No. 04-859
IN THE
United States Supreme Court
RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S.
Petitioners
V.
THOMAS R. MOORE, ESQ.
Respondent
On Petition For A Writ Of Certiorari
To The Appellate Division of the Supreme Court Of The
Supreme Court Of The State of New York,
First Judicial Department
REPLY BRIEF
RALPH H. SPEKEN, M.D.
STEPHANIE Z. SPEKEN, M.S.
PETITIONERS PRO SE
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………………………………………….. ii
INTRODUCTION………………………………………………………………………………………………………1
THE UNDERLYING CASE………………………………………………………………………………………..2
A. The Medical Malpractice Lawsuit……………………………………………………………………………2
B. The Affirmative Defense…………………………………………………………………………………………2
C. The Settlement……………………………………………………………………………………………………….2
THE LEGAL MALPRACTICE LAWSUIT………………………………………………………………….5
THE PETITION FOR A WRIT OF CERTIORARI………………………………………………………9
SHOULD BE GRANTED
CONCLUSION…………………………………………………………………………………………………………11
ii
TABLE OF AUTHORITIES
CASES
Genton v. Arpeggio Restaurant, 648 NYS2d 552
(19996)…………………………………………………………………………………………………………………10
Gilberg v. Barbieri, 53 NY2d 285, 441 NYS2d 49
(1985)…………………………………………………………………………………………………………………..11
Goldberg v. Kelly, 397 U.S. 254 (1970)……………………………………………………………………..9
Hallock v. State of New York, 64 NY2d 224 (1984)……………………………………………………6
Sei Young Choi v. Dworkin, 89 NY2d 805 (1996)…………………………………………………….10
Teichner v. W. & J. Holsteins, Inc., 64 NY2d 977
(1985)…………………………………………………………………………………………………………………..10
Wolff, Warden, et al. v. Mcdonnell, 418 U.S. 539
(1974)…………………………………………………………………………………………………………………….9
RULES:
New York State Mental Health Law §33.04……………………………………………………………..2
OTHER AUTHORITIES:
Hon. Ruth Bader Ginsburg, (as quoted in New York
Times, 1/14/1996)…………………………………………………………………………………………………..1
Moses Maimonides, (as quoted in Homo Mysticus,
José Faur, Syracuse University Press, 1999, p.
105)……………………………………………………………………………………………………………………….7
Due Process of Law, John V. Orth, University Press
of Kansas, 2003, p. 88)…………………………………………………………………………………………….9
INTRODUCTION
The Honorable Justice Ruth Bader Ginsburg has said, “”Laws as protectors of the oppressed, the poor, the loner, is evident in the work of my Jewish predecessors on the Supreme Court. The biblical command, “Justice, Justice shalt thou pursue” is a strand that ties them together. I keep these words on the wall of my chambers, as an ever present reminder of what judges must do that they may thrive.”” (New York Times, 1/14/1996) The Courts of the State of New York, regarding the lawsuits Speken v. Columbia and Speken v. Moore, have not pursued justice. Our pleas for an evidentiary hearing to substantiate claims against Thomas R. Moore, Esq. (Moore) were repeatedly denied. This violated the Fourteenth Amendment’s Procedural Due Process requirement and is the subject of the Petition For A Writ Of Certiorari. In the Brief In Opposition, Moore portrays Petitioners as legally misguided and a nuisance to the Courts. He states, “Petitioners’ arguments were heard over and over again…”(p1, Opposition Brief) Yes, that is true, Petitioners’ motions to the New York State Courts stated over and over again that Moore’s actions were coercive, and fraudulent.
The sole ‘investigation’ of these actions occurred during the fee hearing of November 30, 1999. The hearing conducted by Justice Klein-Heitler concerned Moore’s unethical activities toward his co-counsels. It detailed his intention to withhold their rightly deserved fees. The Petitioners’ allegations of improprieties against Moore were not addressed until the Petitioners themselves raised the issue. Judge Klein-Heitler asked Moore if these allegations were true. He responded they were not. That was the extent of the hearing provided the Petitioners by the New York State Courts. The Brief in Opposition has many misstatements of truth that this Reply will address.
THE UNDERLYING CASE
A. The Medical Malpractice Lawsuit
Moore deliberately misstates the truth about the Hospital’s actions. “While in the Hospital,” he states, “Seth Speken allegedly became delusional and was placed in wrist and ankle restraints.” (p3 Opposition Brief). Moreover, the website is not the plaintiffs “version” of the events, as Moore asserts. The entire medical chart is on the Internet and the reader can clearly see the Hospital’s actions that caused Seth’s death.
For example:
1. It shows the initiation of illegal restraints without consent of patient or family.
2. It graphically describes 66+ hours of physical and mental suffering and injury to the point of kidney shutdown.
3. It shows the continuation of injurious restraints even after kidney shutdown is acknowledged.
4. It clearly shows the predictable outcome of death by massive Pulmonary Emboli due to vascular injury caused by struggling violently against illegal restraints.
B. The Affirmative Defense
Seth was in acute and under treated violent withdrawal caused by unsupervised medical trainees. He was kept in 4 and 5 point total body restraints for 2 ½ days. This was not simple negligence but reckless endangerment, a criminal act in violation of New York State’s Health Law (§33.04). The Hospital’s Affirmative Defense was that their admittedly inadequate treatment was due to Dr. Speken’s deliberate withholding of information that he was treating his son with Xanax. No evidentiary hearing was held over these allegations. Were a hearing to have been held, it would have emerged that this charge came from a single medical trainee. This trainee was present in the emergency room when Seth arrived. Dr. Speken informed the house staff that his son was taking Xanax. A close reading of the chart suggests that Seth, who was post-ictal and delirious, probably denied his use of Xanax. This was not made known to Dr. Speken. Tests were ordered by the trainee; however, the trainee did not obtain the results of these tests. Many reckless medical acts followed. By the time the house staff recognized their mistakes, this same intern left for the day without having Seth transferred for the correct withdrawal treatment. When Seth was finally transferred, this same intern, Dr. Noah Berkowitz, M.D., Ph.D. (Berkowitz), to avoid blame, claimed that Dr. Speken had never provided the information about Xanax. If this had been true, the Hospital would have gone to the District Attorney after Seth died. Dr. Speken is a senior psychiatrist and withholding such information would have been an act of First Degree Murder.
The Affirmative Defense, provided by Dr. Berkowitz, was a blatant lie. The Hospital was desperate to settle the case so that the medical atrocity it had committed would be buried and sealed from public scrutiny.
Dr. Berkowitz soon thereafter became a student at the National Cancer Institute in Washington, D.C. He became involved with IMPATH, a now bankrupt health information services company that is facing fraud charges by the SEC, as well as suits by former stockholders. If Dr. Berkowitz had not emigrated, he would not doubt be a defendant as a former vice president of IMPATH. Two months after finishing training at the NCI, Berkowitz was paid $1,000,000 by IMPATH. While still a student, and in violation of the ethics rules of the National Institutes of Health, he made $500,000 from pharmaceutical companies. We have recently published on our website a link “Crimes and Misdemeanors.” It strongly suggests that Dr. Berkowitz was using Government databases for personal profit. This is the nature of the character of the doctor who provided the Hospital with its Affirmative Defense.
C. The Settlement
On July 8, 1999, Moore summoned Petitioners to his office announcing he had “settled the case.” The General Release was presented for the first time and he told them to sign it immediately and not anger the Judge. He emphasized the following clause: “The Releasers agree that if they or their agents violate the confidentiality and non-disclosure provisions of this Release and settlement, plaintiffs shall be liable to the defendant hospital, for the full amount of the consideration recited herein and defendant Hospital, will have the right to enter judgment against plaintiff for said amount. Should plaintiffs contest defendant’s allegation that they breeched these provisions, such allegations and issue shall be submitted for arbitration to an individual arbitrator mutually agreed upon by both sides, or alternatively, to the American Arbitration Association.” Moore stated that the above clause would permit him and the Petitioners to make only minor alterations that would insure the survival of the website. He assured Petitioners that he could successfully defend the website so that it could remain on the Internet.
Immediately after signing the General Release the Hospital demanded the website, http://www.med-malpractice.com, be removed. Petitioners complied. This website, first published on the Internet in 1997, details wanton disregard for human life at a major university teaching hospital in New York City. Callous disregard resulted in the death of Seth Speken. One month after signing the settlement Petitioners’ phone calls to Moore were still not returned. Also, within one month of signing, Moore’s former co-counsel Richard Frank, Esq. (Frank) submitted a “Show Cause” order to compel Moore to pay him his fee from the settlement. Petitioners signed the settlement agreement in open Court. But numerous threats preceded this.
1. Moore stated he would resign immediately if Petitioners did not sign.
2. Moore reminded Petitioners of his “superior work” and how they would be able to keep up the website as a result.
3. Judge Klein-Heitler and Moore repeated that Petitioners would be financially destroyed by a defamation suit brought by the Hospital.
4. Judge Klein-Heitler said she knew Petitioners had two surviving daughters. She kept threatening Petitioners to “think of them and sign.” Later, Moore would attempt to remove Petitioners’ Letters of Administration in Surrogate Court to stop them from initiating any Court action to attack the settlement. Judge Klein-Heitler was aware of this maneuver.
5. Both Judge Klein-Heitler and Moore threatened Petitioners that Moore’s financial claims against the settlement were so extensive that no new lawyer would take the case.
6. Moore warned the Petitioners that the Judge was corrupt and that they should not anger the Court Petitioners signed the release because Moore convinced them that they would be able to maintain their website and still be able to avoid financial ruin. Moore skillfully used a combination of offer and threat to persuade Petitioners that they had no choice but to sign.
THE LEGAL MALPRACTICE LAWSUIT
The following section relates to Respondent’s Brief in Opposition:
Moore asserts (p 4, Opposition Brief) that following the settlement, “Petitioners, apparently had second thoughts about agreeing to confidentiality…” The fact is that Petitioners never wanted the settlement. They wanted a trial and they wanted their free speech.
Moore further asserts that the Judge “fully explored Petitioners’ allegations of fraud…” (p4 Opposition Brief). This is another misstatement of truth. How could the allegations be “fully explored” without an evidentiary hearing? The Judge’s only comment was, “I don’t know what Mr. More said to you or did not say to you about the court system.”
The Judge’s opinion (30a) states that “[A] review of the record discloses no competent evidence of fraud, duress, or other cause sufficient to invalidate this settlement.”
Actually, only fraud committed by the adversary lawyer are grounds for vacating a contract in New York State. (Hallock v. State of New York, 64 NY2d 224) The Judge was not referring to Moore in this statement, she was referring to the lack of fraud by the Hospital’s lawyer.
The Judge did comment, “[Petitioners] admit that they have no direct proof that Moore, or anyone else, coerced them into signing the General Release…” But to consider this comment as anything but gratuitous is to ignore circumstantial evidence (p5 Opposition Brief). There was never an evidentiary hearing of Petitioners’ allegations. There was no opportunity to bring witnesses who could have testified to Moore’s unethical behavior towards other clients and in other situations. It should be noted that there is evidence that Moore has defrauded the United States Government out of paying taxes on over $2,000,000 of undeclared income.
(see ‘Taxes Are For The Little People’, http://www.med-malpractice.com).
Without circumstantial evidence a celebrity stock manipulator would not have been sentenced to jail time, and a wife murderer would not be facing execution. All that would have been necessary was for them to deny guilt, and that would have been the end of it. Yet, that is precisely the situation of Speken v. Moore. Moore said he was innocent and that was the end of it.
Judge Klein-Heitler asserts Petitioners were “intimately involved in the settlement process, and were represented at all times by an attorney of their own choosing.” (p5 Opposition Brief) The “settlement process” was a complete surprise to the Petitioners. It occurred on only one day after Moore announced that “I have settled the case.” Judge Klein-Heitler made a “decision” about disputed facts regarding Moore’s behavior toward Petitioners. But as Maimonides pointed out, “facts to not follow opinions, but true opinions ought to follow the facts.” (Homo Mysticus, Joseph Faur, Syracuse University Press, 1999 , p. 105) Judge Klein-Heitler’s gratuitous ‘opinion’ then became the ‘fact’ used by Judge Tolub to deny Petitioners’ Seventh Amendment right.
Judge Tolub misrepresents the truth when he states that “….Moore…had performed his duties. (p8 Opposition Brief)
Judge Tolub’s assertions were opinions not made on the basis of an evidentiary hearing. For example, the Judge states “…[Moore] prepared the case for trial, obtained additional trial counsel, and when trial counsel withdrew, obtained new trial counsel. (p9 Opposition Brief)
An evidentiary hearing would have shown that Moore did almost no work in “preparing the case for trial.” The bulk of the work was performed by his two co-counsels. He cleverly dismissed one of the lawyers, and the other withdrew just before trial because of dissatisfaction with Moore. Most importantly, Moore was unable to obtain new trial counsel and, for the first time, told Petitioners he was not competent to go to trial himself.
Moore indeed obtained a $500,000 settlement. His improprieties would have netted him nearly half of it in violation of New York State Law. Judge Klein-Heitler was aware this was illegal and reduced it to the permissible amount. She also restored the financial claims of Moore’s former co-counsels.
Judge Tolub assumed that because Petitioners could have obtained money from a settlement, they were not damaged. But the case was not about money. Petitioners wanted justice and the right to speak. This Court should consider a situation in which a Holocaust survivor was forced to sign a ‘Contract for Silence’ before receiving reparations from the German Government. Moore argued to the New York State Appellate Division, First Department, that “…the issues surrounding the allegations that Moore coerced Petitioners into settlement were fundamental to the court’s conclusion to not vacate the settlement in the underlying action.” (p10, Opposition Brief). This is not true. A reading of Judge Klein-Heitler’s opinion (13a-38a) reveals that her gratuitous comments regarding Moore’s fraud were extraneous to her decision not to vacate the contract.
Finally, Moore asserted “…the issues regarding Moore’s role in procuring the settlement were fully explored in the underlying action.” (p10 Opposition Brief) Only an evidentiary hearing could have “fully explored” the issue.
THE PETITION FOR A WRIT OF
CERTIORARI SHOULD BE GRANTED
Petitioners’ argument in this Reply Brief does not concern “erroneous factual findings…” as referred to by Respondent. (p12 Opposition Brief) Petitioners raise the issue of Procedural Due Process. Decisions were made about conflicting facts, and all without evidentiary hearing.
This Reply Brief asks this Court to consider that petitioners’ substantive Seventh Amendment right was removed without a hearing. This Court has said that “some kind of hearing is required…” before such a deprivation can be permitted. (Wolff, Warden, et.al. v. McDonnell 418 U.S. 557, 558).
John V. Orth, in Due Process of Law (University Press of Kansas, 2003, p88), summarizes the definition of “hearing” in Goldberg v. Kelly (397 U.S. pp254-279): (1) adequate notice, (2) opportunity to be heard, (3) the right to present evidence, (4) confrontation of opposing witnesses, (5) cross-examination (6) disclosure of adverse evidence, (7), the right to an attorney, (8) decision based on the evidence, (9), reasons for the decision, (10) an impartial decision maker.
Respondent asserts that “…Moore’s alleged coercion had been fully and fairly litigated.” (p13 Opposition Brief) But this was not on the basis of a “hearing” with all its ten requirements, only on the basis of one – item (2) above. Given the seriousness of the issues we raised, the United States Constitutional requirement of correct procedure was simply not fulfilled. In fact to declare that the allegations were “fully and fairly litigated,” as Respondent does, is it to engage in a type of Orwellian legal “NewSpeak.”
Respondent lists several New York State cases in which legal malpractice trials were precluded by collateral estoppel. (p15, Opposition Brief) In each of these cases, there was no evidentiary hearing of the lawyer’s actions in the underlying cases. Petitioners discussed one of these cases, Sei Young Choi, 89 NY2d 80 (p10 Petition For A Writ Of Certiorari). A reading of all these cases reveals them to be easily distinguishable from Speken v. Moore. In each case, all the actions of the attorneys involved were beyond reproach. This was not so in the instant case where there is evidence of significant wrong doing by Moore. In fact, precedent cases in New York State clearly exist, requiring evidentiary hearings when legal malpractice is alleged. In Genton v. Arpeggio Restaurant 648 NYS2d, 552, a hearing was required over the issue of alleged legal malpractice “…since issues raised by parties’ conflicting affidavits turned on relative credibility of their assertions, and attorney’s proof suffered from inadequate explanations and inconsistencies with documentary evidence.” (see also Teichner v. W.& J Holsteins, Inc., 64 NY2d 977) In the instant case, issues of Moore’s credibility exist that demanded an evidentiary hearing.
The denial of Petitioners’ right to sue was deficient from the standpoint of New York State practice. In Gilberg v. Barbieri, 53 NY2d 285, 441 NYS2d 49 (1985), former Chief Judge Sol Wachtler stated the requirements for collateral estoppel. He said, in part, “The point of the inquiry, of course, is not to decide whether the prior determination should be vacated but to decide whether it should be given conclusive effect beyond the case in which it was made.” Clearly, under New York State Law, Judge Klein-Heitler’s opinions about disputed facts regarding legal malpractice issues should not have been given preclusive effect barring Petitioners’ right to sue.
“Some sort of hearing is required….” before a substantive fundamental right can be removed (ibid). If this Court defines “hearing” as meaning only being “heard” and this is all the process that is due Petitioners, then Respondent is correct. There is no federal question that implicates “…decisions of this Court.” (p16 Opposition Brief).
But the word “hearing” means a dynamic process requiring an in-depth, fair, and transparent set of legal procedures. To hold that simply being “heard” satisfies these procedural requirements is illogical. In fact, such a definition does grave damage to the concept of Due Process and indeed the principles of Justice enshrined in our Country’s Constitution.
Under any fair interpretation of the requirement for Procedural Due Process, Petitioners never had a hearing. Petitioner’s right to sue their former attorney must not be taken.
CONCLUSION
For all of the foregoing reasons, the Petition For A Writ Of Certiorari should be granted.
Respectfully submitted.
Stephanie Z. Speken, M.S.
Ralph H. Speken, M.D.
Plaintiffs Pro Se
81 Pondfield Road #179
Bronxville, New York 10708