Six months ago we were looking at a serious flu pandemic, a very strong and vocal campaign demonizing vaccines, as well as a growing public distrust of vaccines and the entire medical industry. But then a funny thing happened. Despite all their bark, the antivaccine movement proved to lack sufficient bite, as enough Americans still seem to have gotten vaccinated against one or both prominent strains of flu, leading to a dramatically reduced number of flu cases and flu-related deaths this season.
It also goes without saying that none of the doom-saying predictions made by the antivaccine crowd panned out either. There was no dramatic increase in autism, Guillian-Barre Syndrome, or dystonia. Nor were there many deaths or serious injuries directly linked to the vaccines. And many of the “alternative” “medicines” the antivaccine crowd flock to like homeopathy and chiropractic also got hammered with terrible press. But that’s not all that went wrong for the antivaccine movement over the last few months. There are numerous other reasons why 2010 is already proving devastating to their entire movement.
Not only has 2010 already shown us that the antivaccine movement may not be as effective in discouraging vaccination as it once appeared but its also shown their failure to gain traction among those who matter most, the media.
Only six months ago it seemed that the media couldn’t get enough of folks like Jenny McCarthy or J.B. Handley. However, as I wrote elsewhere, it seems that the honeymoon is finally over. The mainstream media has turned on the antivaccine movement and the movement is more and more finding itself on the wrong side of relevant news stories or edged out into a token skepticism position where they’re relegated to a single soundbite within a story dominated by real experts. And as a result, anti-vaccinationists are finding themselves at war with mainstream news sources from the Chicago Tribune, to the New York Times, to Time Magazine.
Even Inside Edition, the television news show that initially reported about Desiree Jennings, the alleged vaccine-injured cheerleader that many of us thought was merely being exploited by the movement, aired a follow-up story featuring prominent skeptic Dr. Steven Novella that more or less exposed Jennings as a deliberate fraud.
The antivaccine crowd are running out of media sources willing to take them seriously. At this rate, soon all they’ll have left is the Huffington Post due to its complete lack of anything resembling journalistic standards.
Within just the past two and half months the antivaccine movement has suffered terrible blows to their PR, and none worse than those revolving around Andrew Wakefield. Wakefield, who originated the claim that vaccines caused autism, had that very same paper retracted by the journal that published it. This was immediately following the UK’s General Medical Council declaration that Wakefield acted “dishonestly and irresponsibly” with his research and had “callous disregard” for the children involved in his study. Wakefield then mysteriously resigned from his position at Thoughtful House, the autism center he founded. Further, a poorly designed study on the Hepatitis B vaccine he was involved in was denied publication while another study to be published in the Pediatric Infectious Disease Journal further showed no link between MMR vaccines and autism.
Last week ended with several antivaccine defeats in the courtroom. Three test cases making up the second wave of Autism Omnibus cases were dismissed just thirteen months after the last three test cases that addressed the MMR vaccine hypothesis were rejected. The Autism Omnibus represents 5000 families. Last year saw the best three cases the Omnibus lawyers had and the judges found all three horribly lacking in evidence. So the latest three cases probably make up the next best cases in the bunch. This time all three addressed thimerosal, the ethylmercury-based preservative that was removed from vaccines on the children’s schedule in the U.S. nine years ago. Each case was tried by a separate judge. And were they any more convinced this time around? Well no:
Special Master Campbell-Smith:
“Petitioners’ theory of vaccine-related causation is scientifically unsupportable. In the absence of a sound medical theory causally connecting William’s received vaccines to his autistic condition, the undersigned cannot find the proposed sequence of cause and effect to be logical or temporally appropriate. Having failed to satisfy their burden of proof under the articulated legal standard, petitioners cannot prevail on their claim of vaccine-related causation. Petitioners’ claim is dismissed, and the Clerk of the Court SHALL ENTER JUDGMENT accordingly.”
Special Master Hastings:
“Thus, I feel deep sympathy for the King family. Further, I find it unfortunate that my ruling in this case means that the Program will not be able to provide funds to assist this family, in caring for their child who suffers from a serious disorder. It is certainly my hope that our society will find ways to ensure that generous assistance is available to the families of all autistic children, regardless of the cause of their disorders. Such families must cope every day with tremendous challenges in caring for their autistic children, and all are deserving of sympathy and admiration. However, I must decide this case not on sentiment, but by analyzing the evidence. Congress designed the Program to compensate only the families of those individuals whose injuries or deaths can be linked causally, either by a Table Injury presumption or by a preponderance of “causation-in-fact” evidence, to a listed vaccine. In this case, the evidence advanced by the petitioners has fallen far short of demonstrating such a link.”
“This case is not a close case. The overall weight of the evidence is overwhelmingly contrary to the petitioners’ causation theories…based upon all the evidence that I have reviewed, I find that it is extremely unlikely that Jordan’s autism was in any way causally connected to his thimerosal-containing vaccines. In short, this is a case in which the evidence is so one-sided that any nuances in the interpretation of the causation case law would make no difference to the outcome of the case.”
Special Master Vowell:
“Petitioners have not demonstrated by a preponderance of the evidence that Colin’s condition was either caused or significantly aggravated by his vaccinations. Thus, they have failed to establish entitlement to compensation and the petition for compensation is therefore DENIED. In the absence of a motion for review filed pursuant to RCFC, Appendix B, the clerk is directed to enter judgment accordingly.”
“In an effort to render irrelevant the numerous epidemiological studies of ASD and TCVs (thimerosal containing vaccines) that show no connection between the two, they contend that their children have a form of ASD involving regression that differs from all other forms biologically and behaviorally. World-class experts in the field testified that the distinctions they drew between forms of ASD were artificial, and that they had never heard of the “clearly regressive” form of autism about which petitioners’ epidemiologist testified. Finally, the causal mechanism petitioners proposed would produce, not ASD, but neuronal death,and eventually patient death as well. The witnesses setting forth this improbable sequence of cause and effect were outclassed in every respect by the impressive assembly of true experts in their respective fields who testified on behalf of respondent.”
“Petitioners propose effects from mercury in [vaccines] that do not resemble mercury’s known effects in the brain, either behaviorally or at the cellular level. To prevail, they must show that the exquisitely small amounts of mercury in [vaccines] that reach the brain can produce devastating effects that far larger amounts experienced prenatally or postnatally from other sources do not.”
And unfortunately for the antivaccine movement, these weren’t the only legal defeats they suffered last week. In December, Barbara Loe Fisher of the ironically named National Vaccine Information Center had issued a libel suit against Dr. Paul Offit, Journalist Amy Wallace, and Conde Nast over a two-word quote by Offit printed in Wallace’s Wired Magazine article about the antivaccine movement. When asked about Fisher, Offit responded, “She lies.” Fisher and her lawyer(s) foolishly thought this gave her a proper cause of action for a defamation suit. They were very wrong and the case was thrown out. Here’s how Judge Claude M. Hilton concluded his 15-page decision:
Plaintiff may wish to defend in Court the credibility of her conclusions about the dangers of vaccines, the validity of the evidence she offers in support of those theories, and the policy choices that flow from those views – as well as her own credibility for having advanced those positions. These, however, are academic questions that are not the sort of thing that courts or juries resolve in the context of a defamation action. Rather, an actual statement of fact that is capable of being proven true or false is required as a matter of law. In this context, Plaintiff has not alleged such a statement and has therefore failed to state a claim upon which relief may be granted. An appropriate Order shall issue.
Usually, a defamatory opinion made by one person about another is not actionable, only statements of fact that are untrue and harmful. The legal distinction is that facts are falsifiable while opinions aren’t and are based on subjectivity.
At common law, plaintiffs weren’t required to prove that defamation statements were false as they were automatically assumed to be false. Truth was an affirmative defense, which meant that the burden of proof was on the defendant to prove their statements were true. The U.S. Supreme Court, however, changed the common law, switching the burden of proof onto the plaintiff. As a result, it’s very difficult to prove a defamation case in the U.S., especially if you’re a public figure like Fisher because one must establish constitutional malice, which is proof by clear and convincing evidence that the defendant knew their statement was false or was reckless regarding its truth or falsity. For public figures, it’s not enough to prove the media published a false defamatory statement with carelessness or negligence. The responsible party must know the statement is false or reckless as to its truth or falsity when they publish it. Of course, the UK still operates under the common law and a major legal battle continues over there to reform libel law to make it more like the U.S. system.
Now when suing under the tort of libel in the U.S., the plaintiff must prove she suffered special damages, which are actual economic losses, due to the publishing of the defamatory statement. In what is called defamation per se, the statement must be shown to either accuse the plaintiff of a crime, accuse the plaintiff of having a communicable disease, accuse the plaintiff of sexual misconduct, or adversely affects the plaintiff’s profession. If it does neither, it falls into defamation per quod, because it requires additional facts in order to be associated with the plaintiff. This type of defamation requires proof of special damages. It’s also important to note that individuals have a qualified privilege to publish defamatory statements in order to protect their own legitimate interests. And it would seem that this fact protects all defendants in Fisher’s suit.
But to a certain degree I’m actually disappointed that the Fisher’s lawyers couldn’t turn this into a prima facie case (any case meeting the minimum requirements of evidence to be tried) as the defendants were put in the position where they potentially had license to pull from any publicly available verbal or written statements Fisher has made in the past in order to prove that she does indeed lie. Catching any public figure in a lie is a no-brainer, so finding examples of Fisher lying would have been like shooting fish in a barrel. If it had gone to trial, the defendants could have spent weeks bombarding the court with Fisher’s lies (lies shared by the rest of the anti-vaccine movement) one by one by one, putting it all on public record like in the Dover case against Intelligent Design. Offit’s got the technical expertise himself to expose how wrong her science is and any other legitimate expert could have confirmed his facts. Just imagine weeks and weeks of dissecting Fisher’s every erroneous claim, scientific or otherwise.
But while Fisher had no chance of proving the tort of defamation against her, she foolishly opened herself up to a fairly strong case against her over the tort of “abuse of process.” This is when through a misuse or misapplication of the legal process, the plaintiff initiates a civil or criminal proceeding with an improper or ulterior motive to accomplish a result for which the legal process did not intend. Unlike Fisher’s case, this would not be a frivolous lawsuit as a reasonable case of “abuse of process” can be made that Fisher’s suit had an ulterior motive. It’s not a guaranteed victory but a strong case exists.
Every legal victory counts as our court system is built on the principle of stare decisis, where a great deal of weight is placed on precedent established in prior cases within the same jurisdiction. Courts usually don’t overturn their own precedents unless there is a strong reason to do so.
Of course none of this is likely to sway the opinions of the true believers. Like Jesse Ventura, who can insist he’s exposing conspiracies the mainstream media doesn’t want you to know on his television show on the Time Warner-owned TruTV network, the antivaccine movement has a remarkable capacity for self-deception and will write off all negative press as proof that the media is part of the evil cover-up, that every reputable medical institution in the world are just in the pockets of “Big Pharma,” and that every judge that rules against them is secretly a corrupt agent of the monolithic, unilateral government plot to poison us all. . . slowly over the course of our 80-year-long lives.
But where this does matter is in the minds of those on the fence regarding these issues and those in positions to affect policy changes. And as long as the media, science, and legal system are all against them, the antivaccine movement’s influence on the culture is extremely limited and they become somewhat impotent, provided their critics remain vigilant.