Opinion by Consumer Advocate Tim Bolen 

Thursday, October 15th, 2009  

On November 3rd, of the year 2000, quackbusters Stephen Barrett, Terry Polevoy, and Christopher Grell sued me, Tim Bolen, along with a whole host of people, claiming that world famous author and health humanitarian Hulda Regehr Clark PhD had hired me, Tim Bolen, to defame them - and that several others had conspired with Clark and myself to accomplish that.  After 8 and 1/2 years of no action to prove the case the judge threw it out, Dismissing it out of hand. You can read the entire article, the one that went around the world like wildfire, detailing Barrett, Polevoy, and Grell's huge humiliation, by clicking here..

The case wracked up huge legal bills for the Plaintiffs who also had to pay for the attorney fees for one of the Defendants, Ilena Rosenthal.  And, those bills came to over $500,000 US.  And, they are not yet paid.

More, Ilena's attorneys are getting very aggressive about the collection.  As well they should.  Last month, in Ontario, Canada Ilena's attorneys won a judgment against Plaintiff Terry Polevoy for $311,000 US plus three years back interest - totaling over $350,000 US.  They want payment, from Polevoy, right this minute.

And Polevoy is screeching like a cornered rat...

He is blaming Grell and Barrett for his problems.  He could be right - or not.  I'll let you read his lawsuit in a minute.

Background...

Early in the lawsuit against myself, and the others, Ilena Rosenthal, whom prior to the suit I had only met at a convention, hired her own attorney, Mark Goldowitz, an expert in California anti-SLAPP law, and proceeded to tear Barrett, Polevoy and Grell new body orifices, so to speak, while getting the case against her Dismissed.  The Court originally awarded her a Dismissal and attorney fees of around $33,000 US.

That would have been the end of it - had the threesome paid up.  But no, they filed an Appeal to the California Appeals Court, and then to the California Supreme Court - and lost, and lost , and lost, and lost, and lost , and lost...

By the end of 2006 they had wracked up a combined legal bill, owed to Ilena, of over $500,000 US.  Of course they didn't seem to want to pay up, so Ilena's attorneys began the process of seizing stuff.  But, since Pimple Doctor Polevoy lived in Canada they couldn't just go to his office and grab his supply of tweezers and pimple cream - they had to go through a legal process in Canada.  So, they did, and won - and now we hear the screeching.

Watching what actually happened among the original Plaintiffs, during the post case collection process, was sort of stunning.  Attorney Grell, one of the Plaintiffs, actually filed courtroom Motions to divvy up the owed money, and surprise-surprise, his Motions allocated the majority of the owed money to Polevoy in Canada.  Then he stopped representing Polevoy in mid-stream.  Yup.

I'm not surprised, neither should you be.  We are, as you know, dealing with quackbusters here.  I'm a little surprised they didn't actually eat each other.

Just to refresh your memory, let me insert a little excerpt from an earlier article...

"Yesterday, November 20th, 2006,  the California Supreme Court voted unanimously (all seven Justices) to slap down the latest "quackbuster"  attempt to use, and abuse, the US Court system to silence their critics.  The case, originally known as Barrett v. Clark, then for the appeals process renamed Barrett v. Rosenthal, began over five years ago when three individuals decided to sue "a room full of people." 

In the end, the GOOD GUYS, that's us, had drawn the support of some of the largest players on the internet, and more.

"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 States Internet Service Providers Association.

The case became a rallying point for American free speech and an opportunity to teach a lesson to those that would try, through intimidation, to stop Americans from exercising their free speech rights."

 

The New Case...

The new lawsuit, filed in Oakland, California, in the beginning was a Pro Se filing by Polevoy (representing himself).  A few months later Polevoy picked up an Oakland, CA, attorney firm, Michael L. Boli, to represent him.  Boli's website says:  "My practice emphasizes advising and representing clients in prosecuting claims against lawyers and law firms for legal malpractice, breach of fiduciary duties, malicious prosecution, and related claims and torts."

You can read the entire case by clicking here.  Then click on the words "Case Summary", and then enter the case number (RG09429719).  Click on the box, on the left, titled "Register of Actions."  Once the page appears you can read the individual pages either in JAVA Script or as a Tiff file.  Remember that there are two complaints filed - one by Polevoy originally, then a second amended complaint, by Polevoy's attorney.  Read them both.  You will gasp repeatedly.

Don't forget to read Grell's response.

In essence, Polevoy is claiming that Grell was representing himself and Stephen Barrett more than Polevoy, and that Grell, intentionally, did not tell him important things about the case, including the fact that Rosenthal's attorneys offered to drop the attorneys fees allocated to him, in an exchange for Polevoy dropping the Appeal to the California Supreme Court.  The Appeals Court had already decided that neither Grell nor Barrett had ever even possibly been defamed by Rosenthal. 

Below is language from the Amended Complaint.  I know there is a lot to read - but, believe me, you will, I guarantee, get a feel for the way quackbusters think and act - even to each other.  Pay close attention to item #3 below...  It is pretty clear, here, that Polevoy is threatening to "rat out" the top twenty quackbuster conspirators if they don't come up with the $350,000 he needs to pay off Ilena Rosenthal's lawyers... 

[LEGAL MALPRACTICE]

1. Plaintiff TERRY POLEVOY, M.D. (“POLEVOY”) is an American citizen who resides in Ontario, Canada. 

2. Defendant CHRISTOPHER GRELL (“GRELL”) is an attorney licensed to practice law in the State of California. On information and belief, GRELL resides in the County of Alameda, and GRELL’s principal place of business is located in Oakland, California, County of Alameda. 

3. Plaintiff presently does not know the identities or involvement of the Defendants sued herein as DOES 1 through 20, and therefore sues them as fictitious defendants. Plaintiff is informed and believes that each of the Doe defendants is responsible, in part, ,for the acts and occurrences alleged herein, for the damage and losses suffered by plaintiff herein, and is liable to plaintiff herein.

"4. On or before October 3. 2000, defendant GRELL undertook and agreed to represent plaintiff POLEVOY in an action for defamation against Ilena Rosenthal and several other defendants. GRELL also undertook and agreed to represent Stephen Barrett M.D. in the same action, as a co-plaintiff, seeking damages for defamation against Rosenthal and others.

5. GRELL also wanted to pursue his own personal claim against Rosenthal, and others, for alleged defamation. GRELL decided he too would be a co-plaintiff in the lawsuit for defamation.

6. GRELL did not prepare a written fee agreement. GRELL did not explain to POLEVOY the terms of GRELL’s engagement to represent POLEVOY in the defamation action, did not explain nor document what GRELL’s fee would be nor what POLEVOY’s obligations (if any) were to pay or reimburse costs advanced by GRELL.

7. In undertaking to jointly represent clients, an ethical and competent attorney should explain to his clients that there are potential conflicts of interest inherent in such multiple representation, including that the clients may have differing interests because each client’s damages may be different, the clients might not agree on how to share responsibility for payment of fees, costs, or costs awarded to their adversaries, or the clients might disagree on how to apportion any settlement or recovery, and each client might be more or less risk adverse than the other clients: one client might want to drop the case when another client may want to continue."

8. In undertaking to jointly represent clients in a lawsuit in which the attorney has a personal interest as a co-party plaintiff, an ethical and competent attorney should disclose in writing to his clients all of the following: that the attorney’s personal interests in the lawsuit potentially are adverse to his clients’ interests; that the attorney’s selfish interest as a co-plaintiff will or may taint the advice rendered by the conflicted attorney; that the clients should seek and obtain advice from an independent attorney about the conflicts and potential adverse interest of the conflicted attorney, before deciding whether to proceed with the conflicted representation; and should obtain the clients’ informed consent (in writing) to continue with the conflicted attorney and waives of the attorney’s conflicts.

9. In undertaking to represent clients as plaintiffs in an action in California for defamation that the attorney knows arises from publication of allegedly defamatory statements in postings on the internet, a reasonable and careful attorney should anticipate and foresee that the complaint would be challenged as seeking to infringe the publishers’, authors’ and disseminators’ first amendment rights of freedom of speech and association, and should foresee that the defendants likely would file special motions to strike the complaint under California Code of Civil Procedure Section 425.16. A reasonable and
competent attorney should know that under CCP Section 425.16, if the moving party succeeds, the plaintiffs are required to pay the prevailing party’s attorney’s fees. A reasonable and careful attorney should warn the clients and advise the clients about the risks, should take reasonable steps to assure that the clients -potential plaintiffs - understand and fully appreciate the potential adverse consequences of proceeding with suit: that the clients might be ordered to pay the adversaries’s attorneys fees. A reasonable and careful attorney should provide sufficient information to permit the clients to make a fully informed decision about the risks and potential benefits before proceeding with the lawsuit.
 

10. GRELL did not do any of those things alleged in Paragraphs 7 through 9 inclusive, that a reasonable, careful, ethical and competent attorney should have done. The failure to do such things was negligent, and were breaches of GRELL’s duties of reasonable care and an attorney’s ethical and fiduciary duties.

11. In October 2000, GRELL prepared and filed the complaint for defamation and other claims, Stephen Barrett, M.D. et al. V Hulda Clark, et al., Alameda County Superior Court No. C-833021 (hereinafter, “the underlying case”).

12. GRELL’s representation of plaintiff POLEVOY in the underlying case and related appeals continued through and until January 18,2008.

13. As was reasonably foreseeable and to be expected, Rosenthal moved to strike the complaint in the underlying case under the anti- SLAPP statute (C.C.P. section 425.16). The trial court granted Rosenthal’s special motion to strike, and held that only one of the statements GRELL’s complaint attributed to Rosenthal was potentially actionable and that one was made as a republication on the Internet and therefore was immunized from civil liability by section 230 of the federal Communications Decency Act.
 

14. As required by CCP Section 425.16 et seq., the underlying trial court entered an order awarding substantial prevailing party attorney fees to Rosenthal jointly and severally against POLEVOY, GRELL and BARRETT (the three plaintiffs in the underlying case).

15. Acting on his own behalf and for POLEVOY and Stephen Barrett, GRELL filed an appeal of the order granting Rosenthal’s special motion to strike the complaint and the resulting judgment awarding attorney’s fees to Rosenthal and against POLEVOY, GRELL and BARRETT.

16. In undertaking to represent clients as appellants in an appeal from an order granting a special motion to strike and awarding the respondent attorney’s fees under CCP Section 425.16, a reasonable and careful attorney should know and so advise the clients - appellants, that if the appeal were unsuccessful and the judgment upheld, the appellants would be required to pay the respondent’s attorney’s fees incurred for responding to the appeal. A reasonable and careful appellants’ attorney, in these circumstances, should make sure that the clients-appellants understand and appreciate the risks and potential adverse consequences [having to pay the adversary’s attorneys fees incurred on appeal], before proceeding with the appeal. A reasonable and careful appellants’ attorney also should advise
the clients to consider whether it were prudent to continue to pursue the respondent, where the attorney knew that respondent was not collectible and therefore would not be able to satisfy any judgment or award of damages that appellants might obtain against her.

17. GRELL did not do any of those things alleged in Paragraph 16, that a reasonable, careful, ethical and competent attorney should have done before proceeding with the appeal.

18. The Court of Appeal held that respondent Rosenthal’s potentially actionable statement about POLEVOY was not immunized by the federal Communications Decency Act, and reversed the judgment as to Polevoy. But the intermediate appellate court otherwise upheld the trial court’s nilings on respondent Rosenthal’s special motion to strike, and affirmed the judgment in favor of Rosenthal and against GRELL and Barrett.

19. The decision by the intermediate appellate court highlights why GRELL’s and Barrett’s selfish financial interests had become directly adverse to POLEVOY’s interests: with the judgment affirmed as to them, after remand, the trial court would award respondent her fees on appeal against GRELL and Barrett. But respondent could not recover nor be permitted to seek attorneys fees from POLEVOY, and POLEVOY’s defamation action against respondent Rosenthal could proceed. The appellate court’s revival of POLEVOY’s defamation claim, in effect, gave POLEVOY some leverage as to respondent, which GRELL, in breach of his fiduciary and ethical obligations, sought to exploit for his own selfish
interests and for his other client Barrett.

20. After the opinion of the Court of Appeal issued, but before the expiration of time for respondent or the appellants to file a petition for review with the California Supreme Court, respondent made an offer to defendant GRELL as follows: POLEVOY and respondent would sign mutual releases and POLEVOY’s claim against Rosenthal would be dismissed, each party to bear his or her won attorney’s fees and costs. Respondent’s attorney warned GRELL that if POLEVOY rejected respondent’s offer, respondent would prepare and file a petition for review with the California Supreme Court as to POLEVOY regarding the
intermediate appellate court’s rejection of respondent’s immunity under the federal Communications Decency Act.

21. GRELL believed that there was a very good chance that the Supreme Court would grant respondent’s petition for review.

22. A reasonable and careful lawyer representing the appellants at that stage should have known and advised the clients of the following: the weight of published authority was against the Court of Appeal’s holding that denied respondent immunity, therefore the judgment against POLEVOY might be reinstated and POLEVOY would also be liable (along with GRELL and Barrett) for the attorneys fees respondent incurred in appeal; that POLEVOY’s proof of damages caused by respondent Rosenthal’s defamatory publication would be problematic; that respondent Rosenthal was not collectible and likely judgment
proof; that because respondent Rosenthal was only a re-poster (had re-published but not authored the defamatory statements), any damages that POLEVOY might recover against respondent Rosenthal would be duplicative of damages POLEVOY might recover against the other defendant in the underlying case who had originated (authored) the defamatory statement; and that while respondent would be entitled to a large attorney fee award against POLEVOY under the anti-SLAPP statute if respondent prevailed, POLEVOY was not entitled to attorney fees even if he prevailed.

23. A reasonable, careful and ethical attorney should have known that the attorney’s potential conflict of interest had become an actual conflict, and that the attorney’s personal interest as an unsuccessful appellant was adverse to POLEVOY’s interest as a successful appellant, because it was in POLEVOY’s interest to accept respondent’s offer to put an end to POLEVOY’s litigation against respondent, but it was in GRELL’s and Barrett’s interest to use the leverage from POLEVOY’s superior position to secure a settlement with respondent as to GRELL and Barrett too. A reasonable careful and ethical attorney, in these circumstances, should have advised POLEVOY that he should consult independent legal counsel for advice about whether to accept respondent’s offer, because GRELL’s advice was tainted by self-interest and GRELL’s and Barrett’s interests were adverse to POLEVOY’s.

24. GRELL did not do any of the things that a reasonable, careful and ethical’ attorney should have done as alleged in Paragraphs 22 and 23 above. Instead, GRELL unilaterally rejected respondent’s offer without first advising POLEVOY of the offer and the potential ramifications of rejecting the offer.

25. As was anticipated and likely to occur, the California Supreme Court reversed the Court of Appeal’s holding in favor of POLEVOY, and ruled that the Communications Decency Act did immunize respondent Rosenthal for her re-posting of the defamatory statement, therefore affirming the trial court’s order and judgment which required POLEVOY to pay respondent’s attorneys fees.

26. After the remittitur issued and jurisdiction was returned to the underlying trial court, respondent Rosenthal applied for and was awarded additional attorney fees she had incurred on the appeals. As a result, an amended judgment was filed in which POLEVOY is solely liable for an award of $311,980.47 plus legal interest at the rate of 10% per annum from the date of the judgment on the award, December 26,2008.

27. Respondent Rosenthal has filed proceedings in Ontario, Canada in an effort to collect her judgment against POLEVOY. This proceeding has resulted POLEVOY having to incur further attorney’s fees and costs.

28. Defendant GRELL’s errors and omissions as alleged above, were a legal cause, and substantial factor iii causing, the award of attorneys fees and costs against POLEVOY, the entry of the amended judgment against POLEVOY, and respondent Rosenthal’s pursuit of collection proceedings against POLEVOY. If GRELL had acted as a competent, reasonable, and ethical attorney, had not breached his duties, and had provided POLEVOY the advice and disclosures which a reasonable careful and ethical attorney should have provided, as alleged above, POLEVOY would have accepted respondent Rosenthal’s offer of a mutual release, would have ended the litigation with Rosenthal and would not have become liable to Rosenthal for any award of fees or judgment.

29. Plaintiff did not know about the wrongful acts and omissions of defendant GRELL, until on or about April 2, 2008, a date within one year of the filing of the complaint herein.

Second Cause Of Action
[BREACH OF FIDUCIARY DUTIES]

30. Plaintiff refers to and incorporates by this reference the allegations of paragraphs 1 through 29 above as though the allegations were specifically set forth herein.

31. Defendant GRELL rejected the respondent’s offer of settlement and, without obtaining POLEVOY’s informed written consent, waiver of GRELL’s conflicts, and express settlement authority from POLEVOY, GRELL made a counter-demand that any settlement between POLEVOY and Rosenthal must include a settlement as to GRELL.

32. In GRELL’s response to Rosenthal's post-remittur motion for attorney fees respondent Rosenthal had incurred on appeal, GRELL argued that the attorney fees awarded should be apportioned among the three plaintiffs. GRELL did so without advising POLEVOY of the significance of such argument: all of the fees respondent Rosenthal incurred in the California Supreme Court were solely for the Communications Decency Act issue relating only to POLEVOY. As a result, the trial court did apportion the fee award and did order that POLEVOY be solely liable for $311,980.47 (plus interest).

33. In doing the things and committing the errors and omissions as alleged in Paragraphs 7 through 10,16,17,22 through 24,31 and 32, GRELL breached his ethical duties by having a personal interest in the subject matter of the lawsuit in which GRELL was attorney for POLEVOY, and breached his fiduciary duty of undivided loyalty owed to his client POLEVOY. GRELL tried to benefit himself at the expense of his client POLEVOY.  GRELL’s breaches of his ethical and fiduciary duties were a legal cause of, and substantial factors in causing, plaintiff POLEVOY to suffer anxiety, worry, and emotional
distress.

35. Defendant GRELL’s breaches of his ethical and fiduciary duties were a legal cause, and substantial factor in causing, the award of attorneys fees and costs against POLEVOY, the entry of the amended judgment against POLEVOY, and respondent Rosenthal’s pursuit of collection proceedings against POLEVOY. if GRELL had acted as a competent, reasonable, and ethical attorney, had not breached his duties, and had provided POLEVOY the advice and disclosures which a reasonable careful and ethical attorney should have provided, as alleged above, POLEVOY would have accepted respondent Rosenthal’s offer of a mutual release, would have ended the litigation with Rosenthal and would not have become liable to Rosenthal for any award of fees or judgment.

36. On information and belief, in rejecting the settlement offer and making a counter-proposal POLEVOY did not authorize for GRELL’s selfish personal benefit, and in seeking to apportion the attorney fees warded after the appeals, defendant GRELL was guilty of oppression, fraud, and malice, and engaged in despicable conduct, warranting an award of punitive and exemplary damages.

WHEREFORE, plaintiff prays for judgment against defendant as follows:
1. For compensatory damages according to proof;
2 For general damages according to proof;
3. For consequential damages according to proof;
4. For interest as allowed by law;
5. For punitive damages;
6. For an order that Grell must indemnify POLEVOY and hold him harmless from against the amended judgment in the underlying action
7. For costs of suit;
8. For attorney’s fees incurred in pursuing relief from GRELL’s breaches of fiduciary and ethical duties;
9. For such other and further relief as the Court may deem just and proper.
 

Dated: May 11, 2009
Michael L Boli
Attorney for Plaintiff
Terry Polevoy, M.D.
 

There were Twelve Affirmative Defenses offered by Grell, but the one below, I think, summarizes the rest.

"This Answering Defendant is informed and believes, and thereupon alleges that Plaintiffs own actions or omissions, including his negligence, carelessness and/or recklessness, were the sole proximate cause of the damages complained of, or in the alternative, his actions and/or omissions were a contributing factor in causing the Plaintiffs alleged damages, if any, and as such, any cause of action against this Defendant should be barred, or alternatively, any damages or recovery should be reduced in proportion to the actions, omissions, and/or a proportionate share of responsibility of the Plaintiff for causing and/or contributing to Plaintiffs alleged damages."