Category Archives: Lawsuits

Texas court hears oral arguments in Wakefield v. BMJ–how much can Age of Autism get wrong in one paragraph?

The electronic docketing system of the Texas courts is down for maintenance this weekend, so I couldn’t verify this information.  But Age of Autism (whose latest post as of this writing calls Jenny McCarthy a “Beauty Queen,” apparently for her career-launching spread in Playboy magazine) said it, so it must be right: the Texas Third Court of Appeals has heard oral arguments in the appeal by Andrew Wakefield from an order of the trial court dismissing his lawsuit against BMJ, Brian Deer, and Fiona Godlee for libel in relation to an article calling him a fraud.  I did find the brief of BMJ, Deer, and Godlee, which was filed on March 4, making a May 22 oral argument about right.

What was amazing about Age of Autism’s short post on the topic was how much they got wrong about the court and the case.  Here’s the entire post:

Yesterday, the three judges of the Texas High Court heard the appeal over jurisdiction in the case of Andrew Wakefield against the British Medical Journal and journalist Brian Deer. The case was presented by attorney Brendan K McBride, which was felt to be well-conducted. It will now be between 1 and 6 months before the judges return their verdict.

So, how did Age of Autism get it wrong?  Let me count the ways:

  1. “the three”:  There are six judicial officers on the Third Court of Appeals.  This case was heard by a panel of three of them, but they do not constitute “the three” judicial officers of the court.
  2. “judges”: The judicial officers on the court are called “justices.”
  3. “High Court”: The Third Court of Appeals is an intermediate appellate court.  That means that it is not the court of last resort in the state, and therefore does not carry the honorific name of “High Court.”
  4. “British Medical Journal”: The BMJ hasn’t been called this in 25 years; they now go by “BMJ.”
  5. “against the [BMJ] and journalist Brian Deer”: The case had a third defendant: BMJ editor Fiona Godlee.  OK, this is a minor point, but it’s still an error, so I get credit for pointing it out.
  6. “which was felt to be well-conducted”: Huh?  This phrase shows the evils of the passive voice, the use of which every law school professor believes will lead to the extinction of Homo sapiens.  Who “felt” it to be “well-conducted”?  I assure my dear readers that Age of Autism was not speaking on behalf of the court.
  7. “It will now be between 1 and 6 months before the [justices] return their [decision]”:  Says who?  I could find nothing in the Texas Rules of Appellate Procedure or the court’s local rules that indicates any time frame for a decision.  This might be an average of the court, but it’s dangerous to predict a time frame for an appellate court’s decision in any particular case except for those cases that have definite terms in which they issue decisions before the end of the term, like the U.S. Supreme Court does.  I could find no indication that this was the case for the Third Court of Appeals.  I am ready to stand corrected if a Texas attorney has other information.
  8. “verdict”:  An appellate court does not issue a “verdict.”  A verdict is a declaration by a trial court that establishes the ultimate facts and some legal conclusions in a case (I know, fellow lawyers, it’s really the judgment resulting from a verdict that does that, but let’s keep it simple for our lay readers, OK?).  An appellate court issues a “decision” or “opinion” and, eventually, a “mandate.”

One of the comments to the post, by “AussieMum,” stood out for its fundamental misunderstanding of the law:

If Dr. Wakefield’s appeal is successful, is he still subject to the BMJ’s lawsuit based on the Texas Citizens Participation Act (the “Texas Anti-SLAPP statute”) or is he home free?

Maybe we should give AussieMum a little slack since she is probably from Australia, but if she has read anything about the lawsuit, she would realize that the BMJ’s anti-SLAPP motion is not a “lawsuit” that Wakefield is “subject to.”  It’s a defense to Wakefield’s lawsuit against BMJ, Deer, and Godlee.  For a good description of Texas’s anti-SLAPP statute, see my favorite legal blog, Popehat.

So, Age of Autism, perhaps you should inform yourself a little better about the law before you comment on legal matters.  And, come to think of it, perhaps you should inform yourself a little better about science and medicine before you base an entire website on the safety of vaccines.

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Filed under Free speech, Lawsuits, Libel, Vaccines

Quickie news: Wakefield sues British authors and publishers for libel–in Texas

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.

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Filed under Free speech, Lawsuits, Libel

Del Monte engages in legal thuggery against government scientists

When the mafia makes threats, it doesn’t pretend that what it is doing is legal.  Del Monte Fresh Produce, however, apparently likes to pretend that the law is on its side when it engages in thuggery.

For those of you who haven’t heard, Del Monte has sued the FDA after the FDA determined that Del Monte cantaloupes, which are imported from Guatemala, were contaminated with salmonella, and ordered that cantaloupes from Guatemala no longer be imported, at least temporarily.  (Speaking of the mafia, wasn’t there a famous mafioso named Sal Monella?)  Del Monte agreed to a voluntary recall of the product

Del Monte, apparently not satisfied with trying to reverse the official government action, has also threatened to sue an Oregon state epidemiologist for its role in investigating the salmonella outbreak.

The suit against the FDA

In its suit against the FDA (complaint), Del Monte claims that the FDA had insufficient evidence to conclude that cantaloupes, or cantaloupes from Guatemala, were the source of the illnesses.  It claims that the FDA never tested any cantaloupes, and in fact had recently inspected the farm in Guatemala and had not found any salmonella there.  Among its other claims were that one infected  patient denied having eaten cantaloupes, that the retailer who sold the cantaloupes had also sold non-Del Monte cantaloupes, and that contamination may have occurred at the retailer.

Del Monte’s legal claims were that the FDA acted outside of its legal authority, and that it acted based on “rules” that were internal policies that had not been properly subjected to the required public notice and comment period.

I don’t have a problem with the suit against the FDA, which is a request for a court order declaring the FDA’s order illegal, voiding it, and preventing the FDA from enforcing it.  It is perfectly appropriate for a company to seek review by a court of an administrative agency’s judgment and factual findings.  Indeed, Congress has created an entire procedure for review of most government actions, although Del Monte did not use that procedure in this case (I’m not sure why, although it may be that legally that procedure is unavailable to Del Monte in this case).

The threat against Oregon officials

Del Monte has also threatened to sue Oregon officials, including its public health department and an individual epidemiologist in that department.  Although the newspapers describe Del Monte as having made a “threat,” it appears to me that the document was probably a formal notice of a possible lawsuit.  In most, if not all, states, before you can sue the government or a government official, you have to give the government or official notice–often very quickly, like in a matter of a few months–that you are going to do so.  Many times, even after a notice is served, no suit is filed.  We don’t know whether Del Monte will end up suing.

From all reports, it appears that Del Monte is asking for monetary compensation from Oregon for its actions.  It’s not clear exactly what action Oregon took, other than investigating for the FDA and maybe reporting its findings to the FDA.

I don’t necessarily have a problem with the notice, because many times people serve these notices just to preserve rights and to give themselves some time to think about whether to sue.

If Del Monte decides to sue, I will have a huge problem with it.  Scientists who are protecting public health need to be able to do their work without the specter of a lawsuit hanging over their heads.  It’s unlikely that an individual who gets sick will sue an epidemiologist for missing some contamination, and the epidemiologists will therefore be subconsciously biased in favor of food suppliers, who have the resources to sue.

Even if Del Monte is not successful, just putting the epidemiologists through the emotional turmoil of a lawsuit would be enough to affect their judgment in the future.

Fortunately, if Del Monte does file its lawsuit, it appears to have extremely little chance of succeeding.  Government agencies and officials are protected by sovereign, or governmental, immunity for many actions, including (and especially) actions that involve their discretion and professional judgment.  The laws protecting governments from lawsuits for such acts were enacted to prevent the very situation that Del Monte might cause: making government agents afraid to do their jobs, thereby endangering the public.  Public officials owe their duties to the public, and not to individual companies or people.

Like with many other things, I think Del Monte would be better off staying the shadows until this all blows over.  If it does sue government officials who are trying to prevent consumers from getting seriously ill, it will, in my view, seriously hurt its own reputation and any trust that the public has in it.

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