When a Judge Sides With Corporate Protectionism: Do Facts and Due Process Still Govern America’s Courtrooms?

Hooman Noorchashm
Jul 23, 2017 · 10 min read
A picture of our 6 children walking away from the beach on the last day of their first vacation without their mother, Dr. Amy J. Reed. When a judge views the public call to professional duty and ethical behavior as being “beyond the pale”, in the setting of alleged negligence causing her “wrongful death”, it is clear that corporate protectionism could, in fact, override the principles of justice and due process in our court system.

My wife, Dr. Amy J. Reed, recently passed away following a horrific and avoidable complication at the Brigham and Women’s Hospital in Boston, caused by a dangerous medical device marketed and manufactured by the German company, STORZ.

As a result, and because of STORZ’s failure to withdraw their dangerous product from the market, my family’s attorneys filed wrongful death charges against Brigham and STORZ.

In a protectionist and decrepit legal maneuver, the defense filed a motion with the court to withhold sensitive corporate documents related to the morcellator hazard from me, the lead plaintiff. And, amazingly, this week a judge in Suffolk County, MA formally granted this motion to the defense

The defendants cited their concerns with my “untrustworthiness” with such “sensitive information”, given the public nature of the anti-morcellation campaign, as the reason for their request of the court.

As evidence of their claim, the defense provided the judge with a sampling of my emails calling the defense attorneys to moral duty — not only in protecting their clients, but also all women in harms way from a totally avoidable danger. You can read the text of my email to the lawyers on the defense side, below. But, the judge viewed my communication with the defense as being “beyond the pale” and seemed to have taken offense to my pedantic critique of these “officers of the court” on the defense side.

This was a very unfortunate but telling decision from the court — and I can only hope it is unique to this judge.

To be clear, of course! I have shared all information of relevance to these corporations’ wrongdoing with the public — as should any moral citizen or decent physician in my shoes . The morcellator disaster in women’s health was a public health hazard that unjustifiably took a lot of lives. So, it is my moral and ethical obligation as a citizen and a physician to make sure those responsible are held publicly accountable and that they are not permitted to engage in such immoral (and illegal) behavior again.

It ought not escape any reasonable observer, or judge, that the fact that these defendants even filed this motion clearly demonstrates that they, in fact, have something sinister to hide from the public. Information that would be damning to the corporation and its leadership and must, therefore, be suppressed.

But, I am stunned that a judge in Suffolk County, Massachusetts, of all places, would endorse such corporate protectionism and move to take legal action against due process itself — in the case of a bona fide public health hazard that has killed many unsuspecting women.

The very serious trouble with this judge’s decision is that she made an incorrect assumption that my thousands of emails criticizing the Brigham, STORZ and many other physicians engaged in morcellating women’s uterine fibroid tumors, were factual evidence that I would violate a confidentiality agreement I would have to sign in order to review the documents. This was a prejudiced presumption about my moral character simply because the judge seems to have taken offense to my critique of a few lawyers “doing their jobs”. Or maybe she’s stunned by the tsunami of my vocal and pointed emails written to abolish morcellation from women’s health worldwide and hold complacency in professional leadership to account — it is accurate that there are tens of thousands of such emails to date. But neither my critique of the defense lawyers and their clients’ position, nor my thousands of transparent emails aimed at grounding a public health hazard constitute evidence demonstrating my propensity for violating a confidentiality agreement.

To be clear, I would not violate a confidentiality agreement, if I were to sign one— unless at an extreme keeping silent puts more families in harms way, especially with the defendants’ continued retention of their dangerous device in the marketplace. In any case, my violation of a confidentiality agreement is a purely presumptuous hypothesis on the part of the judge, as it has not occurred. And the court ought not rule on hypotheses, but on facts and the sanctity of due process, especially when a harmed plaintiff is up against a powerful corporate force—so to have granted the defense’s motion to damage my family’s due process rights was a flagrant abuse of judicial power.

Of course, I am fully cognizant that my statements to the defense are not only protected by the first amendment of the United States constitution, but more importantly, they are well within my duty to express as a responsible citizen affected by a disaster to which other families could fall. That this Suffolk County judge was convinced to suppress critical information from the main plaintiff in the case is more telling of how she views the courtroom, than it is a statement on my character. Is the courtroom a judge’s personal fiefdom, to make legally binding pronouncements based on personal likes and dislikes? I think not, because our court system in the year 2017 presumably operates based on facts and due process, not prejudice.

I write this reflection on the court’s ruling last week fully recognizing that we live in an era when the leader of our nation feels justified in inappropriately criticizing judges as being prejudicial. And I, certainly, thought hard about whether I may be guilty of the same charge here. But, in the end, I came to the conclusion that this judge’s decision speaks for itself. Because, she has endorsed a legal action that effectively compromises my access, as a citizen, to proper due process. After all, how can I work effectively with my lawyers to fight for justice for my wife and family, if I am not allowed to see critical information related to those I am charging for a wrongdoing? And, this, based on a judge’s presumption about my intent to violate a confidentiality agreement — that, is not the exercise of prudent judicial power, it is an expression of the judge’s susceptibility to prejudice.

Wouldn’t it have been correct if the judge reacted to an actual violation of a confidentiality agreement, if it happened in due course, instead of preempting me based on her prejudice about my character and what she felt goes “beyond the pale”? Ultimately, the judge’s decision bought into the corporate defense lawyers’ protectionist demand. And that is an ominous sign for the Suffolk County court system — or, perhaps, for our entire legal system if too many judges allow themselves to behave in a similarly susceptible fashion.

The judge ought to consider that what actually goes “beyond the pale” in our case is that my 6 children and I buried our dearly beloved on June 1, 2017 after a grueling 3 year long battle to save her life following the negligent complication caused by the defendants in our case. She ought study the facts and understand that Amy’s death from abdominal sarcomatosis, caused by morcellation, was nothing short of an atrocity in modern medicine and women’s health, at their highest levels. And, the judge ought to consider that the cause of my wife’s death, as many other women’s, was a global women’s health hazard that was known, caused, and sugarcoated or suppressed by the defendants, whose lawyers are now attempting to do damage control without regard for the broader ethical and legal gravity of this case…”officers of the court”, indeed.

It is no secret to anyone who has carefully observed our campaign, since 2013, that transparency, publicity and a call to moral/professional duty on the part of all the physicians and the attorneys in this case has been at the core of the fight. The defendants know this well - and the judge did too. Because when it comes to protecting people’s lives from harm in our society, adhering to transparency, good science, ethical reasoning and public awareness is the only way.

Extreme Transparency was the centerpiece of the strategy my wife and I used to eliminate this particular hazard from women’s health— and the results speak for themselves, irrespective of prejudices and incorrect or superficial reasoning, at any level — corporate, professional, judicial or public.

One thing is for sure, with this latest shenanigans from the defendants, STORZ’s unwillingness to withdraw the morcellator from the global marketplace despite the massive liability the device poses to the company, and a seemingly prejudicial Suffolk County judge, it’s unlikely that my children and I will find ourselves able to come to a private settlement with these corporate entities — and I know that my wife would not have either. Because she was a highly accomplished woman of grit, integrity and faith, who fought her disease and the establishment’s arrogance with a warrior’s honor and prowess — Amy Josephine Reed MD, PhD exemplified the best our society and profession have to offer.

The defendants are in the wrong — and their lawyers know it. But if the court chooses to side with corporate protectionism and opacity where only facts ought to be of relevance in achieving justice, it does so at risk to its own integrity and process. Certainly, the women’s health campaign that has and will save hundreds, if not thousands of women, in the United States and abroad for posterity, speaks for itself.

Pushed to an extreme, and in the face of even more corporate protectionism, my children and I are committed to demonstrating who knew what and when in a global women’s health disaster that brutally took the one we loved, with all of our hearts, from us — in honor of our beloved Amy Josephine Reed and in memory of all the other women fallen to this disaster around the world.

Below is the Text of my email to the attorneys representing Brigham and STORZ, presented as evidence to a judge in Suffolk County, MA, who accepted it as evidence that critical information to our case be suppressed from me:

Hooman Noorchashm <noorchashm@gmail.com> Mon, Jul 10, 2017 at 8:35 AM To: Heidi.wolmuth@wilsonelser.com
Cc: Thomas Greene <tgreene@greenellp.com>, Richard Kaitz <richardkaitz@gmail.com>, Michael Gunzburg <Michael@gunzburglaw.com>, “Lurie, Peter” <Peter.Lurie@fda.hhs.gov>, CDRH Ombudsman <CDRHOmbudsman@fda.hhs.gov>, Alan Slobodin <Alan.Slobodin@mail.house.gov>, joseph.knowles@mail.house.gov, Brian Fitzpatrick <BriFitz8@gmail.com>, Helmut.Wehrstein@karlstorz.com, sybill.storz@karlstorz.com, “Amiri, Ali” <ali.amiri@karlstorz.com>, info@karlstorz.com, “Sprenger, Kathrin” <Kathrin.Sprenger@karlstorz.com>, “mmuto@partners.org” <mmuto@partners.org>, “rbarbieri@partners.org” <rbarbieri@partners.org>, “enabel@partners.org” <enabel@partners.org>, “McDonough, Erin, BWH Admin” <EMCDONOUGH5@partners.org>

Defense Attorney Wolmuth and colleagues,

I write here morally compelled and of my own accord, without legal guidance. I write in the name of my wife Dr. Amy Josephine Reed of Yardley, PA, and in the name of the many other women put in harm’s way or dead because of your clients’ negligence.

I know that defendants’ access to legal counsel in vetting allegations of wrong­doing, negligence, and wrongful death is a key bedrock of our system of government and justice in the United States. I believe in this system and I respect the work attorneys must do in good faith in defending the accused.

But there are cases in which defending the indefensible, the wrong, the negligent, the ethically and legally decrepit, compromises the attorneys doing the defending. It is, therefore, up to the attorneys’ moral and intellectual compass to advise his/her client of the best course of action to minimize the damage and to remain faithful to the rules of civility, ethics and conduct in the professions that must govern our society.

The death of Dr. Amy Josephine Reed from abdominal sarcomatosis cause by power morcellation using a STORZ morcellator, responsible for the death of many more unsuspecting women, is an historic act of professional negligence and atrocity in women’s health. Any attorney or citizen with even a rudimentary intellectual capacity ought to immediately recognize this fact, at this point in time ­ nearly 4 years after Dr. Reed started her campaign against your clients’ wrongdoing.

You, your firms and the other attorneys on your side have put yourselves in the unfortunate position of defending clients whom, I know you would not forgive if you yourselves or your loved ones were on the receiving end of their carelessness and negligence ­ as my family is. And I know that if you or any of your associates or loved ones ever need to have your own uterine fibroids managed by a gynecologist, you would firmly remember the name Amy Josephine Reed MD, PhD to protect yourselves from harm and from this avoidable and deadly disaster my family fell to.

As it pertains to your clients now, the terms and deadline set forth by Greene LLP represents good advise to your clients ­ and it is the only morally appropriate path for yourselves as citizens and professionals to follow.

Guide your STORZ clients to withdraw from the morcellator line of products from the global marketplace and work towards an acceptable settlement with my family. Know that I, and my family, are fully prepared to escalate our conflict into court, if necessary ­ and I assure you that all hands are on deck to demonstrate your clients’ negligence, and their legal violations, in causing my wife’s wrongful death. Also, carefully consider that irrespective of whether you are able to settle this case or whether it goes before the court, having STORZ remain in the morcellator business will be a very massive liability to your clients and to your case.

The July 11th deadline to STORZ was/is your opportunity to both contain any further damage to your clients’ coffers and reputations and to prevent harm to other unsuspecting women around the world. It is the correct path you ought to aggressively work towards.

I fully recognize that escalating our conflict further and prolonging your interrogation of this case would lead to good billable hours for your firms’ coffers and that you view your corporate clients as a good source of guaranteed and rich revenue. But your clients’ noncompliance with the terms set forth by Greene LLP, will ultimately become a litmus test of your own moral compass as attorneys and citizens. And, very certainly, when you lose this case in court, before judge and jury and in the face of the fundamental truth Amy Josephine Reed’s death represents, your own professional reputations and personal spirit will be judged, permanently damaged and scarred.

know that for me, and per my wife’s wishes prior to her death, your failure to firmly guide your clients to withdrawing from the morcellator line of medical devices on the set deadline of 5pm on July 11th is a point of no return and an escalation that will lead us in front of judge and jury ­ know, that you will lose the fight because it is a real fight for justice, not simply rhetoric, smoke­screens and trivial legalities as you will have to resort to in your defense of your clients’ negligence.

Think with care. Your clients have approximately 36 hours to give us a firm indication that STORZ will be withdrawing from the morcellator line of devices globally. After that time has elapsed, this olive branch I have instructed our attorneys to extend to you and your clients will no longer be present.

Very sincerely,
Hooman Noorchashm MD, PhD

Hooman Noorchashm

Written by

Hooman Noorchashm MD, PhD is a physician-scientist. He is an advocate for ethics, patient safety and women’s health. He and his 6 children live in Pennsylvania.

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