I wish I had more time to write about this tonight, but I just had to post something on the lawsuit filed today (January 4, 2012) in a Texas trial court by Andrew Wakefield, the disgraced British former physician whose 1998 Lancet article created the modern vaccines-cause-autism myth. Wakefield is suing BMJ (the former British Medical Journal), Brian Deer, the author of a January 5, 2011 (Happy Anniversary!) BMJ article, and later follow-up article, that detailed Wakefield’s falsification of data and fraud in the Lancet article, and Fiona Godlee, a physician and editor of BMJ who authored an editorial in the same issue.
At first I wondered if the news of the lawsuit was just a bad rumor, but the available copy of the complaint has all the markings of a document that has actually been filed in a court.
My quickie analysis/prediction, subject to the usual caveats that I haven’t had a lot of time to research this and I have purposely over-generalized and simplified the law: There are quite a few hurdles for Wakefield to clear to be successful. First, he has to show that the Texas courts have jurisdiction/power to conduct the trial in the first place. Wakefield is suing a British publication and two citizens of the United Kingdom in Texas because he resides in Texas now. In the United States, a court has jurisdiction or authority over a defendant only if the defendant has sufficient contacts or involvement with the state in which the court sits. Wakefield claims that Texas courts have jurisdiction over BMJ, Deer and Godlee because they “direct[ed] a significant and regular flow of publications . . . to institutional and individual residents of [Texas]” and because they committed a tort (a personal wrong) against him, and he is a resident of Texas.
A publisher of widely-disseminated material isn’t subject to the jurisdiction of every court where the material may end up. Either the specific article involved must have been “directly aimed” at the state, or the publisher must have sufficient “contacts” with the state to give the state’s courts jurisdiction over any case involving the publisher (for example, the New York Times can be sued in New York, even if it is being sued for a car accident that one of its employees causes in Pennsylvania, just because it’s based in New York–or is it New Jersey now?).
Many courts have held that merely publishing materials that may end up in a given state is not enough to subject a publisher to the jurisdiction of that state’s courts. The publisher must have “directly aimed” the allegedly defamatory material at the state. The mere presence of the target of an article is not enough. Although a famous U.S. Supreme Court case held that an article about an actress in California was enough to subject the publishing newspaper to a libel lawsuit in California, a recent federal appeals court decision noted that in that case the article was about the actress and her career in California, and wasn’t based on the actress’s mere presence in California. Although this article is about Wakefield, who now resides in Texas, it wasn’t about Wakefield’s activities in Texas. It was about Wakefield’s activities in the United Kingdom, where all of his defendants are. I don’t know if the BMJ’s circulation is enough in Texas to give the court “general” personal jurisdiction over any case involving the publication, but I doubt it.
If Wakefield gets past the jurisdictional hurdle, he then has to battle the First Amendment. I have no doubt that Wakefield is a “public figure” and the issue of the safety of vaccines is a public issue. Because of that, the First Amendment’s protection of public discourse on items of public import requires that Wakefield prove “actual malice,” which means that he must prove that the authors and publishers of the BMJ article knew that the defamatory statements were false or that they made the statements with reckless disregard of the truth or falsity of the statements. Wakefield actually alleges in his complaint that the authors knew the statements were false. Saying it in a complaint is one thing. Proving it is another. Proving someone’s knowledge is a hard thing to do. Not impossible, but very hard.
Another hurdle facing Wakefield is the legal concept of “res judicata,” which roughly translates to “we’ve been through this already.” (Some legal nit-pickers may claim that the real translation is “the thing has been adjudicated,” but don’t you believe them.) The concept goes something like this: once you have had a “full and fair opportunity” to litigate some claim, issue or fact in one court, and have lost, you don’t get to litigate it again, even in some other court. Wakefield has already been through a huge proceeding before the United Kingdom’s General Medical Council in which he lost his license to practice medicine. He had a full and fair opportunity to litigate the matter there. The Council found that he had falsified elements of his Lancet article and that he had abused developmentally disabled children (there’s a guy you want to bring home to mom).
My major question on this point is whether Texas considers results of administrative proceedings to have “preclusive” effect. Some states say that a finding by an administrative agency has the same effect as a finding of a court. Some states say that only court proceedings count. If Texas is in the former group, then Wakefield will have a tough time getting to trial. Any Texas lawyers who can answer that one?
Also, I have to question whether the BMJ article has really caused any damage to Wakefield’s reputation. In order to recover some money damages, Wakefield has to prove either that he suffered some actual damage to his reputation or that the article damaged him in his occupation or profession, in which case he would get at least nominal damages. I don’t think he’ll be able to prove that he suffered some damage to his reputation given the horrible worldwide reputation that he has. Given the highly-publicized findings of the British General Medical Council a year before the articles in question, it’s hard to believe that the articles caused any additional harm to his reputation. In addition, I don’t think that he will be successful in proving that the defamatory statements concerned his occupation or profession because they concerned his medical research as a physician–and he’s no longer a physician. (Interestingly, one of the statements in the articles that Wakefield claims is false is “now apparently self-employed and professionally ruined, [and] remains championed by a sad rump of disciples.” I didn’t know that “rump” was the collective noun for a group of disciples. I thought it was “flock.” You learn something new every day.)
OK, I really must go. I may try to update and clean up this post in the coming days. Comments, critiques and corrections are greatly encouraged and invited.