By Dan E. Burns
One minute early, at 9:44 AM on Wednesday May 22, 2013, Dr. Andrew J. Wakefield’s attorneys fanned to the front of the wood-paneled courtroom, facing the three benched, black-robed, justices. Andy was suing Brian Deer, Fiona Godlee, and British Medical Journal for slander. They had accused him of fraud. But the appeal today was not about fraud or slander; it was about jurisdiction. Where will the libel case, if and when it is finally heard, be tried?
Venue is a key to the outcome. In England, Brian Deer, the pharmaceutical industry’s attack dog, has in effect a government-issued license to smear, libel, and slander. His job is to defend the reputation of the British government and of the media establishment that hired him. So if the trial were held in London, Deer and BMJ would be wrapped in the cocoon of the power elite. On the other hand, if Wakefield and his attorneys put Deer in front of a Texas jury, Deer’s paranoid fantasies would be on full display. That would be a nightmare for Fiona Godlee and British Medical Journal (BMJ). They are fighting tooth and nail to prevent it.
But the BMJ attorneys made a serious error. At the heart of today’s issue was a jurisdictional Catch-22. If you plead with a Texas court to do something for you, you implicitly recognize the jurisdiction of the court. But what if you go to court to challenge its jurisdiction?
In tag games, if you say "King's X" and hold up your hand with the first two fingers crossed, you’re safe because the game is suspended. In Texas law, the BMJ attorneys could call a King’s X by requesting a “Special Appearance” solely to dispute the jurisdiction of the court. The snare wouldn’t spring as long as they followed the rules.
The rules, however, are strict. No fair asking the court for rulings before the Special Appearance; no fair pressing your case or making additional pleas and claims. The jurisdiction issue must be settled first. The BMJ attorneys, however, got in a hurry. They descended on Texas like a tornado. They filed an anti-SLAPP motion, distributed it to the news media, and made other pleas and claims prior to jurisdiction. They didn’t cross their fingers. They broke the rules.
“Anti-SLAPP is a new law and a good law,” explained Andy. “It was passed to protect free speech. Say you’re a blogger telling inconvenient truths about the pharmaceutical industry. Pharma can afford to hire a stable of attorneys who will file lawsuits they probably can’t win, but it doesn’t matter much. Their goal is to shut you up. They can bully you forever unless you file an Anti-SLAPP motion. That’s why it’s there: to protect the little guy. But here’s the twist. In my case, BMJ seek to apply the law perversely -- to give the big guys a club to beat us with. So does the anti-SLAPP law protect free speech and promote justice, or does it do the opposite? There’s a lot at stake here for Texas. Not so much with the hurdle today, which is procedural, but for future hurdles that BMJ have planned.”
So there we were in the spacious, marble and mahogany Third Court of Appeals, seated on leather-cushioned pews, oil portraits on the wall to the left; on the right, floor-to-ceiling windows looking out over the leafy grounds behind the Texas Capitol. Would the alleged libelers and scofflaws be allowed to proceed with their bullying, or would the Texas legal system would close around them, as it should, like a Venus flytrap?
Standing at the podium, flanked by his assistants, was Andy’s attorney, Brendan K. McBride: antenna up, eyes alert, picking up visual as well as auditory cues. Brendan, who established a free legal clinic for parents with children in the public special education system with a variety of disabilities, many of those on the spectrum, has an ASD child himself. By the rules of the court, he was allowed exactly twenty minutes to make his oral argument: a fifteen-minute presentation, and a five-minute rebuttal following the other side. A stoplight mounted in front of the Chief Justice signaled green to talk, yellow to conclude, and red to stop talking.
Brendan opened with a question: did the other side make an error that disqualified them from filing anti-SLAPP? He spoke quickly, his words coming out as if fired from an automatic weapon, evidently striking the target time after time. The two flanking justices sat up alert. The justice to the left, Melissa Goodwin, and the justice to the right, Scott K. Field, took notes energetically and asked questions. Clearly they’d done their homework. “Is it not implicit in the statute that …” asked Justice Goodwin. “Is it true that …” asked Justice Field. Chief Justice J. Woodfin “Woodie” Jones, center, maintained steady eye contact with Brendan and seemed to respect his knowledge of the complex technical issues around the law, nodding at his replies. Then Brendan went on the attack. “What they really wanted …” he said, “and what they took advantage of …” he added, “and what they were really trying to do …” he surmised. “If you’re clever about it,” he concluded, “It’s possible to game the system that way.”
The light flashed red; it was the BMJ lawyer’s turn. Marc Fuller has improved his persona since the hearing last summer. He spoke well. But listening to him argue the procedural issues was like niggling about whether the getaway car driver had or had not put a quarter in the parking meter. Omitted was the fact that the driver’s accomplice robbed the bank.
In his rebuttal, Brendan summarized the argument. “Either the court has jurisdiction or it does not. BMJ cannot have their cake and eat it too. They tried to do both, and now they have neither.” The light flashed red. The arguments concluded, and the lawyers from both sides all but leapt over the pews in a frenzy of hand shaking and congratulations. “Well argued,” each side told the other.
Afterward, in the parking lot, Andy summed it up. "This is a smart court,” he said. “The judges listened attentively. They asked good, well-informed questions. They will go back and pour over the briefs. If we win, BMJ will surely appeal to the Texas Supreme Court. If we lose, we'll have to make a decision about next steps. We should have an answer from the court in one to six months."
Win or lose, there are more procedural hurdles ahead. BMJ will drag it out as long as they can. Meanwhile, crouching at the door like a beast, gapes the substantive issue. Who is the fraud: Wakefield or Deer?
For more information visit The Dr. Andrew Wakefield Justice Fund.
Dan E. Burns, Ph.D., is the father of a 25-year-old son on the autism spectrum and the author of Saving Ben: A Father’s Story of Autism. Through his new dba, Appleseed Ventures, Dan empowers parents to organize communities where their adult ASD children and friends can live, work, play, and heal.