Respectful Insolence

Dismissed!

Well, that didn’t take long.

Remember when the grande dame of the anti-vaccine movement, Barbara Loe Fisher, decided that she would try to harass, intimidate, and silence Paul Offit through the filing of a frivolous libel suit against Dr. Offit, Amy Wallace (the journalist who interviewed Offit for an excellent article last year), and Condé Nast, the publisher of WIRED, which ran the article? Well, the judge has ruled, and that ruling is…dismissed!

The text of the ruling can be found here.

There are some awesomely awesome passages in this ruling, which is a slapdown that, while not as epic as, for instance, the slapdown that Judge John E. Jones III delivered to creationists in Kitzmiller v. Dover, is nonetheless very satisfying to read–with one exception. The judge in this case makes some truly annoying statements like:

Moreover, in the context of the Wired article, the statement “she lies” lacks the provably false content that is required to support a defamation action.=

So far, so good. Then, not so good:

Not only does the Plaintiff’s claim of the statement’s falsity invite an open-ended inquiry into the Plaintiff’s veracity, but it also threatens to ensnare the court in the thorny and extremely contentious debate over the perceived risks of vaccines of certain vaccines, their theoretical association with particular diseases or syndromes, and, at the bottom, which side of the debate has “truth” on their side. That is hardly the sort of issue that would be subject to verification based upon a “core of objective evidence.”

Well, actually, it is. The core of objective scientific evidence does not support Loe Fisher’s anti-vaccine stance. It’s reasonable to argue that we can’t ever know whether Fisher is lying about Offit. It’s equally reasonable to argue that the court shouldn’t have to be dragged into the anti-vaccine movement’s campaign against reality for the sake of a libel case. It is not reasonable to state that the issue of whether vaccines are safe or whether they cause all the nastiness attributed to them by anti-vaccine extremists like BLF is not the sort of issue that can be subject to verification based on a “core of objective evidence.” That is utter poppycock, and the annoyance continues:

Courts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.

Courts should be reticent about venturing into scientific debates, and undoubtedly Judge Milton decided correctly in dismissing Barbara Loe Fisher’s lawsuit as being baseless before it even went to trial. However, he is dead wrong in labeling BLF’s complaints about vaccines as a “scientific debate.” It is not. Science has shown time and time again that vaccines are safe and effective, and there is no credible evidence that vaccines cause autism, one of the main claims of the anti-vaccine movement. Labeling the anti-vaccine movement’s position as just one side in a “scientific debate” that can’t be resolved by objective evidence is just plain wrong. For one thing, object evidence is exactly what resolves scientific debates, and, second, I repeat that BLF’s war on vaccines is not a scientific debate. That I entirely agree with the judge that BLF’s lawsuit was frivolous doesn’t mean i have to like the judge’s cluelessness regarding the vaccine manufactroversy.

Oh, well. I guess we have to take what we can get. Now if only we could get the U.K. to change its libel laws. In the U.K., there’s no guarantee that BLF’s lawsuit wouldn’t have gone through and she wouldn’t have prevailed.

Comments

  1. #1 Party Cactus
    March 11, 2010

    It’s funny that, for all the cries of Big Pharma & the Science Shills (now that would make a cool band name) using their money/the FDA/whatever to censor vaccine harm, or alternative cures, or whatever tickles their fancy, who are the ones that always seem to be on the plaintiff side of these libel suits? You have to commend them on their ability to make some fine irony.

  2. #2 Marc
    March 11, 2010

    @Party Cactus: Yeah, it’s basically a form of reverse victimization. While Big Pharma doesn’t usually get what it deserves for the nasty stuff it does but shouldn’t do, this is made up by the fact that they are dragged in court and fined for evil things they did not do. So, in a bizarre way, the anti-vaxxers are actually doing some good!

    Oh, no. I feel like I’m gonna get in trouble for writing the above! LOL!

  3. #3 The Panic Man
    March 11, 2010

    Big Pharma & the Science Shills (now that would make a cool band name)

    Great, now I need to go play Rock Band.

  4. #4 DLC
    March 11, 2010

    Good news. Better news would be if the plaintiff had to pay the court costs. But you can’t have everything.

  5. #5 Wayward son
    March 11, 2010

    http://www.nationalpost.com/news/story.html?id=2668629&p=1

    This was just published in the National Post (Canada). “FLU SHOTS FUTILE: STUDY.” Coauthor was (surprise) Tom Jefferson.

  6. #6 ebohlman
    March 11, 2010

    I think the problem here is that “verification based on a core of objective evidence” is more or less a legal term of art, and what constitutes “evidence” in law isn’t the same as what constitutes “evidence” in science. This difference is, for example, why the tobacco industry was able to use junk science to delay legal liability for tobacco-induced morbidity and mortality long after the connection was scientifically accepted. It’s why there are precedents from Daubert and Frye and why those precedents still require interpretation from courts.

    I think this is similar to the endless Usenet debate that goes:

    A: Homosexuality is unnatural.

    B: Homosexual behavior has been documented to occur in thousands of species [accompanied by actual citations].

    A: Are you saying humans are the same as animals?

    The problem is that A and B are using “natural” to mean two completely different things (A is using it prescriptively, B is using it descriptively) and as a result they’re shouting past each other. Note that while the technically correct answer to A’s last question is “yes”, it also has no real bearing on the pseudo-debate. A is simply expressing what Ortega y Gasset called an “appetite in words” and B is trying to factually rebut it. They’re conceptually misaligned. Ronald Reagan famously thought that Copenhagen was in Norway, but as John Allen Paulos pointed out in Innumeracy, you could not correctly infer that Reagan “believed the capital of Denmark was in Norway.”

  7. #7 Adam C.
    March 11, 2010

    To be fair, it was dismissed before the hearing. Judges aren’t scientists, but they’re usually quite clever; I have no doubt that, had he had the evidence submitted, he’d have agreed that the anti-vaccine side was scientifically baseless. But it never reached the stage where that would need to be shown.

  8. #8 Adam C.
    March 11, 2010

    To be fair, it was dismissed before the trial. Judges aren’t scientists or medical experts, but they’re usually quite clever; I have no doubt that, had he had the evidence submitted, he’d have agreed that the anti-vaccine side was scientifically baseless. But it never reached the stage where that would need to be shown, and you can’t expect him to just know.

  9. #9 Adam C.
    March 11, 2010

    Oops. Feel free to delete the first of those two (and this)

  10. #10 storkdok
    March 11, 2010

    I was quite disappointed when I got to the point where they started saying it was Offit’s opinion, not fact.

    But dismissing it for “failure to state a claim” and going on to say, “The importance of ‘evaluating complaints early in the process’…’as a way to deal with “the recognized problems created by ‘strike suits’ and the high cost of frivolous litigation.” warmed my heart!

    Best line: Babs admitting that “she lies” was “causing her to appear ‘odious, infamous, and ridiculous.’” Her words. LOL!

  11. #11 Adam C.
    March 11, 2010

    Hmm. Looking at it, in order to dismiss a case before trial, one is required to look at the plaintiff’s case in the best possible light, and I believe that her allegations are taken as true, then evaluated to see if there’s a potential legal case. As such, in a motion to dismiss, I suspect that any decision that took a side would be highly prone to appeal. The judge literally had to make wishy-washy statements about the core dispute, or the motion to dismiss would be invalid.

  12. #12 Gus Snarp
    March 11, 2010

    I like to think that what he was really saying, in a roundabout sort of way, is that it is not the job of the courts to judge statements about science, it’s the job of scientists and the courts should let science well enough alone.

  13. #13 John Pieret
    March 11, 2010

    There are some things that you need to understand about what was happening in this motion in order to understand what the judge was saying. This was what is known as a motion to dismiss in lieu of answering. Essentially, it is a motion saying that, on its own face, the suit is so deficient that the defendants shouldn’t even have to answer it.

    As the judge noted, the standard on such a motion is that “all well-pleaded factual allegations are accepted as true and the reasonable inferences derived therefrom are viewed in the light most favorable to” the plaintiff. Thus, if she alleges, as she does, that there is, in fact, “present science concerning the risks or the informed consent rights issues that arise from mandatory vaccination,” then the court, on this motion, must accept that as fact. What the judge was saying was not that there is a scientific debate but, assuming there is one, that is something courts don’t want to get involved in and that, in part, justifies the dismissal of the action.

  14. #14 John Pieret
    March 11, 2010

    Oh, and when the court speaks of “a core of objective evidence,” its talking about something like comparing a person’s sworn testimony in one forum with his subsequent sworn testimony before another forum when the alleged defamation was saying that the person had perjured himself. Again, assuming there is a real scientific debate, as Fisher claims, there is no such easy-to-point-to objective way to determine if the statement was true or false.

  15. #15 Mojo
    March 11, 2010

    Courts have a justifiable reticence about venturing into the thicket of scientific debate, especially in the defamation context.

    Similar concerns were raised in the appeal hearing of the BCA v. Simon Singh case (see Jack of Kent’s blog for the full transcript)

    MS PAGE QC: … It is common ground between the parties that what constitutes evidence and whether or not it is right to say there is not a jot of evidence, in the context of medical science is something that would have to be determined by the court on receipt of expert evidence.
    LORD JUSTICE SEDLEY: Is that what is seriously in prospect if this goes to trial?
    MS PAGE QC: Yes.
    LORD JUSTICE SEDLEY: The court turns itself into a forum for epidemiological expertise and pronounces on it?

    See also the quotation from a US case at the end of Singh’s barrister’s reply (at the end of the transcript): “Scientific controversies must be settled by the methods of science rather than by the methods of litigation … More papers, more discussion, better data, and more satisfactory models — not larger awards of damages — mark the path toward superior understanding of the world around us.”

    We’re currently waiting for the judgment…

  16. #16 DayOwl
    March 11, 2010

    On the surface it would appear that the judge has fallen prey to the misinformation campaign mounted by the anti-vaccine movement. On the other hand, a judge does not have the luxury of deciding the scientific merits without hearing and reviewing a lot of testimony and evidence. The legal community will be the first to admit that they don’t do a very good job of determining scientific merit. So, if they can, they will approach the issue from a different standpoint.

    To build on Gus Snarp’s comment, perhaps this case did not merit a involved and complex inquiry into the matter of vaccine safety, but simply needed a decision regarding the possibility of harm to the plaintiff. The suit was a sophistic attempt to discredit Dr. Offit, not an effort to have the courts judge scientific validity.

    From a legal standpoint, a suit addressing the harm done to the vaccine industry by the anti-vaccine movement may be a much more appropriate way to resolve the issue.

  17. #17 Dr. Mary Johnson
    March 11, 2010

    Fascinating.

    Orac, what you are describing here is called a SLAPP (Strategic Lawsuit against Public Participation) suit. And there is a move to make them illegal here:

    http://drjshousecalls.blogspot.com/2010/03/anti-slapp-suit-legislation-is-in-works.html

    Lawyers ALWAYS muck it up. Just another reason for tort reform.

  18. #18 Dr. Mary Johnson
    March 11, 2010

    Fascinating.

    Orac, what you are describing here is called a SLAPP (Strategic Lawsuit against Public Participation) suit. And there is a move to make them illegal here:

    http://drjshousecalls.blogspot.com/2010/03/anti-slapp-suit-legislation-is-in-works.html

    Lawyers ALWAYS muck it up. Just another reason for tort reform.

  19. #19 freemage.geo#b98e9
    March 11, 2010

    Dr. Johnson: “Tort reform”, unfortunately, usually means something different than what most folks think it means. For the most part, the only folks that will really benefit from tort reforms as they normally are proposed are the largest corporations, who seek to be able to reduce life-endangering policies to manageable (and predictable) expenses.

    Almost all tort reform seeks to cap punitive damages to a fixed dollar amount–which has the end result of making them completely ineffective at their purpose, which is NOT compensating the wronged party (that’s supposed to be covered by actual damages), but imposing a penalty on a defendant found to be egregiously at fault for the situation, in order to force them to reconsider their conduct.

    An example of good tort reform would be a formula that based punitive damages on the income of the defendant, as well as a modifier based on the degree of fault. This would prevent private individuals and small businesses from being crushed by a ruling that would be little more than a minor expense for a corporation. Using this method, a small coffeeshop that lost a lawsuit similar to the infamous McDonald’s coffee case would be out a few hundred bucks on punitive damages (the ‘ridiculous’ award in that case was equal to a couple day’s coffee sales for McDonalds).

  20. #20 Scott
    March 11, 2010

    Nice of you to proclaim yourself the expert on what everyone else considers tort reform. Thanks!

  21. #21 Patrick
    March 11, 2010

    Scott- he’s correct. If you know of some tort reform movement that doesn’t begin (and nearly end) with capping punitive damages, I’m all ears.

  22. #22 David N. Brown
    March 25, 2010

    It looks to me like BLF got herself caught playing it both ways. The antivax angle to the press is to say “report the controversy”. But those who honestly believe in a “controversy” aren’t going to react favorably when they try to supresss opposing opinions with lawsuits.

    Incidentally, I feel that Dan Olmsted used a frivolous legal threat and a false allegation (that I had accused AOA of creating a document of which I was suspicious) to have some of my work removed from LBRB. I would like to sue Olmsted for libel. Anyone have money for a lawyer?

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