Brian Deer and the British Medical Journal File An Anti-SLAPP Motion Against Andrew Wakefield

Law

A few months ago I pointed out that Andrew Wakefield had sued Brian Deer and the British Medical Journal for defamation. Mr. Wakefield, you might recall, is a widely discredited advocate for the position that vaccines cause autism, a position cherished by people who believe that the scientific method involves believing things very fervently.

In my post I predicted that Wakefield's suit would be an excellent opportunity to test-drive Texas' aggressive new anti-SLAPP statute. As predicted, Mr. Deer and the BMJ have filed an anti-SLAPP motion, which you can read in full here at Mr. Deer's web site.

A fair evaluation of the motion will take a slow and careful reading, which I will eventually undertake. For now, three points: (1) upon a quick read, it appears very strong, (2) note that Mr. Deer and the BMJ "specially appear" to file the motion, preserving their challenge to the Texas court's personal jurisdiction over them (which, hopefully, the Texas court will permit), and (3) if the court finds that the defendants have established that Wakefield's suit is premised on their exercise of protected speech (which the court almost certainly will), then the burden shifts to Wakefield to come forward with admissible evidence sufficient to prove that he can possibly prevail on his claims even in light of the relevant privileges and constitutional protections. In other words, Wakefield will be forced to come forward with actual evidence.

This is one to watch.

Thanks to Mr. Deer for the note referring me to his website and the motion.

Last 5 posts by Ken White

19 Comments

14 Comments

  1. Ren  •  Mar 11, 2012 @10:19 am

    It's on like Donkey Kong!

  2. SPQR  •  Mar 11, 2012 @10:51 am

    Let's hope for an appropriate ruling by the court quickly.

  3. Passing thru, may stick around.  •  Mar 11, 2012 @4:41 pm

    Funniest thing I've seen in years was a pro se malicious moron who filed a libel suit in CA over an email that called him, well, a moron.

    Natch, defendant filed a CCCP 425.16 motion to strike right away.

    Says the moron in court for the hearing on the motion, "That's not fair. I didn't know he was going to get a real lawyer. I thought he'd fight fair since I don't have one."

    Needless to say, he got pwned. Bigtime.

    Hope this one works out as well.

  4. Matthew Cline  •  Mar 11, 2012 @5:35 pm

    I remember in another Popehat thread there was mention that an anti-SLAPP motion was dismissed because the anti-SLAPP law was in the state were the plaintiff lived, and there was no anti-SLAPP law where the defendant lived (I can't track the comment down at the moment). Could something like that happen here?

  5. Matthew Cline  •  Mar 11, 2012 @7:10 pm

    then the burden shifts to Wakefield to come forward with admissible evidence sufficient to prove that he can possibly prevail on his claims even in light of the relevant privileges and constitutional protections.

    Would Wakefield's side get to issue any subpoenas to Deer, or would he have to make due with whatever information he already has access to?

  6. Ken  •  Mar 11, 2012 @7:14 pm

    Matthew, I don't remember as to the Texas statute, but under the California statute, you have to make a special motion for permission to take discovery for purposes of resisting the motion, and it is generally not granted. Precisely because the burden is only offering priima facie evidence, if you filed suit, you ought to have it already.

  7. Matthew Cline  •  Mar 11, 2012 @8:41 pm

    @Ken:

    Just a note: if the law firm your work at has any pharmaceutical companies as clients, be prepared for Jake Crosby accusing you of having an undisclosed conflict of interest.

  8. Ken  •  Mar 11, 2012 @8:44 pm

    My FDA and Big Pharma masters won't permit me to say.

  9. Bob  •  Mar 12, 2012 @8:45 am

    " In other words, Wakefield will be forced to come forward with actual evidence."

    Ooo… burn.

  10. Liz Ditz  •  Mar 12, 2012 @1:32 pm

    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.

  11. Jess  •  Mar 12, 2012 @8:50 pm

    Could this person use some help? [LINK DELETED. DON'T LINK TO ANYTHING ABOUT THAT DESPICABLE, DEMENTED FREAK AGAIN.]

  12. Tim Griffin  •  Mar 13, 2012 @7:51 am

    There are some serious nutjobs who continue to insist that we should stop using vaccines because they cause autism, but in Wakefield's defense I have not heard him make such a claim. Rather, Wakefield's published interpretation of his own work (since discredited) was that combinations of multiple vaccines administered at the same time (MMR, etc.) may be linked to higher rates of autism, so we should consider administering vaccines separately. Our own CDC actually got a similar result until they modified their entry criteria (which is to say they put a thumb on the scale) and classified their data under the Patriot Act– I swear I'm not making this up, it's all public record. The overwhelming majority of studies since then have found no link. One lesson from this is that you don't make policy decisions based on one or two studies: part of the premise of good science is that it has to be repeatable again and again. However, it seems to me Wakefield has been incorrectly cast as some kind of leader of the anti-vaccine movement. None of this excuses his SLAPP suit, of course.

  13. Science Mom  •  Mar 14, 2012 @1:17 pm

    Mr. Griffin, I'm afraid that you have spewed a vast number of fallacious statements either out of plain ignorance or arrogant ignorance. First, Wakefield did in fact make the claim that MMR (triple jab) causes autism in numerous media venues e.g. press conferences, his patent application, interviews and congressional testimony. Of course he suggests we administer MMR separately; he had a patent for a single measles jab.

    As for this, "Our own CDC actually got a similar result until they modified their entry criteria (which is to say they put a thumb on the scale) and classified their data under the Patriot Act– I swear I'm not making this up, it's all public record."

    Um yea, you're making that up.

    One lesson from this is that you don't make policy decisions based on one or two studies:

    Who made policy based upon what Wakefield claimed? Instead, millions of dollars, several years and countless labour hours have been spent quelling the fears of untold millions by trying to replicate and refute his dodgy science.

    However, it seems to me Wakefield has been incorrectly cast as some kind of leader of the anti-vaccine movement. None of this excuses his SLAPP suit, of course.

    No, he's been correctly cast as the scheming, lying fraudster he is. He set out to make parents of autistic children his mark and derives his income solely from anti-vaxx organisations. He uses them for fundraising and participates in blatantly anti-vaxx "conferences". I don't know how you define a leader of a movement but to me, he fits the bill.

  14. daedalus2u  •  Mar 15, 2012 @6:32 pm

    I just had an interesting thought. Generation Rescue and AoA seem to be supporting Wakefield in his defamation lawsuit. If it is determined that the defamation lawsuit is a SLAPP lawsuit, then are the promoters of that SLAPP lawsuit jointly and severally liable for the costs and penalties that might be awarded?

    IANAL, but I notice that the RICO statute seems to allow SLAPP activities to constitute the criminal enterprise.

    https://en.wikipedia.org/wiki/Racketeer_Influenced_and_Corrupt_Organizations_Act

    There would be a degree of poetic and real justice if the whole anti-vax community could be connected to this SLAPP lawsuit by virtue of funding it and the whole anti-vax community could be bankrupted.

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