BMJ instructs lawyers to “defend the claim vigorously” against Andrew Wakefield’s lawsuit

6 Jan

The British Medical Journal (BMJ) has issued a press release (below) about the lawsuit initiated by Andrew Wakefield claiming defamation arising from a series of articles published last year. The BMJ and Mr. Deer stand by their articles and statements and have instructed their attorneys to “defend the claim vigorously”.

Although not formally served with the legal papers, the BMJ is on notice that Andrew Wakefield has issued defamation proceedings, not in London as might be ordinarily expected as concerns a predominately English publication, but in Texas, USA, where he now lives. The proceedings primarily relate to an article written by Brian Deer and published a year ago on 5 January 2011, entitled Secrets of the MMR Scare: How the Case Against the MMR Vaccine was Fixed, and an accompanying editorial which related to Mr Wakefield’s now infamous Lancet Paper on MMR.

Of course, following the findings of the British General Medical Council’s Fitness to Practice Panel and Mr Wakefield’s history of pursuing unfounded litigation, any action brought against the BMJ and Mr Deer in London would have been immediately vulnerable to being struck out as an abuse of process.

Despite the findings of the GMC’s Fitness to Practice Panel and his co-authors having publicly retracted the causation interpretation put forward by the Lancet Paper, it would appear from the Claim filed at court that Mr Wakefield still stands by the accuracy of the Lancet paper and his conclusion therein, thereby compounding his previously found misconduct. While we await formal service, unsurprisingly the BMJ and Mr Deer standby the material published in the BMJ and their other statements and confirm that they have instructed lawyers to defend the claim vigorously.

NOTES TO EDITORS

1. The Lancet Paper was published on 23 February 1998 entitled “Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental disorder in children”. Its claims of a temporal association between MMR vaccine and autism were retracted by the authors (excluding Mr Wakefield) on 6 March 2004, following the first findings from Brian Deer’s investigation for The Sunday Times. The paper was retracted in its entirety by the Lancet on 2 February 2010, with the Lancet noting that elements of the paper “have been proven to be false” during hearings of a General Medical Council fitness to practise panel.

2. Following a 217-day investigation by the GMC’s panel, on 24 May 2010, the panel found Mr Wakefield guilty of serious professional misconduct. It found that Mr Wakefield “had a clear and compelling duty to ensure that the factual information contained in the [Lancet] paper was true and accurate and he failed in this duty”. The Panel also found that Mr Wakefield was intentionally dishonest and misleading in describing the patient population, and that he had been dishonest when questioned about it later. Similarly, the panel stated that “the description of the referral process was irresponsible, misleading, and in breach of [Mr] Wakefield s duty as a senior author”. The Determination also set out how Mr Wakefield compounded his misconduct by failing to correct the content of the paper.

3. As a result of Mr Wakefield’s “persistent lack of insight” into his behaviour, the GMC determined that his name should be erased from the medical register.

4. Mr Wakefield adduced no evidence in mitigation and made no arguments or pleas in mitigation in front of the Fitness to Practice panel. He did not appeal its decision and has not attempted to replicate the Lancet paper’s findings in order to attempt to vindicate his position.

5. At various times in the past, Mr Wakefield has brought claims and made complaints against Mr Deer, The Sunday Times, Channel Four and Twenty Twenty Productions in respect of allegations of dishonesty relating to his Lancet paper. In no case has he been successful. Indeed, in each instance the case has been dropped by Mr Wakefield. In Wakefield v Channel Four Television Corporation, Twenty Twenty Productions Ltd and Brian Deer [2005] EWHC 2410 (QB) Mr Justice Eady refused to grant a stay sought by Mr Wakefield, stating that the case would turn on fundamentally serious issues going to the heart of the Claimant s honesty and professional integrity.

In refusing the stay, Eady J considered Mr Wakefield’s conduct in relation to the various proceedings he had brought. He noted that Mr Wakefield had written to a number of other organisations including: the Cambridge Evening News; Evan Harris (an MP who criticised Mr Wakefield on a radio programme); and the Department of Health (which provided a link on its website to the Channel Four Dispatches website).

Mr Wakefield informed these entities in correspondence that he had issued proceedings against The Sunday Times, Mr Deer and/ or Channel Four, indicating that proceedings were ongoing. He made no mention of the stays which he had obtained, or was seeking. Eady J considered this misleading, and concluded that Mr Wakefield wished to use the existence of the libel proceedings for public relations purposes, and to deter critics, while at the same time isolating himself from the downside of such litigation, in having to answer a substantial defence of justification. The Judge believed that there was a pattern of using the existence of libel proceedings, albeit stayed, as a tool for stifling further criticism or debate.

6. On 2O December 2011, the BMJ’s solicitors, Farrer & Co, wrote to Mr Wakefield’s Texan lawyers setting out the matters referred to above, as well as other points. No response has been received.

7. Mr Wakefield’s allegations, that the MMR vaccines causes or contributes to autism, were investigated in three test cases in the United States Court of Federal Claims, heard from July 2007 and with judgments handed down on 12 February 2009. Although listed as a witness, Mr Wakefield was not called to give evidence, and his allegations were rejected. The judgments were upheld on appeal. In the lead case, Cedillo v Secretary for Health and Human Services, Special Master George Hastings said in his judgment with regard to evidence in the case: “Therefore, it is a noteworthy point that not only has that autistic enterocolitis theory not been accepted into gastroenterology textbooks, but that theory, and [Mr] Wakefield s role in its development, have been strongly criticized as constituting defective or fraudulent science.”

Advertisements

36 Responses to “BMJ instructs lawyers to “defend the claim vigorously” against Andrew Wakefield’s lawsuit”

  1. Prometheus January 6, 2012 at 20:09 #

    I’m not sure how hard lawyers for the BMJ will have to work to “defend the claim vigorously”, since Wakefield’s lawsuit has been rigged to self-destruct, like the briefing tapes in “Mission Impossible”. The sole purpose of the lawsuit seems to be getting Andy Wakefield back in the news for a bit and to answer his supporters’ growing desire for him to strike back at his accusers and prove his innocence.

    According to various legal experts, the suit will likely be dismissed for one of several compelling reasons, but that is beside the point. A dismissal will play right into Wakefield’s hands by allowing him to claim martyr status yet again. He will look aggrieved yet resolute as he addresses his dozens of faithful adherents, telling them that although he was denied the oppotunity to have his “day in court”, he will never bow to those who will hide the truth about autism and the measles vaccine.

    In short, his best strategy would be to file a last minute (the statue of limitations on libel and defamation in Texas expired yesterday) lawsuit that hasn’t a chance of getting into the expensive discovery and trial phases – exactly what he did.

    He can thus minimise the costs while maximising the “conspiracy” value. The case will be thrown out “on a technicality” (e.g. he filed his lawsuit in the wrong country), “proving” – once again – that there is a massive conspiracy to silence Dr. Wakefield.

    [I note that the “conspiracy to silence Andy Wakefield” hasn’t been terribly successful – he’s been on just about every conspiracy-theory talk show and regularly speaks at anti-vaccination venues.]

    So, this doomed lawsuit serves its purpose well – it can’t possibly get far enough to cost Wakefield much money, it gets him back in the news and – above all – it gives him the appearance of defending his reputation without ever putting him in danger of having to defend the indefensible. It’s a win for Wakefield – but only if he loses quickly.

    In the very unlikely event that this lawsuit gets past the jurisdiction issue (and others), Andy Wakefield will be in the uncomfortable position of having to show that what Brain Deer and the BMJ editorial staff said about him was not only false, but that they knew it was false and printed it anyway.

    In addition, he will have to show that his reputation and career as a physician and researcher were harmed by what was printed in the BMJ. Given that he had already been struck off by the GMC and his Lancet paper had been retracted without his approval, it will be hard to prove that the BMJ articles did any damage. At worst, they could be cited for “disturbing a corpse”, as his reputation and career were already dead.

    However, I sincerely doubt that the BMJ lawyers will allow things to go that far. Pity. They will get their dismissal and Wakefield will get his propaganda victory and the nonsense that is Wakefield will spin for a few more years.

    Prometheus

  2. Visitor January 6, 2012 at 22:30 #

    “Disturbing a corpse” is very funny.

  3. Sullivan January 7, 2012 at 00:19 #

    Interesting quote from someone who helped enact the anti-SLAPP legislation in Texas:

    Laura Lee Prather, PPP Board member and partner at Sedgwick LLP in Texas, formed and led the coalition that was behind the enactment of anti-SLAPP legislation in Texas last year. She told PPP the following about Wakefield’s case:

    “The case brought against BMJ seems to be a clear effort to retaliate against them for exercising their free speech rights. This case is ripe to be the first in which a Texas federal court has the opportunity to apply the state’s new anti-SLAPP law.”

    http://www.anti-slapp.org/recent/andrew-wakefield-sues-bmj-for-claiming-mmr-study-was-fraudulent/

  4. brian January 7, 2012 at 01:04 #

    Also regarding the anti-SLAPP law:

    On top of the fees and costs, the court “shall” award the defendant damages “sufficient to deter the party who brought the legal action from bringing similar actions.” It’s not optional – the judge has to give some sort of punitive damage award; the discretion lies in the size of the damages.

    http://www.citmedialaw.org/blog/2011/look-texass-new-anti-slapp-law

    • Sullivan January 7, 2012 at 01:25 #

      Interesting article, brian.

      I like how they cited the Sykes v. Seidel example of attempts to quash discussion in the vaccine “debate”.

      The “right to petition” section is about what you’d expect, albiet perhaps more detailed than strictly necessary. The “free speech” protection is limited to “matters of public concern,” like other anti-SLAPP statutes we’ve seen; “public concern” gets a broad enough definition to cover issues of “health and safety” (I’m looking at you, vaccine debate), public figures (hello there, Mr. Snyder), or stuff in the “marketplace” (like, say, Yelp! reviews).

  5. Patricia January 9, 2012 at 14:13 #

    http://www.ageofautism.com/

    The Lewis Report, published Jan 8 2012.

  6. Science Mom January 9, 2012 at 14:38 #

    @ Patricia, whoop-de-do, a Wakefield worshipper resting on his laurels and outside of his area of expertise and a study that has nothing to do with Wakefield’s claims. If that is what Wakefield is going into this lawsuit with as his smoking gun, then don’t be surprised by the outcome.

  7. Patricia January 9, 2012 at 14:51 #

    Reply to Science Mom

    http://www.yousendit.com/download/T2dkSmJ5SWVOQnhBSXRVag

    It is a very lengthy report. Did you actually read it? I can´t help wondering….

    • Sullivan January 9, 2012 at 20:06 #

      “It is a very lengthy report. Did you actually read it? I can´t help wondering….”

      Patricia, did you? I can’t help wondering.

      Did you compare this to the BMJ articles? I can’t help wondering.

      Did you spend any time reading the GMC transcripts? I can’t help wondering.

  8. Science Mom January 9, 2012 at 15:08 #

    It is a very lengthy report. Did you actually read it? I can´t help wondering….

    It’s nothing that I haven’t read before, he also doesn’t have the completeness of information that Mr. Deer and BMJ have. I remain remarkably underwhelmed but I can see you are easily impressed.

  9. Patricia January 9, 2012 at 15:13 #

    And yet you refer to it as a “smoking gun”. I doubt somehow that Wakefield´s attorney´s would publish their “gun” in advance of the court case.

  10. Science Mom January 9, 2012 at 15:20 #

    And yet you refer to it as a “smoking gun”. I doubt somehow that Wakefield´s attorney´s would publish their “gun” in advance of the court case.

    No, I said “if</b that is their smoking gun". Wakefield has been promising exonerating evidence for two years now; the time to have used it would have been his GMC hearing or you know, maybe for that appeal that never materialised. This suit is nothing more than posturing for his "sad rump of disciples". Don't get too excited there Patricia; you're putting your eggs in a really rotten basket.

  11. Patricia January 9, 2012 at 15:22 #

    Let´s wait and see shall we?

  12. Science Mom January 9, 2012 at 15:23 #

    Blech, don’t know what happened to that post. It should read:

    No, I said “if that is their smoking gun”. Wakefield has been promising exonerating evidence for two years now and the time to have used that would have been for his GMC hearing or you know, maybe for that appeal that never materialised.

  13. Patricia January 9, 2012 at 19:41 #

    You obviousl know very little about the UK system. The GMC is a tool of the Public Health deoartment of the UK Goverment. It is not a Court of Law.
    Wakefield has wisely chosen to defend himself in the US.

  14. Chris January 9, 2012 at 20:10 #

    Though many of us would just be happy if he could get himself deported. Though the downside would be turning him into more of a martyr in the eyes of his fans.

    I still don’t understand why so much weight is given to a small case series, versus the other autism studies done at the Royal Free between 1999 and 2003 that included hundreds of kids.

  15. Science Mom January 9, 2012 at 20:32 #

    You obviousl know very little about the UK system. The GMC is a tool of the Public Health deoartment of the UK Goverment. It is not a Court of Law.

    Bwahahaha! Spoken like a true believer taken by a posh accent. By the way, the GMC Fitness to Practise hearing used the same evidentiary standard as that in a court of law. Wakefield refused to present any evidence in his defence then or since. What is your justification for that?

    Wakefield has wisely chosen to defend himself in the US.

    Oh and how has Wakefield “wisely” chosen a lawyer who specialises in intellectual property and not libel? If you knew anything about UK law, you would know that Wakefield wouldn’t get anywhere with this obvious side-show given his history there. I also suggest you learn some cursory meaning of U.S., specifically Texas law (Anti-SLAPP) so you aren’t taken by surprise there too when Wakefield claims The Man was out to silence him.

    • Sullivan January 9, 2012 at 20:41 #

      In response to earlier comments,

      yes, Mr. Wakefield called for the GMC inquiry

      “It has been proposed that my role in this matter should be investigated by the GMC. I not only welcome this, I insist on it and I will be making contact with the GMC personally, in the forthcoming week.”

  16. Patricia January 9, 2012 at 21:13 #

    Reply to Science Mom

    Since you are obviously so averse to anyone who speaks with a “posh accent” (you would get on well with Brian Deer) there is no point in discussing anything sensibly with you.

    Reply to Sullivan.
    Yes, I have read all three.

    As for the GMC tribunal. It´s decisions were based on false evidence. That false evidence will now be examined in a proper Court of Law albeit in the US. If indeed the Antislapp laws allow this to happen.

    • Sullivan January 9, 2012 at 22:47 #

      Patricia,

      Mr. Wakefield had ample opportunity to present an argument that there was “false evidence” both before, during and after the GMC hearing.

      You appear to misunderstand the U.S. court system and the meaning of a defamation case. This is not an opportunity for Mr. Wakefield to present the evidence which would have exonerated him. A favorable judgement for him would in no way change the findings of serious professional misconduct found by the GMC. The GMC did not explore research fraud and the charges are independent of those allegations.

      You also don’t understand Anti-SLAPP. If the Texas Anti-SLAPP laws are invoked that would mean that Mr. Wakefield’s evidence is too weak to proceed. I.e. his evidence will have been examined.

      Mr. Wakefield was found guilty of serious professional misconduct because the evidence–real evidence–was overwhelmingly against him.

  17. Science Mom January 9, 2012 at 21:52 #

    Since you are obviously so averse to anyone who speaks with a “posh accent” (you would get on well with Brian Deer) there is no point in discussing anything sensibly with you.

    Hoo Boy you really don’t have a clue do you? What can be discussed sensibly with someone who’s reading comprehension is wanting, not to mention ignorance of the person being addressed? Please enlighten me, what was ‘false’ about the GMC evidence against Wakefield and what are you going to do if the Texas Anti-SLAPP statute (and possibly jurisdictional) precludes Wakefield from ‘defending’ himself? You do know that Wakefield is most likely counting on this to happen don’t you?

  18. Natasa January 9, 2012 at 22:43 #

    Everyone remotely interested in MMR_Wakefield_BMJ_Deer saga must read this report by Dr Lewis:

    http://www.hallmanwingate.com/fullpanel/uploads/files/david-lewis-bmj.pdf

    Dr. David Lewis, internationally known whistleblower and respected expert on institutional fraud, released a report today calling for a formal investigation into the practices of the British Medical Journal (BMJ), and specifically into the actions of its editor, Dr. Fiona Godlee, and Brian Deer, a reporter she hired to write a series of articles …

    “To support their new fraud theory, Godlee, Deer, and the BMJ’s lawyers engaged in the most reprehensible conduct I have ever witnessed involving any scientific journal” (p3 of the filed report by Dr Lewis, linked above)”

    • Sullivan January 9, 2012 at 23:16 #

      Natasa,

      you just left the identical comment on this site a few hours ago.

  19. Science Mom January 9, 2012 at 23:27 #

    Given this old news is being spammed all over the place, I’m wondering if this isn’t Wakefield’s “smoking gun”. Or more accurately, a rallying cry to energise the troops. It’s pathetic the way Wakefield is manipulating his supporters, as if he didn’t do enough to fracture the autism community. For their sake, I really hope that at least some of them can see through this ruse.

  20. Sullivan January 10, 2012 at 00:15 #

    The sole purpose of the lawsuit seems to be getting Andy Wakefield back in the news for a bit and to answer his supporters’ growing desire for him to strike back at his accusers and prove his innocence.

    Prometheus,

    I fear you are applying the wrong standard to make that judgment. You are looking at what a reasonable man would have to be thinking in this case.

    Time and again Mr. Wakefield has shown himself to not be a reasonable man.

    Andrew Wakefield has seriously nothing better to do with his time that go to trial, even one that may be doomed to failure. The only question is who will pay the bills.

    A reasonable man would not have gone through with the GMC hearings. The time and cost to him were not insignificant, and yet he put forth little effort to defend himself.

    A reasonable man would not have called for a GMC hearing knowing the skeletons in his closet.

    A reasonable man would not have tried to keep his business ventures secret at the publication of his Lancet article. If he were to make money, they would have come to light.

    A reasonable man would not have kept his patent secret–especially from his employer.

    But, these are all campfires next to the raging Texas wildfire that is the misconduct (shall we say “serious professional misconduct”) perpetrated in the his research at the Royal Free.

    What does Mr. Wakefield intend? What does he think? I have no idea. Time and again he has shown himself to be far outside of what I consider reasonable thought processes.

  21. sharon January 10, 2012 at 23:06 #

    You are right Sullivan. Wakefield’s behaviour does seem to echo a particular DSM diagnosis, which I will not state here for fear of legal retribution.

  22. Science Mom January 11, 2012 at 16:54 #

    Reply to John Stone

    “…remarkable how Mr Deer always seems to impute great personal unpleasantness to anyone disagreeing with his conclusions”…..this is a classic example of the Narcissistic Personality John.

    This excellent Lewis report does take some time to read and I notice it has gone very quiet at the moment on the smug anti Wakefield sites after I posted it up on a few of them early this morning…America is waking up to some real news lately.

    Could it be it´s beginning to get their attention John?

    Posted by: Patricia | January 09, 2012 at 12:19 PM

    Here is a comment on AoA from the same Patricia who spammed the “Lewis Report” here. Good grief, delusional doesn’t even begin to describe this and other ‘celebratory’ comments about Wakefield’s libel suit. Most of America and the UK for that matter, don’t give a rat’s bum about Wakefield. I think there is a group of people who are going to be left utterly deflated and lost sometime in the upcoming year. Still can’ get my head around that level of disconnect.

    • Sullivan January 11, 2012 at 19:23 #

      Funny, it looks like she was the one who went silent.

      The comment above gives a great example of why not to diagnose people via comments on blogs. Patricia (a) doesn’t understand what a person with NPD is like and (b) is using it as a slur. I am often amazed at people from the disability community who do that. It is not appropriate.

  23. Prometheus January 12, 2012 at 17:43 #

    Sullivan:

    “I fear you are applying the wrong standard to make that judgment. You are looking at what a reasonable man would have to be thinking in this case.”

    You’re definitely right about that. However, if you see the situation through the eyes of someone who has a massively inflated opinion of their own cleverness, it all does make some sort of sense.

    Clearly, Andy Wakefield thought that the GMC wouldn’t see anything wrong with what he had done or, alternately, that they would be so dense (or so cowed by his brilliance) that they wouldn’t notice that he had performed invasive tests on disabled children that weren’t medically indicated (and several other breaches of common medical ethics).

    Andy Wakefield also seems to have thought that nobody would think to look in the public patent database to see that he had a patent on an “alternative” measles vaccine – one that he had discussed publicly in the past. Or that his connection with solicitors would remain hidden, despite receiving public legal aid funds

    Finally, he must have also thought nobody would discover that many of the subjects in his study were referred from a solicitor’s office or that his team had “reworked” the pathology readings or that he had “adjusted” the medical records of some of his subjects in order to bring them in line with his hypothesis.

    Sullivan, you are absolutely correct that these are not the actions of a “reasonable man” – they are the actions of someone who thinks that he vastly smarter than anyone else.

    Like Bernie Madoff, Andy Wakefield thought that everyone else was so dense that they’d never penetrate his schemes. Unlike Madoff, Wakefield was wrong (Madoff’s schemes weren’t discovered by regulators or investors – they were exposed by a financial crisis that made them untenable).

    This should stand as a warning to all who flock to the defense of “Brave Maverick Doctors” (or, for that matter, “Brave Maverick Investors”): never confuse a massive ego for massive intellect.

    Prometheus

  24. David N. Andrews M. Ed., C. P. S. E. January 31, 2012 at 03:43 #

    Sharon: “Wakefield’s behaviour does seem to echo a particular DSM diagnosis, which I will not state here for fear of legal retribution.”

    What? They’ve get ‘pisswit’ in DSM now?

    😉

  25. Julian frost May 28, 2012 at 08:21 #

    Comment above is spammer.

    • Sullivan May 28, 2012 at 14:26 #

      Julian frost,

      Thanks for pointing that out. It’s gone now.

Trackbacks/Pingbacks

  1. Wakefield Sues British Journal For Defamation in Texas | Care2 Causes - January 8, 2012

    […] […]

  2. Vaccine-Autism Controversy: Wakefield Sues British Journal For Defamation in Texas | AutismPDA.com - January 8, 2012

    […] against Deer in British courts and has dropped every one, notes ABC news. Goodlee and Deer are planning to fight the suit; the BMJ has responded to Wakefield’s and his lawyers’ assertion that the BMJ did not disclose […]

  3. The Red Flags of Quackery v2 | Sci-ence! A Skeptical Comic and Blog. - January 9, 2012

    […] to Criticism: This is a good one that applies to many of the panels above it. Nothing says, “sore loser” like trying to sue your critics when they call you out on your bullshit. Just a note if you plan to […]

  4. The Wakefield Case Continues « Radio Freethinker - January 30, 2012

    […] With regards to the case, the BMJ has issued the following statement: […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: