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Barbara Loe Fisher discusses her failed lawsuit against Paul Offit and Amy Wallace

Posted Sep 21 2010 10:00pm

Amy Wallace wrote an article on the vaccine/autism discussion entitled An Epidemic of Fear: How Panicked Parents Skipping Shots Endangers Us All. In it she quotes both Dr. Paul Offit of the Children’s Hospital of Philadelphia and Barbara Loe Fisher of the National Vaccine Information Center. As part of that article, Ms. Wallace quoted Dr. Offit discussing Ms. Fisher:

Offit is quick-witted, funny, and — despite a generally mild-mannered mien — sometimes so assertive as to seem brash. “Scientists, bound only by reason, are society’s true anarchists,” he has written — and he clearly sees himself as one. “Kaflooey theories” make him crazy, especially if they catch on. Fisher, who has long been the media’s go-to interview for what some in the autism arena call “parents rights,” makes him particularly nuts, as in “You just want to scream.” The reason? “She lies,” he says flatly.

Ms. Fisher sued Dr. Offit, Amy Wallace and Conde Nast Publications (who publishes Wired) over the statement “she lies”, claiming it was defamatory.

Ms. Fisher’s suit was dismissed before it could be heard. Ms. Fisher has now blogged her experiences as .

Much of that account struck me, but allow me to discuss a few here:

Ms. Fisher states in regard to Ms. Wallace’s response to the suit: Instead of providing one piece of solid evidence to support Offit’s defamatory statement, Wallace claimed I could not sue her because she is a resident of California.

Well, I looked up the MOTION TO DISMISS BY AMY WALLACE AND CONDÉ NAST PUBLICATIONS INC.. Yes, in point 4 they do state that there is a problem with jurisdiction. But that is not the whole story. Ms. Fisher seems to have forgotten point 3 of the “Motion to Dismiss”. I’ll quote it below:

It is evident, however, that plaintiff cannot obtain the relief she seeks even if all well-pleaded factual allegations are accepted as true and the reasonable inferences derived therefrom are viewed in the light most favorable her. Under controlling state and federal law in this jurisdiction, the challenged remark by Dr. Offit, about a matter of substantial public concern, is not actionable as defamation because it is neither capable of being understood as stating actual facts nor of being proven true or false. It is, therefore, an expression of opinion that is immune from civil liability under the common law of Virginia, the Constitution of this Commonwealth, and the First Amendment of the United States Constitution.

Ms. Wallace’s defense was not just that she is a resident of California.

Ms. Fisher conitinues:

And Offit, who has no trouble keeping a straight face when he states flatly that it is absolutely safe for a child to get 10,000 vaccines at once and 100,000 vaccines in a lifetime, claimed he was simply having an emotional meltdown when he hysterically told Wallace “flatly” that I lie. And to draw attention away from the seriousness of engaging in libel per se, the defendants’ attorneys argued that “the quoted remark ‘she lies’ is not capable of being proven true or false” because the civil court system cannot prove whether vaccines do or do not cause harm.

I don’t know what video Ms. Fisher is referencing when she states that Dr. Offit can’t keep a straight face. I mean, she wouldn’t say that unless she actually saw him talking (each and every time he has done it) and noticed that he had such troubles, would she? In Dr. Offit’s Motion to Dismiss, I don’t see any mention of the words “emotional meltdown”. Perhaps it was in some other document I was unable to pick up from PACER? I don’t recall the Wired article claiming that Dr. Offit was “hysterical”. I mean, this couldn’t possibly be an expression of opinion of Ms. Fisher in a heated debate and not a statement of actual facts? As such, wouldn’t Ms. Fisher’s statements be protected speech, even if they aren’t completely factual?

As to the actual statement “She lies” that is the basis for Ms. Fisher’s failed suit? In her blog piece Ms. Fisher writes:

Third, Hilton offered the opinion that Offit’s allegation “cannot be reasonably understood to suggest” that I am “a person lacking honesty and integrity” and that Wallace and Wired magazine were only reporting Offit’s “personal opinion” about my “views” and none of the defendants intended to make a “literal assertion of fact” that I lie.

In other words, they really didn’t mean it.

Is that really what was argued and decided? From a response Dr. Offit filed with the court:

Accordingly, the question is not whether Dr. Offit could provide a list of specific “lies” stated by Plaintiff in the past – an exercise he will undergo to establish “truth” if this case is not dismissed on this initial motion – but whether Dr. Offit’s vague statement in the context of the Article will merely be understood as a loose expression of disagreement with Plaintiff, not an assertion of specific actual fact, and thus constitutes protected opinion immune from suit.

He seems to be willing to provide a list of specific “lies” stated by [Ms. Fisher] in the past. I don’t see that as the same thing as “they didn’t really mean it.” (as an aside, why “they”? Amy Wallace wasn’t saying that Ms. Fisher lies. She was reporting what Dr. Offit said.)

In response to Ms. Wallace’s argument that Virginia was the incorrect jurisdiction, Ms. Fisher requested discovery information:

Plaintiff requests discovery concerning all facts germane to personal jurisdiction including, but not limited to, traffic on the defendants’ various websites, including, for example, the geographic locations of all who have transmitted comments in association with those websites; all who have sent correspondence in response to Wallace’s Wired article; the Virginia state Wired magazine subscriptions obtained through Wired.com; and Wallace’s communications with CNP concerning the Wired.com blog, as well as any and all interactions between Wallace and Virginia sources, Virginia media, and Virginia readers.

Yep. Any and all interactions between Amy Wallace and people in Virginia (the state of jurisdiction for this case) and all communications with CNP (Conde Naste Publications. Essentially her employer on this piece).

This sounds like a fishing expedition to me (is that protected speech?). Especially the part about “Wallace’s communications with CNP concerning the Wired.com blog.”

Ms. Fisher notes in her piece that she has been a proponent of vaccine education for many years. Earlier this year she put out a YouTube video discussing the presence of “fatal pig viruses” in the rotavirus vaccines. At that time I emailed them, seeking some education on the subject. I asked a simple question:

I saw your recent video. You mention “fatal pig viruses”. Could you please point me to your data indicating that these viruses are fatal in humans?

The email remains unanswered.

  1. brian:
    According to Fisher, ". . . Offit, who has no trouble keeping a straight face when he states flatly that it is absolutely safe for a child to get 10,000 vaccines at once . . . " Anyone who has read Offit's paper should be able to understand that Offit was addressing the theoretical capacity of the immune system to respond to simultaneous challenge by multiple antigens, and not safety, in the pertinent sections. I suppose Offit might have phrased this more delicately, rather like this: "Either she lies or she's willfully and profoundly ignorant."
  2. IvarTJ:
    There are a few typographical errors in this post that bug me. First, quotation marks should in professional English writing generally be placed after punctuation. Second, quotation within quotation should be encapsulated with single, instead of double, apostrophes. I still appreciate the content.
  3. Joseph:
    Not only would she have to prove she's never lied, she'd also have to show Dr. Offit absolutely knew she wasn't lying.
  4. Squillo:
    So, in claiming (among other things) that Wallace's defense rested solely on jurisdiction, Fisher... lied.
  5. Orange Lantern:
    First, quotation marks should in professional English writing generally be placed after punctuation. Second, quotation within quotation should be encapsulated with single, instead of double, apostrophes.
    This is a UK-based blog. My understanding is that it is very common in the UK to use logical puncutation instead of typesetter's rules. See: http://en.wikipedia.org/wiki/Quotation_marks#Punctuation I didn't use a fine toothed comb to look, but I didn't notice any quotations within quotations, unless you are referring to the ones in the blockquotes. I'm doubt that using single quote marks applies in that case, but I could be wrong. Personally I wish we could abandon the useless typesetter's rules in America as well, but I am in the tiny, tiny, minority.

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