Now Andy Wakefield will prevail in his libel suit against Brian Deer because John Walker-Smith won his appeal? Not so fast there, pardner…

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. Of course, in response Keith Olbermann was totally played by the antivaccine movement, resulting in some truly mind-numbingly dumb criticism of Brian Deer, but that was more of a sideshow than anything else. Then, a couple of weeks later the Special Masters weighed in, rejecting the claims of autism causation by vaccines made in the three test cases about as resoundingly as is imaginable in the first test case. 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. Then, to add insult to injury, the Special Masters weighed in again, rejecting causation claims of the remaining test cases of the Autism Omnibus so resoundingly that the antivaccine movement cried “conspiracy!” (as they usually do). 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.

By saying that this year things were different, however, let me make it clear that 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. Indeed, I tend to view the period between 2004 and 2008 as being the high water mark for the antivaccine movement, at least in the US. It’s been (nearly) all downhill since then. It’s hard to tell yet if 2012 is going to be a glitch in that downhill progression, but tis 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 based on 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. Also, his lawyer is apparently a neighbor whose daughter knows Wakefield’s daughter through their activities with the Autism Trust USA. The lawsuit is dated very close to one year after the BMJ’s first article is published. In any case, this news greatly heartened the

Then, just last week, there was more than a bit of whooping it up in the antivaccine crankosphere, which appeared to be partying like it’s 2005, which was 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 demonstrates once again that as a scientist she’s a great comedienne. Well, actually, she’s not much good at either, but she’s really bad interpreting science and proves it beyond a shadow of a doubt in this article. First, she crows about how the “parent autism community” antivaccine community is “buzzing with excitement” over the news of Walker-Smith’s success in his appeal of the GMC’s ruling to strike him off the British medical register. No doubt. J.B. Handley and company probably need a chiropractor for back strain from high-fiving each other. Next, there is the appeal to anecdote:

For parents of children with autism, this whole mess has always been a bit of a head-scratcher. The Lancet study’s conclusion that children with autism suffer from bowel disease is something any autism parent could easily confirm, and MMR, by far, has been the vaccine most commonly cited by parents as a trigger for a regression into autism. In my travels, I have heard the same story from parents about MMR leading to regression thousands of times.

Confirmation bias much, Jenny? In any case, Jenny can’t resist asking some rhetorical questions that indicate that she thinks that the Walker-Smith decision heralds the imminent exoneration of her hero St. Andrew not just legally but based on the science. She even goes so far as to ask:

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. Sorry, but the “foundation of the proof that the MMR does not trigger autism” is not crumbling, as the issues in the Walker-Smith case were not nearly as clear-cut as they were in Andrew Wakefield’s case. Actually, they were pretty clear-cut in that I think Justice Mitting exhibits horribly mangled reasoning and demonstrates a very clear lack of understanding of medical ethics, in particular the distinction between research and treatment. In fact, this “foundation” gets stronger every year, which is why scientists have moved on to other issues about autism causation. The vaccine-autism hypothesis was a dead end.

Not that that stops McCarthy 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 a word: No. Also note that to an antivaccinationist like McCarthy, “possible environmental causes of autism” is code for “vaccines done it.” McCarthy is arguing that, just because Professor Walker-Smith succeeded in his appeal, Andrew Wakefield was right in his science. Seriously. Underneath the verbiage, that’s the argument being made. As I pointed out last week, if you doubt me, Justice Mitting’s 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. Also, as I pointed out last time, The implications of Mitting’s ruling are frightening in their potential. Basically, if his ruling stands, it’s hard not to wonder whether it’s open season on human research subjects in the UK. 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.

Be that as it may, antivaccinationist supporters of Wakefield (wait, I think that’s redundant given that supporters of Wakefield are virtually all antivaccine) really do think that Mitting’s ruling will lead to Wakefield’s prevailing in his libel suit. Truly, the ability of these people to delude themselves knows no bounds. For instance, here’s Dan Olmsted on the antivaccine crank blog Age of Autism:

From the Editor: Suit-able

BMJ and Deer file response to Wakefield suit in Texas. Bad timing: Walker-Smith appeal just demolished most of their evidence that Andy is a “fraud.”

Except that it doesn’t, which is part of the reason why I find this comment particularly amusing:

It seems the BMJ is reluctant to have its case heard before a justice system …

http://leftbrainrightbrain.co.uk/2012/03/bmj-brian-deer-file-anti-slapp-suit-against-andrew-wakefield/

Many Deer supporters have consistently asked for Andy Wakefield to take the legal route now it has happened it seems it’s a contest they don’t want to happen.

Interesting.

Yes, Brian Deer’s attorneys and Brian Deer himself have filed their responses to Wakefield’s lawsuit. This response consists, as I and many others have predicted, of an anti-SLAPP motion, to which Brian Deer adds his own 101 page supporting document. 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. Often, in fact, those who file SLAPP-style lawsuits do not expect to prevail in court. Rather, they expect to intimidate and burden their critics to the point of silencing them or, at the very least, greatly reducing their effectivenss. 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.

The key pillars of Deer’s response to Wakefield’s SLAPP rest on demonstrating that, in fact, Wakefield’s lawsuit is a SLAPP and therefore should be quashed on those grounds. 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. Basically, the outline (which I’ve abbreviated to only its main headings) tells you what you need to know:

I. Introduction

II. Grounds for this anti-SLAPP motion to dismiss

III. Evidence in support of this anti-SLAPP motion to dismiss

IV. Factual background

  • Dr. Wakefield and the MMR Scare
  • Brian Deer Begins to Investigate Dr. Wakefield and His Role in the MMR Scare
  • After the Longest Hearing in the History of the GMC, Dr. Wakefield’s Medical License Is Revoked
  • Deer Continues to Cover the MMR Scare with Reports in the Sunday Times in 2009
  • Dr. Wakefield’s Frivolous Libel Claims and Complaints against Deer The BMJ Articles and Editorials

V. Texas’ new anti-SLAPP statute applies to Dr. Wakefield’s claims

VI. Dr. Wakefield’s claims fail because he cannot show that the challenged statements are false.

  • Dr. Wakefield Must Prove that Defendants’ Statements Are Not
  • Substantially True.
  • Dr. Wakefield Is Precluded from Re-litigating the GMC’s Findings,
  • Which Establish the Substantial Truth of the Challenged Statements
  • The Undisputed Evidence Also Establishes the Substantial Truth of the Challenged Statements

VII. Defendants’ statements of opinion and hyperbole are not actionable

  • Several of Defendants’ Statements, Including that Dr. Wakefield’s Research Must Have Been “Fraud,” Are Nonactionable Expressions of Opinion
  • Defendants’ Expressions of Rhetorical Hyperbole and Colorful Language Are Not Actionable

VIII. Dr. Wakefield’s claims based on Brian Deer’s website publications are barred by the statute of limitations

IX. Dr. Wakefield is a public figure and he cannot show actual malice

  • Dr. Wakefield is a public figure
  • Defendants did not act with actual malice.

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. The first question that comes up, of course, is the very one that the AoA commenter brought up, because it signals to me what I’m sure will be the recurring attack launched at Brian Deer, Fiona Godlee, and the BMJ, namely that Deer’s response is “cowardly” because it tries to get the lawsuit quashed based on Texas’ anti-SLAPP law. This is a profoundly silly argument. Legal actions are expensive, draining, and time-consuming, particularly when conducted across national borders. Given that Wakefield’s lawsuit has no merit, while it might be “noble” to let the suit proceed and use the opportunity to go toe-to-toe with Wakefield, it would be foolish and expensive. The law gives Deer and Godlee a tool to try to get this frivolous lawsuit dismissed, and they’d be foolish not to use it not only to do that but to punish Wakefield for abusing the legal process.

Moreover, as I’ve pointed out before, this argument is profoundly disingenuous in that it would not be in Wakefield’s interest to let this case go to the discovery phase. That would allow Deer and Godlee’s lawyers question Wakefield directly, and he couldn’t dodge that. Moreover, it would allow them to subpoena all sorts of information that Wakefield very likely would not be happy to reveal to the world, and I’d bet that such information would likely only serve to confirm the findings of the GMC and the conclusions of Brian Deer’s investigations. It might also, as I pointed out before, allow the defendants’ lawyers to depose all manner of Wakefield’s connections relevant to this libel suit, possibly even some of Generation Rescue’s luminaries and bloggers at AoA, given that it appears very much to me as though GR and AoA coordinate their attacks on Deer and Godlee with Wakefield. In particular, they are helping to raise money for Wakefield for his legal action.

One of the amusing bits in the anti-SLAPP response 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. Maybe that’s what I’ll call Wakers from now on.

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 he wasn’t aware that Wakefield was conducting a research project, much less one without proper approval by an ethics board.

So what now? In a way, I’m rather surprised that Wakefield put himself in such a situation. It sure strikes me as extreme hubris. Consider: Surely Wakefield’s lawyer 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, by filing this lawsuit, Wakefield might very well have unwittingly set himself up to be the first major test case for the new law. That is not a good situation to be in.

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.