After damaging my eyes with Refractive Surgery, Drs. Herbert Nevyas and Anita Nevyas-Wallace sued to silence me. This is a partial of Nevyas v. Morgan lawsuits online.
My intention with this site is to update and further prove all allegations I brought against the Nevyases as documented on my previously owned website LasikSucks4u.com, now LasikDecision.com. I would also like to show how I believe the courts were misled in many of their decisions and/or opinions regarding my med mal lawsuit Morgan v. Nevyas and the current Nevyas v. Morgan lawsuit.
(The dates are links to the referenced documents provided)
In April, 2000 I filed a medical malpractice lawsuit against Herbert Nevyas and his daughter Anita Nevyas-Wallace, two Philadelphia area LASIK doctors and their practice, Nevyas Eye Associates.
I found out I was not alone. At the time I started this website, there had been multiple cases of medical malpractice (including mine) filed against these doctors and their business, as listed in the Philadelphia Civil Docket Access System.
In response to posting this website, and including the Nevyases names, I have been sued. Through threats of lawsuit, intimidation, and (I believe) violation of my First Amendment rights, my website was shut down three times previously, the 2nd time after a temporary restraining order was sought, and denied (by the courts). Because of the way my medical malpractice lawsuit was handled through the courts, I believe it necessary to document this case in its entirety.
Below is a chronology of my latest litigation with the Drs. Herbert Nevyas, Anita Nevyas-Wallace, and Nevyas Eye Associates (Nevyases), Bala Cynwyd, PA (I could not name them previously due to litigation). All of the documents are filed with the courts, and are public record:
Dates are separated to reduce page load times due to volume. Click date to view date filings in new window:
I updated my website to include information obtained about Drs. Herbert Nevyas and Anita Nevyas-Wallace, and Nevyas Eye Associates.
After receiving a cease and desist letter from Nevyases attorney, I put my website back to its original state and responded with a letter of intent. In the course of a week, my website was shut down after YAHOO also received a letter. After hosting with a new company and determining the legal extent of their threat and making changes to the site, I posted new information with documents to support.
On November 7th, the Nevyases filed a lawsuit against me for defamation, also claiming I broke an agreement with them. They were asked numerous times by my (then) attorney and also filed with the courts, to state what they felt were legally objectionable with my website. They refused, and filed an emergency petition for a Temporary Restraining Order (TRO), which was denied. On November 26th, Nevyases filed a motion for reconsideration (TRO), which was also denied.
In December, I filed an answer to a complaint, with New Matter and a Counterclaim.
After the Nevyases were denied reconsideration for TRO, they withdrew the lawsuit against me in Philadelphia Court, and filed in Federal Court. This time Nevyases tried for subject matter jurisdiction by claiming the content on my site violated the Lanham Act, and also joined my attorney for letters he wrote to the FDA on my behalf which I posted on my site. I published those letters because they supported all of the other documents on my site, and the documents on my site supported those letters (Due to ongoing litigation, those letters cannot be published at this time). The Nevyases also attempted another restraining order, which they never got. This action was dismissed for failure to state a federal claim.
The Nevyases again brought suit against me in Philadelphia court using the same method as federal court, by joining my attorney as a defendant. The court filings listed below are by the Nevyases, and my responses:
The case went to trial on July 26, 2005 on the claim for specific performance, and the court ruled in the Nevyas’ favor. It found that the Nevyases and I had entered into an agreement whereby in exchange for the Nevyases not filing a lawsuit against me, that I would remove all defamatory statements about the Nevyases from the site and refrain from defaming them in the future. But the trial court’s order went a bit further — it forbid me from mentioning the Nevyases at all, on this, or any other website.
I believed the judge erred in his ruling, and sought the help of Public Citizen for appeal, who also felt this decision was wrong. The ACLU helped me to obtain local counsel for my appeal.
In his 2009 run for Pennsylvania Supreme Court Justice, the Honorable Judge Panella answers to questions posed by the Pennsylvania State Education Association in their 2009 Supreme Court Questionnaire. He cites this case as one of his most important:
- What are the most important cases you have handled as an attorney or as a Judge?
“In my private practice as an attorney, and as a judge, I have always considered family law cases as the most important because the personal lives of the litigants are at stake. Custody, divorce, support and related issues affect the welfare, living conditions and wellbeing of all of our citizens. However, these cases are highly fact driven, and it is impossible to classify them into groups.
In addition to these family law cases, I have always been very sensitive to First Amendment issues. I strongly believe that our democratic system in America would not continue to exist without a free press to report on the dealings of government. The following cases, from my career as an appellate and trial judge, represent my approach when freedom of speech and freedom of the press are involved:
- Nevyas v. Morgan, 921 A.2d 8 (Pa.Super. 2007).
First Amendment Rights – Internet Users
A Pennsylvania resident left legally blind after lasik eye surgery created a website which included criticism of his doctors. Under threat of suit, he agreed to eliminate certain statements the doctors alleged were defamatory. He later added new material criticizing the doctors. The doctors sued, claiming that because they had agreed not to sue him if he removed the initial defamatory allegations, the agreement was binding in perpetuity, and he could not comment negatively on them.
I authored an Opinion which upheld the patient’s freedom of speech rights. Speech on the internet receives First Amendment protection. There was no agreement to withhold assertions which were not libelous although critical of the doctors’ performance.”
June 09, 2008: â€œPlaintiffs Herbert J, Nevyas, M.D., Anita Nevyas-Wallace, M.D. and Nevyas Eye Associates, P.C., by and through their undersigned counsel, hereby Motion this Honorable Court to order an evidentiary hearing to determine whether Morganâ€™s website postings violate his contractual agreement with Plaintiffs and whether any new postings are false and defamatory. In support of their petition, Plaintiffs aver as follows:â€
June 17, 2009: “Before this court can rule on the merits of the defamation claim, it must first determine the Public Figure status of Plaintiffs. This determination of a plaintiffâ€™s public figure status is a particularized and fact sensitive analysis, but it is also a question of law to be determined by the court.”
July 09, 2009: â€œPRO SE DEFENDANT MORGANâ€™S RESPONSE TO DEFENDANT FRIEDMANâ€™S MOTION TO DETERMINE PLAINTIFFSâ€™ PUBLIC FIGURE STATUS, AND CROSSMOTIONS FOR COMPULSORY NONSUIT OR JUDGMENT OF NON PROS, AND/OR JUDGMENT ON THE PLEADINGS; AND/OR SUMMARY JUDGEMENT TO COUNTS I AND II OF PLAINTIFFSâ€™ AMENDED COMPLAINT.
- The Nevyas plaintiffs ignored Judge Sylvesterâ€™s instructions.
See Section 1 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs filed an erroneous federal lawsuit.
See Section 2 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs failed to properly transfer their federal action back to this court.
See Section 3 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs exceeded the one-year statute of limitations against defendant Morganâ€™s pro bono attorney.
See Section 4 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs improperly claimed that Morgan conspired with Friedman, in their reinstated claim.
See Section 5 of the Factual and Procedural History in the attached Memorandum.
- There were motions decided while the case was officially in abeyance.
See Section 6 of the Factual and Procedural History in the attached Memorandum.
- There was a motion decided while the case was officially in stay.
See Section 7 of the Factual and Procedural History in the attached Memorandum.
- The Superior Courtâ€™s Remand.
See Section 8 of the Factual and Procedural History in the attached Memorandum.
(This quotes from the Superior Courtâ€™s Remand – there is no question presented and no argument for this section.)
- The Nevyas plaintiffs fail to allege that defendant Morgan re-posted the same statements that had been on his website as of July 30, 2003.
See Section 9 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs try to excuse and exclude their failure to allege that defendant Morgan re-posted the same statements that had been on his website as of July 30, 2003.
See Section 10 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs failed to honor their contract with defendant Morgan.
See Section 11 of the Factual and Procedural History in the attached Memorandum.
- The statements posted on Morganâ€™s website are not defamatory because they are true.
See Section 12 of the Factual and Procedural History in the attached Memorandum.
- The statements on Morganâ€™s website are either fact or opinion.
See Section 13 of the Factual and Procedural History in the attached Memorandum.
- The Nevyas plaintiffs are at least limited purpose public figures.
See Section 14 of the Factual and Procedural History in the attached Memorandum.
- If the Nevyas plaintiffs had not sworn falsely, and had produced the documents they withheld, this instant case would not exist.
See Section 15 of the Factual and Procedural History in the attached Memorandum.
- The above are relevant to defendant Morganâ€™s counter-suit.
See Section 16 of the Factual and Procedural History in the attached Memorandum.
WHEREFORE defendant Morgan moves this Honorable Court enter a suitable order granting the Motion of defendant Friedman and the instant Cross Motions of defendant Morgan.â€
July 17, 2009: â€œPlaintiffs deny that the outcome of the surgery was poor and further deny that Morgan is legally blind.â€
July 20, 2009: â€œPRO SE DEFENDANT MORGANâ€™S REPLY TO â€œPLAINTIFFSâ€™ RESPONSE TO DEFENDANTâ€™S MOTION TO DETERMINEWHETHER PLAINTIFFS ARE PRIVATE FIGURES OR LIMITED PURPOSE PUBLIC FIGURESâ€
The Nevyas plaintiffsâ€™ Response shows them again trying to have it both ways, saying one thing to this court and a different thing outside this court. Examples include:
- At paragraph 4 plaintiffs tell this court: â€œPlaintiffs deny that the outcome of the surgery was poor and further deny that Morgan is now legally blind.â€
Outside this court, plaintiff Herbert Nevyas states: â€œ…he reported vision as low as 20/200 in each eye when I last saw him. I know he has been judged legally blind….and that he is presently receiving Social Security Disability payments because of his legal blindness.â€ Exhibit D.
- At paragraph 5 plaintiffs tell this court: â€œPlaintiffs, after reasonable investigation, have insufficient information to determine whether Defendant Friedman is a practicing physician….â€
July 27, 2009: â€œPlaintiffs are also incorrect in the facts as they have ignored the evidence indicating that they voluntarily injected themselves into the public discussion concerning LASIK surgery, and admittedly sought to influence the public debate. Yet, even under plaintiffsâ€™ narrow and misguided interpretation of the public controversy requirement, the facts still indicate that Plaintiffs are limited purpose public figures with regard to the defamation claim against Friedman.â€
August 03, 2009: â€œMore basically, a general concern over the safety of LASIK is just that – – a concern. It is not a public controversy. An actual public controversy must be a â€œreal dispute, the outcome of which affects the general public or some segment of it in some appreciable way.â€
August 05, 2009: â€œPRO SE DEFENDANT MORGANâ€™S SUR-REPLY TO â€œPLAINTIFFSâ€™ SUR-REPLY MEMORANDUM IN OPPOSITION TO DEFENDANT FRIEDMANâ€™S MOTION CONCERNING PLAINTIFFâ€™S PUBLIC FIGURE STATUS.â€
Plaintiffsâ€™ Sur-Reply shows them again trying to have it both ways, saying one thing to this court in their Amended Complaint, and a different thing in their Sur-Reply.
Plaintiffs worked hard purporting themselves as â€œdoctorâ€™s doctorsâ€ at the forefront of eye care and LASIK surgery. For argumentâ€™s sake, even if they did not make themselves limited purpose public figures, Morgan did. By the time Friedman purportedly defamed them (by supposedly having Morgan post letters to the FDA), Morganâ€™s website was already prominent for almost one year and the public was already researching plaintiffs on the internet. As plaintiffs documented in their Amended Complaint at paragraphs 15, 17, 22, 23, 25, 52, 56, 57, 58:â€
November 09, 2009: THE COURT FINDS THAT PLTFS ARE “LIMITED PURPOSE PUBLIC FIGURES” RELATIVE TO THE INSTANT DEFAMATION CASE. BY THE COURT …ROGERS,J 10/14/09
November 12, 2009: â€œ10. Moreover, the finding that plaintiffs are limited purpose public figures changes the burden of proof, requiring that plaintiffs prove that defendantâ€™s statements are false, rather than requiring defendants to prove as an affirmative defense that their statements were true. 11. This sea-change in the burden of proof may require additional issues to be decided at trial. For example, it may re-open issues which were litigated in the underlying malpractice action upon which plaintiffs prevailed. The courtâ€™s ruling may give plaintiffs a second bite at the apple.â€
November 30, 2009: â€œAt a May 5, 2009 Status Conference, both Plaintiffsâ€™ counsel and Friedman counsel advised this Court that the matter of Plaintiffsâ€™ public figure status needed to be resolved. Under Pennsylvania law, in any defamation case where the plaintiff is alleged to be a public figure, a court must first make a threshold determination as to the plaintiffâ€™s public figure status. That determination will clarify the partiesâ€™ respective burden of proof at any upcoming trial. This Court then set a briefing schedule and each side submitted briefs. By Order dated October 14, 2009, this Court ruled that plaintiffs were â€œlimited purpose public figuresâ€ for purposes of the defamation claim.â€
December 02, 2009: â€œPlaintiffsâ€™ instant motion does not claim that this Courtâ€™s Order eliminates the need for trial, but only that this Courtâ€™s Order makes plaintiffsâ€™ success at trial more difficult.
According to plaintiffsâ€™ argument, almost anything a judge orders is a â€œcontrolling issue of lawâ€ and subject to piecemeal appeal, including defendant Morganâ€™s unopposed cross-motions currently before this Court.â€
December 08, 2009: REPLY BRIEF IN SUPPORT OF PLAINTIFFSâ€™ MOTION TO AMEND ORDER TO CERTIFY FOR PURPOSES OF TAKING AN INTERLOCUTORY APPEAL
An interlocutory appeal is appropriate in this action because the question of whether Dr. Nevyas, Dr.Wallace and their medical practice are limited purpose public figures is the controlling question in this litigation. The Courtâ€™s finding that plaintiffs are limited purpose public figures has a profound effect on this litigation. It requires Plaintiffs to prove actual malice.
December 23, 2009: â€œPlaintiffsâ€™ reply continues to ignore the proper standard for determining whether an interlocutory appeal should be permitted. Plaintiffs argue that an interlocutory appeal is warranted because the public figure determination is â€œa controlling question in this litigationâ€ and that the Courtâ€™s finding has â€œa profound effect on this litigationâ€. That argument ignores the proper standard under 42 Pa. C.S.A. Â§702(b). Indeed, if Plaintiffâ€™s argument were accepted, then any significant ruling by a trial court which decides an important issue or which effects the parties in a case, would be grounds for an interlocutory appeal.â€
December 24, 2009: â€œPlaintiffs assert that, if trial occurs with plaintiffs designated limited purpose public figures, they will appeal post-trial. Plaintiffs thus purport that is in everyone’s interest to have an interlocutory appeal now, purportedly to save time, etc.
Plaintiffs lack credibility since, as the United States Supreme Court states, interlocutory appeals can increase trial court difficulty, delay, add costs, diminish coherence, and create additional and unnecessary appellate court work:â€
One of the first statements Judge Victor DiNubile stated was that â€œhe was not re-addressing the March 2011 trialâ€. He did however allow the Nevyases over 2 hours to put themselves up on their perpetual pedestal and issued this ORDER. I disagree with Judge DiNubile for several reasons:
Per DiNubileâ€™s order: I had to specifically remove from some websites the statement stating that the Nevyas laser was a â€œblack box laserâ€.
Dr. Morris Waxler (who was head of the medical devices panel at the FDA during my LASIK) testified at trial in 2011 that the Nevyas laser was indeed a â€œblack boxâ€ laser. Both Nevyases perjured themselves at the contempt hearing stating it was not. DiNubile ignored this testimony.
Per DiNubileâ€™s specific instructions, the letter I wrote to the American Academy of Ophthalmology was never introduced as evidence at trial or appeal. They may have stated, but never argued the letter as defamatory. I had to specifically remove from some websites this letter.
The March 2011 trial was never really about me although at trial most of the illegalities of the Nevyas Study were addressed. The only thing I believe the Nevyases were interested in was going after my ex attorneyâ€™s insurance company. They sued him for $1mil because I posted letters on my websites he wrote to the FDA on my behalf (They lost). The letters, all factual and supportive of the information posted (and the website information supportive of those letters) had been removed several years prior but I was still ordered by the courts to never repost them.
I was also ordered to remove (per DiNubileâ€™s specific instructions) that â€œthe Nevyases damaged my eyesâ€, I NEVER HAD 20/50 VISION AGAIN POST LASIK!
I testified at the contempt hearing that I have thousands of pages to back up every allegation made against the Nevyases, again ignored.
The facts are in black and white and have been proven numerous times. The courts I believe only cared about getting rid of this lawsuit due to duration in the court system.