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About the Wakefield Appeal...

Opinion by Consumer Advocate Tim Bolen 


Tuesday, October 30th, 2012

 

More Articles About the Andrew Wakefield v Brian Deer, BMJ case

(Brian) Deer in the Headlights...

Who in the Hell is Brian Deer?...

Fact:  The Texas Jury Is Going To Hate Brian Deer... And that would spell THE END for the British Medical Journal...

About the Wakefield Appeal...

Today we're going to talk about the Andrew Wakefield versus Brian Deer, et al, case in Texas once again.  As some of you may have heard, a minor problem has popped up.   A judge Dismissed the case on jurisdictional grounds and an Appeal has been filed over that Decision. Jake Crosby over at Age of Autism wrote a very good synopsis of  the situation.  Read it here. I'll explain what's happening legally, below, and tell you what's taking so long.

Background...

You may have read, on the internet somewhere, that the Texas court dismissed Andrew Wakefield's case against Brian Deer and the British Medical Journal on jurisdictional grounds - meaning that the judge decided, in her mind, that Texas was not he right place for such a trial. 

For sure the "skeptic" contingency trumpeted this action everywhere they could.  "Orac" (David Gorski) wrote about it so child-snidely he sounded like somebody wore the same dress to the seventh grade Prom that he did.

I am about to tell you what is really happening.

Although the US Court system is somewhat the same from State to State, and country to country, in those places where the law is based on English Common Law, procedural differences do happen - so everything is not EXACTLY the same everywhere.   In Texas, unlike many other States, to file an Appeal of a State Court Decision to an formal Appeals Court one must first file a "Notice of Appeal," wait for the Appeals court to get records from the original court, then they can file the actual Appeal documents, noting the reasons for Appeal.

To date the "Notice of Appeal" has been filed, and the Appeals court is in the process of gathering records.

I've read the documents that will be submitted in the actual Appeal.  There is no question that the original judge erred in the Dismissal.  Once the Appeals Court has the actual Appeal documents I predict the case will be remanded back to the original court for trial - sort of.

Sort of?  Yes.  Wakefield's attorneys are petitioning for a new judge, and they'll get it.

What is the substance of the Appeal?

There are three basic, but separate, jurisdictional legal concepts to be argued:  (1)  There are adequate legal reasons for jurisdiction, (2)  There is adequate case law - meaning that these jurisdictional arguments, in similar cases, have reached the Appeals Court before, and have been decided for the Plaintiff (like Wakefield), and (3)  Brian Deer's attorneys made some grievous legal errors, ones that will now OBLIGATE Deer, and the BMJ, to a trial in Texas.

Let's be specific.

(1)  Adequate legal reasons: (from court documents)

In January 2011, the year the Defendants’ defamatory articles were published, the BMJ had thousands of Texas subscribers. While the BMJ reported having only 47-48 Texas subscribers, many of those subscribers are institutions whose online subscription also extends to hundreds and/or thousands of members within those institutions.

• Defendant BMJ Publishing Group, Ltd. had 468 Texas subscribers to its “other journals” in January 2011.

• Thousands of Texans are known to have accessed the BMJ’s website and the specific defamatory articles at issue. In January 2011, alone at least 22,993 individuals in Texas accessed the bmj.com and at least 5,160 individuals in Texas accessed the defamatory article and editorials, collectively.

• The Defendants actively promoted media coverage of the defamatory articles to press contacts in Texas and to media that serve Texas and several major Texas newspapers published articles regarding the Defendants’ defamatory publications.

• BMJ Publishing Group, Ltd. has peer reviewers and contributory authors in Texas.

• The BMJ directly conducts sales, marketing and support to citizens in Texas through its employees responsible for Texas.

• The BMJ profits from citizens in Texas.

• The BMJ contracts with and generates advertising revenue from persons and institutions in Texas

(2)  Adequate case law: (from court documents)

A case directly on point, Paul Gillrie Institute, Inc. v. Universal Computer Consulting, Ltd. 183 S.W.3d 755 (Tex.App. – Houston [1st Dist.] 2005, no pet.) holds that a foreign defendant distributing publications to approximately 50 Texas subscribers was enough to subject the defendant to jurisdiction of this State. (Gillrie is attached as Exhibit A, hereto). In Gillrie, plaintiffs, Universal Computer Consulting, Ltd and Dealer Computer Services (“UCS”) were two affiliated companies that provided computer systems to auto dealers. Id. at 757. In 2004 defendant, Paul Gillrie Institute, Inc. (“PGI”), a Florida corporation, published an allegedly defamatory article in its trade journal concerning plaintiff UCS’s computer services. Id. at 758. UCS sued PGI and two of its employees who authored the articles for defamation in Texas. Id. Defendant PGI did not have offices, employees or a registered agent in Texas. Id. It did not operate in Texas and it did not routinely send or recruit employees from Texas. Id. PGI’s journals were “written, compiled, and published in Florida” and PGI only sent its journals to customers through the U.S. mail. Id. Aside from a limited number of Texas subscribers – 18 active subscribers and 32 non-paying subscribers – PGI claimed that it had no contacts with the State. Additionally, Darmento, one of the individually named defendants and authors, claimed to never have stepped foot in Texas since 1990. Id. at 758. The other individual defendant, Gillrie, claimed to have only visited the State once a year for unrelated trade shows. Id. Defendants challenged jurisdiction. The trial court denied their special appearance and defendants appealed.

On appeal, PGI argued it had “absolutely no connection to the State of Texas,’ the journal did not mention the State of Texas, there was no evidence to show that UCS's operations were centered in Texas, and there was no evidence that the journal was aimed at Texas or widely circulated in Texas.” Id at 755. However, the court of appeals, disagreed. The very fact that the defendants had distributed and sold a publication containing allegedly defamatory statements about a Texas resident to a handful of Texas subscribers was sufficient to exercise specific jurisdiction. Id. at 762. In its minimum contacts analysis, the court reasoned that:

[T]he exercise of personal jurisdiction over PGI, a non-resident, is consistent with the touchstone of purposeful availment. PGI is subject to the jurisdiction of Texas courts, not because of the unilateral activity of a third party, but because of its purposeful contacts with Texas. Additionally, PGI's mailing of the journal to Texas subscribers is not ‘random, isolated, or fortuitous.’ Finally, by directing the trade journal to Texas subscribers, PGI was seeking a ‘benefit, advantage, or profit,’ and, thus, consented to being sued in Texas for allegedly defamatory statements contained in the journal.

Rule 120a requires that “[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” TEX. R. CIV. P. 120a.2. Failure to comply with Rule 120a results in waiver of the special appearance. Id.  A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance.

(3)  Grievous legal errors by Defendant attorneys: (from court documents)

In any case involving "jurisdiction" as an original legal  issue, attorneys appear for their clients in what is called a :"Special Appearance."  The "jurisdiction" issue must be dealt with first.  No other legal issues may be presented by the parties, except the original petition, before the "jurisdiction" issue is decided. 

In this case the Defendants Brian Deer, Fiona Godlee, and the British Medical Journal apparently could not stand the fact that they were not controlling the public dialogue about the Texas case so they insisted on filing an Anti-SLAPP Motion, full of virulent language, which they then distributed to the News Media, and their personal public relations operation - the "skeptics."  But that action, and others related, required a "General Appearance," something quite different.  A "General Appearance" in the Texas courts accepts, and uses the benefits of, "jurisdiction" - an attorney's representation of a client in court for all purposes connected with a pending lawsuit or prosecution.

In short the Defendants, with their arrogant dismissal of Wakefield and the Texas courts, walked right into a trap.  Below is the legal argument.

DEFENDANTS HAVE WAIVED THEIR SPECIAL APPEARANCE

Following a hearing on the limited issue of whether Defendant’s had made general appearances, and therefore waived their special appearances, based on their conduct prior to and up to the hearing, the Court issued an order finding that Defendants had not waived their special appearances. However, Defendants have continued to aggressively prosecute their counterclaims against Dr. Wakefield under Chapter 27 of the Texas Civil Practice & Remedies Code, expressly and repeatedly invoking the jurisdiction of this Court and asserting and litigating rights available under Texas law. Since the time of the Court’s ruling, Defendants have engaged in further conduct in invoking Texas law and the jurisdiction of this Court in support of their own counterclaims and unrelated to their challenge to this Court’s personal jurisdiction. These further acts also constitute general appearances and effectively have waived Defendants’ special appearances.

To clarify, despite the Court’s ruling that prior conduct by Defendants did not constitute a waiver of their special appearances, Dr. Wakefield contends that this prior conduct did constitute a general appearance and hereby incorporates the evidence and argument regarding waiver based on this prior conduct included in Plaintiff’s original response to the Special Appearances filed with the Court on April 5, 2012. In addition to the conduct outlined in the Plaintiff’s original response, by way of supplement and for purposes of requesting reconsideration of the Court’s prior ruling on the matter of waiver, Dr. Wakefield presents this supplemental response on the issue of waiver regarding conduct by Defendants since the prior hearing that constitute general appearances.

Rule 120a requires that “[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” TEX. R. CIV. P. 120a.2. Failure to comply with Rule 120a results in waiver of the special appearance. Id.

A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance.

Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (quoting Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 324, 327 (Tex. App. – El Paso 1994, writ denied).

Thus, a party enters a general appearance and waives a special appearance “when it: (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). When a party makes a Exhibit 9 to Saba Supp. Affidavit (referring an email form Defendants’ counsel to Plaintiff’s counsel on May 6, 2012 requesting more time).

 Subsequently, Defendants filed a request with the Court to move the hearings, and specifically to move the hearing as it relates to their Chapter 27 motion, back to July 30 and 31. See Exhibit 10 to Saba Supp. Affidavit (Defendants’ Notice of Hearing). This request culminated in the Court ultimately re-setting the hearing on Defendants’ Chapter 27 motion for July 31, at Defendants’ request.

In Branckaert v. Otou, 01-08-00637-CV, 2011 Tex. App. LEXIS 6286, 6-7 (Tex. App. – Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.), the court explained that a party who seeks a continuance for purposes unrelated to their ongoing contest of the trial court’s personal jurisdiction waives their special appearance. In so doing, the court stated: “the test for a general appearance is whether a party requests affirmative relief inconsistent with an assertion that the trial court lacks jurisdiction,” before concluding that a defendant had waived its special appearance by filing a motion for continuance of the trial date in order for the defendant to prepare for a paternity dispute. The court concluded: The issues raised in Branckaert's motion have nothing to do with the court's jurisdiction, but indicate Branckaert's intention to defend the case of [sic] the merits by obtaining DNA testing to disprove paternity. Branckaert's motion for continuance, with its request for time to perform DNA testing, “recognizes that an action is properly pending” and “seeks affirmative action from the court.”

[quoting Dawson-Austin, infra.]. Thus, he has entered a general appearance in the case and waived his previously filed special appearance.

Id. (citations omitted). The court distinguished Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998):

Relying on Dawson-Austin, Branckaert contends that a motion for continuance will never constitute a general appearance. Dawson-Austin, however, is distinguishable. In that case, the defendant filed a special appearance, contemporaneously with a motion to quash service, plea to the jurisdiction, and plea in abatement. 968 S.W.2d at 321. The plaintiff sought to set the defendant's motions for a hearing, and the defendant moved for a continuance, arguing that Here, by contrast, it is undisputed that a significant portion of the discovery concerns Defendants’ own Chapter 27 motions seeking dismissal, attorneys’ fees and punitive damages against Dr. Wakefield. Indeed, after the Court ordered discovery related to the Chapter 27 motions on May 4, 2012 See Exhibit 8 to Saba Supp. Affidavit, Defendants sought no review of that order allowing the discovery, and willingly participated in this discovery – clearly unrelated to the Court’s jurisdiction – for the rather obvious purpose that it would facilitate having a hearing on their own requests for affirmative relief the day after their hearing on the special appearances. In other words, the record shows Defendants participated to discovery related specifically to their own affirmative claims in furtherance of their prosecution of those claims, and not for any purpose that furthered their special appearances or their challenge to the Court’s personal jurisdiction.

No Texas court has held that a defendant can plead its own affirmative counterclaims, set them for hearing, and participate in discovery related to these counterclaims and not limited to  personal jurisdiction, without waiving its right to contest jurisdiction.

C. Defendants Further Waived Their Special Appearances By Requiring A Briefing Schedule for the Chapter 27 Motion Prior to the Resolution of the Their Special Appearances.

There is little doubt that Defendants have been actively and aggressively litigating their own Chapter 27 claims for affirmative relief at the same time their jurisdictional challenges remain unresolved and unheard. In addition to the numerous acts detailed in Plaintiff’s original response and in this supplemental response, Defendants also sought and obtained a briefing schedule related specifically to their Chapter 27 motions that required Dr. Wakefield to muster his proof and detail his arguments regarding the Defendants’ claims for affirmative relief before the hearing on the special appearances. See Exhibit 11 to Saba Supp. Affidavit.

Indeed, they have invoked their rights under Chapter 27 by requiring Dr. Wakefield to brief and support his substantive case and respond to Defendants’ affirmative requests for dismissal, attorneys’ fees and punitive sanctions under Chapter 27 by July 19, 2012 – 11 days before the Court will have resolved the special appearances. This conduct rather obviously meets all three standards for waiver under Exito. Defendants have (1) invoked the judgment of the court on a question other than the court's jurisdiction, (2) recognized by their acts that an action is properly pending, or (3) sought affirmative action from the court. Id. at 304.

These acts, along with the acts detailed in Plaintiff’s Original Response, constitute a general appearance by all three defendants, and they have waived their special appearances.

Thus, by way of this supplemental response, Plaintiff seeks an order from the Court either  reconsidering its prior ruling that Defendants have not waived their jurisdictional challenge by their conduct prior to the Court’s hearing on waiver, or ruling that Defendants’ conduct since the waiver hearing – whether alone or in addition to their prior conduct – has now amounted to a general appearance.

Wakefield's attorneys got to do a limited Discovery process...

And was that a hoot.  I have read selected excerpts from Depositions conducted in England.  In short, Deer, Godlee, and the BMJ are dead meat.

But that's a another article in itself.

Now, we just wait for the Appeals court to indicate that it is ready to hear arguments.

I'll say this once again

The Texas Jury is going to HATE Brian Deer...

And, hence, we are looking at the end of Brian Deer, Fiona Godlee, and British Medical Journal.  It is just a matter of time. 

And, good riddance.

 

Stay tuned...

Tim Bolen - Consumer Advocate

 
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