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?