Respectful Insolence

After yesterday’s post about how anti-vaccine grande dame Barbara Loe Fisher is suing Dr. Paul Offit, almost certainly in order to harass and intimidate him into silence, there was something that still bugs me, and that’s the issue of jurisdiction. The defendants live in three different states: Paul Offit in Pennsylvania, Amy Wallace in California, and Condé Nast in New York. For instance, get a load of this tortuous justification for suing in Virginia, straight from Loe Fisher’s complaint:

8. This Court has personal jurisdiction over Defendants under Va. Code § 8.01- 328.1(A)(4) because they have caused tortious injury to the Plaintiffin Virginia, engage in regular business and a persistent course ofconduct in this Commonwealth, and derive substantial revenue from goods used or consumed or services rendered in Virginia.

a. Defendant Nast circulates and derives substantial profits from numerous magazines throughout the United States and in the state of Virginia, including Wired Magazine.

b. Defendant Wallace worked as an agent for Nast while writing the offending article, An Epidemic of Fear: One man’s battle against the anti-vaccine movement, published in the November 2009 issue of Wired Magazine. While researching the article Wallace conducted ongoing communications with the Plaintiff, a Virginia citizen, wherein Wallace interviewed the Plaintiff by phone and email for the purpose of writing the article for Wired Magazine. Wallace knew the article would be published and distributed worldwide and would have substantial effects on the Plaintiff in Virginia.

c. Defendant Offit is a physician, researcher, vaccine inventor, and mandatory vaccination advocate.He is employed by the Children’s Hospital of Philadelphia as a Professor and Chief of Infectious Diseases in the Department of Pediatrics, for the University of Pennsylvania School of Medicine. He conducts business in, has professional ties to and has familial ties in the Commonwealth ofVirginia including, but not limited to, the following. Offit is the co-inventor ofthe RotaTeq® rotavirus vaccine marketed by Merck Sharp & Dohme Corporation 1 Attached as Exhibit A. (“Merck”) and administered to Virginia citizens daily. Offit has written numerous books and articles on vaccines that have been promoted to and purchased and read by Virginia citizens, deriving revenue and profit from those sales. Offit is a prominent member of the Pediatric Infectious Disease Society (PIDS) located in Arlington,VA. In 2008 he was given the Stanley A. Plotkin Award by PIDS for Outstanding Achievement in vaccines. In 2007 he spoke at the 9th Vaccine Update Conference, “Strategies for Effective Risk Communication,” in Norfolk, VA. Offit has appeared in articles in Virginia news publications in which hewas interviewed by staff reporters. Offit has spoken atvaccine conferences in Virginia on several occasions and interacts with and has interacted with businesses, business professionals, colleagues, and individuals resident in Virginia since at least1998. Finally,through their professional connections Offit knows that Fisher is a resident of Virginia and knows that her business, NVIC, is located in Virginia. When he stated “she lies” for attribution in the article by Defendant Wallace for Wired Magazine he knew or reasonably should have known that this internationally distributed magazine would be available for purchase throughout retail establishments in Virginia and would be mailed to subscribers in Virginia.

Interesting. However, I think there’s one reason Barbara Loe Fisher’s lawyers went to such lengths to have the suit filed in Virginia, rather than one of the states in which the defendants reside. I also suspect it’s more than just harassing Dr. Offit as well.

Ask yourself: What do Pennsylvania, New York, and California have in common that Virginia does not? It’s a simple question, and an obvious one. Then it came to me; so I consulted Wikipedia because the answer to whether I might be right is just the sort of thing that Wikipedia is actually good for. I looked up strategic lawsuit against public participation (SLAPP). This is a form of lawsuit designed to suppress participation in public debate, which strikes me as exactly what Loe Fisher’s lawsuit is. I know that California has a famous anti-SLAPP statute. That is almost certainly why Barbara Loe Fisher didn’t file her lawsuit in California, the distance aside. More importantly, I noticed this passage:

At least 25 other states and one territory have also enacted statutory protections against SLAPPs. These are Arkansas, Arizona, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, and Washington. In Colorado and West Virginia, the courts have adopted protections against SLAPPs. These laws vary dramatically in scope and level of protection, and the remaining states lack protections.

Notice what state is missing from that list? That’s right. Virginia has no anti-SLAPP law.

Now, I’m no lawyer (as I’ve pointed out before). I could be totally off base here (which is why I rely on readers with the relevant expertise to confirm my suspicion or set me straight), but it sure looks as though avoiding anti-SLAPP laws could have been part of the motivation for the choice of venue. It’s also possible that Virginia has more plaintiff-friendly libel laws. For one thing, it appears to allow “defamation per se,” which includes:

When the defamatory statement involves defamatory words that (1) impute commission of a criminal offense involving moral turpitude, (2) impute infection with some contagious disease, (3) impute unfitness to perform the duties of an office or employment, or want of integrity in the discharge of such duties, or (4) prejudice a person in his profession or trade, you do not have to prove damages as they are presumed, otherwise you must prove how the statement damaged you.

Clearly, Barbara Loe Fisher is going for #3. Let’s look at the complaint again:

If defendants are correct, Plaintiff Fisher is not a person to be believed and because her stock and trade is information and opinion derived from it, she has no business worthy of acceptance and use, honesty being the foundation of every such reliance. The statement impugns her reputation for truthfulness and deters professionals and others who must depend on accurate and truthful information from associating or dealing with her. By falsely labeling PlaintiffFisher a liar, the Defendants have made PlaintiffFisher appear odious, infamous, and ridiculous. By so doing, Defendants have imposed a false credibilitybarrierbetween PlaintiffFisher and sources of funding for the small, non-profit consumer advocacy organization she founded and leads, of respected business relationships with government and professional agencies, and with the media, all necessary to continue successfully in her profession.

Most states recognize defamation per se to some degree or another; so my guess is that the lack of an anti-SLAPP statute in Virginia plus the desire to inconvenience Dr. Offit. Whatever the true motivation, Loe Fisher’s action appears to represent a disturbing escalation of legal intimidation tactics by the anti-vaccine fringe.

Any lawyers out there?

Comments

  1. #1 Screechy Monkey
    January 5, 2010

    I think it may explain not suing in California, but New York and Pennsylvania’s anti-slapp laws appear to be inapplicable anyway. Those states (like many others) appear to limit the definition of a SLAPP suit to one that arises out of some government application, i.e. the stereotypical “developer starts suing everyone who opposed their permit application” situation. California has an unusually broad statute that potentially reaches any speech on an issue of public concern.

  2. #2 gwen
    January 5, 2010

    As a long practicing pediatric/neonatal RN, Drs Offit and Wallace are my heroes, fighting valiantly against the purveyors of misinformation and lies. I have given copies of Dr Offit’s book out to ‘true believers’ in an attempt to educate them. I hope they do not roll over and pay. It will set the truth back years. Hopefully the Virgina courts will throw Fisher out on her ear, and charge her for the pleasure.

  3. #3 Todd W.
    January 5, 2010

    In defense against her suit, then, it would seem that Offit, Wallace and Conde Nast would only need to show that Loe Fisher has lied on at least one (maybe two) occasions. As I pointed out in the other thread, there are a number of types of lies, of which I pointed out one possibility from a quick look at NVIC.

    Can’t wait for the discovery phase.

  4. #4 DT35
    January 5, 2010

    A plaintiff’s attorney engaged in forum-shopping will always consider the home-field advantage. He hopes that a Virginia judge and Virginia jurors will give the benefit of any doubt to homegirl Barbara, rather than to those nasty carpetbaggers who are bad-mouthing her. I suspect this is at least as significant a factor as SLAPP legislation.

  5. #5 rob
    January 5, 2010

    well, to be fair, Dr. Offit wasn’t quoted saying the she is a liar. he was quoted as saying “She lies.”

    merriam webster gives this intransitive verb definition:

    “to be or to stay at rest in a horizontal position : be prostrate”

    perhaps she sleeps hanging upside down in a cave and took offense to the implication that she sleeps in a bed?

    also, in the tortuous justification she left out that Dr Offit’s best friend’s neighbor’s kid once borrowed a comic book from a school mate whose dog bit a kid who can point to virginia on a map.

  6. #6 Scott
    January 5, 2010

    While I don’t doubt that such things were considered by the lawyers (that’s their job, isn’t it?), I think you’re overreacting. Let’s suppose that there were NO jurisdiction shopping going on at all. Where would be the logical place to file suit?

    Virginia, that’s where. Fisher lives there, so it’s perfectly reasonable for her to file suit where it’s most convenient for her. She does have to justify why the Virginia courts have jurisdiction, naturally, but it doesn’t seem at all convoluted to me.

    So while it’s quite convenient that Virginia doesn’t have a SLAPP law, what would be the alternative? Deliberately bringing suit in a jurisdiction that’s less convenient personally AND legally?

    For all intents and purposes, you’re criticizing Fisher for not specifically going out of her way to choose a jurisdiction for the benefit of the defendants. That’s just silly.

    It seems to me that the plaintiff’s home state is the completely natural default choice of venue.

  7. #7 Kwombles
    January 5, 2010

    The phrasing “her business, NVIC, is located in Virginia” strikes me as a bit odd. Since when are non-profits considerd businesses? NVIC’s webpage has this: “The National Vaccine Information Center (NVIC) is a national, non-profit educational organization founded in 1982.”

    If she sees it as a business instead of a non-profit, then it makes me wonder how much SHE profits off of her non-profit. How much does she get paid? Hmmmm.

  8. #8 Rene Najera
    January 5, 2010

    I wonder when she, and the rest, are going to really go to trial with any of these things… The discovery would be amazing. I’d like for her to be grilled on the stand by a lawyer.

  9. #9 Hanspeter
    January 5, 2010

    kwombles: non-profit orgs can businesses and can even have operating profits (ie income > expenses). That profit just can’t go out to pay for stock dividends, or the like, but must stay in-house for organizational use. In this case, calling NVIC a business is just another way of saying “her place of employment.”

  10. #10 Chris
    January 5, 2010

    Kwombles:

    If she sees it as a business instead of a non-profit, then it makes me wonder how much SHE profits off of her non-profit. How much does she get paid? Hmmmm.

    Not much:
    http://www.casewatch.org/990/nvic_2007.pdf

  11. #11 Joe
    January 5, 2010

    To clarify a bit:

    Filing suit in your home state is a common practice, which is apparently what she did. But given how weak the personal jurisdiction argument is, I don’t doubt that the lack of a SLAPP statute was a big factor.

    The part of the complaint Orac quoted deals with the “International Shoe” doctrine, which basically says a state court can’t take jurisdiction over a lawsuit against someone unless they have a minimum level of contacts with the state. My guess is that Conde Nast is sufficient, but Wallace and Offit – I don’t think this would survive a motion to dismiss for lack of personal jurisdiction.

    Which would probably force them to refile in a SLAPP state.

    I think defamation per se is unlikely to be worth anything in this case. All it does is relieve them from one element of libel: proving that “she lies” is a defamatory statement. It would be dangerous if it could still be used in place proving damages, but it can’t be anymore.

  12. #12 Rene
    January 5, 2010

    While I don’t doubt that such things were considered by the lawyers (that’s their job, isn’t it?), I think you’re overreacting. Let’s suppose that there were NO jurisdiction shopping going on at all. Where would be the logical place to file suit?

    Scott, the question is probably State versus Federal Court. The Federal Court should have jurisdiction on a case between citizens of different States.

  13. #13 Camsron
    January 5, 2010

    Re jurisdiction shopping: the normal place to file is in one’s own state. Ms. Fisher’s complaint includes the magic words “complete diversity” which indicates the test for jurisdiction in federal court (as Rene said). The “per se” libel choice is a bit odd, as per se libel usually stems from criticism of a person’s job performance or appointment abilities (were I to falsely criticize a surgeon for poor surgical skills, that could be per se libel; but criticism of Orac for his blogging skills would not be). And you all might find the discussion of New York Times Co v. Sullivan, 376 U.S. 254 (1964) interesting. See wikipedia at http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan Ms. Fisher self-identifies in her complaint as a public figure, so her chances of prevailing in a defamation action are made even slimmer.

  14. #14 Kwombles
    January 5, 2010

    @Chris and Hanspeter,

    Thank you. :-) Chris, you saved me lots of time looking; I was digging for the information when I refreshed the page here!

    It’s rather encouraging to see the relatively low amount of donations they brought in. It’s interesting to see that Fisher made 41,000 for 2007, 14% of their donations. It may not be much compared to Autism Speaks payouts, but it still gives her a middle class living, something many people out there would be glad to have. Interesting that the VP got 25K for 10 hours of work a week.

  15. #15 Comrade PhysioProf
    January 5, 2010

    The Eastern District of Virginia is known as the “rocket docket”, because its judges adhere quite strictly to discovery time limits and move cases along substantially more quickly than other District Courts across the nation. This is another very plausible reason why a plaintiff might try to establish jurisdiction there.

  16. #16 Orac
    January 5, 2010

    Well that’s an interesting observation.

    If there’s one thing Barbara Loe Fisher most definitely does not want too much of in this because it could only hurt her and risk revealing things about the NVIC that she would not want revealed, it’s discovery. Indeed, in the case where another anti-vaxer, J.B. Handley, sued Offit, I suspect one reason the case never went to court and was settled within about 9 months is because Handley knew it would be a bad idea to subject himself to discovery.

    On the other hand, this also would work in Offit’s favor because he couldn’t be tortured endlessly by the plaintiff’s attorneys with frivolous and “fishing expedition” discovery requests.

  17. #17 LAB
    January 5, 2010

    Barbara Loe Fisher should be ashamed of herself.

  18. #18 Comrade PhysioProf
    January 5, 2010

    The more important consideration isn’t that this would limit the amount or nature of discovery that ultimately occurs, but rather that the greater speed with which things moves provides a tactical advantage to the plaintiff as it puts more pressure sooner on the defendant to have to start dealing with shit, rather than being able to put things off. Since the plaintiff is seeking to overturn the status quo while the defendant seeks to preserve it, speeding up the process tactically favors the plaintiff.

  19. #19 Dan Weber
    January 5, 2010

    The Federal Court should have jurisdiction on a case between citizens of different States.

    You can use Federal Court for that, but there is no requirement. The Defendants can try to have it moved there if they wish, but they may need to show why Virginia courts wouldn’t be fair.

    Really, if Fisher didn’t file in her home state, then it would be time to ask questions. You always get homefield advantage when you can.

    IANAL.

  20. #20 david
    January 5, 2010

    There are always lawyers out there. First, let me say, in a scientific way, I don’t know — because I don’t understand what the questions are, and that’s because we are thinking in different ways, and about different things.

    Personal jurisdiction refers first to service of process, which if successful is done through the secretaries of state of the two states. Service may tend to indicate that if there is a judgment it can be enforced. But other facts may either contradict or reinforce that indication, and those facts may be presented and interpreted by the lawyers and judges. The law jargon for torts (of which libel is one) also speaks to “proper venue” and this varies by state.

    Dismissal for lack of jurisdiction or proper venue would not on the face of it be “with prejudice,” so the suit could be brought again in another state. Also, the three suits do not necessarily have to hang together; they can be separated, by states, or by a long shot within Virgina.

    Most interesting would be the available defenses to the suit. In most states a defendant’s showing that the statement was true is an absolute defense. That the defendant thought it was true only goes in mitigation of damages.

    So the chances are good that I have given an answer to a question you did not ask. So while I am doing that, for the one or two who have not heard:

    The “father” of American libel law is our own James Fenimore Cooper, one of our most litigious writers, who was slandered, libeled, many times.

    American artist James Whistler [you remember his mother, perhaps the Peacock room] sued the English art critic James Ruskin over a review. [In England unlike the US, to find that a statement is true just makes it that much worse.] Whistler won the lawsuit. Unfortunately the jury’s damage award was one farthing. Whistler had to sell his English house to pay his legal bills and had to return to the US. Ruskin was so traumatized by the ordeal that he gave up art criticism and was heard from little thereafter, but he had already written a great deal indeed.

    To try again to answer : you do have a possible reason but most likely closer to true is the reply given to you in the comment about the advantages of home, which suspects that the defendants will be served what we call “home cooking.” Maybe, but the home advantages can be many even when all is fair, such as understanding the judge and jurors for example.

    And finally : to quote Mr. Lloyd Paul Stryker: “The law is what is boldly and confidently maintained.” Note that this is not like what we expect of science, and especially unlike the descriptive sciences. Nearer medicine, what the law is, is an art.

    nuff said. thanks for asking

  21. #21 Joe
    January 5, 2010

    The federal court had concurrent jurisdiction with the state court(assuming that she can somehow prove that her reputation has been damaged to the tune of $75,000). In other words, either party can opt for federal court. BLF did so.

    But generally, the law wouldn’t differ between the forums. In fact, stereotypically, if I were BLF, I would want a state judge, not a federal judge, who are generally much more skeptical people.

  22. #22 Liz Ditz
    January 5, 2010

    Salaried compensation for Fisher in 2008: $41,500. (I forgot that casewatch posts IRS 990s — went straight to guidestar.)

    They raised $293K in 2007 which was down from previous years.

  23. #23 Tsu Dho Nimh
    January 5, 2010

    It’s normal to sue in the state you live in. Fisher is a resident of Virginia … and the convoluted venue arguments are normal lawyer-ese.

  24. #24 Anne
    January 5, 2010

    I also think Fisher sued in Virginia because she lives there, and it’s a bonus that the state has no anti-SLAPP law. She did bring her case in federal court – the one that is located in Alexandria, Virginia.

    Federal courts have subject matter jurisdiction over cases between citizens of different states – it’s called diversity jurisdiction. In these cases, state substantive law applies, even though the case is in federal court and federal procedural rules apply.

    Even though you have subject matter jurisdiction through diversity of citizenship, you also have to have personal jurisdiction over the defendants. In federal court, personal jurisdiction over out-of-state defendants is equal to the “long arm” jurisdiction of the state where the federal court is located. That means that the defendants have to have sufficient contacts (“minimum contacts”) with the forum state to justify haling them into court there.

    There’s a famous US Supreme Court case, Calder v. Jones, that established an “effects test” for minimum contacts – there can be personal jurisdiction where a defendant directs his actions at a plaintiff in the forum state and causes the plaintiff harm there. Calder was a libel case by Shirley Jones against the National Enquirer, the writer of the allegedly defamatory article, and the editor. She sued them in California, her home state. The writer and the editor, who lived in Florida, contested personal jurisdiction and lost – because they knew that Shirley Jones lived in California and would be harmed there. Fisher is making “effects test” allegations against Wallace and Offit, as well as alleging other types of contacts for Offit and Conde Nast.

    I think that Fisher has a good chance of establishing personal jurisdiction over the defendans. She’ll just have to hope that the judge isn’t an agent of the Illuminati!

  25. #25 DLC
    January 5, 2010

    Defamation is highly subjective.
    Were I Conde Nast and Dr Offit, I would reply as soon as possible with a motion to dismiss. Fischer promotes non-science and non-truth. It would be interesting to see how she reacts to a motion to dismiss.
    Oh, and If a lawyer wrote that quoted text I’ll be surprised.
    It’s a bit sloppy, both in writing and format.

  26. #26 Peter Bowditch
    January 5, 2010

    Hmmm. Fisher gets $41,5000 a year from NVIC, but she is claiming actual loss of $1,000,000 in the suit. This amount must have been accrued in the time between October 19, when the offending article was published, and December 23 when the suit was filed. This would mean that her income is about $6,000,000 per year. Really? As someone said: “She lies”.

  27. #27 KristinMH
    January 5, 2010

    Peter, I’m sure she takes in more than 40K/year in speaking fees. Maybe that accounts for the missing $5,960,000.

  28. #28 Joe
    January 5, 2010

    Peter,

    Don’t forget that she can claim reduction in her future earnings.

  29. #29 cynic 2
    January 5, 2010

    why not let Dr. PrOffit worry about this?

  30. #30 Joe
    January 5, 2010

    Anne,

    Good show on the research, but I don’t think Calder is that broad. The court didn’t hold that jurisdiction was proper because they knew she was in California and would be harmed there, it found that jurisdiction was proper because California was the focal point of the story and the locus of substantially all the harm.

    Most of the factors the court emphasised aren’t present here. California was the Enquirer’s #1 state by far, it was the focal point of all the research for the story, and the libel was that an activity in California (alcoholism) was preventing her from doing her California-based job.

    I’ll bet that Virginia isn’t Wired’s #1 distribution state, most of the article related to Offit, I doubt more than a handful of sources were Virginia-based, and there’s no evidence that Offit claimed she lied in Virginia or that the statement bears more than a tenuous connection to her employment in Virginia. (Remember, in Calder, the libel was that she drank so heavily that she couldn’t work. Here, there is no direct link to her employment in Virginia, just the tenuous argument that, in effect, any defamatory statement will make people think less of me and reduce my job prospects.)

  31. #31 Chris
    January 5, 2010

    cynic2:

    why not let Dr. PrOffit worry about this?

    How is your reading comprehension? Is the lawsuit against one person?

  32. #32 Johnny
    January 5, 2010

    It’s from the wrong state, but maybe a letter like this would put an end to the silly lawsuit….

    https://docs.google.com/fileview?id=0B77l4lqiR0CuZDEwZDczMzMtNzAwZC00Mjc2LThiMjgtNjdjMDg1YzVmNTkz&hl=en

    “…from which (your client) will emerge covered in a thick and sticky coating of humiliation….”

  33. #33 ER Doc
    January 6, 2010

    @ 32: That’s an outstanding letter! Scholarly, polite, snarky, and threatening, all at once!

  34. #34 a-non
    January 6, 2010

    Peter,

    The $1 million isn’t real. It’s all part of BLF’s plot to get attention for her floundering anti-vax organization. Generation Rescue has clearly cut into her business.

  35. #35 Jud
    January 6, 2010

    “But generally, the law wouldn’t differ between the forums. In fact, stereotypically, if I were BLF, I would want a state judge, not a federal judge, who are generally much more skeptical people.”

    The substantive law wouldn’t differ, and I agree federal judges are less happy with BS, but my guess is that BLF went the federal route because it is likely to be more expensive to defendants and thus make defendants think a bit more about settlement short of trial.

    Anne @ #24 and Joe @ #30 give the two sides of the personal jurisdiction argument. I don’t know how that will turn out, but I do think showing personal jurisdiction isn’t generally treated by the courts as a very high bar to reach these days.

    I’m curious about one thing – is the following an accurate quote from the complaint?

    If defendants are correct, Plaintiff Fisher is not a person to be believed and because her stock and trade is information and opinion derived from it….

    This and other parts of the complaint are full of the type of erroneous phrasing (“stock and trade” rather than “stock in trade”) and far-out arguments (e.g., the speculative damages arguments) often used by bad lawyers trying to sound smart. If I were a lawyer for a defendant, I’d be happy to read this sort of thing.

  36. #36 Wrysmile
    January 6, 2010

    This was part of a comment from annab on Neurologica Blog yesterday which might be another reason why Virgina was chosen:

    As in most jurisdictions, Fisher will have to prove that the defendants made a false statement of fact about her. Because she is a public figure, she’ll also have to prove that, in making that false statement of fact, the defendants acted with “actual malice,” which means that they either knew that the statement was false, or made it with reckless disregard for the falsity of the statement.

    A plaintiff also has to prove harm to her reputation from the false statement of fact. It appears that Virginia is a jurisdiction that still has the doctrine of “defamation per se,” meaning that certain false statements are presumed to cause harm to the plaintiff. This is an old common-law doctrine that used to encompass such things as false claims that a woman was “unchaste” or that the plaintiff has a “loathesome disease.” In Virginia today, defamation per se includes a false statement of unfitness to perform the duties of an office or paid employment. Fisher is alleging defamation per se in her complaint.

  37. #37 Igor
    January 6, 2010

    All states have a common law doctrine of defamation per se unless specifically abolished by a case decision or statute. That’s what common law means, that in the absence of a specific legislative enactment past court decision and general legal principles will prevail.

  38. #38 SoonerHumanist
    January 6, 2010

    You know, having now gone back and read most of the article (which I missed the first time around due to being in Iraq), particularly the passage which caused this wingnut to sue, it occurs to me that she is actually the one being slanderous and libelous. What Offit is talking about in context when he says “She lies” is her maligning his character and motivation by accusing him of being an evil shill of the pharmaceutical industry. If I was Offit, I’d countersue with my own defamation of character suit and donate all the money I won to autism research–ACTUAL research, not the snake oil she is selling.

  39. #39 isles
    January 6, 2010

    soonerhumanist – that’s the irony in all of this, isn’t it? That BLF is a prodigious liar and indirect harmer of children, yet she goes about accusing others of the same.

  40. #40 FreeSpeaker
    January 6, 2010

    SoonerHumanist, good point, and thanks for your service. Glad to have you back home.

  41. #41 BlueMaxx
    January 6, 2010

    Consider perhaps that one of the apparent, if not overtly stated, goals of Ms. Fisher/ NVIC is to annoy and harass Dr Offit, Ms Wallace, and perhaps ANYONE who speaks pro health, pro fact, pro science in regard to Vaccines. Filing in Virginia is in HER back yard, and is that much more inconvenient for Dr Offit, Ms Wallace, and the Conde Nast folks. Presume that at some point in the harass and attack portion of the lawsuit, all three ‘defendants’ will be subpoenaed and expected to appear in the court IN VIRGINIA. Ms. Fisher and the NVIC will have effectively taken Dr. Offit away from his work and patients, and similarly taken Ms. Wallace away from her work related activities as well.

    There is, I hope, at least the slim glimmer of hope that this can be recognized as a frivolous and vindictive abuse of the courts, and be summarily dismissed. But I doubt it.

  42. #42 Anne
    January 6, 2010

    Jud, personal jurisdiction is an imprecise inquiry, and so will be the issue of whether “she lies,” in the context of this article, would be construed by a reasonable reader as a statement of fact, or as negative opinion/rhetorical hyperbole. It’ll be interesting to see how it shakes out.

    isles, indeed, it is ironic.

  43. #43 D. C. Sessions
    January 6, 2010

    Considering that we seem to have attracted at least a few of the legally-knowledgeable, I have a few points of curiosity:

    1) It appears that both Dr. Offit and Ms. Fisher are qualified public figures — this doesn’t seem to be in dispute.

    2) From that, the standard is (IIUC) “reckless disregard for the truth”

    3) Ms. Fisher claimed that Dr. Offit was acting as a “Pharma Shill” (as the accusation is summarized)

    4) When asked about this, Dr. Offit defended himself by the statement that “She lies.”

    5) The plaintiff has introduced the test of defamation per se.

    6) Ms. Fisher has the burden of establishing that “she lies” is in fact defamation per se in that it’s not obvious that a reputation for unfounded attacks on vaccination advocates in any way disqualifies her for her $40k/yr job nor how that would amount to 25 years worth of earnings.

    7) In contrast, Dr. Offit would have the burden of establishing that being a “Pharma shill” would materially disqualify him in his work as a vaccine expert and infectious disease specialist. The magnitude of money at stake in his case is patently larger as well.

    Questions:

    * How difficult would it be to prove a “reckless disregard for the truth” on the part of Ms. Fisher with regard to the Pharma Shill accusation? (Assuming that she cannot establish that Dr. Offit is, in fact, a “Pharma Shill.”)

    * How difficult would it be to prove a “reckless disregard for the truth” on Dr. Offit’s part? Is it sufficient to say that since he could not know her state of mind, he could not know that she was “lying” even when she uttered a statement that is materially false?

    * What is the liability of a reporter faithfully quoting a source, with attribution? I’m thinking of political reporters who have broken stories of high-profile figures venting despicable calumnies — is the reporter potentially liable for covering the story?

    * Do there appear to be reasonable grounds for counterclaims? ISTR that once counterclaims are filed, Ms. Fisher loses the ability to quietly pretend it never happened. I also STR that if Dr. Offit does not file counterclaims, he loses the ability to bring them up in another action.

    * Just how far does this Court allow parties to go in seeking discovery? Is Dr. Offit going to have to produce records of every dime he’s spent for the last 20 years, plus all of his correspondence in that interval? Similarly for Ms. Fisher?

    Standard disclaimers apply, and I realize that this is all spectator speculation — not in the least binding.

  44. #44 Anne
    January 6, 2010

    D. C. Sessions, the analysis doesn’t run both ways like that. Only Fisher would have to prove actual malice – a statement made with the knowledge of falsity or with reckless disregard to the truth. Dr. Offit doesn’t have to prove the same thing about Ms. Fisher regardless of whether he is a public figure.

  45. #45 Anne
    January 6, 2010

    That is, unless he files a counter-claim against her for defamation. Then the same rules would apply to him as to his counter-claim.

  46. #46 D. C. Sessions
    January 6, 2010

    That is, unless he files a counter-claim against her for defamation.

    That was the context I was considering. Sorry I didn’t put it better.

    I realize that the legal standard would be the same, but the facts aren’t perfectly symmetrical so I was speculating about how that would work.

  47. #47 Richard
    January 6, 2010

    I wonder if the jury/judge can consider the specifics of the case when determining the size of the award. I think that “lies” was an unfortunate choice of words which made Offit vulnerable, but if they do award Fisher, I hope they give her the award she deserves–25 cents.

  48. #48 Joe
    January 6, 2010

    * How difficult would it be to prove a “reckless disregard for the truth” on the part of Ms. Fisher with regard to the Pharma Shill accusation? (Assuming that she cannot establish that Dr. Offit is, in fact, a “Pharma Shill.”)

    —-> Basically, Offit would have to prove that she made the claim in bad faith – she spoke without attempting to fairly consider the underlying evidence. This could be proven, for instance, by showing that there is no evidence to support her claim. The same would go for her proving Offit’s “she lies” was with reckless disregard for the truth.
    Is it sufficient to say that since he could not know her state of mind, he could not know that she was “lying” even when she uttered a statement that is materially false?

    ——-> No, that’s insufficient. Lying is essentially an opinion. Opinions imply that there are enough facts for them to make sense. So she would have to prove that the facts so demonstrate her virtue that Offit would have to recklessly disregard the truth to conclude that she is a liar.

    * What is the liability of a reporter faithfully quoting a source, with attribution? I’m thinking of political reporters who have broken stories of high-profile figures venting despicable calumnies — is the reporter potentially liable for covering the story?

    ——–> I’m not completely sure. I know that in the context of the internet, publishers are immune from suit over content they can’t control (generally). But so long as the reporter simply reports the statement, I think there’s no libel. Its not false to say that “Offit said X.”

    That’s presumably why the libel suit is also predicated on the maligning her movement is unscientific bit – to get Wallace and Wired too. Although frankly – bad strategic move. Why bring in Wired’s deep pockets?

    I’ll get to the others if I have time later . . .

  49. #49 wfjag
    January 6, 2010

    “I wonder if the jury/judge can consider the specifics of the case when determining the size of the award.”

    Of course they must. Moreover, the plaintiff must prove that the defamation caused the damages. This is one of the reasons that defamation cases are usually dogs — no or almost no damages can be shown as caused by the defamation. The people who believe in Fisher don’t give a rats rear what Offit (or Orac or Novella, etc.) think about her, and vice versa. Wired is also a geekazine. It’s not People or Us. Its readership likely isn’t sympathetic to pseudoscience curatives. Add to that the stock market and economy going south starting in Sept. ’09, and Fisher will have a very hard time proving that any fall off in donations have anything to do with a one word comment in Wired (Several states’ Special Olympics programs have seen huge — 20% or more — decreases in donations due to the economy. I doubt that Fisher can show much damages beyond a speculative level, and so she may not even get to a jury).

    Meanwhile, Conde Nast can ask all its press contacts to really cover the story and the allegations and developing proof. Five or six AP wire stories — recounting how when interviewed by Wired, Offit said “lies” in relation to Fisher’s claims — and lots of people who never heard of the Wired story will hear of the story and suit, and will remember her name and the idea that she “lies” due to the AP stories printed in local papers and on local TV news stories. But, that doesn’t help Fisher’s defamation case — since the notoriety and “lies” label will arise from legitimate news stories about the suit. Pretty soon, Fisher will have problems showing that any damages she suffered were due to the defamatory story in Wired, rather than in the legitimate news stories about the suit she brought.

    Further, she’s claiming that the defamation caused a fall off in donations nationwide. She’s going to have to identify people and firms that will swear to that. That means discovery all over the US and possibly outside the US — the costs of which either she has to pay or her attorney will cover and hope to recovery later. Further, her allegations open up her having to produce her donations list, and allows the defendants to then take discovery and (under Rule 41, Fed. Rules of Civil Procedure) subpoena relevant records from her donors. The relevant records will likely include their tax returns, investment valuations over the past few years, financial statements, credit history, etc. A quick way for Fisher’s potential witnesses to avoid having to produce their financial records is for them to say — “My reduced donations to Ms. Fisher’s organization had nothing to do with anything Offit said that was published in Wired. I’ve never heard of Wired. I’ve never heard of Offit. Please leave me alone.”

    Meanwhile, Fisher alleges the she is the alter ego of her organization. That’s putting a big red bull’s eye on herself and saying “Please, please, please, IRS audit me and my organization, and determine that donations weren’t really tax deductible — which my donors will really love to find out, especially after interest and penalties are added to additional taxes due.” Meanwhile, she has to fund the discovery costs out of her own pocket — because she sued, not her organization, so those costs are not legitimate costs of her organization. If she is foolish enough to dip into organization funds for that purpose, the next Wired story will likely use the word “fraud.”

    Meanwhile, the chances of settlement look miserable. Offit doesn’t appear to be the type who will agree to a costs of defense settlement (and won’t give Fisher any bragging rights by doing so), and has enough money to fund a defense. Every story about the suit is free publicity for Wired (which will help circulation), and so it’s in Conde Nast interest to keep the case going.

    I hope her lawyer got a very large (non-refundable) retainer. Otherwise, it looks like a long hours at low or no pay case.

  50. #50 D. C. Sessions
    January 6, 2010

    Meanwhile, the chances of settlement look miserable. Offit doesn’t appear to be the type who will agree to a costs of defense settlement

    That’s what I was thinking — which (please correct me if I’m mistaken) she’s going to have to drop the suit posthaste before he files a reply with counterclaims.

  51. #51 Chris
    January 6, 2010

    wfjag:

    Further, she’s claiming that the defamation caused a fall off in donations nationwide.

    How can she claim that particular defamation caused donations to decline, when they had been declining already. The NVIC IRS 990 forms are available online, and these are the numbers (the dates go from Dec. 1, 2006 to Nov. 30, 2007 for the 2006 form):
    2006/7 Direct Public Support = $370961
    2007/8 Direct Public Support = $292577

    That is a 20% drop. Though looking at the 2005/2006 IRS 990 form, the donations were $304256, so perhaps 2006/2007 was an exceptionally good fund raising year. But the 2007/8 donations were still less than 2005/2006.

  52. #52 Chris
    January 6, 2010

    D.C. Sessions:

    That’s what I was thinking — which (please correct me if I’m mistaken) she’s going to have to drop the suit posthaste before he files a reply with counterclaims.

    One common falsehood that gets repeated about Offit is that he was on the ACIP committee when it voted to approve the RotaTeq vaccine. If Ms. Fisher (or Ms. Arthur if you go by the 990 forms the NVIC files) is the source of that myth, she would have to do lots of explaining.

    It did not take long for me to find ACIP meeting minutes on the CDC website to show that he was not a voting member in 2005 when the RotaTeq vaccine was being discussed (it was licensed in Feb. 2006 according to the CDC Pink Book chapter on rotavirus).

    Another thought on the reduction of donations to NVIC: Could it be that more people are sending money to Generation Rescue, which is flashier and has celebrities (it is now referred to has Jenny McCarthy and Jim Carrey’s organization!).

  53. #53 D. C. Sessions
    January 6, 2010

    How can she claim that particular defamation caused donations to decline, when they had been declining already.

    Then discovery gets a peek at the seasonally-adjusted donations since October and puts them on a chart for the Court.

  54. #54 Brian
    January 7, 2010

    I just got through my first semester of law school. This reads like my Civil Procedure final.

  55. #55 Anne
    January 7, 2010

    Ha, Brian, I know that’s true. I still remember my Civil Procedure professor from 30 years ago going through the jurisdiction cases and saying “Scrach your head until it bleeds!”

  56. #56 Jud
    January 8, 2010

    Heh, in our annual law school follies many years ago, I played a composite character of our two Civ Pro professors singing a song entitled “I See Erie [famous jurisdiction case] When There’s Nothing There!”

  57. #57 wfjag
    January 8, 2010

    “How can she claim that particular defamation caused donations to decline, when they had been declining already.”

    Chris — she can “claim” anything she wants. It’s the proof that’s the hard part (as you show).

    If Offit won’t settle (and I don’t think he will. He’s got enough money to defend the case, and plenty of motivation, including a professional reputation to protect, to not want to settle . Further, he can use the discovery and publicity from the suit to enhance his own reputation), then it’s a dog of a case.

    Before filing a defamation or slander suit, an attorney needs to have an “Are you absolutely nuts?” conversation with the client. Absent fairly extraordinary circumstances (or false allegations of the “You’re a child molester” type), the end result of what is said or printed is that your friends still like you, your enemies still hate you, and most people still don’t know who you are or care. A quick way to get people to think that the allegedly false statement is true is to have it repeated in news reports about the suit.

  58. #58 Chris
    January 8, 2010

    wfjag:

    Before filing a defamation or slander suit, an attorney needs to have an “Are you absolutely nuts?” conversation with the client.

    That would be interesting, because it looks like the attorney is a bit nuts.

  59. #59 D. C. Sessions
    January 8, 2010

    That would be interesting, because it looks like the attorney is a bit nuts.

    Crazy like a fox — no matter how the suit turns out, he wins.

  60. #60 Marty
    January 13, 2010

    Since they’re in the Eastern District, which prides itself in being called the “rocket docket”, he should be able to get it dismissed for lack of personal jurisdiction (specific in personam jurisdiction) pretty quickly. If a reporter interviews me in Pennsylvania about my thoughts on Rice-a-roni and I say “it’s been known to cause bowel obstructions or rectal cancer”, which I know to be false, that still doesn’t mean rice-a-roni can sue me in California even if they are the San Francisco treat.

  61. #61 Anne
    January 29, 2010

    In case anyone’s still reading this … last week the defendants filed motions to dismiss in Barbara Loe Fisher’s case. Only Amy Wallace contests jurisdiction. All of them argue that “she lies” is a statement of opinion – part of a heated debate on an issue of public interest – not a statement of fact, and therefore the complaint doesn’t state a claim for relief. The defendants point out that BLF has also called Offit a liar. Either way it’s rhetorical hyperbole. So that’s the tack they’re taking.

  62. Finally,through their professional connections Offit knows that Fisher is a resident of Virginia/Houston and knows that her business, NVIC, is located in Virginia.One common falsehood that gets repeated about Offit is that he was on the ACIP committee due to a personal injury case when it voted to approve the RotaTeq vaccine.

  63. #63 Houston Injury Attorneys
    March 21, 2011

    I think it may explain not suing in California, but New York and Pennsylvania’s anti-slapp laws appear to be inapplicable anyway. Those states (like many others) appear to limit the definition of a SLAPP suit to one that arises out of some government application, i.e. the stereotypical “developer starts suing everyone who opposed their permit application” situation. California has an unusually broad statute that potentially reaches any speech on an issue of public concern.

  64. #64 Chris
    March 21, 2011

    Houston lawyers, your URL name is really lame, as are your silly tactics. Please stop spamming this blog. You are as bad as Waters and Kraus.

  65. #65 Ariel
    March 25, 2012

    I thank god for people like Barbara Loe Fisher for speaking up and providing unbiased information. Anyone who has ever worked for any state or gov’t run agency knows they are full of corruption, dishonesty and collusion where people will do and say anything to selfishly better themself. Especially when money, power or position is involved. Vaccines are big money… and getting anyone (including a doctor who developed a vaccine or might get sued for using them) won’t likely take the other side when there are millions of dollars involved. How about we learn from our history: How many years did it take to prove DDT and a host of other things were safe? Go find those 1948 Life magazine advetisements – woman holding a baby with a statement below it which said “DDT good for you and your baby”. It took Rachel Carson’s – Silent Spring book (1960′s) to get any attention to the dead birds and other impacts, and in response she was “violently assailed by threats of lawsuits and derision, including suggestions that this meticulous scientist was a “hysterical woman” unqualified to write such a book.” Many so called scientists were totally against her for her book, as well. I say common sense usually rules (like the dead birds on the ground after spraying, the guys breathing the asbestos dust and coughing, and the massive increase in both vaccines and children found to have Autism. Tens of thousands of parents who watched profound changes in their children should be a strong message to all of us and not ignored or dismissed. It is without question that the vaccine approach of 6 vaccines in a single doctor visit is highly questionable and NOT understood. In the meantime, major care and precaution is called for with vaccines.

    I had measles as a kid in the 70′s. My vaccine didn’t work. It was like having the flu with itchy bumps. I missed a week of school and was fine. I’d take that over a vaccine/autism risk anyday.

  66. #66 lilady
    March 25, 2012

    Hey necromancer…couldn’t you find a more recent article about the NVIC and Loe Fisher…try the search box on the upper right page.

    I worked for the *corrupt* government as a public health nurse investigating cases of vaccine-preventable diseases, some of which were caused by Babs and her vicious attacks on the public health system.

    Take a look at these pictures: See the baby’s hand in the far right picture:

    http://www.immunize.org/photos/hib-photos.asp

    Why is the baby’s hand black, necromancer? Why was the child’s hand amputated?

    Just keep looking at the *pretty* pictures of other kids desperately ill from other diseases.

    You disgust me, troll.