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Kathleen Seidel is not alone, as attorney Clifford Shoemaker continues his fishing expedition

A couple of weeks ago, I commented about a frivolous, SLAPP-style subpoena directed at one of the most thorough, rational bloggers about autism out there, Kathleen Seidel by Clifford Shoemaker, the attorney for Rev. Lisa Sykes and her husband Seth Sikes, both of whom who are suing Bayer for alleged “vaccine damage” as a cause of their child’s autism. The subpoena in question, issued mere hours after Seidel published a well-researched but particularly unflattering post about Clifford Shoemaker’s activities suing vaccine manufacturers, was so obviously a fishing expedition designed to intimidate Seidel into silence that even David Kirby and Dan Olmstead, two reliable members of the mercury militia who have done arguably more recently to post propaganda claiming that vaccines cause autism than nearly anyone else, couldn’t stomach Shoemaker’s despicable action and actually condemned it.

That’s really, really bad, when even Shoemaker’s most loyal allies can’t stand what he did.

It turns out that there’s good news and bad news on the Shoemaker front. First the good news: The First Amendment team at Public Citizen has agreed to provide Seidel with legal assistance. Here’s hoping her new lawyers give Shoemaker exactly what he deserves. It may not be necessary, though, because as of Friday at least no response had been forthcoming from Shoemaker to Seidel’s motion to quash his subpoena. Maybe even Shoemaker has a tiny shred of conscience. Either that, or he doesn’t like his new Google profile, in which multiple posts critical of his legal thuggery now show up on the first page of searches for his law firm, truly a well-deserved result. Perhaps the criticism of one of his buddies in the antivaccination movement, David Kirby, gave him pause. Who knows?

And now the bad news: As Liz Ditz and others have pointed out, it turns out that Kathleen Seidel is not alone in being subject to Shoemaker’s less-than-honorable legal attention. A few days before filing his onerous SLAPP-style subpoena for Seidel, apparently Shoemaker did the same thing, and on virtually the same day that Seidel received her little love note from Shoemaker, Dr. Marie McCormick,the 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 greeted with a similarly unwelcome bit of paper at her home, portending a similarly intrusive and intimidating fishing expedition.

Why did Shoemaker subpoena Dr. McCormick? From 2001 to 2004, Dr. McCormick was the chair of the Immunization Safety Review Committee of the Institute of Medicine (IOM). This committee is charged with analyzing and reporting on data relevant to the safety of vaccines and vaccination practices. During her tenure, as Kathleen points out, this particular committee published numerous reports of its findings, many of which are now freely available on the National Academy of Sciences website. Among these reports was one from 2001, Measles-Mumps-Rubella Vaccine and Autism, in which the committee concluded that the then existing studies provided no support for an association on a population level between MMR immunization and autism or autistic spectrum conditions (a conclusion that has only become stronger with time and more studies). Another one of its reports, Vaccines and Autism, which was published in May 2004, concluded that the currently-available evidence at the time favored rejecting the hypothesis of a causal relationship of thimerosal-containing vaccines and autism. Again, this finding has stood up and become only stronger with more studies done since then.

Here’s what the subpoena demands:

  • all documents pertaining to the “setup, financing, running, [and] research” of the Immunization Safety Review Committee;
  • committee correspondence with federal funding and requesting agencies;
  • documentation of “any association (financial or otherwise)” between committee volunteers and staff, and pharmaceutical companies or “any other private persons or companies with financial interest in any topics reviewed by the… committee and staff members”;
  • all documents related to any “closed door transcript discussions” or “any discussions (open or closed door)” that preceded the issuance of final reports by the committee;
  • material pertaining to “conflicts of interest, either apparent, potential or real,” of committee volunteers and staff;
  • any documents pertaining to the manner in which the Institute of Medicine and its committees operate;
  • communications surrounding committee member Dr. Polly Sager’s assessment of the work of Dr. Thomas Burbacher;
  • documentation of supposed discrepancies between statements made to the press by committee members and staff, and the conclusions expressed in its reports;
  • communications with the U.S. Centers for Disease Control; results of committee votes; and additional transcripts of committee meetings.

The demands are quite onerous, and, as is pointed out in the motion to quash, include documents that there is no reasonable basis upon which a reasonable person could conclude that Dr. McCormick would have, given that the documents would be maintained by the National Academy of Sciences, not any single member of any committee. Moreover, even if they could justify their apparent belief that Dr. McCormick has information relevant to their case that could not be obtained any other way the plaintiffs have not shown any evidence that they have conducted their own searches of publicly available information and exhausted these resources first. In essence, they are demanding that Dr. McCormick do their homework for them. Moreover, the subpoena is argued to be premature, given that the court has not yet determined whether the action in support of which this subpoena was issued will be allowed to go forward.

Given that Dr. McCormick was the chair of a major committee that looked into claims that vaccines somehow cause autism, one might conclude on first glance that this subpoena is not as frivolous as the one issued against Kathleen Seidel. However, I would say that it’s only marginally so. This subpoena, like the one against Seidel, is clearly motivated by a conspiracy theory in which the National Academy of Science is somehow in the pockets of big pharma and hope to smear scientists who served on the panel. In the memorandum of law in support the motion to quash a third party subpoena, Dr. McCormick’s lawyer points out:

In selecting members for the Safety Committee, the Academy precluded participation by anyone with a financial interest in a vaccine manufacturer; anyone receiving research funding from a vaccine manufacturer; anyone who had served on a major vaccine advisory committee; and anyone who had given testimony on or written about vaccine safety. Further, an individual could serve on the Comittee if he or she received funding from the Centers for Disease Control (CDC) or the National Institutes of Health, provided, however, that such funding was not vaccine safety work. In addition, any funding from the CDC could not be current or recent. The individuals who were appointed to serve on the Safety Committee were determined to have met these criteria.

So much for the conflict of interest Shoemaker seems to be imagining. In reality, this subpoena is little different from the one against Seidel in that it seems designed as a fishing expedition to provide the opportunity to try to poke around in the financial workings of the Safety Committee, the National Academy of Sciences, and members of the Immunization Safety Review Committee. Moreover, it is a subpoena that is likely to fail as well, as this particular committee has been protected from such intrusions:

Plaintiffs in personal injury actions routinely serve subpoenas on the Academy and its scientists attempting to force exactly the kind of disclosure at issue here, and federal and state courts just as routinely quash those subpoenas or otherwise forbid the inquiry. An unbroken wall of authority recognizes that the Academy could not perform its important function if it were forced to reveal its internal deliberations to private litigants, and every court ever to consider a motion to quash like this one has granted relief.

Reading this and my old post on how antivaccination pseudoscience has turned increasingly threatening to scientists, it occurred to me that the antivaccination movement is becoming more and more worrisomely like the animal rights movement. No, as far as I know, it has not yet resorted to vandalism or violence, as the animal rights movement has, as the science has increasingly rejected a link between vaccines and autism, the rhetoric has become disturbingly more hysterical, and a ramping up of the rhetoric is all-too-often associated with violence; certainly threats of violence are already a fact of life for some vaccine researchers who have analyzed the data, reject a link between vaccines and autism, and are willing to say so in public. Indeed, in the wake of the Hannah Poling case, which has been twisted by antivaccinationists so as to make Hannah a poster child for the claim that vaccines, somehow, some way cause autism, certain scientists with expertise in mitochondrial disorders are only willing to set the record straight regarding the misappropriation of their science in the mercury militia’s war against vaccines in anonymity because they do not wish to attract the attention of antivaccinationists–and understandably so. Unfortunately, as Kevin Leitch points out, this leaves the field of mitochondrial diseases wide open to unopposed pseudoscience:

One of the most frustrating things about blogging the unfolding vaccine>mitochondria>autism hypothesis is that a lot of the doctors who are experts in the field of mitochondria don’t want to publicly comment. A lot of them feel quite rightly that there is a certain element who are not the most balanced of individuals and they don’t really want to expose themselves to these people. That I can definitely empathise with…Please remember that kids with mitochondrial issues are a whole new ball game. Talking their parents out of vaccinating them could very well kill them.

(Read the quotes.)

Indeed, even an interesting and potentially illuminating observation in its early stages, such as recently published evidence suggesting some sort of link between autism and mitochondrial disorders, can be appropriated by antivaccinationists to the point where scientists who previously labored in obscurity on these uncommon disorders now find themselves afraid of the sudden attention by cranks that their field has attracted, not unlike deer caught in headlights. Antivaccinationists tout this linkage, even though it’s nowhere near clear whether this is an epiphenomenon or contributing cause to autism. Worse, the small studies thus far finding that high percentages of autistic children have defects in mitochondrial function are riddled with major selection bias. These are not randomly selected autistic children; rather, they were referred for evaluation for mitochondrial dysfunction because their doctors had clinical reasons to suspect that they might have such a disorder. Moreover, there is no compelling evidence to link autism to some reaction of children with mitochondrial disorders to autism; it’s just another rebranding of autism by antivaccinationists and further evidence for the incredibly shrinking vaccine causation hypothesis.

Actions like those of Clifford Shoemaker concern me, and they should concern everybody interested in free speech, academic freedom, and freedom of inquiry. Through his subpoenas, first he has tried to silence bloggers who dig too deeply into his behavior and legal tactics with respect to suing vaccine manufacturers. Fortunately, in this case, he appears likely to have quietly admitted defeat given that he has not yet responded to Seidel’s motion to quash his subpoena. Next, he has directed his legal thuggery at one scientist who has done volunteer work serving on committees designed to monitor vaccine safety, making me wonder if there are other subpoenas out there already filed or waiting to be filed against other vaccine scientists. In the current climate of both verbal and legal intimidation directed against scientists who stand up to vaccine pseudoscience, it’s a wonder that any sane scientist would want to enter this minefield and risk drawing the attention of antivaccination ideologues, but fortunately a few do. Unfortunately, many more just try to keep their heads down and say nothing that might draw attention to them.

Here’s hoping that both Kathleen Seidel’s and Dr. McCormick’s subpoenas are quashed. Such an action would at least send a message that good science is a defense against pseudoscience.

By Orac

Orac is the nom de blog of a humble surgeon/scientist who has an ego just big enough to delude himself that someone, somewhere might actually give a rodent's posterior about his copious verbal meanderings, but just barely small enough to admit to himself that few probably will. That surgeon is otherwise known as David Gorski.

That this particular surgeon has chosen his nom de blog based on a rather cranky and arrogant computer shaped like a clear box of blinking lights that he originally encountered when he became a fan of a 35 year old British SF television show whose special effects were renowned for their BBC/Doctor Who-style low budget look, but whose stories nonetheless resulted in some of the best, most innovative science fiction ever televised, should tell you nearly all that you need to know about Orac. (That, and the length of the preceding sentence.)

DISCLAIMER:: The various written meanderings here are the opinions of Orac and Orac alone, written on his own time. They should never be construed as representing the opinions of any other person or entity, especially Orac's cancer center, department of surgery, medical school, or university. Also note that Orac is nonpartisan; he is more than willing to criticize the statements of anyone, regardless of of political leanings, if that anyone advocates pseudoscience or quackery. Finally, medical commentary is not to be construed in any way as medical advice.

To contact Orac: [email protected]

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