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Vinson &Eikins David P Blanke dblanke@velaw com Tel +1 512 542 8622 Fax +1 512 236 3314
March 23, 2012 By Courier Hon. Lora J. Livingston Travis County Local Administrative Judge 261st Judicial District Civil Court Heman Marion Sweatt Travis County Courthouse 1000 Guadalupe, 3rd Floor Austin, Texas 78701 Re:
Dr. Andrew J. Wakefield, MB., BS., FRCS v. The British Medical Journal, et al; Cause No. D-l-GN-12-000003
Dear Judge Livingston: We represent BMJ Publishing Group Ltd., the editor-in-chief of the British Medical Journal (BMJ), Dr. Fiona Godlee, and an investigative journalist, Brian Deer (the BMJ Defendants), on whose behalf we request assignment to a single district court pursuant to Local Rule 2.6. Background of this Case At issue in this case are a disbarred British physician's libel claims stemming from a series of articles by reporter Deer and editorial commentary by the BMJ, critical of research Wakefield carried out and published in England more than a decade ago on an alleged link between a lifesaving childhood vaccine and autism. This is not Dr. Wakefield's first lawsuit over Deer's reporting.1 He has sued Deer for libel in London twice, both times dismissing
1
Deer's reporting on Wakefield was honored with British Press Award, the U.K. equivalent of the Pulitzer Prize. Other reporting on Dr. Wakefield has been sharply critical of him. See, e.g., Alice Park, Andrew Wakefield, Time, Jan. 12, 2012 (naming Dr. Wakefield one of the "Great Science Frauds" of modem history), available at http://healthland.time.eom/2012/01/l 3/great-science-frauds/slide/andrew-wakefield; Susan Dominos, The Crash and Burn of an Autism Guru, N.Y. Times, April 20, 2011 (describing Wakefield as "one of the most reviled doctors of his generation"), available at http://www.nytimes.com/2011 /04/24/magazine/mag. Vinson & Elkins LLP Attorneys at Law
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the case and being required to pay the defendants' attorneys' fees. The judge presiding over one of the proceedings castigated Wakefield for his tactical use of litigation: [Dr. Wakefield] wished to use the existence of libel proceedings for public relations purposes, and to deter critics, while at the same time isolating himself from the 'downside' of such litigation, in having to answer a substantial defence of justification.2 This Texas case follows on the heels of the warning Wakefield received that he would be required to post a bond if he filed suit again in the United Kingdom. Reasons for Assignment to a Single Judge Dr. Wakefield's attempt to establish a Texas battle line raises several jurisdictional and media-law issues, including the interplay between the special appearances filed by the three BMJ Defendants and their motion to dismiss under Texas' new anti-SLAPP law, TEX. CIV. PRAC. & REM. CODE ยง 27.001 et seq. Both procedures carefully circumscribe discovery, and a judge called upon to resolve disputes over the scope of that discovery and related scheduling issues will be required to become familiar with the underlying substantive issues on each motion.3 The anti-SLAPP motion is more than 50 pages, supported by more than one hundred exhibits and one hundred pages of testimony describing the careful development of the BMJ Defendants' reporting. Given the interplay between these motions and the related discovery, scheduling, and substantive issues, the BMJ Defendants respectfully submit that a single assigned judge 2
Wakefield v. Channel Four Television Corp., Twenty Twenty Prods. Ltd. And Brian Deer, [2005] EWHC 2410 (QB) (Eng.). The revelations regarding Dr. Wakefield's research have resulted in, or been a subject of, other proceedings. See General Medical Council, Determination on Serious Professional Misconduct (SPM) and Sanction, 24 May 2010) (in 2010, the United Kingdom's General Medical Council convicted him of multiple charges of "serious professional misconduct," including "dishonesty" and "unethical conduct," and held that the severity and extent of his misconduct rendered revocation of his medical license as the only adequate means of protecting the public), available at http://www.gmc-uk.org/wakefield_SPM_and_SANCTION.pdf _32595267.pdf; Cedilla v. Secr'y of Health & Human Servs., No. 98-916V, 2009 WL 331968, at *111 (Fed. CI. Feb 12, 2009), aff'd, 89 Fed CI 158 (2009) (the Special Master presiding over vaccine litigation in the United States Court of Federal Claims recognized that Wakefield's 1998 Lancet article was regarded as a "scientific fraud."). 3
For example, discovery under Rule 120a must be found to be "essential to the opposition" of a defendant's special appearance. The anti-SLAPP statute provides that discovery is automatically stayed upon the filing of a motion to dismiss and may be opened only "on a showing of good cause" and, even then, only "specified and limited discovery relevant to the motion" is permitted. TEX. CIV. PRAC. & REM. CODE ยง 27.006(b).
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would be better-positioned to handle this case in a way that ensures consistency and efficiency. Therefore, they respectfully request the appointment of an assigned judge pursuant to Local Rule 2.6. Requestfor Expedited Consideration Yesterday, Dr. Wakefield filed a request for a 120-day continuance of Defendants' special appearances hearing, and he has set that request for hearing on March 29, 2012. For the reasons discussed above, the BMJ Defendants respectfully request that the Court assign this case to a single judge prior to March 29, 2012. This request has been circulated to Dr. Wakefield's counsel. Court's attention to this matter. Very truly yours, /s/ David P. Blanke David P. Blanke c:
William M. Parrish John D. Saba Thomas S. Leatherbury Marc A. Fuller Sean W. Kelly Lisa Bowlin Hobbs {all by e-mail)
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We appreciate the