Litigating as a “debate” tactic? Andrew Wakefield’s appeal denied
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This article was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law in San Francisco, CA. In this article, Dr. Reiss explains how Mr. Andy Wakefield, who fraudulently alleged a connection between the MMR vaccine (for measles, mumps and rubella) and autism, has attempted to use litigation to further his objectives in the so-called “debate” about vaccines.
Dr. Reiss writes extensively in law journals about the social and legal policies of vaccination. She is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
In January 2012 Andrew Wakefield, a British citizen residing in Texas, suedBrian Deer, a British journalist, the British Medical Journal (BMJ), and Dr. Fiona Godlee, the British editor of BMJ, in a Texas trial Court for libel. Wakefield claimed that a series of articles titled “Secrets of the MMR Scare” written by Brian Deer, edited by Fiona Godlee and published in the BMJ were defamatory. The articles detailed serious scientific misconduct by Andrew Wakefield. On August 3, 2012, Wakefield’s suit was dismissed based on a lack of jurisdiction. Wakefield then appealed the dismissal. On September 19, 2014 the Texas Court of Appeals for the Third District rejected the appeal (pdf).
The decision itself is focused on issues of civil procedure that may be less of interest to non-lawyers, though these issues are crucially important to litigants and lawyers. But this story is a good demonstration of strategic use of litigation by Andrew Wakefield and an opportunity to discuss the advantages and potential problems of that approach.
Andrew Wakefield’s Use of Litigation and Threats of Litigation:
This is far from Andrew Wakefield’s first attempt to intimidate his critics through litigation. Most of Wakefield’s litigation has been directed at the British investigative journalist Brian Deer, who exposed Wakefield’s misdeeds. (http://briandeer.com/mmr-lancet.htm). Wakefield brought at least three different libel lawsuits against Deer in England, where the libel laws are much more favorable to the plaintiff. The First Amendment’ protection of free speech have been interpreted in a way that creates substantial barriers to libel suits against public figures. To win such claims the plaintiff must show not only that the claims were untrue but that the defendant acted with malice: that is, the defendant either knew the claims were false or was reckless towards that possibility (see New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)).
In the U.K. the burden of showing truth would be on the defendant – and no show of malice would be required. In spite of the far more favorable climate in the UK, Andrew Wakefield withdrew his claims against Deer in the U.K.
Wakefield was struck off the U.K.’s medical register in May, 2010, which effectively caused Wakefield to lose his license to practice medicine in the UK. The BMJ series about Wakefield’s fraud was published in January, 2011 (see citations below). In January, 2012, Wakefield brought claims against Deer, Godlee, and BMJ in the less favorable forum of the United States. Wakefield was living in Texas (as he had been since 2001), and that might be a reason to file there, but the legal disadvantages, the jurisdictional issues that led the Court of Appeals – unsurprisingly – to dismiss it, and the previous pattern of behavior suggest a more strategic reason.
In a decision examining a request to put one of the suits on hold, the Judge criticized Wakefield’s use of litigation as a strategic tool to deter additional criticism:
It thus appears that the Claimant wishes to use the existence of the libel proceedings for public relations purposes, and to deter other critics, while at the same time isolating himself from the “downside” of such litigation, in having to answer a substantial defence [British spelling] of justification.
….
It is suggested that there was a consistent pattern of using the existence of libel proceedings, albeit stayed, as a tool for stifling further criticism or debate.
…
I am quite satisfied, therefore, that the Claimant wished to extract whatever advantage he could from the existence of the proceedings while not wishing to progress them or to give the Defendants an opportunity of meeting the claims.
A similar pattern of using threats of litigation to respond to criticism can be seen in letters Andrew Wakefield sent to others who wrote unflatteringly about him in the United States. For example,Andrew Wakefield threatened to sue Dr. Emily Willingham over an article that labeled him a fraud (pdf). Similarly, Andrew Wakefield threatened to sue the Autism Science Foundation.
To be clear: a public figure is not fair game for intentional libel. But in none of these cases was there evidence of malice, and a letter threatening litigation is different than a request to correct an inaccuracy. These letters were threats of litigation, not requests for correction.
The Texas Court of Appeal’s Decision:
Lay people may be tempted to dismiss civil procedure rules as technical tools to make litigants’ lives harder. However, procedural rules usually have systemic reasons behind them, and are often attempts to balance important considerations and purposes. Personal jurisdiction rules govern whether a Court has authority over specific parties. Among other things, the rules that determine whether a forum is appropriate in a case like Wakefield’s are critical to prevent certain types of abuses of the legal process. Forum rules protect defendants from being dragged into Courts in jurisdictions to which they have no connection — far away from their main place of residence or business, where litigation may be more expensive and burdensome. In essence, the civil procedure rules require that there be some justification for forcing the defendant to answer to a specific Court. As explained by the Texas Court of Appeals, the standard set by the Supreme Court of the United States requires showing minimum contacts with the state in question (International Shoe Co. v. Washington, 326 U.S. 310 (1945)).
Wakefield claimed jurisdiction because of BMJ’s subscription base in the state; but he also claimed that defendants, by their actions, acknowledged jurisdiction.
Defendants Acknowledged Jurisdiction:
Under Texas Civil Procedure Rules, rule 120a allows defendants to make special appearance to claim there’s no jurisdiction.
Wakefield’s first claim was that several behaviors of the defendants meant that the defendants moved from the category of special appearances to general appearance, to participation in the lawsuit that showed that they accept the Court’s jurisdiction. One such behavior, claimed Wakefield, was filing an anti-SLAPP motion in response to his suit.
The US constitution grants everyone the right to participate in government and civic affairs, speak freely on public issues, and other rights. Sometimes individuals and groups are sued for exercising these constitutional rights. These suits are known as “SLAPP suits,” or “Strategic Lawsuits Against Public Participation.” Texas enacted a law protecting citizens against SLAPP suits in 2012. Said law was directly applicable to Wakefield’s suit against Deer, Godlee, and the BMJ, and they filed an anti-SLAPP motion. One of Wakefield’s claim was that the filing of the motion and actions related to it were, in fact, acceptance of the court’s jurisdiction.
To make a long story short, the Court rejected each of those claims, pointing out that the defendants strictly adhered to the procedural requirements of rule 120a, that the evidence is that they did not actively request anything from the Court except to respond to Wakefield’s actions (for example, Wakefield requested more time for discovery, so the defendants agreed to delay hearings), and that their participation in discovery was only to the extent ordered by the trial Court.
The Court also mentioned that section 27.011 of the anti-SLAPP statute suggested that even if the defendants did deviate from the special appearances requirements, anything relating to the anti-SLAPP proceeding would not undermine their procedural claims. The Court did not, however, base its decision on that, possibly because the defendants did not expressly raise the claim: it also ruled on the specific waiver claims and rejects each of them.
The Claim that there was No Personal Jurisdiction over the Defendants:
If Wakefield had shown a waiver, the case could proceed. However, Wakefield also claimed that even absent a waiver, the case should proceed since the Court did, in fact, have personal jurisdiction. That’s because, Wakefield claimed, BMJ had enough contact with Texas to satisfy the minimum contacts requirement–first, BMJ had subscribers within Texas. Second, even without that, there was enough additional contact with Texas to justify jurisdiction.
The Court rejected both claims, finding that there was enough evidence to uphold the trial Court’s findings. It found that there was enough evidence that BMJ’s circulation in Texas was small to reject basing jurisdiction on the subscriptions. The evidence included the number of subscribers in Texas (48) and the fact that those subscribers in total were less than 1% of BMJ’s subscriber base and revenue.
They also found that BMJ’s actions did not create further link to Texas. For example, the press release BMJ sent out about its series included journalists in Texas, but those were ten out of 2000 contacts on a central distribution email list – nothing was directed more specifically at Texas journalists than at other journalists.
Similarly, while BMJ does do business in Texas, the lawsuit is not related to those business links. The events discussed in the articles were not in Texas, and the main data collection was not in Texas. While the articles may have harmed Wakefield in Texas, that alone without more is not enough, said the Court.
Strategic Litigation, Advantages and Costs:
The tort of defamation exists for an important reason. Attacks on reputation can cause serious harm to your livelihood, dignity and life generally, a harm our system acknowledges as worthy of compensation. It’s not an ethical wrong to turn to the Courts to protect your reputation against untrue attacks: that is why we have defamation suits.
Andrew Wakefield, however, seems to be using litigation as a way to silence critics. This claim is based on repeated suits brought, and repeated threats of legal action made against critics, in what appears to be a strategic manner. Wakefield brought suit against Brian Deer four times in the U.K. – and then withdrew the suit, in a forum that was much more friendly than the United States. Wakefield brought suit in Texas in spite of the tenuous jurisdictional claim – and in spite of the fact that under United States law his chances of winning were almost nil. Andrew Wakefield is a public figure. He would have to show malice against Brian Deer and BMJ – and that would be almost impossible to do. (Aside: that is even apart from the fact that the claims of Wakefield’s wrongdoing have meticulously documented by Deer.)
Wakefield is not the first, and will not be not the last to use the courts to try and silence critics. This is why the anti-SLAPP statutes exist.
Why would Wakefield pursue such litigation? Well, the advantages from bringing such suits are substantial, both with respect to Wakefield’s supporters and his critics.
Within Wakefield’s group of supporters, the libel suits allow him to state more credibly that the accusations that he committed research fraud, that he lied about conflicts of interests, that he faked the case against the MMR vaccine for profit – at the cost of children’s health and lives – are false. Look, he can say, I’m slandered. And I’m suing my attackers.
For two years the appeal allowed him and his supporters to continue to claim that the attacks on him were slander, and to hold out that the courts may find so. Weak as that claim is in my eyes, it seems to convince the Wakefield faithful, and may work on some people who are not familiar with the details of Wakefield’s misdeeds.
Further, this decision won’t prevent Wakefield’s supporters from continuing to make this claim. Dismissing the claim on jurisdictional grounds is the right thing to do; putting the Texas Courts through the expense of this trial, not connected to them, delaying trials for others, and putting Deer, BMJ, and Godlee to the expense and burden of an overseas trial for something that was centered in the UK. is unfair and abusive. Wakefield could have sued in the UK., and can only blame himself that he did not.
But here’s the rub: the court did not decide the case on its merits, but on a technicality. This may mean to Wakefield that he can continue to claim that his actual specific claims were never decided. His supporters can add the usual conspiracy claims. He can still claim he was slandered. His case would almost certainly have lost on the merits; but now there’s no such decision. Wakefield can appeal to the Civil Supreme Court of Texas, though that Court has discretion and may not take the case. However, for Wakefield, the further appeal may have benefit. The only thing he has to lose is additional costs (which has not previously been a deterrent). On the gain side: more time with an open case, and the continued ability to talk about how he is advancing his claim of being wronged.
A decision on the merits would also have made future cases on the same issues of research fraud harder.
With respect to critics of Wakefield and similar scientific wrongdoers, the results are also clear: such suits can deter critics from future criticism or even make them withdraw their criticism. It’s hard to judge whether the tactic is effective, and to what extent: we see those that criticize, but we do not see those that do not because of fear of litigation, or those that do not criticize again after a first threat. It could work. It has no real costs outside the costs of the suit, since suing for harassment because of such tactics is extremely difficult.
On the other hand, this loss does have these financial consequences: Andrew Wakefield has to pay legal costs of the trial and appeal Courts, and if he appeals further may have additional costs. Can he? Will his adherents cover them?
In spite of the financial cost I doubt Andrew Wakefield will give up threats of litigation – and maybe not actual litigation – on similar weak or non-existent cases. He can’t win on the merits: all the evidence is against him. So he uses legal actions and threats as a way to reduce and deter criticism and argue that it’s unjustified.
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Access to the Court is an important value in our system. But the potential of abuse by strategic litigants seeking to fight criticism by force rather than persuasion is a real problem. Andrew Wakefield is making the most of that option; let’s hope that imposing costs will help to get him to rethink. I’m not optimistic.
I do, however, hope that calling out these tactics will highlight both their impropriety and the weakness of the case of someone whose only or main weapon is abusing legal claims to silence critics.
Bringing baseless suits is not a substitute to having facts and evidence on your side.
Andrew Wakefield doesn’t.
Deer B. How the case against the MMR vaccine was fixed. BMJ. 2011 Jan 5;342:c5347. doi: 10.1136/bmj.c5347. PubMed PMID: 21209059.
Deer B. Secrets of the MMR scare . How the vaccine crisis was meant to make money. BMJ. 2011 Jan 11;342:c5258. doi: 10.1136/bmj.c5258. PubMed PMID: 21224310.
Deer B. Secrets of the MMR scare. The Lancet’s two days to bury bad news. BMJ. 2011 Jan 18;342:c7001. doi: 10.1136/bmj.c7001. PubMed PMID: 21245118.
