"Assisting Government" - The New Legal Argument for Nutbags...

Opinion by Consumer Advocate Tim Bolen

Wednesday, March 30th, 2011

I simply cannot get over the fact that Stephen Barrett actually found attorneys who would write legal papers demanding that he, Barrett, be declared the Czar/God of US health care and Dismiss the Doctor's Data v Barrett, et al, case on the basis that Stephen Barrett, in his total nutbag role, is "assisting government." Wow!

Just think - a whole new legal concept, that when employed, would change the face of law as we know it.

I guess, under that legal argument, it is too bad that Adolph Hitler didn't know Stephen Barrett and his legal team. For, if he did, way back then, just think, instead of Adolph and Eva Braun committing double suicide in their Berlin bunker, they could have, simply, run for the American lines, hands raised, screaming "we were assisting government, we were assisting government, we were assisting government, we were assisting government..."

With this novel "assisting government" legal argument the conviction of serial killer, rapist, necrophiliac, torturer, cannibal Jeffrey Dahmer might of been avoided. Dahmer could have claimed he was, you know, helping the government get rid of excess population, avoiding the cost of public burial, etc...

Then there's Ted Bundy, Charles Manson, Manuel Noriega, Joseph Stalin, Dracula, Pol Pot, Caligula, Vlad the Impaler, Hernando Cortes, Lucrecia Borgia, John Wilkes Booth - all "clearly misunderstood" if you insert the "assisting government" legal argument into their mix.

Even better, jump on your favorite highway, jam your foot to the floor, ignore those "School Zone" signs, and see how much fun you can have holding that speedometer needle at top speed while you are "assisting government" to keep law enforcement at maximum efficiency.

Gee whiz - why didn't we, as Americans, just write this idea into our Constitution? Where was George, Tom, and Ben (Washington, Jefferson, and Franklin)? (sarcasm intended).

It is not the first time Stephen Barrett has come up with a total whack-job legal theory...

It is not even the second or the third time.

In no particular order I'll lay out some of Barrett's previous legal theories - all of which, of course, have been summarily rejected by the Courts.

(1) My favorite - and important to the Doctor's Data v Barrett Federal court case: Stephen Barrett and bobbie baratz organized a group of lawsuits in California against various supplement and homeopathic product manufacturers, using the National Council Against Health Fraud (NCAHF) as the Plaintiff, and THEMSELVES as the highly paid "expert witnesses."

In two important cases, in this mix, the courts totally crapped on these two, carefully explaining the nonsense of their legal theories, chastising them for wasting the court's time. In the second case, the court awarded over $100,000 in legal fees to the Defendants - which the NCAHF never paid (to this day).

The language of the decision in the first case, the NCAHF v King Bio case is very explicit. The language in the second case, NCAHF v. Botanical laboratories, et al." is even more entertaining. There were, count them, FIVE separate NONSENSE legal theories in these cases, put forth by crackpot Barrett, and rejected as ludicrous by the courts.

(a) In the "NCAHF v. Botanical laboratories, et al." case Appeal, the Three Judge Panel's words were...

"Conclusion - Appellant (NCAHF) believes that no one should be allowed to market homeopathic remedies. Congress has decided otherwise, and officially recognizes the Homeopathic Pharmacopoeia. Appellant's broad-brush approach of sweeping all homeopathic remedies into a single bag marked "undesirable" simply does not work in the courts, where each claimed instance of unfair advertising and unfair business practice must be closely scrutinized. Appellant failed to present any admissible evidence in this case that respondents are guilty of false advertising and unfair business practices with respect to any of their products."

(b) In the NCAHF v King Bio case the plaintiff NCAHF had put forth the preposterous legal theory that "you must prove you are innocent" - a direct opposite of the legal dictum "Innocent until proven guilty." Barrett insisted, much to the laughter of the court, that, contrary to ANY, and EVERY law, the burden of proof, to prove a lack of guilt, was on the Defendant. Here is what the court said:

Burden of proof - "The Plaintiff’s initial trial brief argued that the burden of proof in this action should be shifted to the Defendants, citing several California and federal administrative cases. The Plaintiff’s trial brief seemed implicitly to concede that the Plaintiff could not meet its burden of proof--i.e. the establishment of Defendants’ liability by a preponderance of the evidence-if the burden were not so shifted to Defendants. The Defendants filed a supplemental brief responding to the Plaintiff’s arguments and asserted that the burden lies with NCAHF and that the cases it cited to the contrary are inapposite or do not govern in California. The Court finds that the authorities cited by the Plaintiff do not support Plaintiff’s position on this issue. There appears to be no case in California to support the shifting of the burden of proof to the Defendant in a case of this type. The burden of establishing each element of its claims therefore lies with Plaintiff NCAHF. Cal. Evid. Code § 500."

The Judge in the NCAHF v King Bio case, backed up by the Appeals court, clearly found that Barrett's "Guilty until proven innocent" legal theory was preposterous. He said:

"Furthermore, the Court notes that the logical end-point of Plaintiff’s burden-shifting argument would be to permit anyone with the requisite filing fee to walk into any court in any state in the Union and file a lawsuit against any business, casting the burden on that defendant to prove that it was not violating the law. Such an approach, this Court finds, would itself be unfair."

(c) Barrett, et al, had argued that "all homeopathic product advertising is false..." However, the Appeals Court in NCAHF v. King Bio responded like this:

"In the context of a lawsuit against homeopathic manufacturers of homeopathic remedies, 'there is nothing in the nature of a false advertising action that makes it difficult for a plaintiff to prove allegations of the complaint. The homeopathic remedies are marketed and readily available for testing by the plaintiff. The falsity of the advertising claims may be established by testing, scientific literature, or anecdotal evidence.' (NCAHF v King Bio). Appellant provided no admissible, prima facie evidence that the respondents' advertising is, in fact, false....In addition, appellant presented no evidence at all that respondents' advertising is likely to deceive consumers."

(d) The NCAHF had put forth the legal concept, in both of these cases, that Homeopathy itself was "Fraud," because they, the NCAHF, says so. In other words, here, in this case, was an earlier attempt to have a Court declare Barrett, and the NCAHF, the Czar/Gods of US health care. Here is what the court said about Barrett:

"As for his credential as an expert on FDA regulation of homeopathic drugs, the Court finds that Dr. Barrett lacks sufficient qualifications in this area. Expertise in FDA regulation suggests a knowledge of how the agency enforces federal statutes and the agency’s own regulations. Dr. Barrett’s purported legal and regulatory knowledge is not apparent. He is not a lawyer, although he claims he attended several semesters of correspondence law school. While Dr. Barrett appears to have had several past conversations with FDA representatives, these appear to have been sporadic, mainly at his own instigation, and principally for the purpose of gathering information for his various articles and Internet web-sites. He has never testified before any governmental panel or agency on issues relating to FDA regulation of drugs. Presumably his professional continuing education experiences are outdated given that he has not had a current medical licence in over seven years. For these reasons, there is no sound basis on which to consider Dr. Barrett qualified as an expert on the issues he was offered to address. Moreover, there was no real focus to his testimony with respect to any of the issues in this case associated with Defendants’ products."

(e) In these cases, Barrett was trying to rewrite case law regarding expert witnesses. The guiding rules about expert witnesses in American law are two case decisions, Frye and Daubert. Barrett, here, was trying to get himself formally declared to be in a class of his own. The courts said:

"C. Credibility of Plaintiff’s experts - Furthermore, the Court finds that both Dr. Sampson and Dr. Barrett are biased heavily in favor of the Plaintiff and thus the weight to be accorded their testimony is slight in any event. Both are long-time board members of the Plaintiff; Dr. Barrett has served as its Chairman. Both participated in an application to the U.S. FDA during the early 1990s designed to restrict the sale of most homeopathic drugs. Dr. Sampson’s university course presents what is effectively a one-sided, critical view of alternative medicine. Dr. Barrett’s heavy activities in lecturing and writing about alternative medicine similarly are focused on the eradication of the practices about which he opines. Both witnesses’ fees, as Dr. Barrett testified, are paid from a fund established by Plaintiff NCAHF from the proceeds of suits such as the case at bar. Based on this fact alone, the Court may infer that Dr. Barrett and Sampson are more likely to receive fees for testifying on behalf of NCAHF in future cases if the Plaintiff prevails in the instant action and thereby wins funds to enrich the litigation fund described by Dr. Barrett. It is apparent, therefore, that both men have a direct, personal financial interest in the outcome of this litigation. Based on all of these factors, Dr. Sampson and Dr. Barrett can be described as zealous advocates of the Plaintiff’s position, and therefore not neutral or dispassionate witnesses or experts. In light of these affiliations and their orientation, it can fairly be said that Drs. Barrett and Sampson are themselves the client, and therefore their testimony should be accorded little, if any, credibility on that basis as well."

(2) My second favorite - Stephen Barrett sued me, and let the case run 9 1/2 years without any action. A new Judge finally said "What the hell?" and Dismissed the case. In that case, Barrett has advanced the theory that famous author/scientist/humanitarian Hulda Regehr Clark PhD had hired me, Tim Bolen, to defame him, and that we all (a whole bunch of us) had conspired to do that.

During that case one of the Defendants, Ilena Rosenthal, filed a Motion to Dismiss the case, based on the California SLAPP statute. She won. Barrett, et al, Appealed, and that part of the case went on to the California Supreme Court, where Rosenthal won again. Barrett, and his co-plaintiffs, were tagged with over $500,000 in legal fees due Ilena - and most of that has never been paid. But here are some of the bogus legal theories Barrett was promoting:

(a) According to Barrett "Suing somebody was enough." He didn't need to proceed forward with the case. For him, it was enough that he put the lawsuit up on his website, telling everybody "he was suing..." He has done this more than once, with several different people, without actually pursuing beyond initial filings. More, he even posts cases that were thrown out, or outright dismissed, by the courts, if it suits his arguments. Here is the article on that:

(b) Barrett, in this case, had tried to rewrite Defamation law. He actually sued me, not for what I said, but for what he, Barrett, said I said. When confronted to show the so-called "defamatory material" he could not, ever, provide it. The Appeals Court decision made it clear that there were no defamatory statements, what-so-ever.

(c) Barrett tried to re-write internet law with this case. His notions were so asininely appalling to the general internet community that thirty (30) internet, and publishing, GIANTS filed Amicus Curie (Friend of the Court) Briefs on our side.

"Friend of the Court" Briefs, arguing in our favor, were provided by Amazon, the Electronic Frontier Foundation, EBay, the ACLU of Northern California, AOL, Microsoft, Yahoo, Google, ABC, Ask Jeeves, the Cable News Network, Compuserve, Earthlink, ESPN, Netscape, SBC Internet, Time Warner, Washington Post, Association for Competitive Technology, California Newspaper Publishers Association, Information Technology of America Association, Internet Commerce Coalition, National Cable and Telecommunications Association, Netchoice, NetCoalition, Newspaper Association of America, Online News Association, Online Publishers Association, Technet, and the United State Internet Service Providers Association."

There are a lot more - but, it would take too long. Suffice it to say that there is a pattern to Barrett.

Just one more thing - strongly related...

The AMA lost a major Federal lawsuit to the Chiropractors several years ago. It was called "Wilk v the American Medical Association." In the case decision:

"On September 25, 1987, Getzendanner issued her opinion that the AMA had violated Section 1, but not 2, of the Sherman Act, and that it had engaged in an unlawful conspiracy in restraint of trade "to contain and eliminate the chiropractic profession." (Wilk v. American Medical Ass'n, 671 F. Supp. 1465, N.D. Ill. 1987). She further opined that the "AMA had entered into a long history of illegal behavior". And, she then issued a permanent injunction against the AMA under Section 16 of the Clayton Act to prevent such future behavior."

"Following a decade of litigation, the Seventh Circuit Court upheld the ruling by U.S. District Court Judge Susan Getzendanner that the AMA had engaged in a "lengthy, systematic, successful and unlawful boycott" designed to restrict cooperation between MDs and chiropractors in order to eliminate the profession of chiropractic.^"

The AMA was forced to give up its attack unit. All of their records ended up in Stephen Barrett's basement.

Stay tuned.

Tim Bolen - Consumer Advocate


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