1138.pdf

NOT A CERTIFIED COPY Filing# 66284830 E-Filed 01/09/2018 11 :39:20 AM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800:XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, V. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. _________________ ./ PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION TO STRIKE DEFENDANT/COUNTER-PLAINTIFF'S DAMAGES EXPERT WITNESS, DR. BERNARD JANSEN, AND TO EXCLUDE HIS TESTIMONY Plaintiff/Counter-Defendant, Jeffrey Epstein ("Epstein"), moves to strike Defendant/Counter-Plaintiff Bradley J. Edwards' ("Edwards") damages expert, Dr. Bernard Jansen, and to exclude the admission of his testimony because it does not assist the trier of fact, and states: INTRODUCTION Edwards is Attempting to Recover Damages Based on a Defamation Action Despite protestations to the contrary and this Court's rulings, Edwards plans to seek damages based on a defamation action. Edwards' expert confirms this and Edwards has illustrated this in both statements made to the Court and in discovery: • March 24, 2011: In his Case Management Statement, Edwards informed the Court that, because he had to defend against Epstein's "spurious claims," he had to endure "the public embarrassment of having been branded as a participant in one of history's largest and most notorious Ponzi schemes." (D.E. 284, p. 2.) FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 01/09/2018 11 :39:20 AM NOT A CERTIFIED COPY • October 4, 2011 and November 29, 2011: While in his original Counterclaim filed December 21, 2009, Edwards alleged that Epstein's Complaint was "nothing more than a press release" (D.E. 18, ,r 11), in his October 4, 2011, Amended Counterclaim and November 29, 2011, Second Amended Counterclaim, he characterized it as a "highly defamatory press release." (D.E. 388, ,r 13) (D.E. 413, ,r 9). • January 6, 2012: In Answers to Interrogatories, Edwards stated that: "Bradley Edwards has described the special damages he has sustained and will continue to sustain in the future in his currently pending counterclaim. He has been falsely accused of immoral, unethical and illegal conduct impugning his professional integrity, his professional competence, and his fitness to practice law. Such accusations are defamatory per se and Florida law conclusively presumes the damages that inevitably arises from such defamation. The false accusations have been disseminated repeatedly throughout not only the South Florida legal community but nationally and internationally." (Ex. A, No. 1, e.s.) In addition, in response to the interrogatory asking Edwards to explain the basis of his claim that his reputation had been injured, he simply responded, "Defamation per se." (Ex. A, No. 5, e.s.) To another request, Edwards responded: "Epstein's malicious, unsupported, unsupportable, false accusations of Bradley Edwards' knowing involvement and active participation in a massive Ponzi scheme singled Mr. Edwards out from among all other innocent RRA employees. Those accusations were the only source falsely linking Bradley Edwards to Rothstein's criminal enterprise, and absent those allegations there is no basis to believe that Bradley Edwards' impeccable professional reputation would have been tarnished by his brief employment with Rothstein Rosenfeldt & Adler." (Ex. A, No. 6.) • May 21, 2012 and January 9, 2013: In his Third and Fourth Amended Counterclaims, Edwards continued to characterize Epstein's Complaint as a "highly defamatory press release." (D.E. 490, ,r 9, e.s.) (D.E. 571, ,r 9, e.s.). • September 25, 2017: In recent Answers to Interrogatories, Edwards continued to base his claims on alleged defamatory statements: "The allegations of Epstein's maliciously filed Complaint are defamatory per se." (Ex. B, No. 35, e.s.) • October 10, 2017: In opposition to Epstein's Motion to Stay, Edwards referenced Epstein's alleged "malicious lies": " ... the poisonous effects of Epstein's malicious lies about Edwards remain judicially unremedied. Edwards is entitled to his day in Court to publicly prove that the scurrilous claims made by Epstein were nothing but a baseless attempt at extortion." (D.E. 1012, p. 12, e.s.) • November 10, 2017: Edwards testified at his deposition that there "still looms this false allegation over my head." (Ex. C, p. 12, e.s.) Edwards claimed that his reputation suffered damage that "unless and until a jury returns a verdict in my favor, can't be undone." (Ex. C, p. 36.) 2 NOT A CERTIFIED COPY "WEAK" -An Opinion or a Verifiable Statement o(Fact? In the recent hearings before this Court, Edwards has focused, in large part, on Epstein's allegation in the original Complaint that Edwards' clients' cases were "weak." (D.E. 5, ,I42h.) (11/29/17 Tr. 65:22-66:3.) 1 ("But the fact of the matter is that Bradley Edwards was sued for ginning up, fabricating, constructing those three cases, and others, as a knowing participant in Florida's largest Ponzi scheme .... " (11/29/17 Tr. 62:21-25.) This Court commented during dialogue with counsel that the allegations in the original Complaint said "weak": [T]he allegation . . . in subparagraph h . . . "Rothstein and the litigation team ... knew or should have known that their three filed cases were weak and had minimal value ... (11/29/17 Tr. 80:17-81:7.) Epstein's allegation, however, is nothing more than the author's subjective belief of the economic value of the three civil cases. The view that something is "weak" falls within the classic definition of an opinion, is not a statement of fact and, thus, is not actionable even if this was a defamation case. Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4th DCA 2000) ("'A false statement of fact is absolutely necessary ifthere is to be recovery in a defamation action."'). Fid. Warranty Services, Inc. v. Firstate Ins. Holdings, Inc., 74 So. 3d 506, 515 (Fla. 4th DCA 2011) ("A party cannot recover for defamation based on statements which are pure opinion."). Consistent with Edwards' testimony, pleadings, argument, and now damages expert, there can be no question: Edwards is attempting to "clear his name" by proving that individual allegations pied by Epstein in the original civil proceeding against Edwards were false. The cherry-picking of individual statements in one entire original civil proceeding to determine the truth or falsity of any statement is appropriate for a defamation action, not a malicious prosecution action governed by the existence of probable cause to initiate an original civil 1 Excerpts of the November 29, 2017, hearing transcript are attached as Exhibit D. 3 NOT A CERTIFIED COPY proceeding. Of course, defamation for the complaint's allegations is barred by the absolute litigation privilege. Therefore, Edwards continually attempts to morph an element from the tort of defamation (whether any given statement pied by Epstein was true/false and made with good/bad motives ) 2 and superimpose the defamation element onto his onerous burden of proving the lack of probable cause. If allowed, this would be reversible error. Edwards 'Expert has no Opinion on Damages The error is compounded by the fact that Dr. Jansen's testimony is focused on simply identifying internet sources that published articles that mentioned Edwards and Rothstein without regard to the actual damages proximately caused by the malicious prosecution (if any). Edwards, in this one count malicious prosecution action, can only recover actual damages. (Edwards may take the position that if he has no actual damages then he is entitled to nominal damages, i.e., $1.) Dr. Jansen's testimony is not helpful to the trier of fact as required by section 90.702, Florida Statutes for either category of damages. No Testimony Related to Actual Da