Andrew Wakefield loses frivolous defamation lawsuit. To pay court costs.

19 Sep

In 2011 the British Medical Journal (BMJ) published a series of articles about Andrew Wakefield and his efforts to promote the idea of the MMR vaccine causing autism. Brian Deer has a list of links on his website: Secrets of the MMR scare. Here are just a few of those links:

Piltdown medicine – the missing link between MMR and autism

Editorial: Wakefield’s article linking MMR with autism was fraudulent

How the case against the MMR vaccine was fixed

How the vaccine crisis was meant to make money

The Lancet’s two days to bury bad news

Nearly a year after those were published, Andrew Wakefield took issue with his work being declared fraudulent and sued for defamation. Not in the UK, where the laws are very favorable to him. No, instead he chose his home state of Texas. Mr. Wakefield’s original suit was denied on the grounds that he did not have the standing to bring suit against the BMJ in Texas. Mr. Wakefield appealed. And lost.

In the recent appeal the judgment the court stated:

This is an appeal from the judgment signed by the trial court on August 3, 2012. Having reviewed the record and the parties’ arguments, the Court holds that there was no reversible error in the trial court’s judgment. Therefore, the Court affirms the trial court’s judgment. The appellant shall pay all costs relating to this appeal, both in this Court and the court below.

The full judgment can also be found online.

[Edit to add–see the discussion below. It is quite possible that I did not read this correctly]

If I read this correctly, Mr. Wakefield will be paying the costs the BMJ team incurred as well as his own. And, not only in the appeal, but also “in the court below”, which I read to be in the original suit. To put it simply–Mr. Wakefield may be in the position of paying the costs going back to when he first filed his defamation case.

The BMJ team and Mr. Wakefield’s team were four attorneys each. I would expect that Mr. Wakefield’s costs run into many tens of thousands of dollars. I would expect that the BMJ’s costs are likely even higher.

Which brings us to the obvious question: with a gamble of this size, what would this appeal have accomplished had Mr. Wakefield won? Well, for starters the BMJ team’s Anti SLAPP suit would have moved forward. Texas had just enacted Anti-SLAPP legislation at the time Mr. Wakefield filed suit (as an aside, if I recall correctly this is one of the blunders of Mr. Wakefield’s suit–waiting until after the new law was in place to file). SLAPP stands for Strategic lawsuit against public participation. The BMJ suit essentially puts for the idea that Mr. Wakefield’s defamation suit was a cynical attempt to stop the BMJ (and others) from voicing public criticism about Mr. Wakefield’s actions. Mr. Wakefield faced heavy penalties had the Anti-SLAPP suit gone forward and had the BMJ won.

This is the fourth time that Mr. Wakefield has attempted to “gag the media” as Mr. Deer puts it. And now the fourth time Mr. Wakefield has lost. One can never tell for certain, but it seems likely that Mr. Wakefield would have lost the Anti-SLAPP suit.

Let’s say Mr. Wakefield avoided an Anti-SLAPP judgment. He would have been able to bring his defamation case to court on the merits. Not on the merits of his scientific work, but on the question of whether the BMJ team could rightfully call his work fraudulent. A case the BMJ team certainly prepared for before going to press. And prepared to defend in the UK, where the laws are much more favorable to Mr. Wakefield. Which is to say, I suspect the BMJ felt strongly that they had checked all their facts closely and were well defended in any and all statements they made.

From my point of view, this defamation lawsuit was a vanity exercise by Mr. Wakefield. It got his name in the news. It may have slowed criticism of him for years. He got to look like a hero to his own community.

And he threw tens if not hundreds of thousands of dollars down the tubes in the effort. Mr. Wakefield heads the “Strategic Autism Initiative” which has the purported goal of funding autism research. Last I checked the majority of the money collected for the SAI went to salaries. Mr. Wakefield’s being the lion’s share. Be that as it may, Mr. Wakefield had an option a few years ago: fund autism research or fund this lawsuit.

Well, we see his choice. And the result. Sure there may be a further appeal. Take it to the Texas Supreme Court and delay some more. And run up more bills to pay.

By Matt Carey

53 Responses to “Andrew Wakefield loses frivolous defamation lawsuit. To pay court costs.”

  1. Lawrence September 19, 2014 at 20:30 #

    @Matt – wasn’t AW threatening to sue Emily Willingham over at Forbes when his suit against the BMJ / Brian Deer was over?

    Wonder if he’ll follow through on that threat now……

  2. lilady September 19, 2014 at 21:18 #

    That’s great news that Andrew Wakefield’s lame attempt to quash criticism of his fraudulent research, his Conflicts of Interests and his looting of the public funds, which were set aside to investigate any links between the MMR vaccine and the onset of autism.

  3. reissd September 19, 2014 at 21:50 #

    Not a surprising decision, but very good news.

  4. Scott Bunkelmann September 19, 2014 at 22:00 #

    The opinion of the appellate court does not surprise me in the slightest. My only question is why did it take so long for the court to rule?

    • reissd September 19, 2014 at 22:01 #

      Wakefield filing an additional brief (with a case that did not help anything) probably was part of the reason for delay, though it still took a while.

  5. Narad September 20, 2014 at 01:29 #

    To put it simply–Mr. Wakefield may be in the position of paying the costs going back to when he first filed his defamation case.

    It’s only court costs, not attorneys’ fees, and only relating to the appeal.

    • Lawrence September 20, 2014 at 01:59 #

      I believe the opinion stated that it was the appeal and the lower court as well.

      • Narad September 20, 2014 at 02:07 #

        “The appellant shall pay all costs relating to this appeal, both in this Court and the court below.”

        Note the order of the words. Obtaining the transcript (which is the property of the court reporter in Texas) springs to mind as an appeal expense incurred in the lower court.

      • Sullivan (Matt Carey) September 20, 2014 at 02:27 #

        I see what you mean if one say puts parentheses where the comma is. Or just a full stop at the comma. “The appellant shall pay (all costs relating to this appeal)”

        Why wouldn’t the lower court have charged the appeals court for such an expense already? Or, more generally, why should there be any expenses incurred by the lower court in the appeal?

        The counter argument would be, why would the appeals judge be able to impose such paying costs when the lower court did not.

        The phrase appears to be specific to the Texas court

      • Sullivan (Matt Carey) September 20, 2014 at 02:32 #

        I’ve added a note in the article above to indicate that I may have read this incorrectly. If so, it appears that Wakefield supporter Dan Olmsted made the same mistake.

      • Anne September 20, 2014 at 03:08 #

        I think Narad is right, the appellate court is awarding costs on appeal. The BMJ would have paid a filing fee to the court of appeal and fees to the lower court for preparation of the record and transcript on appeal. Possibly the lower court also awarded fees in its judgment. Prevailing party usually gets their court costs back from the other side (this does not usually include attorney’s fees as Narad points out).

    • VulcanGopher September 23, 2014 at 15:38 #

      “Costs” sound more draconion than the reality. The prevailing party in many jurisdictions typically recovers “costs” which are defined to include things like the cost to file motions, to serve papers, and for stenographers. They don’t include attorney’s fees, which are often orders of magnitude greater than the “costs.”

      It’s too bad the appellate opinion does not include any discussion about the merits of the case.

  6. Lawrence September 20, 2014 at 03:15 #

    Either way, Wakefield has to write a check to Brian Deer….again….

    • Anne September 20, 2014 at 07:08 #

      True, Lawrence, more money to Brian Deer. With Wakefield as sn enemy, he doesn’t even need a pharma paycheck.

  7. lizditz September 20, 2014 at 18:00 #

    Here’s another article, by Colin at Violent Metaphors

    “And that won’t stop now that the appellate court has ruled; Wakefield’s truest believers will just say that since this case went out on jurisdictional grounds and he dropped his first case before trial, no one has ever had a chance to rule on his claims.”

    • Sullivan (Matt Carey) September 25, 2014 at 22:17 #

      Sorry for the delay–this got caught in the spam queue

  8. Truthteller September 22, 2014 at 00:33 #

    In my considerable experience courts are 100% corrupt and judges tell huge piles of cheap lies. Symptomatic of this is that they make it a “criminal offence” even to just audio-record even your own personal (but supposedly public) cases. Why would they do that if they had nothing shameful to hide?
    And if Deer and the BMJ really wanted to make the truth clear they would not have come up with such a shallow excuse to prevent this matter having a proper hearing (especially in a court which people here are saying would disfavour Dr Wakefield anyway). This after all that taunting of “if blah blah why doesn’t he sue us for libel and become a zillionaire blah blah?”.

    • reissd September 22, 2014 at 00:51 #

      It’s not the courts who make it an offense to record things – it’s the legislature.

      Why would Deer and BMJ pay much higher costs for litigating on the merits in Texas? Wakefield chose to bring a case against British citizens for events in Britain in the much less libel-friendly american courts. That’s an abuse of forum, and the courts were right to reject that. He could have sued in the U.K.. He didn’t. His choice.

      I’d bet Deer would have been happy to have this decided on the merits, if asked, but the BMJ saw no reason to spend lots of money in lawyer fees to litigate in a different language.

      Wakefield would have almost certainly lost on the merits. He had no case in U.S. law.

      • Brian Deer September 22, 2014 at 15:50 #

        Dorit: In fact, the costs and other issues in going forward in Texas could potentially be very serious. But that’s not the only issue.

        First, it is vanishingly unlikely that a judge would let the case go before a jury. The case would almost certainly be disposed of on summary judgment because Wakefield cannot show that we did not believe our own stories, or show that we had serious doubt over their truth. That proposition would be laughed out. Thus, he could not establish malice. This would probably cost BMJ another half a million, or more, in costs. And it would accomplish little. People would be told a story they already know, the anti-vaxxers would smear the judge, as they do in all judicial cases, and proof that we didn’t act maliciously would be misrepresented by some that, even so, our stories were not true.

        But, if by some freak, the case ended up in front of a jury, this would mean moving and accommodating a UK lawsuit – all of the dozens of witnesses (who are busy professional people, and sometimes quite old) to Texas hotels, for days or weeks at a time. We would find it very difficult to get critical UK documents – such as GMC original papers. We would not be able to depose under oath people around Wakefield in the UK, such as any number of mothers who brought fraudulent vaccine compensation claims and lied at the Royal Free, and Clifford Miller and his childhealthsafety blog, who would be required to be deposed. The Texas court has no jurisdiction in the UK, so we would have a lot of problems. We would need to continue to employ two different law firms (as we do). And all of this for, again, a result that would tell people what they essentially already know about Andrew Wakefield. No significant journalistic purpose would be served.

        Meanwhile. Wakefield would likely do the same as at his GMC hearing, and call no witnesses. And, at the end of that, we would not be able to seize his house and sell it to pay our bills. These are but some of the massive obstacles.

        While nobody goes into litigation lightly, we were all prepared for the eventuality of finding ourselves in the high court in London – which is a jurisdiction far more favourable to plaintiffs because we have no first amendment rights, and the plaintiff has no need to prove malice.

        The real issue is why Wakefield – who has previously sued me from Texas three times in London – chose not to do so on this occasion. The answer is all about costs. We would have come after him for those, and he would have been left living in the gutter by the time we got them. His case is vexatious, and the last place you want to run vexatious defamation suits is in London.

        Of course, if anyone is in some kind of doubt about the case facing Wakefield, they only need read my two lengthy affidavits to get some kind of sense about what was coming at him. And that would be before we got into all his libels of us.

        Click to access slapp-amended-declaration.pdf

        Click to access slapp-declaration-supplement.pdf

        I can tell you, there were very mixed feelings among the journalists involved, but we don’t pay the bills or really have much of a sense of the scale of the issues in litigating in a foreign country.

      • Sullivan (Matt Carey) September 22, 2014 at 17:31 #

        “Meanwhile. Wakefield would likely do the same as at his GMC hearing, and call no witnesses.”

        One doesn’t need witnesses for drama and PR. He’s still playing off his appearances outside the GMC. Last I checked his facebook background picture was one such picture.

        In the end, what has Wakefield accomplished in the last, say, 15 years?

        He left the Royal Free rather than take their offer of support to prove himself right.

        He’s seen the idea he championed (I won’t say “his” idea as it’s really from the parents) proved wrong in multiple countries. Including a study including his former colleague O’Leary. (Hornig et al. in PLoS One)

        He appears to have lasted only a short time associated with Bradtreet’s operation in Florida.

        He helped found and ran Thoughtful House. In his time there he apparently did nothing to prove the MMR hypothesis correct. Even though he had access to patients, money and his friend Krigsman on board to do the biopsies. Thoughtful House let him and all his “dream team” go, renamed itself and left no mention of him on their website.

        His “Strategic Autism Initiative” that he started after leaving Thoughful House has spent most of it’s money on salaries (with his as the lion’s share) and their revenue has dropped dramatically.

        He’s sued without success, what, four times?

        His “autism media channel” puts out direct to YouTube videos that show that professional equipment does not make one a professional film maker.

        He wrote two books. Which demonstrated he shouldn’t write books.

        He championed the “Arizona 5”. I can’t see he did any good there.

        He took on PR work for Alex Spourdalakis. Got his mother to take Mr. Spourdalakis to Mr Wakefield’s “dream team” doctor, Krigsman, for GI scoping and treatment. Mr. Spourdalakis is now dead, murdered by his mother. But Mr. Wakefield hopes to demonstrate his “documentary” skills with his own spin on events. Truly a low moment in autism’s recent history.

        He’s taken on promotion of Brian Hooker’s research. With a race-baiting over-the-top awful video.

        He tried to create a reality show “The Autism Team”. Part of his direct to YouTube media career.
        There’s more. But as a career, what does he have to show for millions of dollars he’s managed over the past decade? And lost opportunities like the offer by the Royal Free to prove his research?

        I mean, besides a huge house, lots of land, a salary that’s larger than any he could have expected in the UK (well, reasonably expected–he did seem to expect to be wealthy by now from his business ventures)

      • reissd September 23, 2014 at 00:30 #

        That makes a lot of sense. I also did not think Andrew Wakefield could win – as you said, he could not show malice, and I agree you had a powerful case (though frankly, if a case goes before the court, the result is never 100% certain). But I did not realize the extent of the expenses. Thank you for that additional information.

        May I quote this comment in future?

    • Colin September 25, 2014 at 13:06 #

      Yes, science is wrong, hundreds of thousands of people are in on the fix and not one of them has ever broken their silence, doctors would rather harm children than help them (I guess that’s why they went into medicine), all courts are corrupt, and clearly fradulant information supporting a crackpot theory means it is true. OR, Wakefield’s theory is bogus. Which of those seems more likely? I have an autistic child. Every minute, dollar, and expert wasted on this theory could go to finding real causes, real treatements, and real supports that really work. Wakefield and his supproters sicken me. Stop wasting time, energy, and resources defending something so clearly wrong and put your energy into actually helping. “The needle did it” might feel nice and comforting, and give you someone to blame, but the truth is the truth and something making you feel better doesn’t make it true.

    • lilady September 25, 2014 at 21:28 #

      What exactly is your “considerable experience”, Truthteller?

      It seems to me, that you are parroting the stuff you read on Age of Autism, written by a U.K. citizen who is not an attorney admitted to practice in the U.K. or in the United States.

      You really need to check out Mr. Deer’s website, to read how Andrew Wakefield and his Texas attorneys made multiple motions in the lower court and in the Appeals Court, in a blatant effort to stall the deliberations of the judges in those cases.

      • Sullivan (Matt Carey) September 25, 2014 at 22:16 #

        You have to admire someone who can come out with such a clear case of blame shifting: per “truthteller” It’s the BMJ’s fault that they don’t want to spend a million bucks* and lots of their own time fighting a frivolous lawsuit.

        Mr. Wakefield screwed up. Plain and simple. He sued where he didn’t have the right to sue.

        *One open question is whether the BMJ has insurance. It could be that Mr. Wakefield has succeeded in making the BMJ’s insurance company pay legal fees. Not the BMJ itself. One can think of other recent cases where people have been sued and ask the same thing. Those who bring suit are very unlikely to have such coverage.

      • Narad September 27, 2014 at 06:58 #

        It seems to me, that you are parroting the stuff you read on Age of Autism

        “Truthteller” is “Robin” on AoA.

      • Sheogorath September 27, 2014 at 08:38 #

        In response to Narad: While checking out your assertion (which is accurate, thanks), I read the following piece of comment left by Jen: When I posted it there were 13 comments. The second one calls Dr Wakefield a ‘pig’ and says he should be dead or in prison. It also accuses him of performing unnecessary spinal taps on children. (Dr Wakefield’s Royal Free contract precluded ANY clinical contact with children). In the UK, this comment would not be published. It would be illegal.
        This makes me laugh for its very inaccuracy. Not only is saying someone should be dead not an actual threat to kill them, but Mr. Wakefield’s contract did not stop him taking blood from children at a birthday party for one of them. Thus such a comment could absolutely be posted in the UK and it would not be illegal under any of our current laws.

  9. Sheogorath September 22, 2014 at 03:41 #

    Oh, man, I wanna sue now. Maybe an international injunction will stop Mr. Wakefield from bringing vexatious lawsuits!

    • Lawrence September 22, 2014 at 10:45 #

      I believe the Lawyer who Wakefield was working with in the UK on the MMR litigation is being sued by a number of his clients, because they believe he knew that their cases were hopeless and he took them anyway (and charged a large amount of money), in what amounted to fraud.

  10. Sheogorath September 23, 2014 at 11:19 #

    reissd said: I also did not think Andrew Wakefield could win – as you said, he could not show malice, and I agree that you had a powerful case.
    Then factor in Texas’ anti-SLAPP legislation. *crows with jubilant laughter*

  11. garethlewry September 23, 2014 at 13:27 #

    Reblogged this on GarethLewry and commented:
    Interesting Post about Wakefield.

  12. garethlewry September 23, 2014 at 13:28 #

    Great news.

  13. briandeercomments September 25, 2014 at 14:12 #

    Having a spare moment, I looked at the age of absurdity blog and found the belching sow Jenny Allan holding forth with legal advice. I was quite amused by her “opinions” on comparative defamation law, but all but collapsed with raucous laughter by her explanation as to why Andrew Wakefield did not sue the BMJ in England.

    Brain like a 40 watt cesspit pump she may have but, at last, she gets it:

    “In the UK, losers have to pay the entire costs of the case.”

    Go figure.

  14. Sheogorath September 25, 2014 at 16:14 #

    @ Lawrence, Anne, and ‘Truth’teller: Which would you rather have, Autistic children to support or small graves to visit? Because it sounds to me like you’d prefer to have children that are dead of preventable diseases.

    • Lawrence September 25, 2014 at 17:38 #

      Ummmm…Sheogorath – did you even bother to read my comments?

      Neither Anne nor I have anything to do with the idiotic statements that Truthteller has made.

      • Sheogorath September 25, 2014 at 20:25 #

        @ Lawrence: I included you in my earlier reply in error, and I included Anne because she said, “True, Lawrence, more money to Brian Deer. With Wakefield as an enemy, he doesn’t even need a pharma paycheck.” That reads like a massive dig at Brian Deer for exposing the corruption that’s killing kids even now.

      • Chris September 25, 2014 at 20:48 #

        I read it as a compliment to Brian Deer. It seems that if Wakefield keeps losing to Deer, then Deer could retire on checks like this:

        I love how even the “millions” is blanked out. 😉

    • Anne September 25, 2014 at 23:16 #

      @ Sheogorath – I’d *much* rather have autistic children to support than small graves to visit, thanks for asking! Autism is not a fate worse than death. My comment was an (obviously unsuccessful) attempt at sarcasm. I don’t like Dr. Wakefield because, in my opinion, he’s an unscrupulous predator.

      • Anne September 25, 2014 at 23:22 #

        Plus, p.s. Sheogorath – vaccines don’t cause autism, so nobody in fact has to choose between having autistic kids and VPDs.

  15. Science Mom September 25, 2014 at 21:11 #

    @ Sheogorath, that wasn’t a dig at Brian Deer but rather at the numpties who perpetually accuse Brian Deer of being a pharma shill. Because well anyone who doesn’t agree with them and says so is a pharma shill to them.

  16. Sheogorath September 26, 2014 at 08:11 #

    Science Mom said: That wasn’t a dig at Brian Deer, but rather at the numpties who perpetually accuse Brian Deer of being a pharma shill.
    If that is indeed the case, Anne, then I apologise for including you in my reply. There is no reliable sarcasm detector for the written word, unfortunately.
    Sheogorath – vaccines don’t cause autism, so nobody in fact has to choose between having autistic kids and VPDs.
    I know that, but I’ve never been able to convince anti-vaxxers of the fact no matter how much evidence I present, hence my reformulated argument.


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