BMJ, Brian Deer file anti-SLAPP motion against Andrew Wakefield

11 Mar

About 2 months ago Andrew Wakefield filed a defamation lawsuit against the British Medical Journal, Brian Deer and Fiona Godlee for the series of three articles “The Secrets of the MMR Scare” and public comments made since. In particular, Mr. Wakefield took issue with statements about his research being fraudulent (and variations on that term like “fraudster”, “bullshit” etc.). Mr. Wakefield claimed that the facts presented by the BMJ articles were incorrect and based on information not available to him at the time he wrote his Lancet article.

Mr. Wakefield chose to file his defamation suit in Texas (his home state). This presented him immediately with two hurdles. First he has to show that the court has jurisdiction over primarily UK entities. Second he faced the possibility of an anti-SLAPP motion. SLAPP stands for “Strategic lawsuit against public participation“. Per Wikipedia:

A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty, of course, is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims.

Many states in the U.S. have enacted anti-SLAPP legislation. Texas enacted a law fairly recently and this motion could be the first major test of that law. I say “could” because of the first hurdle: jurisdiction. As Popehat has already noted, the plaintiffs in the anti-SLAPP motion “specially appear”. I.e. they keep the right to fight on jurisdictional grounds.

The motion and Mr. Deer’s supporting declaration can be found on Mr. Deer’s website. Mr. Deer’s declaration goes through the full history of his involvement with Mr. Wakefield’s research.

As Popehat notes, the motion appears quite strong. As is the case with legal motions, it covers multiple arguments. For example, they not only argue that the statements on their own are permissible speech, but they argue that the statements themselves are accurate.

Here is a section of the table-of-contents for the motion:

V. TEXAS’S NEW ANTI-SLAPP STATUTE APPLIES TO DR. WAKEFIELD’S CLAIMS.

VI. DR. WAKEFIELD’S CLAIMS FAIL BECAUSE HE CANNOT SHOW THAT THE CHALLENGED STATEMENTS ARE FALSE

A. Dr. Wakefield Must Prove that Defendants’ Statements Are Not Substantially True.
B. Dr. Wakefield Is Precluded from Re-litigating the GMC’s Findings, Which Establish the Substantial Truth of the Challenged Statements.
C. The Undisputed Evidence Also Establishes the Substantial Truth of the Challenged Statements.

1. Dr. Wakefield’s Misreporting and Falsification Permeated His Research.

2. Dr. Wakefield’s Undisclosed Conflicts of Interest.
3. Dr. Wakefield’s Review of the GP Records

VII DEFENDANTS’ STATEMENTS OF OPINION AND RHETORICAL HYPERBOLE ARE NOT ACTIONABLE.
A. Several of Defendants’ Statements, Including that Dr. Wakefield’s Research Must Have Been “Fraud,” Are Nonactionable Expressions of Opinion.
B. Defendants’ Expressions of Rhetorical Hyperbole and Colorful Language Are Not Actionable.

VIII DR. WAKEFIELD’S CLAIMS BASED ON BRIAN DEER’S WEBSITE PUBLICATIONS ARE BARRED BY THE STATUTE OF LIMITATIONS.
DR. WAKEFIELD IS A PUBLIC FIGURE, AND HE CANNOT SHOW ACTUAL MALICE.
A. Dr. Wakefield Is a Public Figure.
1. The “MMR Scare” Is a Public Controversy.
2. Dr. Wakefield Had More than a Trivial or Tangential Role in the
Scare.
3. Dr. Wakefield’s Claims Are Germane to His Participation in the
Controversy.
B. Defendants Did Not Act with Actual Malice.

1. Actual Malice Is an Exceedingly Difficult Standard to Satisfy.
2. The Evidence Here Precludes a Finding of Actual Malice.

Mr. Wakefield faces a number of burdens to overcome this motion. He must show that the statements made were more damaging that the truth. He must show that the statements are false–not just minor wording differences but that the “gist” of the truth is missing from the statements made. He must show that either he is not a public figure (very difficult for a doctor who has had a publicist for at least 10 years and has certainly put himself into the public sphere). He must show that Brian Deer, Fiona Godlee and the BMJ acted with actual malice.

He must present substantive evidence for each of these before he can go to trial. If he fails, he faces not only payment of reasonable legal fees and costs, but also the possibility of a penalty to deter future frivolous lawsuits. In that regard, the motion puts forth the history of Mr. Wakefield’s previous legal threats and lawsuits.

The most famous instance of Mr. Wakefield’s litigious history is his lawsuit against Brian Deer in 2004. Justice Eady made very clear statements on that:

[Dr. Wakefield] wished to use the existence of 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.

To put this in perspective–such a statement by the judge in Texas would almost certainly be followed by not only a dismissal of the case, but a financial judgement in favor of Mr. Deer, Ms. Godlee and the BMJ.

The motion makes it clear that Mr. Wakefield has faced negative commentary on his work and his character from many quarters in the past few years. From their introduction:

Two months ago, Dr. Andrew Wakefield was named by Time magazine as one of the “Great Science Frauds” of modern history. Last April, the New York Times described him as “one of the most reviled doctors of his generation.” In 2009, a Special Master presiding over vaccine litigation in the United States Court of Federal Claims recognized that Wakefield’s 1998 paper in The Lancet medical journal, which suggested a possible link between the lifesaving Measles, Mumps, and Rubella (“MMR”) vaccine and the development of autism in children, was considered a “scientific fraud.”

The Lancet has now fully retracted Wakefield’s paper, and its editor has state publicly that the paper was “utterly false” and that Wakefield “deceived the journal.” Wakefield’s home country’s medical board, the United Kingdom’s General Medical Council (“GMC”), convicted him in 2010 of multiple charges of “serious professional misconduct,” including “dishonesty” and “unethical conduct.” It further held that his misconduct had been so severe and extensive that the only punishment that would adequately protect the public from him was the permanent revocation of his medical license. As the New York Daily News put it, “Hippocrates would puke.”

As to specific instances of calling Mr. Wakefield’s work fraudulent, they quote multiple instances of the term being used. As noted above, one of the Special Masters in the Omnibus Autism Proceeding (vaccine court) called the work “scientific fraud”. Probably the most damaging instance for Mr. Wakefield are quotes from his own attorney in the General Medical Council (GMC) hearings who stated that some of the charges, if found proved, would amount to charges of fraud. Those charges were found proved.

There is definitely a movement amongst Mr. Wakefield’s supporters to recast his defamation suit as a retrial of not only his Fitness to Practice hearing before the GMC, but as a legal test of the validity of his MMR/autism hypothesis. Even just within the past couple of days Jenny McCarthy re-emerged in her role as a vocal Wakefield supporter with this (and other) erroneous arguments.

Courts are well aware of attempts for people to use defamation cases as a proxy for fighting other arguments. For example, readers might recall a recent defamation case where Barbara Loe Fisher (of the self-named National Vaccine Information Center) sued Dr. Paul Offit, writer Amy Wallace and Conde Nast publications for two words in an article: “she lies”. In the decision dismissing the defamation suit the judge noted:

Not only does Plaintiff’s claim of the statement’s falsity invite an open ended inquiry into Plaintiff’s veracity, it also threatens to ensnare the Court in the thorny and extremely contentious debate over the perceived risks of certain vaccines….and, at the bottom, which side has the truth on its side. This is hardly the sort of issue which would be subject to verification based on a core of “objective evidence”

and

Courts have a justifiable reticence about venturing into a thicket of scientific debate, especially in the defamation context

However, one must note that Mr. Wakefield’s defamation suit does *not* involve the issues of his research conclusions/findings (or non-findings as they have been retracted from the public sphere). The question put forth by Mr. Wakefield was whether statements such as “fraud”, “fraudster”, “determined cheat” are actionable defamation and whether these are based on allegedly misrepresented details from the research–such as diagnoses of the children and when symptoms appeared. Mr. Deer shows in his declaration that the facts presented in the BMJ studies are accurate.

On the “weight of evidence” front, consider this: Mr. Wakefield submitted a 17 page defamation claim. The defendants have responded with a 53 page anti-SLAPP motion and 5 declarations. The declarations include one from Mr. Deer with 101 pages and 104 exhibits. Where Mr. Wakefield is using a neighbor as his attorney, one who is not a specialist in health, media or defamation cases, the BMJ team are using a top Texas law firm and a total of seven attorneys. The lead attorney is listed as having experience with healthcare and publishers:

Tom has a wide range of experience in state and federal appeals and trials. His experience includes commercial, intellectual property, and healthcare litigation, and class actions. He has represented publishers and broadcasters in all aspects of media litigation throughout his career.

the second attorney listed has direct experience on defamation:

Marc’s practice focuses on media and privacy law, class actions, and general commercial litigation. His media law experience includes representing publishers in litigation involving claims for defamation, invasion of privacy, misappropriation, copyright, and related causes of action. In addition, he has defended companies in consumer class actions across the country relating to advertising and digital privacy. He regularly provides advice regarding website terms of service, arbitration agreements, and privacy law.

According to the BMJ’s motion, ” To avoid dismissal, the plaintiff [Mr. Wakefield] must submit “clear and specific evidence” to support each essential element of his claims.”

I suspect that Mr. Wakefield will have a meeting with his attorney very soon to discuss strategy. They are outclassed on the facts of the case, on the manpower and expertise of the attorneys and the credibility of the witnesses. They will discuss “each essential element of his claims” and how they stack up against the evidence presented. One might suspect that Mr. Wakefield’s attorney was unaware of how shaky their position was at the start, getting his facts from Mr. Wakefield. They now know, through hundreds of pages of arguments and evidence, how the defense can answer the “essential claims”.

If they can dismiss before the jurisdiction question is addressed and avoid the anti-SLAPP motion, they might be well advised to do so. The “reasonable costs” the BMJ are incurring are sure to be sizable. And the litigious history of Mr. Wakefield will surely play into a determination of whether to impose penalties on top of those.

From where I sit, Mr. Wakefield just doesn’t have the facts on his side. Nor does he have the law on his side. The jurisdiction question may be a blessing in disguise for Mr. Wakefield: giving him the opportunity to bow out before the anti-SLAPP motion goes into effect.

179 Responses to “BMJ, Brian Deer file anti-SLAPP motion against Andrew Wakefield”

  1. Science Mom March 12, 2012 at 01:32 #

    Where Mr. Wakefield is using a neighbor as his attorney, one who is not a specialist in health, media or defamation cases, the BMJ team are using a top Texas law firm and a total of seven attorneys. The lead attorney is listed as having experience with healthcare and publishers:

    I can practically here the excuse mill working just one this aspect. “Poor Dr. Wakefield; he can’t afford the legal representation the Pharma-sponsored Dr. Godlee and Mr. Deer can.” And, “this is all a big Pharma cover-up and persecution of the brave maverick doctor”. What was it that JB Handley just said?

    It’s a great day for parents of vaccine-injured kids, and if I were Brian Deer’s lawyer, I’d be worried. It’s too bad Deer doesn’t have a pot to piss in, he’s likely to owe Andy millions when this whole mess is finally over.

    This one’s a keeper for sure.

    And good on Dr. Godlee and Mr. Deer for following through with what they said they would and that is a vigorous defence.

  2. lilady March 12, 2012 at 03:37 #

    @ Science Mom: There must be black-out of news at AoA…the motion made by the BMJ and Brian Deer has not appeared yet. However, they posted a new video as a fundraiser for Wakefield’s “Justice Fund”:

    I read the motion and Deer’s rather lengthy and informative document in support of the motion. Wakefield and his supporters are going to have a hard time disputing the facts, which include the manner in which the parents “found their way” to Wakefield.

    I suppose the editors of all the anti-vax websites will be working overtime to crank out more nonsensical articles.

  3. Matthew cline March 12, 2012 at 03:50 #

    @Science Mom:

    I can practically here the excuse mill working just one this aspect. “Poor Dr. Wakefield; he can’t afford the legal representation the Pharma-sponsored Dr. Godlee and Mr. Deer can.” And, “this is all a big Pharma cover-up and persecution of the brave maverick doctor”.

    I wouldn’t be at all surprised if that would be exactly what Wakefield was hoping to get out of the lawsuit.

  4. lilady March 12, 2012 at 04:30 #

    (I think I messed up with my last post…d’oh)

    There is a news blackout at AoA about this motion. I read the entire motion and Brian Deer’s supporting document and it is very informative. It shall be quite interesting to see how Wakefield and his supporters will be spinning this.

    Here for your viewing pleasure, is the latest fund-raising video for the Wakefield Justice Fund…I suspect they will need many more fundraisers to extricate Andy from his lawsuit. I get all teary-eyed when I think of the brave maverick doctor and his legal woes:

  5. Maurine Meleck March 12, 2012 at 05:26 #

    I expect the recent reversal of charges against John Walker Smith will really help Wakefield win his lawsuit. Yes!!!!!!!!

  6. Matthew cline March 12, 2012 at 05:36 #

    @Maurine Meleck:

    I expect the recent reversal of charges against John Walker Smith will really help Wakefield win his lawsuit.

    No, it won’t. First, Wakefield’s lawsuit is about the article Deer wrote for the BMJ and the accompanying BMJ editorial, neither of which was a rehashing of the GMC hearings. Second, even if they were rehashings of the GMC hearings, to win the defamation lawsuit Wakefield must prove that Deer and the BMJ believed or suspected what they wrote was false. The appellate decision held that 1) the GMC gave more weight to the expert witnesses against Walkers-Smith than the expert witnesses for him, and 2) the GMC didn’t consider whether or not Walkers-Smith believed the medical procedures were clinically indicated, neither of which shed any light on what Deer or the BMJ thought about their article/editorial.

    • Sullivan March 12, 2012 at 16:59 #

      The appellate decision held that 1) the GMC gave more weight to the expert witnesses against Walkers-Smith than the expert witnesses for him

      Which is permissible if they explain *why* they did so.

      For example, US courts have given us multiple explanations of why Mark Geier is not given the same credibility as other witnesses. That’s the source of many quote one reads about Mr. Geier.

      That said, Mr. Wakefield called no witnesses. How does a finding about expert witnesses apply to Mr Wakefield’s case?

  7. joe March 12, 2012 at 06:33 #

    You seem to be a person with no soul,or conscience.

    Do you not fear God?

  8. Rtcontracting March 12, 2012 at 06:39 #

    @Maurine Meleck:

    I expect the recent reversal of charges against John Walker Smith will really help Wakefield win his lawsuit.

    Further to what Matthew Cline said:

    John Walker-Smith appealed. AJW didn’t. In fact during the 217 days of the GMC hearing AJW didn’t call a single witness in his defence. In addition, at the GMC sanctions hearing AJW’s lawyer’s submissions consisted of the following:

    we call no evidence and we make no substantive submissions on behalf of Dr Wakefield

  9. Julian Frost March 12, 2012 at 06:42 #

    @Maurine Meleck:

    I expect the recent reversal of charges against John Walker Smith will really help Wakefield win his lawsuit.

    And you’d be wrong. Walker-Smith’s argument in his appeal was basically “Yes, I did this, but I wasn’t aware that Wakefield was conducting a Research Project, let alone one without proper approval.” In other words, Walker-Smith threw Wakefield under a bus. I’m surprised that anyone would think that Walker-Smith’s success helps Wakefield in any way.
    Sullivan:

    The jurisdiction question may be a blessing in disguise for Mr. Wakefield: giving him the opportunity to bow out before the anti-SLAPP motion goes into effect.

    My belief is that that is exactly Wakefield’s plan: take it to court and watch as it is thrown out on jurisdiction. That way, he gets to tell his supporters “It’s a conspiracy!” without the difficulties of proving his case. And you’re dead right: it is very weak.

  10. Chris March 12, 2012 at 07:34 #

    joe:

    Do you not fear God?

    Which one? The one that withholds conflicts of interests and orders invasive tests on children without cause? Or the one that believes that freedom of speech is a basic right?

  11. Lawrence March 12, 2012 at 08:29 #

    I wonder how the AoA folks will react if all of that money they’ve been raising goes straight to the defendants, if the Judge rules favorably on Deer’s anti-SLAPP motion…..

  12. Visitor March 12, 2012 at 09:52 #

    ‘I wonder how the AoA folks will react if all of that money they’ve been raising goes straight to the defendants, if the Judge rules favorably on Deer’s anti-SLAPP motion…..’

    That would be if they have raised about $200,000, otherwise Mr Wakefield may have to dip in to the pay-offs he received from the Royal Free Hospital and Thoughtful House.

    There appear to be about five declarations, with Mr Deer’s running to more than a hundred pages and even more exhibits, plus the motion, plus the seven lawyers talking to each other. There may also be lawyers in London working on it, and presumably the clients may wish to attend the hearing.

    That would buy a lot of Xmas gifts for autistic kids, but, hey, this is Andy Wakefield.

  13. Jack March 12, 2012 at 10:16 #

    The link to Mr Deer’s website and the article written there – or rather the ‘Introduction’ – appear in the third person i.e. it doesn’t seem to have been written by Mr Deer. But I can’t find a link to it elsewhere.

    I thought it might have appeared in a newspaper or something, but no joy tracking it down. Any ideas as to who authored it and where it might have appeared?

    Thanks

  14. Catherina March 12, 2012 at 10:34 #

    Suddenly, I had to think of this Gary Larson cartoon:

  15. dt March 12, 2012 at 12:19 #

    I love the idea of Wakefield’s supporters raising all the money to go straight into the pockets of Deer and the BMJ. Keep those $100-a-head fund raising dinners going, Andy! At least you won’t starve.

    Of course it won’t really compensate him for the time and effort he has put into exposing the man, but we owe him (Deer) an eternal debt of gratitude, and I applaud the BMJ for making their stance, when they might easily have shied away from the trouble of seeing this through.

  16. Science Mom March 12, 2012 at 12:27 #

    I expect the recent reversal of charges against John Walker Smith will really help Wakefield win his lawsuit. Yes!!

    Um No!! Wakefield won’t be permitted to use someone else’s successful appeal as evidence. Are you really that delusional? No wonder Wakefield still has support from you.

  17. joe March 12, 2012 at 16:47 #

    Chris do you really want to talk conflict,ok every person going after Dr.Wakefield was either on the board or worked for someone on the board of GSK.

    Which one? The one who knows, the very hair count on your and everybody elses head.Just in case, you are bald. Little humor there. The God that split the red sea, and then buried the whole Egyptian army. The God that fed the 5000,00 men that’s
    not even including the women and the children. With 5 loaves
    and 2 fish. The God that fed a woman and her son, till the drought was over. When she obeyed him, and made a small cake
    of bread for his prophet first. You see, this God made the canisters regenerate oil and flour. Just because she obeyed God,and it would stay that way until the day that Yahweh gives rain to the land. And he is also, the righteous God that is going to Judge you. And show you, all the suffering these that children had to endure. That you, have helped to defend those that harmed them!

    The god of Abraham Issac and Jacob,the God that in the Bible answered by fire. The God that hates, above all else PRIDE !

    The God that also dislikes, no Hates abortion. And the culturing
    of Vaccine on aborted fetal tissue, and retina’s. Can you imagine
    you are God, and you give a child to humanity and that child is
    killed and then dismembered. And then used to make vaccine on,
    Question, are you mad? I can tell you, he is Angry and soon his wrath will be very evident. And then there is people like you,who
    defend such.

    There is salvation of the soul and forgiveness of sins at the foot of the cross.

    Joe

  18. joe March 12, 2012 at 17:03 #

    Remember, what I said. God hates,above all else Pride and Arrogance.

    And Greed!

    • Sullivan March 12, 2012 at 17:16 #

      Remember, what I said. God hates,above all else Pride and Arrogance.

      And Greed!

      Sorry, are you supporting or criticizing Mr. Wakefield? If supporting, well, good luck with that argument.

  19. joe March 12, 2012 at 17:05 #

    The word of God says, that Pride comes. just, before a great fall.

  20. Chris March 12, 2012 at 17:13 #

    joe:

    The God that also dislikes, no Hates abortion. And the culturing of Vaccine on aborted fetal tissue, and retina’s.

    You’ll have to argue with the Vatican on that one. I can’t believe that you think it is okay to infect pregnant women with rubella by not vaccinating the typical reservoirs of that infection, children. Or that is is okay for one out of thousand children infected by measles to suffer permanent disabilities or death.

    Or that is is okay for Wakefield to take public legal aid funds to promote his own pet theories, while leaving those parents whose children were injured by the Urabe mumps strain in the two MMR vaccines that were discontinued in 1992 out in the cold. That is just pure evil. And you seem good with that. I don’t like your god.

    Anyway, joe, you are going off on a rant, and are not contributing anything useful to the conversation. In a word, I’m sticking with Thor. He is is a much cooler god.

  21. Chris March 12, 2012 at 17:23 #

    About that greed, from Deer’s declaration:

    The key material would later be set out in the second of my BMJ “Secrets” series of January 2011, revealing, for example, a network of companies established by Wakefield intended to exploit the public alarm he had created. One business plan I obtained (Ex. 25) included the following:

    It is estimated that the initial market for the diagnostic will be litigation driven testing of patients with AE [autistic enterocolitis] from both the UK and the USA. It is estimated that by year 3, income from this testing could be about £3,300,000 rising to about £28,000,000 as diagnostic testing in support of therapeutic regimes come on stream.

    Wakefield hoped to make millions off of desperate parents like joe.

  22. Chris March 12, 2012 at 17:24 #

    Ugh… this was also supposed to be in the blockquote:

    It is estimated that the initial market for the diagnostic will be litigation driven testing of patients with AE [autistic enterocolitis] from both the UK and the USA. It is estimated that by year 3, income from this testing could be about £3,300,000 rising to about £28,000,000 as diagnostic testing in support of therapeutic regimes come on stream.

    Any god that supports that kind of greed, especially on the backs of those caring for disabled children, is evil.

  23. Krebiozen March 12, 2012 at 17:29 #

    Joe,

    Remember, what I said. God hates,above all else Pride and Arrogance. And Greed!

    He must surely despise Andrew Wakefield…

  24. Anne March 12, 2012 at 17:31 #

    @Maurine Meleck:

    The anti-SLAPP motion has a good discussion of when a previous decision in another case can be used against a party in a later case. See the discussion of the collateral estoppel doctrine on pages 22-28, in which the defendants argue that the GMC’s decision against Wakefield has preclusive effect. The same test applied to the High Court’s Walker-Smith decision could only result in the court not using that decision against BMJ, Godlee and Deer.

  25. joe March 12, 2012 at 17:42 #

    You really think it’s Ok for GSK to go after a Dr?

    Are you familiar with VIOXX it was discontinued here in the US. after 100 of thousands of Americans were damaged.

    Merck is trying to push their Vioxx in Australlia now, maybe you heard about the internal emails from Merck? That were read in
    the hearings, that said [We will discredit some Others we may need
    to seek them out and destroy them where they live]

    A Merck employee wrote that, according to an email excerpt read to the court.

    They were also talking and bragged about, interfering with academia appointments.

    Now I ask you, is it right to intimidate Dr’s and researchers?
    And to try, to put certain people in academic appointments to
    be more favorable to a Junk drug? That was removed for harming
    100’s of thousands of Americans before it was banned.

    • Sullivan March 12, 2012 at 17:48 #

      “Are you familiar with VIOXX”

      Are you? If not, perhaps you could read Brian Deer’s extensively researched stories on it.

      This is one of the reasons why I don’t take the “Brian Deer’s boss’s boss’s boss is on the board of GSK, therefore he was told to do this”.

      “Now I ask you, is it right to intimidate Dr’s and researchers?”

      No. It is correct to bring sanction against doctors and researchers who have committed serious professional misconduct. As in the case of Andrew Wakefield.

      It is not correct to intimidate journalists and journals. A judge may get to rule on this in the case of Wakefield v BMJ.

  26. Jack March 12, 2012 at 17:47 #

    I asked about about the source/author for this: http://briandeer.com/solved/slapp-introduction.htm the introduction on Mr Deer’s website. Does anyone know who wrote it please? Only I am assuming it wasn’t Mr Deer as it is in the third person when it refers to him. It’s also an ‘Introduction’ so is it part of some bigger article?

    Thanks

    • Sullivan March 12, 2012 at 17:53 #

      “Does anyone know who wrote it please? Only I am assuming it wasn’t Mr Deer as it is in the third person when it refers to him. ”

      I am assuming it was written by the lawyers hired to defend this case. It is the introduction to the anti-SLAPP motion they filed, which is linked on that page.

  27. Jack March 12, 2012 at 18:07 #

    Thanks Sullivan. I’d gone straight to his declaration and had yet to read the motion itself! I don’t know how you guys take it all in so fast – but a pleased you do!

    AofA are a little slow on the uptake it would seem:

    ‘From the Editor: Suit-able

    BMJ and Deer file response to Wakefield suit in Texas. Bad timing: Walker-Smith appeal just demolished most of their evidence that Andy is a “fraud.”‘

    http://www.ageofautism.com/2011/12/from-the-editor.html

    I felt I should read everything before commenting too much on it all. I still cannot see that Wakefield has a leg to stand on even (especially) in Texas. Perhaps he’s hoping the local support will see him through and influence proceedings, but I think he’ll have a shock.

    Do you think he’ll pull out before it gets any futher? Take a swift taxi-ride and withdraw the case in the eleventh -hour? I believe he has form.

  28. Denice Walter March 12, 2012 at 18:31 #

    Joe succinctly illustrates the Big Pharma gambit: AJW is persecuted by those with ties to Pharma ( GSK). I believe I can assist him: you see, I survey alt med proselytisers and recently, those in the vanguard now *expand* responsibility to include governmental and media enablers who aid and abet the aforementioned corporatists. I believe that David Lewis spoke about government serving pharma as well ( @ Health Freedom Expo, Long Beach). And of course, most corruption in the planet will eventually be traced to Mr Murdoch. Or so I’ve been told.

    In the interests of full disclosure, I must also place place myself on the suspect list because I own mutual funds that list GSK and NewsCorp amongst their hundreds of investments. Oh well.

  29. Visitor March 12, 2012 at 18:33 #

    What struck me as real scary for Mr Wakefield is Vinson & Elkins, one of the biggest and most prestigious law firms in the country, using defamation specialists in Dallas, telling him that there was no malice AS A MATTER OF LAW.

    What they are telling him is that, even if the Austin court has some crystal-wearing Indigo child on the bench whose sister is president of the I Love Dr Wakefield club, and found for him in spite of the facts, this case will then go to appeal and be overturned.

    Think of the $$$$$$! His guy seems to be a patent lawyer, but even he will charge more to read Mr Deer’s declaration than Mr Deer will have charged to write it.

    I think about now Mr Wakefield will be having one of the ‘friendly but frank’ conversations with his attorneys that he must have become familiar with over the years. I predict the words ‘exit strategy’, or similar, will arise.

    • Sullivan March 12, 2012 at 22:28 #

      Visitor,

      I hadn’t even thought about the fact that of course an appeal would be started if, by some chance, the BMJ team lost the case. Publications take this sort of thing quite seriously as it impinges on their ability to do their job.

      Any parent of a special ed kid who has engaged an attorney knows all too well the pressure of watching the money flow to attorneys. Time spent in meetings, preparing documents, reading documents…it all adds up.

      If Mr. Wakefield is sure of his case, the money shouldn’t be as big of a concern as he would expect to recover it (and more). The problem is that his chances are slim at best. He isn’t facing failure because the BMJ have the money to defend themselves. He is facing failure because his case has no merit.

      Off the top of my head, here are some of the hurdles he has to overcome

      1) Show that his claims are true–i.e. that the statements by the BMJ team were false. That the facts don’t contradict him. I feel that is unlikely.

      2) Show that the statements made are more damaging that the facts. Seems unlikely. Mr. Wakefield has so much found proved against him (which (a) still stands, regardless of the Walker-Smith appeal and (b) much of it is separate from the arguments in the Walker-Smith appeal).

      3) Show that real harm was done to his reputation. One clear example: Mr. Wakefield was let go from his position at Thoughtful House before the fraud statements. Thoughtful House even went so far as to change their name to separate themselves from their past. He was already on the third tier radio and internet talk show circuit (for example, UFO promoter “coast to coast“). His “new world order” tour did come later. Will Mr. Wakefield argue that he was forced to this venue because of his low reputation? At the time of the “secrets” series and fraud statements, Mr. Wakefield’s income was likely derived largely from these speaking tours and donations from groups like Generation Rescue. The series and statements probably boosted his ability to draw income from those sources rather than decreased it.

      4) As you point out, he has to show actual legal malice. That the actions were taken in order to harm Mr. Wakefield. The case in point (which stands out for me on reading the motion) is New York Times v. Sullivan.

      The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice, which in this context refers to knowledge or reckless lack of investigation, rather than the ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that “‘[m]alice,’ even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.”

      The BMJ waited until the GMC transcripts were available, presumably to fact check the statements made. They used an outside reviewer. My guess is that they were well aware that Mr. Wakefield might attempt a defamation suit and fact-checked accordingly.

  30. Chris March 12, 2012 at 18:38 #

    joe:

    Are you familiar with VIOXX it was discontinued here in the US. after 100 of thousands of Americans were damaged.

    Here you go: http://briandeer.com/rofecoxib-index.htm

    It has nothing to do with vaccines.

  31. elizabeth lucy March 12, 2012 at 19:05 #

    so what causes autism? It’s a VERY lucrative label for some isn’t it?

  32. Catherina March 12, 2012 at 19:25 #

    Joe appears rather pharisaic to me, and I am sure Jesus would agree 😉

  33. Julian Frost March 12, 2012 at 19:59 #

    @Elizabeth Lucy, the current consensus is that Autism has a genetic factor. I’ve long believed that anyway. I’m quite sure my dad would have got a diagnosis had he gone to get one.

  34. Lawrence March 12, 2012 at 20:03 #

    @elizabeth – yes, it is very lucrative for the woo-meisters pushing chelation or chemical castration therapies, or all of the other alternative treatments for autism….

  35. Liz Ditz March 12, 2012 at 21:18 #

    As I often do, I have made a roundup of posts about both the UK high court’s ruling on Professor Walker-Smith and Brian Deer’s anti-SLAPP suit. I’ve included this post in the list, both at Thinking Person’s Guide to Autism (where the list will be static) “What the UK High Court’s Ruling on John Walker-Smith Means and Doesn’t Mean”,

    http://thinkingautismguide.blogspot.com/2012/03/what-uk-high-courts-ruling-on-john.html

    and at my own blog, I Speak of Dreams “UK High Court Quashed Rulings Against John Walker-Smith; Means NOTHING about Andrew Wakefield”

    http://lizditz.typepad.com/i_speak_of_dreams/2012/03/walker-smith-ruling-means-nothing-about-wakefield.html

    I’ll continue to update the latter post daily.

  36. Chemmomo March 12, 2012 at 23:49 #

    Joe: “God hates,above all else Pride and Arrogance.
    And Greed!”

    I wonder what Joe’s God thinks of Andrew Wakefield?

  37. Chas Higgins March 14, 2012 at 16:35 #

    Wakefield will have his name on a blue plaque at his birthplace in the end . Autism , genetic ? only in as far as a an acute sensitivity to poisons . Science is going to pass you fraudsters by . We know autism is simply the inflammation of the microglial (its no longer in any doubt) , and we know what can cause that right ? Adjuvants . Would you guys on here care to offer your feedback on the pictures of Zeda Pingel (before and after HPV Gardasil vaccination) …could we get those loaded up onto your site ? Would that be possible ? Then we could all discuss that and see you flat earthers explain that one away ?

    • Sullivan March 14, 2012 at 16:41 #

      Chas Higgins,

      I am suspicious of anyone who says “autism is simply…”.

      That said, I guess if autism is simply inflammation caused by adjuvants, then there wouldn’t be any non-vaccinated autistics. Which there are.

      I have no idea who Zeda Pingel is. I have no inclination to find out as you mention the story is about HPV. HPV is given to adolescents and young adults (and adults). Autism manifests by age 3. HPV and autism are not related. If you wish to have a discussion of non-related vaccine scare stories, there are many places on the internet which would welcome you.

  38. Science Mom March 14, 2012 at 19:20 #

    Wakefield will have his name on a blue plaque at his birthplace in the end .

    You know Chas you might be right. I can see it now, “Here lies the most reviled and unethical doctor of the twentieth century who serves as a cautionary tale of how not ever to conduct research.”

  39. Rebecca Fisher March 14, 2012 at 19:46 #

    When Wakefield launched his legal action, there were plenty anti-vax wingnuts whi said “Aha – now he’s getting his story heard, in an American court, a *real* court.

    If, as seems likely, it gets thrown out, will they accept the decision of their real, American court?

  40. Visitor March 14, 2012 at 20:08 #

    No, they will say ‘he tried to clear his name’ but the court was not fair. Anybody looking at the petition can see that Wakefield cannot win it.

    So, the question is, why would he bring a lawsuit which he knows he cannot win?

    Asked, and answered.

  41. Science Mom March 14, 2012 at 20:15 #

    So, the question is, why would he bring a lawsuit which he knows he cannot win?

    Martyrdom ain’t cheap you know.

  42. Rebecca Fisher March 15, 2012 at 08:37 #

    So, despite it being their choice of court, their wonderful *real*, *American* court (none of your pharma shill British courts in Texas, no-sirree), if the decision goes against them, it will no longer be a real, wonderful court? Thought so. 🙂

    “…it was a typical case of American blind justice, and there wasn’t nothing he could do about it, and the judge wasn’t going to look at the twenty seven eight-by-ten colour glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence…”

  43. MI Dawn March 15, 2012 at 12:58 #

    @Sullivan: because I was curious, I DID research via Google and VAERS for Ms Pingel. Her final diagnosis was HSV encephalitis per the VAERS report (at least, I am assuming the one I found is her as the data lines up). Not an expert, of course, but she may be one of the very few who actually DID have a negative reaction to the Gardasil injection. I’m not sure (and the write up is a bit confusing) why they say HSV encephalitis when Gardasil is HPV, but it could be a typo – or her tests did prove positive for HSV and the injection (which was about 3 weeks before she had any symptoms) was coincidental.

    Maybe someone with more experience with the VAERS reports could take a look and give feedback.

  44. MI Dawn March 15, 2012 at 13:00 #

    And to go back on topic – kudos to the BMJ and Brian Deer for filing the anti-SLAPP motion. I will watch with interest for the proceedings.

  45. Chas Higgins March 16, 2012 at 13:12 #

    Its never been about Dr Andrew Wakefield . It has always been about our vaccine poisoned children . So regardless of the outcome in Texas , the fight will continue , you can count on us . Vaccine damage manifests itself in many ways , as you well know . Mercury and Aluminium and the other poisons disrupt every one of the body’s enzymes – enzymes are the drivers of all the body’s functions , so there is absolutely no need to confine ourselves to the neurological damage you call autism (which I call vaccine poisoning and which you erroneously call a genetic disorder – genetics has been completely discredited many times over but you still persist). A few possibilities you havent thought of on “no brain , still no brain”, acid rain maybe , global warming , melting of the polar ice caps , older fathers nonsense , what else can we muddy the waters with in order to protect the bleedin’ obvious . Autism = Vaccines . Let me know when I can upload a picture of poor Zeda Pingel – that should scare the hell out of half of your readers who believe in the infalibility of vaccines (& the crime that was perpetrated on this poor child looks very like an autism hybrid condition to me !)

    • Sullivan March 16, 2012 at 14:30 #

      “Mercury and Aluminium and the other poisons disrupt every one of the body’s enzymes”

      If so, there would be very simple tests for exposures to extra mercury or aluminum. There aren’t.

      Further, if this were the cause of autism, an enzyme test would be a bio marker. Not only an enzyme test, but a test of any enzyme. There are no such bio markers.

      I agree that “this isn’t all about Andrew Wakefield”. When it comes to the reality of autism science, Andrew Wakefield is a small embarrassing footnote. When it comes to a segment of the autism parent community, one with a damaging message, Andrew Wakefield is a key player.

      Why I can not say. He’s done very little other than blame vaccines. No real insights. Nothing to improve life or well being.

  46. Julian Frost March 16, 2012 at 13:35 #

    @Chas:

    Mercury and Aluminium and the other poisons disrupt every one of the body’s enzymes – enzymes are the drivers of all the body’s functions

    All the enzymes? Hyperbole only damages your claim.

    [G]enetics has been completely discredited many times over but you still persist

    One of the current posts on this is about how the half-siblings of autistics are themselves more likely to be autistic. Discredited? I think not.

    Autism = Vaccines.

    Multiple studies were done in an attempt to replicate Wakefield’s findings. None of them, including a Danish study that looked at over half a million children, were able to do so. A fact that becomes wholly unsurprising when it was revealed that Wakefield cooked his data.

    readers who believe in the infalibility of vaccines

    All the readers here are well aware that vaccines can, in a miniscule fraction of cases, cause problems. Autism is not one of them.
    TL, DR: The claims you make have been made before numerous times on this, and other, websites. They have been refuted.

  47. Chris March 16, 2012 at 17:19 #

    Mr. Higgins:

    Mercury and Aluminium and the other poisons disrupt every one of the body’s enzymes – enzymes are the drivers of all the body’s functions ,

    Then you should be okay with the MMR vaccine, since it has never had either of those two things.

    A few possibilities you havent thought of on “no brain , still no brain”,

    Is this the explanation for your unique version of English grammar?

    your readers who believe in the infalibility of vaccines

    Do tell us where we mentioned that vaccines were infallible, link to the post where on this blog someone made the declaration that vaccines were 100% safe and effective. Usually we explain that they are safer than the diseases. Measles used to kill an average of five hundred in the USA, and disabled many times more that per year.

Trackbacks/Pingbacks

  1. Autism Blog – BMJ, Brian Deer file anti-SLAPP suit against Andrew … | My Autism Site | All About Autism - March 12, 2012

    […] See the article here: Autism Blog – BMJ, Brian Deer file anti-SLAPP suit against Andrew … […]

  2. Science-Based Medicine » An antivaccine tale of two legal actions - March 12, 2012

    […] Sullivan points out, one has to wonder whether Andrew Wakefield’s lawyer was aware just how shaky the basis of […]

  3. An antivaccine tale of two legal actions – - HealthNewsX - Health News AggregatorHealthNewsX – Health News Aggregator - March 12, 2012

    […] Sullivan points out, one has to wonder whether Andrew Wakefield’s lawyer was aware just how shaky the basis of his […]

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