Don’t pee on my leg and tell me it’s raining

Please. Don’t.

That’s the title of the book by Judge Judy that apparently led to her extremely popular TV “arbitration” show, presented as if it were a small-claims court. As an actual judge, Judy Sheindlin, was known as outspoken, but on the TV series, she takes this to extremes. She’s smart, and she’s quick, fully “self-expressed.”

A comment by Sam, here, pointed to Youtube of her work, which I watched.

I think we might get somewhere if they let this
Judge handle Rossi VS Darden.

I dive into the world of Judge Judy, new to me. Continue reading “Don’t pee on my leg and tell me it’s raining”

She’s underpaid or understaffed

The judge. Faced with three motions to dismiss, and not having the time to review all the claimed “undisputed facts,” she punted.

It took me months of study on this case to come to the point where I might be able to see through the fog. I never finished the study pages, though I may still work on them for historical value, but at this point it is moot. An appeal of a dismissed MSJ is not likely, and that it might even be possible is controversial.

The judge wrote,

The parties’ voluminous, competing briefing and submissions plainly show the record is brimming over with disputed issues of material fact. Indeed, the Court is hard-pressed to locate any material facts on which the parties agree. Disputed factual issues are for the jury to determine.

In reviewing the MSJs, Oppositions, and Replies, what I found, way too commonly, was fact, clear from the record, that was nevertheless “disputed,” ending up as a matter to be adjudicated, when the asserted fact in the Motion was not at all in dispute, but rather possible implications.

Continue reading “She’s underpaid or understaffed”

Physician, heal thyself

This is just too funny to pass up. On LENR Forum, Zeus46 wrote:

maryyugo wrote:

I used to know an old doctor, now dead, who actually met and treated Papp for [redacted]. He said Papp was a flaming nut case (not his words– he said [redacted]).

Some interesting bits and pieces from California’s Confidentiality of Medical Information Act:

“CMIA prohibits a health care provider, health care service plan, or contractor from disclosing medical information regarding a patient, enrollee, or subscriber without first obtaining an authorization, except as specified.”

Note: I have redacted the medical information. (Not entirely, a doctor who treats someone and calls him a “flaming nut case,” would probably be violating HIPPA and CMIA, and repeating this could still be a violation.) I’m not a California resident, but just to make the point. CMIA prohibits any person from releasing private medical information, not only the providers listed. There are sources warning the media, for example, about publishing such information without permission. I’m reminded of the physician who accessed the medical information, particularly death certificate information, for Atkins, the cardiologist who developed the Atkins Diet, and then released it for political purposes (and it was misleading). 

Zeus46 went on to quote many relevant regulations and issues. Without doing extensive legal research myself, it looks like, on the face, the regulations set up sanctions for physicians, in particular, but also some other individuals or entities, for disclosing information similar to what maryyugo has posted.

It is possible that the original disclosure by Papp’s doctor was not a violation of regulations at the time, but this does not excuse maryyugo from the present violation. It is obvious to me that Zeus46 knows the real-life identity of maryyugo, it is not difficult to find, since he outed himself years ago, but continued using the “anonymous” identity. The real person, I’d give it more than 99% probability, is a physician licensed in California.

It appears that “Mary” is so eager to present classic debunkery, and so eager to prove it with “evidence,” that he completely ignores legal risk from his profession.

Zeus46 did not actually reveal that maryyugo is a physician, so he did not violate LENR Forum rules against outing or doxxing.


Update

I had assumed, as did others, that the CMIA rules applied to health care providers. They do, but they also apply to everyone. From LENR Forum:

THHuxleynew wrote:

maryyugo wrote:

I’m surprised you can put your clothes on by yourself in the morning. You can, can’t you? PS: dead people can’t sue for damages nor can anyone on the behalf. Not to mention that I am not releasing any of Papp’s sordid records because I never saw any. I am not even reporting facts about Papp! I am simply reporting an anecdote about what someone told me. Hear say. Also you seem to have lost track and wandered into the wrong thread. Anyway sue me. Give it a try. I am terrified.

FWIW, Abd’s comment on this related not to anyone suing you (ridiculous) but to professional disciplinary action for which no doubt the rules are different. However, I have no idea what is your profession, nor any of the details here, so what he suggested remains for me highly speculative.

I would assume that Zeus46 knows Mary Yugo’s identity. It is trivial to find. I have confirmed the identity and “Mary” has revealed, at various times, personal history that matches that of the identified person. One will see people, in various fora, calling Mary by the real name. Mary denies it, but the real person could trivially torpedo this, if different.

I was concerned that the comment here might not be from Mary, but could be a troll. This has definitely happened in the past. So I checked. The information I have as admin here is consistent with the known identification; more than that I will not say. Absent necessity, I will respect user rights.

Mary Yugo is a licensed physician living in California. He has a history of debunking (and has done real investigation, qualifying him as a skeptic in some cases). However, he is also highly opinionated and knee-jerk contemptuous of others who might be pointing something out that he does not understand, and this sequence shows it.

The risk is low, but Mary has not understood the risk. I do not know how CMIA is enforced, there might be no precedent, but the situation Mary describes is of a physician treating Papp revealing what would now be illegal to reveal (I don’t know about then). According to Mary, that physician is deceased, but CMIA also prohibits any person from revealing such information. And any person may file a report. If there are no provable actual damages, the potential fine is limited to $2500.

Mary claims it’s “hearsay.” Yes, it is. Hearsay about medical information, and it is contrary to CMIA regulations to repeat that. Theoretically, to anyone. So far, the walls don’t have ears, and in a case like this, my guess is that the courts would rule that CMIA does not trump ordinary freedom of private speech. But this was not private speech.

It was also unnecessary and irrelevant in context. Mary is a gossip.

There are resemblances, to be sure, between Papp and Rossi. And as to what is involved here, an alleged physician’s diagnosis, that merely demonstrates what was already known: Papp was not necessarily, himself, a reliable witness, and from the submarine incident, may have been capable of staging an elaborate fraud. The diagnosis, however, does not show that the Papp engines did not work, and from what I’ve seen, there is sufficient evidence that they did, in fact, work, to keep this affair in the realm of mystery. Mallove wrote an extensive article on this, and I consider some of his expressed opinions there unfortunate and not yet supported by reliable evidence, but … there are some things that we may never know. Or maybe the “Papp effect” will be confirmed in some way. What I have seen in this line is quite unconvincing.

We also know, then, that Rossi is an unreliable witness and is capable of arranging an elaborate fraud (the fake customer!). We know that Rossi was accused of various frauds in Italy; the ultimate disposition of all that remains a bit unclear to me. Rossi has claimed that all charges were dismissed and all fines refunded, but I have not seen that conclusion from any independent investigator. However, all that does not demonstrate that there is no Rossi Effect.

One statement that IH has made has raised concern for me. From the joint stipulation, IH introduces their “Statement of the Case” with:

Plaintiffs claim to have invented a technology called the “E-Cat” capable of violating the law of conservation of energy by producing far more energy than it consumes.

First of all, the plaintiffs do not claim that the E-Cat is capable of “violating the law of conservation of energy,” and the concept of “consuming” energy is scientifically defective. What is referred to is input energy, and, yes, it is claimed that the E-Cat generates more heat than could be produced by input energy. However, this does not violate conservation of energy if there is a fuel.

As a trivial example, it takes energy to detonate a stick of dynamite, but there is no violation of energy conservation just because the explosion releases far more heat than is generated by the blasting cap that triggers it. Energy “input” must include the potential energy of all system components.

Rossi did not originally provide any theoretical basis for his claims, but he was generally working with LENR, so the general claim would be that there is a nuclear transformation releasing the energy.

If the Industrial Heat investors did not think this possible, without violating conservation of energy, they had no business investing in such a claim. It sometimes occurs that skeptics dismiss LENR as involving “perpetual motion machines.” It would not be that. The energy available from a nuclear fuel is limited. It is not “free energy.” It would not be “perpetual.”

That introductory comment was just plain wrong, because Rossi doesn’t make that claim, and a working Rossi device would not violate conservation of energy. Conservation of energy is an aspect of the first law of thermodynamics, and the IH experts have pointed to violations, but that was in the testing, as to the behavior of steam, not about the claimed effect itself, which would presumably be nuclear in origin. Have the attorneys misunderstood?

If possible, this should be corrected. LENR should not be on trial in Florida.

About transcripts of federal court hearings

Sometimes I have seen claims on lenr-forum.com that the public can obtain transcripts of court hearings by paying for them. I may have said this myself, here, because the filings imply this. However, during the 90 day period before hearing transcripts are published to PACER, it appears that only parties and attorneys may obtain transcripts, they are limited:

During the 90-day period (which may be extended by the court), access to the transcript in CM/ECF is restricted to court staff, public terminal users, attorneys of record or parties who have purchased the transcript from the court reporter/transcriber, and other persons as directed by the court (e.g., appellate attorneys). Also, during this time, parties may redact personal identifiers. After the 90-day period has ended, the filed transcript will be available for inspection and copying in the clerk’s office and for download from the court’s CM/ECF system through the judiciary’s PACER system.

Just as any member of the public may attend the actual hearings, any member of the public may use the “public terminal” in the court to read the transcript.

There are two obvious concerns. First of all, a hearing transcript may reveal personal information, that could be redacted. This is covered by Privacy Policy for Electronic Case Files. The court will not publish the files, other than on the public terminal — which does not allow printing, but, ah, google glass? — ; however, the concerns are to have been addressed within 31 days of the filing of the transcript. Even short of that, it is unclear that publication by an attorney (i.e., providing the transcript to media), if any private data has been redacted, would be a violation. American Bar has a discussion.

The personal identifiers to be redacted are Social Security numbers, names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses2.

This brings up the other concern, an attempt to influence the case by “extrajudicial” comment.

Several topics presumed prejudicial to proceedings relate specifically to criminal proceedings. This reflects the comment’s recognition that certain types of proceedings, notably civil matters triable to a jury, criminal matters, and matters that could result in incarceration, are particularly likely to be prejudiced by extrajudicial statements. See Model Rules of Prof’l Conduct R. 3.6 cmt. [6]. These concerns further explain the additional limits on extrajudicial comments (discussed below) that Model Rule 3.8(f) imposes on prosecutors.

Statements Presumed Not Likely to Create Material Prejudice
While the comment sets forth a list of topics presumed to create prejudice, Model Rule 3.6(b) itself provides a “safe harbor” of statements that a lawyer can publish with considerably less concern about whether a pending adjudication may be substantially prejudiced. According to Model Rule 3.6(b), and the majority of comparable state rules, there are seven categories of information that presumably may be disclosed publicly:

the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
information contained in a public record;
that an investigation of a matter is in progress;
the scheduling or result of any step in litigation;
a request for assistance in obtaining evidence and information necessary thereto;
a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation, and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time, and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

This list is not intended to be an exhaustive list of topics on which extrajudicial statements are permitted. Rather, Model Rule 3.6(b) is intended only to provide lawyers with a list of categories they can discuss publicly with little fear of violating the rules of professional conduct. See Model Rules of Prof’l Conduct R. 3.6 cmt. [4]. For an interesting case discussing application of the safe harbor where a lawyer effectively paraphrases statements in the public record, see PCG Trading, LLC v. Seyfarth Shaw, LLP, 460 Mass. 265, 951 N.E.2d 315 (Mass. 2011).

Is the transcript “information contained in a public record”? Any member of the public may access the transcript. The intention is to avoid revelation of private information, on the one hand, and to avoid prejudice, but this is being balanced with the right of the public to know, and of media to report on the proceedings. Media could send a reporter to the hearing, who could take notes (even verbatim notes if the reporter has that skill, i.e., the skills possessed by an old-fashioned court reporter or stenographer). See Media rules and also General Order 58.

A related concern is that transcripts may contain information that could not be presented to a jury as evidence. However, if it is public record, too bad. A party may request the court to redact anything prejudicial, it is not routine.

So to the present practical reality. It has been claimed that IH is attempting to dominate discussion of the case, while there is no evidence for that.

The argument is that IH would want to appear to the public as the “savior” of LENR. However, sending stooges to the blogs is a very poor way to do that; they could simply issue press releases with facts that are already public record. If they were interested in astroturfing — the definition of which does not resemble anything operative in Rossi v. Darden — there are other actions they could take. How about sending gobs of money to, say, LENRIA or Infusion Institute Inc.? Hint! So far, not a penny to III from IH or anyone reasonably accusable of being an IH stooge. As far as I know, no supporter of III has received any benefit other than information from IH or IH employees or contractors.

I’ll be setting up crowdfunding, though, and there would be no way to prevent such contributions, but … I would certainly disclose any attempt to prejudice my reporting.

(Setting up organizations that pretend to be grass-roots movements but that are actually under the influence and control of the master organization, for the purpose of influencing legislation, through letter-writing campaigns, was “astroturfing,” and that still goes on, but has nothing to do with LENR or Rossi v. Darden. Example, APCO apparently advised the tobacco industry, their clients, to set up such organizations, to pretend that there was a mass movement to protect the rights of smokers — to kill themselves with cigarettes without being informed about the involved science. There are anti-AGW organizations now that are reasonably considered astroturfing, but not all anti-AGW comment is from such, and, in the end, it shouldn’t matter if legislators keep their eye on the ball. On the other hand, if the legislator is corrupt, influenced by campaign donations, always a worry, and lazy, i.e., doesn’t verify the alleged public stand but uses it as an excuse, astroturfing could work.)

Any party could reveal transcripts extrajudicially, bearing in mind the limitations and rules, but, to my knowledge, no party has done so. Publishing excerpts from hearings, as evidence for motions, has been routinely done when relevant. That is not “extrajudicial.” If I were in Florida, I could go to the public terminal and take notes, it appears that this does not violate the rules.

I find it all quite odd, because notes can be inaccurate and biased, and as a non-party and non-attorney, I could not be readily sanctioned for publishing my notes. What would make much more sense would be an accelerated schedule for the public availability of transcripts. There seems to be no stated justification for that requiring 90 days.

Suppose the public sees that some party is being unfairly treated in court. The public could intervene by donating to a defense fund, for example. However, if the transcripts that might show this are not available until, say, after the trial, not to mention all the pretrial maneuvering, the right of the public, the very purpose of requiring public access, is frustrated and only useful for possible appellate review, which can be too late for some important issues.

As part of searching for sources for information on this issue, I found no example of sanctions for public review not showing some egregious violation. The case cited above, PCG Trading, LLC v. Seyfarth Shaw, LLP , involved a denial of an appearance pro hoc vice based on an alleged comment in a law review article. In the end, this denial was rejected by the appeals court, because it fell within the “safe harbor,” in the judgment of that court. Remarkable case: there what stands out is an attorney (Seyfarth Shaw) with an undisclosed conflict of interest who screwed his client over by filing a motion to dismiss a case against the other client. That motion was then used as evidence to allow a filing against his continued client.

I did find a remarkable case where an attorney was sanctioned for uncivil behavior. That was extreme behavior compared to anything I’ve seen in this case, though I’ve seen what could be called uncollegial behavior, aggressive toward opposing attorneys, accusing them of misconduct, and the ruling on that case distinguishes between aggressive promotion of a client’s interests and incivility. What I find especially remarkable in this case was that the respondent blamed others for his own out-of-control behavior. They made him do it, by being such assholes. (including all the other involved attorneys and any judge that ruled against his arguments.) I kid you not. Who could blame him for shouting, in the presence of such extreme provocation? Remarkably, a referee determined a 90 day suspension. It appears that the attorney contested it instead of entering a consent order. The court upped it to two years, more than the Bar Association had requested (one year), required that respondent appear in court for a public reprimand, set up an 18-month probation on the end of the suspension, and recommended (perhaps required) counselling. And this was two strikes, three and additional sanctions would be applied. Disbarment. I hope that the fellow took this seriously. What I know about making mistakes like his is that if one declares and stands for responsibility, it can all go away, eventually. He’d become a more effective attorney. His attempts to blame others were the giveaway that this was not some accident. This also is not just about behavior in Court, this applies to life as a whole.

I also found reference to a case regarding how an attorney is to act if the attorney discovers perjury on the part of the client. It was an extreme case.