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An antivaccine tale of two legal actions

I don’t know what it is about the beginning of a year. I don’t know if it’s confirmation bias or real, but it sure seems that something big happens early every year in the antivaccine world. Consider. As I pointed out back in February 2009, in rapid succession Brian Deer reported that Andrew Wakefield had not only had undisclosed conflicts of interest regarding the research that he did for his now infamous 1998 Lancet paper but that he had falsified data. Then, a couple of weeks later the Special Masters weighed in, rejecting the claims of autism causation by vaccines made in three test cases about as resoundingly as is imaginable. Then, in February 2010, in rapid succession Andrew Wakefield, the hero of the antivaccine movement, was struck off the British medical register, saw his 1998 Lancet paper retracted by the editors, and was unceremoniously booted from his medical directorship of Thoughtful House, the autism quack clinic he helped to found after he fled the U.K. for the more friendly confines of Texas. Soon after that, the Special Masters weighed in again, rejecting the claims of autism causation by vaccines in the remaining test cases. Then, in January 2011, Brian Deer struck again, publishing more damaging revelations about Wakefield, referring to his work as Piltdown medicine in the British journal BMJ.

This year, things were different.

When you don’t have science, sue for libel!

By saying that this year things were different, I don’t mean “different” in the sense that there wasn’t another major story that roiled the antivaccine crankosphere. There certainly was. However, in 2009, 2010, and 2011, for antivaccine activists it was all unrelenting bad news as each year began. This year, something happened that, at least to supporters of Andrew Wakefield, seemed like a great thing. To those of us who know his case and know how far Wakefield’s fallen, it smacked of sheer desperation every bit as much as when the National Vaccine Information Center’s Barbara Loe Fisher sued Paul Offit, journalist Amy Wallace, and her publisher Conde Nasttwo years ago for libel, yes, in January. (She lost spectacularly.) Yes, as 2012 dawned, Andrew Wakefield, for some inexplicable reason, decided to sue journalist Brian Deer, BMJ editor Fiona Godlee, and the BMJ for libel for Deer’s 2011 expose. Actually, the reason wasn’t so inexplicable. My favorite legal folks informed me that the statute of limitations in Texas for libel is one year. The lawsuit is dated very close to one year after the BMJ’s first article is published.

So what was in Wakefield’s complaint against Brian Deer? It was the usual stuff, in particular claiming that the content of the BMJ articles by Deer and BMJ editors was not only just false but knowingly false, stating:

The Defamatory Statements were and are false and written and published with actual malice and intended to cause damage to Dr. Wakefield’s reputation and work as a researcher, academic, and physician and to permanently impair his reptation and his livelihood.

Wakefield’s attorney even had the audacity to play the “pharma shill” gambit. In a legal document! The mind boggles:

Interestingly, at the time of the editorials and the Deer article were Published, the Defendents failed to disclose the fact that the BMJ received significant revenue from the very vaccine manufacturers whose products need further investigation. It was only monthslater, after the issue was raised by others, that the BMJ posted the following: “The BMJ should have declared competing interests in relation to this editorial by Fiona Godlee and colleagues. The BMJ Group receives advertising and sponsorship revenue from vaccine manufacturer, and specifically from Merck and GSK, which both manufacture MMR vaccines.”

Yes, indeed. Wakefield’s attorneys were actually trying to argue that the BMJ libeled Wakefield to protect its big pharma sugar daddy, the vaccine manufacturers. Seriously, Wakefield’s lawyer, William M. Parrish, should know better. Or maybe he doesn’t. He doesn’t list libel as one of his areas of specialty, which are listed as intellectual property disputes (e.g., trade secret, trademark, trade name, trade dress, copyright and patent disputes) business torts (e.g., unfair competition, deceptive trade practices, tortious interference with actual and prospective contracts and/or business relationships, fraud, breach of fiduciary duty, unfair advertising practices, etc.) and breach of contract claims. Yet here there he was, suing for libel.

I find it very amusing that Dr. Wakefield claimed his “professional reputation” was damaged by Deer’s 2011 articles. The reason, of course, is that Dr. Wakefield’s reputation was destroyed long before by his having done and publicized his bad science, by his having intentionally consorted with the antivaccine movement, and his having continued to crank out bad science in the service of smearing the MMR with the claim that it causes autism. Wakefield destroyed his own reputation by doing fraudulent science; Deer only dug up the evidence to demonstrate that. That happened years before Brian Deer ever wrote that BMJ article a year ago. Wakefield had already been found guilty by the General Medical Council of “serious professional misconduct,” which included acting in ways not in the clinical interests of disabled children. Shortly after that, one remembers, he was struck off the medical register, and fired from Thoughtful House. All of this happened many months before Brian Deer wrote his article.

To put it bluntly, Andrew Wakefield no longer had any professional reputation to be trashed. This will be a major problem for him in any libel action, because one has to prove damage to one’s reputation to be successful in a libel suit.

In fact, this whole lawsuit strikes me as incredibly ill-advised, as it opens Wakefield up to discovery. Of course, it might well be that part of the motivation for the lawsuit is to subject Brian Deer, the BMJ, and Fiona Godlee to discovery, and I wouldn’t be the least bit surprised to see bits of information from discovery show up on the antivaccine crank blog Age of Autism; that is, if the case gets that far. If I were part of the antivaccine bloggerati at AoA, I might be worried now, because, given AoA’s campaign to discredit Brian Deer, particularly over the last year, it’s likely to be in the defense’s crosshairs. Communications between Wakefield and any AoA blogger might be subject to discovery. Any financial transaction between Generation Rescue and Andrew Wakefield could also be subject to discovery. Wakefield might think that because Deer, Godlee, and the BMJ are in the UK that they won’t engage in a full and vigorous defense to the extent of going whole hog (sorry, the lawsuit’s in Texas; I couldn’t resist) on discovery. Is Wakefield sure he wants to risk that? BMJ is part of a large company, and publishing companies tend not to take kindly to libel actions. Of course, even if the Generation Rescue/AoA/Wakefield connection isn’t a worry, everything else is. After all, everything about the Lancet paper would definitely be subject to discovery, and there’s no question about its relevance to the lawsuit.

Whatever Wakefield’s motivation, this move reeks of desperation. In taking this action, Wakefield both demonstrated the characteristics of a crank (the need to silence using the courts rather than to refute using science) and showed just how far he’s fallen. In any case, I highly doubt Brian Deer has anything to worry about, other than the irritation this might cause and whether the company providing his libel insurance will go all wobbly on him. After all, the truth is an absolute defense against libel.

On the other hand, Wakefield might just be one of the luckiest bastards I’ve ever seen.

An assist from Justice Mitting

Last week, there was quite a bit of whooping it up in the antivaccine crankosphere, which appeared to be partying like it’s 2005, when Robert F. Kennedy, Jr. first published his antivaccine screed in Salon.com and Rolling Stone. From the rejoicing that’s been going on, you’d think that Andrew Wakefield had been completely exonerated of fraud and proven right about his fear mongering that blamed the MMR vaccine for autism. This is odd, given that the news story that broke last week was not about Andrew Wakefield directly. Rather, it was about Professor John Walker-Smith, one of the co-authors of Andrew Wakefield’s discredited and retracted 1998 Lancet paper. The antivaccine crank blog is going wild with the news that Professor Walker-Smith has succeeded in his appeal of the General Medical Council’s decision that he should be struck off the medical record along with Andy Wakefield.

On AoA, no less a figure than Jenny McCarthy herself has returned to demonstrate that, as much as she has been keeping her antivaccine activism on the down-low lately, she hasn’t given it up. She did this by posting an article on the antivaccine blog affiliated with her group Generation Rescue entitled MMR Doctor Exonerated—Who’s Guilty Now? In it, McCarthy asks:

Now what? If the foundation of the proof that the MMR does not trigger autism is crumbling, what in the world are parents supposed to believe? If Professor Walker-Smith is not guilty on all charges, will Dr. Wakefield be next?

The answer is no, Jenny. Not that that stops her from asking hopefully:

Unfortunately, the GMC’s decision to turn Dr. Wakefield and Prof. Walker-Smith’s paper into a three-ring circus has put a chill on research into all the possible environmental causes of autism. Will this finally open the floodgates?

In other words, because Professor Walker-Smith succeeded in his appeal, Andrew Wakefield was right. Seriously. That’s the argument being made. The full ruling can be found here. As usual, what the antivaccine movement is promoting and what is in the ruling are not necessarily the same thing. If there’s one thing that’s obvious from the outpouring of verbiage from various antivaccine blogs, Twitter feeds, and press releases, it’s that the antivaccine movement somehow thinks that this decision exonerates Andrew Wakefield, too. Let’s disabuse them of that delusion right now, shall we? According to Mr. Justice Mitting:

At a press conference, which Professor Walker-Smith did not attend, convened to accompany publication, Dr. Wakefield stated publicly the view which he had previously expressed privately to Professor Walker-Smith that he could no longer support the giving of MMR vaccine. The joint view of Professor Walker-Smith and Dr. Murch, stated in a letter to Dr. Wakefield on 21st January 1998, was that it was inappropriate to emphasize the role of MMR vaccine in publicity about the paper and that they supported government policy concerning MMR until more firm evidence was available for them to see for themselves. They published a press release to coincide with publication stating their support for “present public health policy concerning MMR”. Dr. Wakefield’s statement and subsequent publicity had a predictable adverse effect upon the take up of MMR vaccine of great concern to those responsible for public health. There is now no respectable body of opinion which supports his hypothesis, that MMR vaccine and autism/enterocolitis are causally linked.

Correct. There is no respectable body of opinion supporting Wakefield’s hypothesis that the MMR is somehow linked to autism or the entity Wakefield made up called “autistic enterocolitis.” It’s rather annoying that Mitting would refer to it as a “body of opinion.” One can only speculate that it’s his legal background that leads him to use this particular phraseology. No scientist would. Scientists would (and do) point out that not only is there no good scientific evidence supporting Wakefield’s hypothesis, but there is a lot of evidence that falsifies his hypothesis. There’s a reason why Wakefield is viewed with such contempt in the scientific world. Actually, there are multiple reasons, not the least of which is that Wakefield is an incompetent scientist willing to commit research fraud to provide evidence for trial lawyers to use in lawsuits against vaccine manufacturers, a plot that Brian Deer uncovered and described in excruciating detail and with excruciatingly detailed documentation. This ruling says nothing about that; it’s primarily about methodology and Mitting’s legal ruling that the GMC didn’t adequately explain the rationale behind its findings that Walker-Smith committed professional misconduct. Mitting’s decision also relies a lot on his clearly poor understanding of medical research issues. (More on that below.)

It’s a simple fact, though, that Mitting’s decision regarding has nothing to do with whether Wakefield is a fraud or a pseudoscientist or not. Nor does it have anything to do with the question of whether vaccines, specifically the MMR vaccine, cause autism, as much as Wakefield’s many apologists would like to convince people otherwise. In fact, as I’ve pointed out before, Wakefield’s being struck off the British medical registry has nothing to do with the validity of the science. Even if Wakefield had prevailed and been allowed to keep his medical license, his claimed findings that vaccines cause autistic enterocolitis and/or autism would have been just as bogus. Legal rulings are not science. They can be based on science, but often they are not. It’s nice when they don’t go against science and nicer still when they resoundingly agree with science, but such is not always the case. To try to argue that a legal ruling such as the one regarding Professor Walker-Smith exonerates Wakefield is an even worse folly than arguing that his being struck off necessarily proves he is a quack. He’s an antivaccine quack based on science; it matters not what the courts say.

Admittedly, I haven’t paid much attention to Professor Walker-Smith. Back when I wrote about Andy Wakefield being struck off, I said very little, if anything about Walker-Smith. The reason, of course, is that I viewed the Walker-Smith decision as being at best peripheral. I didn’t know enough about him to decide for myself whether the GMC decision was justified or not. Still, it’s useful to look at the court’s decision to see why it concluded that Walker-Smith didn’t deserve to be struck off. Here is the conclusion of the appeal decision:

For the reasons given above, both on general issues and the Lancet paper and in relation to individual children, the panel’s overall conclusion that Professor Walker-Smith was guilty of serious professional misconduct was flawed, in two respects: inadequate and superficial reasoning and, in a number of instances, a wrong conclusion. Miss Glynn submits that the materials which I have been invited to consider would support many of the panel’s critical findings; and that I can safely infer that, without saying so, it preferred the evidence of the GMC’s experts, principally Professor Booth, to that given by Professor Walker-Smith and Dr. Murch and by Dr. Miller and Dr. Thomas. Even if it were permissible to perform such an exercise, which I doubt, it would not permit me to rescue the panel’s findings. As I have explained, the medical records provide an equivocal answer to most of the questions which the panel had to decide. The panel had no alternative but to decide whether Professor Walker-Smith had told the truth to it and to his colleagues, contemporaneously. The GMC’s approach to the fundamental issues in the case led it to believe that that was not necessary – an error from which many of the subsequent weaknesses in the panel’s determination flowed. It had to decide what Professor Walker-Smith thought he was doing: if he believed he was undertaking research in the guise of clinical investigation and treatment, he deserved the finding that he had been guilty of serious professional misconduct and the sanction of erasure; if not, he did not, unless, perhaps, his actions fell outside the spectrum of that which would have been considered reasonable medical practice by an academic clinician. Its failure to address and decide that question is an error which goes to the root of its determination.

As you can see, the decision all boils down to the question of research and whether Walker-Smith thought he was doing research or actually treating autistic children using interventions that were clinically indicated. If the interventions were clinically indicated, then it could be argued that he did not commit professional misconduct. If the interventions were done with the knowledge that they were being done for research purposes rather than to treat the children, then Walker-Smith is guilty of misconduct. The reasons, of course, are the lack of ethical committee approval yet, as is discussed in the decision:

At the heart of the GMC’s case against Professor Walker-Smith were two simple propositions: the investigations undertaken under his authority on eleven of the twelve Lancet children were done as part of a research project – Project 172-96 – which required, but did not have, Ethics Committee approval; and they were clinically inappropriate. Professor Walker-Smith’s case was that the investigations were clinically appropriate attempts at diagnosis of bowel and behavioural disorders in children with broadly similar symptoms and, where possible, treatment of the bowel disorders or alleviation of their symptoms. The GMC’s case was that he was conducting research which required Ethics Committee approval. His case was that he was conducting medical practice which did not. Accordingly, an unavoidable and fundamental question which the panel had to answer was: what is the distinction between medical practice and research?

In light of this introduction, what follows is profoundly contradictory in that the judge acknowledges that what Walker-Smith did could be reasonably viewed as research, but exonerates him because it could also be viewed as therapeutic:

The panel made no express finding on this issue and cannot have appreciated the need to do so. It was not helped by the premise upon which the GMC’s case was founded. There was a good deal of evidence, to which I refer in greater detail below, that Professor Walker-Smith and his team were undertaking what any reasonable body of medical practitioners would categorize as research – but also that he intended and genuinely believed that what he was doing was solely or primarily for the clinical benefit of the children. When such an issue arises, a panel will almost always have to determine the honesty or otherwise of the practitioner.

Justice Mitting then lists facts supporting and negating the proposition that what Walker-Smith was doing was research. I must admit, I find some of the “facts negating’ to be questionable. Particularly bizarre was Mitting’s listing of a fact that no parent other than one was required to sign the consent form in the proposals submitted to the Ethics Committee or in the revised form approved by it. Well, duh! That was part of the problem, now, wasn’t it? You know? Doing research without having obtained adequate informed consent from the parents?

Also rather odd was Mitting’s other reasoning that “none of the five clinicians involved in the investigation of the Lancet children who gave evidence to the panel considered that they were following Project 172-96.” So what? The children’s information and clinical histories ended up being used in Wakefield’s Lancet paper. I suppose one could argue that Walker-Smith was an unwitting dupe of Andy Wakefield an therefore was not guilty of research professional misconduct, but, if that’s the case, it’s hardly flattering to Walker-Smith. it’s also hard to imagine what clinical indications existed to subject these children to lumbar punctures. As a clinician, I always had a hard time figuring out how Wakefield, Walker-Smith, and the rest justified doing lumbar punctures on these children.

The implications of Mitting’s ruling are frightening in their potential. Think about it. Basically, if his ruling stands, it’s hard not to wonder whether it’s open season on human research subjects in the UK. As long as the physician can construct a quasi-legitimate-sounding rationale that he can point to aside from a research protocol for doing research-related tests on human subjects, he apparently doesn’t need to get ethical approval anymore. He can cite Mitting’s ruling that, as long as he doesn’t think he’s doing research–even if that is incorrect–then he’s not, and the GMC can’t do anything about it. So much for the Helsinki declaration! Similarly, his “any reasonable physician” test fails spectacularly as well, at least in the way he applied it. “Any reasonable physician” would not subject autistic children to a battery of invasive tests including lumbar punctures for dubious clinical reasons. Those tests were quite correctly judged by the GMC to have been ordered for research purposes rather than for routine clinical care. Autism quacks in the UK have good reason to rejoice. As it stands, one has to wonder whether they can now get away with essentially anything.

And one has to wonder whether Brian Deer is one of the luckiest guys alive.

Brian Deer responds

At this point, it’s hard not to wonder whether the timing of Wakefield’s lawsuit against the BMJ and Brian Deer was related to more than just the end of the statute of limitations for libel suits in Texas. Certainly, the ruling in the Walker–Smith case serves Wakefield’s interests, both in terms of rallying his base but more importantly in terms of seeming to provide him with ammunition for his lawsuit. As much as Wakefield might wish to believe that and as much as antivaccinationists might want to believe that Justice Mitting’s ruling somehow exonerates Andrew Wakefield, they are sadly mistaken. The two cases, although they were about the research leading up to the publication of Wakefield’s 1998 study, the reasons for the decisions in the case of Andrew Wakefield and in the case of Professor Walker-Smith were quite different. As I said above, I don’t agree with the decision for the simple reason that I think that it reveals a profound misunderstanding of medicine and research. Even so, there’s no way that the same sort of reasoning can be applied to Andrew Wakefield. For just a taste of the reasons why, it’s instructive to look at Brian Deer’s response to Wakefield’s attempt at legal thuggery. Not only is it instructive, but it’s amusing to read because it reveals things that I didn’t know about the case. In a way, I had hoped that Deer would let Wakefield embarrass himself more before hitting him with the an anti-SLAPP motion, but on the other hand it would be unreasonable to expect the defendants to do that just so that I could be enlightened by the revelations that might come out of the discovery process. Legally, given that Texas has recently passed an anti-SLAPP law.

For those not familiar with the term, SLAPP stands for Strategic Lawsuit Against Public Participation. Basically, SLAPPs are lawsuits designed to silence critics in important public matters. They succeed in this by intimidation and burdening critics with the cost of legal defenses. In general, wealthy interests, because they have more resources, can afford the expense of pursuing libel suits of this sort, while the defendants usually cannot. As a result, often defendants are silenced. Anti-SLAPP statutes are designed to allow victims of SLAPPs to quash lawsuits and recover damages. Not surprisingly, Wakefield’s libel suit reeks of SLAPP.

So, naturally, Deer’s lawyers are hitting that aspect hard in their response, and Deer himself has provided a 104 page supporting document. Its key pillars include arguing the factual background and pointing out that the truth is an absolute defense against libel, arguing that the Texas anti-SLAPP statute applies, arguing that Wakefield cannot show malice, and pointing out that Wakefield meets the definition of a public figure, making the bar for libel much higher. It’s worth reading the entire response for its richness of detail, but I’ll “cherry pick” a few of the choice bits for my post. For example, one of the amusing bits occurs when Deer’s lawyers point out that off-the-cuff remarks made by Deer are not actionable:

For similar reasons, Texas courts have long held that a statement of rhetorical hyperbole or one using colorful language is nonactionable. Such a statement “does not, in its common usage, convey a verifiable fact, but is, by its nature, somewhat indefinite and ambiguous. . . .”

Falk & Mayfield, L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). For example, Texas courts have identified a long list of statements that are simply too indefinite to sustain a viable libel claim. See, e.g., id. (accusing a law firm of “lawsuit abuse” nonactionable); Zimmer, 257 S.W.3d at 512 (accusing coach of using “obscene gesture” nonactionable); Kerr, 706 S.W.2d at 799 (holding that an accusation of “cheating” in an editorial was nonactionable); Associated Press v. Cook, 17 S.W.3d 447, 454 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (labeling the plaintiff a “blight on law enforcement” who has caused “unbelievable problems” was nonactionable); Yiamouyiannis v. Thompson, 764 S.W.2d 338, 339-40 (Tex. App.—San Antonio 1988, writ denied) (holding that statements calling the plaintiff a “quack, a hoke artist, and a fearmonger,” are “vintage hyperbole, and are not capable of proof one way or the other”). In fact, courts in other cases have considered the very same expressions challenged by Dr. Wakefield here and found them to be nonactionable.

Imagine my relief that, in Texas at least, calling Wakefield a “fraudster” is protected speech.

My relief that many of my more—shall we say?—colorful utterances and writings about Andrew Wakefield are almost certainly protected speech notwithstanding, there’s no doubt that Andrew Wakefield has to clear a very high bar to have any chance of prevailing. He has to demonstrate the following:

Dr. Wakefield may have figured that, in Texas, there would be little “downside” to filing frivolous libel claims and using the suit to raise money and harass his critics. Not so anymore. To avoid dismissal under our State’s new anti-SLAPP statute, Dr. Wakefield must submit evidence to support each essential element of his libel claims. He cannot do this for several reasons. First, the statements he challenges are true. The GMC findings against him—numerous proven charges of “dishonest” and “unethical” conduct—are binding in this case, and they leave no room for Wakefield to argue that he was defamed by Defendants’ reporting and editorial comment. And Defendants have overwhelming additional evidence to establish the truth of the challenged statements.

Moreover, even if Dr. Wakefield could produce evidence of falsity and overcome Defendants’ other defenses, his claims would still fail. He is indisputably a public figure, and therefore must prove that Defendants acted with actual malice—that they knew what they were publishing was false. Again, this will be an impossible burden for Dr. Wakefield. The reporting he challenges was the product of years of investigation by one of the United Kingdom’s best reporters, exhaustively sourced, then subjected to multiple editorial reviews, including an external review by an expert pediatrician. And Dr. Wakefield’s credibility on these matters had been so thoroughly eviscerated by his repeated obfuscation, posturing, and outright lying that Defendants had no doubts about the accuracy of their reporting, despite Wakefield’s protestations of innocence.

Also, as is noted numerous times, Wakefield’s history of frivolous lawsuits does not help his case. As Popehat notes, this motion, on an initial reading, looks very strong.

Particularly strong is the excruciatingly detailed reconstruction of the evidence against Wakefield, both from the GMC hearings and Deer’s own investigations. If you want to know why it’s purely wishful thinking on Olmsted’s and McCarthy’s part to think that the reversal of Walker-Smith’s loss of his medical license has any significant bearing on either Wakefield’s GMC case or, in particular, this frivolous lawsuit, you’d do well to read the sections in the anti-SLAPP response and Brian Deer’s response to Wakefield’s lawsuit describing Wakefield’s activities and the evidence against him. For example, in Walker-Smith’s case, the primary offense that the GMC found him guilty of doing tests (such as lumbar punctures, MRIs, and colonoscopies) for research purposes rather than clinical purposes. That’s it. Wakefield did so much more:

The GMC panel handed down its findings on January 28, 2010, concluding that Dr. Wakefield had been dishonest, violated basic research ethics rules, and showed a “callous disregard” for the suffering of children involved in his research.32 Included among them were four different proven findings of dishonesty against Dr. Wakefield, all proven to a standard of criminal fault—akin to “beyond a reasonable doubt” in the United States.33 Among other things, the panel found that Dr. Wakefield improperly subjected some children to invasive medical procedures such as colonoscopies and MRI scans. Dr. Wakefield also paid children at his son’s birthday party to have blood drawn for research purposes. The GMC panel found that Dr. Wakefield’s Lancet research was “dishonest,” “irresponsible,” “misleading,” and inaccurate. The panel found that Dr. Wakefield improperly failed to disclose his connections to planned litigation, his patents for a competing vaccine, and the bias inherent in his selection of study subjects. The GMC panel further found that Dr. Wakefield’s conduct “was such as to bring the medical profession into disrepute.”

Basically, at the very best if you accept the reasoning behind Mitting’s ruling, you must conclude that Walker-Smith was Wakefield’s dupe. At worst, if you don’t accept the reasoning behind Mitting’s ruling, Walker-Smith was complicit. Either way, Justice Mitting’s ruling will not help Wakefield in his libel action. After all, Wakefield’s lawsuit was all about the article that Deer published in the BMJ and the accompanying editorial written by Fiona Godlee. Neither rehashed of the GMC hearings, even though it’s clear that Wakefield is trying to relitigate the GMC hearings using the vehicle of a libel suit. More importantly, even if Deer’s and Godlee’s articles were nothing more than rehashes of the GMC hearings, to prevail Wakefield must prove that Deer and/or Godlee believed or suspected what they wrote was false. They clearly did not. The only thing Justice Mitting’s decision held was that the GMC gave more weight to the expert witnesses against Walkers-Smith than the expert witnesses for him (and hence its decision should be reversed) and that the GMC didn’t consider whether or not Walkers-Smith believed the medical procedures were clinically indicated (and hence the GMC decision should be reversed). I’m not sure about the former, and I find Mitting’s understanding of medical research and its ethics to be dubious at best, but even if his reasoning were spot on, neither of his conclusions sheds any light on whether Deer or Godlee thought what they were publishing was accurate or not, while Deer’s and Godlee’s anti-SLAPP response delineates the incredible lengths to which the BMJ went to assure that Deer’s article was accurate:

Not only did the BMJ fully trust Deer and his reporting, it and Dr. Godlee took extra steps to ensure the reporting was truthful. For Deer, who was ever mindful of Dr. Wakefield’s prior litigation and regulatory-complaint history, this meant five months of work to ensure that every word and every citation was verified.166 For the BMJ, this meant a separate fact-check of the first article by a deputy editor (Smith) and an external review for scientific accuracy by an expert pediatrician (Dr. Marcovitch).167 Pre-publication review by outside sources constitutes affirmative evidence of no actual malice. See, e.g., Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. 1984).

In other words, the reversal of the ruling in Walker-Smith’s case has no bearing on Wakefield’s libel suit. Remember, Walker-Smith’s argument basically boiled down to throwing Wakefield under the bus by admitting he did everything in the GMC complaint but arguing that at the time he hadn’t been aware that Wakefield was conducting a research project, much less one without proper approval by an ethics board. It’s the “dupe” defense.

As Sullivan points out, one has to wonder whether Andrew Wakefield’s lawyer was aware just how shaky the basis of his lawsuit was, given that he appears to have taken on the case as a favor. Why do I say that? Well, there is a rather odd link between Wakefield and his lawyer. This link is through the Autism Trust USA. Look at this webpage describing the National Board. Note that Carmel Wakefield, Andrew Wakefield’s wife, is on the board and the executive committee. Note that Imogon Wakefield (apparently Andrew Wakefield’s daughter) is on the Junior Advisory Board. Now look at who else is also on the Junior Advisory Board.

Anna Christine Parrish.

And remember who Andrew Wakefield’s lawyer bringing the libel suit is.

William M. Parrish.

Coincidence? Possibly, but I tend to doubt it.

So what now? In a way, I’m rather surprised that Wakefield put himself in such a situation. Surely he had to be aware that Texas had recently passed an anti-SLAPP statuted designed specifically to punish the filing of lawsuits of the type that Wakefield is known for. Even worse, Wakefield might have unwittingly set himself up to be the first major test case for the new law.

Whatever Wakefield’s motivations, to rally his supporters, hubris and vanity demanding that he try to salvage a shred of reputation, or just a desire to punish those who did the public such a great service in revealing the depths of Wakefield’s perfidy, Wakefield is following an unfortunately well-worn path in suing the legal system to try to silence critics. It is what cranks do. What makes this interesting is that this time Wakefield might pay a price.

What’s also revealing is how antivaccine cranks view not just Wakefield’s libel suit but how they view legal processes in general. In a way, they view such issues in a manner similar to how people in general do, but with our normal tendencies to view results that we like as correct and results that we don’t like as incorrect cranked up to 11. For example, to them Walker-Smith’s success on appeal is not just a ruling that disagreed with the General Medical Council’s explanation of its reasoning for striking off Walker-Smith based on questionable understandings of clinical trial ethics and how medicine is practiced, it’s a vindication of their world view as embodied in Andrew Wakefield. Similarly, Wakefield’s lawsuit is also vindication. It’s not difficult to predict that, when Wakefield’s libel suit is dismissed (and, make no mistake, a frivolous lawsuit like this will be dismissed) and he is hit with Deer’s and the BMJ’s legal expenses, antivaccinationist will view it as more persecution of their hero.

It’s important in considering such issues to remember that the law and science are, unfortunately, related (when they’re related) only by coincidence. More often, the law has little to do with science.

Posted in: Politics and Regulation, Science and the Media, Vaccines

Leave a Comment (18) ↓

18 thoughts on “An antivaccine tale of two legal actions

  1. Khym Chanur says:

    In fact, this whole lawsuit strikes me as incredibly ill-advised, as it opens Wakefield up to discovery.

    Only if the lawsuit survives both the anti-SLAPP motion and the jurisdictional issue. He might be counting on the lawsuit being quashed before it gets to discovery.

  2. ConspicuousCarl says:

    Could it be that even Wakefield is not shameless enough to claim damage to his reputation as a physician in the same country where he is legally forbidden to practice that profession? Nah, there must be some other motivation.

  3. windriven says:

    If Wakefield wasn’t such a (insert your favored term of opprobrium here), I’d be inclined to view this lawsuit more with pity than disdain. That he imagines this will somehow accrue to his benefit is the truly mind boggling part. One begins to wonder if there might be a pathological cause behind his serial failures of judgment.

    In the event, this should be cause for celebration. Wakefield’s fraud may be exposed to a yet larger audience. The cranks who see everything through a lens of superstition and fear are already on his side; this will not attract new converts. But there is an excellent opportunity to enlighten many others who haven’t examined the false controversy of vaccine safety.

    I personally hope this goes to trial and widely and carefully reported.

  4. lilady says:

    Gee I’ve read all sorts of gloating articles at AoA since the John Walker-Smith court decision to reinstate his license and this morning since the BMJ, Godlee and Deer made their motion to dismiss…dead silence…except a small note from their U.K. editor.

    I read the entire motion and the Deer’s 104 page document in support of the motion and they are VERY informative. While I kept questioning the medical justification for the multiple, painful and invasive blood tests, colonoscopies and lumbar punctures, the parents of the children in Wakefield’s study expressed their undying support of the brave maverick doctor. After reading these court documents, I come to the conclusion that the children were referred consecutively, many of them referred through their parents’ involvement in a U.K. group that is virulently anti-vax and whose members claim “vaccine injuries”.

    Furthermore, it seems that some of these same parents were aware that their kids’ did not have a diagnosis of autism, their children did not immediately show signs of regression after the MMR jab…some had shown developmental delays before immunizations. Once they consulted Wakefield, data was entered in their charts, to indicate an association with the MMR causing their child’s delays.

    I guess if I were those parents, I would be supporting Wakefield as well, so that I could maintain the facade of having my child injured by the MMR jab and, so that no one would know that I knowingly permitted this ethically bankrupt doctor to experiment on my child, to make the case against vaccine manufacturers.

  5. annappaa says:

    What bothers me about antivaccine conspiracy theories is the same thing that bothers me about all conspiracy theories — you can’t argue with conspiracy theorists because any evidence you give them that goes counter to their claims is incorporated into their theories as evidence of a greater conspiracy. Simply put, conspiracy theories are not falsifiable. In conspiracy-theory discourse, it seems like anything goes. So it really doesn’t surprise me that antivaxxers can spin this most recent development into a “win” for their side.

  6. Quill says:

    With regards to personal connections, a Google search leads one to a Legacy.com Texas obituary in which it states an Anna Christine Parrish is the grandaughter of a William M. Parrish’s father, which would make her at least his niece.

    It’s important in considering such issues to remember that the law and science are, unfortunately, related (when they’re related) only by coincidence. More often, the law has little to do with science.

    An amusing notion that is also oddly true. It also points to the idea that competence in science doesn’t lead to any understanding of the law on paper or as it functions, except by coincidence. One can examine the documents in the case and draw conclusions based on what they say yet it matters equally as much when it comes to where the suit is filed and to whom these documents have been presented.

    In this particular case, it’s in the 250th Judicial District presided over by Judge John K. Dietz. Even by Texas standards, he’s a colorful fellow. One can logically wonder about Parrish’s qualifications in this area of legal specialization, but logic hasn’t an exclusive hold on the law here. This particular court is going to have a great bearing on any outcomes in this case, possibly ignoring any inopportune arguments or inconvenient factual matters. Parrish & his firm likely filed this case in this jurisdiction for very chummy, extralegal reasons they see as favorable to their case. Fortunately for all concerned, there is an appellate.

  7. Earthman says:

    “To try to argue that a legal ruling such as the one regarding Professor Walker-Smith exonerates Wakefield is an even worse folly than arguing that his being struck off necessarily proves he is a quack. He’s an antivaccine quack based on science; it matters not what the courts say”

    I think this phrase may be better worded. At first reading it struck me that you were saying that Walker-Smith is an anti vaccine quack, but perhaps you mean Wakefield. The judgement specifically mentions that Walker-Smith wrote to Wakefield and told him that he should not say that the MMR vaccine is linked to autism until more evidence had been obtained (their study being at best a pilot study). Wakefield went ahead anyway with his sensational press conference which the hapless media lapped up. I see no evidence in the judicial ruling that Walker-Smith is an ‘anti vaccine quack’. He was a theorist, not a practitioner, and as such was not ‘hands on’.

  8. Scott says:

    Yes, it’s Wakefield who’s the quack. I am quite astounded to read

    He was a theorist, not a practitioner, and as such was not ‘hands on’.

    This is exactly backwards. The entire point of the ruling is that Walker-Smith was doing treatment, not research. (The possibility that both may be done at the same time apparently having completely escaped Mitting.)

  9. Earthman says:

    @Scott

    Do not think I am defending anyone. But let us look at the findings of the Judge – yes it is a legal ruling and not a scientific one, but there are undisputed facts in the judgement. Walker-Smith was a qualified surgeon, but did not have a license to practise – rather he was a lecturer – a teacher not a practitioner.

    He advised Wakefield not to make the claim that MMR was linked to autism or other disorders – that is in the section of the judgement that is ‘undisputed’.

    The judge found that the BMA in its investigation did not properly identify that the colonoscopies, and other poking about, were medically justified, or just done for research. This was the critical point, if I am reading this correctly (and I may well be wrong). The judge considers that the BMA did not make sufficient allowance for the possibility that they may have had a clinical need to do the procedures, with the research just piggybacking on that clinical need by taking an extra couple of swabs. This is not to say that there was a clinical need for the investigations or not – just that the BMA had not properly allowed for that possibility and had assumed the investigations were only for research.

    Bit of a mess really, and rather nit picking. It does not say Wakefield was right, just that the BMA had some flawed logic.

  10. Scott says:

    Do not think I am defending anyone.

    I didn’t say you were. I said that your statement about Walker-Smith not being a practitioner was incorrect.

    Walker-Smith was a qualified surgeon, but did not have a license to practise – rather he was a lecturer – a teacher not a practitioner.

    Walker-Smith was the “Consultant” directly responsible for the care of the children in question. The statements quoted above describe Wakefield, not Walker-Smith.

    The judge found that the BMA in its investigation did not properly identify that the colonoscopies, and other poking about, were medically justified, or just done for research. This was the critical point, if I am reading this correctly (and I may well be wrong). The judge considers that the BMA did not make sufficient allowance for the possibility that they may have had a clinical need to do the procedures, with the research just piggybacking on that clinical need by taking an extra couple of swabs. This is not to say that there was a clinical need for the investigations or not – just that the BMA had not properly allowed for that possibility and had assumed the investigations were only for research.

    Getting down a bit deeper, there were really two angles. First, he found that the panel had not adequately explained its reasoning for determining that the procedures in question were not clinically necessary. In particular, why they apparently chose to credit the expert testimony that they were not, over the expert testimony that they were – or at a minimum were within the bounds of a reasonable judgment call. That, I don’t really take issue with. The panel’s decision indeed didn’t go into any detail on those points.

    The second, where the judge really dropped the ball, was his conclusion that if the procedures in question WERE clinically appropriate and Walker-Smith considered that he was primarily treating patients as opposed to doing research, then he wasn’t doing research, didn’t need ethical approval, and didn’t need to adhere to any of the specifications for the research project. Procedures being clinically appropriate does not in fact preclude them also being research, and if they WERE also research (which was indisputably the case) they needed approval.

    The latter should have been sufficient to strike him off in its own right, as I understand it.

  11. Earthman says:

    Whoops, I got it wrong. Yes the statement about being a lecturer not a practitioner did indeed refer to Wakefield. I misread. Sorry.

    The bit about Walker-Smith is in the next paragraph of the judgement.

    “From 1973 until September 1995, Professor Walker-Smith practised as a Consultant Paediatric Gastroenterologist in the academic departments of child health at St. Bartholomew’s Hospital and Queen Elizabeth’s Hospital for children. From April 1985 until September 1995, he was Professor of Paediatric Gastroenterology at St. Bartholomew’s. In September 1995 he and his team, including his senior lecturer Dr. Murch transferred to the Royal Free Hospital. Before he did so, he sought and received permission from the Ethics Committee of the Royal Free Hospital to continue his and his team’s practice of taking two extra mucosal biopsies for research purposes in addition to the four to six biopsies taken for diagnostic purposes during colonoscopy.”

    OK he was a consultant of sorts, but towards the academic side of things.

    The judgement also says:-

    “On 13th November 1996, the Ethics Committee discussed Project 172-96. The minutes record that it was not approved: “improvements required on patient information sheet and clarification as to whether this is a study or normal patient investigation”. Confusingly, the secretary to the Ethics Committee wrote to Dr. Wakefield on 14th November 1996 to tell him that Project 172-96 was approved at the meeting. That did not happen until the next meeting, held on 18th December 1996, at which it was approved, “subject to modification of patient consent form and removal of Schilling test”. On 7th January 1997 Dr. Pegg wrote to Professor Walker-Smith notifying him of that approval, subject to three conditions: only patients enrolled after the date of the December meeting would be considered to be in the trial; the Schilling test was to be removed from the protocol; and the consent form was to be modified so that possible complications of lumbar puncture were explained. He also required the patient consent form and information sheet to be lodged with the clinical notes. Professor Walker-Smith acknowledged Dr. Pegg’s letter on 9th January 1997. On the same date, he sent his clinical team and Dr. Wakefield a copy of the Ethics Committee’s recommendations “for our study” and said “we need to implement this now”.”

    Sounds like they had ethical clearance.

  12. Scott says:

    Said clearance was after most of the children in question underwent the procedures in question, and the requirements of 172-96 weren’t followed even for the subsequent children. Those points are fairly well-covered in the GMC decision, unlike the questions of clinical indication.

  13. Earthman says:

    @Scott

    You have clearly read more of the judgement than I.

  14. papertrail says:

    Just to let people here know: Current TV is going to air the anti-vax propaganda film “Greater Good” Saturday March 24. Their site has a community section, which is full of anti-vax comments right now; I see just one voice for reason, at this point.

    http://current.com/specials/greater-good/93704128_the-greater-good-who-should-be-making-medical-decisions-for-children.htm

  15. Chris says:

    Hence the “psychopath” tag.

  16. lilady says:

    @ gretemike: Wakefield is one of the “luminaries” who will be presenting at the *Autism One Conference* later this month in Chicago. Dr. Gorski has referred to the yearly conferences as Quackfests. The Saturday night dinner is also a fundraiser for the Wakefield Justice Fund…to pay his legal fees and costs associated with the two Texas lawsuits….

    You can purchase the DVD of Wakefield’s presentation, as well:

    http://www.autismone.org/content/matter-munchausen-syndrome-proxy-vis-vis-autism-spectrum-disorder-video

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