Face-off: The Confounding Case of Marchioni v. Keyes

One woman sued Keyes alleging that a piece of a surgical instrument was left lodged in her face. Another woman sued alleging that an eye-lift performed by Keyes left her unable to shut her eyes.
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Kail was finding Marchioni increasingly difficult. In March of this year, the lawyer negotiated a $29,000 settlement to be paid by Keyes’s anesthesiologist, who was a codefendant in the suit. Notably the amount was just low enough to escape being reported to consumers by the state medical board. Kail told her client they needed the money from the settlement to pay for expert witnesses to testify against Keyes. It was a matter of letting the little fish go in order to hook the bigger one. Keyes had also offered a $29,000 settlement, but Marchioni wouldn’t sign either agreement. In the case of the anesthesiologist, Marchioni alleged that she had not authorized Kail to approve the deal. (Kail said she had.) In April, after ten months on the case, Karl asked the judge to release her from her duties. It was two days before the trial was to begin.

“I emotionally cannot go forward with this. It’s affecting my health,” Kail said at a heating in which she called Marchioni “vitriolic.” Kail reiterated that she believed Marchioni’s case had merit. She just couldn’t take it to trial. “I get faxes from her that are not the kinds of faxes a lawyer wants to receive: ‘You have not subpoenaed Linda Tripp properly!’ ‘Your behavior is outrageous,'” Kail said, fighting tears. “I do not believe I can give her what she needs.”

Judge Richard Neidorf chastened Kail—”You should have a thick skin. You’re a trial lawyer”—but ultimately cut her loose. He postponed the trial for 60 days but warned that there would be no more delays. Then he offered some advice.

“Your allegations are bizarre,” he told Marchioni. “They may be true, but they’ll be very difficult to prove. Jurors might say ‘Hey, who cares? It’s not like you went to the emergency room with appendicitis or something you didn’t create. You had elective surgery'” In three years of hearing medical malpractice cases, he told her, he’d seen only one victorious plaintiff: a man whose doctor admitted on the stand he’d removed the wrong kidney “It’s hard to get a lawyer to take these cases in the first place,” Neidorf said, predicting that her chances of finding a lawyer now were just one in a hundred. “If you can’t find a lawyer, you’ll represent yourself. And you’ll never win.”

A few days later Marchioni called me to say she’d heard from Linda Tripp. “She’s in chemotherapy right now and cannot travel,” said Marchioni, reporting that Tripp was recovering from breast cancer. “But she’s willing to do whatever she can—a taped video conference, a sworn statement. This just shows I’m telling the truth.”

Tripp’s lawyer confirmed that the phone conversation had taken place after Marchioni hired a process server to subpoena Tripp. I’d been leaving messages at the Christmas Sleigh, Tripp’s store in Middleburg, Virginia, for weeks. Finally, her lawyer faxed a statement from Tripp. “I regret that anyone would have made a decision to choose a surgeon based on erroneous information apparently made available to the media by Dr. Keyes,” she wrote. “I was fortunate to find a wonderfully professional physician, Dr. Mark Richards, six months following my experience with Dr. Keyes to perform all of the necessary corrective work.”

Late one night, as the trial approached, Ana Diaz says she was getting ready for bed in her Chicago apartment when she got an anonymous phone call. “It was a man’s voice,” she says. “He said, ‘If you’re thinking of coming to California, don’t do it. I can get you in either Chicago or California.’ And I said, ‘Bring it on, honey’ and I hung up on him.” She called a girlfriend at the police department who said in order to trace the call, Diaz had to file a report. “I wanted to help Kay” she says. But she decided against it.

June 4 was trial day. As predicted, Marchioni had failed to find another lawyer—in part, she says, because Kail had placed a lien to make sure she got paid first. Marchioni sat at the prosecution table, her jaw set, her hands clasped in her lap. She pleaded with Judge Neidorf, asking for another delay. She said she did not know the whereabouts of her case file. She protested that she was unprepared to represent herself. “I didn’t expect this,” she said.

“You should have expected this,” Neidorf said. This was one of the oldest cases on his docket, and he was eager to get it resolved. “I think you’re playing games. This is the time to try this case.”

Things went quickly after that. Neidorf ruled that several former Keyes patients would not be permitted to testify. Then a pool of prospective jurors was led in. Keyes was not in the courtroom. His lawyer asked the jury pool not to hold that against him. The doctor had patients to see.

Many of the prospective jurors had opinions about—and experience with—plastic surgery. “I have a personal philosophy that plastic surgery outside of birth defects is frivolous,” said one young mother. “I think when you decide to have plastic surgery, you’ve bought the ticket, you see the show.” But she was in the minority.

A Korean American lawyer revealed she’d had surgery to put a fold in her eyelid. A publicist confessed to two nose jobs. A young man said he was in the midst of suing a plastic surgeon himself. “I have the scars to prove there was negligence,” he told the judge. Another young woman revealed “two botched laser surgeries” performed by another doctor. “I found out later that several people had lawsuits against him,” she said. A photo researcher said her mother had had plastic surgery “with a pretty bad outcome,” and so had she.

There were those who disapproved of Marchioni for turning a medical dispute into a legal one. A retiree said that when his wife had recently been diagnosed with cancer, her surgeons “saved her life. We would not have sued if something had gone wrong,” he said. “I’m very prejudiced against medical malpractice suits, which drive doctors out of the practice of medicine.”

But a Sherman Oaks textile salesman said he was sympathetic because Marchioni didn’t have a lawyer. “I don’t think the plaintiff stands a chance,” he said. “It’s like a Little League team playing the Dodgers.” Keyes’s attorney countered: “But if the Bad News Bears had the ability to subpoena the Yankees and demand that they play a game, would you feel sorry for them then?” The textile salesman paused. “No,” he said finally “But I wouldn’t attend the game.”

When it was her turn to question the jury pool, Marchioni stood up and told the judge she was unqualified to serve as her own lawyer. Too late, he said. She asked the jurors nothing, but occasionally wiped away tears. During a break, out in the hall, she said, “I feel like I’m going to my own execution.”

The next day, June 5, Keyes came to court. He wore a dark blazer, a gray dress shirt, cuffed khaki trousers, and a stem face. Marchioni wore pink. Defendant and plaintiff did not greet each other. He took a seat behind his lawyer. She sat alone, a single orange file folder before her on the wooden table. Neidorf swore in the jury delivered some pretrial instructions, and then asked Marchioni to call her first witness.

“I don’t have anyone to call,” she said.

“Do I hear a motion?” the judge asked. Keyes’s lawyer moved for dismissal. Three years and tens of thousands of dollars had been spent. Marchioni looked dazed. Keyes shifted in his seat. Neidorf picked up his gavel. “Case dismissed,” he said.

Four days later, on June 9, Keyes’s assistant called me to cancel my consultation with the doctor. On June 11, attorneys for Keyes and his anesthesiologist asked Neidorf to issue a judgment of nonsuit because Marchioni had called not a single witness. He did so. The order serves as a decision on the merits in Keyes’s favor and enables the surgeon to try to collect about $30,000 in court costs from Marchioni. (His attorney’s fees will be paid by insurance.)

“I won the lawsuit in short order,” Keyes says, “because there was no aspect of it that was true.”

They had all tried to help Kay but in the end, she had no one but herself. Keyes’s attorney says that was her own fault. “We were prepared to show that she has had a falling-out in one way or another with everyone she comes across,” he says.

Still, Marchioni wasn’t the only one responsible. “You would never want to do cosmetic surgery on someone who has just gone through a divorce, just had a loss, a death in the family had some major emotional crisis,” Keyes had told Good Morning America. Yet wasn’t Marchioni, a recent cancer survivor who’d been in the hospital only six months before, just such a person? When I raised this with Keyes after the trial, he scoffed. “She was a few years down the pike from that problem,” he said. “I was a head and neck cancer surgeon for 14 years. She had skin cancer. That presented no risk.”

A few weeks after the dismissal, I received a fax from Marchioni. Now she was suspicious of me, too. “How horrible it will be,” she wrote, “if I have not only been victimized by Dr. Keyes but then am subsequently victimized by Los Angeles magazine.”

In July Keyes’s lawyers got busy. One called Bill Moore, telling him to take down Marchioni’s Web site or risk legal action. Another sent a summons to Patricia Bacall, whose 1999 lawsuit Keyes had settled. Keyes is suing her for breach of contract, alleging that when she submitted a declaration in the Marchioni case, she broke the confidentiality agreement she’d signed when she got her $2,500 check. If Bacall’s defense—that she filed the declaration only because she was subpoenaed by Marchioni’s attorney—doesn’t hold up, she will owe Keyes at least $50,000.

Keyes is also considering filing one more lawsuit. According to one of his lawyers, the defendants would be Marchioni and “those acting in concert with her.” The charge: defamation and malicious prosecution.

 

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