Andrew Wakefield's libel suit against Brian Deer: Dismissed!

I tell ya, sometimes I think you guys think I’m a journalist or a 24 hour news source. I’m not, of course. I’m just a humble blogger, and I do what I can within the constraints of my every day “real life.” What? I have a real life? You mean I’m not really a supercomputer who can link with any other computer in the galaxy to mine all known data, all contained within a Plexiglass box of multicolored blinking lights? I’m not saying, but I am saying that I do need some down time.

Unfortunately, sometimes big things happen during those down times, stuff I really like to blog about. In the past, I used to jump on such events, wanting to be the “firstest with the mostest,” so to speak. Now that I’m more established, I’ve learned that it’s impossible always to be the firstest with the mostest, particularly given the differences in time zones that mean that at some times I’m asleep while bloggers in the UK or elsewhere are up and blogging. Nothing I can do about that, and it’s foolish to try. Friday nights are particularly bad, because I’ve learned that it’s a very good thing indeed to unplug on Friday nights, and I usually do. Sometimes, we even have company over, and I completely unplug to the point that I don’t even look at my phone. This is a good thing. It’s even a better thing when that Friday night is the beginning of a week-long vacation. It does, however, mean that when news like the dismissal of the frivolous libel suit that Andrew Wakefield filed earlier this year against investigative journalist Brian Deer comes through on a Friday, I can’t be the firstest with the mostest.

So I guess I’ll just have to settle with being the mostest in my usual insufferable (to the antivaccine movement, anyway) fashion.

Or at least, I’ll just have to give my own unique personal spin on this completely not unexpected outcome. Basically, Judge Amy Clark Meacham dismissed Andrew Wakefield’s libel suit against Brian Deer in a single paragraph based on a “lack of personal jurisdiction” of any of the defendants. In brief, that means that the court found that there was no legal claim to Texas jurisdiction for this particular lawsuit for any of the defendants. This was, of course, a very obvious outcome. Those of us who follow these sorts of things were scratching our heads all along as to why Wakefield would even file such an obviously nonsensical lawsuit. On the one hand, suing in the UK would provide Wakefield with ammunition in the form of Britain’s notoriously plaintiff-friendly libel laws. The downside, however, would be that in the UK the loser pays; if Wakefield didn’t prevail, he could be in for a huge bill. In Texas, however, libel law is in line with that of most of the U.S., and under the First Amendment the bar for demonstrating libel is very high indeed. This made it incredibly unlikely that Wakefield, even if he managed to get this case to trial, would prevail. Worse, there is an anti-SLAPP law in Texas that would allow Brian Deer to go after Wakefield to recover court costs. On the other hand, apparently Wakefield knows a lawyer named William Parrish, whose daughter is apparently involved with some autism group with Wakefield’s daughter. Very likely, that means that Wakefield got his legal help for free.

That left those of us scratching our heads with the only likely explanation for Wakefield’s action as being a the desperate act of a man clutching at his declining relevance in the wake of his having been struck off the British medical register and having witnessed his key papers, particularly the 1998 Lancet paper, retracted. And it worked, for a time at least, with the hopes of the antivaccine crankosphere briefly lifted when John Walker-Smith won his appeal, even though the two events had nothing to do with each other. I will admit, though, that in retrospect after this blunt and brief dismissal of Wakefield’s lawsuit, the rhetoric from the Age of Autism set was unintentionally hilarious, full of bold proclamations that Wakefield would reveal the “truth” and destroy Brian Deer’s credibility once and for all, thus exonerating himself and rehabilitating his reputation.

So I wandered over to that wretched hive of antivaccine scum and quackery, AoA, to see what the propagandists there are saying about this latest development. The rhetoric there is subdued, but just as defiant. It’s also just as divorced from reality:

“We feel confident moving forward,” said Ed Arranga, executive director of the Dr. Wakefield Justice Fund. “We will appeal the district court decision and welcome the opportunity to having our case heard by the appeals court. Our intent remains the same – to get the facts in front of a jury. The community remains steadfast in its support of Dr. Wakefield.”

Sylvia Pimental, a mom and Justice Fund member, echoed the support. “We knew this would be a long fight before filing and have every faith the appeals court will rule in Dr. Wakefield’s favor. We believe Texas has a strong legal interest in protecting its residents from attack by foreign entities.”

Dr. Wakefield has 30 days to file his appeal from the date of Judge Meachum’s order. The case would be heard by the Third Court of Appeals, in Austin, Texas and the case may involve issues that are of interest to the Texas Supreme Court.

Personally, there is one way that I was somewhat disappointed in the dismissal of the case. It would have provided me with a lot of hilarious material to blog about. Of that I have no doubt. Don’t get me wrong. I admire Brian Deer, and I’m glad that he won such a resounding dismissal, given that this was clearly a lawsuit designed to strike back at him for having uncovered Wakefield’s conflicts of interest and rank scientific fraud. Consequently, I don’t want Brian Deer, the BMJ, or Fiona Godlee to have to deal with the time, expense, and pain of a continuing to defend against a frivolous lawsuit.

My prediction is that it’s all bluster and posturing anyway. Taking the case to the appeals court would involve a lot more expense, and one wonders whether Mr. Parrish, however chummy he might be with Wakefield, is sufficiently chummy to be willing to continue to press what is even more obvious to be a loser of a case to the appeals court. I expect that there will be some bleating about appeal for the next 30 days, with more and more blatant appeals to contribute to the Wakefield Justice Fund. Wakefield will score some decent contributions from the antivaccine faithful, many of whom are still sufficiently deluded to believe against all evidence that Wakefield is a persecuted martyr rather than an incompetent scientist and fraud with massive conflicts of interest. Indeed, if you cruise over to Anne Dachel’s Facebook page, the parents are lamenting the decision with comments like this one by Daphnia Cannon:

I hope he can enjoy his redemption while alive. This man deserves it!! What other doctor has been as brave as him to go against a medical system that is injuring and damaging our children!!!

Sorry, Daphnia. Ain’t gonna happen. Wakefield is yesterday’s news. He has been thoroughly discredited, and deservedly so. There isn’t going to be any sort of redemption or rehabilitation.

Then there’s this comment by someone named Dan E. Burns, who apparently was in the courtroom when legal arguments were made:

Then William M. Parrish, Dr. Wakefield’s attorney, stood up. A long tall Texan wrapped like a hot dog in a black lawyer’s suit, wavy hair poking out on top, cowboy boots sticking out at the bottom, Parrish towered above the BMJ attorneys.

“Your honor,” he said, “let’s leave the legal language aside for a moment. This is a story about suffering children and their mothers and families, and a doctor’s decision to listen to them.” The courtroom came alive.

“On January 6, 2011,” Parrish continued, “Deer told Anderson Cooper, ‘If it is true that Andrew Wakefield is not guilty as charged, he has the remedy of bringing a libel action against myself, the Sunday Times of London, and against the BMJ. If he were found not guilty, he would be the richest man richest man in America. So why doesn’t he sue?'”

“With those words,” continued Parrish, “Brian Deer put a chip on his shoulder, and that is why we are here and not in England. If you pick a fight with a Texan, you settle it in Texas.”

The battle has only just started. As Andy said, “Discovery alone has confirmed the extraordinary extent of the Defendants’ deception and malice. An appeal will be filed and we will win.”

We’ll see, but it is rather interesting that Parrish was so anxious to “leave the legal language aside for a moment” and try to tug on the judge’s heart strings. Fortunately, the judge is bound by the law alone, not rhetorical flourishes and appeals to children whose parents believe incorrectly that vaccines cause their autism.

The more I think about it, the more I tend to believe that the whole case itself was all bluster and posturing designed to show the antivaccine faithful that Wakefield is still relevant and still fighting. Indeed, it wouldn’t surprise me if Wakefield expected to lose on jurisdictional grounds all along, which would allow him to tell his followers that he’s fighting but to do so without actually expending a lot of resources or risking revealing what might come out in an open trial. Indeed, if there’s one thing that Wakefield does not want, it’s to take the stand under oath, and it would be incredibly difficult to prevail as the plaintiff in any sort of civil action without taking the stand at some point. No doubt, were that to happen, Deer and Godlee’s lawyers would have a field day.

Finally, I do have one other minor regret about this ruling. Basically, I’m with Sullivan when he asks:

Since this is a dismissal on jurisdiction grounds, we do not have a ruling as to whether it is defamatory to call Mr. Wakefield a “fraud” or “fraudster” based on his research activities (such statements were part of Mr. Wakefield’s defamation suit), which resulted in his Lancet paper being retracted and which activities were deemed unethical by the General Medical Council.

Indeed. Of course, in my opinion, Wakefield is a fraud and a fraudster, and that is protected speech regardless of whether Wakefield appeals.