Schoolcraft v. The City Of New York et al

Filing 149

JOINT REPLY MEMORANDUM OF LAW in Support re: 135 MOTION to Quash Subpoena on Queens DA Richard Brown of Queens District Attorney Richard Brown. Reply MOL for letter-motion to limit contact with the media. Document filed by Lillian Aldana-Bernier, Isak Isakov, Jamaica Hospital Medical Center. (Radomisli, Gregory)

GJR/DA
667-82153

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

X
ADRIAN SCHOOLCRAFT,
Plaintiff,
-against10 CIV 6005(RWS)
THE CITY OF NEW YORK, DEPUTY CHIEF MICHAEL
MARINO, Tax Id. 873220, Individually and in his Official
Capacity, ASSISTANT CHIEF PATROL BOROUGH
BROOKLYN NORTH GERALD NELSON, Tax Id. 912370,
Individually and in his Official Capacity, DEPUTY
INSPECTOR STEVEN MAURIELLO, Tax Id. 895117,
Individually and in his Official Capacity CAPTAIN
THEODORE LAUTERBORN, Tax Id. 897840, Individually
and in his Official Capacity, LIEUTENANT JOSEPH GOFF,
Tax Id. 894025, Individually and in his Official Capacity, SGT.
FREDERICK SAWYER, Shield No. 2576, Individually and in
his Official Capacity, SERGEANT KURT DUNCAN, Shield
No. 2483, Individually and in his Official Capacity,
LIEUTENANT CHRISTOPHER BROSCHART, Tax Id.
915354, Individually and in his Official Capacity,
LIEUTENANT TIMOTHY CAUGHEY, Tax Id. 885374,
Individually and in his Official Capacity, SERGEANT
SHANTEL JAMES, Shield No. 3004, AND P.O.'s "JOHN
DOE" #1-50, Individually and in their Official Capacity (the
name John Doe being fictitious, as the true names are presently
unknown) (collectively referred to as "NYPD defendants"),
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK
ISAKOV, Individually and in his Official Capacity, DR.
LILIAN ALDANA-BERNIER, Individually and in her Official
Capacity and JAMAICA HOSPITAL MEDICAL CENTER
EMPLOYEE'S "JOHN DOE" # 1-50, Individually and in their
Official Capacity (the name John Doe being fictitious, as the
true names are presently unknown),
Defendants.

X
REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION
TO LIMIT PLAINTIFF'S AND HIS ATTORNEYS'CONTACT WITH THE MEDIA

Of Counsel:

20235221.DOC

Gregory J. Radomisli(GJR 2670)
Brian E. Lee(BEL 9495)
Bruce M. Brady(BMB 4816)

PRELIMINARY STATEMENT

This Reply Memorandum of Law is respectfully submitted on behalf of defendants
JAMAICA HOSPITAL MEDICAL CENTER, DR. ISAK ISAKOV and DR. LILIAN
ALDANA-BERNIER ("the medical defendants") in further support of their motion to limit
plaintiff's and his attorneys' contacts with the media.

ARGUMENT
POINT I
STATEMENTS BY THE PLAINTIFF AND HIS FATHER

1. The Nature and Extent of Publicity's Impact on the Jury Pool
The unique aspect of this case that distinguishes it from the cases plaintiffs counsel cites
in his Memorandum in Opposition to the medical defendants' motion is the advanced knowledge
we have regarding coming events. The plaintiffs father is specifically quoted as having said that
he and his son replaced his attorneys because they "want[ed] a more media-driven, public
airing," in contrast to his former attorneys who were litigating this case "in the traditional
manner-- through the courts" (Exhibit "A" attached to the 3/28/13 letter signed by Gregory J.
Radomisli)("3/28/13 Radomisli letter").
"A more media-driven, public airing." The only motive to engage in a "more mediadriven, public airing" pertaining to an event that happened 3 1/2 years ago is to influence the
public from which a jury will be drawn. The plaintiff and his father have divulged their entire
litigation strategy in that one sentence. Must the defendants wait until the plaintiff and the
attorneys he retained with the specific purpose of engaging in a "more media-driven, public
airing" have accomplished their goals? Is it not reasonable to take pre-emptive action when we
know how the plaintiff intends to proceed? It is not speculation to conclude that the plaintiff
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intends to taint the jury pool because he essentially conceded that he replaced his attorneys for
that very purpose. There is no indication in any of the cases plaintiffs counsel cites that the
parties against whom a gag order was sought telegraphed their intentions so clearly as the
plaintiff has done here.
In Jemine v. Cake Man Raven, Inc., 2009 U.S.Dist. LEXIS 92083 (E.D.N.Y. 2009),
Magistrate Marilyn Go denied the defendants' motion to impose a "gag order" on plaintiffs'
counsel. In addition to finding that the defendants had not provided any evidence that pretrial
publicity was prejudicial, the Court also noted that the defendants did not provide any evidence
"that any action contemplated in thefuture will compromise defendants'right to afair trial." Id.
at *2 (emphasis added). In this case, we are aware of plaintiffs strategy; we do not, however,
know the tactics by which it will be implemented, and it is those tactics that the medical
defendants seek to curtail.
In his Memorandum of Law in Opposition to the City defendants' motion to quash the
subpoena served on Queens District Attorney Richard A. Brown (document #143), plaintiffs
counsel recognizes the inherent danger of adverse publicity even well in advance of trial
(notwithstanding his citation to Gentile v. State Bar ofNevada, 501 U.S. 1030 (1991)) when he
complains that the District Attorney's report exonerating the police officers who went to the
plaintiffs house was "eagerly posted on the internet and made available to all, including the
potential jury pool"(p. 3). It is not reasonable to argue that a gap in time cannot have an adverse
effect on the defendants, but would on plaintiff.
The Court should also be aware of the patently unfair airing of one side to the case. The
medical defendants, even if they wanted to, could not respond to any press inquiries because of
patient confidentiality.
Although plaintiffs counsel complains that the medical defendants attached only two
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articles to their March 28, 2013 letter, plaintiffs counsel did not respond to outstanding
discovery demands requesting media communications (see the City defendants' Reply
Memorandum, document #146, at p. 7).

Given defendants' limited resources and time

constraints, defendants elected to submit the most recent, readily-available examples.

2. Availability of Other Measures
The "least restrictive" alternatives suggested by plaintiffs counsel does not prevent the
danger of prejudicing a jury, as plaintiffs counsel recognized in his Memorandum of Law in
Opposition to the City defendants' motion, given his concerns regarding Richard Brown's
statements. Furthermore, alternative measures would not address the medical defendants'
concerns regarding the effect plaintiff's and his attorneys' statements would have in other cases
in which the medical defendants may be parties.

3. Effectiveness of an Order to Prevent Jury Bias
In retrospect, the medical defendants recognize that the relief requested in the 3/28/13
Radomisli letter could have been worded more carefully. However, the relief requested was not
as broad as plaintiffs counsel implies. For example, there was never any suggestion that the
press be limited in its coverage of the case, or that public debate be halted.
Still, "public interest in particular litigation does not generate a public right of access to
all discovery materials." Dorsett v. County of Nassau, 2012 U.S.Dist. LEXIS 168073, *40
(E.D.N.Y. 2012). If this Court finds that plaintiff's pre-announced game plan is not sufficient to
impose a more general Order, then it is respectfully requested that this Court issue a protective
order pursuant to Rule 26 of the Federal Rules of Civil Procedure, prohibiting the plaintiff and
his attorneys be prohibited from disseminating information and documents (e.g., defendant
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deposition transcripts) learned or obtained in the course of discovery to outside parties. See Id.
A protective order does not run afoul of the First Amendment if it is entered "(1)on a showing of
good cause as required by Rule 26(c),(2) is limited to the context of pretrial civil discovery, and
(3) does not restrict the dissemination of the information if gained from other sources." Id. at
*31 (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199 (1984)); see also Rule
26(c)(A district court may limit discovery for good cause shown by making any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression or
undue expense). For the reasons discussed above, it is respectfully submitted that defendants
have met that burden.

POINT II
PLAINTIFF'S COUNSEL'S STATEMENTS

There is no question that attorney speech is prohibited if the speech would have a
"substantial likelihood of materially prejudicing an adjudicative proceeding." United States v.
Salameh, 992 F.2d 445, 447 (2d Cir. 1993)(quoting Gentile v. State Bar of Nevada, 111 S.Ct.
2720, 2745 (1991)). In United States v. Corbin, 620 F.Supp.2d 400(E.D.N.Y. 2009), the Court
recognized that, at least in the criminal context, a lawyer was under a duty "not to release.. .
non-public information or opinion. . . if there is a substantial likelihood that such dissemination
will interfere with a fair trial or otherwise prejudice the administration of justice." 620
F.Supp.2d at 409 (citing Southern/Eastern District of New York Local Criminal Rule 23.1)
(emphasis added). The Court quoted section (d) of the Rule which provides, in pertinent part,
that "Statements concerning the following subject matters presumptively involve a substantial
likelihood" of interference with a fair trial or prejudice the due administration of justice,
including "Any opinion as to the accused's guilt or innocence or as to the merits ofthe case or
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the evidence in the case." Id. at 410(emphasis added).
Attached as Exhibit "B" to the 3/28/13 Radomisli letter was an article in which one of
plaintiffs attorneys of record, Peter Gleason, comments on the plaintiffs treatment by Isak
Isakov, M.D. at Jamaica Hospital: 'This was supposed to be an independent medical
examination' said a lawyer for Schoolcraft, Peter Gleason. 'This doctor is not supposed to make
his decisions based on what the Police Department says.' That is precisely the issue at the heart
of plaintiffs case against the medical defendants.

Similarly, in the Village Voice article

submitted by the City codefendants, Mr. Gleason is quoted discussing "'what I characterize as
the kidnapping of Adrian Schoolcraft." Such comments are not proper and plaintiff's attorneys
should be restrained from making them.

CONCLUSION

For the foregoing reasons, it is respectfully requested that this Court grant defendants'
motion, together with such other and further relief as this Court deems just and proper.
Dated: New York, New York
April 8, 2013
Respectfully submitted,.
MARTIN CLEARWATER & BELL LLP

By:
Gregory. Radomisli(GJR 2670)
Attorneys for Defendant
JAMAICA HOSPITAL MEDICAL CENTER
220 East 42nd Street
New York, NY 10017
[phone]

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IVONE,DEVINE & JENSEN LLP

/
By:
Brian E. Lee(BEL 9495)
Attorneys for Defendant
ISAK ISAKOV,M.D.
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
[phone]

CALLAN KOSTER BRADY & BRENNAN LLP

By:
/5
Bruce Brady(BMB 4816)
Attorneys for Defendant
LILIAN ALDANA-BERNIER,M.D.
One Whitehall Street, 10t Floor
New York, New York 10004
[phone]

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