The Wakefield Appeal: Beast at the Courtroom Door
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.
I am asking all doctors to become independent and break away from big pHarma.I am asking all doctors to support independent research and work for the best interest of the children.I am asking all doctors to stand by Dr.Wakefield and help him to get reinstated and continue his valuable research.I am asking all doctors to not to sell themselves for free lunches or other freebies.Please stand up for Dr.Wakefield,please fight for our children,PLEASE STOP THIS AUTISM MADNESS.Win or loose,
Dr.Wakefield will always have our support.
Posted by: oneVoice | June 08, 2013 at 12:47 AM
Angus Files,
Loved the footage of your son, he is like mine. Giggling at the world around him and on a bad day, my son is oblivious to most things.
This is an important case for our cause. It took 50 years before the victims of Thalidomide were recognised and received their "so-called" apology. Let's hope it doesn't take that long before justice is finely served to those who kill and maim our babies.
I would like to wish Andy best of luck and thank-you for fighting for our precious ones.
Elizabeth Gillespie
Posted by: AussieMum | June 06, 2013 at 09:27 PM
Thanks Dan my son doesn't know what is going on but we still make small improvements,
Dr Wakefield and his family do know the sacrifice we all make .
Dr Wakefield has held us all to his heart .
He could walk away tomorrow without a backward glance.He the great man he is does not ,he strives to help us all further .To cure our kids etc.
He is morality through and through and cannot be bought like a commodity ...what would that have been worth if Pharma could have bought him off?.
NO HE IS NOT A COMMODITY .
Unlike the Pharma snakes all waiting to bite on the next nugget offered by PHARMA..
SHAME ON THEM
aNGUS
Posted by: IAngus Files | June 06, 2013 at 06:40 PM
Angus, great video of your son at
http://www.youtube.com/watch?v=xC1j4cka_3Q
Thanks for sharing this link.
Posted by: Dan E. Burns | June 06, 2013 at 07:17 AM
Andy Wakefield is a man of remarkable character. My admiration for him has grown continually over the years. I will be praying daily until a ruling is issued. Sooner or later, the truth will be told. Thank you Dr. Wakefield for being a true hero to me and so many others.
Posted by: Lynda Huggins | June 06, 2013 at 12:01 AM
Many of us tonight, many of us, with broken hearts because of beloved children, are with Andy Wakefield tonight. You must be tired, Andy. Rest, sleep, and tomorrow you will be there. Because, as one doctor who devoted his life to kids with autism after he insisted he treated only adults, you go on "Because I can't not." Many thanks.
Posted by: Grannyblue | June 05, 2013 at 10:34 PM
And to add to my previous post, the Lancet paper misstates the Kessick child's age at MMR as 13 months. But according to Justice Mitting's decision, "Child 2 was born on 29th July 1988. MMR vaccine was given on 8th November 1989." The "13 month" error happened because Wakefield used the age in the clinician notes. (I don't know if the mistake was original with Dr. Casson, but he put the wrong number in his discharge summary.)
Now if you were going to commit fraud as Deer alleges Wakefield did, wouldn't you have your ducks in a row? Wakefield wouldn't just copy down Casson's mistake because that wouldn't help a phony lawsuit in court. Rather, Wakefield would know the Kessick dates cold and make sure they were right in the Lancet paper. This mistake indicates to me that he was not in the business of committing fraud on a pharmaceutical company.
(Angus, I'm so, so sorry about your son.)
Posted by: Carol | June 05, 2013 at 09:18 PM
Same with us Carol ..Our son has never met Dr Wakefield.
We have not had anything whatsoever to do with Dr Wakefield..
We only knew of Dr Wakefield many years after our son had been diagnosed officially with autism.
To this date nobody in out family has had anything to do with Dr Wakefield.
BUT WE ALL KNOW OUR SON IS VACCINE DAMMAGED AFTER HIS MMR JAB NOW AGED 15 YEARS OLD WITH THEMENTAL SCHOOL AGE OF AROUND 2 YEARS ..
You Tube video 6 years ago ..such a boy!
http://www.youtube.com/watch?v=xC1j4cka_3Q
Posted by: IAngus Files | June 05, 2013 at 07:22 PM
According to Deer, Rosemary Kessick's son started banging his head months after MMR, not the two weeks indicated in the Lancet paper and, Deer claims, this lie was cooked up in a conspiracy between Wakefield and Kessick to support her lawsuit. But then, according to Deer, Kessick doesn't bother to put it in her lawsuit and apparently even forgets about the conspiracy and lets the truth slip in his interview. This must make her the worst. conspirator. ever.
But that story doesn't make much sense. And I guess that has also occurred to Deer because later he claims that Kessick didn't know which child was which in the Lancet paper. I guess means that Wakefield cooked the story up all on his own...except that Mrs. Kessick really did tell Berelowitz at the Royal Free that her son started injuring himself two weeks after MMR. D'Oh!
Support for Mrs. Kessick's story comes from a note written before she ever met Wakefield. An allergist, Dr. Warner, wrote that the boy started throwing temper tantrums at 16 months, by my calculation about two to three weeks after MMR.
Posted by: Carol | June 05, 2013 at 06:51 PM
Actually, in the video Deer calls Wakefield a "trainee gut surgeon."
Deer comports himself pretty well when he's getting those softball questions.
Posted by: Carol | June 05, 2013 at 05:46 PM
Love to hear Brian Deer on the witness stand explain to us the difference in an inflammatory bowel disorder and just run of the mill constipation and what expertise he has developed over the years to know the difference.
Posted by: Benedetta | June 05, 2013 at 04:35 PM
Just in case one doesn't have the time or stomach to watch the link that Christina attached of Brian Deer pontificating on medical journals and research, here are a couple of quotes of Deer's that demonstrate the type of witness the BMJ, et al have in their corner with Deer.
In response to a question from the host regarding peer review, Deer states at 4:35:
"medical journals, you hear about them all the time....they're just another magazine trying to sell things to people and they have to be treated in that light."
To top that off, he actually proposes that there needs to be implemented more strict oversight on research that I think may leave some pharmaceutical researchers and corporate executives a little uneasy. His answer to research fraud:
"I don't think people do learn. I think what needs to happen is there needs to be some kind of random inspection of any kind of sense whether its universities or drug companies where scientific research is going on and outside inspectors need to be able to go in without notice and inspect the data behind the work going on in there and I think that's the only thing that is going to deal with this."
Does he say these types of things intentionally to show his masters who's really running this show....
Posted by: Donna K | June 05, 2013 at 02:46 PM
One would think the MMR Brits would want to show up anywhere anytime and argue how wonderful the MMR(MoreMoney forRuperts son} vaccine really is...
They only like to "meet in there own little groups" and issue their own pathetic documents / that trash careers of those who have written over 140 scientific papers and treated hundreds of Autistic children in need.
Good luck Dr. W.
Posted by: cmo | June 05, 2013 at 01:55 PM
This is great news. Keeping my fingers crossed.
Posted by: Kristina | June 05, 2013 at 01:43 PM
Christina
Yes - typical of the the abuse and hate language that Deer is licensed to use, just as "sludge" and "human waste" are turned by him into the personal attributes of eminent scientist David Lewis just because Lewis worked for a time on such issues at the environment agency.
It seems to be part of the establishment game that it does not matter what flights of abuse he engages in, reasons of state permit it.
But I promise you they are terrified of having him in the witness box.
John
PS I should imagine he is pretty scared too!
Posted by: John Stone | June 05, 2013 at 12:46 PM
Yesterday I watched a video, a TV interview where Deer called Dr. Wakefield a "crummy little gut surgeon." It's on Tim Bolen's website--found it here today: "Brian Deer on the Strombo Show," http://www.youtube.com/user/briandeer/videos (2 yrs. ago)
res ipse loquitur.
Posted by: Christina Waldman | June 05, 2013 at 11:11 AM
I hope that Dr. Wakefield wins the appeal and the BMJ and Brian Deer (the industry attack dog) are unsuccessful. As someone who has worked for many years with children, I know we can't continue to close a blind eye to what is happening in terms of damage. Far too many kids are not doing well and this is taking a huge toll, not only emotionally but economically. One of the scientists involved in the narcolepsy H1N1 commented that it is getting difficult to report problems and scum like those involved with BMJ are responsible for that, not Dr. Wakefield.
It's funny but I recently took a first-aid course and I was listening to the insructor talk about tetanus. I thought about it and I realized that I have a specialty area, too, and a duty to report what I have seen- even if people don't like to hear it they need to know that in most classrooms I visit nowadays there is a really serious amount and scope of problems in terms of the students in the classrooms (serious allergies, ADHD, ODD, schizophrenia, learning disabilities, autism, selective mutism, seizures etc. etc.) I mentioned this reality to some male workers and they had no clue about the problem. No clue- but some of them are having grandchildren soon and they will be hearing and seeing for themselves, unfortunately. Of course this can't all be due to vaccines but the pharmaceutical industry and its beneficiaries ("Science"blogs, etc.) has made darn sure we haven't studied vaccines properly. Shame for the poor children and society.
Posted by: jen | June 05, 2013 at 10:53 AM
Hey I've had a new idea ..... instead of the study they wont do "Vaccinated versus unvaccinated" .
We should sponsor a study to look at the results of "chelated versus unchelated" .
The results of that study could be equally incriminating for the Pharma Harma Hg-enocide brigade .
Posted by: White Rose | June 05, 2013 at 09:18 AM
I do hope Dr Wakefield wins against Deer/BMJ etc. there has been to much cover up by drug companies about the harm that vaccinations can do.
Posted by: j acqui Butterworth | June 05, 2013 at 09:00 AM
Mark
She can't say that we didn't try to warn her. The point of no going back, perhaps, was when BMJ removed correspondence in 2010 questioning Deer's stated access to confidential information about families in the Wakefield Lancet paper. The letters were removed from the BMJ website "after a legal complaint" but if a couple of the letters were potentially defamatory the bulk of them certainly weren't.
http://www.ageofautism.com/2011/01/the-british-medical-journal-shows-misjudgement-bias-in-further-attack-on-andrew-wakefield.html
They even removed the mild comment of Ed Yazbak:
“I must say I am troubled that Mr Deer was able to obtain the names and family backgrounds of the original 12 study patients”
As back up to one letter I submitted confidentially the web pages in which Deer had published the names of children between 2004 and 6.
The only explanation I can think of for this is that publication of the letters compromised the legitimacy of their further operations, and they knew it.
John
Posted by: John Stone | June 05, 2013 at 08:24 AM
It's long over due John Stone as you know but yes I am forever hoping Andy has a good outcome.
Posted by: Joan Campbell | June 05, 2013 at 08:14 AM
Win or lose , the fight for justice , justice for the children , will continue regardless .
Posted by: White Rose | June 05, 2013 at 07:32 AM
Getting into bed with Deer was poor judgement, by any weird stretch of the imagination. Surviving as editor of the BMJ surely requires making better judgement calls than that.
Posted by: Mark Struthers | June 05, 2013 at 07:31 AM
This case is so important to us parents of children with ASD. We hope and pray that justice will prevail in this instance and Andy's case will be heard. We thank Andy for not laying down and taking it, but for repeatedly taking a beating and still he stands tall.
Thank you Dr Wakefield.
Tonia Gonzalez
Posted by: Tonia Gonzalez | June 05, 2013 at 06:58 AM
I just hope and wish Dr Wakefield well as it affects the whole world `s future ..
It makes you wonder what Deer lives on these days who picks up his plane bills and the affluent lifestyle he commands?
Follow the money...
Angus
Posted by: IAngus Files | June 05, 2013 at 06:24 AM
How they wriggle - once in a lifetime opportunity to get Deer and Godlee on the witness stand!
Posted by: John Stone | June 05, 2013 at 05:53 AM