Asses and the law

When pseudoscientific claims are challenged, the initial response is usually to repeat the claims, sometimes in a louder voice. The next step is often to denigrate the critic, usually by saying that they are only in it for the money or they are in a conspiracy with business interests. When this fails, quacks and charlatans are increasingly turning to the law in an attempt to get the courts to overturn science or at least to silence the critics.

Two recent examples related to vaccination demonstrate the process. Significantly, both attempts failed.

Two days before Christmas 2009 Barbara Loe Fisher of the National Vaccine Information Center sued Dr Paul Offit, journalist Amy Wallace and publisher Condé Nast because an article in Wired magazine had hurt her feelings by suggesting that she is sometimes careless about the truth. It is worth mentioning that on many occasions she has accused Dr Offit of being corrupt and caring more about money than the health of children. In a bizarre example of irony, she followed up three weeks later by calling for a free discussion of vaccination issues in an apparent attempt to redefine the meaning of the word "free" in the context of free speech

It was fully expected that the law would move at its normal glacial pace, but in the middle of March 2010 the court dismissed the action because Fisher and her powerful lawyer were not able to even establish that any cause for the suit existed. In the words of the court, she couldn't produce a "statement of fact that is capable of being proven true or false". At the time of writing no mention of the dismissal of the case has appeared on the NVIC web site or in any of the forums where Ms Fisher announced the suit. The NVIC site still, however, contains prominent misinformation about the dangers of vaccines, the reason for the original comments in Wired.

In another case of the law moving faster than anyone expected, decisions were handed down in March in the United States Court of Federal Claims – Office of Special Masters related to three rulings made by Special Masters in February 2009. The cases involved almost 5,000 claims for compensation for damage caused by vaccination.

Apart from the enrichment of lawyers, the huge number of claims lodged had two objectives. The first was to tie the courts up for years, during which time anti-vaccination liars could continually bleat about how the evil pharmaceutical companies were being sued. The second objective was based on the assumption that the courts would be influenced by sad tales of broken children and would award huge amounts of compensation, further enriching lawyers while simultaneously bankrupting the US vaccine compensation scheme (and providing much fodder for lying media campaigns).

The courts saw through these objectives, and in what became known as the Autism Omnibus Case, asked the lawyers to nominate the three best cases they had, cases which were so obviously winners that the courts would accept them. These cases were then each assigned to a Special Master, with the understanding that these test cases must be found to show scientific evidence of a connection between vaccination and autism before any other case would be heard. In February 2009 all three test cases were rejected by the Special Masters, effectively ending the attempt to abuse the courts to further the agenda of the anti-vaccination industry. Special mention was made of the incompetence and mendacity of several of the witnesses proposed and called by the claimants, with several heroes of the anti-vaccination movement declared to be deceitful and/or acting well outside their areas of expertise and competence.

The reaction of the ant-vaccinationists was predictable, ranging from ridiculing and defaming the Special Masters to simply ignoring the fact that any rulings had been made or any criticism of the "scientific" heroes offered. It was business as usual in the anti-vaccination trade. In March 2010 all appeals were rejected. If people want to prove that vaccinations cause autism they have to produce more scientific evidence than they brought into these court sessions. Courts are often influenced by sentiment and public opinion in cases involving sick children, but in these cases the courts ruled that the kids might have problems but nobody was going to get money by claiming that the vaccinations caused the problems.

And what are the anti-vaccination liars saying about this latest slap-down? Well, so far I have been told that the courts are obviously in the pay of Big Pharma and that anybody who trusts the government is a fool because everybody knows that mercury in vaccines causes autism. Like I said above, business as usual, but that's what happens when people don't care even a little bit about the truth.

This article was published as the Naked Skeptic column in the May 2010 edition of Australasian Science