Andrew Wakefield Sues BMJ and Brian Deer: Time To Test Out the New Texas Anti-SLAPP Statute

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103 Responses

  1. "Second, the Texas suit against Wakefield…"

    I think you mean "suit by Wakefield".

  2. Ken says:

    Thanks, fixed.

  3. Neuroskeptic says:

    It'll fail but it will serve its purpose – keeping Wakefield in the public eye.

    What you must remember is that he is like a washed up popstar who hasn't had a hit in years and now faces the possibility of not being on TV any more.

    Publicity is not just a bonus for a popstar, it's the essence of their career, likewise for Wakefield – he needs publicity to get supporters and donations and work. Any normal medical career is out of the question now.

    So he needs to be in the news and this will keep him there for a few weeks anyway.

    After that it's Celebrity Big Brother.

  4. SPQR says:

    Suing in Texas seems like a desperation move. Or just plain insane. Between the personal jurisdiction issue, the more favorable defamation law in general and the SLAPP in particular.

    Unless he wants to lose early and be able to claim that "only a technicality allowed BMJ to escape …"

  5. Matthew Cline says:

    I object to the term "Western medicine", since medicine is medicine regardless of where it was developed or where it's practiced (for example, the precursor to vaccination was developed in Asia). And there's plenty of alternative medicine which was developed in the West (like homeopathy, which was invented in Germany).

  6. Ken says:

    Matthew, that's a very fair point. I'm casting about for effective shorthand here.

  7. Anthony says:

    There's a very good shorthand term you can use – "Medicine", with a nod to Tim Minchin "Do you know what we call Alternative Medicine that's been proved to work? Medicine"

  8. tom says:

    Ken, I think "science-based medicine" is a good replacement for "Western medicine".

  9. daedalus2u says:

    I see in the complaint that Wakefield calls himself DR and Dr Wakefield. It is my understanding that Wakefield has no education that would grant him the honorific of Dr, and since he does not have an MD, and is not licensed to practice any kind of medicine anywhere, isn't using the honorific title of "Dr" misleading (at best)?

  10. Squillo says:

    If you haven't seen the complaint, it's here. There is some discussion of jurisdiction.

  11. Slapp Happy says:

    Darn, I was hoping to see this was filed by Attorney Marc Stevens.

    Instead, a firm that sues the corporate world on behalf that actually uses technology by some who claim to have invented stuff that no one built? I wonder how they're getting paid?

  12. John David Galt says:

    If Wakefield had brought this libel claim in Britain, it certainly would not fly; defendants would simply introduce into evidence the transcript of the hearing at which his license to practice medicine was revoked.

    Which makes me wonder how he could possibly think it will fly in the US. (If he has any reason to think that, then something is wrong in Texas.)

  13. Liz Ditz says:

    Hi Ken thanks for the legal education. I'm keeping a list of responses at
    Wakefield's Latest Legal Action: Roundup.

    It is curious that the Wakefield loyalists have been silent. Surely some of them knew that the suit was in the works.

  14. Ken says:

    Liz, I completely forgot to hat tip you on this — fixed now.

  15. Matt Carey says:

    A few thoughts on this, from someone who has followed Andrew Wakefield's actions rather closely for the past few years.

    1) If the BMJ didn't feel as though they could defend their pieces in UK courts, they wouldn't have gone forward. They must have had legal input before going to press.

    2) UK laws are much more difficult for defendants than US laws.

    3) The BMJ likely has insurance and certainly must have attorneys on retainer who understand libel.

    4) Mr. Wakefield's legal team is (a) spearheaded by a neighbor and (b) has expertise in intellectual property law, not libel.

    5) Brian Deer must have a lot more information than was published in the relatively short BMJ articles.

    My guess is that Mr. Wakefield (and his attorneys) are hoping for the cheap option whereby the BMJ and Mr. Deer argue that they are not bound by Texas jurisdiction. They could then claim that the BMJ ran rather than defend their position.

    I would not take on Brian Deer unless I was 100% certain I would win. One can easily underestimate Mr. Deer. He can be mercurial (a term I believe he has used to describe himself). However, he is also very thorough and has had six years to build this case. He has the full transcripts of the GMC hearing to back him up in addition to his own thorough research.

    Mr. Wakefield is a very interesting character. If Hollywood central casting had put him in the role of the put-upon British doctor, only out to serve the disabled, people would think they went over the top. The problem is he makes statements which are clearly and demonstrably false. Watch his interview with Matt Lauer where he states that his patent had nothing to do with an alternative vaccine. Claim 2 and other language in the patent clearly contradict this statement. His business plans, parts of which Brian Deer made public, show that not only was Mr. Wakefield aware of the fact that his invention would (at least in his mind) be a potential vaccine, he was trying to get funding to help in the development of it as a vaccine.

    Andrew Wakefield's supporters tried to defend him on my blog for a while. Unfortunately the transcripts of the GMC hearings were available to reference. Just as Mr. Wakefield will use partial truths to make his case, his supporters cherry picked statements from the transcripts. When the full statements were brought to light it was clear that they showed exactly the opposite of what they were claiming–they showed that Mr. Wakefield's presentation of the children in his study was inaccurate and that he had the information available at the time of writing the paper.

    If I were an attorney I would probably consider Mr. Wakefield to be a nightmare of a client. On first interview he would come across as absolutely believable. But as you check his statements one by one you find that the truth is not behind him.

  16. Scott Jacobs says:

    How Libelous could the statements have been, if he waited 6 years before filing?

  17. Max Kennerly says:

    "I sued for libel in Britain and lost. I know! They have better more plaintiff-friendly libel laws in the US, and I'll sue in the most plaintiff-friendly venue in the US: Texas."

    LOL, fail.

  18. Dustin says:

    Max, it makes you wonder. Since they probably realize they aren't going to win, what's the point? Is it as claimed above: just to stay in the headlines? Is it to hassle the hell out of people, regardless of the outcome of the case? They can get fees back, but some folks have a hard time funding the case up to that point.

    SLAPP penalties need to be heavy.

  19. JSinAZ says:

    "all alternative medicine practitioners everywhere carry the diluted memory of these particular examples."

    Best laugh in days. Thanks.

  20. A Critic says:

    and to refer to conspiracy-minded groups that believe that the FDA and "Big Pharma" and the Medical-Industrial Complex are concealing grave truths about Western medicine

    Um, aren't they? Such as the grave truth that the "cure"/treatment is worse than the ailment? Haven't you seen the TV commercials?

  21. Scott Jacobs says:

    I dunno… I consider "not having cancer anymore" to out-weight most any side effect…

    And I'm not even that fond of this "living" thing I got going.

  22. Squillo says:

    @Dustin

    The point, I believe, is to keep the "Andrew Wakefield: Martyr" brand going as long and as strong as possible. He would have serious difficulty getting a real, well-paying job given his history, so he needs to stay at the top of the anti-vax heap to keep getting decent speaker's fees, book sales, and possibly paid gigs at various anti-vax orgs.

    If he loses his suit, he gets another notch on his "martyr" belt; if he wins, it's "proof" that everyone was out to get him. He wins either way.

    I've heard it posited that, if he were to attempt to file in the UK, he wouldn't get far thanks to his previous failed suit (thus shortening the publicity shelf-life), and that anyone who donated money to a legal-offense fund could be in jeopardy if he lost. Any UK-based lawyers want to comment on that?

  23. Matt Carey says:

    "Since they probably realize they aren't going to win, what's the point?"

    I gave up trying to figure out what Andrew Wakefield thinks/believes/realizes a long time ago.

    One point is that any fight will be welcomed (and already is being welcomed) by Mr. Wakefield's supporters. This is a group of people who believe Mr. Wakefield's many excuses for unethical behavior.

    To put this in perspective, at the "Autism One" conference–a parent convention with a major focus on alternative medicine and vaccine causationn–Andrew Wakefield was given a standing ovation after he lost case before the GMC. He was again applauded when after the BMJ articles came out. The same conference gave a standing ovation to Mark and David Geier (father/son team) after they faced legal troubles including Mark Geier (the doctor of the team) lost his license due to ethics violations. David Geier was facing sanctions for practicing medicine without a license. The Geiers were known for two things: (1) publishing very low quality papers claiming that vaccines cause autism and (2) a medical protocol whereby autistic children were misdiagnosed with precocious puberty so they could be put on Lupron. Lupron is a drug which shuts down sex hormone production in the body. This based on some of the absolute worst pseduo science I've read where they claim that testosterone binds to mercury in the brain (it's always mercury with them, despite the mountain of evidence against the theory).

    So, "what's the point"? Building support within his community. Mr. Wakefield's community is not even close to what you are likely in touch with.

    Further in the "I can't guess what he's thinking" theme: Mr. Wakefield claims that the articles and statements "intended to cause damage to Dr. Wakefield’s reputation and work as a researcher, academic, and physician and to permanently impair his reputation and his livelihood"

    Put this in perspective: before the BMJ articles–before–

    Mr. Wakefield had the longest and most expensive hearing by far before the U.K.'s General Medical Council (GMC). He was found proved to have committed several violations and was "struck off the register" (i.e. no longer licensed to practice medicine).

    His employer had let him go from his $270,000/year job as research director. His employer, Thoughtful House, went so far as to change their name afterwards, distancing themselves from Mr. Wakefield's involvement.

    He has had multiple papers withdrawn by journals.

    He was never licensed to practice medicine in the U.S.. Even in his appointment in the U.K. he was restricted to research, no clinical practice. This is one of his ethics violations.

    So, his reputation as a researcher? Not high at all. Not for his views on vaccines, but for his methods.

    His reputation as an academic? He hadn't been an academic since leaving the U.K. nearly a decade ago. I can't think of an institution in the U.S. which would hire him, even before the BMJ articles came out.

    His reputation as a physician? He wasn't licensed as a physician here or abroad. He hasn't practiced as a physician in something like 2 decades.

    In the community in which Mr. Wakefield participates now, the BMJ articles only enhanced his reputation as what many call "a brave maverick doctor". His position at the time was founder/head of a charity called "the strategic autism initiative" which is now based (as much as such an entity can be) with the same people who run the Autism One conference–the one mentioned above which supports and applauds Mr. Wakefield.

    It is a very different world where he is.

  24. Matt Carey says:

    I've heard it posited that, if he were to attempt to file in the UK, he wouldn't get far thanks to his previous failed suit (thus shortening the publicity shelf-life), and that anyone who donated money to a legal-offense fund could be in jeopardy if he lost. Any UK-based lawyers want to comment on that?

    Part of the choice of venue may just be cost. Mr. Wakefield has engaged a neighbor of his as his attorney. His neighbor's firm specializes in intellectual property, not libel. Sounds like an attempt to keep costs down.

    Mr. Wakefield would have a hard time arguing damage to reputation in the U.K., I suspect. The GMC hearings pretty much put an end to that. The BMJ articles were barely picked up by the British press. Seems like the U.K. is just tired of Andrew Wakefield.

    Mr. Wakefield may be learning from others' experiences in his community. I am thinking of JB Handley's (founder of Generation Rescue, an organization very favorable to Mr. Wakefield) failed libel suit against Paul Offit and Colubmia University Press and Barbara Loe Fisher's (Of the NVIC, another org very favorable to Mr. Wakefield) failed lawsuit against Paul Offit, Amy Wallace and Conde Nast. Putting your own money up against corporations which have staff attorneys and/or libel insurance is not a wise move if you don't have a strong case (which neither of the above did, nor does Mr. Wakefield in my opinion). Mr. Handley has what I consider to be some of the most expensive blog posts ever to show for his efforts. Not a great reward. But, both lawsuits were popular within their community. Hardley seems worthwhile to me, but I don't have tens of thousands of dollars to throw away.

    Given the state of Mr. Wakefield's career (which I would contend is the same before and after the BMJ articles), I doubt he can afford to spend much time in this fight if it is really a nuisance suit.

    If he thinks he can win…well, that's a different story. I wouldn't agree with him. As I noted above, I can't imagine that the BMJ (a) put all their evidence into the short articles and (b) didn't clear this series with their attorneys first. It was a bold move and rather unprecedented.

  25. Liz Ditz says:

    Thanks Ken

    I'm puzzled by the continuing silence from the "autism is TOO vaccine injury!!1!" brigade. All the "daily web newspaper of the autism epidemic" has had to say is reposting a clip of the Guardian article.

  26. parent says:

    You people are quick to defend Brian Deer's Allegations, but you know little of this Murdoch paid hack.

  27. doomrock says:

    Not gonna bother watching an hour of that. What are the main points the film makes?

    Also, what has Deer being "Murdoch Paid" got to do with anything? Are you suggesting guilt by association? If that is the extent of your evidence it doesn't count for much really does it. What did you think of "Murdoch paid" hacks around the time of the original coverage of Mr Wakefield's story, when the press seemed to have unquestioningly supported him?

  28. Laura K says:

    Parent, all hack-hack aside I would judge the defense of Brian Deer as much more about his RIGHT to question in his blog. After all, even if he was on Wakefield's side of the debate, the Bill of Rights would allow him to say so (alas). Also, as targets go, a man who has contributed to huge health problems in unvaccinated children, had his findings pulled from 'the Lancet' and other various penalties incurred isn't too tragic a choice…
    I could go into the incredible, literally murderous irresponsibility of unvaccinated kids and the death and havoc they could have wreaked on my own family at one time or another, but more dispassionately:
    Attacking Deer is stupid, and does not appear well done on this endless clip you've embedded, but of course, as you must realize, it is as allowed as pointing out that Michelle Bachman (*who has weighed in on other vaccine related causes of autism with her usual, ahem….never-mind.literally.) and Dr. Wakefield likely have a collective IQ of -200. They are allowed to say what they like.

  29. Laura K says:

    Doomrock, glad I'm not the only person to find the clip un-watchable.

  30. Chris says:

    parent, I have no intention of watching that youtube video, but I did see the first few quotes. Which MMR vaccine are they discussing? The ones used in the UK before 1992, or after 1992. Or is it the MMR vaccine that has been used in the USA since 1971?

    Also, what about the studies done on the MMR vaccine that were done at the Royal Free Hospital between 1999 and 2003 that included a few hundred children? Did they confirm Wakefield's findings? If not, why did the retracted Lancet study, or even Wakefield still matter?

  31. Scott Jacobs says:

    Come on, guys… Parent just knows – like Wakefield does – that science isn't about "numbers" and "verification", but about how something makes you feel

  32. Laura K says:

    Oh Scott, you always bring me the very best sarcasm…

  33. A Critic says:

    I dunno… I consider "not having cancer anymore" to out-weight most any side effect…

    One of the side effects for one of the "medicines" I see on television IS cancer. I can't remember if that was the acne medication or something else.

    There are two other grave truths that "modern medicine" is concealing: marijuana is beneficial for many ill people & speed is not beneficial for most children.

  34. Scott Jacobs says:

    Here's another grave truth for you, A Critic:

    Vaccines don't cause autism.

  35. Laura K says:

    What Vaccines DO cause is the ability of children from diverse homes and families to play together, eat sand, throw things, gum toys and hand them away and do all the things that they do without facing the danger of virusus that can cripple, blind, steralize or deafen them or the people resonsible for their care–or the families of their care givers.

  36. Laura K says:

    Good Gad, sorry for the semi-literate spelling above!

  37. Ken says:

    Actually, "A Critic," it's the federal government that is limiting marijuana use – the notion that it can have beneficial effects is a mainstream notion in the medical community and the states and localities that have legalized its medical use. Notably, the benefits of marijuana have been discussed in numerous peer-reviewed publications that have somehow escaped the evil conspiratorial thumb of Big Pharma.

    As for the notion that "speed is not beneficial for most children" — the notion that various meds are seriously over-prescribed for kids is also rather mainstream and hardly suppressed.

  38. Scott Jacobs says:

    NO!

    You LIE Ken!!

    Everything he's read about how pot is kept down by Big Pharma, and how the Medical Industrial Complex is making TRILLIONS off of giving kids Ritalin – all from the anti-vax boards he reads 20 hours a day – is true and you are a LIAR!!!

  39. A Critic says:

    @Ken

    Actually, "A Critic," it's the federal government that is limiting marijuana use

    Really? And the AMA and the huge number of anti-marijuana physicians have nothing to do with it? The pharmaceutical companies have nothing to do with it? It's all the politicians and bureaucrats?

    There's plenty of blame to go around.

    [quote]the notion that various meds are seriously over-prescribed for kids is also rather mainstream and hardly suppressed.[/quote]

    And yet within the medical and pharmaceutical industries it's still very common to dose kids with stimulants (and nowadays, anti-psychotics too!)

  40. Ken says:

    You seem to be conflating "suppressed" with "not sufficiently widely accepted."

  41. A Critic says:

    @ Scott Jacobs

    Everything he's read about how pot is kept down by Big Pharma, and how the Medical Industrial Complex is making TRILLIONS off of giving kids Ritalin – all from the anti-vax boards he reads 20 hours a day – is true and you are a LIAR!!!

    I don't think I've ever visited an anti-vaccination board, and I didn't say anything about vaccinations at all on this thread. There are also endless sources of anti-marijuana and pro-speed propaganda from the medical and pharmaceutical industries, which also promote drugs of dubious benefit (i.e. asthma medications that may make your asthma kill you).

    FYI, the secret to a good strawman is the same secret as to telling a good lie: you want to make it as close as possible to the truth.

  42. A Critic says:

    @Scott Jacobs

    Vaccines don't cause autism.

    Did I say that vaccines cause autism? No, I did not.

  43. A Critic says:

    @Ken

    You seem to be conflating "suppressed" with "not sufficiently widely accepted."

    There's what, a century and a half of scientific research demonstrating the medical benefits of cannabis? And yet the AMA and many if not most doctors continue to insist "we need more research!"? Denial on that level is suppression.

  44. SPQR says:

    Is there any coherent logic behind whining about marijuana prohibition on a thread about the legal bully tactics of an anti-vaccination fraud?

  45. Scott Jacobs says:

    Buddy, if you came here for logic, I have some bad news…

  46. Chris says:

    "A critic" looks like the cannabis troll, Jacob, who occasionally infests Orac's Respectful Insolence blog.

  47. A Critic says:

    @SPQR

    Ken demonized as "conspiracy theorists" those who question the dictates of the FDA, the drug lords we call Big Pharma, and the (often) charlatans we call the medical-industrial complex, and he lumped us skeptics in with the purveyors of an even more dubious variety of medicine.

    Another grave truth concealed by the above groups: even if you are really old, it's not usually necessary or even wise to be on six, eight, or more medications. While modern medicine is undoubtedly an improvement over it's primitive ancestors the snake oil has yet to be purged from these industries.

  48. Ken says:

    Well, no. That's a little overbroad. I would only describe people as "conspiracy theorists" if they assert, for instance, that a conspiracy among those forces is a reason that there is no peer-reviewed research supporting a particular medical proposition. Criticisms of the FDA and medical industries are unremarkable. The only people who merit derision are those who substitute conspiracy theories for credible evidence.

  49. Scott Jacobs says:

    Another grave truth concealed by the above groups: even if you are really old, it's not usually necessary or even wise to be on six, eight, or more medications.

    You know this how? Are you in possession of a medical degree or even the most basic of medical training?

    No?

    The how the fuck do you know what is medically necessary or not?

    Is it because you read that "fact" on some bullshit forum? Or did you just hear it from one of the voices inside your head?

  50. SPQR says:

    Ah, the wonders of the internet on display.

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