You may have seen the news about a Texas court throwing out Andrew Wakefield‘s lawsuit against Brian Deer, the investigative journalist who did so much to uncover Wakefield’s fraudulent anti-vaccine study. You can read the court’s opinion for yourself, but I’ve already seen some inaccurate commentary on it. Here’s a little background on the case, and a quick explanation of what happened last week for non-lawyers.
The backstory, including Wakefield’s first libel suit against Deer
You probably recall that Wakefield published several papers, most notoriously a 1998 piece in The Lancet (since retracted by the journal) concluding that the common MMR vaccine could cause autism. His work attracted a lot of criticism from qualified scientists, who couldn’t find evidence to support the radical anti-vaccine conclusions Wakefield seemed to want the public to draw. Eventually Deer, an investigative reporter for the Sunday Times, started to dig into Wakefield’s work. He reported that Wakefield had failed to get proper ethical approval for the study and failed to disclose drastic conflicts of interest, including a patent application for a vaccine that would have competed with the standard MMR shot and payments from lawyers who wanted evidence to use in lawsuits against vaccine manufacturers.
Wakefield denies any wrongdoing, of course, and sued Deer for libel in England. (This is a totally different lawsuit from the one that the Texas courts decided.) The court summarized Wakefield’s complaints: essentially he claimed that Deer had accused him of maliciously spreading fear about the MMR vaccine “dishonestly and for mercenary motives,” abused the children he was studying, and failed to disclose his conflicts of interest.
American lawyers like to say that those cases are much easier to win in British courts than in the United States, since there is no First Amendment to protect defendants there. Nevertheless, the court’s opinion hammered Wakefield. The court explained that Wakefield had apparently been using the lawsuit “as a weapon in his attempts to close down discussion and debate over an important public issue.” The case dawdled on for a while after that humiliation, but eventually Deer obtained and published records showing that Wakefield had been paid half a million dollars “by lawyers trying to prove that the vaccine was unsafe,” starting long before his infamous Lancet paper. Days later Wakefield dropped his suit, even though under British law it meant that his backers would have to pay for the defendants’ legal bills (nearly a million dollars).
About six months after conceding his libel case against Deer, the British medical regulators held a long, careful hearing into the charges against Wakefield. After reviewing the evidence they concluded that he had acted “dishonestly and irresponsibly” and with “callous disregard for the distress and pain the children [in his study] might suffer”. As a result, Wakefield lost the right to practice medicine in the UK.
The US lawsuit
By that time Wakefield had already retreated to the United States, where the anti-vaccine community was happy to not ask awkward questions about ethical violations. But Deer wasn’t done investigating the story; starting in 2010 he published a series of articles in The BMJ (the sexy new all-acronym name of what used to be called the British Medical Journal) detailing new allegations against Wakefield. According to a 2011 editorial in The BMJ, “Deer shows how Wakefield altered numerous facts about the patients’ medical histories in order to support his claim”. The BMJ, an institution in print since 1840, came right out and called Wakefield’s work “an elaborate fraud.”
Wakefield took the publication of this material with all the grace and aplomb you would expect from a man who allegedly took money to scare parents out of vaccinating their children: he sued. In 2012 he filed a lawsuit in a Texas court against The BMJ and Deer, accusing them of defamation.
There were a few problems with Wakefield’s suit. First, there was the lingering odor of the British court’s ruling, years earlier, that he had used his first defamation lawsuit against Deer “as a weapon in his attempts to close down discussion and debate over an important public issue.” But Texas isn’t England. Thanks to the Union’s victory over the traitorous Confederacy (I say so with love, as a proud native Texan), we have a First Amendment that protects speech more vigorously than is the case in the United Kingdom. Texas also has what’s called an “anti-SLAPP” law. Basically, and it’s an oversimplification, if someone sues you over statements you made about “a matter of public concern,” you can file an anti-SLAPP motion. If you win, the court will dismiss the lawsuit and order the plaintiff to pay your attorney’s fees and damages “sufficient to deter the party who brought the legal action from bringing similar actions.” Just to be clear, this requires the plaintiff to pay the defendant damages and attorney’s fees. That’s very rare in American law and plenty exciting.
Obviously Deer and the BMJ filed an anti-SLAPP suit ASAP. But there’s a twist! Texas courts more or less only have jurisdiction over Texans and people who do business or harm in Texas. Deer and the BMJ are not Texans. And they published the supposedly defamatory articles in England, which is not even one of the lesser 49 states. So the court’s first job was to determine whether it even had jurisdiction. (There’s a side issue here about whether the defendants gave the court jurisdiction by filing their anti-SLAPP motion. Short answer: no.) The court decided that it did not have jurisdiction, which made the anti-SLAPP motion moot—it just dismissed the case outright, because it didn’t have the power to hear a lawsuit against foreigners based on things done in a foreign country.
That was back in 2012. Wakefield appealed the dismissal, and on Friday the Texas Court of Appeals weighed in. It went through a lengthy analysis, considering issues like whether The BMJ has enough subscribers in Texas to put itself inside a Texas court’s jurisdiction. (Short answer: no.) Since Wakefield filed his lawsuit in a court that didn’t have jurisdiction over the defendants, the appellate court upheld the dismissal. In other words, the trial court killed the lawsuit in 2012 and the appellate court refused to resurrect it.
Wakefield could appeal the case again to a higher court. Will he? Remember that he’s been dinged before for using a defamation lawsuit “as a weapon in his attempts to close down discussion and debate over an important public issue.” He might have been more interested in the harassment value of the suit than in actually winning it. But I suspect that this is the end of the road. First, an appeal will be expensive. Wakefield is probably a relatively wealthy man, but no one likes to throw good money after bad. (And this issue, being all about jurisdiction, probably isn’t sexy enough to use as a fundraising tool.) And if he is using the lawsuit to suppress criticism, it certainly hasn’t worked very well—Deer and The BMJ don’t seem deterred at all. We’ll know for sure before long, but I’m guessing that Wakefield will use this as a soapbox for more complaints without bothering to appeal it again.
While I’m pleased with the result—I’m not enough of a Texas law expert to assess the ruling, but I have an inherent dislike of libel suits like this—it’s a little unsatisfying. I would have liked to have seen Deer and The BMJ prevail on their anti-SLAPP motion, to deter obnoxious plaintiffs like Wakefield from trying to squelch inconvenient speech in the future. As it stands, he may very well see the money invested in this case as a good investment. For as long as the case was running, he and his supporters could defend his fraudulent work by saying that his libel suit was ongoing. And that won’t stop now that the appellate court has ruled; Wakefield’s truest believers will just say that since this case went out on jurisdictional grounds and he dropped his first case before trial, no one has ever had a chance to rule on his claims.
Of course, there’s a remedy for that. Wakefield could always file a new case in England, where jurisdiction wouldn’t be an issue. But the law there requires losers to pay for the winners’ lawyers, which—as Wakefield knows from experience—is not cheap. I doubt he’ll put his money where his mouth is.
A disclaimer that is appropriate whenever discussing a litigious man like Wakefield: all of the above statements are honest expressions of my opinion. If I’ve made a mistake about any facts in the summary above, I welcome corrections in the comments.
And finally, thanks to the estimable Popehat for the tip about the opinion being released and correcting one of my misapprehensions about the anti-SLAPP motion. I strongly recommend you follow their excellent, hilarious work defending free speech.