Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘vaccines’

Seidel subpoena aftermath

As a judge considers whether to impose sanctions on attorney Clifford Shoemaker for hitting investigative blogger Kathleen Seidel with an intimidating subpoena, one of Shoemaker’s attorneys asks the court for more time “to gather the material I would need to show the Court the justification for the Subpoena and its scope,” which prompts Eric Turkewitz to wonder (May 6): “Why is it necessary to look for justification for the subpoena after it was issued?” And: “Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.”

In another indication that heavy-handed pursuit of a blogger might not have worked out very well as a legal strategy, Shoemaker’s own clients, the Sykes family, have now voluntarily dropped their vaccine-autism suit against Bayer, which was the basis for the subpoena (Seidel, Orac).

Perhaps-ominous sequel: Seidel points out in a new post that Shoemaker’s legal papers accuse her of arguably tortious conduct in her comments on autism litigation, including interfering with “witnesses’ professions, professional relationships, and economic opportunities”, and that the witnesses in question in the Sykes suit, Dr. Mark Geier and David Geier, have previously pursued long and costly litigation against four scientists and the American Academy of Pediatrics over an article in Pediatrics which disputed the Geiers’ findings. The suit — which was eventually dismissed without prejudice as to the scientists, and dismissed with prejudice as to AAP — contended that damages were owing because the article in question had cut into the Geiers’ potential income as expert witnesses.

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April 29 roundup

  • “Dog owners in Switzerland will have to pass a test to prove they can control and care for their animal, or risk losing it, the Swiss government said yesterday.” [Daily Telegraph]
  • 72-year-old mom visits daughter’s Southport, Ct. home, falls down stairs searching for bathroom at night, sues daughter for lack of night light, law firm boasts of her $2.475 million win on its website [Casper & deToledo, scroll to “Jeremy C. Virgil”]
  • Can’t possibly be right: “Every American enjoys a constitutional right to sue any other American in a West Virginia court” [W.V. Record]
  • Video contest for best spoof personal injury attorney ads [Sick of Lawsuits; YouTube]
  • Good profile of Kathleen Seidel, courageous blogger nemesis of autism/vaccine litigation [Concord Monitor*, Orac]. Plus: all three White House hopefuls now pander to anti-vaxers, Dems having matched McCain [Orac]
  • One dollar for every defamed Chinese person amounts to a mighty big lawsuit demand against CNN anchor Jack Cafferty [NYDN link now dead; Independent (U.K.)]
  • Hapless Ben Stein whipped up one side of the street [Salmon on financial regulation] and down the other [Derbyshire on creationism]
  • If only Weimar Germany had Canada-style hate-speech laws to prevent the rise of — wait, you mean they did? [Steyn/Maclean’s] Plus: unlawful in Alberta to expose a person to contempt based on his “source of income” [Levant quoting sec. 3 (1)(b) of Human Rights Law]
  • Hey, these coupon settlements are giving all of us class action lawyers a bad name [Leviant/The Complex Litigator]
  • Because patent law is bad enough all by itself? D.C. Circuit tosses out FTC’s antitrust ruling against Rambus [GrokLaw; earlier]
  • “The fell attorney prowls for prey” — who wrote that line, and about which city? [four years ago on Overlawyered]

*Okay, one flaw in the profile: If Prof. Irving Gottesman compares Seidel to Erin Brockovich he probably doesn’t know much about Brockovich.

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Update: judge quashes Seidel subpoena

[Bumped on breaking news: A federal court in New Hampshire has quashed the subpoena and ordered attorney Clifford Shoemaker to show cause why he should not be subjected to sanctions. Also: Orac. Earlier Monday post follows:]

Autism blogger Kathleen Seidel reports that the online free speech project at Public Citizen has agreed to provide her with legal assistance in responding to vaccine lawyer Clifford Shoemaker’s subpoena (see earlier coverage here, here, and here). One way to read this is as a fairly devastating commentary on just how weak Shoemaker’s position is, since there is ordinarily no more potent public presence on behalf of the plaintiff’s side in pharmaceutical litigation than Public Citizen. Seidel also has discovered that as a Shoemaker target she is in distinguished company:

I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.

From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. …As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports.

McCormick’s lawyers are likewise seeking to quash the subpoena. Much more here (& Beck & Herrmann, Orac, Pharmalot).

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Kathleen Seidel blogger-subpoena furor

After much discussion in the blogosphere this story would seem more than ready to cross over into mainstream-press coverage; here’s a local columnist who says he left three messages with attorney Clifford Shoemaker but got no response (Dave Brooks, “What a Web of actional links we can weave”, Nashua Telegraph, Apr. 9)(via Liz Ditz/I Speak of Dreams’ ongoing list monitoring coverage).

Update 5:30 p.m.: Here’s James Taranto at WSJ Best of the Web, giving just the shove the story may need:

It might behoove the ACLU, or some organization devoted to civil liberties, to devote some resources to figuring out how to defend speech that is inconvenient to plaintiffs lawyers.

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Blogosphere reacts to Seidel subpoena

We’ve updated our post below, but it’s worth noting separately that some of the biggest guns in the blogging world, such as Glenn Reynolds, P.Z. Myers/Pharyngula (where we get attacked by a couple of commenters), and Orac/Respectful Insolence, have weighed in over the last 24 hours on the punishingly broad subpoena that vaccine lawyer Clifford Shoemaker has aimed at autism blogger Kathleen Seidel of Neurodiversity. Others: PalMD, Pure Pedantry, I Speak of Dreams, Law and More, Open Records, Matt Johnston, and my own cross-post at Point of Law. And: Family Voyage, Jack’s NewsWatch, Autism Street, Eric Turkewitz/New York Personal Injury Law Blog, Elf M. Sternberg, PopeHat, PooFlingers, Women’s Bioethics Blog, Asperger Square 8, Rettdevil’s Rants, and longer list at Liz Ditz/I Speak of Dreams. Plus: Carolyn Elefant @ Legal Blog Watch.

P.S. One lawyer friend wrote to say “I dunno, it’s only a subpoena”, to which I replied that I was reminded of my gun-enthusiast friends who say things like, “it’s only a semi-automatic”.

P.P.S. More press coverage here.

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Vaccine lawyer subpoenas Kathleen Seidel

I’ve often linked in the past to the work of New Hampshire blogger Kathleen Seidel, whose weblog Neurodiversity presents a fearless, systematically researched, and frequently brilliant ongoing critique of autism vaccine litigation. A prominent plaintiff’s lawyer in that litigation, Clifford Shoemaker of Vienna, Virginia, has just hit Seidel with an astoundingly broad and sweeping subpoena (PDF) demanding a wide range of documents and records relating to her publication of the blog. Seidel has been sharply critical of Shoemaker’s litigation, and indeed the subpoena arrived only hours after she posted a new Mar. 24 entry, “The Commerce in Causation“, critical of his legal efforts.

The subpoena contains no indication that Seidel herself is accused of defaming anyone or violating any other legal rights of any party. Instead it seems she is being dragged in as a third-party witness in Shoemaker’s suit on behalf of his clients, Rev. Lisa Sykes and Seth Sykes, against vaccine maker Bayer. Although Seidel has been a remarkably diligent blogger on autism-vaccine litigation, I can find no indication that she is in possession of specialized knowledge that Shoemaker would not be able to obtain for his clients through more ordinary means.

Instead, the first phrase that occurred to me on looking through the subpoena was “fishing expedition”, and the second was “intimidation”. Several clauses indicate that Shoemaker is hoping to turn up evidence that Seidel has accepted support from the federal government, or from vaccine makers, which she says she hasn’t. Also among the documents demanded: Seidel’s correspondence with other bloggers. As she puts it in her response:

The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” – including but not limited to material mentioning the plaintiffs – and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”…

Plaintiffs and their counsel seek not only to rummage through records that they suspect pertain to themselves, but also through my family’s bank records, tax returns, autism-related medical and educational records, and every communication concerning all of the issues to which I have devoted my attention and energy in recent years.

Seidel has responded with a self-drafted motion to quash the subpoena, and expresses confidence that a judge will rule in her favor, and perhaps go so far as to agree with her contention that it constitutes sanctionable abuse. Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers who expose lawyers and their litigation to critical scrutiny (& welcome Instapundit, Pure Pedantry, P.Z. Myers, I Speak of Dreams, Law and More, Open Records, Matt Johnston readers. And Orac/Respectful Insolence, with what he terms an “important rant“. More reactions here and here).

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February 6 roundup

  • Calling it “oppressive”, committee chair in Mississippi legislature vows to defeat proposal to ban restaurants from serving obese patrons [AP/Picayune-Item; earlier]

  • Latest in whales vs. sub sonar: judge deep-sixes Bush’s attempt to exempt Navy from rules against bothering marine mammals [CNN; earlier]

  • Much-criticized opener of ABC’s new series Eli Stone aired last Thursday, and Orac takes a scalpel to the vaccine-scare script [Respectful Insolence, which also covers new autism studies]

  • Scary proposal approved by California assembly would strong-arm larger private foundations — and businesses that deal with them — into “diversity” numbers game [Lehrer/Hicks @ L.A. Times]

  • New Dutch study finds thin people and nonsmokers cost health system more in long run than obese and smokers — theories behind Medicaid-recoupment litigation are looking more fraudulent every day, aren’t they? [AP]

  • Late, but worth noting: blogger nails John Edwards’s demagoguery on Nataline Sarkisyan case [Matthew Holt @ Spot-On, via KevinMD; more here, here, and from Ted here]

  • Puff piece on food-poisoning lawyer William Marler [AP/KOMO]

  • Ready, set, all take offense: Sen. McCain likes to tell lawyer jokes [WSJ law blog]

  • In suit charging UFCW with “racketeering”, Smithfield cites as an underlying offense union’s having lobbied city councils to pass resolutions condemning the meatpacker; company has hired Prof. G. Robert Blakey, who denies the RICO law he drafted is a menace to liberty [Liptak, NYT; some earlier parallels in federal tobacco suit]

  • Golden age of comic books was 1930s-1950s, but golden age of comic book litigation is now [NLJ]

  • New at Point of Law: Hillary’s “disastrous” mortgage scheme; Qualcomm sanctions ruling could curb discovery abuse; if Mel Weiss has been kind to you, why drop him down memory hole?; new academic theory on uniformity of contingency fees; the trouble with patenting tax avoidance strategies; and much more [visit][bumped Wed. a.m.]

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February 1 roundup

  • Following public outrage, Spanish businessman drops plans to sue parents of boy he killed in road crash [UK Independent; earlier]

  • Scruggs to take Fifth in State Farm case against Hood [Clarion-Ledger] And how much “home cooking” was the Mississippi titan dished out in the Medicaid-tobacco case that made his fortune? [Folo]

  • More critics assail ABC “Eli Stone” vaccine-autism fiction, with American Academy of Pediatrics calling for episode’s cancellation [AAP press release; Stier, NY Post; earlier]

  • Special ethics counsel recommends disbarment of Edward Fagan, lawyer of Swiss-bank-suit fame whose ethical missteps have been chronicled on this site over the years [Star-Ledger]. As recently as fourteen months ago the L.A. Times was still according Fagan good publicity;

  • In past bail-bond scandals, private bond agencies have been caught colluding “with lawyers, the police, jail officials and even judges to make sure that bail is high and that attractive clients are funneled to them.” [Liptak, NYT]

  • Archbishop of Canterbury calls for new laws to punish “thoughtless or cruel” comments on religion [Times Online, Volokh]

  • Another disturbing case from Massachusetts of a citizen getting charged with privacy violation for recording police activity [also Volokh]

  • Abuse of open-records law? Convicted arsonist files numerous requests for pictures and personal information of public employees who sent him to prison; they charge intimidation [AP/Seattle Post-Intelligencer]

  • It resembles a news program on Connecticut public-access cable, but look more closely: it’s law firm marketing [Ambrogi]

  • Judge says Alfred Rava’s suit can proceed charging sex bias over Oakland A’s stadium distribution of Mother’s Day hats [Metropolitan News-Enterprise; earlier on Angels in Anaheim]

  • Crack down on docs with multiple med-mal payouts? Well, there go lots of your neurosurgeons [three years ago on Overlawyered]

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ABC series “Eli Stone”

The New York Times arts page (Edward Wyatt, “ABC Drama Takes on Science and Parents”, Jan. 23) gives the producers of the forthcoming ABC television series “Eli Stone” a surprisingly sound thwacking for lending credibility to theories that seek to blame autism on the vaccine preservative thimerosal. The script of the show, notes the Times, “takes several liberties that could leave viewers believing that the debate over thimerosal — which in the program’s script is given the fictional name mercuritol — is far from scientifically settled.” But, the review notes, “reams of scientific studies by the leading American health authorities have failed to establish a causal link between the preservative and autism. Since the preservative was largely removed from childhood vaccines in 2001, autism rates have not declined.”

Greg Berlanti, a creator of the series, tells the Times that the show presents both sides. If so, there is little doubt which side is presented as the “right” one. The title character of the TV show is supposed to have been a “bad” lawyer (he represented big businesses, you see) who after being struck by a spiritual crisis crossed over to redeem himself by representing the “little guy” in lawsuits. (Per the Times, “In each episode Eli Stone takes on a different cause; in other episodes sent to television reviewers for preview, he wages court battles against a pesticide maker and a priest.”) The ABC preview site, and trailer running in theaters, end with a logo in which the “o” in the character’s surname is presented as a halo. Nothing heavy-handed about that!

Maybe next season Stone can sue on behalf of a client claiming that overhead power line emissions triggered recovered memories of autoimmune damage from her breast implants.

P.S. Orac at Respectful Insolence, no surprise, is on the warpath: “It’s times like these that I wish the Hollywood writers’ strike had really and truly shut down production of new dramas completely.” Other reactions: Autism Vox, Richard’s Asperger’s Blog, and various others rounded up by Liz Ditz.

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Even more on autism and thimerosal

Ronald Bailey at Reason’s blog Hit & Run discusses a recent article by Stephanie Desmon in the Baltimore Sun on the topic. Ron rightly mentions the end result of all the fuss over thimerosal in vaccines: worried parents, unvaccinated kids and more expensive vaccines. As I mentioned earlier this week, a recent study in the Archives of General Psychiatry also cast doubt on the supposed link.

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