved in October for a judgment on the pleadings in favor of the couple. The attorneys cited a voluminous list of cases decided in favor of protecting a consumer’s right to voice a subjective opinion about the quality of service received. On December 18, Judge Craig L. Schwall granted the Defendants’ motion, agreeing that there was no basis in law to support the defamation claim.