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					      Case 1:09-cv-00386-SEB-JMS Document 32                   Filed 04/10/09 Page 1 of 9

                            SOUTHERN DISTRICT OF INDIANA
                                INDIANAPOLIS DIVISION

DR. BARRY EPPLEY, MD, DMD,                )
            Plaintiff,                    )
      v.                                  )                   Cause No. 1:09-cv-386-SEB-JMS
LUCILLE IACOVELLI,                        )
            Defendant.                    )


       Plaintiff, Dr. Barry Eppley, MD, DMD, by counsel, submits this Supplement to address

ongoing violations of this Court’s April 8, 2009 Order, bearing on the pending show cause

motion seeking contempt sanctions, as filed on April 6th. The defendant and her associates are

now defaming the presiding Judge and mocking the authority of the Court, in an effort to create a

sensation on the internet and stir up public attention. At the scheduled hearing on April 17th or

at such earlier time as the Court deems appropriate, they should be ordered to show cause why

they should not be held in contempt. Dr. Eppley states:

       1.      Dr. Eppley filed his Verified Complaint in this matter on March 30, 2009, and the

Court granted a Temporary Restraining Order (the “TRO”) the same day. With substantiating

exhibits, the Verified Complaint explained defendant’s recent suicide threats and Dr. Eppley’s

reasonable efforts to alert mental health authorities and seek relief in this Court to address the

anticipated publicity. See Verified Complaint Exs. 19-27. Those communications include not
      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 2 of 9

only one or two e-mails that Ms. Iacovelli has suggested Dr. Eppley may not be able to prove

were hers, but also contemporaneous website postings saying should would be taking her life

around mid-April. Id. Exs. 24 (“I will end my own life”), 26 (will wear each of 26 garments “at

least once before leaving this life”), 27 (“This is not a suicide message. It is a statement of my

decision to stop fighting for every breath.”). Ms. Iacovelli also threatened repeatedly on the

internet that she would try to publicize her suicide. Id. Exs. 1 (“a video camera will capture the

gruesome event”), 23 (“I will not be silenced during my life time, and certainly not after my

death.”), 25 (Mr. Bergeron will “set the record straight” after her story reaches an unhappy


       2.      Defendant and two media associates were duly given actual notice and served (see

April 3, 2009 Affidavit of Counsel), and both Ms. Iacovelli and Mr. Bergeron were aware of and

attended the April 7th hearing scheduled in the TRO by telephone, at their request and without

objection. The day before that hearing, Dr. Eppley filed the show cause motion, based on an

undisputed record of clear violations of the TRO by both Ms. Iacovelli and Mr. Bergeron. See

April 6, 2009 Motion to Show Cause, Second Affidavit of Counsel. That motion was thus before

the Court at the April 7th hearing.

       3.      On April 8th, the Court entered the Order extending the TRO. The Court

expressly admonished both Ms. Iacovelli and Mr. Bergeron that immediate compliance with the

TRO was mandatory and “any further non-compliance” could result in sanctions. Id. ¶¶2-3. The

Court further emphasized that the defendant cannot do indirectly through others what the TRO

prohibits her from doing, and the Court’s authority extended to the website created by Mr.

Bergeron, Id. The Court further admonished Mr.

Bergeron that the website “must immediately and without further delay, in accordance with the

      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 3 of 9

terms of the temporary restraining order, be removed from the public realm.” Id. ¶3 (emphasis

added). The Court took the contempt motion under advisement. Id. ¶4.

       4.      The defendant and her associates, in short, were given a last chance to withdraw

the internet publications they made in violation of the TRO, and were expressly warned that

further violations could be expected to result in contempt sanctions. Mr. Bergeron reacted by:

(1) challenging the presiding Judge’s impartiality, (2) threatening to sue Dr. Eppley and his

attorneys in Massachusetts, (3) promising to “[m]aintain” the website that the Court ordered

removed, (4) endeavoring “to attract major news media interest in this lawsuit,” and (5) claiming

to be the victim of an “old-boy Indiana network” and “rubber stamp” justice. See Third

Affidavit of Counsel Ex. B. Given the express terms of both the TRO and the Order extending

it, and the unequivocal admonishment provided by the Court at the April 7th hearing, that

conduct can only be described as willful and calculated contempt of the Court’s authority.

       5.      As the TRO stated unambiguously, and as Mr. Bergeron was specifically

informed by both counsel for Dr. Eppley and the Court, an injunction issued by the Court is

binding not only on the actual party but also on all those “in active concert and participation.”

See Securities and Exchange Commission v. Homa, 514 F.3d 661, 673-75 (7th Cir. 2008) (“if

courts did not have the power to punish those who cooperate with those named in an injunction,

the named parties could easily thwart the injunction by operating through others”); Lindland v.

United States Wrestling Association, Inc., 227 F.3d 1000, 1006 (7th Cir. 2000) (“The ‘active

concert or participation’ clause is designed to prevent what may well have happened here: the

addressee of an injunction, eager to avoid its obligations, persuades a friendly third party to take

steps that frustrate the injunction’s effectiveness.”). Even though he is not a party, Mr. Bergeron

      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 4 of 9

is subject to the Court’s orders and is answerable for contempt by his willful and defiant


       6.      The Court can and should find both the defendant and Mr. Bergeron responsible,

furthermore, for the outrageous violations carried out through “Frank de Groot.” The messages

from Norway have clearly been coordinated with the events in the litigation: the Sunday morning

“Weapon of Mass Destruction” messages to Dr. Eppley and his attorneys (see Second Affidavit

Exs. E-G) followed on the heels of Mr. Bergeron’s promises to generate “more and more”

adverse publicity on the internet, to “exponentially” greater effect, by turning on the “full force”

of his publicity system with “global reach” (id. Ex. A, Affidavit of Counsel Ex. H). The April

7th de Groot message stating the presiding Judge should be “disbarred” due to “financially-

motivated corruption” (Docket No. 21), moreover, was sent about an hour and a half after the

Court finished orally admonishing Ms. Iacovelli and Mr. Bergeron by telephone that compliance

with the TRO was mandatory. Following the same pattern, the web page devoted to accusing the

presiding Judge of being “corrupt,” a “criminal” and a “thug” (Third Affidavit Ex. E), appeared

the day after Mr. Bergeron announced his defiance of the Court’s orders and promised to

continue his efforts to generate publicity (id. Ex. B). In addition, the messages from Mr. de

Groot display a familiarity with the Court strongly indicative of direct communications with Ms.

Iacovelli and/or Mr. Bergeron, such as knowing the name and e-mail address of the courtroom

deputy (Docket No. 21) and stating twice on the “Corrupt Judge” web page that the Court

threatened to confiscate Ms. Iacovelli’s computer (Third Affidavit Ex. E), referring to something

the Court said orally at a hearing Mr. de Groot did not attend.

       7.      The messages from Norway, furthermore, have been directed to achieving

litigation concessions for the benefit of the defendant: calling on Dr. Eppley, for example, to

      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 5 of 9

contact Mr. de Groot within twelve hours to avoid the internet barrage (Second Affidavit Ex. E),

and threatening to ruin the reputations of the law firm and its individual partners if they

“continue” to represent Dr. Eppley (id. Exs. F, G). Revealingly, the de Groot message directed

to the Court stated “[w]e” will seek to have the presiding Judge “disbarred” for alleged

corruption (Docket No. 21), while Mr. Bergeron almost simultaneously threatened a recusal

motion on the same frivolous grounds (Third Affidavit Ex. B). Mr. de Groot, if not an alter ego

of Mr. Bergeron, is at very least his agent in carrying out the announced plan to make the lawsuit

go away by pressuring Dr. Eppley with an increasing volume of adverse internet publicity. See

Affidavit of Counsel Ex. H, Second Affidavit Ex. A, Third Affidavit Ex. B. Mr. Bergeron,

furthermore, while denying he recruited de Groot, states he “imagine[s]” de Groot will dismantle

his website just as Mr. Bergeron will his own, “if the suit is withdrawn.” Third Affidavit Ex. B.

Ms. Iacovelli, the actual party to the litigation and the beneficiary of the efforts by Mr. Bergeron

and his world-wide network, has done nothing to stop their aid to her cause and nothing to

disclaim the benefits they seek to achieve for her. They are jointly responsible for the ongoing

violations of the TRO.

       8.      Mr. Bergeron, moreover, has demonstrated contempt for the Court’s clear

determination that, as a non-lawyer, he is not authorized to engage in the practice of law in this

proceeding. Despite the Court’s repeated warnings in the April 6th Order (Docket No. 19), at the

April 7th hearing and in the April 8th Order (Docket No. 22), Mr. Bergeron has persisted in

trying to engage Dr. Eppley in settlement negotiations,1 threatening counterclaims, delay and

       Mr. Bergeron’s suggestion that his message is “inadmissible” as a settlement
communication (Third Aff. Ex. G) illustrates his misunderstanding of the law. Under Fed. R.
Evid. 408, an offer of compromise is not admissible when offered to prove liability, invalidity of
a claim or the amount of a claim, or for impeachment purposes, but such communications are
admissible for other purposes. See Rule 408(b). Here, Mr. Bergeron’s communication is being

      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 6 of 9

increased legal expense, and describing himself as a “well-rounded pro-se attorney” out to prove

“that you CAN be your own lawyer.” See Third Affidavit Ex. G (also threatening to sue the

Judge, Clarian Health Partners, Lewis & Kappes and others; “I know all the basics of the law. I

know all the basics and some of the complicated aspects of the procedure, and what I don’t know

about the law and the procedure I can figure out.”). Again, Mr. Bergeron is flouting the

authority of the Court and doing exactly what he was admonished he is not authorized to do.

       9.      The suggestion that compliance with the Court’s Orders is somehow excused

because of an asserted First Amendment right is unsupportable. “Even if the order were

improperly issued, it must be modified or overturned and not deliberately violated when in

force.” In re Zyprexa Injunction, 474 F.Supp.2d 385, 419 (E.D.N.Y. 2007). See also Walker v.

City of Birmingham, 388 U.S. 307, 321 (1967) (“One may sympathize with the petitioners’

impatient commitment to their cause. But respect for judicial process is a small price to pay for

the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.”);

United States v. United Mine Workers, 330 U.S. 258, 303 (1947) (“The interests of orderly

government demand that respect and compliance be given to orders issued by courts possessed of

jurisdiction of persons and subject matter.”). Mr. Bergeron is not at liberty to defy the Court’s

Orders based on his subjective interpretation of First Amendment law, as though the Court’s

authority were contingent on his own independent legal assessments.

       10.     Notwithstanding Mr. Bergeron’s theory that his acts of contempt constitute

protected speech, the Court’s authority to provide injunctive relief in these circumstances is

supported on several grounds. The TRO is in the nature of a “gag” order, by which the Court has

properly restrained extra-judicial publicity efforts by the defendant and her associates in order to

offered to show contempt of court, insofar as he has persisted in trying to act as though he is Ms.
Iacovelli’s attorney despite this Court’s repeated admonitions that he cannot assume that role.

      Case 1:09-cv-00386-SEB-JMS Document 32                   Filed 04/10/09 Page 7 of 9

assure a fair trial. See United States v. Brown, 218 F.3d 415, 425 (5th Cir. 2000) (“The Supreme

Court and other Courts of Appeals have recognized a ‘distinction between participants in the

litigation and strangers to it,’ pursuant to which gag orders on trial participants are evaluated

under a less stringent standard than gag orders on the press.”). Injunctive relief, furthermore, is

within the Court’s power to grant in cases involving trademark violations (see, e.g., Bosley v., 310 F.Supp.2d 914, 930 (N.D. Ohio 2004) (“it is well-settled law that the prior

restraint doctrine is inapplicable in cases where one’s proprietary interests are at stake, such as

infringements of copyright or trademark”)),2 as well as in cases involving attempted “smear

campaigns” through defamatory internet publications (see International Profit Associates, Inc. v.

Paisola, 461 F.Supp.2d 672, 679-80 (N.D. Ill. 2006); Tory v. Cochran, 544 U.S. 734, 735-38

(2005); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. App.), transfer denied, 753 N.E.2d 16 (Ind.

2001)). The defendant and her associates have threatened to use pressure from internet and

media publicity to coerce a settlement (see Affidavit of Counsel Ex. H, Second Affidavit Ex. A,

Third Affidavit Exs. B, G), and are following through on that threat with overt acts in willful

violation of the TRO. The TRO is a lawful exercise of this Court’s authority, and defendant and

her associates have demonstrated contempt for that authority.

       11.     The Court enjoys broad discretion in addressing contempt. See Connolly v. J.T.

Ventures, 851 F.2d 930, 933 (7th Cir. 1988) (“A court has broad discretion to fashion a remedy

based on the nature of the harm and the probable effect of alternative sanctions.”). The insulting

nature of the TRO violations directed against the presiding Judge as well as Dr. Eppley and his

        The contention that, despite Dr. Eppley’s registration of his name, trademark law is not
implicated here on the theory that defendant and her associates are not engaged in a commercial
enterprise is belied by their pattern of conduct. They clearly are seeking to become internet
celebrities, in order to promote the market for Mr. Bergeron’s book and otherwise reap the
financial benefits of celebrity status.

      Case 1:09-cv-00386-SEB-JMS Document 32                  Filed 04/10/09 Page 8 of 9

counsel suggests that the defendant and her associates, especially Mr. Bergeron, are attempting

to goad the Court into punishing them in order to add drama to the story and increase the

publicity. Given the direct attacks on the Court itself, Dr. Eppley trusts to the sound discretion of

the Court in determining an appropriate remedy.

       WHEREFORE, Dr. Eppley supplements the pending motion for order to show cause why

defendant and her associates should not be held in contempt, requests that the Court order the

defendant and Mr. Bergeron to show cause at the April 17, 2009 hearing or at such earlier time

as the Court deems appropriate, and that the Court enter such sanctions for the willful contempt

evident here as the Court may find appropriate.

                                              By his attorneys,

                                              LEWIS & KAPPES

                                              By:/s/ Todd A. Richardson
                                              Todd A. Richardson (16620-49)
                                              One American Square, Suite 2500
                                              Indianapolis, Indiana 46282
                                              (317) 639-1210
                                              Counsel for Plaintiff, Dr. Barry Eppley

      Case 1:09-cv-00386-SEB-JMS Document 32                 Filed 04/10/09 Page 9 of 9

                                CERTIFICATE OF SERVICE

       I hereby certify that on April 10, 2009, that the foregoing was filed electronically. Notice

and service was sent to the following party via email and United States Postal Service Mail, this

10rd day of April, 2009:

       Lucille M. Iacovelli
       3 Deer Hollow Road
       Forestdale, MA 02644-1714

       I further certify that notice of the filing of the foregoing pleading was given to the

following by sending a copy of the filing to the following individual via email and United States

Mail, this 10th day of April, 2009:

       Richard Bergeron
       147 Old County Road
       East Sandwich, MA 02537

       Richard Bergeron
       141 Green Street
       Abington, MA 02351

                                                    s/Todd A. Richardson
                                                    Todd. A. Richardson

One American Square, Suite 2500
Indianapolis, Indiana 46282
(317) 639-1210 (tel), (317) 639-4882 (fax)


Description: Judge Sarah Evans Barker, Dr. Barry Eppley, and Attorney Todd Richardson, of Lewis & Kappes are perpetuating an ongoing injustice in the Indiana federal courts designed to punish a disabled victim of poor plastic surgery for speaking the truth. These are the documents that outline this deceptive and malicious campaign to silence one of Dr. Eppley's most outspoken critics. Please go to to learn more.