1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: TRIAL TERM PART 6
3 – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X
4 RALPH H. SPEKEN, STEPHANIE Z. SPEKEN, AS
COADMINISTRATORS OF THE ESTATE OF SETH B.
5 SPEKEN, DECEASED, AND RALPH H. SPEKEN AND
STEPHANIE SPEKEN INDIVIDUALLY,
6
Plaintiffs,
7 INDEX NUMBER:
113895 01
8 – against-
COLUMBIA PRESBYTERIAN MEDICAL CENTER,
9
Defendant.
10
– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X
11 60 Centre Street
New York, New York
12 November 20, 2001
13
BEFORE:
14
HONORABLE EILEEN BRANSTEN, Justice
15
APPEARANCES:
16
Plaintiff Ralph Speken, Pro Se,
17 Plaintiff Stephanie Speken, Pro Se
18 MCALOON & FREIDMAN, PC
Attorneys for the Defendant
19 116 John Street
New York, New York
20 BY: LAURA R. SHAPIRO, ESQ.
21
22
MITCHELL SIEGEL
23 OFFICIAL COURT REPORTER
2 THE COURT: All right.
3 MR. SPEKEN: Laura R. Shapiro,
4 McAloon & Friedman,
5 MR. SPEKEN: Ralph Speken.
6 MRS. SPEKEN: Stephanie Speken.
7 THE COURT: All right.
8 This matter is before this Court
9 by motion, motion brought by Columbia
10 Presbyterian Medical Center, for motion to
11 dismiss the complaint.
12 There are a number of different
13 reasons, but I am going to allow Ms. Shapiro
14 to put her reasons for the motion on the
15 record, and then Dr. Speken you will have a
16 chance to respond.
17 Before we do that, let see if I
18 have all the papers here.
19 I do have Columbia Presbyterian’s
20 papers, reply by Dr. Speken and Stephanie
21 Speken, but let me double-check something
22 here. The reply indeed has been notarized,
23 so it is an affidavit.
24 And then I have a reply
25 affirmation on the part of Ms. Shapiro.
26 So those are the papers I do have
2 before me.
3 I believe Dr. Speken asked for the
4 record so — so obviously we do have the
5 records for Dr. Speken.
6 MR. SPEKEN: I sent in a surreply
7 also.
8 THE COURT: Nothing is ever —
9 MR. SPEKEN: All right.
10 THE COURT: Because then, of
11 course, there will be a suranswer and that
12 will not happen.
13 MR. SPEKEN: All right.
14 THE COURT: Ms. Shapiro, can you
15 please — why don’t you place on the record
16 the reasons for your motion to dismiss Dr.
17 Speken’s case.
18 MS. SHAPIRO: All right.
19 There was an underlying action for
20 medical malpractice brought by these same
21 Plaintiffs focusing upon the care and
22 treatment to their son that ended in his
23 death.
24 THE COURT: All right.
25 MS. SHAPIRO: They instituted a
26 lawsuit, there were numerous court
2 appearances before Judge Heitler, and on the
3 eve of trial, the case was settled.
4 The settlement was a two part
5 settlement. The money aspect of the
6 settlement was that my client, Columbia
7 Presbyterian, would pay the Spekens
8 $500,000.
9 On their part, they agreed to
10 confidentiality, specifically, to cease and
11 desist from a website called the
12 WWW.MED-MALPRACTICE.COM that they had
13 initiated for the purpose at the time
14 of disseminating information about their
15 claim, about the treatment rendered to
16 their son, about the specific doctors
17 involved.
18 It was a lengthy website and
19 specified in the settlement agreement was
20 that there would be a confidentiality
21 agreement provision, and the website would
22 be taken down.
23 The Spekens were present in court
24 when this case settled. They testified
25 under oath that they understood the terms of
26 the settlement, which were clear and
2 unequivocal that the settlement would be
3 confidential, the facts of the case would be
4 kept confidential, and that the website
5 would be taken down.
6 Indeed, the website was taken down
for a period of months. However, it was
8 then resurrected and it stands resurrected
9 today.
10 Now several months after this
11 settlement, the Spekens moved to vacate the
12 settlement agreement and release, Judge
13 Heitler issued a lengthy decision denying
14 that motion.
15 The Spekens appealed it to the
16 Appellate Division. The denial was
17 affirmed, the settlement hence was valid,
18 upheld, with all of its terms including the
19 clear confidentiality provision.
20 Nonetheless, the website remains.
21 Now, your Honor, the Spekens have
22 instituted a second lawsuit against the same
23 Defendant with two causes of action.
24 The first cause of action is to
25 vacate that portion of the settlement
26 agreement that provided for confidentiality,
2 and specifically, the removal of the website
3 on the grounds they claim, your Honor, that
4 the death of their son was a criminal act,
5 and that they can’t be silenced for criminal
6 conduct.
7 Their second cause of action is
8 that the public needs to know about the
9 treatment that their son received and
10 therefore, they can’t be silenced on that
11 ground.
12 So the essence of their claim,
13 your Honor, is that they say they can’t be
14 silenced even though they agreed to be
15 silenced.
16 These are educated people, they
17 agreed of their own free will. They already
18 tried to argue before Judge Heitler that
19 they were coerced into settling the case,
20 and that argument fell flat. They already
21 argued that their silence was illegal, the
22 same argument that they are making here,
23 however, they claim that because Judge
24 Heitler in her lengthy decision did not
25 specifically address their claim that their
26 silence can’t be procured because of
2 illegality, that they are then entitled to
3 start this second lawsuit.
4 The law doesn’t permit a second
5 lawsuit. The settlement agreement and
6 release has been upheld by this Court and by
7 the Appellate Division.
8 All of the issues pertaining to
9 it have already litigated. If the Spekens
10 were unhappy because of the lack of
11 inclusion of any specific language in Judge
12 Heitler’S decision, the remedy was to go
13 back to Judge Heitler on a motion to reargue
14 or renew, saying perhaps, Judge, you missed
15 this or forgot it.
16 But the remedy is certainly not to
17 violate the rules of res judicata and simply
18 institute another lawsuit.
19 What has happened here, there is
20 now another lawsuit that is just trying to
21 undue the first lawsuit. They want the
22 money and to be able to speak about it,
23 although they agreed to have the money only
24 if they kept it confidential.
25 So, this is a pre-action
26 motion which says res judicata prohibits
2 this lawsuit in whatever form it takes.
3 It is still a lawsuit that
4 speaks to the settlement made in an
5 underlying case that has been adjudicated
6 and that is over.
7 Thank you.
8 THE COURT: All right.
9 Who is going to be speaking for
10 you doctor or Mrs. Speken?
11 MR. SPEKEN: I will speak, your
12 Honor.
13 THE COURT: All right.
14 Please address the issues in hand
15 which is res judicata whether or not indeed
16 the settlement that was entered into in the
17 other case did not cover this settlement —
18 did not cover the matter that you brought in
19 this lawsuit.
20 MR. SPEKEN: All right.
21 Your Honor, I am not a lawyer.
22 THE COURT: All right.
23 MR. SPEKEN: I don’t want —
24 THE COURT: You were represented
25 by an attorney?
26 MR. SPEKEN: I was represented.
2 At this time I am pro se. I am not a
3 lawyer. I can read. And I have read about
4 the concept of res judicata, collateral
5 estoppel.
6 And my reading has shown me that
7 there are limits placed on that concept and
8 I have outlined these in the papers that we
9 have put together.
10 THE COURT: All right.
11 MR. SPEKEN: Ms. Shapiro brings up
12 important issues, important questions about
13 our position. And I would like to respond
14 to those questions.
15 In terms of the action before
16 Judge Heitler, we indeed, your Honor, sadly
17 signed the general release.
18 THE COURT: Also allocuted on the
19 record on it, right?
20 MR. SPEKEN: Well let me expand on
21 that.
22 We indeed signed that release.
23 And we have an extensive motion both to
24 Judge Heitler as well as to the appellate
25 court that explained how we were coerced
26 into signing that
2 THE COURT: However, both Judge
3 Heitler and the Appellate Court found that
4 that explanation was not a valid one, they
5 did not rescind the signing, the signature
6 of that particular release document, nor did
7 that eradicate the statements that you made
8 on the record.
9 And they found, in fact, that the
10 agreement was valid, you were represented by
11 proper counsel, you were given all your
12 rights and you said that you did understand
13 it at the time you entered into such an
14 agreement.
15 So that is what — in the first
16 place Judge Heitler found and affirmed by
17 the Appellate Division.
18 MR. SPEKEN: What the Appellate
19 Division said was that there was no basis
20 for overturning a contract after full
21 allocution by the Court below.
22 That is what our current case is
23 all about. In fact, there was no full
24 allocution by the Court below. There is a
25 sharp issue in this case which was not
26 allocuted by the Court below.
2 And that sharp issue, your Honor,
3 is that our boy Seth side because a law was
4 broken.
5 We raised that on our papers with
6 Judge Heitler. And in those few times we
7 met with her, we specifically said these
8 things to her.
9 Now at this time your Honor, your
10 Honor, we were much more naive about the law
11 than we are now. We were represented by
12 counsel.
13 In fact, we told our counsel the
14 same thing. Our boy died because a law was
15 broken.
16 We asked our counsel, Mr. Frank
17 and Mr. Moore, Thomas R. Moore, we asked,
18 and the former lawyer, we asked them to
19 bring this issue to Judge Sklar, and the
20 response to us, no, no, this was just very
21 bad malpractice.
22 We are now much more knowledgeable
23 about the law, about the issues, we
24 recognize there is a sharp issue. Our boy
25 died because a law was broken.
26 THE COURT: If indeed Dr. Speken,
2 a law was broken, and statute of limitations
3 has not run, then obviously the place to go
4 is to the District Attorney in New York
5 County and present the case to the District
6 Attorney and indeed, if they agree with you,
7 they can institute a criminal action where
8 they would seek a criminal penalty against
9 somebody who broke the
10 law.
11 But, what you are doing here, Mr.
12 Speken, as far as I can see in terms of
13 these papers, is not — you are saying that
14 a law has been broken and therefore, I am
15 not to be bound by the confidentiality
16 agreement.
17 Entirely different from your
18 freedom to go to the District Attorney’s
19 Office, the District Attorney, Robert
20 Morganthau, and tell him that you believe a
21 law has been broken, and if he agrees with
22 you, under his prosecutoral discretion, he
23 can bring along a criminal action.
24 But you cannot even if that
25 happens, undue what has already been done
26 which is that in return for a substantial
2 sum of money you settled the case with the
3 understanding that you as part and parcel of
4 that bargain, two sided bargain, they would
5 pay you half a million dollars, and your
6 part of the bargain you would stop and
7 forego your website.
8 And also any other publicity. You
9 would keep the settlement confidential.
10 That has nothing to do with
11 whether or not you believe there has been
12 laws broken, laws of the State of New York,
13 the Penal Code of the State of New York
14 broken.
15 If indeed you believe that has
16 happened, then your remedy and your recourse
17 is to the person who prosecutes the laws of
18 the State of New York and the Penal Code.
19 That is the District Attorney of the County
20 of New York.
21 MR. SPEKEN: All right.
22 THE COURT: That is where your
23 remedy is. And if he agrees or if he does
24 or does not agree, you certainly could
25 present your case there.
26 But I cannot tell you if he agrees
2 or doesn’t agree. He has, as you know —
3 maybe you don’t know — but the District
4 Attorney in any of our counties, has what is
5 called prosecutoral discretion, and he may
6 or may not agree with your belief that a
7 crime has been — that a criminal act has
8 occurred, and he may or may not agree
9 with you that the Penal Law has been
10 violated, and he may or may not agree to
11 prosecute.
12 But that has nothing to do with
13 this particular Court nor this lawsuit which
14 seeks to undue that portion of an agreement
15 that was entered into in open court and that
16 was litigated not only before Judge Heitler
17 in your motion to have that portion of the
18 agreement severed so that you can continue
19 your website, and that was certainly — that
20 was denied, Judge Heitler’s decision denying
21 you this right because you have indeed —
22 you indeed entered into an agreement, and
23 that was affirmed by the Appellate Division
24 in the First Department.
25 And so that is where we stand.
26 MR. SPEKEN: All right.
2 It is an interesting situation.
3 In response to this we went twice to the
4 District Attorney and here is what we were
5 told.
6 We were told that were the
7 District Attorney’s Office to become — to
8 get involved with the extent and the range
9 of malpractices going on in the hospitals in
10 New York City, that they would have to add
11 five new District Attorney’s Offices just to
12 cover this matter, one for each borough.
13 We tried twice to bring this
14 before the District Attorney.
15 THE COURT: All right.
16 MR. SPEKEN: Issue 1.
17 Issue 2, your Honor, as I said,
18 there is a sharp issue.
19 The law was broken, Seth died.
20 This has been basically supported by the
21 opinion of the Medical Examiner as well as
22 the Health Department that reviewed the
23 case.
24 They did not say in either case
25 there was a crime committed. Yet both the
26 Medical Examiner and the New York State
2 Health Department, their review, when you
3 read their words, the implication, the
4 analysis is yes, he died because this law
5 was broken.
6 The Medical Examiner said death
7 was due to immobilization, immobilized,
8 restrained, and the long opinion of the
9 New York State Health Department said death
10 was due to pulmonary emboli due to the
11 restraining.
12 They did not say in the report, by
13 the way, that restraining is in violation of
14 the law passed by the legislature and now as
15 a matter of fact, passed by the Congress of
16 the United States. They did not say that.
17 A person who can read the
18 conclusion, yes, he died because this law
19 was broken.
20 Now the New York State Health
21 Department attempts to disqualify it by
22 stating the death was unforeseeable. But
23 essentially, what they are doing is what is
24 called the thin skull defense.
25 They said that well yes, he died
26 from the restraints, but a normal person
2 shouldn’t die from situations like this.
3 That is the thin skull defense.
4 So essentially, both the Medical
5 Examiner and the New York State Health
6 Department said death was due to the law
7 being broken.
8 THE COURT: Okay.
9 MR. SPEKEN: The third point, and
10 I will finish, since the Courts as well as
11 the other bodies of our culture, have lagged
12 behind now where medicine has now arrived at
13 the point in which the highest crediting
14 body says no more contracts for silence, no
15 more silence about malpractice.
16 Since the Courts and our various
17 legal and political bodies have not arrived
18 at that point, our only recourse to say
19 listen, I am sorry what harm you did to my
20 boy, our boy, Columbia Presbyterian is a
21 great institution, for everyone they kill,
22 perhaps they save thousands. But they
23 killed my boy. They didn’t mean to do it,
24 but it happened. We are not going to be
25 quiet about it.
26 THE COURT: You settled this
2 MR. SPEKEN: We didn’t settle.
3 THE COURT: I will have to make a
4 decision.
5 MR. SPEKEN: We were coerced into
6 signing, a sharp issue was ignored, public
7 policy demands we set —
8 THE COURT: What I am going to do
9 is obviously read these papers, these
10 motions are submitted.
11 Thank you very much. I wish
12 everybody a happy Thanksgiving.
13 MR. SPEKEN: Thank you, your
14 Honor.
15 MS. SHAPIRO: Thank you.
16 THE COURT: Okay.
CERTIFIED TO BE A TRUE
AND CORRECT TRANSCRIPT
MITCHELL SIEGEL
OFFICIAL COURT REPORTER