Respectful Insolence

A couple of weeks ago, I commented about a frivolous, SLAPP-style subpoena directed at one of the most thorough, rational bloggers about autism out there, Kathleen Seidel by Clifford Shoemaker, the attorney for Rev. Lisa Sykes and her husband Seth Sikes, both of whom who are suing Bayer for alleged “vaccine damage” as a cause of their child’s autism. The subpoena in question, issued mere hours after Seidel published a well-researched but particularly unflattering post about Clifford Shoemaker’s activities suing vaccine manufacturers, was so obviously a fishing expedition designed to intimidate Seidel into silence that even David Kirby and Dan Olmstead, two reliable members of the mercury militia who have done arguably more recently to post propaganda claiming that vaccines cause autism than nearly anyone else, couldn’t stomach Shoemaker’s despicable action and actually condemned it.

That’s really, really bad, when even Shoemaker’s most loyal allies can’t stand what he did.

It turns out that there’s good news and bad news on the Shoemaker front. First the good news: The First Amendment team at Public Citizen has agreed to provide Seidel with legal assistance. Here’s hoping her new lawyers give Shoemaker exactly what he deserves. It may not be necessary, though, because as of Friday at least no response had been forthcoming from Shoemaker to Seidel’s motion to quash his subpoena. Maybe even Shoemaker has a tiny shred of conscience. Either that, or he doesn’t like his new Google profile, in which multiple posts critical of his legal thuggery now show up on the first page of searches for his law firm, truly a well-deserved result. Perhaps the criticism of one of his buddies in the antivaccination movement, David Kirby, gave him pause. Who knows?

And now the bad news: As Liz Ditz and others have pointed out, it turns out that Kathleen Seidel is not alone in being subject to Shoemaker’s less-than-honorable legal attention. A few days before filing his onerous SLAPP-style subpoena for Seidel, apparently Shoemaker did the same thing, and on virtually the same day that Seidel received her little love note from Shoemaker, Dr. Marie McCormick,the Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was greeted with a similarly unwelcome bit of paper at her home, portending a similarly intrusive and intimidating fishing expedition.

Why did Shoemaker subpoena Dr. McCormick? From 2001 to 2004, Dr. McCormick was the chair of the Immunization Safety Review Committee of the Institute of Medicine (IOM). This committee is charged with analyzing and reporting on data relevant to the safety of vaccines and vaccination practices. During her tenure, as Kathleen points out, this particular committee published numerous reports of its findings, many of which are now freely available on the National Academy of Sciences website. Among these reports was one from 2001, Measles-Mumps-Rubella Vaccine and Autism, in which the committee concluded that the then existing studies provided no support for an association on a population level between MMR immunization and autism or autistic spectrum conditions (a conclusion that has only become stronger with time and more studies). Another one of its reports, Vaccines and Autism, which was published in May 2004, concluded that the currently-available evidence at the time favored rejecting the hypothesis of a causal relationship of thimerosal-containing vaccines and autism. Again, this finding has stood up and become only stronger with more studies done since then.

Here’s what the subpoena demands:

  • all documents pertaining to the “setup, financing, running, [and] research” of the Immunization Safety Review Committee;
  • committee correspondence with federal funding and requesting agencies;
  • documentation of “any association (financial or otherwise)” between committee volunteers and staff, and pharmaceutical companies or “any other private persons or companies with financial interest in any topics reviewed by the… committee and staff members”;
  • all documents related to any “closed door transcript discussions” or “any discussions (open or closed door)” that preceded the issuance of final reports by the committee;
  • material pertaining to “conflicts of interest, either apparent, potential or real,” of committee volunteers and staff;
  • any documents pertaining to the manner in which the Institute of Medicine and its committees operate;
  • communications surrounding committee member Dr. Polly Sager’s assessment of the work of Dr. Thomas Burbacher;
  • documentation of supposed discrepancies between statements made to the press by committee members and staff, and the conclusions expressed in its reports;
  • communications with the U.S. Centers for Disease Control; results of committee votes; and additional transcripts of committee meetings.

The demands are quite onerous, and, as is pointed out in the motion to quash, include documents that there is no reasonable basis upon which a reasonable person could conclude that Dr. McCormick would have, given that the documents would be maintained by the National Academy of Sciences, not any single member of any committee. Moreover, even if they could justify their apparent belief that Dr. McCormick has information relevant to their case that could not be obtained any other way the plaintiffs have not shown any evidence that they have conducted their own searches of publicly available information and exhausted these resources first. In essence, they are demanding that Dr. McCormick do their homework for them. Moreover, the subpoena is argued to be premature, given that the court has not yet determined whether the action in support of which this subpoena was issued will be allowed to go forward.

Given that Dr. McCormick was the chair of a major committee that looked into claims that vaccines somehow cause autism, one might conclude on first glance that this subpoena is not as frivolous as the one issued against Kathleen Seidel. However, I would say that it’s only marginally so. This subpoena, like the one against Seidel, is clearly motivated by a conspiracy theory in which the National Academy of Science is somehow in the pockets of big pharma and hope to smear scientists who served on the panel. In the memorandum of law in support the motion to quash a third party subpoena, Dr. McCormick’s lawyer points out:

In selecting members for the Safety Committee, the Academy precluded participation by anyone with a financial interest in a vaccine manufacturer; anyone receiving research funding from a vaccine manufacturer; anyone who had served on a major vaccine advisory committee; and anyone who had given testimony on or written about vaccine safety. Further, an individual could serve on the Comittee if he or she received funding from the Centers for Disease Control (CDC) or the National Institutes of Health, provided, however, that such funding was not vaccine safety work. In addition, any funding from the CDC could not be current or recent. The individuals who were appointed to serve on the Safety Committee were determined to have met these criteria.

So much for the conflict of interest Shoemaker seems to be imagining. In reality, this subpoena is little different from the one against Seidel in that it seems designed as a fishing expedition to provide the opportunity to try to poke around in the financial workings of the Safety Committee, the National Academy of Sciences, and members of the Immunization Safety Review Committee. Moreover, it is a subpoena that is likely to fail as well, as this particular committee has been protected from such intrusions:

Plaintiffs in personal injury actions routinely serve subpoenas on the Academy and its scientists attempting to force exactly the kind of disclosure at issue here, and federal and state courts just as routinely quash those subpoenas or otherwise forbid the inquiry. An unbroken wall of authority recognizes that the Academy could not perform its important function if it were forced to reveal its internal deliberations to private litigants, and every court ever to consider a motion to quash like this one has granted relief.

Reading this and my old post on how antivaccination pseudoscience has turned increasingly threatening to scientists, it occurred to me that the antivaccination movement is becoming more and more worrisomely like the animal rights movement. No, as far as I know, it has not yet resorted to vandalism or violence, as the animal rights movement has, as the science has increasingly rejected a link between vaccines and autism, the rhetoric has become disturbingly more hysterical, and a ramping up of the rhetoric is all-too-often associated with violence; certainly threats of violence are already a fact of life for some vaccine researchers who have analyzed the data, reject a link between vaccines and autism, and are willing to say so in public. Indeed, in the wake of the Hannah Poling case, which has been twisted by antivaccinationists so as to make Hannah a poster child for the claim that vaccines, somehow, some way cause autism, certain scientists with expertise in mitochondrial disorders are only willing to set the record straight regarding the misappropriation of their science in the mercury militia’s war against vaccines in anonymity because they do not wish to attract the attention of antivaccinationists–and understandably so. Unfortunately, as Kevin Leitch points out, this leaves the field of mitochondrial diseases wide open to unopposed pseudoscience:

One of the most frustrating things about blogging the unfolding vaccine>mitochondria>autism hypothesis is that a lot of the doctors who are experts in the field of mitochondria don’t want to publicly comment. A lot of them feel quite rightly that there is a certain element who are not the most balanced of individuals and they don’t really want to expose themselves to these people. That I can definitely empathise with…Please remember that kids with mitochondrial issues are a whole new ball game. Talking their parents out of vaccinating them could very well kill them.

(Read the quotes.)

Indeed, even an interesting and potentially illuminating observation in its early stages, such as recently published evidence suggesting some sort of link between autism and mitochondrial disorders, can be appropriated by antivaccinationists to the point where scientists who previously labored in obscurity on these uncommon disorders now find themselves afraid of the sudden attention by cranks that their field has attracted, not unlike deer caught in headlights. Antivaccinationists tout this linkage, even though it’s nowhere near clear whether this is an epiphenomenon or contributing cause to autism. Worse, the small studies thus far finding that high percentages of autistic children have defects in mitochondrial function are riddled with major selection bias. These are not randomly selected autistic children; rather, they were referred for evaluation for mitochondrial dysfunction because their doctors had clinical reasons to suspect that they might have such a disorder. Moreover, there is no compelling evidence to link autism to some reaction of children with mitochondrial disorders to autism; it’s just another rebranding of autism by antivaccinationists and further evidence for the incredibly shrinking vaccine causation hypothesis.

Actions like those of Clifford Shoemaker concern me, and they should concern everybody interested in free speech, academic freedom, and freedom of inquiry. Through his subpoenas, first he has tried to silence bloggers who dig too deeply into his behavior and legal tactics with respect to suing vaccine manufacturers. Fortunately, in this case, he appears likely to have quietly admitted defeat given that he has not yet responded to Seidel’s motion to quash his subpoena. Next, he has directed his legal thuggery at one scientist who has done volunteer work serving on committees designed to monitor vaccine safety, making me wonder if there are other subpoenas out there already filed or waiting to be filed against other vaccine scientists. In the current climate of both verbal and legal intimidation directed against scientists who stand up to vaccine pseudoscience, it’s a wonder that any sane scientist would want to enter this minefield and risk drawing the attention of antivaccination ideologues, but fortunately a few do. Unfortunately, many more just try to keep their heads down and say nothing that might draw attention to them.

Here’s hoping that both Kathleen Seidel’s and Dr. McCormick’s subpoenas are quashed. Such an action would at least send a message that good science is a defense against pseudoscience.

Comments

  1. #1 Petri
    April 21, 2008

    What would a terrorist fringe for the vaccine movement look like? Burning down vaccine manufacturers? They could kill an awful lot of people with silly actions like those that ELF and ALF pull off. Of course, if they believe vaccines so harmful, maybe they could run around injecting people who support vaccination. I could deal with that, might be a good way to get my flu vaccine free each year.

  2. #2 BAllanJ
    April 21, 2008

    Anyone else feel that Shoemaker’s lack of response to the motion to quash is because he’s too busy? I figure he’s been busy shredding his filing room in case he gets subpoenaed or busy changing his or his practice’s name so he can create a new google rep, or both.
    All you bloggers should keep a copy of the two motions to quash handy in case you need them.

  3. #3 gerald spezio
    April 21, 2008

    Shoes-&-suits-Shoemaker is a licensed lawyer in Supernation where the rule of lawyers using the rule of law is sacred.

    Shoes-&-suits is using the law as his professional instrument.

    Shoes-& suits is an entrepreneur at the public trough who cheerfully milks the producing public as the “raw material” under the masquerade of due process.

    This is routine practice of law and happens every day all over our lawyer filled land.

    Lawyers in fancy shoes & suits “save us” from injustice.

    This is all taking place in a public courtroom at public expense with a publicly paid judge.

    The pretentious black robed judge is another lawyer & member of the closed shop “professional” monopoly.

    The way it posta be, boys & girls.

  4. #4 Calli Arcale
    April 21, 2008

    Reading this and my old post on how antivaccination pseudoscience has turned increasingly threatening to scientists, it occurred to me that the antivaccination movement is becoming more and more worrisomely like the animal rights movement.

    Y’know, it’s funny, but as I read this post that was exactly what I was thinking. There are eerie similarities. An anti-establishment bent, the support of prominent Hollywood celebrities, conspiracy theories, and the tendency to harass, intimidate, and otherwise bully the opposition. The methods are different; the ALF fights with illegal methods, whereas the anti-vaccination crowd use legal methods. In fact, they use the law itself. We are probably fortunate that they are able to use the law as a weapon; they don’t feel they need to resort to violence as long as they have this option.

    *shakes head* I really fear for the future of humanity sometimes.

  5. #5 gerald spezio
    April 21, 2008

    As a heuristic tool, I define Supernation as a culture where everything is for sale.

    By definition, the law is for sale.

    Imagine being a member of the priestly professional cult where only you & your fellow anointed priests can exploit the law as a weapon to enrich yourself at the expense of the bewildered underlings whose toil you can milk with impunity.

    Whether you like it or not, there is only one law scam in town.

    “Let’s have more lawsuits and get everybody with anything worth stealing into “our” sacred courthouse,” said Shoes-&-suits!

  6. #6 The Integral
    April 21, 2008

    Thanks for posting this Orac……..

    I wonder who’s going to be next……any predictions?

    TI of athenivanidx

  7. #7 gerald spezio
    April 21, 2008

    After a few easy years practicing personal injury law two scumbag lawyers took their millions along with a plentiful supply of cocaine, and bought a giant thoroughbred horse farm.

    They promptly installed a large sign over the horse farm’s entrance – DUE PROCESS.

    Lawyer/judges often visit the farm to discuss the law, professionalism, & the benefits.

    The law is sweet, and it is most sweet for its guffawing and snorting priestly practitioners.

  8. #8 AtheistAcolyte
    April 21, 2008

    I fear for a world…
    … where lawyers like Clifford Shoemaker make hundreds of thousands of dollars a year prosecuting failing cases.
    … where bloggers like Kathleen Seidel are targeted for pointing out the public record.
    … where people like gerald spezio are allowed near computers.

  9. #9 blf
    April 21, 2008

    As I’m sure you are aware, Shoemaker claims (emboldening added):

    The evidence is now overwhelming that mercury injected into pregnant women and small infants has caused a huge epidemic of autism in this county.

    It is incredible that their [sic] are warnings telling pregnant women not to each fish for fear of mercury exposure, and yet our government is suggesting that pregnant women have mercury injected directly into their bodies. Amazing! Perhaps they just don’t want the rates of autism to fall too sharply.

    Sigh… and it goes on and on like that. A classic conspiracy theory with paranoid delusions and/or denialism, et al.

    The first emboldened claim is (scientifically/medically) invalid. Whilst Shoemaker is entitled to his opinions and to expressing them, isn’t touting for business (which is what he is doing here) using fraudulent claims grounds for being de-barred or something?

  10. #10 Stinky Wizzleteats
    April 21, 2008

    What would a terrorist fringe for the vaccine movement look like? Burning down vaccine manufacturers?

    Poisoning vaccines, obviously. After all, that would prove vaccines are dangerous, right?

    Oh, and AtheistAcolyte… you should check out the killfile script for Greasemonkey. It tends to make comments a lot more readable. Gerald spam trolls, Gerald goes in killfile, all is right with the thread.

  11. #11 gerald spezio
    April 21, 2008

    blf, “Let’s have a lawsuit” has absolutely nothing to do with truth or falsehood.

    Lawyers were busy framing lucrative controversies for centuries – long before Matt Nisbet discovered framing as a career.

    Lawsuit has everything to do with framing the debate, “due process,” and motions to the honorable court, etc.

    As a result, lawyers get the money that is due them for their framing skills, impeccable suits & law school training in adversarial masquerade.

    Delivering plentiful doses of woo in print or before the honorable court generates due process and the fees that nourish the professional scam.

    Even Benjamin Franklin said: “Tis the fee that generates the lawyer’s pretense.”

    Lawyers’ fees are confidential, too- it’s the LAW!

    Take away the lawyer’s absolute right to accuse & blather about any kind of woo; and poof goes the whole legal scam.

    No way that the lawyers & lawyer/judges of the Lawyers’ Republic are going to lower themselves into doing some productive work.

    These yuppie boys & girls have legal training, licenses, & priestly skills denied all other mortals.

    Lawyers need to practice their profession, and those of us who have any assets at all are the only source of raw material.

  12. #12 SLC
    April 21, 2008

    I think that some of the commenters are overlooking the possibility that Mr. Shoemaker has taken the case on a contingency basis. If that’s the case and he loses, he doesn’t get buck 1. In fact, he will be out a considerable sum of money for expert witnesses, among other items, if the case goes to trial.

  13. #13 blf
    April 21, 2008

    Has anyone got the foggiest idea what spezio is blathering on about?

    I gather he doesn’t like lawyers–yawn–and may be complaining about their dominance of the law-making system (I think it’s the case most legislators are(? were?), by profession, lawyers), but beyond that I’m quite lost. (I presume he’s also just talking about the USA, since, to the extent I can understand his ramblings, some of his bizarre claims don’t apply to other democratic legal systems that I am aware of; and he hasn’t mentioned any of the abuses which occur in non-democratic legal systems.)

    I suspect I’m feed the troll here, apologies…

  14. #14 gerald spezio
    April 21, 2008

    Yessir, there is an overwhelming majority of lawyer/legislators in the US political system?

    For specifics, the US House of Representatives is composed of approximately 45% lawyers – more than willing to represent the legal needs of all deserving clients for money.

    The US Senate is composed of approximately 62% lawyers on the take.

    Almost every State legislature in Supernation is composed of at least 50% lawyers.

    Last time I checked there were a total of three scientists in the US House & Senate.

    The above stats help to explain why the US legal scam is the ONLY self-regulating monopoly in Supernation.

    Only lawyers can regulate or even consider the outright lying & blatant fraud committed by other lawyers.

    It’s the LAW, and laughing lawyers explain that you would have top be a lawyer to understand it all.

  15. #15 gerald spezio
    April 21, 2008

    Orac opines; “Here’s hoping her new lawyers give Shoemaker exactly what he deserves.”

    There is a good chance that all the shadow boxing lawyers may do a friendly round of golf together, and discuss investment opportunities over cocktails at the country club.

    No fight- no fees.

  16. #16 Viscount
    April 21, 2008

    Good news – as of half an hour ago, the Seidel subpoena has been quashed, and Shoemaker will have to justify it to avoid censure:

    ENDORSED ORDER granting MOTION to Quash Subpoena.

    Text of Order: “Granted. Attorney Clifford Shoemaker is ordered to show cause within 10 days why he should not be sanctioned under Fed R Civ P 11 – see Fed R Civ P 45(a)(2)(B) which requires that a deposition subpoena be issued from the court in which the deposition is to occur and Fed R Civ P 45 (c)(1) commanding counsel to avoid burdensome subpoenas. A failure to appear will result in notification of Mr Shoemaker’s conduct to the Presiding Judge in the Eastern District of Virginia.”

    http://neurodiversity.com/weblog/article/152/

  17. #17 isles
    April 21, 2008

    I’m just so delighted about the quashing. Good sense still prevails in some quarters!

  18. #18 T. Bruce McNeely
    April 21, 2008

    Now that the subpoena has been quashed, can anyone with more knowledge of the legal system speculate as to what Shoemaker was hoping to achieve with this move?
    Besides harassment and intimidation, that is?

  19. #19 isles
    April 21, 2008

    Oh, Bruce, didn’t you know? Kathleen was the key to unraveling the entire government-pharma-Muslim-Illuminati conspiracy!

  20. #20 Ivan
    April 21, 2008

    HOORAY!!!!!!!!!!!!

    Praise God for good sense. Or, for those who aren’t religious, thankfully good sense prevailed.

    Thanks for the news, Viscount, and thanks to you, Orac, for your part in getting the word out, and to all your other readers as well………(except John Best, who wanted to see Kathleen go down in shame, I say to you this day, HA!)

    Ivan of athenivanidx

  21. #21 Darby
    April 22, 2008

    Devil’s advocacy here – if you legitimately thought that there was a Big Government – Big Business conspiracy (and really, who doesn’t suspect some form of this somewhere?), isn’t this the type of documents you might expect to “catch” evidence from? If this was a lawyer with a suit about misappropriation of funds for the Iraq war, we wouldn’t think twice about a list like this. The reason we don’t react the same way here is that we know that there’s no there there, no conspiracy to find, but the nutty lawyer maybe doesn’t.

  22. #22 John Best
    April 22, 2008

    Both Seidel and McCormack are liars. They have both misled the general public about autism.

    Shoemaker will have no trouble at all avoiding any sanctions.

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