Legal Thuggery Against

Legal Thuggery Against April 6, 2008

Kathleen Seidel, author of the Neurodiversity weblog, writes extensively about issues related to autism. Among other things, she gives the scientific perspective on claims that autism is caused by vaccination. One of her recent posts, The Commerce in Causation, concerns the career of one Clifford Shoemaker – a lawyer who’s represented hundreds of clients making this allegation, including an ongoing suit, Sykes v. Bayer. Many of these cases have come before the federal Vaccine Injury Compensation Program, which pays attorneys’ fees and costs regardless of whether a claim is successful. Seidel points out that this gives Shoemaker a strong financial incentive to defend even scientifically frivolous claims, and to encourage more people to sue regardless of whether their cases are meritorious:

The elimination of litigative risk, however, provides a motivation for VICP specialists facing a paucity of substantiable claims to nurture exaggerated public perceptions of vaccine risks; to overstate the likelihood that facts in compensable cases are similar to those that are not; to promulgate dubiously-supported claims of the range of maladies that might be caused by vaccines; and to encourage individuals and families grappling with chronic, disabling medical and developmental problems to attribute causation of those problems to heretofore unrecognized, “long onset” vaccine reactions.

Just a few days after posting this, Seidel was subpoenaed by none other than Clifford Shoemaker, as part of his ongoing lawsuit against Bayer. The scope of the subpoena is astonishingly broad, and demands the production of a vast amount of personal and financial information of no discernible relevance to Shoemaker’s case:

The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website” – 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.”

Orac of Respectful Insolence calls this subpoena a fishing expedition, but I wouldn’t agree. A fishing expedition is what you call a subpoena which forces someone to disgorge a huge number of documents in the belief that something might prove relevant. But it’s all but impossible to see how this subpoena could meet even that standard. How could Kathleen Seidel’s personal communications and financial records be in any way relevant to the question of whether Bayer’s vaccines caused a child’s autism?

Clearly, they are not relevant. The obvious purpose of this subpoena is not to dig up relevant evidence for the case at hand, but for Shoemaker to intimidate his critics by using the legal system as a means of retribution. He hopes to force Seidel to comply with this onerous, burdensome and irrelevant demand in order to chill opposing speech and scare off any other commentators who might be tempted to criticize the scientific basis of his claims or point out his financial incentives for advancing them.

Seidel has filed a motion to quash Shoemaker’s subpoena, and given the frivolous and meritless nature of his demands, we have every reason to hope it will succeed. I’ll report on further developments as they unfold, and if I learn of any way we can assist her, I’ll post about that as well.

This is not the first time that advocates of pseudoscience have attempted to use the legal system to punish and intimidate their critics. Similar examples can be seen in the psychic pretender Sylvia Browne threatening to sue a skeptic and Stuart Pivar threatening to sue P.Z. Myers for posting a negative review of his book. Both these suits were dropped when their targets fought back, which sends a heartening message about the advisability of standing up to bullies.

UPDATE (4/22): Shoemaker’s subpoena has been quashed.

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