Wakefield vs BMJ lawsuit dismissed on jurisdiction grounds

3 Aug

Andrew Wakefield’s lawsuit against the British Medical Journal (BMJ), Brian Deer and Fiona Godlee has been thrown out based on a lack of jurisdiction. Put plainly, he doesn’t have the standing to sue any of the parties involved as they are outside the U.S..

Had the lawsuit not been dismissed the BMJ team was prepared to fight the case on the facts. This is evidenced by vigorous response they made to the lawsuit, as well as supplemental filings.

Mr. Wakefield may have the opportunity to appeal the dismissal.

Mr. Wakefield’s home town newspaper, the Austin Statesman, has reported already on this in Wakefield can’t sue U.K. journal, editor and reporter in Texas

They write:

Godlee and Deer called the case frivolous and said it fit a pattern of Wakefield trying to silence his critics with lawsuits.

“We’re very pleased with the court’s decision,” said defense attorney Marc Fuller at Vinson & Elkins in Dallas. “We stood behind the reporting in the case, and from our perspective, it’s over.”

The comment above refers to previous attempts by Mr. Wakefield to sue Brian Deer. In one case, Mr. Wakefield dismissed his own lawsuit and was required to pay the legal fees for Mr. Deer. Had the current defamation case gone forward, Mr. Wakefield faced an anti-SLAPP motion based on a new Texas law which had the potential to cost Mr. Wakefield legal fees in this case. Based on the amount of documents supplied, the Texas suit has likely already cost a great deal of money, and was on track to be a very expensive endeavor. Mr. Wakefield may be fortunate to have gotten out early.

No comment yet on the Wakefield Justice Fund website. This site has not been updated a much anyway, so this is not surprising.

Since this is a dismissal on jurisdiction grounds, we do not have a ruling as to whether it is defamatory to call Mr. Wakefield a “fraud” or “fraudster” based on his research activities (such statements were part of Mr. Wakefield’s defamation suit), which resulted in his Lancet paper being retracted and which activities were deemed unethical by the General Medical Council.


by Matt Carey

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36 Responses to “Wakefield vs BMJ lawsuit dismissed on jurisdiction grounds”

  1. Sullivan August 3, 2012 at 22:11 #

    The second page of the dismissal document is a response to a motion by Mr. Wakefield to strike the evidence and testimony of Brian Deer. I guess that would have been easier than responding to the evidence. (the motion was denied).

  2. Science Mom August 3, 2012 at 22:43 #

    Heh, good. Well the Amurkin courts have spoken and that is what his devout have been caterwauling about. No doubt Wakers will use this to wail about how he has been denied and it will be lapped up.

    • Sullivan August 3, 2012 at 22:48 #

      That’s Ah-Mer’can, with a capital “M”. Mr. Wakefield will no doubt have paid a great deal for whatever spin-victory he can make out of this. Attorneys don’t come cheap. What’s left for him? Certainly not a career as a book author.

      • Science Mom August 4, 2012 at 20:48 #

        Oh oops Sullivan, I’ll have to keep that Ah-Mer’can spelling in mind. If what I have been reading from his synchophants is any indication, he didn’t get his money’s worth for a spin on his fraud. His attorney sounds perfect for him though, more performer than substance; his appeal should be deliciously entertaining.

  3. MikeMa August 4, 2012 at 02:04 #

    This is certainly good news. The gnashing of teeth should begin apace.

    As this is a jurisdictional dismissal, are Deer and the Lancet still entitled to fees?

    • Sullivan August 4, 2012 at 02:50 #

      I don’t know if they are entitled to fees. They might have to file some action to attempt to recover fees, but I don’t know.

      This is, of course, what the BMJ would consider a best outcome: having it clearly defined that they can not be sued by everyone in the world. I wouldn’t be surprised if Mr. Deer had at least some interest in seeing this through to a clear statement that this was not defamation.

      • Anne August 4, 2012 at 06:30 #

        Ironically if the BMJ and Brian Deer filed a case against Wakefield in Texas for, say, malicious prosecution, the court would have jurisdiction. Not that I think they would have a viable claim; I have no idea. I doubt that anything like that will happen.

  4. Broken Link August 4, 2012 at 03:15 #

    I am wondering why this suit was launched at all. Wakefield must have been hoping for some additional publicity/rallying of the troops, but that kind of fizzled out. Or maybe he was hoping for lots of publicity around his latest book. But that book didn’t even get off the ground at all. The only time I’ve seen it mentioned on the biomeddler lists is today on EoH.

    And not surprisingly, there is no mention on AoA about this yet. I wonder how they will try to spin it.

  5. Big Morbillie Style August 4, 2012 at 04:23 #

    Thanks for reporting on this so quickly. Puts a spring in my step for the weekend!

  6. lilady August 4, 2012 at 06:47 #

    This is great news…and about time. The only better news I would think, is if the BMJ, Godlee and Deer were awarded the costs associated with the defense of this frivolous lawsuit.

  7. Darwy August 4, 2012 at 07:08 #

    On one hand I’m happy the suit is dismissed – we have enough frivolous lawsuits in the US. On the other hand, I really wanted to see the BMJ and Brian Deer lay a smackdown on Wakefield so hard that his head would spin like Linda Blair’s in the Exorcist.

    • Shorty August 4, 2012 at 08:12 #

      You aren’t wrong. Even the most desperate Wakefield supporter (and especially anyone who gave him money) must have noticed that the BMJ filings contain not the faintest hint of ‘honest mistake’. They were up for taking him on, specifically on the facts of the fraud. I would think it is Wakefield who is mightily relieved this weekend, and Deer who is disappointed.

      That said, I’d guess there are any number of people who might now have a viable lawsuit against Wakefield – especially if they gave him money and can prove what he told them to get it.

      • lilady August 4, 2012 at 08:42 #

        Yes in an ideal world, people who were convinced by Wakefield and Team Wakefield, that his was a just cause, could sue.

        It ain’t ever going to happen, because they are now convinced that yet another country has deprived the martyred Andy of his day in court and justice.

      • MikeMa August 4, 2012 at 11:57 #

        I seriously doubt anyone dumb or blinded enough to give St Andy money will be suing him.

        Hard to believe he will re-file in the UK but what other steps can he realistically take? I know the word ‘realistically’ doesn’t enter into it but still…

  8. Lawrence August 4, 2012 at 12:34 #

    @MikeMa – AoA is in the midst of “historical revisionism” again, after their incredibly hype that it was “so obvious” that Wakefield would get a favorable ruling in a US Court. Now they call the ruling “not unexpected.” And are now talking about the appeal….

    Of course, what people over there don’t realize is that to win on appeal, Wakefield now has to show significant defects in the lower Court’s ruling – it isn’t about evidence any more – he has to show why the lower Court judge was wrong.

    Good luck with that – of course, once he loses on appeal (if he does appeal, since his track record in this regard isn’t the best), that’s pretty much the end of the story – though he will still be able to play the “martyr” card.

    • MikeMa August 4, 2012 at 12:59 #

      @Lawrence,
      (IANAL) I think I understand that the appeals court will only act if the lower court made an error of law, a very unlikely idea in this case, but the appeal could be used to fire the money machine.

      It is in many ways disappointing that the meat of the case was not decided as it would/will surely go against Wakers and his nonsense.

      • Lawrence August 4, 2012 at 13:28 #

        @MikeMa – yes, there has to be an error of law for a successful appeal, which given the jurisdictional hurdle (and the Judges probably asking themselves, why is this English guy filing suit against an English Journalist and UK Publication in an American Court) I doubt they will even look at the other evidence at all.

        Of course, given the dime-store nature of Wakefield’s attorney in the case, versus the combined legal expertise of an AMLAW100 law firm, I don’t think the issues were in doubt anyway.

        This isn’t about the actual evidence, it is about spin. Wakefield wants to keep the gravy train going & he can continue to do so as long as he can play the “victim.”

  9. Brian Morgan (@BRIANM0RGAN) August 5, 2012 at 13:15 #

    The latest from Age of Autism, by Jake Crosby, is that Judge Meachum seemingly has a vaccination related conflict of interest. Her husband’s Public Affairs lobbying company represents or represented the Texas Academy of Family Physicians – it’s a bit of trail – but the bottom line is that the judge is definitely part of Big Pharma. Go read.

    • Sullivan August 5, 2012 at 14:25 #

      “go read”

      Thanks, but I bet your synopsis covers it.

    • Chris August 5, 2012 at 17:29 #

      It only makes sense if you have problems with basic geography. Now explain to us again why a Texas court would have jurisdiction over those living in another country.

      • Anne August 5, 2012 at 21:14 #

        A state court can have jurisdiction over a party residing in another country if that party has the requisite “minimum contacts” with the forum state. The seminal cases are International Shoe Co. v. Washington, 326 U. S. 310 (1945)(resident of another state) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286(1980)(resident of a foreign country). For a couple of examples of the analysis performed by Texas courts, see Guardian Royal Exch. Assurance, Ltd. v. English China, 815 S.W.2d 223 (Tex. 1991)(no jurisdiction over a British insurance company)and Siemens AG v. Houston Cas. Co., 127 S.W.3d 436 (Tex. App.2004)(jurisdiction over German manufacturing company). You can find these cases on Google Scholar. If you read them, you’ll see that the issue of personal jurisdiction is both fact-intensive and legally complicated. Though Judge Meachum didn’t explain how she arrived at her decision, the description of Dr. Wakefield’s lawyer telling the judge “if you pick a fight with a Texan, you settle it in Texas” suggests a weakness in Wakefield’s position on the jurisdictional facts and the law.

      • Sullivan August 6, 2012 at 16:10 #

        Thanks for this, Anne.

        Obviously if a UK resident flew to Texas and knocked over a fence, the owner of that fence would have the right to take legal action.

        I don’t see how Mr. Wakefield could have linked Brian Deer and Fiona Godlee to a Texas jurisdiction. In that respect, i think he named them both for the public relations angle and with the hope that discovery would be a fishing expedition to connect them to Texas. Looks like he failed.

        Mr. Wakefield was certainly aware of issues of jurisduction. His book, “Callous Disregard” had a full page (as I recall) statement about how the book was not to be sold in the UK. Clearly, Mr. Wakefield and his publisher were seeking to shield themselves from the UK libel laws.

        The real question, in my opinion, had to do with to with the BMJ itself. At what point does such an entity become subject to laws outside their home location?

        Mr. Wakefield seems to have been careful to keep a low profile during this lawsuit. He was facing the argument that he uses lawsuits for public relations gain, which may have played into that decision. If so, a recent quote by Mr. Wakefield would be a mistake, in my opinion. He’s quoted as saying something to the effect that in discovery confirmed his accusations, including malice. To this observer, Mr. Wakefield us confirming the public relations argument and is opening the door wider for a countersuit.

        Right now Mr. Wakefield has an odd advantage. There is little for the BMJ to gain by suing him. Lawsuits are expensive and the BMJ has the deep pockets. My guess is that once appeals are over, and assuming they go against Mr. Wakefield, he will attack Mr. Deer primarily, Ms. Godlee less and the BMJ little or not at all.

        The problem with me guessing is that I have no idea how Mr. Wakefield thinks. How he can stand up against a mountain of evidence, even clear examples of his own lies, is beyond me.

        But, clearly Mr. Wakefield understands psychology better than I. Mr. Wakefield in an interview lied about the scope of his patent. It is there in black and white: his patent included the use of his invention as a vaccine. But he said no it isn’t and his supporters bought it. At the GMC hearing it becane clear that not only was Mr Wakefield lying, he was knowingly lying. He had business plans to develop the invention as a vaccine.

        That’s just one of the clearest cut lies. And it doesn’t even go into his unethucal research activities.

        No, I do not profess to understand Mr. Wakefield.

      • Anne August 6, 2012 at 18:42 #

        Sullivan, there’s a famous defamation case, Calder v. Jones, 465 US 783 (1984), which was Shirley Jones’ defamation case over an article about her in the National Enquirer. The Supreme Court held that a California court had jurisdiction over the editor of the Enquirer and one of its writers, who were residents of Florida. The court said there was jurisdiction because the defendants were “primary participants in an alleged wrongdoing intentionally directed at a California resident” and they had knowingly caused injury in California. This kind of activity can give rise to specific, as opposed to general, jurisdiction.

        I would guess that specific jurisdiction was the way that Wakefield thought he might be able to establish jurisdiction over the BMJ, Fiona Godlee and Brian Deer. Remember Fiona Godlee’s declaration that was heavily derided on AoA, in which she said she didn’t know that Wakefield was a resident of Texas? It goes to the issue of knowingly causing injury in another jurisdiction. The judge, who unlike us was able to consider all the evidence that both parties produced, wasn’t persuaded that there was as much of a link as there was in Calder v. Jones.

        My take is that Wakefield would like to find a forum where he can try to clear himself of the taint of fraud. It is not going to happen in the UK, obviously. He would like to do business in the US now, and presumably, if he could somehow get a judicial determination that he didn’t commit fraud, it would be enormously helpful professionally and economically.

      • Sullivan August 5, 2012 at 23:23 #

        Begs the question of how many US entities would submit to UK jurisdiction.

        I don’t feel like going back. I suspect that those complaining about the Wakefield decision would complain were they sued in the UK.

    • Broken Link August 5, 2012 at 17:47 #

      Jake Crosby is the son of Giff Crosby, who, according to his Facebook page is a former employee of ML Rogers Agency, a Manhattan advertising agency. Amongst the clients of ML Rogers is Round-Up. Round-Up is a systemic, broad-spectrum herbicide produced by the U.S. company Monsanto. Round-Up has been hypothesized as a cause for autism:

      http://autism-blog.com/possible-cause-autism

      Thus, one could ask, “Does Jake insist that autism is caused by vaccines because he is trying to cover up his father’s involvement in the increase in autism? Did Jake’s father Gill directly contribute to the autism epidemic through his work with ML Rogers in promoting widespread use of Round-Up?”

      Note: above hypothetical questions are only questions. Just asking. . .

      See how easy that was!

  10. Well Actually August 5, 2012 at 15:43 #

    And of course would be absolutely impossible that a judge would be able to make a fair and impartial judgement on a case simply because her husband works for a lobbying company with lots and lots of clients, one of which happened to be some doctors

    • Chris August 5, 2012 at 17:28 #

      I think it is perfectly clear to absolutely everyone that neither Brian Deer nor the BMJ reside in the state of Texas. Why would you find it confusing that a Texas court would not have jurisdiction for those who live in a another country?

      • Thomas August 5, 2012 at 21:07 #

        It’s purely bias that results in the judge imagining that Texas is not England. An unbiased judge would rule that London is near Dallas-Fort Worth!

  11. Science Mom August 5, 2012 at 15:47 #

    They have no basis for complaint because they insisted that the U.S. courts were somehow more fair than UK courts. They claimed that Wakefield would get a fair hearing and he did. Shut up and accept it.

  12. Shorty August 6, 2012 at 19:30 #

    A couple of links have appeared on another site which give the BMJ’s case on both the jurisdictional and anti-slapp issues.

    http://briandeer.com/solved/slapp-appearances.pdf

    http://briandeer.com/solved/slapp-motion.pdf

    • Anne August 6, 2012 at 20:54 #

      Shorty, thanks for the links, I had not seen the defendants’ brief on the jurisdictional issues before. It is easy to see why they prevailed. I was interested to read that the notoriously anti-vaccine lawyer Clifford Miller from the UK – who reputedly comments here on LBRB as ChildHealthSafety – was associated in to help Bill Parrish in Wakefield’s Texas case.

      • Science Mom August 6, 2012 at 21:04 #

        I was interested to read that the notoriously anti-vaccine lawyer Clifford Miller from the UK – who reputedly comments here on LBRB as ChildHealthSafety – was associated in to help Bill Parrish in Wakefield’s Texas case.

        And they thought this was a good thing how?

      • Lawrence August 6, 2012 at 22:05 #

        Sounds like they were prepared to pull out all the “crank stops” in an attempt to re-try the combined “Omnibus Hearings & GMC Hearings” all in one fell swoop – I’m sure the judge would have loved that idea…..I can’t even begin to tell you how irrelevant all of that information is for this type of case. They really would have been laughed out of the courtroom.

      • Sullivan August 6, 2012 at 23:16 #

        I had forgotten about the fact that Mr. Wakefield’s council had referred to some of the charges as being fraud charges. I do recall thinking before that statement was likely problematic for them.

        It me that having a “UK Editor” or however they phrase it, might make the Age Of Autism blog have a substantial enough presence in the UK to establish jurisdiction. An American editor has likely done so for himself if not for the blog ( http://leftbrainrightbrain.co.uk/2008/02/19/email-from-jb-handley/)

        Frankly, the lack of any action against AoA speaks more to their lack of significance than to whether their statements are actionable.

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