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Response to Doctor's Motion to Take Down YouTube Deposition Videos

This is a response to an interesting motion filed by a doctor who was upset that we put her videotaped deposition on YouTube.  You can find the deposition, our honest description of the case,  and a lot of comments about it - here.  

We took this motion pretty seriously.  Defense lawyers don't understand what we are doing with these videos.  This has nothing to do with marketing our practice. We put these depositions up because they are extremely educational to both victims and lawyers.  We have been providing free educational materials for lawyers for over 15 years.  To be fair, we offered to put up the defense lawyer's motion if they send it to us in Microsoft Word.  So far, not response but that offer is still out there. 

Our response is so long it requires two parts.  You can find Part 2 here

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

MONICA CAMELO, et al. :
Plaintiffs, :
v. : Case No.: 442210-V
MELISSA LONGLEY, et al. :
Defendants. :

PLAINTIFF'S OPPOSITION TO DEFENDANTS' SUZANNA MARTIN, M.D.'S, LESLIE MITCHELL, M.D.'S, GISELLA VALDERRAMA, M.D.'S, MELISSA LONGLEY, RPA-C'S, AND SCOTT WISSMAN, M.D.'S MOTION FOR PROTECTIVE ORDER AND REQUEST FOR A HEARING

Miller & Zois, LLC, and hereby files this Opposition to Defendants' Motion.

Youtube 

I. INTRODUCTION

Given the nature of this motion, the facts of this case bear repeating. On or about March 31, 2015, Jonathan Valladares began having a constant headache, neck pain, and vomiting. On April 2, 2015, Jonathan's mother took him to International Pediatrics, P.A., where Jonathan was evaluated by nurse practitioner Christine Tanner. Nurse Tanner took a history of Jonathan's headache and performed a physical examination. Based on her findings, she sent Jonathan and his mother to the emergency room. She did not believe that Jonathan's headache was caused by an infection and wanted the emergency room to rule out a more serious cause of his headache.

At the Shady Grove Medical Center emergency room, Jonathan was first seen by a third-year resident, Gisella Valderrama. Dr. Valderrama also took a history of Jonathan's headaches and performed a physical examination. Based upon the results of the history (in particular a history of "chronic" headaches) and the physical exam, Dr. Valderrama determined that Jonathan was most likely suffering from a migraine. She administered pain medication and recommended discharge from the hospital. While in the emergency room, Jonathan also saw attending physician Suzanna Martin. Dr. Martin was Dr. Valderrama's supervising physician. She also performed a history and physical and reported that Jonathan had a history of chronic headaches and diagnosed him with headaches. At her deposition, she testified that she did not diagnose Jonathan with migraines. After receiving some pain medication, Jonathan was discharged from the emergency room.

Despite Defendants' murmurings to the contrary, Jonathan's prior medical records did not reveal a history of a diagnosis of migraines or chronic headaches, other than the ordinary headaches that any child might suffer from the common cold or flu. At trial, Plaintiff's argued that the Defendants should have investigated Jonathan's medical history and realized that the headaches he was suffering on April 2, 2015, were very different than the minor headaches he had associated with illness in the past.

On April 3, 2015, Jonathan's mother called International Pediatrics, P.A. and left a message for Christine Tanner that Jonathan was seen in the emergency room but his headaches did not improve. Later that evening, Jonathan's mother called the International Pediatrics, P.A. emergency hotline and spoke with physician assistant Melissa Longley. Ms. Longley told Jonathan's mother to go to the emergency room if his headaches were not improving and to the call the next day. On April 4, 2015, Jonathan's mother called Ms. Longley and said that Jonathan still had a severe headache. Ms. Longley made an appointment for Jonathan to be seen on April 6, 2015, to get a referral for a neurologist.

On April 5, 2015, Jonathan's mother took him to the Shady Grove Medical Center emergency room where he was seen by physician Leslie Mitchell, M.D. Dr. Mitchell took a history of Jonathan's headaches and performed a physical. Based on the results of the history and physical, she determined that Jonathan was suffering from unspecified headaches. She administered pain medication, gave him a referral to a neurologist, and discharged him from the emergency room.

On April 6, 2015, Jonathan was seen by Melissa Longley at International Pediatrics, P.A. At that time Ms. Longley saw Jonathan, she took a history of Jonathan's headaches and performed a physical examination. She had access to Jonathan's prior medical records from International Pediatrics, P.A. that did not reveal a history of migraines or chronic headaches. Nevertheless, she diagnosed Jonathan with a status migrainosus (a longer-lasting form of migraine) and discharged him with a referral to a see a neurologist. At trial, she admitted that aneurysm and a brain bleed were in her differential diagnosis at the time she saw Jonathan on April 6, 2015. Nevertheless, she did not explain this fact or the urgency of being seen by a neurologist when she spoke with Jonathan's mother on April 6, 2015.

On April 8, 2015, Jonathan saw pediatric neurologist Sylvia Edelstein, M.D. Dr. Edelstein performed a history and physical and determined that Jonathan was suffering from either migraines or a life-threatening condition such as a brain tumor. As a result, she ordered a CT scan to investigate life-threatening causes of his headache. Even though Dr. Edelstein freely admitted that Jonathan's headaches were potentially caused by a life-threatening condition, she told his mother to wait several days prior to getting the CT scan. Approximately two (2) days later, Jonathan's brain aneurysm ruptured, causing his death.

This case was tried before a Montgomery County jury for eleven (11) days. After hearing all the evidence, the jury found that Defendants Melissa Longley, RPA-C and Sylvia Edelstein, M.D. breached the requirements of informed consent. The jury also found that Dr. Edelstein (the neurologist) breached the standard of care. The Plaintiff lost, however, because the jury also determined that even if Jonathan's aneurysm had been discovered earlier in time, it could not have been treated in time to save his life.

The Plaintiff feels compelled to rehash these details because Defendants and their attorneys insist on pretending as if the jury found there were no breaches of the standard of care or breaches of the informed consent requirements in this case, but that simply is not true.

II. POSTING OF THE YOUTUBE VIDEO

Before discussing the video at issue in this case, it is worth going over the reasons it was posted on the internet. As much of the Maryland legal community knows, the law firm Miller & Zois, LLC, prides itself on providing one of the largest sources of legal educational materials to the general public, members of the legal community (both in state and out of state), as well as to law students. The materials are provided in a format that is easy to understand and readily accessible via the internet. One of the things that sets Miller &Zois, LLC apart from other firms are the practical examples of work from actual cases. So much of what is taught in law school is black letter law that the simple task filing a pleading or taking a deposition is often ignored. The purpose of Miller & Zois's internet content is to bridge the gap between legal theory and practical application. To that end, Miller & Zois posts on the internet example pleadings, discovery materials, trial testimony, correspondence, and depositions. On a weekly basis, Miller & Zois receives numerous phone calls and emails regarding these materials. Over the years, this internet content has assisted many pro se litigants to successfully navigate the legal system and handle their own case. It has helped numerous lawyers learn new strategies and fine-tune their practice. Law students have benefited because it shows them how to handle a case from beginning to end. It has also helped many members of the general public understand what is actually happening with their case.

Part of being a good lawyer is communicating with people. The lawyers at Miller & Zois believe it is their mission to communicate with as many people as possible to help them better understand the law. Creating and posting this internet content is no small task, but it is one that Miller & Zois has chosen to undertake in order to make the law accessible to everyone.

It is for these reasons that the entire videotaped deposition of the emergency room physician Suzanna Martin, M.D. was posted on YouTube on May 16, 2019. The YouTube video was: 1) not altered in any fashion from its original form, 2) does not mention Dr. Martin by name (except where mentioned in the deposition testimony) and, 3) contains a brief synopsis of the case below the video posting in order to provide context for the deposition. In particular, the synopsis to the video states the Plaintiff lost the case:

This case was tried in front of a jury in Montgomery County. After hearing all the evidence, the jury did not find that the emergency room physicians breached the standard of care. They did find the pediatric neurologist: 1) breached the standard of care in failing to order an emergency CT scan; and 2) breached the informed consent requirement. Unfortunately, the jury also found that even if a CT scan was performed it would be difficult to save the child's life given the size and location of the aneurysm. Therefore, the Plaintiff was unable to prove the causation necessary to receive an award of damages.

Our firm poured our hearts, efforts, and money into this case. And we lost. If you are plaintiffs' lawyer handling malpractice cases who has not lost cases, you are not trying many cases. But we did everything we could possibly do for this wonderful mother who graciously agreed to allow us to pus this video online to help others.

See Exhibit 1.

The case was tried before a Montgomery County jury from March 18, 2019, until April 1, 2019. The jury returned a verdict for the Defendants on April 3, 2019. Defendants failed to move for a protective order regarding the depositions of any of the Defendants prior to trial. Indeed, Defendants did not move for a protective order regarding any of the Defendants' videotaped depositions until after Dr. Martin's deposition was posted on YouTube. The instant motion for a protective order was filed on September 20, 2019, six (6) months after the conclusion of the matter and verdict in this case.

It is also worth noting that the Defendants' motion sweeps in very broad strokes. Not only are they asking for a protective order regarding Dr. Martin's videotaped deposition (the only one that was actually posted), the Defendants are asking the Court to prospectively prohibit the Plaintiff from posting on the internet all the other Defendants' videotaped depositions, regardless of any specific showing of prejudice and regardless of the specific content of the actual videotaped deposition posted. This broad-based restriction on the ability to disseminate valuable educational materials to the general public and engage in free speech runs afoul of the first amendment of the United States Constitution. It also fails to meet any of the requirements of the case law and Md. Rule 2-403 requirements regarding protective orders. With respect to Dr. Martin, the Defendants' Motion must be denied because the Defendants the motion for a protective order serves as a blanket gag order, post-trial, without any showing of specific harm to Dr. Martin. Such a broad restriction on dissemination of physician testimony is a violation of the First Amendment and the free speech and due process clauses of the Maryland Declaration of Rights.

For all of these reasons, Defendants' Motion must be denied.

III. ARGUMENT
  1. Pursuant to the United States Constitution, the Maryland Declaration of Rights, and Seattle Times Co. v. Rhinehart, the Plaintiff has a constitutional right to engage in free speech by posting videotaped depositions on the internet.

    This appears to be an issue of first impression in Maryland. At issue is the Defendant's desire to prevent the wholesale publishing of Defendants videotape depositions, regardless of the content, versus the Plaintiffs right to engage in free speech by posting the unedited videotaped depositions of the Defendants on the internet for educational purposes when the general public and the legal profession have a clear public interest in such content.

    The first amendment of the United States Constitution states as follows:

    Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    See U.S. Const. amend. I

    Maryland's declaration of rights contains a similar prohibition on laws and regulations prohibiting free speech. Art. 10 of the Maryland Declaration of Rights states "[t]hat freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature." (Emphasis added). Art. 3 of the Maryland Declaration of Rights states that "[t]he Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding."

    The right to engage in free speech and debate is one of the most fundamental and cherished rights that we have in our country. In Gitlow v. New York, 268 U.S. 652, 666 (1925) the Court proclaimed that "we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Thus, whatever the First Amendment's freedom of speech protects against the federal government, it also protects that right against infringement from the states. The Supreme Court has likewise long held that the First Amendment protects more than pure speech, extending that protection to the broader notion of the freedom of expression.

    In this case, the Plaintiffs are exercising their first amendment right of free speech, press, and expression by posting on the internet the entire, unedited videotaped deposition of Dr. Martin.

    Defendants argue that the Plaintiffs do not have a first amendment right to publish the videotaped depositions and seek the Courts assistance in prohibiting the posting by seeking a Protective Order pursuant to Maryland Rule 2-403(a), which permits a court to "enter any order that justice requires to protect a party or person" from abuses of discovery that would prove an "annoyance, embarrassment, oppression, or undue burden or expense."

    However, the Courts' power to issue a protective order is not without limitation. The rule itself states that "the person seeking a protective order 'has the burden of making a particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice, or consequential harm that will result if protection is denied.'" Tanis v. Crocker, 110 Md. App. 559, 574, 678 A.2d 88 (1996). Forensic Advisors, Inc. v. Matrix Initiatives, Inc., 170 Md. App. 520, 530-31, 907 A.2d 855, 861 (2006). Maryland Courts have held that "[e]ven if the court agrees that some protection is necessary, a protective order "is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court's processes.'" Id.

    In addition to the limitations described above, a state Court's ability to issue a protective is also limited by the first amendment. Although there is a limited amount of case law on this issue, the Supreme Court has tangentially addressed the intersection between protective orders and free speech in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). In that case, the Court dealt with discovery disclosures prior to trial as opposed to the post-trial disclosures in this case. From the outset, the Court stated that the issue it was addressing was "whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 22, 104 S. Ct. 2199, 2202, 81 L. Ed. 2d 17 (1984) (emphasis added).

    In Seattle Times Co., the Respondent, Rhinehart, was a spiritual leader of a religious group who filed suit against the Seattle Times newspaper and the Walla Walla Union-Bulletin ("Petitioners") for defamation and misrepresentations by publishing articles regarding the religious group's activities that Rhinehart argued were factually incorrect and harmful to the organization and its membership. During pretrial discovery, Petitioners sought certain financial information and a list of the organization's members for the preceding 10 years. When Respondents refused to produce this information, Petitioners filed a motion to compel. In response, Respondents moved for a protective order arguing that the Petitioners should be precluded from disseminating any of the information gained through discovery regarding membership. In support of this Motion, Respondents submitted multiple "affidavits detail[ing] a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart-including several that threatened physical harm to those associated with the Foundation. The affiants also described incidents at the Foundation's headquarters involving attacks, threats, and assaults directed at Foundation members by anonymous individuals and groups. In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income and would subject its members to additional harassment and reprisals. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 26-27, 104 S. Ct. 2199, 2204, 81 L. Ed. 2d 17 (1984).

    The trial court granted the motion for a protective order prohibiting petitioners from publishing the information except where necessary to prepare for and try the case. The Petitioners appealed to the Supreme Court of Washington. In affirming the lower court, the Supreme Court of Washington made specific findings that the "the information to be discovered concerned the financial affairs of the plaintiff Rhinehart and his organization, in which he and his associates had a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression." Id. at 28.

    In deciding the case, the United States Supreme Court noted some general principles. The Court stated that it was "clear that the information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most-and possibly all-of what has been discovered as a result of the court's order under Rule 26(b)(1)."[1] Id., at 31. The Court also noted that litigant does not have "unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that '[f]reedom of speech ... does not comprehend the right to speak on any subject at any time.'" American Communications Assn. v. Douds, 339 U.S. 382, 394-395, 70 S.Ct. 674, 681-682, 94 L.Ed. 925 (1950). Id., at 31.

    In deciding the critical question of whether the litigant's freedom comprehends the right to disseminate information obtained in discovery, the Court applied "intermediate scrutiny" to determine whether the "'practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression'" and whether "'the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved.'" Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S. Ct. 2199, 2207, 81 L. Ed. 2d 17 (1984) quoting Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). [See also case stating the Court applied intermediate scrutiny].

    The Court ultimately determined that the Washington State discovery rules allowing protective orders (Rule 26(c)) "furthers a substantial governmental interest unrelated to the suppression of expression." Id. at 34-35. In other words, the trial court was able to regulate information obtained in discovery, but only if the restrictions placed on the speech at issue were "no greater than is necessary." In determining whether the protective order was "no greater than is necessary," the Court analyzed 1) the reason for the protective order and 2) the specific relief requested. Ultimately, the Court held that the protective order in Seattle Times Co. was narrowly focused on the "annoyance, embarrassment," and "oppression" related to the "disclosure of membership as well as sources of financial support." Id. at 37. It also held that the protective order was no greater than was necessary to address those concerns based upon a specific showing before the trial court.

    In their concurring opinion, Justice Brennan and Justice Marshall further clarified the Court's analysis:

    In this case, the respondents opposed discovery, and in the alternative sought a protective order for discovered materials, because the "compelled production of the identities of the Foundation's donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association." Ante, at 2203. The Supreme Court of Washington found that these interests constituted the requisite "good cause" under the State's Rule 26(c) (upon "good cause shown," the court may make "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense"). 98 Wash.2d 226, 256, 654 P.2d 673, 690 (1982). Given this finding, the court approved a protective order limited to "information ... regarding the financial affairs of the various [respondents], the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various [[[respondents]." Ante, at 2204, n. 8. I agree that the respondents' interests in privacy and religious freedom are sufficient to justify this protective order and to overcome the protections afforded free expression by the First Amendment. I therefore join the Court's opinion.

    Seattle Times Co. v. Rhinehart, 467 U.S. 20, 38, 104 S. Ct. 2199, 2210, 81 L. Ed. 2d 17 (1984)

    An interesting corollary to the Supreme Court's decision in Seattle Times Co., is that the Court's holding contemplates situations where the trial Court's protective order may not be: 1) issued based upon good cause shown; and 2) may not be sufficiently tailored so that the order is "no greater than is necessary" to avoid running afoul of the first amendment and "intermediate scrutiny." In such situations a blanket protective order that prohibits the dissemination of an entire category of information, regardless of the content, cannot be anything other than an unwarranted prohibition on free speech. This is particularly true if the protective order occurs post trial and involves prospective prohibitions on speech that has not yet occurred. A prohibition like this is not based upon concerns regarding the actual information but rather is a blanket gag order to preclude a litigant from ever disclosing any information, no matter how valuable it may be to the general public. If this were the law, a Defendant would seek a blanket protective order to preclude the dissemination of a Defendant's deposition in every Maryland case. Such a standard is ripe for abuse because it is nothing more than an overly broad attempt to suppress ideas. This is exactly what the Defendants are attempting to do in this case.

    Apply these constitutional principles to this case, Defendant's Motion must be denied.

  2. Dr. Martin did not have an expectation of privacy regarding the content of her videotaped deposition.

    In her Motion, Dr. Martin claims that she had an expectation of privacy that her videotaped deposition would never be made public. This is an interesting assertion, particularly since Dr. Martin's attorneys never once attempted to file a motion for a protective order regarding any of her deposition testimony prior to and/or during trial. Thus, prior to trial and during trial, Dr. Martin was fully aware that her videotaped deposition could be used at any time and for any purpose. It could have been publicly disclosed or read to the jury. It could have been used to impeach her testimony. It could have been used to impeach other Defendant's testimony. The bottom line is that Dr. Martin made no attempt to prevent this information from becoming public prior to and/or during trial. Therefore, for her to claim that she had an expectation of privacy regarding her videotaped deposition is a gross distortion of the facts.

  3. Dr. Martin's counsel is confusing evidentiary rulings at trial with disclosures in a public forum that do not have the same concerns.

    Defense counsel argues that Dr. Martin has a strong privacy interest in her videotaped deposition because Plaintiff counsel did not make the deposition part of the trial record, which would have required a court's ruling regarding admissibility. Of course, Dr. Martin's attorney could have moved for a protective order prior to trial based upon evidentiary objections but failed to do so. These objections and the Court's rulings would have been specifically focused on providing the litigants with a fair and unbiased trial. The fatal flaw in this argument is that it assumes the trial court's concerns in the courtroom are the same as the general public's concerns outside the courtroom. But they are altogether different. At trial, rulings on admissibility are made to ensure the litigants have a fair and unbiased trial. Such concerns of fairness do not extend, however, to the dissemination of information post trial in a public forum. The forum of every day discourse is unconcerned with objections to evidence that is not being used to render a verdict by a jury of our peers. Dr. Martin's attorney fails to understand this distinction.

    Defendants also make reference to various case law that appears to use the Courts admissibility standard as a benchmark for deciding what can be publicly disclosed; however, it is important to point out that this standard has not been adopted by the United States Supreme Court or any Court in Maryland. The cases that refer to this analysis have also applied it inconsistently across the board and often revert backing to using the Supreme Court's intermediate scrutiny test. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).

  4. The relief requested by Dr. Martin is a blanket gag order regarding her entire videotaped deposition that is: 1) not specifically focused on any particular content and 2) is not sufficiently tailored so that the order is "no greater than is necessary" to avoid running afoul of the first amendment and "intermediate scrutiny."

    As stated above, "[t]he person seeking a protective order 'has the burden of making a particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice, or consequential harm that will result if protection is denied.'" Tanis v. Crocker, 110 Md.App. 559, 574, 678 A.2d 88 (1996). Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md. App. 520, 530, 907 A.2d 855, 861 (2006)

    Dr. Martin's main argument in this case is a hollow assertion that the public posting of her videotaped deposition has caused her "annoyance, embarrassment, oppression, or undue hardship." However, Dr. Martin has failed to demonstrate any of these things in her motion. See Exhibit 2.

    In paragraph 7 of her affidavit, she states that she "was informed by a nurse colleague that another nurse working at that same hospital had discovered my videotaped deposition posted on YouTube and had shared it with other professional collages at the hospital." However, she doesn't say how this has embarrassed, annoyed, or harassed her. Dr. Martin gave her deposition testimony in this case under oath. Presumably her answers to the questions regarding Jonathan Valladares' medical care are accurate. The plaintiff fails to see how discussing the treatment of her patient under oath is somehow causing her embarrassment.

    Again, Dr. Martin does not specifically pinpoint any one part of her deposition to claim that it is "annoying, embarrassing, or harassing." Instead, she seeks to preclude her entire videotaped deposition from being publicly disclosed, regardless of the content. This goes too far. In order to avoid running afoul of the first amendment, Dr. Martin must specifically identify what part of her deposition is "annoying, embarrassing, or harassing" and tailor the relief accordingly. Otherwise, Defendants are simply attempting to prohibit an entire category of speech and expression for no reason other than they don't want it disclosed, which runs afoul of the first amendment.

    Dr. Martin states that she is concerned about colleagues finding out that she has been sued, but this is already public information. Anybody could find this information on the internet. A simple search on Maryland Judiciary Case Search would reveal the number of times that Dr. Martin has been sued or testified in Court. There are similar databases found in every state throughout the country.

    Defendants argue that Dr. Martin's prior lawsuits might not have been admissible at trial, but once again, the concerns regarding admissibility at trial are completely different than the concerns outside the courtroom. To be sure, there is no proof that any of this information is actually harassing or embarrassing to Dr. Martin. Rather, Defendants are attempting to use her history of prior lawsuits to prohibit the disclosure of her entire deposition-99 percent of which doesn't have anything to do with her history of prior lawsuits. Such a prohibition is overly broad, does not serve an important or substantial government interest, and is not sufficiently tailored to so that the prohibition is "no greater than is necessary" to avoid running afoul of the first amendment and "intermediate scrutiny."

    Ultimately, the Plaintiff suspects Dr. Martin just doesn't want her image posted on the internet, but this is a not good reason for the Court to prohibit disclosure of her deposition when weighed against the strong public interest in this information.

  5. Defendants claims of "annoyance, embarrassment, and harassment" make no sense because the Plaintiff has publicly stated directly underneath the published YouTube video that they LOST THE TRIAL.

    The YouTube video was: 1) not altered in any fashion from its original form, 2) does not mention Dr. Martin by name (except where mentioned in the deposition testimony) and, 3) contains a brief synopsis of the case below the video posting in order to provide context for the deposition. In particular, the synopsis to the video states the Plaintiff lost the case:

    This case was tried in front of a jury in Montgomery County. After hearing all the evidence, the jury did not find that the emergency room physicians breached the standard of care. They did find the pediatric neurologist: 1) breached the standard of care in failing to order an emergency CT scan; and 2) breached the informed consent requirement. Unfortunately, the jury also found that even if a CT scan was performed it would be difficult to save the child's life given the size and location of the aneurysm. Therefore, the Plaintiff was unable to prove the causation necessary to receive an award of damages.

    Our firm poured our hearts, efforts and money into this case. And we lost. If you are plaintiffs' lawyer handling malpractice cases who has not lost cases, you are not trying many cases. But we did everything we could possibly do for this wonderful mother who graciously agreed to allow us to put this video online to help others.

    See Exhibit 3

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