September 5, 2000
Breast Implant Litigation Reporter
V.9, Issue 13SLAPP Motion: Rosenthal v. America-On-Line
McGhan Executive Loses Motion for Attorneys' Fees under SLAPP
A San Diego Superior Court has ruled that a defamation suit filed against
Patrick O'Leary, former President of McGhan Medical (Ireland), has
established the probability of prevailing on the merits and he is not
entitled to reimbursement of $8,300 in attorneys1 fees for his defense.
O1Leary unsuccessfully asserted the litigation infringed on his
constitutional right to free speech under the Strategic Lawsuits Against
Public Participation (SLAPP) statute. Rosenthal v. America-On-Line et
al., No. GIC739307 (Cal. Super. Ct., San Diego Co., Aug. 16, 2000). See
Breast Implant Litigation Reporter, Jan. 17, 2000, P. 4.
SLAPP suits are generally meritless suits that threaten ruinous damages
and high litigation costs in an attempt to deter their opponent from
exercising their political or legal rights, or to punish them for doing
Plaintiff, Ilena Rosenthal, originally sued O1Leary due to malicious
statements he allegedly made against her on an Internet-based support
group for breast implant recipients. She is the Director of the San Diego
Humantics Foundation for Woman and the creator of the Internet newsgroup,
alt.support.breast-implant, which was changed to an e-mail list due to the
According to her opposition, Rosenthal said that for over four years
O'Leary and the other defendants made thousands of harassing postings and
e-mails containing lies, rumors and innuendoes about her finances,
spiritual beliefs, professional associates, personal life and mental
health. He also refused to identify himself or his affiliation with the
breast implant manufacturer, says Rosenthal, until his real name was
inadvertently discovered in November 1999.
Rosenthal argued that O'Leary's First Amendment right to free speech has
not been chilled by her litigation. She also contends that, since the
action was filed, he has posted an additional 500 messages on various
Internet bulletin boards and spoke at the FDA1s hearing in March 2000
regarding approval for saline implants.
Her suit is not a SLAPP suit, argues the plaintiff, because O1Leary1s is
not being sued for his viewpoint in the controversial debate regarding
implants. Rather, O'Leary is accused of defamation for a "deliberate
campaign to smear" her good reputation, says Rosenthal, which is not
constitutionally protected speech.
Rosenthal also asserts that O'Leary violated a court order issued in 1992
by District Judge Sam C. Pointer, Jr. of the Northern District of
Alabama. The order requires the defendant manufacturers in the
multi-district litigation to refrain from contacting plaintiffs, as well
as disparaging or minimizing the claims of the breast implant recipients. Regarding the SLAPP statute, Judge William C. Pate said, "[T]here has been a disturbing increase in lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom and petition for the
redress of grievances. The Legislature finds and declares it in the
public interest to encourage continued participation in matter of public
significance and that this participation should not be chilled through
abuse of the judicial process."
Unless the plaintiff establishes a probability of prevailing on the
merits, the court is to construe the statute broadly, grant a motion to
strike and award attorney's fees.
However, the court said O'Leary has already admitted making some of the
defamatory statements, including that Rosenthal is a "fraud" and "ripping
off women." Judge Pate concluded O1Leary was not entitled to attorney
fees because his statements "impute crimes or dishonesty" to the
Although the suit was withdrawn in May, Rosenthal intends to pursue her
claims against O1Leary and the other defendants, which she says
contributed to the defamation. The named defendants in the original suit
include: America Online, McGhan Corp., Inamed Corp., Etc. Information
Services, and Susan Schaezler.
Rosenthal1s former attorney was ordered to pay O'Leary $600 for costs
associated with a motion to transfer venue.