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CAUSE NO. D-1-GN-12-000003

DR. ANDREW J. WAKEFIELD, MB., BS.

§ §

IN THE DISTRICT COURT

v.

§ § §

FOR THE 250th JUDICIAL DISTRICT

THE BRITISH MEDICAL JOURNAL, a d/b/a of BMJ PUBLISHING GROUP LTD, also d/b/a BMJ GROUP, and BMJ, BRIAN DEER, individually, and DR. FIONA GODLEE, individually.

§ § § § § §

TRAVIS COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANTS’ ANTI-SLAPP MOTION TO

DISMISS UNDER TEX. CIV. PRAC. REM. CODE § 27.001 et seq.

TO THE HONORABLE JUDGE CLARK-MEACHAM:

COMES NOW, Plaintiff, Dr. Andrew J. Wakefield, MB., BS, files this his Response to

Defendants’ Anti-SLAPP Motion to Dismiss Under TEX. CIV. PRAC. & REM. CODE § 27.001 et

seq., and would respectfully show the Court the following:

I. SUMMARY OF ARGUMENTS

The Anti-SLAPP Statute does not apply in this case as a matter of law. The Statute only

applies to a legal action that is based on a party’s exercise of certain rights protected by the U.S.

and Texas Constitutions, including the right of free speech.1 The right of free speech does not

protect defamatory statements.2 Here, Defendants’ defamatory statements charge Plaintiff with,

among other things, repeated, elaborate, and intentional fraud in his work. These statements are

1 TEX. CIV. PRAC. & REM. CODE § 27.003(a). 2 See Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (holding that libelous statements are outside the realm of constitutionally protected speech); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d. 789 (1974) (explaining that “there is no constitutional value in false statements of fact”).

Filed12 July 19 P11:15Amalia Rodriguez-MendozaDistrict ClerkTravis DistrictD-1-GN-12-000003

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defamatory per se,3 and are not protected by the constitution. Thus, the Anti-SLAPP Statute

does not apply. For this reason, Defendant’s Motion to Dismiss, which is brought pursuant to

the Anti-SLAPP Statute, must be denied as a matter of law.

Further, even if the Anti-SLAPP Statute does apply, Plaintiff’s Motion to Dismiss should

be denied because Plaintiff has met his burden of establishing, by clear and specific evidence, a

prima facie case for defamation. Under Texas law, a plaintiff’s burden of establishing a prima

facie case is “not onerous” and, as such, a plaintiff need only make a “minimal showing.” The

elements of a claim for defamation are as follows: (1) the Defendants published a statement of

fact; (2) the statement referred to the Plaintiff; (3) the statement was defamatory; (4) the

statement was false; (5) with regard to the truth of the statement, the Defendants acted with

actual malice; and (6) Plaintiff suffered pecuniary injury (unless injury is presumed). Plaintiff

has presented more than sufficient clear and specific evidence to establish a prima facie case for

defamation; thus, as required by the plain language of the Anti-SLAPP Statute, this Court must

deny Defendants’ Motion as a matter of law.

Element 1: The Defendants Published False Statements of Fact. It is undisputed that

Defendants published the defamatory statements. These statements are statements of fact

as a matter of law because they are capable of objective verification. Indeed, in support

of their Motion, Defendants have provided sworn declarations stating that they took great

care to verify “every word” of every statement in every publication, and have argued at

length that such statements are verifiable as true. Consequently, Defendants cannot now

3 See Buck v. Savage, 323 S.W.2d 363, 368 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.); see also Knox v. Taylor, 992 S.W.2d 40, 50 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (defamation is actionable per se if it injuries a person in his or her office, business, profession, or occupation).

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take the position that such statements are opinion or hyperbole, incapable of being

objectively verified as true or false.

Element 2: The Statements Refer to Plaintiff. It is undisputed that the relevant

statements of fact published by Defendants refer to Plaintiff.

Element 3: The Statements Are Defamatory. Defendants have asserted that Plaintiff

is, among other things, fraudulent in the practice of his profession. Because these

statements injure Plaintiff in his profession, they are defamatory per se.

Element 4: The Statements Are False. Plaintiff has provided a sworn declaration

explaining, in detail, why each statement of fact published by Defendant is false. See the

Second Affidavit of Andrew Wakefield. (“Second Affidavit of Dr. Wakefield”) Because

Defendants made so many false claims and made claims of fraud regarding statements

made about many of the Lancet Children and because the evidence that Defendants’

statements are false is so voluminous, the affidavit is very lengthy. The affidavit has a

section dealing with each child. As this Court must assume all of Plaintiffs’ allegations

are true and resolve all inferences in Plaintiff’s favor, Plaintiff has produced more than

sufficient evidence to establish that the defamatory statements were false.

Element 5: Defendants Acted with Actual Malice. Defendants assert that Plaintiff is

required to produce clear and convincing evidence of actual malice in order to defeat

Defendants’ Motion to Dismiss. However, this is not the correct standard. At the

summary-judgment stage, the Texas Supreme Court has explicitly held that a plaintiff

must only raise a fact issue as to actual malice. In determining whether a plaintiff has

met that burden, the court must assume all of the plaintiff’s allegations are true and

resolve all inferences in the plaintiff’s favor. In this case, Defendants have filed an Anti-

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SLAPP Motion to Dismiss; not a motion for summary judgment. Thus, the legal standard

applicable to this case is likely lower than the standard applicable to a motion for

summary judgment. However, even assuming that the summary-judgment standard

applies, at the very most, Plaintiff must only raise a fact issue as to actual malice. And

Plaintiff has satisfied that standard here. Plaintiff has produced clear and specific

evidence to show that Defendants either knew the defamatory statements were false, or

entertained serious doubts as to their truth or falsity. As this Court must assume all of

Plaintiffs’ allegations are true and resolve all inferences in Plaintiff’s favor, Plaintiff has

produced more than sufficient evidence to raise a question of fact as to whether

Defendants acted with actual malice.

Element 6: Plaintiff Suffered Injury. Actual damages are not required because the

statements made by Defendants are considered defamatory per se. But in any event,

Plaintiff has produced sufficient clear and specific evidence to establish that, as a result

of Defendants’ false and defamatory statements, Plaintiff has suffered significant damage

to his professional reputation, character, and feelings, and extensive mental anguish.

II. EVIDENCE

This Response relies on the pleadings on file in this action and the following evidence

filed contemporaneously with this Response, which is incorporated by reference herein:

Exhibit A: Article dated January 5, 2011 authored, edited, and/or published by Defendants entitled Secrets of the MMR Scare: How the Case Against the MMR Vaccine was Fixed. Exhibit B: Article dated January 5, 2011 authored, edited, and/or published by Defendants entitled Wakefield’s Article Linking MMR Vaccine and Autism was Fraudulent. Exhibit C: Article dated January 6, 2011 authored, edited, and/or published by Defendants entitled Editor’s Choice: The Fraud Behind the MMR Scare

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Exhibit D: Deposition of Brian Deer, June 26, 2012 Exhibit E: Deposition of BMJ/J.Smith, June 28, 2012

III. APPLICABLE LEGAL STANDARD

The Texas Anti-SLAPP Statute states that a court may not dismiss a legal action under

the Statute “if the party bringing the legal action establishes by clear and specific evidence a

prima facie case for each essential element of the claim in question.”4 A prima facie case—

which literally translates to “a[t] first sight”—is established when a party produces “enough

evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.”5 Under

Texas law, a plaintiff’s burden of establishing a prima facie case is “not onerous”6 and requires

only a “minimal” showing.7 The Texas Anti-SLAPP Statute’s only addition to this otherwise

very low burden is that the plaintiff’s evidence must be “clear and specific.”8

Importantly, according to the plain language of the Texas Anti-SLAPP Statute, once a

court finds that a plaintiff has met its burden of establishing its prima facie case, the inquiry

under the Statute is over and the defendant’s motion to dismiss must be denied.9 In other words,

the court may not consider any of a defendant’s potential affirmative defenses because such

defenses are irrelevant to a plaintiff’s case-in-chief.10 This is because an affirmative defense

4 TEX. CIV. PRAC. & REM. CODE § 27.005(c). 5 BLACK’S LAW DICTIONARY 999 (8th ed. Abridged 2005). 6 See Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 477 (Tex.2001) (“[T]he plaintiff’s burden at [the prima facie] stage of the case ‘is not onerous.’”) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981)). 7 See Prestige Ford Co. Ltd. Partner v. Gilmore, 56 S.W.3d 73, 82 (Tex.App.—Houston [14th Dist.] 2001, pet. denied); accord Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 699-700 (Cal. Ct. App. 1st Dist. 2007). 8 TEX. CIV. PRAC. & REM. CODE § 27.005(c). 9 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 10 Heggy v. Am. Trade Emp. Ret. Acct. Plan, 123 S.W.3d 770, 778 (Tex.App.—Houston [14th

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must “accept the existence of a prima facie case”11 and is interposed only to defeat the plaintiff’s

already-established case-in-chief.12 Moreover, in this context specifically, to require a plaintiff

to disprove an affirmative defense at this early stage in the litigation would invert the burden of

proof as set forth in the plain language of the Texas Anti-SLAPP Statute.13

Although there is no existing Texas case law on this point, other state courts’

interpretation and application of their state’s respective anti-SLAPP statute support the analysis

set forth above.14 Even in California, where a plaintiff must establish a “probability” of

prevailing in order to defeat an anti-SLAPP motion (a burden that is obviously higher than the

standard in Texas), a court may not weigh credibility or evaluate the weight of the evidence.15

Instead, when considering a defendant’s anti-SLAPP motion to dismiss, a court must assume that

all evidence favorable to the plaintiff is true and resolve all inferences in the plaintiff’s favor.16

This low burden is necessary—in fact, constitutionally required—because, pursuant to the First

Dist.] 2003, pet. denied). 11 Chitsey v. Carter, No. 03-00-00664-CV, 2001 WL 1337591, at *3 (Tex.App.—Austin Nov. 1, 2001, pet. denied) (emphasis added); see also Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 137 (Tex.App.—Houston [14th Dist.] 2000, pet. dism’d) (explaining that affirmative defenses are claims interposed to defeat a prima facie case established by plaintiff).. 12 Heggy, 123 S.W.3d at 778. 13 See TEX. CIV. PRAC. & REM. CODE § 27.005(c); Ramirez v. Encore Wire Corp., 196 S.W.3d 469, 477 (Tex. App.--Dallas 2006, no. pet.)(stating that a defendant’s affirmative defense has no bearing on whether a plaintiff can overcome a motion to dismiss for frivolous pleadings, rather the issue is whether the plaintiff has met its pleading burden in asserting its claims). 14 See, e.g., Nexus v. Swift, 785 N.W.2d 771, 781 (Minn.App.2010) (“all reasonable inferences must be drawn in [the non-moving party’s] favor,” and “[a]ll facts alleged in the complaint must be taken as true”); HMS Capital, Inc. v. Lawyers Title Co., 118 Cal.App. 4th 204, 212 (Cal.App.2004) (the court “does not weigh credibility or compare the weight of the evidence... [r]ather, the court’s responsibility is to accept as true the evidence favorable to the plaintiff”). 15 See Overstock.com, Inc. v. Gradient Analytics, Inc., 151 Cal. App. 4th 688, 699-700 (Cal. Ct. App. 1st Dist. 2007) (“We do not weigh credibility, nor do we evaluate the weight of the evidence. Instead we accept as true all evidence favorable to the plaintiff and assess the defendant’s evidence only to determine if it defeats the plaintiff’s submission as a matter of law.”) 16 See id.

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Amendment,17 a court’s consideration of a defendant’s anti-SLAPP motion to dismiss must not

infringe on the plaintiff’s countervailing First Amendment right to petition the government by

filing suit in the first place.18 As recognized by the United States Supreme Court, the right to

petition the government, which includes the right to file a complaint in court, is one of “the most

precious of the liberties safeguarded by the Bill of Rights.”19 Thus, just as the Texas Anti-

SLAPP Statute is designed to protect a defendant’s First Amendment right to free speech, the

Statute (and this Court’s interpretation of that Statute) must also protect the plaintiff’s equally-

compelling First Amendment right to seek redress in a court of law.

Here, Dr. Wakefield—through his pleadings, the attached evidence, and sworn

affidavit—has satisfied the legal standard under the Anti-SLAPP Statute. He has provided clear

and specific evidence of each element of his prima facie case for defamation. Specifically, he

has set forth the exact defamatory language published by Defendants via various forms of

international media; he has provided a lengthy sworn statement explaining why Defendants’

defamatory statements are false; he has provided more than sufficient circumstantial evidence to

raise a fact issue as to whether Defendants acted with actual malice; and although he is not

required to establish damages because the relevant statements are defamatory per se, he has

provided clear and specific evidence of damages to his personal and professional reputation,

character, and feelings. Because Dr. Wakefield has established his prima facie case for

17 See U.S. Const. amend I (stating, in relevant part: “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for redress of grievances”) 18 See Overstock.com, Inc., 151 Cal. App. 4th at 699-700; see also U.S. Const. amend I; Borough of Duryea v. Guarnieri, 564 U.S. ---, 131 S.Ct. 2488, 2491 (2011) (“Among other rights essential to freedom, the First Amendment protects ‘the right of the people . . . to petition the Government for redress of grievances.’”); McDonald v. Smith, 472 U.S. 479, 484-85 (1985). 19 See United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967); Virginia v. Black, 538 U.S. 343, 358 (2003). This right is made applicable to the States by the Fourteenth Amendment.

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defamation by clear and specific evidence, pursuant to the plain language of the Texas Anti-

SLAPP Statute, this Court must deny Defendants’ Motion to Dismiss as a matter of law.

IV. STATEMENT OF FACTS

Plaintiff Dr. Andrew Wakefield

Plaintiff, Dr. Andrew Wakefield, is a resident of Austin, Texas. He moved to Texas in

early 2005 for the purpose of founding and running Thoughtful House Center for Children, a

nonprofit center for autism care and research. The purpose of the center was to provide clinical

care for individuals affected by autism and to investigate environmental causes for the disorder

and its treatment. He and his wife (who also previously practiced medicine in England) have

owned a home in Austin Texas since 2006, where they have lived with their four children. The

children have attended public schools in Austin. Although born in England, Dr. Wakefield and

his family have been granted permanent residence status in the United States. Dr. Wakefield is

also an owner of two businesses headquartered in Austin, Texas. Dr. Wakefield was living and

working in Austin, Texas at the time of the publication of the defamatory statements at issue in

this suit.20

Dr. Wakefield graduated from medical school in England, where he practiced for years in

both clinical medicine and surgery. He was appointed to a research fellowship and won several

prizes and awards for his research and scholarship. He has authored, and/or co-authored

numerous peer reviewed articles in various medical related publications.21 He has extensive

expertise in the area of gastroenterology.22

20 See Affidavit of Andrew J Wakefield (filed April 5, 2012) at ¶¶ 3-6 (hereinafter “Wakefield Affidavit”) 21 Id. 22 See Exhibit 3 to Wakefield Affidavit.

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The Lancet Paper

In 1998, Dr. Wakefield, along with twelve other medical and scientific colleagues, co-

authored and published a case study in a world renowned medical journal called THE LANCET.

The group of co-authors included very experienced clinicians and clinical researchers who

collectively have published hundreds of original papers in major scientific and medical journals,

written respective medical articles and contributed to textbooks in the field of pediatric

gastroenterology. Co-author Professor John Walker-Smith was considered one of the world

leaders in his field. The relevant article that Dr Wakefield and his co-authors published was

titled Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental

disorder in children (hereinafter the “Lancet Paper”).23

The Lancet Paper was a case report (a/k/a “case series”) that involved a clinical review of

twelve children (herein referred to as the “Lancet Children”) who after a period of documented

normal development, subsequently developed behavioral anomalies followed by developmental

regression with loss of acquired skills and developmental milestones. These children also had

chronic intestinal symptoms. The Lancet Children were referred by their family doctors or

pediatricians to the Royal Free Hospital (“Royal Free”) in London, England to undergo

examination and clinical investigation and treatment by Prof. Walker-Smith and others. At the

Royal Free, the Lancet Children underwent various gastroenterological, neurological, and

developmental assessments and as well as a review of their developmental histories.24

The Lancet Paper was in the form of a “case report” or “case series” which is a form of

medical report that involves a series of anecdotal clinical cases involving patients presenting

23 See Exhibit 1 to Second Affidavit of Andrew J. Wakefield (hereinafter “Second Affidavit of Dr. Wakefield”) 24 See Second Affidavit of Dr. Wakefield.

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with similar clinical symptoms and findings. Case series reports such as the Lancet paper are not

intended to be epidemiological studies or analytic studies (e.g. case-control or cohort studies).

Accordingly, the Lancet paper described 12 children with a similar diagnosis: pervasive

developmental disorder following a period of documented normal development, associated with

intestinal pathology (colonic inflammation and/or swelling of the intestinal lymph glands with or

without small intestinal inflammation).

In its simplest terms, the Lancet Paper described and revealed that the Lancet Children

who were diagnosed with developmental disorders, such as autism, were also identified to have

inflammatory intestinal disease. In the majority of cases described in the Lancet Paper, the onset

of behavioral symptoms and other reactions (such as high fever) were identified by the parents,

and some cases by the children’s doctors (general practitioners or “GPs”), as occurring

subsequent to receiving the Measles, Mumps and Rubella (“MMR”) vaccine (which is typically

given to a child on or about twelve to fifteen months of age). However, the Lancet Paper was

not intended to - nor could it - test a hypothesis of causation, The Lancet Paper, itself clearly

states: “We did not prove an association between measles, mumps, and rubella vaccine and

the syndrome described.” It also states that “Further investigations are needed to examine

this syndrome and its possible relation to this vaccine.” It served merely to report the

parental observations of this possible association and assess the plausibility of such an

association in the light of the published medical literature.25

At the time the Lancet Paper was published in 1998, vaccines, including the MMR

vaccine were already the subject of controversy. It is important to recognize that Dr. Wakefield

and his colleagues’ investigations into a possible link between developmental disorders, bowel

25 See Second Affidavit of Dr. Wakefield at ¶¶ 9-10.

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problems, and MMR vaccines were responsive to pre-existing medical and parental concerns.

They did not start or create the scare. Of the 3 brands of MMR introduced into the UK in the late

1980’s, two had to be hastily withdrawn in 1992 because they were causing meningitis in

children at an unacceptably high rate.26 Neither Dr. Wakefield nor his colleagues are anti-

vaccine, rather Dr. Wakefield advocates for safe vaccines and rigorous surveillance for adverse

events.27

At the time the Lancet Paper was published, some controversy arose in the press. Despite

the fact that the Lancet Paper specifically stated that the authors did not claim to prove an

association between the MMR and autism much of the press reporting about the paper suggested

otherwise. Our experience is that most of the reporters who write about the Lancet Paper have

never even read it and do not realize what it really says. Many reporters, perhaps out of

ignorance of the facts or perhaps because they merely repeat what they have heard from others

rather than investigating themselves, inaccurately describe the Lancet Paper and statements by

the authors. Other reporters and publications, such as defendant Brian Deer, the BMJ and

defendant Godlee intentionally misrepresent what the Lancet Paper says and the circumstances

surrounding the Lancet Paper and the Lancet Children and their parents and/or publish comments

about same with such sloppy fact checking and reckless disregard for the truth that it is

astounding.

Brain Deer

Of all the reporters who have written about the MMR issue, the Lancet Paper and Dr.

Wakefield, defendant Deer is the one who seems to be the most obsessed with writing about Dr.

26 Second Affidavit of Dr. Wakefield at ¶¶ 8; Callous Disregard, Skyhorse Publishing NY Chapter “The Whistleblower” pp. 65-76. 27 See Second Affidavit of Dr. Wakefield at ¶8.

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Wakefield. He has written a number of articles about Dr. Wakefield in the Sunday Times, he was

the principal author of the series of articles about Dr. Wakefield and the Lancet Paper in the

BMJ. A visit to his website briandeer.com will reveal not only how much he has written about

Dr. Wakefield but how biased his reporting/blogging has been and his dislike for Dr. Wakefield

and tendancy to litter his writing about Dr. Wakefield with snide comments and digs.

In late 2003, Deer, who had been a social affairs writer and then a feature writer for the

Sunday Times was no longer on staff and was working freelance.28 The Sunday Times, was and

is a newspaper that is part of the Murdoch media empire.29 The Sunday Times was looking for a

big story on MMR.30 As Deer wrote in one of his articles:

For me the story started with a lunch. So many do. “I need something big,’ said a Sunday Times section editor. “About what?” I replied. Him: “MMR?”

Deer chose to write about MMR in the context of Dr. Wakefield and the Lancet Paper. The

article was published in the Sunday Times in 2004. It was an attack on Dr. Wakefield and the

Lancet Paper. The Sunday Times paid Deer 10,000 Pounds to write it.31 Deer wrote additional

freelance articles attacking Dr. Wakefield and the Lancet Paper in the Sunday Times in 2006 and

2009 but cannot remember how much he was paid to write those articles. He can’t even recall

the ballpark for what he was paid to write the 2006 article.32 He had access to and used the

resources of the Sunday Times when he wrote the articles in 2004, 2006, and 2009.33 Each one

included personal attacks on Dr. Wakefield and his work regarding MMR and autism. The 2009

article did not mention that from 2009 – 2012 James Murdoch was on the board of directors for

28 See Ex. D, Deer Depo. at pp. 17-18. 29 Id. at pp. 26:18-27:6. 30 See Exhibit 2 to Saba Affidavit in Support of Anti-Slapp. 31 Deer Depo. at p.24:10-15. 32 Id. at 22:4–23:5. 33 Id. at 23:8-13.

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GlaxoSmithCline (“GSK”) a manufacturer of MMR vaccines.

Deer was also involved in a television program attacking Wakefield and the Lancet

Paper. Deer’s website touts the Sunday Times articles and the program and has even more pieces

attacking Dr. Wakefield and discussing the MMR issue.

Deer’s apparent obsession with Dr. Wakefield is so great that he even took it upon

himself to work to instigate an investigation by the General Medical Council (“GMC”) (a non-

governmental organization involved in “regulating” doctors in the UK) involved in investigating

Dr. Wakefield and other authors of the Lancet Paper. Indeed he appears to claim credit for the

resulting GMC Fitness to Practice proceeding going forward against Dr. Wakefield, Dr. Murch

and Professor Walker-Smith, three of the co-authors of the Lancet Paper (hereinafter the “GMC

proceeding(s)”) .

The GMC had their own team of lawyers who acted as “prosecutors” in the case and who

conducted an “investigation”, apparently based in large part on documents provided (and not

provided) by Deer. The “investigation” and proceedings drugged out for years. The GMC panel

to which evidence was presented did not involve a real court or real judge. There was a panel of

two lay members and three doctors. None of the doctors were a gastroenterologist, a pathologist,

or a child psychiatrist. (Areas of expertise that would have been relevant to issues dealt with in

the Lancet Paper.) At one point, the GMC attempted to impose as head of the panel a doctor,

Professor Angus McDevitt, who had been a member of the UK’s Joint Committee on

Vaccination and Immunization (JCVI), the committee that advises the British government on

vaccination policy. It was this committee that was largely responsible for introducing the

dangerous MMR vaccines (later withdrawn) despite advice to the contrary.34 Only after a

34 See Callous Disregard, Chapter 4, Skyhorse Publishing NY.

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significant protest regarding the obvious and undeniable bias resulting from his appointment to

the panel did the GMC relent and “replace” him with Dr. Kumar. As it turns out, Dr. Kumar was

a shareholder in GSK, a company that manufactures MMR vaccines - a conflict of interest that

he did not disclose. (So much for a fair and impartial panel.) As will be discussed in greater

detail below, the GMC proceedings did not deal with the same issue that is involved in this

lawsuit. The GMC proceedings largely dealt with questions regarding whether or not certain

ethical guidelines were followed and whether appropriate ethical approvals were obtained. It did

not deal with the question of whether or not scientific findings were altered or fraudulent in the

manner reported by Deer, Godlee and the BMJ.

The article Deer wrote in the Sunday Times in 2004 (like subsequent articles Deer has

written) and the television program contained false and misleading information about Dr.

Wakefield. Dr Wakefield was living in England at the time and exercised his legitimate right

under English law to sue Deer for Defamation. Dr. Wakefield was represented by counsel and

the suits were filed in absolute good faith.35 But the GMC investigation and proceedings

required a significant amount of Dr. Wakefield time and resources. He found himself having to

fight to protect his reputation on three fronts at once. Although he was initially able to obtain a

stay in one of the defamation proceedings, a judge denied his counsel's request that the second

defamation proceeding be stayed pending the outcome of the GMC proceeding and indicated that

the defamation proceeding should go forward regardless of the GMC proceedings. Because Dr.

Wakefield did not have the time and resources to fight on three fronts at once, after consultation

with his counsel he made the decision to voluntarily dismiss the defamation proceedings against

Deer so that he could focus on the GMC proceedings. Contrary to the indications by Deer, the

35 Second Affidavit of Dr. Wakefield at ¶504.

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dismissal of those proceedings was purely voluntary and had nothing to do with the merits of the

case. The courts did not find the claims to be frivolous and did not require dismissal.

After a long, drawn out hearing, the GMC panel made numerous findings and revoked

Dr. Wakefield and Prof. Walker-Smith’s medical licenses citing ethical violations. Prof. Walker-

Smith appealed the GMC decision to a real English court and Justice Mitting, the judge who

heard the appeal (the first real judge to hear any issues in the proceedings) completely overturned

the GMC findings against Prof. Walker-Smith and Prof. Walker-Smith's medical license was

reinstated. Justice Mitting's decision, (a copy of which has been submitted as Exhibit 1 to the

Declaration of Clifford Miler), was highly critical of the GMC panel's reasoning (or lack thereof)

and findings with respect to the appellant, Prof. Walker-Smith. In his decision he refers to

“flawed” findings, “inadequate and superficial reasoning”, “wrong conclusion[s]” and

inadequacies and errors that went to the heart of the case and that were not curable. Dr.

Wakefield was not a party to the appeal at the time but he believes that the GMC panel engaged

in the same flaws, inadequate reasoning, and wrong conclusions in its decision against him. He is

seeking to reinstitute an appeal of his own in the English court system.

As noted above, during this time, Dr. Wakefield moved to Austin, Texas to engage in

work with a non-profit agency focused on assisting children with developmental disorders. He

has remained here with his family since.

“Secrets of the MMR Scare” - Defendant Deer, Godlee and the BMJ’s January 2011 Defamatory Publications – The Last Straw and the Focus of this Lawsuit

The pinnacle of Defendant Deer’s egregious and tortuous acts occurred in 2011 and

involved additional conspirators, the BRITISH MEDICAL JOURNAL and its Editor in Chief,

Defendant Fiona Godlee. Deer Godlee and the BMJ published a new series of articles on

Wakefield in January 2011. The BMJ refers to the three articles written principally by Deer as

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the “Secrets Series”. The defamatory publications which form the principal basis of Plaintiff’s

claims in this lawsuit are three articles/editorials published in the BMJ in January 2011. The first

and primary article titled: Secrets of the MMR Scare: How the Case Against the MMR Vaccine

was Fixed (hereinafter the “First Article”), was authored by Deer but had significant editorial

input by Godlee and other BMJ editors, and was published, January 5, 2011. That defamatory

article was bolstered contemporaneously by an editorial by Defendant Godlee, Jane Smith and

Dr. Harry Markovitz titled: Wakefield’s Article Linking MMR Vaccine and Autism was

Fraudulent, published January 5, 2011, and an article titled Editor’s Choice: The Fraud Behind

the MMR Scare, authored by Godlee and published January 6, 2011. As detailed in Plaintiffs

Original Petition, additional follow-on publications and statements by defendants are also at

issue.

These defamatory articles and publications state as “fact” that Plaintiff Wakefield

fraudulently changed and altered data through the course of his work in the Lancet paper. Deer

states in the First Article that, through the course of the GMC proceeding, he (Deer) was able to

compare the Lancet Children’s medical records with the data reported in the Lancet Paper. He

notes that while “[t]he [GMC]’s focus was whether the research was ethical, [his] was whether it

was true.” He states that, based upon his so-called analysis of the Lancet Children’s medical

records, “[n]o case was free of misreporting or alteration.” Defendant Godlee makes similar

statements in her Editor’s Choice article:

Thanks to the recent publication of the GMC’s six million word transcript, the BMJ was able to check Deer’s findings and confirm extensive falsification. As my colleagues and I write in an editorial this week, in no single case can the medical records be fully reconciled with what was published [in the Lancet Paper]. This means that the MMR scare was based not on bad science but on a deliberate fraud.36

36 Exhibit B.

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Throughout the defamatory publications, Defendants make it clear that they are purporting to

state facts that they have been able to confirm through GMC transcripts and other “fact

checking”. These unequivocal and damning statements against Dr. Wakefield – as well as

Defendants’ subsequent statements through the media about their work – are false. Although

Defendants previously touted their defamatory statements as verifiable facts which had been

“fact checked” against BMJ transcripts and peer-reviewed, discovery in this case has revealed

that the alleged independent peer review claimed by Defendants and fact checking is a sham.

Defendants are now seeking to claim that the defamatory statements that they previously claimed

were verifiable facts were not really statements of fact but instead were merely hyperbole and

opinions. It will not work. On January 3, 2012, Dr. Wakefield filed this lawsuit. As will be

shown in this Response Motion, Defendants’ statements are conclusively false and the

Defendants will be found liable for defaming Dr. Wakefield once this case is presented to a jury.

V. ARGUMENTS & AUTHORITIES

1. The Anti-SLAPP Statute Does Not Apply in this Case.

A. The Right of Free Speech Does Not Protect Defamatory Statements.

The express purpose of the Anti-SLAPP Statute “is to encourage and safeguard the

constitutional rights of persons to . . . speak freely . . . to the maximum extent permitted by law

and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable

injury.”37 Thus, before applying the Anti-SLAPP Statute to any particular case, a court must first

determine if the Defendant’s speech at issue is constitutionally protected.

The Anti-SLAPP Statute does not apply in this case as a matter of law. The Statute only

applies to a legal action that is based on, relates to, or is in response to a party’s exercise of

37 TEX. CIV. PRAC. & REM. CODE § 27.002

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certain rights protected by the U.S. and Texas Constitutions, including the right of free speech.38

The right of free speech does not protect defamatory statements.39 Because Defendants’ speech

at issue is not constitutionally protected, the Anti-SLAPP Statute does not apply and Defendants’

Motion to Dismiss, which is brought pursuant to that Statute, must be denied as a matter of law.

B. Further, the Policy Justifications for the Anti-SLAPP Statute Do Not Apply.

Originally SLAPP suits were defined as those that are filed in an effort to quash the

lawful exercise of citizens to petition their governments.40 Generally speaking, plaintiffs who

file SLAPP suits have the resources to fund extensive litigation and can afford to overwhelm the

defendant with large litigation expenses and fees. Such that “the typical SLAPP suit is brought

by a well-healed ‘Goliath’ against a ‘David’ with fewer resources, trying to keep David from

opposing, for example, Goliath’s development plans or other goal.”41 Anti-SLAPP statutes have

been enacted to combat this unfair advantage.

Application of the Anti-SLAPP Statute to this case does not further the statute’s intended

purpose. Dr. Wakefield, already stripped of his medical license in the U.K., has been subjected

to multiple incidents of defamation and libel at the hands of The British Medical Journal,

which—as Defendants allege—is “one of the most prestigious medical journals in the world.”

Over the past 5 months, Defendants have filed three seventeen-page Special Appearances

(excluding exhibits), a 31-page Brief in Support of Their Special Appearances (totaling 83-pages

38 TEX. CIV. PRAC. & REM. CODE § 27.003(a). 39 See Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (holding that libelous statements are outside the realm of constitutionally protected speech); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d. 789 (1974) (explaining that “there is no constitutional value in false statements of fact”). 40 George W. Pring, “Strategic Lawsuits Against Public Participation (“SLAPPS”): An Introduction for Bench, Bar and Bystanders, 12 Bridgeport L. Rev. 937, 940 (1992) 41 Richard J. Yurko and Shannon C. Choy,” Legal Analysis: Reconciling the anti-SLAPP Statute with Abuse of Process and Other Litigation-Based Torts, 51 B.B.J. 15, 15 (2007).

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with exhibits), a 63-page Anti-SLAPP Motion (excluding exhibits), a 55-page Amended Anti-

SLAPP Motion, a 101-page declaration for Defendant Deer (with hundreds of exhibits), a 12-

page declaration for Defendant Godlee (totaling 239-pages with exhibits), a 82-page amended

declaration for Defendant Deer (totaling 753-pages with exhibits), a 5-page declaration for

Counsel Marc Fuller (totaling 89-pages with exhibits), a 6-page amended declaration for the

corporate representative of the BMJ (totaling 48-pages with exhibits), and have hired a British

lawyer, who filed a 22-page declaration report (totaling 134-pages with exhibits) in support of

Defendants’ Amended Anti-SLAPP Motion to Dismiss. Defendants list six lawyers from two

firms on their pleadings. Clearly, Defendants do not lack resources to defend themselves and

have not been intimidated by this lawsuit. Thus, the disparity of the parties, which Anti-SLAPP

statutes are intended to address, is not present here.

If anything, it is Dr. Wakefield who is the “David” in this lawsuit and Defendants who

are the “Goliath”. Indeed, through this lawsuit, Dr. Wakefield has never intended to threaten or

intimidate Defendants into silence. He is happy for defendants to fairly and honestly discuss the

true facts. What defendants are not entitled to do is break the law by defaming him. In fact, it

was Deer who invited Dr. Wakefield to file this lawsuit in the first place, stating on national

television: “If Wakefield is not ‘guilty as charged,’ he has the remedy of bringing a libel action

against me, against the Sunday Times of London, against the BMJ, against [CNN].”42 Because

Defendants clearly anticipated this suit —and in fact, invited Plaintiff file this lawsuit,

Defendants should not be able to now use the Anti-SLAPP statute to shield themselves from

same.

2. Even if the Statute Does Apply, Because Plaintiff has Established a Prima Facie Case for Defamation by Clear and Specific Evidence, Defendants’ Motion Must be

42 See Plaintiff’s Original Petition at pp.11-12.

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Denied as a Matter of Law.

The elements of a claim for defamation are as follows: (1) the Defendants published a

statement of fact; (2) the statement referred to the Plaintiff; (3) the statement was defamatory; (4)

the statement was false; (5) with regard to the truth of the statement, the Defendants acted with

actual malice; and (6) Plaintiff suffered pecuniary injury (unless injury is presumed).43 Plaintiff

has produced more than sufficient evidence of each of these elements to establish a prima facie

case for defamation. Thus, even if this Court finds that the Anti-SLAPP Statute does apply,

Defendants Motion to Dismiss under that Statute must be denied as a matter of law.

A. ELEMENTS 1 AND 2: It is Undisputed that Defendants Published the Defamatory Statements and that these Statements Refer to Dr. Wakefield.

As to elements (1) and (2), it is undisputed that Defendants published the relevant

statements about Dr. Wakefield in several forms of international media, including in the BMJ, on

the website www.briandeer.com, CNN’s American Morning, CNN’s Anderson Cooper 360

Show, and The Gary Null Show, and during various presentations to the medical community.44

As set forth in the Statement of Facts in Plaintiff’s Original Petition and this Response, these

statements include the following:

Dr. Wakefield’s case study was “fixed” and based on “bogus data”;45

Dr. Wakefield’s findings were “manufactured” to give “the appearance of

a link [to] autism”;46

43 See TEX. CIV. PRAC. & REM. CODE § 73.001; Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). 44 See Plaintiff’s Original Petition. 45 Id. 46 Id.

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Dr. Wakefield’s “undisclosed goal” of the project “was to help sue the

vaccine’s manufacturers” and that “Wakefield evidenced his [new] ‘syndrome’ for the

lawsuit, and built his platform to launch the vaccine scare”;47

Deer’s self-proclaimed “investigation of the MMR issue exposed the

frauds behind Wakefield’s research”;48

Dr. Wakefield doctored the underlying subjects’ data to reach his

conclusions as “[n]o case was free of misreporting or alteration”;49

“[I]t has taken the diligent skepticism of [Deer], standing outside medicine

and science, to show that the [Lancet Paper by Dr. Wakefield] was in fact an elaborate

fraud.”;50

Deer’s article “shows the extent of Wakefield’s fraud and how it was

perpetrated…and how Wakefield altered numerous facts about the patients’ medical

histories in order to support his claim of having identified a new syndrome.”;51

There is no doubt that Dr. Wakefield perpetrated “fraud” and was

“dishonest” in his execution of The Lancet case study;52

Dr. Wakefield “substantially misrepresented [data] in order to give the

result Wakefield needed”;53

There was “extensive falsification” by Dr. Wakefield in the Lancet

Paper;54

47 Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id.

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The Lancet case study was concocted by Dr. Wakefield as a “deliberate

fraud.”;55

“[I]n no single case can the medical records be fully reconciled with what

was published,” by Dr. Wakefield;56

Dr. Wakefield’s findings were not honestly documented which resulted in

a “deeply shocking” “breach of trust”;”57

Dr. Wakefield is “a determined cheat”;58

Dr. Wakefield embarked in “a campaign of lies”;59

Dr. Wakefield “takes tangential pieces of research that don’t really relate

to what he is saying and represent them as somehow endorsing what he said.”;60

Dr. Wakefield “went through the results manually altering test results and

diagnoses and histories of the children so to create the appearance that there was a link

between MMR and autism.”61

Dr. Wakefield’s work was “a scandal of astounding proportions;” 62

Dr. Wakefield’s work “had no scientific basis whatsoever”;63

Dr. Wakefield’s work was a “sham: laundering into medical literature, as

apparent facts, the unverified, often vague, memories and assertions of a group of

unnamed parents”;64

54 Id. 55 Id. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id. 63 Id.

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Dr. Wakefield “had repeatedly changed and misreported diagnoses,

histories and descriptions of the children, which made it appear that the syndrome had

been discovered”;65

“The Lancet paper had been rigged” by Dr. Wakefield; 66

“Even when [Dr. Wakefield] knew that his allegations had been proven

baseless, he was found promoting them from a controversial business in Austin, Texas

called Thoughtful House.” 67

Dr. Wakefield is “not just incompetent but a fraudster” and Dr.

Wakefield’s work is “bullshit.”68

Dr. Wakefield fraudulently manipulated the reduction of a time interval in

the Lancet case study in order to create “a legally compelling case which would be a

maximum of 14 days and in this case an average of 6.3 days.”;69

Dr. Wakefield knowingly and fraudulently misreported medical data

regarding a time interval relevant to the Lancet case study in premeditated and concerted

effort to influence vaccine injury litigation;70 and

Accusing Dr. Wakefield of committing “scientific fraud” and a criminal

act. 71

As noted above, Defendants do not dispute that they made these statements in various forms of

international media. Instead, Defendants attempt to avoid liability for these statements by

64 Id. 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. 70 Id. 71 Id.

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arguing that they are mere expressions of opinion or hyperbole, incapable of being objectively

verified.72

a. As a Matter of Law, the Relevant Statements Are Statements of Fact. Defendants’ argument that the relevant statements are incapable of being objectively

verified is wholly negated by other arguments in Defendants’ Motions and the sworn testimony

in Defendants’ Declarations. For example, in the section of Defendants’ Original Motion on

actual malice, Defendants argue that:

[The BMJ] and Dr. Godlee took extra steps to ensure the reporting was truthful. For Deer, . . . this meant five months of work to ensure that every word and every citation was verified. For the BMJ, this meant a separate fact-check of the first article by a deputy editor (Smith) and external review for scientific accuracy by an expert pediatrician (Dr. Marcovitch).73

Defendants further assert that Deer, Dr. Godlee, Jane Smith, and Dr. Marcovitch “had

confidence in . . . the accuracy of the challenged statements.”74 Defendants then go on to argue

that the allegations in the “Secrets” series had already been “proven” against Dr. Wakefield.75 In

another section, Defendants go to great length to argue that all of the challenged defamatory

statements are “substantially true.”76 Defendants even specifically argue that the allegation of

“fraud” against Dr. Wakefield was “proved many times over.”77 In support of these arguments,

Defendants cite to sworn declarations by Defendants Deer and Godlee,78 as well as sworn

declarations by Jane Smith and Dr. Marcovitch.79

72 Defendants’ Original Motion at p.34. 73 Defendants’ Original Motion at pp.49-50 (emphasis added). 74 Defendants’ Amended Motion at p.45. 75 Defendants’ Original Motion at p.50; Defendants’ Amended Motion at p.51. 76 Defendants’ Original Motion at pp.19-34; Defendants’ Amended Motion at pp.15-35. 77 Defendants’ Original Motion at p.24; Defendants’ Amended Motion at p.20. 78 See, e.g., Defendants’ Original Motion at pp.49-50 n. 166 and 167; Defendants’ Amended Motion at p.45. 79 See, e.g., Defendants’ Amended Motion at p.45.

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Defendants cannot have it both ways: The challenged statements cannot be both (1)

capable of extensive, meticulous verification, and also (2) incapable of being objectively

verified. Because Defendants have argued (1) that they verified “every word and every citation”

in the relevant publications, and (2) that Defendants’ allegations against Dr. Wakefield in those

publications have, in fact, already been proven, the challenged statements in those publications

must be deemed actionable statements of fact as a matter of law.80

Other courts’ opinions support this finding. For example, in Patten v. Kidd, an unproven

accusation of fraud was sufficiently factual to justify summary judgment on liability for the

defamed party.81 Likewise, in Hancock v. Variyam, defendant’s accusations that the plaintiff-

physician had a “reputation for lack of veracity” and “deal[t] in half truths” were also sufficiently

factual to justify a jury award in plaintiff’s favor.82 By contrast, in Brennan v. Kadner, 814

N.E.2d 951 (Il.2004), the defendant published an article saying that a source told the defendant

that the plaintiff “could” be referred to the U.S. attorney’s office for using the U.S. mail in

perpetrating a fraud.83 The fact that the defendant used the term “could” was important.

Specifically, the Illinois Supreme Court found that the defendant’s statement was a

nonactionable statement of opinion because the defendant used the word “could,”84 and as such,

“a reasonable reader would not have taken the statement as a literal assertion that plaintiff had

actually committed fraud.”85

80 Whether a published statement is an actionable statement of fact is a question of law. See Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 509 (Tex.App.—Tyler 2008, pet. denied) 81 See Patten v. Kidd, No. 03-10-00051-CV, 2010 WL 32719608, at *1-2 (Tex.App.—Austin Aug. 18, 2010, n.w.h.) 82 See Hancock v. Variyam, 345 S.W.3d 157, 164 (Tex.App.—Amarillo 2011, pet. filed). 83 See Brennan v. Kadner, 814 N.E.2d 951, 969 (Il.2004). 84 Id. 85 Id. at 732.

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Here, Defendants asserted many times over that Plaintiff actually committed repeated,

extensive, elaborate, intentional fraud. Defendants further asserted that, among other things,

Plaintiff intentionally misreported and altered data; intentionally manipulated a time interval in

the study; intentionally repeatedly misreported diagnoses, histories, and descriptions of the

children for the purpose of falsely making it appear that a syndrome had been created;

intentionally manufactured findings in his study in order to create the appearance of a link

between the MMR vaccine and autism; had an undisclosed goal of trying to help sue vaccine

manufacturers; intentionally altered facts about patients’ histories for the secret purpose of

making it appear that he had identified a new syndrome; preys on his patients and their parents;

and is a scientific fraud. A reasonable reader would take these statements as literal assertions

that Plaintiff had actually committed those actions and was actually guilty of those assertions.

As noted above, Defendants spend thirteen pages of their Original Motion and twenty pages of

their Amended Motion arguing that the statements at issue are both capable of being proven true

and are, in fact, substantially true. In light of these arguments and the sworn declarations

supporting them, this Court must find that the defamatory statements at issue are actionable

statements of fact as a matter of law.

b. That Some of the Defamatory Statements of Fact Were Published in an “Editorial” is Inconsequential.

Defendants next attempt to avoid liability for the defamatory statements by arguing that

statements published in an “editorial” can never be statements of fact.86 However, there is no

legal support for this argument. In fact, black-letter law is clear that a defendant may not avoid

liability for defamation by merely couching injurious words as an “editorial” or “opinion.” In

86 Defendants’ Original Motion at p.36.

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Bentley v. Bunton,87 the Texas Supreme Court held that casting false assertions of fact as

“opinions” does not make a statement any less actionable —”the statement, ‘In my opinion Jones

is a liar,’ can cause as much damage to reputation as the statement, ‘Jones is a liar.’”88 As Dean

Prosser states in the LAW ON TORTS: “[If] a defamatory meaning [is] conveyed . . . . [t]he form

of the language used is not controlling, and there may be defamation by means of a question, an

indirect insinuation, an expression of believe or opinion, or sarcasm or irony.”89 Under this

rationale, courts have held that a libel action can be based upon statements published in an

editorial.90 For example, in Matovcik v. Times Beacon Record Newspapers, the defendant

published an article and related editorial about the plaintiff, a primary-school teacher.91 The

editorial included the statutory definition of the crime of a scheme to defraud and then posed the

following question: “When a teacher tells his students they must give him cash to pay for

workbooks and spends the cash on lunches and appliances, does that fit the description above?”92

Even though the relevant statement was couched as an editorial and posed as a question, the

court found that the statement imputed fraud, dishonesty, misconduct, and unfitness to the

plaintiff in his profession, and consequently, the appellate court should not have granted the

defendant’s motion to dismiss the plaintiff’s claim for defamation.93

Applying Bentley and Matovcik to this case, even though some of Defendants’

defamatory statements may have been couched as an editorial or posed as a question, those

statements impute fraud, dishonesty, misconduct, and unfitness to Plaintiff in his profession.

87 94 S.W.3d 561, 583 (Tex. 2002) 88 Id. at 583-84 (citing Milkovich v. Lorain J. Co. 497 U.S. 1, 18-19 (1990)) 89 W. Prosser, LAW OF TORTS 746-47 (4th ed. 1971). 90 Matovcik v. Times Beacon Record Newspapers, 46 A.D.3d 636, 637 (2nd App. 2007). 91 Id. 92 Id. 93 Id.

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Consequently, as in Matovcik, the Court in this case should find that Defendants’ defamatory

statements are actionable statements of fact. And, to the extent Defendants’ Motion to Dismiss

is based on an argument that the defamatory statements at issue are non-actionable opinions, this

Court must deny Defendants’ Motion on that point as a matter of law.

c. Defendants’ Statute-of-Limitations Affirmative Defense is Irrelevant to Plaintiff’s Prima Facie Case, and in Any Event, Such a Defense Fails As a Matter of Law.

Defendants argue that Dr. Wakefield’s claims based on Brian Deer’s website are barred

by the statute of limitations. This argument is an affirmative defense.94 As set forth above,

under the plain language of the Texas Anti-SLAPP Statute,95 this Court may not consider

Defendants’ potential affirmative defenses at this stage in the litigation.96 Moreover, even if the

Court could consider Defendants’ limitations argument, that argument fails as a matter of law.

i. The Court May Not Consider Defendants’ Potential Affirmative Defenses.

According to the Texas Anti-SLAPP Statute, once a court finds that a plaintiff has met its

burden of establishing its prima facie case, the inquiry under the Statute is over and the

defendant’s motion to dismiss must be denied.97 In other words, the court may not consider any

of a defendant’s potential affirmative defenses because such defenses are irrelevant to a

plaintiff’s case-in-chief. Indeed, under Texas law, an affirmative defense, which must “accept

the existence of a prima facie case,”98 is interposed only to defeat the plaintiff’s already-

94 TEX. R. CIV. P. 94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988) (the statute of limitations is an affirmative defense). 95 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 96 Heggy, 123 S.W.3d at 778. 97 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 98 Chitsey, 2001 WL 1337591, at *3 (emphasis added).

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established case-in-chief.99 For these reasons, this Court may not consider Defendants’ statute-

of-limitations affirmative defense at this stage in the litigation as a matter of law.

ii. Even if this Court Could Consider Defendants’ Limitations Defense, Such a Defense Fails as a Matter of Law.

Defendants argue that Dr. Wakefield’s claims based on Defendant Deer’s website are

barred by the statute of limitations because the defamatory content was published on Defendant

Deer’s website prior to January 3, 2011. This argument is incorrect because it fails to recognize

the republication rule.

Under the republication rule, “[r]epublishing material—including publishing a second

edition of a book or periodical, editing and republishing defamatory material, or placing it in a

new form—resets the statute of limitations.”100 Even if the substance of the publication remains

the same, so long as the subsequent publication is intended to reach a new audience, the

republication is sufficient to commence a new limitations period.101 Under this rule, courts have

specifically held that when “substantive material is added to a website, and that material is

related to defamatory material that is already posted, a republication has occurred.”102 Such a

rule is necessary because, otherwise, publishers would be able to indefinitely republish

defamatory material on their websites without repercussion.103

A cursory glance at the current website104 and the website cited by the Defendants that

was posted on April 17, 2010,105 demonstrates how Deer’s website has been substantially

99 Heggy, 123 S.W.3d at 778. 100 In re Davis v. Mitan, 347 B.R. 607 (W.D. Kty 2006) 101 Nationwide Bi-Weekly Administration, Inc., v. Bela Corp., 512 F.3d 137, 146 (5th Cir. 2007). 102 In re Davis, 347 B.R. at 612 (adding material to website constituted a re-publication which reset the statute of limitations). 103 Id. 104 http://briandeer.com/mmr/lancet-summary.htm 105 http://web.archive.org/web/20100417171645/http://briandeer/mmr/lancet-summary.htm

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changed and updated with information related to the original defamatory statements, and thus re-

published. For example, the last paragraph of his website now begins “Three months later,

Deer’s personal journey found closure when in April 2011 he was named specialist journalist of

the year in the British newspaper industry’s annual Pulitzer-style Press Awards.” This was for

his ‘work’ regarding Dr. Wakefield and his ‘investigation.’106 Three paragraphs earlier in the

article, he recounts events in January 2011, and the conclusion of his investigation in the BMJ.

Additionally, Defendant Deer has re-published his website by adding several links and new

information regarding Dr. Wakefield, including a link to see an interview given by Deer

regarding Dr. Wakefield on March 14, 2011. These additions and edits to Deer’s website contain

new information about Dr. Wakefield and are designed to gain new readers; thus, these additions

and edits constitute republications of the original defamatory statements, with the latest

republication being in April 2011. Because Dr. Wakefield filed suit within one year of the last

republication of Deer’s website, Dr. Wakefield’s claims are timely as a matter of law.

B. ELEMENT 3: The Relevant Statements Are Defamatory.

As to element (3), the relevant statements are defamatory as a matter of law because they

qualify as “defamatory per se.” Defamation per se is spoken, written, or printed words that are

so obviously hurtful to the person aggrieved that they require no proof of their injurious

character to make them actionable.107 In Texas, a statement is defamatory per se if it is injurious

to a plaintiff’s reputation in his business or profession.108 Here, because the relevant statements

attack Plaintiff’s reputation in his profession, such statements are defamatory as a matter of law.

106 http://briandeer.com/mmr/lancet-summary.htm 107 Knox v. Taylor, 992 S.W.2d 40, 50 (Tex.App.—Houston [14th Dist.] 1999, no pet.). 108 Texas Disposal Sys. Landfill, Inc. v. Waste Mgt. Holdings, Inc., 219 S.W.3d 563, 581 (Tex.App.—Austin 2007, pet denied).

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Defendants assert that allegations of fraud—even if technically inaccurate—are not

defamatory.109 To support this position, Defendants cite several cases in which an allegation of

“fraud” was found to be not defamatory.110 The problem with Defendants’ position on this issue

is that Defendants fail to recognize the above-referenced rule, which holds that statements that

are injurious to one in one’s profession are defamatory per se.111 This rule is based on the

RESTATEMENT (SECOND) OF TORTS § 573 (1971), which provides:

Disparaging words, to be actionable per se under the rule stated in this Section, must affect the plaintiff in some way which is peculiarly harmful to one engaged in his trade or profession. Disparagement of a general character, equally discreditable to all persons, is not enough unless the particular quality disparaged is of such a character that it is peculiarly valuable in the plaintiff’s business or profession . . . . Thus, a statement that a physician consorts with harlots is not actionable per se although a charge that he makes improper advances to his patients is actionable; the one statement does not affect his reputation as a physician whereas the other does so affect it.”112

Under the same rationale, statements that a physician is “a quack,” or that he is incompetent,

negligent, or dishonest in the practice of his profession are actionable.113 Following this rule,

109 Defendants’ Original Motion at p.21 (“The ‘substantial truth’ provides considerable latitude where statements referring to ‘fraud’ are at issue.”); Defendants’ Amended Motion at p.17 (same). 110 Two of the cases cited by Defendants do not involve an allegation of fraud in the plaintiff’s profession. See Harrington v. Hotwire, Inc., No. A106583, 2005 WL 1579769 at *3 (Cal. Ct. App. July 6, 2005) (allegation that private citizen was telling a fraudulent story in connection with the purchase of a plane ticket); Schwartz v. Am. Coll. of Emergency Physicians, 215 F.3d 1140, 1147 (10th Cir. 2000) (allegation that doctor committed stock fraud). The other two cases are distinguishable from the facts in our case. See Fendler v. Phoenix Newspapers, Inc., 636 P.2d 1257, 1263 (Ariz. Ct. App. 1981) (allegation of “fraud” was substantially true because plaintiff was convicted of “false book entry,” which required a jury finding of “intent to defraud”); Orr v. Argus-Press Co., 586 F.2d 1108, 1112 (6th Cir. 1978) (allegation of “fraud” was substantially true because plaintiff was convicted of securities fraud). 111 Buck v. Savage, 323 S.W.2d 363, 368 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.); see also Knox v. Taylor, 992 S.W.2d 40, 50 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (defamation is actionable per se if it injuries a person in his or her office, business, profession, or occupation). 112 RESTATEMENT (SECOND) OF TORTS § 573 cmt e (1971). 113 RESTATEMENT (SECOND) OF TORTS § 573 cmt c (1971).

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Texas courts agree that “[w]ords not otherwise actionable per se may become so if spoken of a

person engaged in a particular business or profession, where they charge him with fraud, indirect

dealings, or incapacity and tend to injure him in his trade, business, or occupation. . . .”114 Thus,

even if it is true that some courts have held that a false allegation of fraud is not defamatory,

these holdings do not apply in the instant case. For, here, the relevant statements—which charge

Plaintiff with intentional misrepresentations and fraud in his profession; indirect dealings with

plaintiffs’ attorneys; incompetency in analyzing, treating and diagnosing patients; and

inappropriately taking advantage of his patients—are clearly and obviously injurious to Plaintiff

in his profession as a doctor, scientist, and author. Consequently, as a matter of law, the relevant

statements made by Defendants are defamatory per se.

C. ELEMENT 4: The Statements Are False. The Defendants in their Motion to Dismiss, attempt to prejudice the Court by parading in

a host of irrelevant and improper alleged facts concerning Plaintiff Wakefield, but notably fail to

substantively raise points specifically regarding the veracity of the defamatory statements

published in the BMJ in January 2011 at issue in this case.115

i. Defendant Deer, Secrets of the MMR Scare: How the Case Against the MMR Vaccine was Fixed, BMJ (Jan. 5, 2011).

114 Kooken v. Leather Center, Inc., No. 05-97-01202, 2000 WL 381926, at *2 (Tex.App.—Dallas April 3, 2000, n.w.h.) and Einhorn v. LaChance, 823 S.W.2d 405, 410-11 (Tex.App.—Houston [1st Dist.] 1992, writ dism’d w.o.j), (relying on Buck v. Savage, 323 S.W.2d 363, 368 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e. and RESTATEMENT (SECOND) OF TORTS § 573 (1971)). 115 To draw a parallel to a no evidence summary judgment motion, it seems clear that in order to properly move for a motion to dismiss under the Anti-SLAPP statue, the movant must make a plain statement that no evidence exists to support an element of a claim. Not only do Defendants fail to accomplish this, but they also spin pages and pages of argument, cast as facts, that fail to address the claims at issue in this matter.

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The thrust of Plaintiff’s claims begin with the defamatory statements made in

Defendants’ First Article, How the Case Against the MMR Vaccine was Fixed. This article is the

pinnacle of Defendants’ defamatory and false statements concerning Plaintiff Wakefield. In this

article Defendant Deer claims that he “compared” the medical records of Lancet children as

referenced in the GMC proceedings “to what was published in [the Lancet].”116 Deer states that

while “[the GMC’s] main focus was whether the research was ethical,” his “was whether it was

true.”117 According to Deer’s “reexamination” based upon the medical histories as referenced in

the GMC proceedings, Defendants’ baselessly assert that “[n]o case was free of misreporting or

alteration.”118 However, it is the Defendants, not Plaintiff Wakefield, who are liable for

misreporting.

Defendants provide a summary or inset of the purported basis belying their defamatory

statements that Plaintiff Wakefield committed fraud:

116 Exhibit [A], Deer, How the Case Against the MMR Vaccine was Fixed. at p. 78. 117 Id. Deer Depo 73:6-25 118 Id. at 81.

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But the very records that Defendants rely upon in support of their defamatory statements

concerning Plaintiff Wakefield, conclusively prove that the Defendants’ statements are false and

misleading, as summarized below:

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To begin with, the Lancet Paper, never stated that the children had “regressive autism”.

This was pointed out to the BMJ by Dr. Markovitch in the course of his alleged “peer review” of

a draft of the First Article but the BMJ preferred Deer’s position over that of its medical reviewer

and kept that statement in the article anyway.119

Defendants’ assertion is bold, clear and unequivocal: “[T]hree of nine children…did not

have autism diagnoses at all.” According to Defendant Deer’s deposition testimony, the three

children this statement refers to are Child 6, 7 and 12. Deer says Wakefield committed fraud and

used “bogus data” when the Lancet Paper indicated these three had autism.120

However, the medical records and GMC transcripts containing references to Lancet

Children’s medical history and records clearly show that indeed Child 6, 7, and 12 all had a

diagnosis of “autism”. Multiple documents and references from the GMC transcripts establish

these facts:

Child 6: With respect to the diagnosis of autism for Child 6, see Second Affidavit of Dr. Wakefield at ¶¶ 95-103 & 214-232. Some of the more specific example are :

o “Dear Dr Wakefield, following our discussion over the ‘phone the other day, Child 6 is a little boy with autism syndrome who does also suffer from bowel disorder. His mother is interested in entering him into your trial and I would be grateful if you could see her for discussion.” GMC Day 4/9 C (quoting an 8/9/96 Letter from Dr. Nalletamby, General Practitioner (“GP”) with a specialization in autism to Dr. Wakefield). Exhibit 58 of Second Affidavit of Andrew Wakefield.

o In a letter from Dr. Nalletamby to Dr. Bennett, a pediatrician, on March 11, 1997, requesting an opinion on his brother Child 7, Dr Nallentamby stated: “[Child 6], as you know, is autistic.” GMC Transcripts Day 6/19 (referencing General Practice records pages 274-275) (emphasis added). See Exhibit 61 of Second Affidavit of Andrew Wakefield.

 

Child 7: With respect to the diagnosis of autism for Child 7 please see Second Affidavit of Dr. Wakefield at ¶¶ 238-244; 70-103. Some specific examples are :

119 BMJ/Smith Depo at pp. 93:16–95:16; 120 See Exhibit [ ]Deer Depo110:1-18.

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o A letter from Child 7's GP, Dr. Bennett, dated February 27, 1997 states : “[Child 7] who would appear to have autism or at least be within the autistic spectrum.” GMC Transcripts Day 6/18 (referencing Local Hospital records page 71). See Exhibit 144 to Second Affidavit of Dr. Wakefield.

o “As has been previously suggested, this pattern is that of an autistic disability...his

[Child 7’s] problems are best described as being due to a Pervasive Developmental Disorder in the autistic spectrum.” GMC Transcripts Day 6/23 (referencing General Practice records pages 216-223). See Exhibit 146 to Second Affidavit of Dr. Wakefield.

o “We concluded then that he had a combination of autistic spectrum disorder and attention deficit hyperactivity disorder (ADHD).” General Practice records page 163; See Exhibit 147 to Second Affidavit of Dr. Wakefield.

Child 12: With respect to the diagnosis of autism for Child 12, please see Second Affidavit of Dr. Wakefield at ¶¶ 335-362. Some specific examples are:

o “D [diagnosis] ‘Autism’. M [mother anxous re MMR & Autism & Crohns…”

GMC Day 7/18 A (citing diagnosis in GP record, July 19, 1996). See Exhibit 196 to Second Affidavit of Dr. Wakefield.

o “It is interesting to see this child who really has the features of autism...” (letter from  Walker-Smith to Wakefield Oct. 21, 1996. GMC Transcripts Day 93/54 (referencing Royal Free Hospital record page 66). See Exhibit 198 to Second Affidavit of Dr. Wakefield.

These are just a few examples in the records. More are found in the Second Affidavit of Dr.

Wakefield. Defendants’ statement that three of nine children were not diagnosed with autism is

false.

Defendants’ First Article states that “only one child clearly had regressive autism.” For

support, Defendant Deer “cites” to an opinion of an expert who testified on behalf of the GMC

named Dr. Rutter.121 However, this is not what Dr. Rutter stated. Dr. Rutter actually stated:

“In some cases there is some evidence of regression. In Child 2’s case it is quite marked and repeated.” GMC Day 37/34 I. See Exhibit 39 to Second Affidavit of Dr. Wakefield.

121 See Exhibit [A], Deer, How the Case Against the MMR Vaccine was Fixed. at fn. 20.

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Defendants’ intentionally spin Dr. Rutter’s testimony to mean that Child 2 was the only child

diagnosed with “regressive autism [sic]” when in fact, Dr. Rutter is stating that some cases

contained evidence of regression and that one case [Child 2] the evidence was exceptional. In

any event, the medical records and GMC testimony make it absolutely clear that the children

involved in the study regressed.122

It appears that this false statement refers to Child 4, 5, 7, & 8. But again, as evidenced from the

GMC transcripts, these children were in fact previously normal as accurately reported in the

Lancet paper:

Child 4: Deer alleges that the medical records “give a different picture” for Child 4 that Wakefield reported in the Lancet and specifically, that he was “developmentally normal at age one year.”123 However, evidence (normal development) is found in an undated letter from Dr. Shabde, a pediatrician, to Dr. Sendall, a GP in the medical practice caring for Child 4: "Child 4 is nine months old and appears to be growing and developing normally." GMC Transcripts Day 6/57 (referencing General Practice records page 271). See Exhibit 39 to Second Affidavit of Dr. Wakefield.

o Child 4’s normal development to 18 months of age is captured in Dr. Casson's

discharge summary from the Royal Free Hospital on October 16, 1996: "It is relevant to this admission that he was followed until [18] months of age at North Tyneside Hospital and on his discharge his development was normal." GMC Transcripts Day 78/22 (referencing Royal Free Hospital record page 21). See Exhibit 104 to Second Affidavit of Dr. Wakefield.

Child 5: The first reference to Child 5's behavioral and developmental regression that was in the possession of doctors at the Royal Free Hospital was the clinic record of Prof. Walker-Smith on November 8, 1996: "At 8/12 [eight months] good developmental progress. At 18/12 [18 months] stopped speaking and stopped responding." GMC Transcripts Day 78/36 (referencing Royal Free Hospital records page 40-41). See Exhibit 104 to Second Affidavit of Dr. Wakefield.

o Further corroborative evidence of Child 5’s normal early development is

122 See Second Affidavit of Dr. Wakefield at ¶¶ 112-364. 123 Exhibit A.

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available in the Royal Free Hospital admission clerking notes on November 12, 1996: "Remained well for first 18 months. Achieved early milestones normal. Was walking by seven to nine months of age. Was saying three to four words but then stopped talking, started making growling noises, lost interest in surroundings..." GMC Transcripts Day 93/32 (referencing Royal Free Hospital records pages 38-39). See Exhibit 125 to Second Affidavit of Dr. Wakefield.

o Child 7: “[Child 7] was brought to the Casualty Department here at the end of

last week. There had been concerns since he was six weeks of age where he would have episodes where he would cry out, go red in the face and appear to be choking…I am suspicious that these episodes may be seizures. They do not sound typical of breath holding attacks and seem to occur rather unprovoked. On the positive side he appears to be developing normally and there are no significant abnormal findings.” GMC Day 6/13-14 (quoting letter from Dr. Trounce, pediatrician to Dr. Mills, GP, at South Downs Health, March 1995); See Exhibit 140 to Second Affidavit of Dr. Wakefield.

Child 8: Deer asserts that Child 8 was not developmentally normal prior to MMR, and

further, that she was globally delayed. In fact a developmental pediatrician assessed Child 8 as developmentally normal up until one month before her MMR. The same pediatrician diagnosed her as “globally delayed” after – not before MMR.124

o However, there is a letter from Dr. Houlsby, the developmental pediatrician, to

Dr. Shabde, a pediatrician, dated February 17, 1995, when Dr. Houlsby reviewed Child 8 just 3 weeks after her MMR vaccination. At this point, in contrast with his opinion on Child 8 just prior to MMR when he stated that developmentally, “her abilities….were not outside the range of normal” i.e. for a 17-18 month-old child, in this document he states that he now considered her to be "globally developmentally delayed functioning at about the one year level.” (emphasis added) GMC Transcripts Day 29/6 (referencing Royal Free Hospital Record pages 23-24 and also at General Practice records pages 131-132). See Exhibit 165 to Second Affidavit of Dr. Wakefield.

o Child 11: MMR at 15 months: (Note, because Child 11 is a U.S. citizen, his

records were not available to Defendants, contrary to Defendants statement): “My son [Child 11] at age 15 months was immunized with the Merck MMR vaccine and became ill for the next several months. As his pediatric records indicate he came down with a viral infection, and shortly thereafter viral pneumonia. His condition slowly deteriorated over time, and was diagnosed as being autistic on his birthday at age 3. The onset of his autistic behaviors began

124 See Exhibit A.

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around 18 months.” See Exhibit 187 to Second Affidavit of Dr. Wakefield (January 7, 1997 letter from Mr. 11 to Dr. Wakefield).

As explained by Defendant Deer in his deposition, this statement refers to Child 1, 2, 4,

6, 7, 8 & 11.125

However, as set forth in the Second Affidavit of Dr. Wakefield, the medical histories of these

children as referenced in the GMC transcripts prove that Defendants’ statements are false:

Child 1 - MMR at 15 months: “[Child 1] initially developed normally, reaching the normal milestones until he was about 15 months old. He then regressed and has now been diagnosed as autistic.” Day 3/58 G (quoting letter from DP, Dr. Borrow to Royal Free, May, 17, 1996). See Exhibit 66 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶113. “After MMR – 7-10 days later pale, ? fever, ? delirious (out of it) for 3 days. Had previously had fevers after immunisations. Diagnosed as autism.” Day 77/45 B (quoting clinician note June 20, 1996). See Exhibit 75 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶129.

Child 2 – MMR at 15 months: “Until 20 months of age, mum notes that [Child 2] had a normal developmental progress. He walked at 1 year and had started using recognisable words at 13 months of age. He was growing well and feeding himself. Mum does recount that at 13 [sic 15] months of age he had had his MMR immunisation and 2 weeks following this had started with head banging behaviour and screaming throughout the night. He subsequently seemed generally sickly. Nevertheless the most major changes appeared to have stemmed from the age of 20 months.” Day 77/11 A (quoting discharge notes from Dr. Casson to GP, Cartmell, Sept. 16, 1996). See Exhibit 83 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶137.

Child 4 – MMR at 15 months: See supra. Additionally, “[Child 4] had his [single] measles immunisation initially at 15 months of age and a 2nd subsequent [MMR] immunisation at approximately 2½ years. Mum relates a change in his behaviour from a period extending 4 weeks after the 2nd [MMR] immunisation. His play skills did not

125 See Exhibit [ ] DeerDepo 99:11-100:22.

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develop further. He became extremely hyperactive and indulged in destructive play.” Day 36/22 D (quoting Dr. Casson discharge notes, Oct. 16, 1996). See Exhibit 116 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶190.

Child 7 – MMR at 21 months: “He had the MMR rather later than usual at the age of 21 months. His mother tells me 24 hours afterwards he had a fit [seizure] like episode and slept poorly thereafter and she attributes changes in his behaviour to this event.” Day 25/48 F (quoting response letter from Dr. Walker-Smith to GP, Dr. Nalletamby, Jan. 15, 1997). See Exhibit 150 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶246.

Child 8 – For Child 8 “Mother reports the following the MMR there was a catastrophic deteririoration in 8’s level of function.” See Exhibit 168 to Second Affidavit of Dr. Wakefield; Second Affidavit of Dr. Wakefield at ¶279.

Child 11 – MMR at 15 months: (Note, because Child 11 is a U.S. citizen, his records were not available to Defendants, contrary to Defendants statement): “My son [Child 11] at age 15 months was immunized with the Merck MMR vaccine and became ill for the next several months. As his pediatric records indicate he came down with a viral infection, and shortly thereafter viral pneumonia. His condition slowly deteriorated over time, and was diagnosed as being autistic on his birthday at age 3. The onset of his autistic behaviors began around 18 months.” See Exhibit 187 to Second Affidavit of Dr. Wakefield (January 7, 1997 letter from Mr. 11 to Dr. Wakefield).

Defendants’ Last Three “Points”:

“In nine cases, unremarkable colonic histopathology results – noting no or minimal fluctuations in inflammatory cell populations – were changed aftere a medical school “research review” to ‘non-specific colitis’” -- is dealt with comprehensively at Second Affidavit of Andrew Wakefield at ¶¶ 31-69.

“The parents of eight children were reported as blaming MMR, but 11 families made this allegation at the hospital. The exclusion of three allegations – all giving times to onset of problems in months – helped to create the appearance of a 14 day temporal link.” -- is dealt with comprehensively at Second Affidavit of Andrew Wakefield at ¶¶ 365-475.

“Patients were recruited through anti-MMR campaigners, and the study was commissioned and funded for planned litigation” -- is dealt with comprehensively at See Poulter Declaration.

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ii. Defendant Godlee’s writings Wakefield’s article linking MMR vaccine and autism was fraudulent (Jan. 5, 2011) and The fraud behind the MMR Scare, BMJ (Jan. 6, 2011).

In Defendant Godlee’s accompanying editorial and article, she takes the unsubstantiated

and unverified work of Deer to a new low, claiming that the Lancet paper “was in fact an

elaborate fraud.”126 “Drawing on interviews, documents, and data made public at the GMC

hearings, Deer shows how Wakefield altered numerous facts about the patients’ medical histories

in order to support his claim to have identified a new syndrome.”127 She continues in her

Editor’s Choice article to explain that “the BMJ was able to check Deer’s findings and confirm

extensive falsification in no single case can the medical records be fully reconciled with what

was published [in the Lancet paper].”128 These statements are entirely false.

As previously explained above, Plaintiff has already established a prima facie case that

that the statements made against Plaintiff Wakefield are false as clearly evidenced by the very

records that Defendants’ claim to have relied upon. For this reason alone, Plaintiff has met his

burden with regards to falsity. But there is additional ample evidence further supporting

Plaintiff’s claims.

The Defendants’ statements against Plaintiff Wakefield are anything but mild. To the

contrary, they are bold and unequivocal. The Defendants might have chosen different words and

proffered a reasonable argument against the scientific basis underlying the Lancet paper. For

example, quite often in jury trials “a battle of the experts” ensues involving an expert’s critique

and opinion of another opposing expert’s opinion. In such instances, often is the case where an

expert will scientifically analyze the basis of the other’s opinions, to formulate a different

126 Exhibit B, at p. 64. 127 Id. at 64-65. 128 Exhibit C.

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conclusion. This example is used to show what the Defendants might have done but they did

not. Instead the Defendants’ baselessly called Dr. Wakefield a fraud and claimed that he

changed or altered data.

When asked about the nature of these statements, Jane Smith, the BMJ’s corporate

representative, had this to say:

Q. In all of the investigation that you did was there ever anything on a single page of the GMC record, or in any document that you looked at that showed that Dr Wakefield had altered a document, that he had erased something or written over something, or changed the language on a document? A. I did not see anything of that sort. Q. And you never heard anyone say that Dr Wakefield altered any documents or medical records, correct? A. I don't remember hearing that.129

Not only does the BMJ’s admission provide further evidence of the falsity of Defendants’

statements, but it also rises to the level of malice – reckless disregard for the truth or falsity of

the statement as published.

iii. The GMC “Findings” Defendants also argue that because of the GMC proceedings and findings, Defendants are

not accountable for the very specific defamatory statements they make in the publications at

issue. It is true that Dr. Wakefield and Professor Walker-Smith lost their medical licenses. But

his disciplinary action (however temporary in the case of Prof. Walker-Smith) was based on

claimed ethical infractions concerning how the Lancet paper research was handled, not on the

accuracy of what was reported.

129 Smith Depo. at p. 67:5-15.

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The Defendants acknowledge this very distinction in their own defamatory publications.

In Deer’s first defamatory article at issue he clearly states (as is bolded in large font on the first

page of the article):

The regulator’s main focus was whether the research was ethical. Mine was whether it was true.130

Godlee also admits the same:

The GMC launched its own proceeding that focused on whether the research was ethical…Deer compared them with what was published in the Lancet. His focus was now on whether the research was true. 131

Thus, based on their own admissions, Defendants cannot claim that the GMC’s decision to

discipline the Lancet Paper authors for perceived ethical infractions somehow excuses the

Defendants defamatory statements that Plaintiff Dr. Wakefield fraudulently changed or altered

data. Although Prof. Walker-Smith was not targeted by Defendants, he would have been just

as fraudulent as Dr. Wakefield according to the Defendants’ logic. If and when Dr. Wakefield

appeals and succeeds, it wouldn’t make Defendants’ statements any less actionable.

The Defendants claim that the GMC findings “involve substantially the same accusations

–if not in identical terminology” to the defamatory statements at issue in this matter. But the

GMC proceedings did not. As counsel for the GMC stated in her opening remarks:

There are very clear guidelines that require doctors to apply to ethics committees for permission to do research on their patients and to give an honest and accurate account and information to the ethics committee and to abide by the requirements of the committee when they are carrying out that research…Our case quite simply is that these three doctors did not comply with those guidelines.132

The directive of the GMC proceedings did not concern the accuracy or data of the Lancet paper,

but rather the ethical implications concerning how the research was conducted.

130 Ex A at p. 77. 131 Ex B at p. 65. 132 Exhibit 10, GMC Trans. Day 2, p.6 to Saba Affidavit in Response to Defs’ Anti-SLAPP.

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And, as stated above the GMC investigation concerned not just Plaintiff Dr. Wakefield,

but also Professor Walker-Smith who appealed and won a complete reversal of the decision

against him, resulting in his reinstatement. Notably, in the order reversing the GMC findings,

Justice Mitting, who heard the appeal, found that “the panel’s overall conclusion that Professor

Walker-Smith was guilty of serious professional misconduct was flawed, in two respects:

inadequate and superficial reasoning and, in a number of instances, a wrong conclusion.”133

Justice Mitting also commented on the miscarriage of justice that occurred during the GMC

proceedings:

It is in its findings on the clinical issues in the individual cases of the Lancet children that the most numerous and significant inadequacies and errors in the determination of the panel occur. In no individual case in which the panel made a finding adverse to Professor Walker-Smith did it address the expert evidence led for him, except to misstate it. The issues to which this evidence went were of fundamental importance to the case against him. Universal inadequacies and some errors in the panel’s determination accordingly go to the heart of the case.134

Thus, not only did the GMC proceedings involve ethical issues (which are not the subject of

Plaintiff’s defamation claims in this suit), but those ethical findings were also found to be

fundamentally incorrect.

Defendants also argue that Dr. Wakefield was misleading in wrongly using the term

“consecutive series” to describe the patient population.135 However, Justice Mitting had this to

say about same: “[t]he phrase ‘consecutively referred’… did not imply routine referral.” 136 In

fact, Justice Mitting found that the Lancet paper cautiously disclosed the possibility of selection

133 Mitting Order, March 7, 2012 at ¶186 attached as Exhibit 1 to Declaration of Clifford Miller. 134 Id. at ¶ 150. 135 Defs’ Motion at p. 26. 136 Mitting Order, March 7, 2012 at ¶157 attached as Exhibit 1 to Declaration of Clifford Miller.

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bias in a self-referred group and that the findings of failing to properly disclose the nature of the

patient population was “not a legitimate finding.”137

Defendants attempt to avoid liability for these false and defamatory statements by

arguing that Plaintiff is collaterally estopped from relitigating the GMC findings. This argument

fails for two reasons. First, collateral estoppel is an affirmative defense, and thus, under the plain

language of the Texas Anti-SLAPP Statute, may not be considered by the Court at this stage in

the proceeding. Second, even if the Court could consider such a defense, it would fail because

the issues determined in the GMC proceeding are not identical to the issues in question in this

litigation.

1. The Affirmative Defense of Collateral Estoppel is Irrelevant to Plaintiff’s Prima Facie Case.

Collateral estoppel is an affirmative defense.138 As set forth above, under the plain

language of the Texas Anti-SLAPP Statute,139 this Court may not consider Defendants’ potential

affirmative defenses at this stage in the litigation.140 The Texas Anti-SLAPP Statute states that,

once a court finds that a plaintiff has met its burden of establishing its prima facie case, the

inquiry under the Statute is over and the defendant’s motion to dismiss must be denied.141 In

other words, the court may not consider any of a defendant’s potential affirmative defenses

because such defenses are irrelevant to a plaintiff’s case-in-chief. Indeed, under Texas law, an

affirmative defense, which must “accept the existence of a prima facie case,”142 is interposed

137 Id. 138 Sysco Food Servs. Inc., v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994) (collateral estoppel is an affirmative defense). 139 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 140 Heggy, 123 S.W.3d at 778. 141 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 142 Chitsey, 2001 WL 1337591, at *3 (emphasis added).

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only to defeat the plaintiff’s already-established case-in-chief.143 For these reasons, this Court

may not consider Defendants’ affirmative defense of collateral estoppel at this stage in the

litigation as a matter of law.

2. Even if this Court Could Consider the Affirmative Defense of Collateral Estoppel, Such a Defense Would Fail Because The Issues Are Not Identical.

Collateral estoppel is an affirmative defense that precludes “relitigation of ultimate issues

of fact actually litigated and essential to the judgment in a prior suit.”144 In order for collateral

estoppel to apply, a defendant must establish that “the issue decided in the first action [is]

identical to the issue in the pending action.”145 Here, collateral estoppel does not apply as a

matter of law because the defamatory statements are not identical to the findings of the GMC.

The GMC findings never use the terms at issue in this litigation—namely, “fraud,”

“cheat,” and “liar.” And indeed, Defendants only allege that the GMC findings involved only

“substantially the same”—not identical—accusations.146 Further, Defendant Deer has admitted

that the GMC’s focus was ethics and his was accuracy. For these reasons, even if this Court

could consider the affirmative defense of collateral estoppel, which it cannot under the plain

language of the Texas Anti-SLAPP Statute, such a defense must fail as a matter of law.

D. ELEMENT 5: Defendants Acted with Actual Malice.

As to element (5), Plaintiff has produced more than sufficient evidence to raise a fact

issue as to actual malice. Actual malice requires proof that the defendant made the defamatory

statements with knowledge that they were false, or with reckless disregard of whether they were

143 Heggy, 123 S.W.3d at 778. 144 Tarter v. Metropolitan Savings & Loan Ass’n, 744 S.W.2d 926,927 (Tex. 1988). 145 Getty Oil Co. v. Ins. Co. of North America, 845 S.W.2d 794, 802 (Tex. 1992). 146 Defendants’ Original Motion, at pp. 23-24.

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true or not.147 Defendants argue that actual malice is “an exceedingly difficult standard to

satisfy” because Plaintiff must prove actual malice by “clear and convincing evidence.”148

However, clear and convincing evidence is not required at this stage in the litigation. In fact,

contrary to Defendants’ claim, clear and convincing evidence of actual malice is not even

required at the summary-judgment stage.149

1. Texas Case Law Does Not Support Defendants’ Argument.

In their Original and Amended Motions, Defendants cite three cases in support of their

argument that Texas courts “routinely grant summary judgment for failure to show actual malice

by clear and convincing evidence.”150 Surprisingly, however, none of those cases stand for the

proposition that Defendants assert. In all three cases, the Texas Supreme Court expressly states

that it is not reaching the defendant’s request to revisit the Court’s earlier holding in Huckabee v.

Time Warner Entertainment Co.., which only requires that a plaintiff raise a fact issue as to

actual malice at the summary judgment stage.151 In Huckabee, the Court explains its rationale

for this lower standard of proof:

Texas law has always emphasized that trial courts must not weigh the evidence at the summary judgment stage. Instead, a trial court’s only duty at the summary judgment stage is to determine if a material question of fact exists. . . . [In a defamation case involving a public figure, w]e see no reason to upset this traditional demarcation between fact-finder and judge by requiring trial courts to weigh the evidence at the summary judgment stage.152

147 Huckabee, 19 S.W.3d at 420 148 Defendants’ Original Motion at p.44; Defendants’ Amended Motion at p.46. 149 Huckabee v. Time Warner Entm’t Co., L.P., 19 S.W.3d 413, 421 (Tex.2000). At the summary judgment stage, if a fact issue exists, “the evaluation about whether a reasonable jury would find the plaintiff’s evidence to be clear and convincing is best made after the facts are fully developed at trial.” Id. 150 Defendants’ Original Motion at p.45 n.144 (citing “Cantu, 168 S.W.3d 847, New Times Inc. v. Isaacks, 146 S.W.3d 144 (Tex.2004); Forbes, 124 S.W.3d 167 (Tex.2003)”); Defendants’ Amended Motion at p.47 n.152 (same). 151 See Isaack, 146 S.W.3d at 168; Forbes, 124 S.W.3d at 172; Cantu, 168 S.W.3d at 859. 152 Huckabee, 19 S.W.3d at 422 (internal citations and quotations omitted).

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In other words, cases involving allegations of defamation brought by public figures are no

different than any other, and a plaintiff may defeat a defendant’s motion for summary judgment

by simply raising a question of fact on the issue of actual malice.

Arguably, the standard of proof required to defeat Defendants’ motion to dismiss in this

case is even lower: For, under the Texas Anti-SLAPP Statute, a plaintiff need only present clear

and specific evidence of its prima facie case in order to defeat a defendant’s motion to dismiss.153

But even at the very most, following Huckabee, a plaintiff in Texas need only establish that a

question of fact exists as to actual malice.

2. Here, a Question of Fact Exists as to Actual Malice.

In deciding whether Plaintiff has raised a question of fact, this Court must assume that all

facts favorable to Plaintiff are true and indulge all reasonable inferences in Plaintiff’s favor.154

Under this standard, Plaintiff has produced more than sufficient evidence to raise a question of

fact on the issue of actual malice.

In considering the issue of malice, the following legal principles apply:

A defendant’s “gross distortion” of the plaintiff’s viewpoint is evidence of

actual malice.155 When the gross distortion is due to an omission of facts, a

public figure may establish actual malice by presenting evidence that the

defendant selected the material with the awareness that the omission could

create a substantially false impression.156

153 See TEX. CIV. PRAC. & REM. CODE § 27.005(c). 154 See Belo Corp. v. Publicaciones Paso Del Norte, S.A. De C.V., 243 S.W.3d 152, 160 (Tex.App.—El Paso 2007, pet. denied) (citing Huckabee, 19 S.W.3d at 424). 155 See Belo Corp., 243 S.W.3d at 161. 156 See Belo Corp., 243 S.W.3d at 161.

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In addition, in some cases, the omission may be so glaring that it, by itself,

constitutes evidence of actual malice.157 “In such cases, the omission must be

such that it changes the character of the story that ‘one could infer that the

defendant knew, or at least suspected, that the omission would convey a false

impression.’”158

“[S]electively omitting facts in order to create a false impression may

constitute evidence of actual malice.”159

In this case, Defendants have provided sworn testimony that they conducted extensive

fact checking and even had a doctor review the clinical evidence. For example, in her March 9,

2012 Declaration of Fiona Godlee in Support of Defendants' Anti-SLAPP Motion to Dismiss, the

editor-in-chief of the BMJ (a doctor herself) testified :

Over the course of those intervening months, the articles went through extensive editorial review. For the first article, “How the Case against the MMR Vaccine Was Fixed/' I chose to have the article checked for medical and scientific accuracy by an independent external expert. At the BMJ, we do not usually have journalistic articles (as opposed to research atticles) externally peer reviewed. But this article relied heavily on clinical evidence, and I believed that peer review would help us identify any major inaccuracies or misunderstandings relating to the underlying scientific discussion.

She testified that that she asked Dr. Harvey Markovich to conduct this “external” peer

review.160 Godlee also testified:

I also assigned one of my deputy editors, Jane Smith, to do a fact·check of the first of the three articles, specifically reviewing the GMC transcripts on which so much of the article’s content was based. Jane Smith is my most experienced colleague. She has worked at the BMJ for nearly 40 years and for the past seven years, sirice I have been the Editor in Chief, she has been the editor responsible for ensuring that our editorial policies and procedures are up to date and fully implemented. She is also highly experienced in publication and medical ethics and serves as a magistrate in the English courts.161

157 See Belo Corp., 243 S.W.3d at 161. 158 See Belo Corp., 243 S.W.3d at 161. 159 Franco, 311 S.W.3d at 607. 160 Id. at ¶20. 161 Id. at ¶21.

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In their original Anti-SLAPP Motion to Dismiss defendants stated:

[The BMJ] and Dr. Godlee took extra steps to ensure the reporting was truthful. For Deer, . . . this meant five months of work to ensure that every word and every citation was verified. For the BMJ, this meant a separate fact-check of the first article by a deputy editor (Smith) and external review for scientific accuracy by an expert pediatrician (Dr. Marcovitch).162

Ms. Smith, the designated corporate representative of BMJ testified under oath that she is

experienced at editing a medical Journal, applied those skills in connection with her review of

the GMC transcripts and the evidence relating to the First Article and that she was careful and

thorough.163

She further testified that the BMJ had full access to the GMC transcripts, that she could

search text and find information in them, that Deer offered to assist her in the BMJ in searching

the transcripts and that Deer offered his underlying documents from his years of investigation for

review by the BMJ.164 Both defendant Godlee and Ms. Smith is the corporate representative of

BMJ testified under oath that the fact checking was “rigorous.”165 Furthermore, Smith and BMJ

were fully aware that Dr. Wakefield denied the claims being made by Deer – “line by line, word

for word according to Mr. Deer.”166 Dr. Wakefield's book, Callous Disregard, and his Press

Commission Complaint, each of which contained evidence showing the falsity of statements

being made by Defendants was easily available to Ms. Smith and BMJ.167

162 Defendants’ Original Motion at pp.49-50 (emphasis added). Notably, Defendants have now changed their story in their Amended Motion; so apparently, Defendants are now not as confident that every word and every citation was verified as truthful. 163 BMJ/Smith Depo at 29:18 – 30:20. 164 Id. at 30:21 – 31:23. 165 Id. at 51:13-20. 166 Id. at 48:3-22. 167 Id. at 50:13 – 51:25.

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If Godlee and the BMJ told this Court and the public the truth and they did indeed engage

in rigorous fact checking and peer review of the clinical evidence, the GMC transcripts and

relevant documents and information, there is no plausible way that they would not have found

the massive amounts of evidence set forth in the Second Affidavit of Dr. Wakefield, directly

contradicting their defamatory publications. How could they plausibly miss the fact that, even

though the First Article stated that certain children had no diagnosis of autism, there was

substantial clinical evidence repeated multiple times in the GMC transcripts, that those children

did have a diagnosis of autism? If they conducted the claimed rigorous fact checking, how could

they miss the numerous references to regression that the First Article claimed did not exist? How

could they miss the extensive clinical documentation of normal development, that the first article

claimed did not exist? The answer is – they could not have missed it if they truthfully conducted

any type of legitimate review and fact check, much less a rigorous one. So if the defendants told

the truth about their rigorous fact checking, as quoted from their Anti-SLAPP Motion and

Declaration as quoted above, it is clear that they must have found the evidence demonstrating

that there defamatory statements were false but chose to go forward and publish the false

defamatory statements anyway. This is clear evidence of malice.

Alternatively, defendants have attempted to mislead this Court and the public with the

quoted statements about the alleged rigorous fact checking and peer review of the clinical

evidence and affirmatively chose to look only at the portions of the GMC transcripts they

thought would support their preconceived notions and their claims of fraud, etc. and

affirmatively chose to ignore the massive amounts of easily available evidence in the GMC

transcripts they were supposedly reviewing that would have shown their published claims to be

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false.168 Accordingly, the evidence suggests that Defendants omitted facts in order to create a

false impression.169 This too is evidence of malice.

Under either of the above two alternatives, it is clear that defendants have, at a minimum,

provided misleading testimony in an effort to lead this Court and the public to believe that they

conducted legitimate fact checking and a thorough review of the GMC transcripts when in fact,

they did nothing of the sort.

i. The Rational Inference Test Does Not Protect Defendants in this Case.

Defendants argue that, as a rule, rational interpretations of complex evidence, even if

incorrect, are insufficient to create a fact question on the issue of malice.170 This argument,

however, fails to recognize an important caveat to that rule: That is, a reporter’s resolution of an

ambiguity “in favor of the most potentially damaging alternative [to the plaintiff] creates a jury

question on whether the publication was indeed made without serious doubt as to its

truthfulness.”171 Thus, when a plaintiff presents evidence—viewed in the light most favorable to

the plaintiff—that a reporter resolved an uncertainty in such a way as to cast the plaintiff in the

“worst possible light[,]” and make “a front-page story of an episode which otherwise might not

have commanded any significant attention[,]” there is a fact question for the jury on the issue of

actual malice as a matter of law.172 As can be seen from the abundance of evidence set forth in

the Second Affidavit of Dr. Wakefield regarding the question of the term “autism” and the

168 There is ample evidence of this. See e.g. BMJ/Smith Depo at pp. 49:19-24; 53:25 – 54-13; 33:20 – 34:19 169 See Franco, 311 S.W.3d at 607. 170 Defendants’ Amended Motion at p.49. 171 Rebozo v. Washington Post Co., 637 F.2d 375, 381 (5th Cir.1981) (reversing the district court’s summary judgment for defendant on the question of actual malice). 172 Rebozo, 637 F.2d at 382.

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relationship to Asperger's,173 it is clear that there was voluminous evidence from the Lancet

Children's' medical records supporting diagnoses of autism. Rather than presenting the issue in a

fair fashion acknowledging the extensive evidence supporting the Lancet Paper defendants chose

to cast Dr. Wakefield in the worst possible light by making bold, unequivocal statements that

there was no diagnoses of autism in certain children and statements that the records were altered.

This is clear evidence of malice.

In this case it is generous to assume that Defendants resolved ambiguities in such a way

as to cast Dr. Wakefield in the worst possible light, because the underlying evidence upon which

Defendants’ rely contradicts the defamatory statements made. Plaintiff has previously shown

numerous examples of the Defendants’ unequivocal false assertions and direct evidence

contradicting such statements. For this reason alone, Defendants’ Motion to Dismiss fails. But,

in the event that there was any ambiguity, not only were the Defendants predisposed to resolve it

against Plaintiff Wakefield, but they also willfully avoided entertaining an alternative

explanation:

[Q: ] The British Medical Journal holds itself out to be one of the most prestigious medical journals in the world, correct? A. Yes. Q. The British Medical Journal is respected in the medical profession because it is supposed to be legitimate and careful in what it does and what it says, correct? A. Yes. Q. Now, as the British Medical Journal don't you think you had obligation in fact checking these serious allegations to look beyond what Mr Deer said and to look and see what was said on the other side of the coin? A. We were satisfied that, no, we didn't feel we had an obligation to do that.

173 Second Affidavit of Andrew Wakefield at ¶¶ 70-104.

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BMJ/Smith Depo. at pp. 53:21-54:12(emphasis added). This alone is reckless disregard for the

truth or falsity of the statement made.

ii. Other Circumstantial Evidence—Viewed in the Light Most Favorable to Plaintiff—Also Creates a Jury Question on the Issue of Actual Malice.

In a case involving a public figure and matter of public concern, a defendant acted with

actual malice in publishing the defamatory statements if he either knew the statements were

false, or entertained serious doubts as to their truth or falsity.174 As “it would be rare for a

defendant to admit to such doubts,”175 courts have recognized that a plaintiff may rely on

objective circumstantial evidence to prove a defendant’s subjective state of mind.176

Specifically, “a court or jury may infer actual malice from objective circumstantial evidence,

which can override a defendant’s protestations of good faith.”177

As the Fifth Circuit has explained, under Texas law, a plaintiff can override a defendant’s

protestations of good faith if the plaintiff provides “evidence of negligence, motive, and intent

such that an accumulation of evidence and appropriate inferences supports the existence of actual

malice.”178 Under this standard, a court or jury is justified in finding actual malice if the

defendant: (1) had a motive to publish a false report, (2) acted negligently in preparing the

report, and (3) was aware of information directly contradicting the findings in the report but

failed to explain the contrary information.179 Speaking more broadly, a Texas appellate court has

further explained that additional factors can be used to show actual malice in that it “may be

174 See Franco v. Cronfel, 311 S.W.3d 600, 607 (Tex.App.—Austin 2010, pet. denied). 175 Brown v. Petrolite Corp., 965 F.2d 38, 47 (5th Cir.1992); see also Franco, 311 S.W.3d at 607. 176 See Bentley, 94 S.W.3d at 591; Franco, 311 S.W.3d at 607. 177 Brown, 965 F.2d at 47; see also Franco, 311 S.W.3d at 607. 178 Brown, 965 F.2d at 47 (citing Bose Corp. v. Consumers Union of United States, Inc., 692 F.2d 189, 196 (1st Cir.1982) (internal quotations omitted). 179 Brown, 965 F.2d at 47.

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inferred from the relationship of the parties, the circumstances surrounding the publication, the

terms of the publication itself, and from the words or acts of the defendant before, at, or after the

time of the communication.”180 In addition, circumstantial evidence that tends to undermine the

overall credibility of the defendant can support an inference that the defendant acted with actual

malice.181 Applying these factors to the present case, Plaintiff has raised a question of fact as to

whether Defendants acted with actual malice.

a. Relationship of Parties A defendant’s motive to ruin the plaintiff’s reputation is a factor to be considered in a

determination of actual malice.182 Although “actual malice” is not synonymous with ill will,

spite or evil motive, evidence that the defendant harbored ill will toward the plaintiff is often

probative on the issue of whether the defendant was reckless with the truth in publishing the

statements.183 Here, Defendants motives are clear.

As evidenced from Defendant Deer’s declaration, Deer had spent nearly a decade

unscrupulously bashing Plaintiff Dr. Wakefield. Deer brought his smear campaign against Dr.

Wakefield to the BMJ and the BMJ embraced it. In a November 10, 2010 email from Deer to

Godlee, Deer explains his perceived “campaign” against Dr. Wakefield, and it is clear, based on

the deposition testimony of the BMJ corporate representative, that the BMJ accepted it:

180 See Belo Corp., 243 S.W.3d at 164. 181 Texas Disposal Sys. Landfill, Inc. v. Waste Mgt. Holdings, Inc., 219 S.W.3d 563, 579 n.17 (Tex.App.—Austin 2007, pet denied) (fact that witness for defense changed his testimony was circumstantial evidence about witness’s overall credibility, from which jury could infer that defendant acted with actual malice). 182 Bentley, 94 S.W.3d at 596 (an injurious motive is a factor to be considered in a determination of actual malice); see also Brown, 965 F.2d at 47 (in case regarding defamatory statements made by a company about its competitor, Fifth Circuit upheld jury’s finding of actual malice based on evidence that defendant “had the motive to publish a false report” and “was aware of information directly contradicting its findings but failed to explain those contrary results”). 183 Texas Disposal Sys. Landfill, Inc., 219 S.W.3d at 576-77.

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[Q:] “Wakefield denies any lapses whatsoever line by line, word for word. On his account he is the victim of what must be the most sustained and malicious campaign of libel that has ever been waged against anybody. On his account I must be an immensely unscrupulous and devious individual, hell bent on his unwarranted destruction.” Did I read that accurately? A. You read that accurately. Q. So you knew that there were allegations being made that Mr Deer was biased, was out to get Dr Wakefield, and Mr Deer was even saying: You know what, you need to really check these facts because you are aware that that controversy is there? A. Yes. Q. And the BMJ was on full notice of that? A. Yes.184

b. Circumstances Surrounding Publication

The BMJ’s website contains a set of guidelines to ensure that the accuracy of the articles

it publishes is accurate and to protect itself from liability.185 Ironically, under the title “Libel,”

the BMJ policies states:

If an allegation turns out to be false (ie based on incorrect facts), we will find it hard to defend, so fact checking is imperative. But we may have a small chance of defending ourselves, if the allegation has been shared fully with the “accused,” and that he or she has had a chance to respond, and if that response has been forwarded unedited to us. 186 Ensure that you check all your facts Ensure that all articles are balanced. If you are publishing an allegation against someone, you must give the accused a chance to reply. When you approach the accused, you must reveal in detail what your allegations are, so that he or she can have a chance to answer them in full…it is no defense to say that an allegation has already been published elsewhere.

184 Smith Depo. at pp. 74:24-75:14 (citing Ex. 38 to deposition, a Nov. 20, 2010 e-mail from B.Deer to F.Godlee) 185 Exhibit 1, to Saba Affidavit in Support of Anti-SLAPP. 186 Id.

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This is exactly what did not happen in the case of Plaintiff Dr. Wakefield. As shown

from the testimony from the BMJ corporate representative, the BMJ acknowledged that Dr.

Wakefield denied Deer’s previous accusations and publications (although he had not been given

the opportunity to review the allegations before they were published in the BMJ.) However,

according to the testimony of the BMJ’s corporate representative, the BMJ intentionally and/or

recklessly disregarded such evidence:

Q. And I will show you Exhibit 2, the final article to let you orientate yourself. If you look at Exhibit 2, which is the actual article on page 81. Beginning in the bottom right-hand corner there is the final version of that paragraph that says: “Wakefield however denies any wrongdoing.” Do you see that? A. Yes. Q. Now, in the draft you inserted an editorial comment in that paragraph saying: “Where does Wakefield say all this? Are these quotes of what he said at the GMC hearing or has he said them separately to Brian?” Do you believe that is your editorial note? A. I think it probably is, yes. Q. So you knew that Wakefield had made denials? A. Yes. Q. And you knew, in fact, that he had denied it line by line, word for word according to Mr Deer? A. Yes. Q. And in your fact checking you never looked at Wakefield's testimony to see what exactly he did say, did you? A. I didn't, you are right, because that bit had already been -- MR BLANKE: Just answer the question. MR PARRISH: And did he respond about when you asked: “Where does Wakefield say all this?”

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A. I didn't ask him that question. This was an early draft and these were comments batting backwards and forwards internally in the office.187

“The purpose of the actual malice standard is to protect innocent but erroneous speech on public

issues, while deterring ‘calculated falsehoods.’”188 “Although the failure to investigate does not,

on its own, demonstrate actual malice, a purposeful avoidance of the truth does.”189 Here, the

Defendants – all of them – purposefully avoided and disregarded the truth.

E. ELEMENT 6: Plaintiff Suffered Injury.

Under Texas law, when the defamatory statements qualify as defamatory per se, Plaintiff

need not prove damages.190 This is because “[g]eneral damages are presumed without requiring

specific evidence of harm to the plaintiff’s reputation.”191 As a result, “[w]ith defamatory per se

statements, general damages for injury to character, reputation, feelings, mental suffering or

anguish, or other wrongs not susceptible to monetary valuation are presumed.”192

Here, as a matter of law, the relevant statements, which are injurious to Plaintiff in his

profession, are defamatory per se. Thus, as a matter of law, Plaintiff is presumptively entitled to

recover actual damages for injury to his reputation, character, feelings, and mental suffering or

187 Smith Depo. at 48:8-49:3 (referencing Exhibit 19 of Deer Deposition at p. BMJ0008502). 188 Belo Corp., 243 S.W.3d at 159 (quoting Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000)). 189 Texas Disposal Sys. Landfill, Inc., 219 S.W.3d at 579 (citing Harte-Hanks, 491 U.S. at 692, 109 S.Ct. 2678 (ignoring two sources that could objectively verify allegations was purposeful avoidance of discovering facts that might show allegations’ falsity); Bently, 94 S.W.3d at 601 (actual malice existed where defendant “deliberately ignored” “all those who could have shown [him] that his charges were wrong”). 190 Texas Disposal Sys. Landfill, Inc., 219 S.W.3d at 580-81 (statements that are defamatory per se are actionable without proof of injury). 191 Id. 192 Id. at 584; see also Bentley, 94 S.W.3d at 604 (“Our law presumes that statements that are defamatory per se injure the victim’s reputation and entitle him to recover general damages, including damages for loss of reputation and mental anguish.”).

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anguish. Regardless, Plaintiff presented offered prima facie evidence that he suffered damage.

See Wakefield Affidavit (April 5, 2012) at ¶¶ 10-11.

VI. PRAYER

Plaintiff Dr. Wakefield hereby prays that this Court deny Defendants’ Anti-SLAPP

Motion to Dismiss, and for such other and further relief to which he may be justly entitled.

William M. Parrish State Bar No. 15540325 bparrish@dpelaw.com Jay D. Ellwanger State Bar No. 24036522 John D. Saba Jr. State Bar No. 24037415 DINOVO PRICE ELLWANGER & HARDY LLP 7000 North MoPac Expressway, Suite 350 Austin, Texas 78731 (512) 539-2626 Telephone (512) 539-2627 Facsimile Brendan K. McBride The McBride Law Firm of counsel to Gravely & Pearson, LLP 425 Soledad, Suite 620 San Antonio, Texas 78205 210.227.1200 210.881.6752 (fax) bmcbride@gplawfirm.com ATTORNEYS FOR PLAINTIFF

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Plaintiff’s Response to Defendants’ Anti-Slapp Motion to Dismiss has been served on counsel of record as set forth below in accordance with the Texas Rules of Civil Procedure on this 19th day of July, 2012.

Mr. Marc A. Fuller Vinson & Elkins LLP Trammel Crow Center 2001 Ross Ave., Ste. 3700 Dallas, TX 75201-2975 (214) 220-7700 (214) 220-7716 facsimile mfuller@velaw.com

David P. Blanke Vinson & Elkins LLP 2801 Via Fortuna, Suite 100 Austin, TX 78746 (512) 542-8622 (512) 236-3314 facsimile dblanke@velaw.com

John D. Saba