Transcript of The Hearing on Rush's Medical Records

IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: CA 03 13316

RUSH LIMBAUGH, Plaintiff VS. STATE ATTORNEYS OFFICE, Defendant.Palm Beach County Courthouse 205 North Dixie Highway West Palm Beach, Florida Monday, 2:01 p.m. December 22, 2003 Hearing before the HONORABLE JEFFREY A. WINIKOFF, Judge of the Fifteenth Judicial Circuit.

APPEARANCES: BLACK, SREBNICK, KORNSPAN & STUMPF, P.A., BY: ROY BLACK, ESQ. and MARK SHAPIRO, ESQ. and JACKIE PERCZEK, ESQ. 201 S. Biscayne Boulevard Suite 1300 Miami, Florida 33131 Attorneys for Plaintiff.

OFFICE OF THE STATE ATTORNEY, BY: JAMES L. MARTZ, ESQ., ASA and ROBERT SHEPHERD, ESQ., ASA 401 North Dixie Highway West Palm Beach, Florida 33401 Attorneys for Defendant.

THE COURT: Sorry. I've got a jury out next door. So I apologize ahead of time if we have any dislocation. I'll try and keep it to a minimum. All right. We're here on plaintiff's motion and the State's response. Counsel, if you'd state your appearances.

MR. BLACK: Your Honor, on behalf of Mr. Limbaugh, good morning or good afternoon. It's Roy Black with Mark Shapiro and Jackie Perczek.

MR. MARTZ: Representing the State of Florida, Judge, this is James Martz and Robert Shepherd.

MR. BLACK: It's true it is our motion, your Honor. However, under the law of the State of Florida, the statutes involved, the State of Florida has the burden of going forward and has the burden of proof of examining these medical records. We filed this petition because the State had not taken any action after seizing the original medical records from a series of four doctors that treated Mr. Limbaugh. So we wanted to bring this into court at the first opportunity. However, the case law and the statutes require the State to have the burden of going forward with the hearing, presenting whatever arguments they have to the Court and they have the burden of persuasion. So I would ask the Court to hear from the State to begin with.

MR. MARTZ: Judge, I imagine we could start arguing at this point with regard to who goes first or second, but I don't mind going at all, Judge, so it doesn't make a bit of difference. With regard to the standard the State has to meet, the standard is pretty simple at this point. The only question probably, Judge -- do you mind if I use the podium?

MR. MARTZ: Judge, in the case law that I provided your Honor on Friday, it articulates what two things the State has to achieve to go forward. First is compelling governmental interest, in this case the compelling State interest. That first standard is met when the State is investigating crimes. And it's very simply stated in Hunter that that is the standard for a compelling State interest, the investigation and prosecution of crimes. In this case, clearly by everything that we've given your Honor in our response, we're talking about investigating crimes, specifically the crime of doctor shopping under 893.13. So we would first assert that that standard has been met. In pursuit of that, the unique circumstances on this are closest to Viatical, which is State versus Viatical, 741 So. 2d 560. State versus Viatical shows where the State in pursuing a criminal investigation used the vehicle as a search warrant rather than a subpoena to require the records. They were concerned as to whether the records would be there, whether the records would be tampered with.

In this case, the State employed the same vehicle, a search warrant to obtain the records, but did not view any of the records in maintained the patients right to privacy throughout that process. In doing so now, although there are issues with regard to why the State didn't file its request to have this hearing, we did notify timely the defense that we had seized the records, sealed them without viewing them and gave them an opportunity to object. They took that opportunity and advised us of that. In that process, several things have taken place both between us and defense and determining which court would be the proper venue to hear this in. My understanding through our DUI people are that traditionally it is a criminal court circuit court judge that hears these. It's randomly assigned in the criminal court. We're in a process of insuring that whatever we did in this case we did exactly what is commonly done in an effort to achieve this objective.

In that process in that intervening time, there were discussions between myself and Mr. Shapiro that caused them to set this here rather than in that court. Again, the State has no objection to hearing it here. We believe this is a court of competent jurisdiction. The next phase of that is to determine whether we can now view the records. And we would assert to this court as in Viatical, that standard is the same as if we were doing a DUI. If someone had been injured in an accident, maybe a fatal, gone to the hospital, the State then seek those records to ascertain what their blood alcohol content was, they would establish relevance. Relevance being a lower standard than probable cause. We would assert to this court and did so in our written motion that we've established probable cause with two judges in two different states prior to this court being asked to intervene and that that standard is higher. We've achieved that standard. And we would ask this court to recognize those two judges' determinations and not reverse those absent some gross malfeasance on their part.

And we would state to the Court, that once we've established probable cause for the records, we certainly have more than met our burden of it being relevant. In the Court's purview as well, contained within those is the affidavits that are signed by the investigators. I do have the lead investigator here with me, Max Delval, who is an affiant under those search warrants. So based upon all that we would say to you, Judge, we have on separate occasions in two different states before two different judges established the higher standard of probable cause with regard to obtaining these medical records and to view the medical records with regard to the crimes that are being investigated by the State Attorney's money laundering task force.

THE COURT: First, isn't this case somewhat distinguishable from Viatical in that there was no medical care provider that was being served with a search warrant in Viatical? Didn't the court make a point of distinguishing that?

MR. MARTZ: With regard to that, I only talk about Viatical because they used the same vehicle we did here, and that was a search warrant.

MR. MARTZ: I believe when we talk about patients' rights to privacy, we go right to the Supreme Court in Johnson, which is State v. Johnson which is a 2002 case I provided your Honor. And just evincing the same standards we've had since Hunter, which I think all of us have grown to know and understand these hearings to be Hunter hearings with regard to acquiring a patient's medical records in a criminal context. And under those relevance is the standard with regard to whether the State may violate that patient's right to privacy to pursue that compelling State interest.

THE COURT: All right. And the case law though normally, whether it be out of the Fourth, Johnson and the Supreme Court, doesn't it seem to say that before you seize the records, you have to give the notice and opportunity to be heard?

MR. MARTZ: That's why I refer you to Viatical, Judge. And it's probably worthwhile for the Court to know that -- and I don't believe you've known this from any other source, it was not in my motion, but we attempted to seize records from a lawyer who was involved in this case. At the time we went to seize those records, we were advised by that counsel that subsequent counsel, Mr. Black's office, had already seized those records and they were now with Mr. Black. We had already felt that we were burned once, shame on us, we shouldn't do it again. So we used the search warrant to insure that we obtained those records before they were removed as were the attorney who was involved prior.

THE COURT: So you were concerned about exigent circumstances like I understand that Judge Barkdull put in his order in the warrant that the records were to be inventoried and sealed and therefore protected and that the client's rights, so the patient's rights, Mr. Limbaugh's rights ---

MR. MARTZ: In fact, Judge, in reviewing the standards required before this action was taken by the task force, we reviewed Viatical and determined that sealing them seem would be appropriate because that's exactly what Viatical was told to do by the court. So we had that contained in that warrant when we brought it to Judge Barkdull that we had fully intended to do everything in our power to scrupulously protect Mr. Limbaugh's rights.

THE COURT: Let's assume arguendo I were to agree that 395 doesn't apply to a search warrant, a showing of probable cause before a judge obviates that procedure or in any event the procedure employed here protects Mr. Limbaugh's rights. What about the fact that most of the cases that talk about compelling State interest justifying the invasion of the right to privacy suggesting that such invasion has to be done by the least intrusive means possible? I know that there are some questions about whether or not that standard exists in Florida as opposed to federal law, but I would like to know if that's an issue that you believe is relevant, and if it's relevant, how would you address it.

MR. MARTZ: I think it is relevant, Judge. Unfortunately, in the circumstances, and I think your Honor brings a valid point to the table, that in situations like this with the statute that we're investigating, absent circumstances as unique as the circumstances in Rush Limbaugh's case, it's almost impossible for the State to violate that right. Only in circumstances where there is so much evidence that the State is reviewing through law enforcement efforts does it rise to a level where I can actually come in before your Honor, put a logical argument in front of you as to why I believe those records will contain what we believe they're going to contain to the point where your Honor can say, "Well, this certainly isn't a fishing expedition. There's more than enough indicators here pointing in that direction that it warrants invasion of the privacy." To rule in a case like this with so much evidence, so much pervasive evidence on the side of law enforcement investigating a crime, that these circumstances don't evince that time when there's no other way to find out the answers to these questions would make the statutory violation, in fact, unenforceable. I can't imagine how we would get to the section of law legislature passed if it weren't at least on a set of circumstances this indicative.

THE COURT: Well, just playing devil's advocate for a minute, Counsel. What about by testimony from parties who were familiar with the amount of drugs that Mr. Limbaugh ordered or from medical -- I'm sorry, from prescription records, from pharmacies and the like, wouldn't that be less intrusive than going to his doctors and soliciting his medical -- or seizing his medical records?

MR. MARTZ: Judge, both of those procedures were employed and conducted prior to this hearing today and prior to the search warrants. We went to one pharmacy and that was good old fashioned gumshoe police work. This was detectives who said, "I'm going to look in the area where the man lives and see if I find any of those records under the State provisions that allow for inspection of records." Good old fashioned gumshoe police work found those records. Now, the question is, are they the only records? And the next question that has to be asked naturally is, did the doctors know about each other? If the doctors all know about each other in that sequence, in those time frames, there's no violation of doctor shopping in the State of Florida. The moreover question is, when you look at the chart that was included in the search warrant, with the prescriptions from dates, your Honor sees there's a tremendous overlap going on with each of those prescriptions wherein the prescribed date gives you X number of days and within that same time frame there are multiple prescriptions by multiple doctors that are still during the life of the same prescription and are actually intervening on those time frames if they're taken according to their dosage. And the numbers, the sheer numbers themselves indicate a pattern and practice inconsistent with what the doctors were prescribing. They're all of similar therapeutic use. They're all hydrocodone based or oxycodone.

THE COURT: Well, if you know all that without looking at the records, again, why do you need the records?

MR. MARTZ: For the statute I need to show that he withheld this from the doctors. If he sat and talked to the doctors, in all honesty, your Honor, there may be an issue with the doctors. And we certainly would want to look at those records for both. And I wouldn't tell you as I stand here today that the State is convinced of any of the content of those records. All the State is convinced of is those records are the only way to clarify the violations of law the State's currently investigating.

MR. BLACK: Yes, your Honor, may it please the Court. To begin with, your Honor, I just wanted to state that we received the State's papers, motion by fax on Friday and we received the papers Fed Ex'ed this morning. And we would like to file a response to that because I think both their written papers and their oral responses to this court do not comport with Florida law and Florida statute as well as federal statute. So we would like a time period, I will ask you after this, to brief the issue or to supply these matters to the Court so you could have a chance to look at them.

THE COURT: Mr. Black, you filed the emergency motion. I got it on Tuesday. I had my judicial assistant call your office and your motion said, "I need a hearing within three days." I had my judicial assistant call your office and offer your office a hearing on Wednesday night or Thursday night, both of which I was told is too soon. Now I'm hearing that this emergency hearing you want me to wait until you get time to file a brief. I mean, is it an emergency or is it not an emergency?

MR. BLACK: No, it's not an emergency. It's a matter of correcting the matter. For example, the State raises two issues with you today that they raised in their moving papers. One is that the two judges signing search warrants are res judicata so this court cannot go behind the findings of fact made by them in signing the warrants. And then secondly, they say that the only standard in their moving papers is relevance. And they say that perhaps -- they now for the first time during the hearing say the State also needs to prove a compelling interest. We believe under Florida law, which we'll make very clear this afternoon, they also have to prove that you have to use the least intrusive means. And I just wanted to be sure to get those things to your Honor. Those only were raised by the State's moving papers on Friday and today and by the argument today. However, I don't mind going through these things, but I thought I would assist the Court by submitting that subsequently.

MR. BLACK: To begin with, as to their res judicata argument. To begin with, res judicata requires both parties be heard and there be a finding on the merits before they're res judicata. In the history of mankind, no court has ever found that an ex-parte presentation without the other party being present could be a definitive finding on the facts or the law of any matter and could use that against the other non-appearing party in a subsequent proceeding. There are a number of Florida cases which state that, but I don't even need to go that far. I could even cite to the Court the case the State relies upon which is Viatical Services. In Viatical Services, the question was -- one of the procedural questions is whether there had to be a hearing before the issuance of a search warrant. And the district court said no. But they did say, "We therefore grant the writ and remand with directions to issue the warrant on the condition that the insured's medical records be sealed until a post-seizure hearing may be held on the issue of the right to privacy." So clearly, the case law shows that there is a right to a hearing. There has to be something done at the hearing and you just can't come in and argue, "This is res judicata and that solves our burden and you cannot look into this matter at all."

THE COURT: Yes, but, Mr. Black, the Supreme Court said in -- what is it? -- State versus Dean which I looked at, that these proceedings, i.e., obtaining the search warrant, and I don't have the paperwork in front of me, I apologize, but these proceedings are without question ex-parte and that that's necessary in order to insure the integrity of the process to allow the State to obtain their warrants and obtain the evidence without any question of spoliation or any other such problem. Not suggesting to the least that that would be the case here. But that's in general why they're always ex-parte. There's no hearings on search warrants.

MR. BLACK: Absolutely. And what we intend to do, and I will get to it in a minute, when you take a look at the Florida statute regarding the obtaining of medical records, it only talks about the issuance of a subpoena. It says nothing about obtaining a patient's records by a search warrant. We believe that in all the cases they require a hearing first, then the issuance of the subpoena. And it's just the seizure of the records alone which invokes the right to privacy. And Viatical Services doesn't speak any different, because Viatical Services, which I'll get into in a minute, holds that the petitioners there waived their right of privacy by selling their medical records to a commercial company. In any event ---

THE COURT: Mr. Black, in Dean, and I don't mean to be argumentative -- the case, by the way, is Dean versus State of Florida found at 478 So. 2d 38, a 1985 case, so it's certainly a venerable case. It says, "Subpoenas duces tecum are different from search warrants and indisputably less intrusive. While there's no opportunity to challenge a search warrant, a subpoena duces tecum is subject to motion to quash prior to production and requested materials."

THE COURT: The State of Florida very clearly understands the difference between a subpoena and a search warrant.

MR. BLACK: Oh, they do and unfortunately, they violated the procedures by using a search warrant instead of the subpoena. The case law is pretty clear, it says specifically, "There has to be a pre-subpoena hearing on the right to privacy. Only when a judge gives permission for the issuance of the State attorney's office own investigative subpoena may the subpoena issue. Then there is a post-seizure hearing after that." And I intend to show the Court how we are prejudiced by them using the search warrant instead of having the prehearing.

MR. BLACK: All right. To begin with, the right to privacy has extremely ancient roots. I won't go into all the Hippocratic oath from 400 BC on, but I would tell you the American Medical Association in their code of ethics require that doctors keep the relationship between patient and physician confidential to the greatest degree possible. The patient should feel free to make full disclosure of information to the physician in order that the physician may effectively provide needed services. And the same thing with the American Hospital Association. Even the American Pharmaceutical Association. In addition here, in 1996, congress passed what is called the Health Insurance Portability and Accounting Act which is known as HIPAA. I'm sure the Court has seen this in other proceedings. HIPAA became part of the law effective April 2001 and the privacy issues are found in Chapter 45 of the Code of Federal Regulations, and that requires that any medical information, whether oral or recorded in any form or medium that relates to the past, present or future physical or mental health or condition of an individual be kept confidential. And that's at 45 Code of Federal Regulations 160.103. Now, to get to the least intrusive means. The Florida constitution provides -- before that, Florida provides a broad doctor-patient privilege. The Florida constitution creates a fundamental right to privacy in Article I, Section 23. First in Florida on their statute 456.057 (5)(a), it creates a doctor-patient privilege. Second, this becomes a fundamental right under Article I, Section 23 of the Florida constitution. And third, a three part test has to be met in order to release records.

One is relevance, two is a compelling State interest, and three, it has to be by the least intrusive means. I would cite to the Court the case of Acosta v. Richter which is a 1996 Florida Supreme Court case saying, "There is a broad doctor-patient privilege in Florida." And in State versus Johnson, also the Florida Supreme Court, it held that "A patient's medical records enjoy a confidential status by the right to privacy contained in the Florida constitution and any attempt on part of the government to obtain such records must first meet constitutional muster." So it's a constitutional violation for them not to follow the proper procedures and particularly the least intrusive means. And in Von Eiff versus Azicri, which is a Florida Supreme Court 1998, the Florida Supreme Court held, "Our state constitutional right to privacy is much broader than that in the federal side, even broader than HIPAA and the United States constitution." Also the Florida Supreme Court said, "The right of privacy is a fundamental right which we believe demands the compelling State interest standard. The test shifts the burden of proof to the State to justify an intrusion into privacy. The burden can be met by demonstrating the challenged regulation serves a compelling State interest and accomplishes the goal through the least intrusive means." I think there's no question that the least intrusive means has to be found or this court has to find they used the least intrusive means. I would also cite the Fourth DCA in Shapiro v. State which is 1997 case which says, "The privacy provision in the Florida constitution embraces more privacy interests and extends more protection than does the federal constitution because privacy rights are fundamental.

Once the provision is implicated, it is evaluated under the compelling State interests standard. Under this standard the State has the burden of demonstrating that the challenged regulation serves a compelling State interest and accomplishes the goal by the least intrusive means." Now, the question is, issuing a search warrant and having agents of the State go out to a doctor's office and seize the original records that a doctor has kept for a patient, putting them in envelopes, evidence envelopes, taping them up and bringing them either to this court or some other court or to the state attorney's office is not the least intrusive means. It is the most intrusive means. There is absolutely no more intrusive means than using a search warrant. I can't think of any other way that could be more intrusive than having the agents of the State go into your doctor's office and take out of the hands of your doctor the original of his records that contains not blood alcohol levels, not tests, but the conversations between you and your physician in order to get treatment and the types of discussions about the kinds of personal delicate matters that you were treated by your physician is in those records.

They are now sealed, the original records, and somewhere in this building, I assume. What could be more intrusive than that? And the State says, "Well, we have a complaint about that because Mr. Black went to Mr. Limbaugh's former lawyer and obtained the records." Well, guess what? With a lawyer, the records belong to the client. One of the first things any lawyer does in representing a client is going to his predecessor counsel and obtaining a copy of the records to determine where you start in any type of a legal matter. Obtaining legal records that belong to the client from a predecessor lawyer gives them no solace to tell this court, "We think that Black would go and steal the medical records from these doctors"? That is an absurd suggestion to say that "That gives us the right to serve a search warrant."

THE COURT: I hope, Mr. Black, and I trust that the State's not suggesting that you would steal.

THE COURT: I hope that, I trust that, I believe that. And notwithstanding, their concern is, I suggest, that they need the information. That's what we both heard them state here. At least that's what I think I heard them say.

THE COURT: And to request -- to get the information by the least intrusive means, that's why I asked the question, what other means is there available for them to obtain the information that's less intrusive?

MR. BLACK: I will explain that to the Court and the case law makes it very clear.

MR. BLACK: For example, in State versus Johnson, the Florida Supreme Court in March 2002 set forth exactly how this occurs. And the court says, "Section 395.3025 is a legislative attempt to balance a patient's privacy rights against legitimate access to medical records. The provision begins with the recognition of the confidential nature of medical records and Section (4)(d) provides that before the records can be made available in any civil or criminal action, the patient must be put on notice, a subpoena must issue from a court of competent jurisdiction. The obvious purpose behind the notification requirement is to permit the patient to assert any legal objection he or she may have to the subpoena before the records are produced." Before. Not afterwards as they're doing now. To the same extent, Hunter v. State, case relied upon by the State. The State attorney issued a, in that case, an investigative procedure, a subpoena.

THE COURT: Mr. Black, none of those procedures would make the obtaining of the information less intrusive. They'd still be serving Mr. Limbaugh's doctors with process to obtain all of their medical records.

MR. BLACK: But, your Honor, when I get to the factual presentation where I will tell you why if we had had a hearing before -- I'll tell you right now.

MR. BLACK: All right. They accuse Mr. Limbaugh of doctor shopping. When you take a look at the affidavits of the search warrants, there are four doctors listed. Two of the doctors are Dr. Drourr and Dr. Deziel. They claim there's doctor shopping, that Rush Limbaugh would go to Drourr and then would go to Deziel or Deziel and go to Drourr and somehow shop doctors in order to get prescriptions. It does not state in the affidavit that Dr. Drourr and Dr. Deziel both work at the Jupiter Out-Patient Surgery Center. And not only that, but Dr. Drourr was only filling in for Dr. Deziel when he was unavailable in issuing an additional prescription to Rush Limbaugh. There is no doctor shopping between doctors who are in the same practice together with the same records and one is filling in for another. If we had had a hearing prior to the issuance of the subpoena, we could have explained to the Court what the State did not explain to the judges who issued the search warrants, that these two doctors work together. They both treat him for pain regarding a spinal condition.

The third doctor is a Dr. De La Cruz who practices in Los Angeles, California. Dr. De La Cruz works at the House Ear Clinic. Mr. Limbaugh went there because over a period of six months, he lost his hearing. He was treated by another physician who's named in here for the loss of his hearing and tinnitus in his ears. He went out to the House Clinic to have a device implanted into his skull so that he could hear and get his hearing back. I don't think any judge hearing that he went out there to have a major surgical operation placing a cochlear device into his skull would think he was going out there to get prescriptions behind the backs of two doctors here in Florida. But because we did not have a hearing, because the State never noticed us and they went out and seized these records first, not only here but in Los Angeles, we did not get a chance to tell the Court what was going on and that this was legitimate treatment by legitimate physicians for major medical reasons. And we were denied our right to do that, our right to privacy was invaded because they didn't use the least intrusive means. They used the most intrusive means possible. And that's why we're complaining about the way this was done. In Viatical, the only case they can rely upon, what happened in Viatical is they did not search a doctor's office or a hospital office, they searched a commercial enterprise. And the patients had given their medical records to a commercial enterprise in order to sell their insurance policies to investors, and it was a result of fraudulent sales that the investigation came. The court held without any question that even though -- it even gave the patients a right to a hearing afterwards. But the court held, "There's no right to privacy here. You turned your medical records into a commercial enterprise and you thereby give up your right to any kind of a hearing like that." And the court made it clear throughout the opinion -- and I know, I don't mean to belabor the point, I know obviously from your Honor's questions you've read this -- that they made clear that it was Viatical that was the target of the investigation. Not the patients, not the doctors, not the medical treatment, but it was Viatical and its fraudulent exercises. And that's what makes the difference in this case. I have read every case that relies upon this statute, the 395 Statute to obtain medical records. Every single case has been a DUI or DUI manslaughter case --

MR. BLACK: -- where they get the blood alcohol or something like that. What they're doing in this case, your Honor, and I think it's important your Honor know this, what they want is to get Rush Limbaugh's conversations with his doctors. There could be nothing more confidential and privileged than that. And to use his words that he talks to his doctors in order to bring a criminal case against him. And that's what makes this case different than any other case under this statute. And this is why I believe this is an extremely important case. I think that it is unprecedented. I think that Rush Limbaugh is being treated differently than anybody else; that there's a double standard going on here. And I think it's because of the type of client that I represent that this is happening. Now, I wanted to go into a couple of other it matters, although those are really the legal matters. These records are as intimate and delicate as there exist. Rush Limbaugh did not go to these doctors to seek pleasure. He went there to relieve pain. He had a serious hearing loss and went deaf. He had major surgery, and you'll see in these records the details of that surgery and the pain that he went through and the kind of treatment that he got. Secondly, he went to this other set of doctors because of his spine. In 1998 his coccyx bone was removed and it was found that he had cysts in his spine. He was being treated for the pain regarding these conditions at the Jupiter Out-Patient Surgery Center and they found he had degenerative disk disease and was being treated for chronic and intractable pain. At one point the pain was so great that they thought that he had bone cancer and did tests to determine whether or not that was true. In order not to use medication, because he knew and they knew what could happen as a result of using this medication, he agreed to a series of epidural steroid injections into his spine in order to prevent the pain from continuing.

It was unsuccessful. He was told the only alternative to taking this medication was a spinal surgery in which they had to go through the front of his throat in order to do the operation on his spine, and because of the type of profession he does, it could have caused a catastrophic result and therefore, the only thing he could do was to use pain medication. The doctors counseled him that there could be psychological and physiological dependence on pain medication. This was hardly a surprise. But they had to make the decision about using the medication or suffering the pain. They used a drug called OxyContin which everybody has talked about, which came into effect, I think, in 1996 was issued by the drug company. Today it is listed as the most potentially addictive medication that is legally available. It is being investigated in congress, in the FDA and there's a huge number of lawsuits that have been filed against the pharmaceutical company for the issuance of OxyContin. And the reason for that is OxyContin was marketed to doctors as being the least addictive pain drug available. And, in fact, it has turned out it was the most addictive pain drug available. And I would refer the Court, and much of my research on this came from Barry Meier's book called Painkiller, a Wonder Drug's Trail of Addiction and Death just published this year about the full history of OxyContin.

Florida authorizes the use of medications like this. I wanted to bring to your Honor's attention a Florida Statute called 458.326 called Intractable Pain Authorized Treatment. And the Florida Statute says, "For purposes of this section, the term 'intractable pain' means pain for which in the generally accepted course of medical practice the cause cannot be removed and otherwise treated. Notwithstanding any other provision of law, a physician may prescribe or administer any controlled substance under Schedules II through V" -- and OxyContin and them are in Schedule II -- "as provided for in Section 893.03 to a person for the treatment of intractable pain. The Florida legislature made a finding, it is better to treat the pain than to worry about the subsequent possible addiction." As I said, these records will show the ultimate privacy and the need for privacy and I don't believe that the State has shown the particular concern for the privacy of my client with these records. They used a search warrant to obtain it. They didn't use a hearing first. They then filed in this court not just a copy of the search warrant, but they attached the affidavit and the exhibits. Never in my 33 years as a criminal lawyer have I seen prior to the filing of charges a prosecutor file an affidavit to a search warrant in a public record. In this public record they put a list of my client's physicians and the medications that have issued. These are the people telling you that they're concerned about my client's privacy rights. It has appeared on television, it is on web sites, it has been talked about on TV from one end of this country to another. Not just that. I received a call from legal counsel for this court, not your Honor personally, but the clerk of the circuit court, excuse me, telling us that they were going to post this warrant, the affidavit and the list of medications on this court's web site so anybody who wanted access to this could have so. We vehemently objected and we haven't heard anything about this since then. Now, the court in Hunter and all the others require this court to find there's a compelling State interest before these records are released. And my question is, is there a compelling State interest for these documents, the ones that are so sensitive to be given to the Palm Beach County State attorney's office? The State attorney's office in its submission to this court promises that the medical records, these medical records will not be made public; that they will keep them private and protect my client's privacy. Let me show you the history of privacy that has occurred during the course of this case. An article from October 3rd, 2003, from the ABC News wire. "A high ranking official in Florida has told ABC News some surprising details about the State's investigation of Rush Limbaugh." Two paragraphs down. "But a source close to the investigation told ABC News that Limbaugh's former housekeeper claims she helped Limbaugh purchase thousands of prescription pain pills over a four year period. The source also says investigators have audio tapes of at least two drug transactions allegedly with Limbaugh's voice, but these were recorded secretly by the former housekeeper, not by the police." On the front page of USA Today, October 3 through 5, 2003, Thursday, "Florida law enforcement sources confirmed to USA Today that Limbaugh is being investigated in Palm Beach as part of a probe into the illegal sale of prescription painkillers. Although the alleged drug dealers are the primary target, that does not include possible charges being filed against the buyers, the sources say." The National Enquirer of October 21, 2003. "A source close to the investigation involving Rush told the Enquirer that Limbaugh said he's going to cooperate with the probe. Investigators are hearing about his relationship with Wilma Cline, what his side of the story is, said the source." October 10, Associated Press.

MR. MARTZ: Judge, at this point I want to object because I don't know where we're going with this. We know his client is famous. We know everybody is writing about him. It doesn't establish the relevance.

THE COURT: Thank you. I mean, I don't mind you making your record, but I do get the point.

MR. BLACK: Yes, sir. I didn't know -- in fact, Mr. Martz brings up a very good point, because during the course of these, and there are many more of these stories, I called Mr. Martz and I complained to him about the professionalism of he and his investigators, but it turns out I was wrong about that. Mr. Martz and Mr. Shepherd are not responsible for this, nor are their investigators, but it's a source far higher in the Palm Beach County State attorney's office.

MR. MARTZ: Judge, I am going to object to this as being irrelevant again. We're establishing relevance here, not with regard to how the State attorney's office deals with the case.

THE COURT: I appreciate that you have a client to defend and I think you know that we're not going to solve all of these issues here today.

THE COURT: I have no idea if your client had a laminectomy, should have had a laminectomy, didn't have a laminectomy, went through a series of three epidurals like everybody else goes through for disk related problems. None of that's relevant right today. If your client became addicted to pain killing medications because of unfortunate circumstances, he has my utmost sympathy. That doesn't help him any today either. What matters today is whether or not the State has violated his rights in obtaining these documents. You keep telling me there was a less intrusive means for them to get this information that they're seeking and I still haven't heard how they're going to get from the medical records the information they want except via some -- by some process. Whether it be subpoena or search warrant, it seems to me they still need the medical records to prove a case of doctor shopping. Or disprove a case of doctor shopping for that matter.

MR. BLACK: Well, I agree. But they have to have a hearing first, then the issuance of a subpoena. They cannot go and seize the records.

THE COURT: Well, let's assume we have a case like some of the cases where the courts found that they didn't follow that procedure but they didn't operate in bad faith and therefore, we'll make them give the records back but we'll allow them to re-subpoena the records. Doesn't that give you a peeric victory? Assume arguendo I would have ruled that way. Certainly they have taken steps to insure your client's rights. The documents were taken under seal, the documents were taken under inventory which were provided to the medical providers. They have not been viewed absent further order of court. And we're here today to decide that issue. Assuming arguendo I would rule your way and say, "Okay, give them back and subpoena them subject to hearing," aren't we in the same place?

MR. BLACK: No, I think they have to follow the statutory requirements. And I think I have a right to tell that court, as I want to tell this court now, there is no compelling State interest for these records. Their interest is not compelling. And that's what I'm getting to here. I think until you understand the context of what's going on here ---

THE COURT: Doesn't the case law say that the investigation of potential criminal acts is a compelling State interest?

MR. BLACK: Yes, if it's a legitimate State investigation. I'm telling the Court, this is not a legitimate investigation. And I would like to explain why.

MR. BLACK: Thank you. Last Wednesday I was called by a reporter from the Palm Beach Post and that reporter let it slip that these stories are coming from Mike Edmondson, who was the chief spokesman from the State attorney's office, and now we find out that Mr. Edmondson has been leaking and planting these stories in the press; that he has a symbiotic relationship with the Palm Beach Post who are now writing stories trying to discredit Mr. Limbaugh, trying to make his profession or the practice of his profession discredited, and I think it's an illegitimate purpose that is going on here. And I wanted to bring this to the Court's attention that I believe this investigation is political rather than a legitimate law enforcement investigation. I believe that this information, not from Mr. Martz and not from his associates, but it goes up higher in the office, and then all of this information is released to the various news medias, from ABC News to NBC, to the Palm Beach Post and the Sun Sentinel in an attempt to discredit Mr. Limbaugh. And I think it's important for the Court to realize what is going on in this. I've written a letter to Mr. Kirscher asking for an investigation into this, laying all this out, saying that I wanted, one, an investigation to see what the circumstances are; and two, I wanted Mr. Edmondson not to have access to any of these records. You have not turned over any records to them. But I have not received any response or any promise that Mr. Edmondson will not get his hands on Mr. Limbaugh's medical records.

THE COURT: Just so you understand, Mr. Black. When you say I haven't turned over any records to him, the best of my knowledge, those records are not here in the court. Those records are with the State attorney.

THE COURT: I do not believe -- I just want you to understand where the records are.

THE COURT: To the best of my knowledge, they're not in the clerk's office, they're not in the possession of the Court. They are in the possession of the State attorney's office. Now, if that's wrong, Mr. Martz, tell me, but --

MR. BLACK: Your Honor, I perhaps misspoke. 45 What I meant to say is, they cannot examine these records until such time as your Honor --

MR. BLACK: -- or another circuit court judge gives them the permission to do so. So perhaps my language was not as specific as it ought to be. They say that they are investigating Mr. Limbaugh for a violation of 893.13, Subsection (7)(a) No. 8 which involves doctor shopping. I would point out that that same statute, No. 6, makes it a crime for a person to use to his own advantage or to reveal any information obtained in the enforcement of this chapter except in a prosecution or an administrative hearing regarding a violation of this chapter. So I think --

MR. BLACK: -- I think this is a very serious matter, and I don't mean to burden this court with it, but I think this court has to realize the context of this investigation and what has been going. There's one further matter I want to bring to the Court's attention regarding this.

MR. BLACK: The question is, is there a compelling State interest to this particular investigation? And I want to go back even further in time. Wilma Cline is a person who is one of the major witnesses in this case who was a housekeeper at one time for Mr. Limbaugh in his Palm Beach house. He did a background check of her and didn't find out that her husband was a convicted drug trafficker because he was living under an assumed name and was a fugitive from a federal conviction. While cleaning his house, she found out, which was easy to discover, that he had undergone a number of these medical procedures; that they had been unsuccessful; that he had received more and more pain medication. She and her husband decided to take advantage of this by blackmailing and extorting money from Rush Limbaugh. And to give the Court the details ---

THE COURT: I question the relevance too to the purpose of the proceeding. Mr. Black insists that there is relevance. I'm going to give him substantial leeway to show me.

MR. BLACK: I have about five minutes left and I will rush through it. David Cline with his wife decided to publically or threatened to publically disclose Mr. Limbaugh's addiction to pain medication, among other things. They obtained the security access codes to his Palm Beach studio. They cornered him in the parking garage to his studio and they demanded 4 million dollars in order to keep this quiet and not sell it to the Enquirer. They had followed him a number of times in order to be able to get to him personally. David Cline was sort of a wild man making threats not only against Mr. Limbaugh, but other people associated with him. At first Mr. Limbaugh adamantly refused to pay and wanted to inform the FBI about this extortion attempt by his former housekeeper and her husband. But he first sought advice on how he ought to proceed with others who are in the business with him. He was told that if he made a complaint to law enforcement, that the people in power would ignore the crimes being perpetrated against him and instead they would target him because of who he was.

He was told that his enemies would use the fact of this addiction as a weapon to discredit him, and, of course, all that this subsequently became true. Over years he paid substantial amounts of money to the Clines because of their extortion. After the Clines bled him dry, they then went to the Palm Beach County State attorney's office in December of 2002 where they were granted immunity from prosecution in order to be used as witnesses against Mr. Limbaugh. Secondly, with their newly minted immunity, the Clines turned around and were free to sell their story to the National Enquirer for $250,000. Because with immunity from prosecution, nobody could touch them. Once this false or mostly false story hits the news media, the National Enquirer and all of this, pressure is now put on the Palm Beach County State attorney's office to have a criminal investigation of Mr. Limbaugh, which they did not have before. But because this was publicized by the Clines, they decided that they had to do something about Mr. Limbaugh.

THE COURT: Mr. Black, the case law makes it very clear that the investigation of probable or possible criminal activity is a compelling State interest. They have alleged and made a prima facie showing to two different judges that they have probable cause to believe that Mr. Limbaugh engaged in a crime and that these records are necessary to obtain them. The records seem to me, at least prima facie, to be relevant, and I keep asking you, assuming arguendo any of that is true, let's get to the issue of least intrusive means, and I still haven't heard you tell me what less intrusive means they could have used to obtain the information that they need. Compelling State interest, judges that signed the warrants granted probable cause.

Is there some difference between a standard of a subpoena and a summons -- I'm sorry, and a search warrant that brings us here? I mean, assuming arguendo that they violated the statute. Let's just assume it for the sake of argument. They haven't looked at the records. If I make them give them back, they have a right to subpoena them again. Or at least to ask for the issuance of a subpoena. You make all these arguments again to me or some other judge who gets lucky. Compelling State interest is to investigate crimes. They submit an affidavit saying they have information to believe that your client committed a crime and these records are the sine qua non evidence to prove whether or not he did it. How does a judge not grant that subpoena?

MR. BLACK: Well, we do not have, your Honor, a judge there to accept at face value the State saying there is a compelling State interest. Nor do accept at face value that there is a legitimate criminal investigation. The purpose of a hearing is for the Court to make that determination. So the mere fact that they state it does not make it true. And what your Honor is saying, "Well, what is the difference if the State violates the law 51 in the methods by which they obtain records from a suspect?" The problem here is we're dealing with the right to privacy. The right to privacy is violated just by the procedure that's used, not by the end result. What your Honor is basically saying is what the State says is that the end justifies the means.

THE COURT: I'm not saying that and I'm not offended because I could be interpreted as saying that. I'm not suggesting that. If the process is no good, then the process spoils the result no matter how well intentioned the aim was. And I don't have any problem with that. I have no problem with enforcing the law and I will grant you that categorically, in the subpoena cases the courts have said repeatedly that at first you have to give the notice and opportunity for a hearing before you seize the records. Now, first of all, they've made some allegation that they did that; that they told you that they wanted the records; that they were going to seize the records, et cetera.

MR. MARTZ: What we did is immediately after the search warrant but prior to opening them, we made notification of their opportunity to object before the State ever viewed any of the contents of the records.

THE COURT: But you understand, Counsel, that the case law, Johnson and its progeny, Hunter and its progeny all say that you're supposed to do that before you issue a subpoena. Is there some difference in your mind between the search warrant and the subpoena that would allow you to make an end run around the 395 process?

MR. MARTZ: Two, Judge. Two reasons. One is -- the first of which is, relevance is a much lesser standard of probable cause. So if we were going to subpoena the records, we could do that merely by a showing of relevance to this court in advance of. So we went to the next higher standard, which is probable cause. A much higher standard for us to achieve to seize the records. We believe there's evidence of a crime in it, two judges agreed there was probable cause to seize those records. Much higher standard than that evoked in the subpoena process. In addition to that, the patient's right to privacy is the content of those records. I don't know where Mr. Black gets his information from on his cases, but I missed the case that said that if you want to go get them, that violates his privacy. The privacy is contained in the communications between the doctor and the treatment prescribed. None of that has been violated in any way, shape or form. We've gone to great lengths ---

THE COURT: What he's suggesting is that by standing the statute on its head, you violated his right to privacy by the mere fact that you possess the records. Apparently he's not enamored of your track record of keeping his client's matters confidential. So I guess he has some concern about the fact that those records are in your possession, which is why I took pains to let him know that if he's relying on this court to have those records, it just isn't so. I don't have them, you do. And now the question becomes, the statute says subpoena and the statute says notice and opportunity for hearing before service of the subpoena and before obtaining the records. And every case that I've seen, and I agree with Mr. Black, every case I've seen has arisen, to the best of my recollection, in a DUI context, but every single one of them has said that you do the process that way and not after the fact. Now, I admit that you went through the search warrant process and I haven't found one case outside of Viatical that talks about the seizure of medical records by search warrant. And Viatical, as Mr. Black correctly points out, raises issues about the fact that it was, first of all, from a non-medical provider, and second, it was in the context of people who have put their health condition at issue because in essence they're selling their health condition. So it's certainly disparate from the circumstance we find ourselves in in the instant matter. So I'm concerned about why it is I should suggest to Mr. Black that he's wrong and that we should stand all the court cases from Johnson, Hunter, the Fourth has a few itself, on its ear and say, "Well, let's forget about that, the State has protected Mr. Limbaugh's rights by not looking at those documents, just trust them." Obviously he doesn't trust you. He's not too pleased with your performance.

MR. MARTZ: -- in two parts. The first part is, Judge, in reviewing just the tabulation that's involved with the search warrants and attached to those we see that Dr. Murray had a prescription filled by Rush Limbaugh on the 2nd of June in the year 2003 for 30 Lorcets. Lorcet is hydrocodone based drug.

MR. MARTZ: One day later, one day, Judge, one day later he goes to Dr. Deziel, Dr. Deziel gives him 240 Norcos.

THE COURT: Counsel, I'm going to say the same thing to you. I don't mean to be rude. I I'm going to say the same thing to you as I said to Mr. Black. I don't care why his client became addicted to these medications, if, in fact, he did. And I don't care for today's purposes whether or not you really have a good reason to think that he was doctor shopping or not. The question I am asking you is, there is a statutory procedure for the service of a subpoena for medical records that you have not complied with. Why should I distinguish what you've done and claim it not to be a violation of the right to privacy?

MR. MARTZ: If the Court would be as kind as to give me about three minutes on the path I was on, I honestly think I can answer that.

MR. MARTZ: One day later, 240 Norcos, which is hydrocodone based, from Dr. Deziel. Seven days later, back to Dr. Murray again for another 30. Okay? And this is just two small parts of the tabulation. Dr. De La Cruz on 6-27, 40 Lorcets. Three days later, Dr. Deziel, 100, 100 Norcos. Now, the problem I have with that, Judge, is with the pattern there, I don't know who's doing what. Does Dr. Deziel have something there that he's concerned about issuing that many prescriptions that fast in a row? I don't know. And clearly when we look at Viatical, the quote that I think is probably as telling as any for the State's position in this and the reason the State went forward is at the bottom of page 5 on the copy of Viatical where it says, "We entirely disapprove of any command to the State that it worked with the target of its investigation to agree on the scope of a search warrant."

Judge, we don't know what they're going to do. We don't know if records are going to be destroyed. We don't know if the doctor's side is concerned about the records. We don't know the latitude of the patient's side of the records. Being not familiar with the relationship of the parties, not familiar with the scope of it, to insure the integrity of those records and bring them in front of this court some day in a criminal prosecution, the State has to be able to stand up here in front of you and say, "Ladies and gentlemen, we invoked proper, proper scope of investigation in an effort to insure the integrity of the records we are putting before you today. Undoctored, they didn't know we were coming, came, executed a search warrant properly protecting the patient's right to privacy." And bringing those records with as much integrity as possible before that court, whether it be a judge or a jury. All of which, Judge, is the reason for employing that process.

To take away the State's search warrant power, the power to go before a court of competent jurisdiction and ask for that court to recognize the actions as probable cause, much higher standard than that of showing relevance on a subpoena, Judge. That would have been the easier way to go, I would suggest to your Honor. But it would not have insured the integrity of those records the way we insured them and we still protected the patient's right to privacy, every bit as much as that hearing we would have had pre-subpoena. I would say Viatical being a Fourth District case, 1999, still does supply precedent for this court with regard to using a search warrant as the vehicle to obtain the records, and they talk about the fact that the State shouldn't have to do business with the person they're investigating to obtain records against them. It's bad enough we can't talk to them because they certainly enjoy that privilege. But we certainly have to have some latitude to investigate cases where they're the subject.

THE COURT: Counsel, what about Mr. Black's suggestion that I hold off making a ruling while he briefs the issue?

MR. MARTZ: Judge, you know, it's a shame that we're at the point that we're at. These are ten minute hearings in DUI fatalities when people lose their lives. We're standing here in front of you in a case where the person who is claiming to be the plaintiff and to be harmed went on a nationally syndicated radio program admitting to be addicted to prescription pain medication. Boy, not a big news flash out here. He told them. And that was before the State ever executed any search warrants. So the big secret isn't there anymore and it was not there because of us. His own client did it. So I guess he's not as concerned as I was about those leaks if he told 30 million people on national radio.

THE COURT: Well, I've given you both now an adequate opportunity to play to the press and I appreciate the fact that that happens. But I asked you a simple question. He wants to brief the issue. What's your thought on that?

MR. MARTZ: It's simple, Judge. It's relevance. We've more than met that standard. We'd ask to go forward with our investigation.

THE COURT: Mr. Black, if you want to submit a brief, how long do you need to submit a brief?

THE COURT: I find it interesting. You asked for an emergency hearing within three days.

MR. BLACK: Well, because if I didn't ask for the emergency hearing, I didn't know what would happen with the records. So I had to get into court to have the process of this court to be sure nothing happened with the records. I'll take three days. How's that?

THE COURT: Mr. Black, I've heard your argument. There's no requirement in State court that a brief be filed. You did file a petition, you cited some law in there, you've cited some to me today. I think I'm sufficiently apprised of the issues to be able to rule. Thank you.

MR. BLACK: Yes, your Honor, there is one other matter we would like to bring up. We believe that if the Court should rule that the records should be released, we request a stay under Florida Rule of Appellate Procedure 9.310, and there's a series of cases dealing with this where you deal with privileged matters where the release of them would be the harm that is involved, the parties should get a stay and be able to petition certiorari. I think all we can do is petition for certiorari, which is a fairly quick matter. But if the Court should rule that some, all or just parts of these records should be released, we would ask for an opportunity for a stay within time file to writ of certiorari at the Fourth District.

THE COURT: Now, part of your petition has been that there is a true emergency because Mr. Limbaugh can't be treated by his physicians since the State has all his records.

THE COURT: You're asking for a week, you're asking for three days, now you're asking for a certiorari stay which would be a month, six weeks or whatever it might be.

MR. BLACK: Subsequent to filing that, we found out that doctors were able to make copies of the records when the originals were taken. So that's not so much a compelling problem for us.

THE COURT: I see. I see. Okay. Thank you. Mr. Martz, what about his request for a 9.310 stay should I be inclined to decide your way?

MR. MARTZ: Judge, I honestly think it's in the purview of the Court to make that decision. I don't think I have an argument on that.

THE COURT: Okay. Thank you. Ladies and gentlemen, we're adjourned. Thank you for your time.

JOANNIE FIEGER, CSR, RMR, CRR, Notary Public, do hereby certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true and correct transcription of my stenotype notes of the proceedings.

News the Press Won't Report: Judge Reseals Records December 24, 2003

BEGIN TRANSCRIPT 12:07 PM EST

For those of you in the media who are rolling - welcome to those of you watching on the Dittocam, by the way - it's always a pleasure to allow you into the EIB broadcast complex here to actually witness what's going on. But for those of you in the media who now regularly roll on this program, there's a little announcement here, and only one network has reported this news this morning that I learned around ten o'clock Eastern Time.

I want to remind you of something I said yesterday as a predicate here. From the statement that I made yesterday, behind this Golden EIB Microphone was this paragraph. "The judge's order directs my attorneys to file any motions or pleadings that he deems appropriate." This is about the medical records hearing that occurred on Monday. As you know, the judge ruled that the state could - well, they rejected our request to keep the medical records private, but a little bit more to it than that.

"The judge's order directs Mr. Limbaugh's attorneys to file any motions or pleadings he deems appropriate, meaning for an appeal of his decision." So we did. We filed for a stay yesterday. We want to appeal this. If we have to go to a Circuit Court of Appeals of Florida, we will do so. Now, this doesn't stop the state from opening the records, and I made this point yesterday. They can open the records pending the judge's decision on our request for a stay. But this is the key. I said, "We'll just see how much the state respects our desire to follow the legal process all the way down the line on this."

Okay, that's from yesterday. So just make it clear, the judge said the state could go ahead but pending our submission of reasons why they should not, why there should be a stay, a delay on his decision, before we can appeal it. Here's what's happened. Yesterday the court entered an order continuing my lawyer's request to keep my medical records private. However, the court recognized the seriousness of the matter and sought further legal authority from my lawyers on the issue of a stay of his order so that an appeal could be pursued. My lawyers communicated with the prosecutors and asked again that none of my medical records be examined until the court ruled on the stay request.

The state advised my lawyer later in the day, yesterday that, Barry Krischer, who is the elected state attorney down here, told his investigators to go ahead and open my medical records, despite the requests from my lawyers and the consideration of a stay by the judge. Then this morning, the court granted the stay, but the prosecutors had already begun to read my records. So we got the stay; we got the delay; we have a chance to appeal the judge's decision, but the state went ahead and opened the records and had investigators poring through these things despite our request that they just wait until the judge just rule on our request for a stay.

They couldn't wait; they had to open them. The elected state attorney himself ordered it. The state's attorney, Barry Krischer, personally ordered it from what we're told and his investigators began rifling through my medical records. Yet today the judge granted our stay and now we have a chance to appeal his decision. This means that the records have been ordered sealed again. But the state attorney has already had his investigators poring through them. I'm not surprised. My case is being treated differently than anyone else's is in this matter.

Now, this happened, as I say, a couple of hours ago. MSNBC is the only network that has reported this today. MSNBC is the only network that's had any news whatsoever that the judge granted our request for a stay so that we could appeal his decision. Yesterday it was the biggest news in the world that the court had rejected our request to keep the medical records private. It was the news all day; it was the news all night. Now the court has accepted my lawyer's pleadings today and said, [paraphrased] "Okay, we're going to grant you the stay; medical records have to be sealed." But the state attorney had already looked at them, but none of this has been reported in the press today.

I will not mention this to you, folks, I would not bring this to your attention were it not for the fact that nobody else in the media is despite the fact that they are clearly all aware of it. Also, one other thing. As you know the medical records hearing was Monday afternoon at two o'clock, and the medical records hearing as are all of these proceedings open to the public. The media was there in great number, and it's, therefore, public material. So we have posted on my website the transcript of the entire hearing that took place Monday afternoon.

It's about an hour in length. Not to read it but that's how long it went. It's right there on the home page, the front page of the website. It's on the free side. You don't have to be a subscriber to see it, and if you read it, you will see yourself what has not been reported about what was said. And many things that were said by my lawyer and by the judge and by the state in this hearing on Monday that the media, who were witnesses have chosen to ignore. So you can go to the website, www.RushLimbaugh.com and peruse word-for-word the transcript of the medical records hearing, and also I just wanted to tell you the judge today granted our request for a stay at a medical records. Mine must be sealed, cannot be opened, although they were by the state attorney's office. They'd begun rifling through them. Even though they could - I want to stress that the judge's order yesterday said - we personally asked them not to, just wait till the judge rules on our stay and they didn't, because I'm being treated differently than anyone else in this circumstance.

END TRANSCRIPT

Click on link above to read the Article [in which, as Rush just now said on the air, there is inaccurate reporting. ie: They *HAVE* already been pouring through the medical records until today when the judge decided to reseal them.]...

(AP: Judge rules Limbaugh medical records to remain sealed for now)

Listen to Rush...

(...discuss the latest ruling resealing his medical records pending appeal)

"We have a friend who had that procedure where they operated on his back by going in the front of his throat. That was the first time I heard of that type of surgery." ~ cyncooper

"Roy Black, Limbaugh's lawyer, ... said during a Monday court hearing that his client suffered from a degenerative disc disease with ''pain so great at one point doctors thought he had bone cancer,'' and that Limbaugh chose to take addictive painkillers rather than have surgery.

Surgery would have meant doctors would have gone through Limbaugh's throat to operate on his spine, which could threaten his career as a commentator, Black said during a Monday hearing.

Limbaugh's former maid, Wilma Cline, learned of his addiction and threatened to sell the story to The National Enquirer. She and her husband, David Cline, demanded millions and were ''paid substantial amounts of money,'' the lawyer said."

*

"...During a hearing over whether prosecutors should have access to Limbaugh's medical records, attorney Roy Black said Limbaugh paid "extreme amounts of money" to Wilma Cline, his former housekeeper, and her husband, first for pills and then for extortion. Black alleged that the Clines had threatened to go public with information about Limbaugh's drug use unless they received $4 million.

Black said Limbaugh wanted to contact the FBI, but was told by an unidentified friend that if he went to the authorities, they would target him, and his political enemies would use the information against him.

"That's exactly what happened," said Black, who also alleged that Cline's husband was a convicted drug trafficker. ...."

Sources for the above excerpts:

AOL News Updated: 12:12 PM EST 12-23-03
Limbaugh's Medical Records Opened to Prosecutors
Possible 'Doctor Shopping' Investigated - By JILL BARTON, AP

*

Limbaugh's Lawyer Accuses Housekeeper of Blackmail
Susan Candiotti, CNN.com NewsWire (Dec. 23)

"I wonder what he knows that everybody else doesn't?" ~ Two_Sheds

Don't say, "everybody else". Take a peek at what Mark Levin has to say to "Herbie" the caller in the exchange below.

Tuesday, 12-23-03 Aprox 5:30 PM EDT Sean Hannity Radio Show

Transcribed from my audiotape by me.

Host, Curtis Slewah {sp?), sitting in for Hannity.

Guest: Mark Levin of the Landmark Legal Foundation.

Curtis: "..Now, Mark, on the matter of Rush Limbaugh, we heard him on his nationally syndicated show respond to what his attorney Roy Black had said about the Palm Beach District Attorney's office and their on-going investigation. It's very confusing to me, and I think most folks listening from afar, because of the nature of us not really knowing what's going on. Can you try to bisect it and dissect it for us?"

Mark: "OK. This hasn't been discussed in any detail by all these meatheads on TV, and it's very upsetting to me. I secured a copy of the transcript of the hearing and I want to walk you through this briefly. But there are very, very important points that haven't been made public, that are in the public record! OK?

Number one: The Florida Constitution creates a fundamental right to privacy, in article one, section three.

Unlike the US Constitution, in which every Liberal tries to find a right to privacy, Florida actually creates one in black and white, OK? It has a statute that creates a doctor-patient priviledge, OK? This becomes a fundamental right under article one, section three, twenty three of the Florida Constitution.

Number three: There's a three-part test that has to be met before you can get a search warrant. The test, in my opinion, was not met. The difference between a search warrant and a subpoena is this; a search warrrant, you're concerned -- prosecutors are, law enforcement is -- that the evidence might disappear, so you might want to get a breathalizer test right away. You might want to look for something right away. But doctor's records??

As opposed to a subpoena, where the party being subpoena'd, or the party being targeted has a right to intervene, seek court, ah, seek a hearing, before they can actually seize the documents. At no other time, in the history of Palm Beach County, has a search warrant been issued in this manner against somebody who was addicted to pain killers -- against somebody who went into rehab.

So, what is it that they're investigating? Let me put it to you this way, Curtis, first we read the leak about money laundering, right?"

Curtis: "Yes"

Mark: "Then they asked the New York authorities, 'Are you investigating money laundering?' 'No'.

Curtis, interrupting: "Right -- Attorney General, Elliot Spitzer, who's a pit bull on almost every issue, said, 'No, we're not looking into this at all'"

Mark: "And no fan of Rush Limbaugh's, I'm sure."

Curtis: "No, not at all. Nor of Sean Hannity, I might add."

Mark: "Then we heard about a drug ring. What happened to the drug ring this DA was investigating? Then we heard about this maid who was all over the National Enquirer. Does anyone know where this maid is? 'Cause I haven't read any reporter who's interviewed her., or her drug-pushing husband. Where is he?"

Cyrtis: "Alright now, on that matter -- ah, there were media reports today in which Roy Black was talking about the blackmail -- the actual blackmail. Ah, what penalties exist for that in the State of Florida, that the maid and her husband might be subject to?"

Mark: "There are extortion penalties in every State. Those are very, very serious crimes. I don't know why this DA is standing on its heels or sitting on its tukkas (sp?). Now, hold on, I just want to make a point."

Curtis: "Sure."

Mark: "Let's talk about these four doctors. This is critical. Roy Black layed this out the other day, and not a single media outlet picked it up, Curtis. They accused Rush of 'doctor shopping'. That's the big crime they're looking for, OK? Now listen to this. Two of the doctors are Dr. Drurer (sp?), and Dr. D'Zeil (sp?). Alright?"

Curtis: "Yes."

Mark: "They say Rush would go to Dr. Drurer and then would go to Dr. D'Zeil, or D'Zeil, and then go to Drurer, and somehow shop doctors in order to get prescriptions, OK?

Curtis: "Ah huh."

Mark: "What their affidavit to their search warrant did not say, is that these doctors both worked at the same surgery center -- the Jupiter Outpatient Surgery Center -- and not only that, as Black pointed out, Drurer was only filling in for D'Zeil when he was available to issue the prescriptions to Rush. There is no doctor shopping between these two judges -- I mean doctors.

Want to hear the third doctor? He's Dr. Del'a Cruz (sp?), of Los Angeles. He works at the House Ear Clinic. Rush went there, because six months prior to losing his hearing, he sought treatment. And then he was treated by another physician, who was there for his hearing loss - ah - that's it! That's the doctor shopping they got!

Now, no judge hearing this before this search warrant went through, would have accepted the argument that there, on its face, that there was a potential violation of this so-called "doctor shopping" statute."

Curtis: "All right. Well you've answered most of the questions that I know I and others had as there continues to be comments from Black who is representing Rush Limbaugh. I appreciate your insights Mark Levin."

A Pharmacist named "Herb" then calls in, and Curtis questions him about what he is required to do (in the way of reporting it to the authorities) if he suspects someone may be "doctor shopping" in order to obtain more and more prescription drugs.

Mark Levin then called back in to the show.

Curtis: "Alright, well Herb, on the line, we actually have counsel. Ah, Mark Levin -- we had just heard from him -- wanted to just engage you on something you said. Are you there Mark?"

Mark: "Yes. Yeah, here's the problem, Herb."

Herb: "Ah huh."

Mark: "They're investigating 'doctor shopping', OK? You're saying, 'well the real legal problem is, they are investigating 'doctor shopping'. Now why do you think they're doing that?

Herb: "They are investigating it, or they aren't?"

Mark: "Yes. They ARE."

Herb: "Well, because basically, to me as a pharmacist, I would say this person who was doing the doctor shopping, has a big problem."

Mark: "No, no, that's not why. Because the entire other part of their so-called case, doesn't exist any more.

The maid sold her story. The maid was an alleged extortionist. The maid's husband was a convicted drug pusher. Where is this drug ring? Where is the money laundering? Those are all apparently, dead ends.

So now, they are doing what we call, 'paper shopping' by looking at these doctor's records. And if you heard what I said earlier on this program, you would have heard the backgrounds of these four doctors, and how on its face, it's absurd."

Herb: "Well, you know, anywhere in the United States, unfortunately, you can always find physicians -- there is always those few rotten apples in the barrel ..."

Mark (interrupting): "But Herb, you've switched positions. You called Curtis and you said, that's not the issue, who wrote prescriptions' - but where did he buy the drugs?"

Herb: "Right."

Mark: "I just explained to you why that door's locked. And now you're coming back around the corner and you're trying to argue, there's a few doctors out there who will always write prescriptions -- that's NOT "doctor shopping".

Herb: "Well, let me just say, I'm not a lawyer. I don't know all the intricacies of what you're saying as far as physcians, but my position is, that, and I listen to Rush quite often .."

Mark (interrupting): "I'll tell you what was said in court... I'll tell you what was said in court ...."

Herb (interrupting): "No, no, my position is, that it was very poor judgement on Rush's part to go ahead with this thing. I don't care if... "

Mark (interrupting): "I think everybody knows that. Rush got a addicted to pain killers. Now, we're beyond the (garbled ?lecturing?). He went to rehab. This prosecutor apparently has never gone after a first-time addict after he's gone to rehab. You don't have to be a lawyer to figure this out. You don't have to be a pharmacist to figure this out."

Curtis: "All aright Mark, I'm going to have to let you and Herb go now .."

Mark: "Alright, my honor."

Also posted here:
http://www.freerepublic.com/focus/news/1045420/posts?page=354#354

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