Exposing the LASIK Scam

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 Post subject: Dr. Nicholas Caro sues lasik patient for $2,000,000
PostPosted: Sun Nov 27, 2005 10:11 pm 
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Dr. Nicholas Caro has filed a lawsuitseeking $2,000,000 in damages from Dean Kantis, after previously performing LASIK on him. Dr. Caro alleges in his lawsuit that Dean Kantis "has engaged in an ongoing process of telephoning, mailing, facsimile transmitting, e-mails and related written communications, to various governmental bodies and/or individuals, including, but not limited to: (a) Better Business Bureau of Chicago (b) Brett (sic) Hanson."

Dr. Caro is represented by Eric Phillip Ferleger an attorney whose license was suspended in 2004: www.state.il.us/court/SupremeCourt/Anno ... nn1117.pdf According to a ruling by the Supreme Court of Illinois, Eric Ferleger suffers from a "cannibis dependence" and is being treated for "personality disorder".

Eric Ferleger, has now been arrested and charged in an insurance fraud scheme, as described in the following six articles:

Burr Ridge Couple, Lawyer, Charged in Insurance Fraud Scheme
http://www.statesattorney.org/pressburr ... sfra01.htm

Chicago Attorney Held in Insurance Fraud Case
http://www.insurancejournal.com/news/mi ... /59988.htm

Suburban Couple, Lawyer and Others Charged in Insurance Fraud Scheme
http://www.wqad.com/Global/story.asp?S=3891757&nav=1sW7

Loop Lawyer Charged in Home Repair Scam
http://cbs2chicago.com/specialreports/l ... 25448.html

Couple Held in Rehab Scamhttp://www.chicagotribune.com/classified/realestate/realestate/chi-05...

Company preyed on fire victims, prosecutors say
http://www.dailysouthtown.com/southtown ... 244nd5.htm


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 Post subject:
PostPosted: Sun Nov 27, 2005 10:14 pm 
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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION

ST. GEORGE CORRECTIVE VISION, an Illinois corporation, and NICHOLAS C. CARO, M.D.,

Plaintiff,

vs.

DEAN ANDREW KANTIS, an individual,
Defendant.

DEFENDANT's MOTION TO DISMISS

PLAINTIFFS' COMPLAINT

Defendant, DEAN ANDREW KANTIS, by and his attorneys, LINDSAY and RAPPAPORT, L.L.C, and pursuant to Section 2-615 of the Illinois Code of Civil Procedure, hereby moves this Honorable Court to strike and dismiss Plaintiffs ST. GEORGE CORRECTIVE VISION and NICHOLAS C. CARO?s complaint for being substantially insufficient in law. In support thereof, Defendant states as follows:

Introduction

1. Plaintiffs have filed a two count complaint, which they title, "COMPLAINT FOR SLANDER AND LIBEL" against Kantis. A copy of the complaint is attached hereto as Exhibit A. The complaint is a bit confusing on its face as it does not have a count for slander, but does have a count for libel, which is Count I. As the complaint only alleges certain written communications, and does not allege any oral communications, we can consider Count I to be for libel only. See Whitby v. Associates Discount Corp. 59 Ill. App. 2d 337, 340 (1965) (Defamation in the form of written communication is libel while an oral defamation is slander).

2. The Second Count of the Complaint purports to allege a claim for Abuse of Process, even though no process has been wrongfully issued. We will discuss each count separately.

The Complained of Statements

3. The gist of the complaint is that Kantis, a patient of Dr. Caro's and St. George Corrective Vision, published the following statements:

"Dr. Caro messed up seven years ago."
"He lied to me and told me that it?s my eyes and that it would take up to seven years for them to fully heal."
"?he won?t return phone calls, won?t return my money and is threatening my family that he will bury me in lawsuits for wasting his time?"
(Complaint, par. 10)

4. As will be demonstrated below, these statements can not support a cause of action for libel, given Illinois' strict requirements for such a cause of action. Moreover, the context of the statements indicates that certain privileges attach. Finally, the claim of abuse of process is wholly insufficient.

COUNT I: Libel

5. There are two distinct reasons why Count I of the Plaintiffs? Complaint should be dismissed under Illinois law. First, the statements are essentially in the form of an opinion, and are simply not defamatory. Next, the statements were made in the context of a quasi-judicial capacity, and are thus privileged.

The Statements are Not Legally Defamatory

6. There is a well developed body of case law in Illinois as to what it takes before words can be considered defamatory. For words to be considered defamatory per se, they must do the following:

(1) impute the commission of a criminal offense;

(2) impute infection with a loathsome communicable disease;

(3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or

(4) prejudice a party, or impute lack of ability, in his trade, profession or business. (Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402, 414 (1988); Fried v. Jackson, 99 Ill. 2d 24, 27 (1983); Moore v. Streit, 181 Ill. App. 3d. 587, 597 (1989).

Additionally, to be considered defamatory per se, the statement(s) in question must be so naturally harmful to the person to whom it refers to that a showing of special damages is unnecessary. Anderson v. Vanden, 172 Ill.2d 399, 411-12 (1996).

7. Even if the statement fits within one of the categories that will sustain a per se action, recovery will not be allowed if the statement can reasonably be given an innocent construction. The innocent construction rule, provides that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. Troman v. Wood, 62 Ill. 2d 184, 189 (1975). This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff. Id. The Illinois Supreme Court has explained that the non-defamatory interpretation must be adopted if it is reasonable even if there are other reasonable interpretations that are defamatory. Mittelman v. Witous, 135 Ill.2d 220, 234 (1989).

8. Even more importantly, the law is quite clear that expressions of opinion are non-actionable as protected forms of speech under the first amendment no matter how vigorously the opinion is expressed. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Owen v. Carr, 113 Ill. 2d. 273 (1974).

9. The distinction between fact and opinion is a matter of law. A written or oral statement is to be considered in factual context, with the words and the implications therefrom given their natural and obvious meaning. To determine whether a statement is fact or opinion, a court must evaluate the totality of the circumstances and should consider whether the statement is capable of objective verification as true or false. Piersall v. Sportsvision of Chicago, 230 Ill. App. 3d 503, 510 (1992).

10. While in one sense all opinions imply facts, the question of whether a statement of opinion is actionable as defamation is one of degree; the vaguer and more generalized the opinion, the more likely the opinion is non-actionable as a matter of law?The emphasis in the test for determining the actionability of an allegedly defamatory statement of opinion is on whether the statement contains an objectively verifiable assertion. Wynne v. Loyola University of University of Chicago, 318 Ill. App. 3d 443, 452 (2000) citing Hopewell v. Vitullo, 299 Ill. App. 3d 519 (1998).

11. Illinois courts have consistently found non-actionable words which are rhetorical hyperbole or used only in a loose, figurative sense, such as those at issue in our case. See Haberstroh v. Crain Publications, Inc., 189 Ill. App. 3d 267 (1st Dist. 1989) and cases cited therein. As the Haberstroh court explained, words that are merely found to be name calling have also been held as non-actionable. Id. The mere fact that language is abusive does not make it defamatory per se either. Id. Moreover, expressions of opinion touching on an individual?s capabilities or qualifications does not constitute defamation "no matter how much the complained of statement may injure the subject person in his own conception." Zaret v. Joliet Park District, 91 Ill. App. 3d 225, 227 (1980) citing Byars v. Kolodziej, 48 Ill. App. 3d 1015, 1016-17 (1977).

12. Applying these principles to the statements at issue in our case easily leads to the conclusion that these statements are simply not actionable. For purposes of analysis, we will discuss the statements one at a time.

13. "Dr. Caro messed up seven years ago." Under the innocent construction rule, this statement is not defamatory because there are simply an infinite number of reasonable interpretations for this statement other than the Dr. Caro lacks ability in his trade. The usage of "messed up" gives absolutely no clarity or definitiveness as to what is being communicated. The term "messed up" is loose and in a figurative sense, and is thus non-actionable rhetorical hyperbole.

14. "Messed up," is also an opinion, rather than a factual assertion. Similar statements, such as the plaintiff is "lazy" and "incompetent" were held to be opinions rather than assertions in Doherty v Kahn, 289 Ill. App. 3d 544 (1st Dist. 1997). See also Hopewell v. Vitullo, 299 Ill. App. 3d 513 (1st Dist. 1998) ("fired because of incompetence" considered non-actionable opinion").

15. "He lied to me and told me that it?s my eyes and that it would take up to seven years for them to fully heal." This statement is likewise non-actionable. In Piersall v. Sportsvision of Chicago, 230 Ill. App. 3d 503, 510 (1st Dist. 1992), the court considered an almost identical statement, and held that the utterance "he's a liar" was non actionable opinion.

16. "?he won?t return phone calls, won?t return my money and is threatening my family that he will bury me in lawsuits for wasting his time?" One struggles to find any kind of theory under which this statement could be defamatory. The statement fails to (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade, profession or business. Moreover, following the innocent construction rule, this statement is not defamatory because there are simply an infinite number of reasonable interpretations for this statement other than the Dr. Caro lacks ability in his trade.

17. Given the Illinois' courts' stringent requirements to find statements defamatory, the statements attributed to Kantis simply do not pass muster. Illinois courts do not allow defamation cases to proceed where all that the defendant stated is that the plaintiff "messed up" and "lies." These are statements of opinion, and are not defamatory per se. Plaintiffs' complaint should be dismissed on this ground alone.

The Statements Were Made in a Quasi Judicial Capacity and Are Privileged

18. Statements that are made in a quasi-judicial capacity are privileged in the state of Illinois. Within the judicial context, the absolute privilege covers formal pleadings, in-court communications and "any communication pertinent to pending litigation." McCutcheon v. Moran, 99 Ill. App. 3d 421, 425 (1981). In addition, absolute privilege extends to proceedings by administrative agencies which act in a judicial or quasi-judicial capacity. Id. at 425. (Emphasis added) In McCutcheon it was determined that absolute privilege protected statements made about the plaintiff-school principal by the defendant-school janitor to the trial committee of the Board of Education and to members of the State's Attorney's office; see also Adco Services v. Bullard, 256 Ill. App. 3d. 655, 659 (1993) and cases cited therein (absolute privilege attached to two letters authored by the defendant-former employee and sent to two quasi-judicial agencies concerning the plaintiff-company's radioactive waste program).

19. In the context of such proceedings, the "absolute privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings as well as actions necessarily preliminary to judicial or quasi-judicial proceedings." Parillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d. 920, 928. (absolute privilege applied to an unsolicited letter which requested the initiation of an investigation of an insurance company and which was sent by the individual defendant to the director of the Illinois Department of Insurance. )

20. In the present case, plaintiffs allege in Count I of their complaint that the defamatory statements that the defendant made were in a letter to the Better Business Bureau. The Better Business Bureau is a governing agency whose mission is as follows:

"Is to promote and foster the highest ethical relationship between businesses and the public through voluntary self-regulation, consumer and business education, and service excellence." (www.chicago.bbb.org)

21. As explained by the court in Audition Division v. Better Business Bureau, 120 Ill. App. 3d 254 (1st Dist. 1983), the Better Business Bureau (BBB) is a not-for-profit corporation which, according to its policy manual, "promotes truth in advertising and selling; maintains an impartial attitude towards firms and individuals; and is dedicated to the building and preservation of public confidence in legitimate business." Although the Better Business Bureau is not a judicial court, one of their prime functions is to work with consumers and businesses to resolve complaints. Their website indicates that it is easy for a customer to file a complaint, the BBB will conduct an investigation, facilitate resolution, report any misconduct to the appropriate governmental agency if warranted, and in essence, try to resolve the complaint.

22. The same policy reasons supporting the privilege in proceedings involving administrative agencies such as the Department of Insurance, school boards, judicial inquiry board, and other agencies, supports applying the privilege to the Better Business Bureau. In order for the Bureau to work, citizens must have absolute freedom to approach the Bureau, free of the fear of legal action against them. The public would be adversely affected if statements to the Bureau could be the basis of lawsuits. The Bureau's function would be greatly hampered.

23. While not pled in Count I, plaintiffs also complain that the above statements were communicated to the Illinois Department of "Registration and Education" (sic) - presumably the Illinois Department of Financial and Professional Regulation, the state administrative agency which is responsible for, among other things, overseeing the regulation and licensure of the various licensed professions. See generally 20 ILCS 2105/2105 et. seq., and 2105-15 empowering the Department to conduct hearings on proceedings involving professional licenses. For the same reasons involving other agencies, discussed above, the privilege should attach to communications made to the Illinois Department of Financial and Professional Regulation.

COUNT II: Abuse of Process

24. Plaintiffs' claim for the tort of "abuse of process" is wholly inadequate. This is a very strictly defined, and disfavored, tort. The requisite elements of an action for abuse of process are: (1) the existence of an ulterior purpose or motive, and (2) some act in the use of the legal process which is not proper in the regular prosecution of the proceedings. Holiday Magic, Inc. v. Scott, 4 Ill. App. 3d 962, 966 (1972), appeal denied 52 Ill. 2d 594 (1972).

25. In the plaintiffs? complaint they fail to identify any process abused by the defendant. This is entirely insufficient. As the Holiday court explained, "[t]he mere institution of proceedings does not in and of itself constitute abuse of process. Some act must be alleged whereby there has been a misuse or perversion of the process of the court. It is the settled law of Illinois that mere institution of a suit or proceeding, even with a malicious intent or motive, does not itself constitute an abuse of process." Id. (Emphasis added)

26. Because the tort of abuse of process is not favored under Illinois law, the elements must be strictly construed. Id. In order to satisfy the first element, a plaintiff must plead facts that show that the defendant instituted proceedings against him for an improper purpose, such as extortion, intimidation, or embarrassment. However, the mere institution of a suit for an improper purpose does not itself constitute an abuse of process, the second element being the gravamen of the offense. In order to satisfy the second element, the plaintiff must plead facts that show a misapplication of process, or, in other words, the plaintiff must show that the process was used to accomplish some result that is beyond the purview of the process. When process is used only for its intended purpose, there has been no misapplication of process. Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App. 3d 177, 183 (2003).

27. "Process" is defined as any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property. In Neurosurgery, it was determined that the issuance of a summons can be categorized as process. However, the second element of abuse of process--misapplication of process was not satisfied by pleading that there has been process. A party must plead that there has been a misapplication of that process. The court in Neurosurgery explained that a summons is issued in just about every case in which a lawsuit is filed, and that the intended purpose of a summons is to establish a court's in personal jurisdiction over a person. This in and of itself is neither irregular nor improper. Rather, the tort of abuse of process requires some misapplication of process, which is found only in cases in which a plaintiff has suffered an actual arrest or seizure of property. Id.

28. Plaintiffs here allege no misapplication of any process. They allege no arrest or seizure of any property, or nothing abusive about any form of process. Just as a lawsuit requires a summons, a complaint to the Illinois Department of Financial and Professional Regulation requires some sort of written document - yet nothing in the Complaint gives rise to any theory that "process" has been "abused." Plaintiffs fail to allege how Kantis abused any process, and this Count should therefore be dismissed.

Conclusion

29. Plaintiffs' Complaint fails to state a claim upon which relief can be granted. For the reasons stated, Defendant Kantis requests that the Complaint be stricken and dismissed.

WHEREFORE, Defendant, DEAN ANDREW KANTIS, prays for entry of an order striking and dismissing Plaintiffs' complaint.

_________________________________
Attorneys for Defendant

Stuart N. Rappaport
Luke A. Weiland
Lindsay & Rappaport, LLC. (Firm #40877)
221 N. West Street
Waukegan, IL 60085
847 244-4140
847 244-4203 (fax)


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 Post subject:
PostPosted: Fri Jul 21, 2006 6:01 pm 
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Dr. Caro drops lawsuit against Dean Kantis

http://www.lasikfraud.com/lawsuits/caro ... missed.pdf


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