More legal thuggery against a defender of science-based medicine

ORAC SAYS: Please note my disclaimer.

After the events of last week, I’m a bit sensitive when it comes to matters like the one I’m about to discuss. Having the anti-vaccine cranks over at the Age of Autism weblog trying to get me fired over my blogging has a tendency to do that to me. (The details are out there if you haven’t heard of it; I will say nothing more of it here.) In any case, if there’s anything the events of last week drove home to me, it’s that a sina qua non of anti-science cranks like the leaders of the anti-vaccine movement is that, when faced with serious scientific criticism, their preferred reaction is not to respond to that criticism with refutations based on science. They can’t. Instead, their all too frequent response is to try to shut down criticism. We’ve seen it again and again, and I’ve discussed it many times on this blog.

Unfortunately, it’s happening again. The favored laboratory of anti-vaccine practitioners and the “autism biomed” movement, a commercial laboratory known as Doctor’s Data is suing Steve Barrett, the man who maintains the excellent resource Quackwatch, for criticism Dr. Barrett leveled against it, criticism that Doctor’s Data richly deserved (in my opinion, of course). Not just that, it’s suing Dr. Barrett for the ridiculously overblown sum of $10 million. In case you don’t remember Doctor’s Data, I’ll just remind you that it’s a commercial laboratory that describes itself thusly on its website:

Doctor’s Data, Inc. (DDI) a premier clinical laboratory with over 30 years’ experience, provides specialty testing to healthcare practitioners around the world. A specialist and pioneer in essential and toxic elemental testing of multiple human tissues, the laboratory offers a wide array of functional testing. DDI’s tests are utilized in the assessment, detection, prevention, and treatment of heavy metal burden, nutritional deficiencies, gastrointestinal function, hepatic detoxification, metabolic abnormalities, and diseases of environmental origin.


To me, a more accurate description of DDI would be that it has become the favorite go-to laboratory for the autism biomed movement and all manner of autism quacks, particularly the anti-vaccine variety. The reason is DDI’s dubious promotion of “heavy metal” and metabolic testing. I haven’t mentioned it that many times on this blog, but it’s important to know that, for “practitioners” who promote the scientifically discredited idea that mercury in the thimerosal preservative that used to be in vaccines was the cause of the “autism epidemic” that is not, DDI not infrequently is the laboratory that provides the questionable lab data supporting the diagnoses of “mercury toxicity,” “elevated heavy metal levels” (what, do these children listen to too much Metallica or something?), or various other forms of “toxicity” requiring “detoxification.” Mercury and other heavy metals are not the only tests that DDI markets, either. When dubious autism “practitioners” expanded from viewing autism as “mercury toxicity” to a combination of heavy metal toxicity and various other “toxic” insults requiring “detoxification,” DDI was (and, to my knowledge, still is) the favored laboratory that they used to measure levels of heavy metals, mercury, and various endogenous antioxidants, such as glutathione, associated with the mercury detoxification enzyme pathways within cells.

As Dr. Barrett points out, if there’s one single test that DDI is most associated with, it’s a test known as the “provoked urine test” for heavy metals, and it’s a favorite test of the mercury militia looking for elevated mercury levels that they can “treat” with their nostrums. In essence, the test involves giving a child a chelating agent, usually DMPS or DMSA, and then collecting a urine sample. The chelating agent does what it’s designed to do and binds to mercury and various other heavy metals, which are then excreted in the urine. This elevates the levels of these metals in the urine, sometimes far beyond normal. The urine is then collected for several hours after the chelator has been administered. That is the “provoked” nature of the urine test. This method is in contrast to the standard manner of measuring these metals in the urine, which involves collecting a 24 hour urine sample, no provocation. Here’s the problem. A provoked urine test, by its very nature, is designed to increase the secretion of heavy metals and thus increase their concentration in the urine. The problem is that there are no standard values for provoked urine tests, although there are reference values for standard, unprovoked, 24 hour urine specimens. Guess what values practitioners and DDI use? It’s even worse than that, though, as Dr. Barrett describes:

Neither Mayo Clinic, nor any other legitimate national laboratory, has reference ranges for “provoked” specimens. Further, the references ranges for normal urine heavy metal levels used by Mayo Clinic and the largest national reference lab, Quest Diagnostics, are the same.

In contrast, Doctor’s Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead. Standard laboratories that process non-provoked samples use much higher reference ranges [3,4], which means that if all other things were equal, Doctor’s Data is far more likely than standard labs to report “elevated” levels. But that’s not all. A disclaimer at the bottom of the above lab report states–in boldfaced type!–that “reference ranges are representative of a healthy population under non-challenge or nonprovoked conditions.” In other words, they should not be applied to specimens that were obtained after provocation. Also note that the specimen was obtained over a 6-hour period, not the standard 24-hour period, which raised the reported level even higher.

The management at Doctor’s Data knows that provoked testing artificially raises the urine levels and that the length of collection time greatly influences the results. In 2002, David W. Quig, Ph.D. and two others presented a study of mercury levels in urine collected two hours after DMPS administration to 259 patients at a Nevada clinic. More than 75% of the patients tested at 21 µg or higher, and most of the rest fell between 3µg and 20 µg [5]. At these levels, nearly everyone’s mercury level would be classified as “elevated” or “very elevated” on the test reports. In a 2006 naturopathic textbook chapter, Quig, who is Doctor’s Data’s vice president for scientific support, acknowledged that mercury levels “are higher in specimens collected from 90 minutes to 2 hours after DMPS infusion than with longer collection times, because the peak rate of mercury excretion occurs about 90 minutes after infusion of DMPS.” [6]

I can’t think of a more appropriate way to put it, given the history of the British Chiropractic Association trying to shut down Simon Singh’s criticism of its promotion of treatments not based in science: I conclude that provoked urine testing is a bogus test. According to Dr. Barrett, only does DDI use reference ranges for unprovoked urine tests, values that are utterly meaningless for provoked urine testing, but it uses reference ranges that are lower than what is commonly accepted by reputable laboratories and academic medical centers. This combination of factors virtually guarantees that it will produce many “positive” results for “elevated” mercury and other heavy metals in the urine, which practitioners can then apply dubious therapies, such as chelation therapy, to treat. Obviously DDI disputes this, but it doesn’t provide any quality scientific data to do so, in my opinion. Consequently, in my view, what DDI does in essence is to do a technically sound measurement of mercury and heavy metals in the urine but on urine specimens collected using a completely inappropriate methodology that is not scientifically or medically valid.

As a result, DDI has had its share of trouble, including investigations by legal authorities and lawsuits by patients whose practitioners used DDI test, and deservedly so. Dr. Barrett has listed a number of these actions. Last year, in Texas, DDI was sued for fraud, along with other dubious labs and a number of physicians. Basically, DDI, Jesus Caquias, M.D., and Jeff Baker (an unlicensed naturopath) stand accused of billing a patient’s insurance company for $180,000 worth of bogus tests like provoked urine testing and dubious treatments.

Now Doctor’s Data is suing Stephen Barrett. This lawsuit started, as such suits often do, with a nastygram from DDI’s lawyer. The first letter to Dr. Barrett from DDI’s lawyer Algis Augustine is a typical letter used for the purpose of silencing criticism. It’s pure intimidation, nothing more:

We demand that you cease and desist any and all comments regarding Doctor’s Data, which have been and are false, fraudulent, defamatory or otherwise not truthful, and make a complete and full retraction of all statements you have made in the past, including those which have led in some instances to litigation. Such comments include, but are not limited to, those made in your article entitled, “How the ‘Urine Toxic Metals’ Test Is Used to Defraud Patients,” which you authored and posted on Quackwatch.com. “The best evidence for reckless disregard,” you have written, “is failure to modify where notified.” Consider this notice to you that if you do not make these full and complete retractions within 10 days of the date of this letter, in each and every place in which you have made false and fraudulent, untruthful or otherwise defamatory statements, Doctor’s Data will proceed with litigation against you and any organizations, entities and individuals acting in common cause or concert with you, to the full extent of the law, and will seek injunctive relief and monetary damages, both compensatory and punitive.

This is typical. Note that Augustine doesn’t actually list which specific parts of Dr. Barrett’s article are incorrect, false, fraudulent or otherwise not truthful in the view of his client. Doctor’s Data doesn’t appear to be interested in accuracy, at least not if the letter from its lawyer is any indication. It appears far more interested in shutting up the opposition, of purging the Internet of material that can be used against it in the lawsuit it is facing in Texas. The rest of the text of the letter comes close to actually admitting this.

I actually receive the occasional cease and desist e-mail myself for my blogging. Of course, I don’t really take e-mails very seriously, and when I do receive such letters, because I’m interested in being factually accurate, my standard response pretty much mirrors Dr. Barrett’s response to Augustine’s demand and threat:

I take great pride in being accurate and carefully consider complaints about what I write. However, your letter does not identify a single statement by me that you believe is inaccurate or “fraudulent.” The only thing you mention is my article about how the urine toxic metals test is used to defraud patients: (http://www.quackwatch.org/t). The article’s title reflects my opinion, the basis of which the article explains in detail.

If you want me to consider modifying the article, please identify every sentence to which you object and explain why you believe it is not correct.

If you want me to consider statements other than those in the article, please send me a complete list of such statements and the people to whom you believe they were made.

This is exactly the right response to demands for retraction. It puts the ball back into the thug’s court (and make no mistake, such threats are nothing more than legal thuggery in my opinion), and it also demonstrates a commitment to correcting errors, which would belie any future claims of demonstrating a reckless disregard for the truth. In Dr. Barrett’s case, I also notice with interest the part about “failure to modify when notified.” Note that Augustine is not trying to get Dr. Barrett to “modify” anything; he’s telling him to remove all the material his client doesn’t like (i.e., the entire article). Of course, the thing to remember if you ever see such a letter is that nothing short of removing all the material that the thug sending the letter finds offensive will satisfy thugs like Doctor’s Data; that is, unless the letter writer is bluffing, which is sometimes the case, but, more importantly, definitely something you want be very careful about gambling with unless you’re fully prepared to go to court. In any case, such letters are virtually always intended not to spur the correction of errors in written articles or blog posts. Rather, they are there to try to frighten the person receiving them to take down the whole article in order to avoid a lawsuit. If Augustine actually identified exactly which parts of Dr. Barrett’s articles are in his client’s opinion false, it would allow Dr. Barrett to leave the article up while only altering some parts of it. This would not do at all, as Augustine’s response clearly reveals:

You have been making false statements about Doctor’s Data and have damaged this company’s business and reputation, and you have done so for personal gain and your own self-interest, disguised as performing a public service. Your writings and conduct are clearly designed to damage Doctor’s Data. If you don’t retract your false claims and issue a public apology, the lawsuit will be filed.

Legal thuggery. Pure legal thuggery. Fortunately, Dr. Barrett refuses to back down:

My letter asked you to identify the claims that you believe are false. You have not identified a single sentence that you believe is inaccurate. Since you have failed to do so, I have no choice but to assume that you cannot. My offer remains open, as it is to anyone who is criticized on any of my sites. If you identify anything that you consider inaccurate, I will seriously consider what you say and act accordingly.

Of course, DDI through its paid mouthpiece Algis Augustine didn’t identify a single sentence that was false. I think that’s because it couldn’t, because Dr. Barrett’s article on provoked urine testing is comprehensive and well-referenced. Those engaging in legal thuggery almost never do, because intimidation to silence is their goal. Shutting down criticism is their goal. It is apparent to me that, as in the Simon Singh case, DDI’s goal is not good science. It’s to silence scientific criticism not through refutation using science, but through the use of the courts. As I’ve said before, when you don’t have the data to support your claims, when science and medicine are not on your side, all that leaves is shutting up the opposition by any means necessary, and these articles on Quackwatch about the bogus test that is provoked urine testing for heavy metals are exactly what DDI can’t refute with science:

While you’re at it, you might want to look at a post I did a while back that explain how Doctor’s Data lab results have been abused by alt-med practitioners to subject a child to repeated testing as part of a comprehensive program of highly dubious therapies, up to and including the injection of stem cells into the cerebrospinal fluid of an autistic girl and remember that DDI is also being sued by the father of a child with autism who was subjected to chelation therapy and whose “autism biomed” practitioners used DDI lab tests in their non-science-based evaluation and treatment of a child. No doubt DDI would say that it is not responsible for the “misuse” of its tests, but I would disagree based on the information in Barrett’s article.

More importantly, Doctor’s Data is suing Dr. Barrett for the ridiculously overblown sum of $10 million, knowing quite well that Dr. Barrett doesn’t have $10 million or anywhere close to it. Its obvious purpose, again, is to shut down criticism of its dubious testing and its marketing itself to dubious practitioners who perform chelation therapy for autism, heart disease, and other conditions for which chelation therapy is not indicated. Because of that, I would argue that skeptics and supporters of science-based medicine should treat this lawsuit as being on the same level of urgency as that of Simon Singh, the British skeptic who was sued by the British Chiropractic Assocation and managed to win against the odds, given how stacked against the defendant British libel law is. The BCA’s lawsuit even backfired spectacularly in that it provoked a campaign to reform British libel laws and turned skeptics loose investigating the pseudoscientific claims of large numbers of British chiropractors. Even so, Singh suffered two years of legal actions and spent hundreds of thousands of pounds to defend himself. He’s unlikely to recover all of his legal costs. He has made a huge difference, however.

It is true that American libel laws are nowhere near as plaintiff-friendly as British libel law. Dr. Barrett isn’t at nearly as big a disadvantage, and the lawsuit against him is not likely to lead to major changes in U.S. (or even Texas) libel law. It’s quite possible that it will be rapidly dismissed, as Barbara Loe Fisher’s lawsuit against Paul Offit was. I certainly hope so. Still, no matter what happens, DDI will cost Dr. Barrett money and time and interfere with his important work on Quackwatch. Besides, it is the principle involved that should spur skeptics to publicize and protest this naked intimidation of a respected skeptic and supporter of science-based medicine, and that principle is that libel laws should be kept out of science. Libel law should have no place in what is a scientific dispute. Worse, if Doctor’s Data is successful, not only would it silence one of the most dedicated and successful supporters of science-based medicine out there, but it could well destroy what is arguably the most comprehensive site for debunking quackery that is currently in existence, Quackwatch and its affiliated sites.

Supporters of medical pseudoscience have a long history of trying to stifle criticism by any means necessary. Sometimes their chosen means are dubious libel suits, as when Barbara Loe Fisher tried to sue Paul Offit for libel and the BCA sued Simon Singh. Indeed, this is arguably the most favored technique to shut up opposition, and I’ve recently learned that “attachment therapist” Dr. Ronald Federici is suing several of his critics, including Jean Mercer, Psychology Today, and Advocates for Children in Therapy. He lost the first round, I’ve recently learned that he is appealing. Sometimes, their chosen technique is to try to harass their enemies at their job, as I have recently experienced. Sometimes their preferred technique is to try to shut down criticism by filing complaints against ISPs, as Joseph Chikelue Obi and the Society of Homeopaths did to Andy Lewis. Sometimes, the more radicalized of them, such as animal rights activists, directly vandalize property or protest at the homes of researchers in order to intimidate them. It’s all the same intent, just using different tactics, and that intent is to silence the opposition. It’s all a continuum, and many are the techniques used by promoters of dubious medicine to react to science-based criticism. What all the techniques and strategies used all share in common is that they are designed not to refute scientific criticism, but to stifle it through intimidation.

If they win, science suffers, and so do patients.

ADDENDUM: You can help Dr. Barrett, too. If you’re a blogger, please write about this. Voice your opinion and help drum up financial support for his legal fund. Everyone can contribute to Dr. Barrett’s legal defense fund by donating to Quackwatch at this page here.