Gallows Humor....9/26

Man came in said, "All rise." We all stood up, and Obie stood up with the twenty seven eight-by-ten colour glossy pictures, and the judge walked in sat down with a seeing eye dog, and he sat down, we sat down. Obie looked at the seeing eye dog, and then at the twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one, and looked at the seeing eye dog. And then at twenty seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one and began to cry,'cause Obie came to the realization that it was a typical case of American blind justice, and there wasn't nothing he could do about it, and the judge wasn't going to look at the twenty seven eight-by-ten colour glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence against us. ...from Arlo Guthrie's Alice's Restaurant

A man falls off the Empire State Building, and half-way to the ground he yells to someone watching, "So far, so good...."

The initial ruling (on disclosure) is apparently against me. Which means the appellate process. While this isn't the actual lawsuit, it is most critical. It's hard to believe the standards for disclosure were met under Cahill.

As Cahill's "Summary Judgment" Standard contends:

It requires that a plaintiff, suing for defamation, must satisfy a summary judgment standard in order to unmask the identity of the anonymous speaker. In this case, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement (damaging to Cahill’s reputation); (2) the statement was concerning Cahill; (3) the statement was published (disseminated to others); (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice (he either knew it was false or acted in reckless disregard of the truth).

The Court concluded that Cahill must satisfy the summary judgment standard relating to most of these elements. That means that Cahill must show that there’s a genuine issue of material fact about these issues. In other words, he must show enough evidence to justify why he should proceed to a jury on these issues.

...the easier one can expose the identities of John Does, the more likely it will "chill the use of the Internet as a medium for free-ranging debate and experimentation with unpopular or novel ideas".

The biggest issue is #5: Was it false?

...that element of a summary-judgment-like test still ought to be relaxed, because evidence of "actual malice" could likely only be obtained through discovery, whereas a plaintiff could make a threshold showing of falsity and defamation from his own resources.

Example: Items 24&25 in the suit deal with specific accusations of falsehood by John Doe#1.

So, to prove #24, the hospital would be required to provide logs of call personnel, a list of the types of studies done by the call personnel, and statements from the call personnel and the staff that called in the tech. And a copies of their certifications. All of which they should have on hand.

Up-coding verification requires the patient records, and the submitted billings, but it was indicated in the blog that it was 'suspected', not as an absolute. Didn't one of the supposed Essent resonsive comments mention a Medicare audit? With a specific settlement figure? Maybe they were suspected....

As for demonstrating #25, the hospital would have to provide to the court the same information they provide to the state and CMS. Not a terribly demanding task.

Many of the quotes that are attributed to me in the lawsuit are not mine. A careful study of the context they were clipped from will plainly demonstrate that fact. In many cases, I specifically mention that they are quotations from comments, either before or after, in others I used italics to indicate where my comments started.

The gain from 'unmasking' me towards identifying the commenters is negligible. The thought that an anonymous blogger is going to know who an anonymous commenter is tends to strain the fabric of the argument. The only security one has in this is that which is generated by the anonymity of both parties. Additionally, comments are deleted automatically from the queue as they are published.

The only thing this might do is silence an open criticism of Essent's method of doing business.