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Wednesday, January 11, 2012

(Brian) Deer in the Headlights...


(Brian) Deer in the Headlights...

(Brian) Deer in the Headlights...
Opinion by Consumer Advocate Tim Bolen
Tuesday, January 10th, 2012

It's Deer Hunting season in Texas.
No, I'm not talking about hunting White Tail Deer along the Milk River in West Texas, or Mule Deer anywhere in the Texas Panhandle. So, put that key to the gun cabinet back in your pocket.

White Tail and Mule are NOT the deer being hunted in Texas in THIS story. Nobody is going to be wearing camouflage, and we aren't going to have to hike eleven miles before dawn, carrying a sixty pound pack.

Today we are after the imported Deer variety, the Brian. 

We'll be doing our hunting in Downtown Austin, Texas, the State Capitol. Specifically, we'll be centering our story in the Travis County Courthouse (pictured on the right), where, unless you are a member of law enforcement, guns are pretty much prohibited.
But, make no mistake, Brian Deer, here, is under the gun.

The hero of our story today is a guy I haven't yet met - Andy Wakefield, who just happened to be a resident of Austin, Texas on January 5th, 2011, the day that Brian Deer's article "Secrets of the MMR Scare: How the Case Against the MMR Vaccine Was Fixed" was published in the British Medical Journal (BMJ). It was accompanied by two editorials by Fiona Godlee, Editor of the BMJ titled "Wakefield's Article Linking MMR Vaccine and Autism Was Fraudulent," and "Editor's Choice: The Fraud Behind the MMR Scare."

Yup, I'm talking, here, about the Andy Wakefield, from Britain, famous for suggesting that there might be a connection between the MMR vaccine and Autism, and suggested, to the horror of the vaccine industry, that further study was warranted. That same Andy Wakefield we see, officially, as Andrew J. Wakefield MB., BS., BRCS, formerly of Great Britain - but now a Texan.
It looks as though our Andy found a law firm in Austin, Texas called DiNovo Price Ellwanger & Hardy LLP who assigned to Andy their top business litigator Partner William M. Parrish (Bill), who, for the last thirty years has specialized in intellectual property issues and complex business litigation.

On January 3rd, 2012, a few days before the Statute of Limitations could run out, Bill Parrish filed, for his client Andrew J. Wakefield MB., BS., BRCS (Andy) a lawsuit in Travis County, Texas against Brian Deer, the British Medical Journal, Fiona Godlee. The lawsuit claims that:

"This defamation lawsuit arises, in part, out of the publication on or about January 5, 2011 and thereafter, in the British Medical Journal, of an article authored for the BMJ by Brian Deer, titled Secrets of the MMR Scare (Exhibit A) and accompanying editorials by the BMJ’s editor, Fiona Godlee (Exhibit B 1-2). Defendants’ article and editorials, distributed to subscribers in Texas and which form the basis of Plaintiff’s claims, contained unfair, incorrect, inaccurate and unjust criticisms of findings previously reported by Dr. Wakefield and 12 other co-authors. More significantly, Defendants accused Dr. Wakefield of fraud and of fraudulently and intentionally manipulating and falsifying data and diagnoses in connection with a clinical paper he co-authored called Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental disorder in children, originally published in the medical journal The Lancet in 1998 (the “Lancet Paper”). Defendants’ false and defamatory allegations have been widely disseminated by Defendants through the BMJ and other sources since their original publication."

Wait a minute. Didn't all this happen in Britain? Shouldn't a lawsuit be filed there, not in Texas? Nope. The Jurisdiction is properly in Texas for the reason stated just below. Brian Deer, and the other Defendants, will have to grab their checkbooks, jump on an airplane, fly to Austin, Texas, and find themselves an attorney firm to represent them in this action. Why? Read this:

"This Court has personal jurisdiction over the Defendants pursuant to the Texas Long-Arm Statute and consistent with the requirements of Due Process because the Defendants purposefully availed themselves of the privileges, benefits, advantages, and profits of conducting their affairs in the State of Texas by directing a significant and regular flow of publications, including periodicals, journals, articles, subscriptions, and electronic media to institutional and
individual residents of this State. Defendants further committed a tort, which is the subject of this suit, in whole or in part, in this State, to wit, authoring, editing, and approving articles and making statements with knowledge or intent that said articles be published and statements be made and directed to residents of this State, including, but not limited to Plaintiff at his residence in Austin, Texas. Said articles, publications and statements contained false and defamatory
allegations about Plaintiff Dr. Wakefield and his affairs, business and reputation in the State of Texas as detailed herein."

This is going to be fun. Why? This case is NOT going to be a Kangaroo Court conducted on behalf of the Vaccine Construction like the so-called hearings in front of the British General Medical Council (BMC). This will be a REAL Court, with REAL rules, and a requirement for REAL evidence standards. Frankly, neither Brian Deer, Fiona Godlee, nor the British Medical Journal (BMJ) stand a chance in this forum. So far they controlled the battlefield. Now they stand in a minefield, and Andy Wakefield has the minefield actuator button in his hand.

Details of the case...

You can read the whole Texas filing by clicking here. Before you do that let me give you a few highlights. For a short read, click here to read the "Demand Letter" sent to the British Medical Journal, Brian Deer, and Fiona Godlee on November 10th, 2011. The letter lays out the basis of the claim against the Defendants and demands retraction of the original articles and protection of the information relied on. Of course, the Defendants failed to respond. Hence the lawsuit.
You can read the Plaintiff's Exhibits by clicking here.
Some highlights of the filing that will make you tingle:
"Defendant BMJ Publishing Group LTD which does business as The British Medical Journal, BMJ Group, and BMJ (hereinafter collectively “BMJ”) is a British limited liability company organized under the laws of the United Kingdom that may be served with process pursuant to Section 10(a) of the Hague Convention by serving this Original Petition via international registered mail as follows: BMJ Publishing Group LTD, BMA House, Tavistock Square, London, WC1H 9JP, United Kingdom. Issuance of Citation for BMJ Publishing Group LTD d/b/a The British Medical Journal, BMJ Group and BMJ is requested at this time.
Defendant Brian Deer is a citizen and resident of the United Kingdom who may be served with process pursuant to Section 10(a) of the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters (“Hague Convention”) via international registered mail as follows: Brian Deer, 65 Herne Hill House, Railton Road, London, SE24 OEF, United Kingdom. Issuance of Citation for Brian Deer is requested at this time.
Defendant Dr. Fiona Godlee is a citizen and resident of the United Kingdom who may be served with process pursuant to Section 10(a) of the Hague Convention via international registered mail as follows: Dr. Fiona Godlee, BMA House, Tavistock Square, London, WC1H 9JP, United Kingdom. Issuance of Citation for Dr. Fiona Godlee is requested at this time.
Venue in this defamation lawsuit is mandatory in Travis County, Texas pursuant to TEX. CIV. PRAC. & REM. CODE §15.017, because Travis County was the residence of Plaintiff, Dr. Wakefield, at the time of the accrual of the causes of action alleged herein.
3.2 The amount in controversy is within the jurisdictional range appropriate to this Court’s subject matter jurisdiction."
According to Texas law, Brian Deer, the BMJ, and Fiona Godlee only have a limited amount of time to respond to the lawsuit before Wakefield files for a Default Judgment. I don't know what those time limits are yet, as I just got the initial information last night, and haven't been able to interview the attorneys yet.
But, once the Defendants are officially served with the lawsuit they must Respond with what is called an "Answer" in Texas. If they don't and a Default Judgment is asked for and Ordered by the Court, then the Court will award EVERYTHING the Plaintiff Andrew Wakefield asked for. Just below is what Wakefield is seeking.
V. DEFAMATION - 5.1 Dr. Wakefield hereby brings this common law cause of action libel, slander and
defamation against Defendants based on the malicious publication of false claims about Dr. Wakefield as detailed above and incorporated by reference herein.
5.2 Each of the Defendants knowingly misrepresented facts with the purpose of making false accusations against Dr. Wakefield. These false statements were published with actual malice.
5.3 These false claims were known to be false by the Defendants at the time they were made and were made and published with the intent to cause substantial harm to Dr. Wakefield’s reputation, to open him up to scorn in his community, and to damage his livelihood.
5.4 The false statements, intended by Defendants to injure Dr. Wakefield in his trade and profession, constitute defamation per se, therefore damages are presumed from the publication of these false statements.
5.5 Alternatively, these statements, intended by Defendants to injure Dr. Wakefield in his trade and profession, constitute defamation per quod.
5.6 The malicious publication of the false statements about Dr. Wakefield detailed above have caused and continue to cause actual general and special damages to Dr. Wakefield, including, injury to character and reputation, humiliation, injury to feelings, and loss of earning capacity.

VI. EXEMPLARY DAMAGES - 6.1 Because Defendants acted with actual malice, the Plaintiff is entitled to recover exemplary damages as defined by the Texas Civil Practice & Remedies Code § 43.001, et seq.
VII. DECLARATORY JUDGMENT - 7.1 In addition, Plaintiff seeks a declaratory judgment that the Defendants’ published false and misleading statements regarding Dr. Wakefield and/or the Lancet Paper.
VIII. -PRAYER - Dr. Wakefield hereby prays for a trial by jury as to all disputed issues of fact, and upon findings appropriate, further prays for judgment from this Court against the Defendants for: nominal damages, actual and compensatory damages, special damages, including injury to reputation and character, injury to feelings, humiliation, loss of earning capacity, exemplary damages pursuant to TEX. CIV. PRAC. & REM. CODE §41.001, et. seq., declaratory relief, costs and expenses, prejudgment and post-judgment interest as allowed by law, and for such other and further relief to which he may be justly entitled.

In short, Brian Deer, and the BMJ have no choice but to show up in Texas and fight it out. If they don't it is likely to be the end of the BMJ, and Brian Deer, for Britain honors claims found in the US Courts. There would, in fact, be a legal finding that NONE of what Brian Deer said was true.
Of course the Autism Community already knows that...

Smile here...
And, stay tuned.

Tim Bolen - Consumer Advocate



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