The Details of the Summary Judgment Motion Hearing.

The documents involved:

Memorandum of Law in Support of  Summary Judgment [pdf]

Mattel's opposition to summary judgment

Interspliced statements of material facts

Silverstein's pointing out Mattel's misrepresentations.

Mattel's irrelevant hand waiving 

Mattel's offer to shut Silverstein up with a $50,000 per blab penalty.

Mattel / Injury Page

V-Com Partition Destroyer
aka Partition Commander

Barbie SLAPP

Legal theories

Legal briefs

Press coverage

Mattel's links of shame

Timeline [1] [2] [3]

Useful Links

RSI / CTD / CTS / tendinitis / carpal tunnel tips

Summary Judgment Motion Hearing

Links to documents involved

Survey results

Round 1 Judgment

Amended Complaint [Round 3]

Complaint & answers [Round 1]

Counterclaim & answers [Round 2]

MCAD investigative report

Medical Information

Chinese medical records

Narrative story

Who typed this diatribe?

Some Great Artwork




At the start of the hearing, shortly after arguments began, Mattel's attorney asked that the case be dismissed. Silverstein told the judge that he would not object to the case being dismissed with prejudice. Though Silverstein did argue that Mattel should have dismissed this back in September.

Three days later, Mattel submits a motion to dismiss without prejudice. If this motion was granted, Mattel could file a new suit again for the same thing and start over. This could be Mattel's attempt to coerce Silverstein into silence with a continued threat of forcing Silverstein re-litigate Mattel's ridiculous countersuit from the start.

It seems as though Mattel is playing brinkmanship. Shortly before the case scheduled for trial, takes a rule 68 judgment against them. At the hearing on the summary judgment motion hearing on their counterclaim, Mattel pulls the ripcord on the proceedings by asking the judge to dismiss their counterclaim. I can't blame them, if I was Mattel, I to would be embarrassed for anyone to fully analyze the counterclaim. 

What I found to be deliberate misrepresentation by Mattel's in their Opposition to Summary Judgment Motion filings:

What Silverstein finds to be misrepresentations in Mattel's filings: 

  1. In paragraph 76 of Statement of Material Fact, Mattel claims that Silverstein was provided with adaptive keyboard shortly after Silverstein claimed of pain. 
    This keyboard was provided prior to the condition's occurrence, thus cannot be an accommodation. This was pointed pointed out and admitted to not being an accommodation by Deb Gorgens in 1996. Larry Mason, in his deposition admitted to this keyboard was provided before any complaint of pain. Silverstein also detailed this to Mattel / TLC / MSI in deposition testimony.

  2. In Mattel's opposition, "he even rejected MSI's offer to provide him with voice recognition software."
    The voice recognition software was rejected as unworkable! This was admitted in paragraph 76 of  Statement of Material Fact

  3. "and allowed him to take significant time off to receive treatment from massage therapists, doctors and acupuncturists."
    The defendants complained of the this time Silverstein had taken off for medical treatment. Even so, Mason admitted refusing an accommodation of spreading the time over the weekend, as recommended by Silverstein's doctor. More importantly, the accommodation that Silverstein really needed, the three weeks,  the defendants fired Silverstein when he took. 

  4. "Silverstein never verified that he underwent three-weeks of intensive treatment in China. MSI understands that while Silverstein may have used the three weeks to travel to Asia, he devoted little of his time there to obtaining treatment of his alleged condition. Indeed, in electronic correspondence with others, Silverstein stated that he spent only three days receiving treatment."
    Mattel / TLC / MSI forgets that they fired Silverstein before it would be possible to have arrived at the hospital. Mattel's attorney has had the Chinese medical records, and English translation, since 1997 (which also was published on this site since 1997) which details the treatment. In disputes regarding discovery,  Rosen even complained that Silverstein truthfully published Rosen's "off the record" statement that he did not feel a need to have their own translation of the medical records done. In deposition Silverstein detailed the treatment undergone China. The portion of the email that Mattel did not include detailed that Silverstein "received 10 acupuncture treatments (electrical and 2 cones of moxybustion), 5 massage treatments, 5 electrical muscular stimulation treatments, neck and arm x-rays."

  5. Mattel talks about the AB Box to change keyboard options. What Mattel left out, which they were caught on this before, is that they did not provide the needed cabling to utilize that AB Box.

  6. Mattel correctly states that an ergonomic consultant reviewed Silverstein's workstation. What Mattel omits is they tried to cancel the consultant's coming out at all to review the workstation. Mattel admitted to their interference

  7. Mattel misrepresents the meaning of email responses to the website: 

    • Doc. 1803 ("It's obvious that they lied from from their answers and their documents.")
      This person is talking about Mattel's answers and documents, not what Silverstein stated. 

    • Doc 1786 ("Bill, I owe you all sorts of responses -- and a call or two to Mattel and the Learning Company.).
      How does this indicate hatred or ridicule?

Mattel argues them their paying $140,874.80 in a rule 68 judgment is not an admission of wrongdoing and is not preclusive. A settlement may not be an admission, but one would think that a judgment entered into a court is.  Irregardless, Mattel paying over two years salary to a worker that was out of  work for seven months, to avoid a jury analyzing the facts in the case, speaks much louder than their denials.  

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