Saturday, June 10, 2006

Could Lawsuits Intimidate Autism Advocates?

[Before I start, let me congratulate Kathleen Seidel on some excellent investigative work. She uncovered a "fallacious" affiliation claim by David Geier in a paper that was recently accepted by Hormone Research. After the journal learned of the affiliation claim error, the paper was removed from the electronic version of the journal, and its PubMed abstract also disappeared. You can read all about it in Significant Misrepresentations: Mark Geier, David Geier & the Evolution of the Lupron Protocol (Part One). Bartholomew Cubbins has video of the Geier paper when it was on PubMed.]

Because autism is a medicalized way of being at the moment, it's not surprising that much of autism advocacy consists of debating science, debunking junk science, and investigating the motivations and conduct of autism researchers. The formal mechanism for dealing with scientific criticism consists of submitting commentary to medical journals, i.e. rebuttals. This mechanism forms much of the basis of the scientific principle of self-correction. Even with criticism posted on science blogs, it's usually possible to post a comment, or at least a rebuttal on a different blog.

What if researchers decided to use defamation lawsuits instead or in addition to rebuttals in order to deal with scientific criticism? Clearly, this would be anti-scientific in principle, and scientific criticism is speech that should have the utmost protection under the law. Such lawsuits would not have the slightest chance of being won either way. But what might their impact be on autism advocates, and on scientific criticism in general?

This is not just a theoretical question. Enter Geier et al v. Department of Health and Human Services (DHHS). [Thanks to Kathleen for finding and posting this information, which I should note is part of the public record.]

Geier & Geier's complaint against DHHS cited "(1) defamation, (2) interference with contract, (3) interference with prospective business advantage, (4) review of adverse agency action, and (5) interference with and deprivation of Constitutional rights arising from publication by Defendants of article falsely accusing Plaintiffs of fabricating scientific data."

The paper in question is "Thimerosal-Containing Vaccines and Autistic Spectrum Disorder: A Critical Review of Published Original Data" (Pediatrics, 2004) by Parker et al. The "accusations" claimed to exist in the paper can be found in the following paragraph:

Substantial questions regarding the accuracy of the denominator data for the incidence calculation also exist. The denominator requires the total number of children in the United States who received thimerosal-containing DTaP (exposed) and the total number who received thimerosal-free DTaP (unexposed). The authors indicated the source of these data as the "Biological Surveillance Summaries of the CDC." However, CDC reports only aggregate doses distributed for DTaP and other vaccines and provides no manufacturer-specific data. It is unclear how the authors estimated manufacturer-specific data because, on the basis of agreements with manufacturers, CDC does not release these data. No source is cited in the publication. The authors provided no details on how total DTaP doses distributed were translated into number of children vaccinated with specific thimerosal-containing or thimerosal-free vaccines, which is particularly problematic for a vaccine administered in a 5-dose schedule over a 4- to 5-year period.

In other words, saying that "it is unclear" how authors obtained data was construed as a defamatory accusation. It should be noted that the Geiers had explained how they obtained the data, and Parker et al published a retraction of the statement in question. Geier & Geier, nevertheless, saw it necessary to bring about this lawsuit in spite of the retraction.

This paper is one that has been repeatedly used to refute Geier & Geier in court proceedings. Clearly, this paper must have been hurting them financially, as the complaint explains:

20. Given the expertise they have attained on vaccine injury and given the demand for their services as expert witnesses, the Geiers dedicate a substantial amount of their time and resources to their role as expert witnesses. Dr. Mark Geier has appeared in approximately 100 cases and has participated in the review of approximately 1,000 claims.

The stakes involved are also made clear by the complaint:

35. It has been estimated that if thimerosal was determined to be a cause of the various neurological disorders, civil damages for the injury to hundreds of thousands of children could reach in to the multiple billions of dollars, either paid for under the NVICP or in private civil litigation.

The case was initially dismissed with prejudice following a motion from the American Academy of Pediatrics, and "no opposition having been timely filed by the plaintiffs." Geier & Geier subsequently filed a motion to dismiss without prejudice after "being unable to find qualified counsel to represent them in this matter." DHHS opposed the motion stating that the "case borders on the frivolous" but this opposing motion was later stricken from the record. In the end, the judge granted the order to dismiss without prejudice.

Without much legal expertise, it's not hard to see that a case like this would be very difficult to win. Is it likely that Geier & Geier expected to win this case? If not, why bring it about?

Upon learning about this case, autism advocates might react with caution, and might consider toning down criticism of Geier & Geier and other researchers. This would be an unfortunate outcome, as it would play into the hands of those who would rather keep us quiet. Prior advocacy movements have had to deal with much worse than silly lawsuits, and these movements did not retreat in the least bit. We need to continue pursuing these matters, now more than ever. Of course, there is no need to expose ourselves unnecessarily. Protect yourselves as best you can. And most of all, we need to back each other up when bad things do happen.

Let me now restate what others and myself have said about Geier & Geier:

The autism community demands answers to these questions. The appropriate way to answer these questions is not to bring about frivolous lawsuits. It is simply to answer them. And I want to make clear that I invite Geier & Geier to defend themselves in the comments section of any of my posts or elsewhere. And as usual, I explicitly invite anyone who agrees with Geier & Geier to try to answer these questions as well.


  1. Great points. Should one bend to the will of those whose fiscal motivations drive their actions or should one not be afraid to point out the things that some people want covered up?

    It's sad how when science and reason cannot be used to bolster one's case, that scare tactics fill in the gap so easily and effectively.

  2. Full marks to Pediatrics for going the distance on this one. One good thing is that the Geiers are getting on the wrong side of more and more people, Pediatrics, Hormone Research, George Washington University, and last but not least, Kathleen. Significant Misrepresentations: Mark Geier, David Geier & the Evolution of the Lupron Protocol (Part One). will go down as a seminal moment in the Geiers' decline.

  3. I think DHHS should have pursued a motion to dismiss with prejudice, and sought to recover legal expenses.

  4. Hi Joseph,
    The whole legal brou-ha-ha surrounding the Autism and vaccine connection is making its way around the blogging world. I've been regularly reading this other blog that debunks the Autism/MMR vaccine connection as junk science. It seems, as more and more critics come forward, that that assertion, is indeed true. Tim Worstall writes a fascinating column that discusses personality traits of individuals. He regularly takes up the issue of Autism viz a viz the personality test formulated by Simon Baron-Cohen. I think you might find it an interesting read. Here's the entry about the Autism/MMR controversy: