WOLK v. OLSON et al

Filing 29

TRANSCRIPT of Oral Argument held on 6/24/10, before Judge MCLAUGHLIN. Court Reporter/Transcriber RAYMOND WOLF. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 7/26/2010. Redacted Transcript Deadline set for 8/4/2010. Release of Transcript Restriction set for 10/4/2010. (rf, )

WOLK v. OLSON et al

Doc. 29

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ARTHUR ALAN WOLK, Plaintiff, vs. WALTER K. OLSON, ET AL., Defendants. ) ) ) ) ) ) ) ) )

09-CV-4001 Philadelphia, PA June 24, 2010

TRANSCRIPT OF ORAL ARGUMENT BEFORE THE HONORABLE MARY A. MCLAUGHLIN, UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiff: ANDREW J. DEFALCO, ESQUIRE PAUL R. ROSEN, ESQUIRE Spector, Gadon & Rosen, P.C. Seven Penn Center 7th Floor 1635 Market Street Philadelphia, Pennsylvania 19103 SIOBHAN K. COLE, ESQUIRE MICHAEL N. ONUFRAK, ESQUIRE White and Williams, LLP 1650 Market Street One Liberty Place Suite 1800 Philadelphia, Pennsylvania 19103 RAYMOND WOLF DIANA DOMAN TRANSCRIBING P. O. Box 129 Gibbsboro, New Jersey 08026 Off: [phone] Fax: [phone] E-mail: [e-mail]

For the Defendants:

Audio Operator: Transcribed by:

Proceedings recorded by electronic sound recording; transcript produced by transcription service.

Dockets.Justia.com

2 INDEX ARGUMENT: By: By: Mr. Onufrak Mr. Rosen 4, 30, 70 10, 41

Colloquy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be here. presiding. THE COURT: Good morning everyone. (The following was held in open court at 9:30 a.m.) CLERK: -- the Honorable Mary A. McLaughlin

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Please be seated.

Nice to sell you all again.

Although I had hoped that we could So, it's always

resolve it, but obviously that didn't happen. nice to see you. Is this Mr. Wolk? It is, Your Honor. Yes, it is, Your Honor.

COUNSEL: COUNSEL: THE COURT: MR. WOLK:

Oh, I thought I recognized you. Yes. Good morning, sir. How are you, Your Honor? I didn't know whether you were going to

THE COURT: MR. WOLK: THE COURT:

Nice to see you. MR. WOLK: THE COURT: Same here. Okay. Mr. Rosen, of course, I know. I know I met you

And, who's the gentleman in the middle again? before, sir. MR. DEFALCO: THE COURT: MR. DEFALCO: THE COURT:

Andrew DeFalco, Your Honor. Say your last name for me. Andrew DeFalco. DeFalco. Very good. And, of course, Mr. You And, --

Onufrak and I are old friends. know, I'm kidding.

I mean -- I don't mean.

I only mean that in the courtroom.

Colloquy / Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and, who is with you, sir? MR. ONUFRAK: THE COURT: MS. COLE: THE COURT: This is Soibhan K. Cole, Your Honor. And, good morning to you, ma'am. Good morning. Okay. All right, counsel. Of course,

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I've read the papers and -- and the cases.

It's interesting --

this whole issue of the discovery rule is, I find, very interesting, so I have enjoyed it. And, of course, the -- the

failure to state a claim, you know, is always interesting in defamation cases. So, Mr. Onufrak, it is your motion. Why don't we do

the statute of limitations first, you know, and then the -- the failure to state a claim. And, why don't we just start sort of

first with does the discovery rule apply in this kind of a -- I guess what some of the cases are calling -- the cases that Mr. Rosen doesn't like -- media public defamation. So, do you want to start on that? And, you can stay

there, come to the podium, wherever you want to be. MR. ONUFRAK: Your Honor, I think it's very clear

that the discovery rule does not apply in a media publication. So, if it were a book, I think it would be an easy decision for the Court -THE COURT: But, are there Pennsylvania state cases

on books -- I mean, you know, on anything that would -- that would support that?

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ONUFRAK: Your Honor, the -- the two District

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Court opinions we cited from -THE COURT: MR. ONUFRAK: Oh, yes. Uh-huh.

-- from 1995 and 1999, the

Bradford case, which was by Judge Dalzell, and the Barrett case, which was by Judge Van Antwerpen, I think analyze that pretty thorough. And, they clearly drew a distinction between

a media publication on the one hand and a conversation or a -a statement of some kind on the other. When a book is written or a magazine is published or a newspaper article appears or a web blog goes on the internet, there's -- there's no dispute about when the publication occurred. So, there -- the discovery rule cannot apply. THE COURT: Well, I -- am, I'm not saying I -- I But, I

disagree with you and -- or that it doesn't make sense.

guess what I'm just trying to note is -- is there -- and, I know -- I read those two cases, then I read the Smith case, and then Judge Fullam has a recent case that I can't pronounce the name of which -- that appear to conclude as you urge this Court to conclude. But, I was just wondering, are there any Pennsylvania -- I mean, of course, -- and, I know Crouse -- what is it Fine Crouse -- I've read those as well. But, is there any And,

Pennsylvania case that -- that sort of acknowledges that? I'm not saying there isn't.

I'm -- I'm just wondering -- that

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 acknowledges that the discovery rule doesn't apply in every case. Mr. Rosen says it applies in every case. MR. ONUFRAK: I don't think there's any way it

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applies to every case, every statute of limitations, as he urges the Court to do based on medical malpractice cases essentially, although one is a promissory estoppel case. THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: Uh-huh. None are libel and slander cases. Uh-huh. I don't think there is a case that is

as clear as -- as, you know, what Your Honor is -- is seeking. But, if the Court reads Bradford and Barrett together, -- and, then there is a new case, Your Honor, which I don't know if the Court found, which was decided on May 14th, 2010. This is It's

Giordano, G-I-O-R-D-A-N-O, v. Claudio, C-L-A-U-D-I-O. another District Court opinion by Judge Padova.

Here you had Temple University professors in a dispute over the authorship of a paper. And, one of them --

there are many, many claims back and forth and there were counterclaims. One of them claimed that an e-mail sent by a --

a fellow professor named Tanaka to the committee that was investigating the authorship libeled one party. Judge Padova did not dismiss the case under Rule 12B(6) and held that the discovery rule might apply. And, the

reason I think he did that is because the Tanaka e-mail was

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 just that. It was an e-mail which is more akin to a

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conversation or an oral statement that a web blog that went out to the entire world on the internet. So, that case

procedurally is against our position today but, as a practical matter, illustrates the analysis that the District Courts undertake. So, that distinction has to be upheld for the statute of limitations to have any meaning. If you look at the facts

that are alleged in the complaint, Mr. Wolk alleges that Overlawyered.com was a very popular website. all the time, 9,000 people a day went on it. went on it. It was reviewed Potential clients

Many lawyers who might refer him cases went on it.

Furthermore, he alleges that Mr. Olson, who administered the website, and Mr. Frank, who actually wrote the blog, that they might have a grudge against him, that they had written against him before. So, even if the discovery rule did

apply, if the standard is reasonable diligence -- Mr. Rosen went to great lengths in his brief to say it's not all pervasive diligence. diligence. But, if the standard were reasonable diligence, certainly Mr. Wolk would have monitored this very important blogging website which had wronged him before from time to time. And, as the Court knows, you can set up on the internet So, let's assume it's reasonable

little reminders --

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 right. MR. ONUFRAK: THE COURT: MR. ONUFRAK: But, I mean, -I'll accept that one can. Mr. Wolk seemingly was not on the I mean, that's -- that's what he And, you know, let's -- leaving THE COURT: Well, actually, I don't.

8 But, that's all

internet before April 2009. would have the Court believe.

the issue of plausibility aside, let's accept that that's generally true, that he wasn't well versed in the internet. put all these facts in his complaint. And, if -- if you take them at face value, as you must, and then apply the law, the law -- the law most strongly in his favor, he -- he had a duty to be on guard. THE COURT: MR. ONUFRAK: Uh-huh. This is more than two years after this He

-- this was on the internet available for everyone. Apparently, no one brought it to his attention in the meantime. Your Honor, I would also point out that it was widely reported in the media and was on the front page of The Legal a month or two ago that Mr. Wolk represented a client in Common Pleas Court and won an $89M verdict. So, although we're not

reaching the issue of damages today, and I don't -- probably we never will -- or won't for a long time -- it's difficult to say what -- what impact this really -- really would have had. But, --

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We -THE COURT: MR. ONUFRAK: Okay. We concentrated only on the But, -THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: Uh-huh. -- that -- that's our position on -Right. -- the discovery rule. If you'd like

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me to go further, I will. THE COURT: Well, -- no, that -- that's fine. And, I

-- obviously I understand that that's your position.

I guess

I'm just going back again to the -- to the first question of whether the discovery rule should apply. and I'm wondering if either of you have. What I'm wondering is there -- obviously it's Pennsylvania law that I'm going to follow. But, is there -I have not done this,

are there any Courts around the country, other than our District Courts that are dealing with this question of, you know, media public defamation to see whether they're applying a discovery rule or whether they're taking, you know, the blanket rule that -- that apparently some of our -- our Judges have done? MR. ONUFRAK: Not that I'm aware of, Your Honor.

Pennsylvania law in the brief. THE COURT: MR. ONUFRAK:

Sure, understandable. -- we could look that up if --

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: understandable. Okay. No, it's -- that's fine. That's

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Well, let me -- Mr. Rosen, let me hear

from you, sir, especially on this first question of whether the discovery rule applies in a case like this where you're talking about this widespread internet dissemination. MR. ROSEN: All right, Your Honor. We have to first

look at the period of time, 1998, 1999, when the two cases plaintiff is rely -- defendants are relying on was enacted. When you read through Judge Dalzell's opinion, he first takes the position that the discovery rule doesn't apply anyway, except in medical mal cases. THE COURT: MR. ROSEN: Uh-huh. And, in fact, the case right after him

that relies on him actually says we don't apply the discovery rule to anything except personal injury torts. So, the mind

set of the Judge opening that -- those cases up made it absolutely clear that they're not even dealing with the discovery rule. Then they just -- without dealing with the discovery rule, they then look at the actual facts of the case. And,

Judge Dalzell's opinion, which everybody relies upon, is just compelling as a matter of fact and equity that this woman shouldn't be able to bring the case. She's on the front page of The National Star, 1200 pounds, lost 900 pounds, quoted extensively in the Star and

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it's distributed to every single solitary place in her neighborhood. She said she had it on the 8th of August and

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waited 367 days before she brought the claim. Your Honor, I'm not necessarily certain that it was the media issue that drove that case. case is when does it start? uniform rule of publications. What was driving that

What drove that case is the And, what Dalzell was dealing

with -- I don't mean to call him by short -- but, what Judge Dalzell was dealing with is when do we start the actual statute? THE COURT: Right. There was a big chunk of it.

But, he did then go on -MR. ROSEN: THE COURT: MR. ROSEN: Then he then goes into media, yes. Yeah. And, he says that, under these

circumstances, with media, the Pennsylvania Supreme Court would hold -THE COURT: MR. ROSEN: Uh-huh. -- this way. So, when you look at those We

cases, we don't look at those cases in an internet setting.

look at those cases in an actual newspaper and then a book sent in to somebody's home area. And, when we look at those cases, you have to look at them in the context, because they didn't really have any Supreme Court Pennsylvania cases to rely on. None of them

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 theory. cited to one Supreme Court case except the cases that said at that time that it doesn't apply. And, then they use the Pennsylvania Supreme Court cases, the -- what I would call all vigilance standard. they apply a standard that is no longer the standard in Pennsylvania, they apply the fact that the discovery rule So,

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doesn't apply, and then they don't have any Pennsylvania cases support it. Without me going into it -- and, I can go into it

at length -- but, that's generally what they say. Then you get the Pennsylvania Supreme Court coming in and starting brand new on the discovery rule with the first case of Crouse. Crouse is the open door to the case of we

don't do and reject all vigilance where a person has to go out and look for it, has to be -- something has to be done. And, they come up with a theory called the awakening Something has to awaken you. And, I think that, if

you read -- if you read the comp -- the Crouse case, it just -it has to be something that opens the door. And, in Crouse, the Court says, "Reasonable diligence is precisely that, a reasonable effort to discover the cause of an injury after the facts and circumstances present the case. The Court has long held there are a few facts which diligence cannot discover. But there must be some reason to awaken

inquiry and direct diligence in the channel in which it will be successful. This is what is meant by reasonable diligence."

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Wolk. pieces.

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The Supreme Court pronounces the awakening theory in 2000 -- in the year 2000. awaken. mean? The Pennsylvania Supreme Court says

Then you have to take -- and, what does awaken theory Awaken theory means it has to be brought to your

attention. Now, you have a blog on the internet of one million And, Mr. Wolk has made it absolutely clear that he A lot of people -- I don't look at

doesn't look at himself. myself in Google.

A lot of people don't look at Google.

He comes back from a seminar where a Judge says juries look at Google, go look at it. oh, my God. He looks at it and goes,

And, Your Honor, I brought the Google search so I'm going

the Court can see exactly what we're talking about. to hand it up. THE COURT: MR. ROSEN: Sure. (Pause). Thank you.

Now, here's a Google search, Arthur Alan

And, you'll see the third thing down -- the third one

down, "Teledyne Industries by Ted Frank, April 6, 2007." THE COURT: MR. ROSEN: attorney", okay? THE COURT: MR. ROSEN: Uh-huh. Now, the Judge writing a scathing opinion Uh-huh. "Judge writes scathing opinion about an

about the attorney isn't the content of the Frank article. That's the content of the Herrmann article that he's reporting

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 diligence? out. on.

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But, when you open up the door and read the article, it's

scathing about Arthur Wolk independent of Teledyne. But, before I get to that -- because you asked to the statute of limitations, so I'm not going to go into content. THE COURT: MR. ROSEN: Uh-huh. But, this is what he learns. He doesn't He

wait one minute after he learns -- he is awake, Your Honor. met the Crouse test, which is repeated again in Fine and repeated again in Wilson.

And, he says, at that moment, you're And, he writes to

going to be sued, get that off the internet. them within days.

And, the letter that is attached to our

complaint -- he just got awoke -- awoke -- but, he just got up and realized that it's there. Now, at that moment in time, does he exercise Within a week. Within a -- he sends the letter

A Mr. DeForest, who is in Teledyne, gets a copy of these And, he's the defense counsel, and he writes to the

letters.

owner of the company saying Mr. Wolk did nothing wrong, and here's the certification in Teledyne that he is clean, that we warrant it, that he did nothing unethical. keep it up. So, what's going on here is that Wolk has followed the Pennsylvania law. The question is is that the law that It And, they still

should apply to all cases or just to some hybrid group?

doesn't apply -- it applies to media if you get a newspaper in

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in Wilson. your -- in your door, and it applies to books. Does it apply

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to a blog that -- I mean, the question is are we going to start to pick and choose? And, the Supreme Court of Pennsylvania has answered that question. The Supreme Court has said, -- I'm going to

point you out in Fine -- "Today we hold it is not relevant to the discovery rule's application whether or not the prescribed period has expired. The discovery rule applies to toll the

statute of limitations in any case." THE COURT: MR. ROSEN: Uh-huh. And, that's repeated by the Supreme Court

And, the reason they say that, Your Honor, is

because the statute uses the word "accrued" -- the very statute uses the word "accrued". And, they are saying that the

discovery rule applies in any case because it's a creature not of common law, but it's a statutory interpretation. And, under those circumstances, anybody relying on the statute of limitations of Pennsylvania gets the discovery rule as a matter of law. And, it not only said that, but it is

-- it is repeated in Wilson, which actually gets rid of the all -- actually -- both -- from Crouse, Fine, and Wilson -- they all get rid of the all vigilance rule. an awakening event. They then say, -- and, I'm reading from the last Supreme Court on this -- "Some of these inconsistencies are They say there must be

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 readily resolved. Most cases apply a reasonable diligent And,

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requirement as opposed to an all vigilance one.

reasonable diligence as described in Fine is the approved formulation and the appropriate test. "Although the discovery rule evolved out of the common law, it is now appropriate regarded as an application of statutory construction arising out of the interpretation of the concept of accrual in a cause of action." The Court then goes

on to say that it applies to every case relying on the statute. THE COURT: Mr. Rosen, if it had been ten years that

had gone by and Mr. Wolk first saw it, would -- would it still be the same result? MR. ROSEN: Your Honor, I don't think that you can Both

apply equities that -- you have to give that to the jury.

Wilson, Fine, and Crouse -- Crouse reversed a Superior Court that took it away from the jury. jury. Fine made it mandatory for a

Your question is not for you. THE COURT: MR. ROSEN: Uh-huh. A jury would then say was his

reasonableness correct for ten years not to know about it? They would hear the facts of Mr. Wolk, they would hear why he waited ten years, and a jury would determine if both Wilson, Fine, and Crouse -THE COURT: MR. ROSEN: Uh-huh. -- mandate a jury to determine that,

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 unless no reasonable mind could disagree -THE COURT: Right. I'm -- I'm looking -- I guess

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this is Fine actually. portion of it.

Mr. Onufrak cited -- or quoted from a I -- I hear you, But, --

And, I guess a couple things.

and I have read those cases, and I'll read them again. and, I guess this is Fine that I'm reading from.

"As the discovery rule has developed, the salient point giving rise to its application is the inability of the injured, despite the exercise of reasonable diligence to know that he's injured." mal -MR. ROSEN: THE COURT: Of course. -- they don't know that he's -- someone I mean, the -- obviously the typical med

doesn't know, but they've -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: Well, there's a lot of --- that the doctor --- those typicals. -- committed medical malpractice. I mean, I agree that it's a malpractice. But,

Yes, you might not know a sponge was in your stomach. the -THE COURT: MR. ROSEN: Sure.

But, the point is promissory estoppel

cases it's been applied to. THE COURT: Oh, clearly. And, -- and, Courts -- in

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fact, one of the Courts that Mr. Onufrak relies on distinguishes -- I guess it's Smith, is it? MR. ROSEN: THE COURT: Smith.

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Yeah, that talks about a situation where

it's a private conversation that would not have been overheard by the victim of the defamation. But, I guess the question

becomes, if you start -- if this whole discovery rule came about because of latent injuries, doesn't Mr. Onufrak have a good point as does Judge Dalzell and Judge -- is it Buckwalter -- who was the other Judge? MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: Van Art -Van Antwerpen. Antwerpen. Antwerpen -- that -- that it really --

you know, it's not sort of analytically, theoretically really applicable when you've got a media kind of public alleged defamation that we have here that -- the discovery rule came about to solve a very different issue from what we have here. MR. ROSEN: Well, the only problem is that you're

reaching a hypothetical that is totally outside the facts of this case in order to come to the question as to whether or not you should apply the law. THE COURT: MR. ROSEN: Uh-huh. The law has been pronounced by three

Supreme Court cases that --

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one thing. THE COURT: case, and they do -MR. ROSEN: THE COURT: MR. ROSEN: No, Your Honor. -- say other things. It doesn't matter that they weren't -Well, -- but, none of them were a media

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they -- if that were case, -THE COURT: MR. ROSEN: Uh-huh. -- if they -- if we have to wait until

the Supreme Court decides media, then -- then the Court cannot rule against our client by putting into play cases that didn't -- that had a different test at that time at the Supreme Court, which was all vigilance. THE COURT: MR. ROSEN: THE COURT: Uh-huh. And, -Well, those other case -- let me just say They're

Those other cases are not binding on me.

only as persuasive -- if they're persuasive, I may follow them. But, they're not binding obviously. Court cases. There's other District

And, of course, the Supreme Court cases are.

But, even taking them as they are, the question is do they really -- and, I'm asking -- you know, I mean, I'm open to both sides. Do they really foreclose this -- me from finding And, you obviously

that the discovery rule is inapplicable?

think they do because, at some point they say each case or every case.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROSEN: THE COURT: MR. ROSEN: You have to apply the awaken theory. Uh-huh. You have to apply what Fine held,

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Wilson held, and Crouse held that there's got to be some event. Now, if it comes out during the deposition of Mr. Wolk that there was something that would have brought that to his attention, they could come in here on summary judgment. THE COURT: MR. ROSEN: Uh-huh. The fact of the matter is a motion to

dismiss -- no case cited ever touched a motion to dismiss. Every one was on a full factual record. Bradford, Barrett,

Smith -- every case, even the cases at the Supreme -- of -- in Pennsylvania were on a full record, not preliminary objections or motions to dismiss. This Court is at a point in time where theory shouldn't be applied unless no reasonable mind could disagree. THE COURT: MR. ROSEN: Uh-huh. The Court is in a situation where it has That doesn't take

no choice but to allow this case to develop. Mr. Onufrak out of the picture.

If he wants to try and come

back in at a later time and say I took Mr. Wolk's deposition and, after taking it, he admitted that, you know something, he should have followed -- he knew these people were critical of him. He should have looked and saw what was going on. And, his response to us to that is I never look at my

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 computer for any of that stuff. I don't follow blogs. It's

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not my respon -- then the Court has to determine whether or not that's a fair response to take him out of the case if the Supreme Court hasn't ruled that it's all cases in the interim. THE COURT: MR. ROSEN: Uh-huh. The point is that, when you look at the

Supreme Court ruling, it says every statute of limitations gets this criteria of reasonable awaken theory -THE COURT: MR. ROSEN: Uh-huh. -- pronounced in Crouse, followed in Since the Supreme Court

Fine, and followed again in Wilson.

has not made an exception, this Court shouldn't create an exception which the Supreme Court hasn't created based on cases that didn't have that theory in it at that time and are age old. THE COURT: MR. ROSEN: Uh-huh. On top of which this is a blog. Your

Honor, we're not talking about Star magazine on the front page. Everyone in the book -- they're talking about the person was quoted. In the Bradford case, she gave interviews. There was

nothing in this case to awaken Mr. Wolk. If they called him and said what happened here, if they had called his client, if they had called Teledyne's lawyers, if they had called anybody that -- to get the accuracy of those facts, hey, we got a problem, because maybe they would

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have told him. But, they sat in silence and stealth and just put this on a blog out there to a group of their subscribers who are anti-Wolk. They're not going to call -- oh, guess what,

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Arthur -- yes, we got something to nail you with on a motion to disqualify, and I'm warning you about it. waiting to use it against him. Their subscribers are not on his side of the fence. It's the defense industry. THE COURT: MR. ROSEN: They're not here -They're sitting

All right. -- to help Arthur. Okay. So, the fact

of the matter is it's a blog.

Now, you're going to apply law

that went to a newspaper to every thing in her district where she was absolutely aware of and a news -- and a book where they were quoted to a situation where he had no knowledge. that's the facts in the complaint. THE COURT: MR. ROSEN: Uh-huh. And, if those facts are the facts that And,

are in this complaint at this time, the Court must accept it and must say at this point in time this Court cannot say that the Supreme Court is applying the statute to everything except a newspaper or an internet case. THE COURT: MR. ROSEN: Uh-huh. If the Court is going to push it into

internet, it's going to have to push it into a blog situation

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in which everyone is now responsible to do the all vigilance test. If you apply this, you've just changed the law in

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Pennsylvania. Mr. Wolk then has to sit at home every day and put up -- and search the internet to see if anybody is writing about his cases or himself, because you just changed the law. isn't something that awakens him. THE COURT: how many -MR. ROSEN: THE COURT: of how many -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: Just kidding. You know, if it's ten years -Right. I mean, is there any limit -- because you I can't get you off that question? I'm so sorry. I'm back to the question It

He must now be all vigilant.

But, I guess I'm back to my question of

said, no matter what it is, you have to give it to the jury. And, I understand you're saying that on -- what we have here isn't enough -- in this complaint -- you know, what Mr. Onufrak relies on. But, is there no limit, as a matter of law, to say,

hey, after ten years, we're not going to -- this case cannot continue on. MR. ROSEN: I'm going to tell you, Your Honor, that

-- I remember reading before coming in here there -- under the old cases -- under the old all vigilance, there was a child

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that sued for sexual harassment after the statute of limitations had expired, after she was 18. And, the Court applied the all vigilance -- because that was 15 or 20 years out, and applied the all vigilance rule. I think that's Dalrymple, which -THE COURT: MR. ROSEN: Oh, the Dalrymple --

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-- and applied -- applied the statute to

take her rights away because that was the Pennsylvania Supreme Court at that time. I can't tell you that there isn't a factual situation that would allow that. If Wolk was out of the country for five

years and came back and found this out and wanted to run for office, whether or not he could bring the claim. What I'm And, I

saying is I think that those cases are fact intensive. don't want to say that there is a mandatory period -THE COURT: MR. ROSEN: Uh-huh.

-- that automatically should be applied.

I think that there might be grounds that a person wasn't aware of it. I'm not talking about the Coma (phonetic) cases. What

I'm saying is that there might be factual situations. THE COURT: Well, of course. I mean, somebody could I

not ever go to a blog and not be aware of it for ten years. mean, that would -- I mean, -MR. ROSEN: THE COURT: Your Honor, I'm going to --

-- I'm sure there are people who don't do

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 blogs, -MR. ROSEN: THE COURT: MR. ROSEN: When we --- who don't look at the internet.

25

When we tried the AFSCME case years ago,

it was on the front page of every newspaper in America for weeks. And, when we picked a jury, the first even jurors never I mean, like, the fact of the matter is that

heard of AFSCME.

there are many people that are not triggered that way. THE COURT: MR. ROSEN: Uh-huh. And, the Supreme Court has made it clear,

in my judgment, that you apply the test that is an awakening test. It is unfair to somebody who didn't sleep in their

rights, but as a normal person going about their normal day to day life and not awakened. And, they did apply it in -- in

estoppel cases, they did apply it personal injury cases, but they said it was the statute that called for it, not the case. If they had said we treat a personal injury case that they wouldn't have discovered the sponge, all right, we got an argument here. But, that's not the language of the cases. Uh-huh. The language of the cases are culled on Once you say accrual and once we adopt

THE COURT: MR. ROSEN: the statute itself.

Fine and Crouse of the awakening theory, if you are awakened, your duty is to disclose it, to do it. THE COURT: Uh-huh.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something? MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: No. No? Let me just -What is -MR. ROSEN:

26

Now, their -- in this -- in all the cases

that have happened before this, every one of those people learned about it within the statutory period. I mean, like,

whether you got Bradford -- they all learned about it, but then they sat on their rights. In fact, even Smith, in that

conversation learned about it six months before the statute expired. THE COURT: MR. ROSEN: Uh-huh. In those cases, they still apply the I mean, like, -- but, the point is

discovery rule to the jury.

Mr. Wolk never learned about it -THE COURT: Wasn't he awakened by -- wasn't there

some prior history between Mr. Wolk and -MR. ROSEN: THE COURT: Yes, we --- either these authors or the blog or

-- say what the prior history was. Yeah, what are -- what do you allege -In our complaint --- in your complaint? In our complaint, -Yeah. Right.

-- Mr. Wolk, in 2000 -- I believe it was

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2002 -THE COURT: MR. ROSEN: Uh-huh.

27

-- found out that someone wrote about him

-- because he was called to comment -- wrote about him. THE COURT: MR. ROSEN: Yes. And, he sued them in defamation and

extracted from them an apology and a retraction. THE COURT: MR. ROSEN: retraction. Uh-huh. And, they published a -- an apology and a

And, we cite to it in our complaint -Right. -- at page 6 in paragraph 25. This was And,

THE COURT: MR. ROSEN:

where Wolk had secured a $480M verdict against Cessna.

then the -- this AVweb wrote this highly critical article of Arthur Wolk, and he sued them for defamation. In settlement of

the suit for defamation, he paid a char -- Wolk didn't want any money. They made a payment to charity -THE COURT: MR. ROSEN: Uh-huh. -- and a full retraction and an apology. Walter Olson,

And, he -- they had to send it to his clients. the owner of Over -THE COURT: MR. ROSEN: Overlawyered.

-- Overlawyered -- or one of the people And, they were

-- said what happened to free speech here?

highly critical of Wolk extracting an apology --

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. ROSEN: From somebody else.

28

-- from somebody else and wrote about it.

And, they wrote about it in 2 -- in -- on September 20th, 2002, and they're critical of Mr. Wolk. you know, -THE COURT: MR. ROSEN: Uh-huh. -- and get an apology. Where do these Look, he'll just sue anyone,

people have the -- the right under the First Amendment to say what they want to say and so forth. But, what I'm saying is it

shows that -- they end it watch out for these type of lawyers, you know what I mean, like -THE COURT: MR. ROSEN: Uh-huh. So, they're critical of Mr. Wolk in the

settlement of another case with respect to obtaining a public apology. Now, that doesn't make Mr. Wolk in any form have to

sit around for the next six to eight years seeing what's on their blog. They have a subscription, and they send it to him. Uh-huh. And, they send it to people that are The fact of the matter is

THE COURT: MR. ROSEN: subscribers.

He's not a subscriber.

it's also clear that Mr. Wolk wasn't aware of Olson's blog in 2002. We found out about this as part of -THE COURT: MR. ROSEN: Right. -- the case -- I mean, in doing our This isn't

research going forward looking for malice.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 something he was aware of at that time.

29 It -- he -- we put it

in our complaint because we looked up these people as to why they're writing on Mr. Wolk. THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: the malice standard -THE COURT: MR. ROSEN: Uh-huh. -- and for the fact that they are Oh, I see. So, this is --

This is something --- something that you --- we learned -After the fact. -- after -- way after the fact. I see. We -- but, we -- we have to put it in for

supported by the aircraft industry, and the fact that they are coming after Wolk and writing to their constituents that are against Wolk. We just put it in. There was nothing in this

complaint that indicated that we had any knowledge of this blog in 2002. THE COURT: So, -- so, Mr. Wolk had knowledge of the

person he -- that entity that he sued, -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: Yes. -- but not -AVweb. -- Mr. Olson.

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about him. THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: floor, sir. Gotcha. Yes. No, I understand. Yes. I hear you. Mr. Onufrak, you have the MR. ROSEN: THE COURT: Correct. Okay. All right. Okay. Let me hear

30

from Mr. Onufrak on -- on all these issues. sorry, Mr. Rosen. MR. ROSEN: THE COURT: MR. ROSEN:

And, -- oh, I'm

Yeah -- no, I -- yes, he -I'll get back to you. He came after AVweb for what they wrote

Talk to me about those three Supreme Court cases.

Are you asking me to not follow them? MR. ONUFRAK: THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: No, Your Honor. Okay. Those cases -Tell me about it. -- simply are -- are not applicable to They're -- they're medical

a libel and slander case. malpractice cases.

And, I think even Mr. Rosen would concede

-- I think he did concede -- that, you know, that's one -those kinds of cases are where the discovery rule has emanated from in Pennsylvania jurisprudence.

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

31

But, doesn't one of them use the language

that Mr. Rosen is referring to of every or each -MR. ONUFRAK: THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: malpractice cases. THE COURT: MR. ONUFRAK: Uh-huh. It doesn't mean every case that's, you I think the Well, it -Every, I guess. -- it does -- it does say all cases. Uh-huh. But, I think what it means is all

know, ever -- ever going to be in Pennsylvania.

reasoning of the two District Court Judges, Judge Van Antwerpen and Dalzell from the nineties -- and, it seems to be echoed by Judge Padova in the recent cases -THE COURT: MR. ONUFRAK: Uh-huh. -- is very clear. If it's a media If it were

publication, it's -- it's one year no matter what.

a conversation, an e-mail, if there was whispering around the Union League that Mr. Wolk had been in this Teledyne litigation and he didn't hear about it for six months, or if it was a private letter, like this Tanaka e-mail in Judge Padova's case only went to a committee, and then maybe there had to be a FOIA request to get it out or a -- a petition to that committee to get it out or even discovery in the case. And, this Tanaka e-mail is actually on an amended

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. counterclaim. In other words, if the case itself had been

32

pending for a couple of years and naturally one year passed in the meantime. If there was an allegation in the complaint that somehow Walter Olson and Ted Frank had hid this or that it had gone to a -- a select e-mail group to -- to get at Arthur Alan Wolk -- if it went to the aviation attorneys, if -- if it went -- as apparently it did in one of the other defamation cases Mr. Wolk filed -- where it went to all defense counsel who would face off -- but, there -- there's no allegation like that. To establish the harm to Mr. Wolk they had -- they admit it was worldwide, it was a media, it was known to everyone, apparently everyone except Mr. Wolk. Your Honor, if

you look at paragraph 25 on page 6, which Mr. Rosen was quoting from -THE COURT: Let me get it. MR. ONUFRAK: THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: Okay. Just bear with me. I have it

(Pause). As I said, paragraph 25 -25. -- on page 6. Okay. I'm with you.

It says, "Wolk has been a favorite Now,

target of criticism and ridicule from Overlawyered.com."

Mr. Rosen says, well, that's not really true, they put that in

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 later to satisfy the actual malice standard.

33 But, leaving that

aside, it then goes on to recite a very complicated resolution of another Wolk libel suit against a website, AVweb, which apparently concluded in 2002 since Walter Olson wrote a blog about it in 2002. Now, I'm certainly willing to accept Mr. Rosen's representation that the 2002 blog wasn't known to him when he drafted the complaint until recently. However, paragraph 25

proves that Mr. Wolk knew about the internet and had the habit of looking at websites that might bring up his name -- in this case, AVweb -- since he had a law suit settled that Walter Olson commented on in 2002. Your Honor, these statutes of limitations have to have some meaning. One year for libel cases is -- is pretty

standard in most states, and it's been the -- the statute of limitations -- a short statute of limitations in Pennsylvania for a long time. I think maybe one reason underlying it is if -- if you haven't heard about it in a year, how bad could it really be and could it be actionable anyway? And, this distinction

that the other District Courts have made over the years -- some before these Supreme Court cases, which were medical malpractice cases in the main, and at least one after -- is -is a consistent distinction that this Court must maintain. THE COURT: Uh-huh. Now, Mr. Rosen states -- and, I

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- I think he's correct -- that, if the discovery rule does

34

apply, I have not been faced, have I, or presented with a case that found it in applicable on a motion to dismiss? In other

words, ruled as a matter of law on a motion to dismiss that the discovery rule, although applicable, was not met in that particular case. MR. ONUFRAK: Your Honor, it's true that the District

Court decisions which we rely on from the nineties are summary judgment cases. He's -- he's right about that. But, it's also

true that these are unique facts that, you know, have been pleaded in this case. And, it seems very clear that, if these

facts are accepted, that there's just no question that, with reasonable diligence, he -- he could have discovered it -THE COURT: Just tick them off for me -- don't --

don't read everything, but just tick off what the facts are that you believe are sufficient. MR. ONUFRAK: THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: THE COURT: MR. ONUFRAK: Yes. Okay. It -- it -It's pretty much paragraph 25? Yes. Okay. And, -- and, also he has a long history This -- this paragraph 25?

of suing to protect his rights through defamation actions, -THE COURT: Uh-huh.

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But, -THE COURT: MR. ONUFRAK: THE COURT: have been answered. That's fine. But, I -No, go ahead. MR. ONUFRAK: Teledyne case, -THE COURT: MR. ONUFRAK: about to being with. THE COURT: MR. ONUFRAK: Uh-huh. Uh-huh. Uh-huh. -- not the least of which was the

35

-- which is what Ted Frank was blogging

So, if -- and, also what Mr. Rosen said

-- that, as soon as he found it -- found out about it in this case, he -- he threatened to sue. THE COURT: MR. ONUFRAK: Uh-huh. So, there's question he's a vigilant

man, that he has a lot of resources at his disposal, and that, if he had just Googled himself once in a while, he would have known about it. There's no allegation that we tried to hide

it, or that it was private, or that it was in the nature of a conversation. Your Honor, we're under Iqbal and Twombly now. THE COURT: We're going to go to the fail -- oh,

we're still doing the statute of limitations? MR. ONUFRAK: Well, I was going to segue to that.

I'm -- I'm -- my questions

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ONUFRAK:

36

So, you know, the standard, contrary to

what Mr. Rosen has said, is -- is whether or not some of these allegations are plausible. So, the allegation that, you know,

Ted Frank, is a shill for -- and Walter Olson is a shill for the aviation industry and so forth -- you know, those do not have to be accepted by the Court. always -THE COURT: But, I don't know who they are. I mean, So, I The one thing that I have

I -- I never heard of them before I got the complaint.

don't -- I don't know whether they're implausible or plausible, because I don't know them. MR. ONUFRAK: So, how does that cut? I mean, --

Well, if the publication on its face is

-- is merely on behalf of Overlawyered.com, -THE COURT: MR. ONUFRAK: Uh-huh. -- it -- it has no endorsement by the One of Mr.

aviation industry, nor anything to do with it.

Wolk's other defamation cases, which is referred to in paragraph 25, was against an aviation blog, AVweb. this Overlawyered.com has nothing to do with it. He goes to great lengths to say that these gentlemen, Olson and Frank, are critical of the legal system. really the crux of the blog. That's This --

It was critical not of Mr. Wolk,

but of Judge Carnes for having not scrutinized this settlement more closely. But, I -- I just wanted to say one word about -Sure.

THE COURT:

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ONUFRAK: -- Iqbal and Twombly.

37 And, I know the

Court is very familiar with those cases. THE COURT: MR. ONUFRAK: We all are, yes. Yes. But, I really think what drove

the Supreme Court in both of those cases was letting a case survive a motion to dismiss when it really did not look like a plausible case. unloosed. And, in the Twombly case, it was going to be a class against all -- all the phone companies. And, the amount of And, then for the discovery hounds to be

electronic discovery that would have taken place going back many, many years for many different companies was -- was going to be millions and millions of dollars. And, -- and, the Court

just wouldn't allow that case to go ahead -- I think, for that reason, or that -- certainly that was one of the reasons -without more evidence up front in the -- in the complaint. If you look at Justice Stevens' dissent, he wanted the Court somehow just to allow them to take the deposition of the CEO who made a statement before a committee or in the newspaper that a certain business practice, you know, might be smart. But, it would be good for competition, and he didn't

want that. Even Justice Stevens was not going to allow that case to go forward when it -- it looked like it was such -- in such great doubt not plausible. He would only have allowed that

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 much discovery. And, then in the Iqbal case, the problems with discovery would have been national security and so forth. the discovery problems would not be insubstantial. I don't

38

Here

mean to suggest they were beyond the scale of those cases. But, we're going to have to get the record in the Teledyne case. there. And, I'm sure there's attorney client issues There is

There's protective order issues there.

attorneys who were sued at other law firms all over the place. And, that's -- that's going to be a major project. Then we're going to have to look at the underlying Taylor case. there. And, there's going to be attorney client issues

There's -- that document originally was sealed and, of And, you know,

course, was unsealed for the Teledyne case.

that's an airplane crash where there's mounds and mounds of discovery. And, as you know, Mr. Wolk, when he has been accused -- well, when he was sanctioned by the Court, he passed the buck to an associate in this office. And, that person, you

know, may have to be found and deposed. So, it's not an insubstantial amount of discovery that -- that's going to take place on a case that is clearly time barred and on a case that comes from a very short blog commenting fairly on an important issue of public concern, which is how Courts resolve litigation.

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

39

The other thing I want the Court to know is that this case originally was filed as a summons action in -- in May of 2009. With the summons came deposition notices for David

Nieporent, Ted Frank, and Walter Olson with voluminous document requests to take place in Mr. Rosen's office a few days later. When I got the case, fortunately I was able to work out a stipulation with Mr. Rosen. And, those -- that discovery

was put on hold, and we brought the issue before Judge Jacqueline Allen. And, that raised the interesting issue could

-- under what circumstances can there be discovery when the summons is filed, but not the complaint. And, that was briefed, and Judge Allen ruled in favor of the defendants on that case. forward. The complaint was then filed, and that was -- started the time table for removal, and the case was removed. Immediately, after it was removed -- or, I think, even before -- we got the same deposition notices, interrogatories, document requests. We then filed a petition to stay discovery. The motion to dismiss was So, the discovery did not go

A pretrial conference was held. held.

Discov -- settlement was attempted, but was not

successful. So, if you look at how the case has gone so far discovery wise, -- which, you know, none has taken place, but you can see what -- what they're looking for. And, you combine

Onufrak - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

40

that with Exhibit B, which is Mr. Wolk's threatening e-mail to Ted Frank, you can see what the plaintiffs really want, which is to intimidate, just to teach them a lesson, which is to stop them from doing it again. They only want -- this is really the case today is to get by this motion to dismiss so that they can take discovery and so that they can -- I can think of no other word -- torment these individuals. And, I think, while it's not akin to the reasoning behind Iqbal and Twombly, it's a similar concern that this Court should bear in mind. There's going to be a lot of

discovery, which Mr. Wolk is not going to like, which I don't relish doing. But, those two very big cases are going to have

to be unraveled and discovery is going to have to be taken. THE COURT: Let me -- let me ask you. Couldn't we I

have discovery on the statute of limitations argument only? mean, what -- what would that entail? less discovery, I assume. MR. ONUFRAK: THE COURT: Deposing Mr. Wolk. Mr. Rosen, what do you think of that? That would entail much

And, then we could at least deal with that and, you know, avoid full scale discovery in a situation where -- again, I have -you know, I don't know what the answer is going to be -- but where it may not ultimately be necessary if the statute has been exceeded.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROSEN: I'm going to comment -- first, I -- I'm

41

going to answer that question. THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: Sure. But, I have to just respond a moment. Oh, of course you can, yeah. I -- you asked counsel whether or not the

holdings in Fine, Crouse, and Wilson apply only to -- apply to all cases. He says, no, only personal injury cases. You know,

Crouse was a contract case. THE COURT: MR. ROSEN: Uh-huh. Breach of contract, promissory estoppel. In

I want you to -- I want to read to Your Honor two things. Fine, he lays out the law in Pennsylvania.

And, he lays it out

on page -- which is page 9 of the opinion, but page 850 of the cite. And, he talks about here's the law in Pennsylvania on "A Pennsylvania cause of action arises

statute of limitations.

when the plaintiff could, at first, maintained the action as a successful action", citing history. Then we have stated that "The statute of limitations begins to run as soon as the right to institute and maintain the suit arises." Then he says, "Mistake, misunderstanding, or

a lack of knowledge in themselves do not toll the running of the statute. "Once a cause of action has accrued and the prescribed statutory has run, and injured party is barred from

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bringing the suit. There are exceptions that act to toll the

42

running of the statute of limitations.

One, the discovery rule

and the doctrine of fraudulent concealment are such exceptions. As both are implicated in this appeal, we will discuss them seriatim." It takes the statutory theory that the statute of limitations in all of Pennsylvania is governed by these criteria and applies the discovery rule to the statute of limitations generally throughout Pennsylvania, and then says it's the awaken test, one. Two, I want to reply to the complaint. to look at paragraph 25. He asked you

But, -- I had it in front of me a "Thus,

second ago, and I want you to look at paragraph 26.

despite AVweb's admission that the facts it printed were inaccurate, Overlawyered.com took it upon itself to criticize AVweb's retraction in Wolk. "This only demonstrates the animosity and malice directed towards Wolk by Olson, Frank, Nieporent, and Overlawyered. We are citing it not for the fact of -- the fact

that he's aware of it and monitors it, but to the fact that this is the way they conduct themselves, not to anything else." Mr. Wolk -- if -- whenever we get to discovery -and, I'm not -THE COURT: MR. ROSEN: Uh-huh. We'll talk about how someone sent him

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: me -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: No, that --- take one moment to -No problem. -- hear what's going on. (Pause). Counsel, I have a verdict in this case. But, I would cases. that art -- that website, and it woke -- and awoken him in accordance with the law.

43

But, it doesn't indicate that we were

doing anything at all to watch that. Let's talk about Twombly for a moment. There is no

such law that, if people don't like the discovery that's about to happen after you file, Judges should throw it out on motions to dismiss. That's just -- just no law. Uh-huh. If that's the case, we would have no

THE COURT: MR. ROSEN:

The fact of the matter is, if discovery undertakes However, here -I have a jury

here, it would undertake it fine. THE COURT: deliberating, -MR. ROSEN: THE COURT: Oh, good.

I'm sorry, Mr. Rosen.

-- and this is my deputy.

So, just let

It's a civil rights case -- it's a civil case. like to take the verdict. MR. ROSEN:

The jury has, you know, --

Sure.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fine. table. THE COURT: -- been here for a day and a half or so

44

-- well, more than a day and a half, -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: Can we --- all week. -- leave our stuff on the table? Sure. You can leave your stuff on the

If you don't mind just stepping back, -MR. ROSEN: THE COURT: No problem. -- we'll get the lawyers in. That's

Nobody will -- will look at them.

We'll get the lawyers

in, and then I'll take that verdict. MR. ROSEN: THE COURT: Not a problem.

Thank you.

Thank you very much.

(Recess from 10:19 a.m. until 10:35 a.m.) THE COURT: -- funny how it is always a big deal to It's amazing. All

take a verdict in any case, you know. right, everybody. MR. ROSEN: continue, Your Honor. THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: Of course. All right. Go ahead, Mr. -Let me --- Rosen. All right.

I -- I will fin -- I will

What I wanted to do -- I was on -- before

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -- in answering your question, I just wanted to continue at least responding before we got into that discovery issue. THE COURT: MR. ROSEN: Sure.

45

One thing that I -- that was important to

point out is that, when I -- I also read from Fine with respect to the fact of the standard in all statute of limitations cases, and that it's been confirmed in Wilson and Crouse. Crouse also holds -- after it talks about the awakening of the injury (sic) and the direct diligence to channel in which it would be successful -- which are the facts that are in our complaint, how he was awakened. It's important to note that the complaint points out that he never heard of Overlawyered.com until he went on his Google. And, he only went on his Google because he went to a So, those are the facts at this point in

seminar and did that. time. THE COURT: MR. ROSEN:

Uh-huh. Crouse also says, "Although reasonable

diligence is an objective rather than subjective standard, it is sufficiently flexible to take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question. "A plaintiff's actions must be evaluated, therefore, to determine whether he exhibited those qualities of attention, knowledge, intelligence, and judgment, which society requires

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of its members for the protection of their own interests and the interests of others.

46

In other words, a party is not under

an absolute duty to discover the cause of his injury. "Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case." he goes on to say, "an awakening event brings that." Now, with that as the background, the three cases also held, in determining whether or not a statute of limitations exists or doesn't exist under the discovery rule, -- not whether a person missed a deadline -THE COURT: MR. ROSEN: jury question. Uh-huh. -- but under the discovery rule, it is a And, then

You have to determine credibility, facts, It is a jury question.

circumstances as a reasonable person. THE COURT: matter of -MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT: MR. ROSEN: THE COURT:

Except it does say that sometimes it's a

Well, Your Honor, -Yeah. -- if reasonable minds -Yeah. -- couldn't disagree -Yeah, yeah. I will -- I will accept that. Sure.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. MR. ROSEN: right, -MR. ROSEN: THE COURT: -- disagree -MR. ROSEN: THE COURT: If reasonable minds could -Which is always the issue thought,

47

-- I mean, on whether something is a jury

But, they're -- we're going to be dealing

in issues that -- that really are an issue of Mr. Wolk's intelligence, his ability to determine something, his reasonableness, should he have watched it, should he have gone on the blog, what kind of computer person is he? Those

questions are questions really, Your Honor, that are not Court driven. They're jury driven. And, in fact, Wilson, Crouse, and Fine specifically say, "Fine also rejects the determination concerning the plaintiff's awareness of the injury and its cause of -- is fact intensive and, therefore, is a question for the jury to decide." Wilson says it, Crouse says it, and Fine says it. So that assume for a moment that the Court wants to take discovery -- and, I'm going to -THE COURT: MR. ROSEN: Uh-huh. It doesn't pay, because we're going to

have to give it to the jury anyway when we're in the discovery rule, one. THE COURT: Uh-huh.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROSEN: Two, and more important than anything

48

else, this -- the second Mr. Wolk learned about this -- the moment he learned about it, he was all over them. They cited

to his letter, take this off the internet, I didn't -- I wasn't sanctioned, I wasn't -- I was never -- all those facts he says are fact intensive. He carbon copies Teledyne lawyers on that letter. Teledyne's lawyers then write back to Overlawyered.com. And,

when writing back to Overlawyered.com, they point out, "Dear Mr. Coleman, I have been receiving copies of various e-mails between Mr. Arthur Wolk and you and your client regarding a web article entitled "Arthur Alan Wolk, Teledyne Industries". "Although I was not involved in the underlying Taylor case in the Northern Dis -- I represented the various Teledyne related entities in the suit of Arthur Wolk versus Teledyne Industries in the Eastern District of Pennsylvania." Your

Honor, that's the case that Mr. Herrmann cited to that started this whole article, okay? THE COURT: MR. ROSEN: Uh-huh. And, then he says, "This is to confirm

that, as part of the resolution of that suit in the Eastern District of Pennsylvania", -- that was the one before Judge Shapiro where she let out those two -- she let out Baker & Botts and the lawyer who sent the order only to their clients. THE COURT: I don't know it, but I --

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROSEN: THE COURT: MR. ROSEN: Okay. -- I understand. Okay.

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It says, "Mr. Wolk and my clients

agree that, in the event any claims or challenges of unprofessional conduct are made against Mr. Wolk based, in whole or in part, on the Taylor decision" -- which is what this article does -- "or his actions in the Taylor case," -- which is what this article does -- "Mr. Wolk may state that he and Teledyne related entities, who are my clients, agreed without any party admitting any fault or liability to move forward as if the Taylor decisions had never been issued and do not agree that the Taylor decisions or Mr. Wolk's actions in the Taylor case would support a basis for disqualification or any negative action against Mr. Wolk in response to such claims or challenge -- or challenges of unprofessional conduct in -- in the negative action against Mr. Wolk in response to such claims or challenges of unprofessional conduct in the foregoing situations of claims or challenges as part of the Taylor decisions if anything is made against Mr. Wolk." Now, attached is the stipulation from the -- from Judge Shapiro's case, which was allowed to make public -THE COURT: MR. ROSEN: Okay. -- which was signed by every lawyer that

appeared before Judge Carnes, including Baker & Botts who were let out on summary judgment and the other lawyer. Every single

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2009. solitary lawyer certified that Mr. Wolk was not sanctioned -had no sanctional conduct, did nothing wrong, no violation of

50

ethics, no unprofessional conduct in connection with his entire conduct, which is contrary to the exact article documenting that that article is placing Overlawyered on notice that they're putting out information about Arthur Wolk that is false. THE COURT: MR. ROSEN: Uh-huh. They get this, Your Honor, on April 16th, The article is still up.

We file May -- May 2009.

Every day that -THE COURT: MR. ROSEN: MR. DEFALCO: MR. ROSEN: THE COURT: Is the article still up? On the web. They will not take it down.

That was done yesterday. This was done yesterday. Oh, that -- I was -- for some reason I

thought it was earlier. MR. ROSEN: one earlier. But, -Okay. -- this is the way it appears. So, while No, it -- we had one -- I showed -- I had

THE COURT: MR. ROSEN:

they're saying let's do some discovery or the Court is suggesting -- we are being tormented every day by them by false information on the web that my client sold out his client in connection with getting a lower settlement for the client so he

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 could profit in his pocket in doing additional work. Whatever that fact is out there is being -- we've placed in the complaint, yes, he had a $90M verdict because he's quality. THE COURT: MR. ROSEN: Okay. That's an old inventory case. But, it's inventory.

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Right now

that -- about 13 years old. trial on inventory.

He goes to

Of course, he's quality.

But, the fact of

the matter is we placed in our complaint the fact that there's been accidents in which he had the case and then, all of a sudden, it went to another lawyer, because there isn't a lawyer in America that's fighting for Arthur for a case that isn't putting it in front of him and say -- here's a -- here's an article about how Arthur sold out his client, took less of a settlement to protect himself, and not even a Federal Judge will look into it. like, -THE COURT: MR. ROSEN: that every day. Uh-huh. -- the fact of the matter is he's facing How can you trust this guy? I mean,

So, every day of delay we try to resolve this.

And, as the Court is -- the only resolution we wanted was it off the internet. The fact of the matter is we didn't settle. Uh-huh. We're going to trial. We want a -- we

THE COURT: MR. ROSEN:

want expedited discovery.

Everything they want, we can do.

Rosen - Argument 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. ROSEN: Uh-huh. -We're not afraid of the discovery.

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The fact of the matter is the discovery doesn't help us resolve the issue of statute of limitations. If you follow If you follow

Pennsylvania law, it's a jury question.

Pennsylvania law, it applies to all statutory cases under the Pennsylvania statute. The fact is that, if they want to go to summary judgment on the case at the end and they want to try this again, let them go. THE COURT: MR. ROSEN: But, we've got to get this case going. Uh-huh. We can't delay it. If you do just It'll only get to

discovery on the statute, it doesn't help.

the -- whether or not you, as a matter of law, will decide credibility issues on Arthur Wolk. under the law. It goes to the jury. That's not going to happen

So, as far as I'm concerned, the only thing that matters is that this Court