Offit: Sued (For Libel) - And Had To Settle?
Sued (For Libel) - And Had To Settle?
The Action
Nature of Action This is an action brought by Plaintiff against Columbia University Press ("the Press") and Paul A. Offit, M.D. ("Offit") (collectively, "Defendants") for false light invasion of privacy arising from a fictionalized online "conversation" between Plaintiff and Kathleen Seidel. The fictionalized conversation appears in Autism's False Prophets: Bad Science, Risky Medicine, and the Search for a Cure, a book authored by Offit and published by the Press. Offit fabricated the online conversation to portray Plaintiff, a respected spokesperson and advocate for biomedical treatment of autism, as responding unreasonably and in a threatening manner to a "plea" by Seidel, a supporter of Offit's pro-vaccination views. In truth, as a simple inspection of the relevant websites reveals no such "plea" was ever made by Seidel, and the response attributed to Plaintiff never occurred as stated by Offit. Offit simply made up the exchange because it suited his purpose of villainizing Plaintiff in the community of parents, volunteers, and members of the public concerned about the link between vaccines and autism.
2.The central premise of AUTISM'S FALSE PROPHETS pits Offit's pro-vaccination beliefs against those more cautious about the use of vaccines. Those in the pro-vaccination camp, like Offit (who invented a vaccine that he actively promotes the use of), believe that there is no link between vaccines and autism. Others, such as Plaintiff and his group Generation Rescue, believe that some children, like Plaintiff's son, are victims of too many vaccines administered too early, triggering a regression into autism.
3.To stoke the fires of this controversy, to sell more copies of his book, and to place supporters of his pro-vaccination views in a more favorable and sympathetic light, Offit fictionalized the exchange between Seidel, a supporter of Offit's views, and Plaintiff, one of Offit's sharpest critics. Offit accomplished this fabrication by creating a made-up "plea" by Seidel for Plaintiff to stop promoting a certain autism therapy. Offit then falsified a "response" to this phony "plea" by quoting, completely out of context, a message that Plaintiff had posted on a different message board in response to an entirely different topic.
4.To be clear, the online conversation described in Offit's book never happened. Offit purposely and deceptively linked these two statements in an effort to put Plaintiff in a disreputable and false light, damaging his reputation, credibility, and goodwill, both in the autism community in which he actively advocates and in the business community where he manages a well-known global private equity firm.
5.Plaintiff does not question or challenge Offit's right to report factual information and make fair comment on issues of public concern. Legitimate reporting and public debate end, however, when inflammatory statements are falsely attributed and fabricated conversations are reported as fact. Accordingly, Plaintiff brings this action to vindicate his rights and reputation under civil law. As a result of Defendants' conduct, Plaintiff's reputation and goodwill as a spokesperson for Generation Rescue and its causes has been damaged. Plaintiff has been further damaged in having to expend substantial resources to retain and repair his reputation. Because of these and other injuries sustained as a result of Defendants' conduct, Plaintiff is entitled to damages in an amount to be determined at trial but, in any event, no less than $65,000.
6.Upon discovery of the fictionalized account in the book, Plaintiff, through his attorney, confronted Offit and the Press with the error and demanded that it be retracted and removed from future editions of the book. The Press, on behalf of itself and Offit, refused to admit Offit's error in fabricating the exchange, refused to issue a retraction, and refused to remove the fabricated exchange from future publications of AUTISM'S FALSE PROPHETS. Because Plaintiff thus faces the prospect of continuing irreparable harm as a result of the damaging and disparaging characterizations in Defendants' publication, Plaintiff seeks—in addition to compensatory damages—an order requiring Defendants to retract the fictionalized exchange from already-published copies of Autism's False Prophets, and an order prohibiting its inclusion in future editions of Autism's False Prophets.
I See The Plaintiff Isn't Named. Who Is It?
J.B. Handley, an anti-vaccine activist. Handley has a reputation for being robust in argument. He used to have the pauloffit.com domain, which he used as a platform from which to denounce Offit. It is probably fair to say that Handley and Offit have very little respect for each other's positions, moral worth, intellectual honesty, etc.
Tell Me More
A member of Handley's organisation ("Generation Rescue") had their workplace (a school) contacted by an anonymous individual, who wrote a letter to the member's school administrators attaching a copy of her list-serve posting, detailing her association with Generation Rescue, providing the name of her autistic daughter, describing the methods that the member was using to treat her daughter, and asseting that the member's administrators should question her judgment as both a teacher and a mother.
Handley made a posting addressed to the general community he believed the anonymous individual was a member of - a community ("Neurodiversity") centered around a pro-vaccine campaigner Kathleen Siedel. Siedel was not named in the post, only the "Neurodiversity" label was used.
One of Offit's books, "Autism's False Prophets", wrongly quoted the posting as being part of his responses in an email exchange with Kathleen Seidel that took place in June 2005 - but the posting in question was actually made in October 2005, in response to the anonymous letter writing incident. The posting and the earlier email exchange were not in fact linked in reality.
What Was The Posting?
Dear [Neurodiversity] folks monitoring this list: I have no respect for your 'movement.'You are now spending your time actively hassling our Rescue Angels. We are spending [our] time constructively engaging doctors to help our babies. If you don't like what we have to say, stop listening.We will bring the full resources of myself and Generation Rescue to stop this. We will sue you for libel and we will go after your homes and assets. My lawyers live to investigate and sue people like you.This will be your only warning.
How Was It Quoted In The Book?
"SEIDEL WAS ALSO APPALLED BY THE GEIERS' AND JB HANDLEY'S constant promotion of chelation therapy as a cure for autism. In 2000, only a handful of children were chelated; by 2005, the number had purportedly climbed to more than 10,000 a year. On her Web site, Seidel pleaded with Handley to stop promoting a "therapy" that had never been shown to work and was potentially dangerous. Handley wrote back: "We are spending out time constructively engaging doctors to help our babies. If you don't like what we have to say, stop listening. We will bring the full resources of myself and Generation Rescue to stop this. We will sue you for libel and we will go after your homes and assets. My lawyers live to investigate and sue people like you. This will be your only warning."
Did The Book Put The Posting Correctly In Context?
No. The posting was sent as a general warning to members of Seidel's organisation against their hassling members of Handley's organisation anonymously. It was not a direct response to Seidel's "chelation" exchange with Handley, and the book clearly puts it as being such.
What Was The Result?
Handley sued for "False Light Invasion Of Privacy".
The initial demand was as follows:
PRAYER FOR RELIEFWHEREFORE, Plaintiff requests judgment as follows:
1. Requiring Columbia University Press to print a retraction of the fictionalized exchange to be included in already-published copies of AUTISM'S FALSE PROPHETS;
2. Enjoining Columbia University Press from including the fictionalized exchange in future publications of AUTISM'S FALSE PROPHETS;
3. Compensatory damages in an amount to be determined, but in any event, no less than $65,000;
4. Pre-judgment and post-judgment interest on all damages recovered; and
5. All other relief this Court may deem just and appropriate. DATED this ___ day of February, 2009
Dr. Offit and his lawyers made an initial response contesting Handley.
However they later decided to settle rather than fight, with the settlement being an apology, an agreement to correct the passage in dispute, and a $5,000 donation to one of Jenny McCarthy’s favored autism charities.
The apology reads as follows:
“On page 145 of my book, Autism’s False Prophets: Bad Science, Risky Medicine, and The Search for a Cure, I may have conveyed the impression that J.B. Handley directed an internet posting, which was addressed to “Neurodiverse folks” on a public message board, as a response to Kathleen Seidel, and as a continuation of a prior exchange of posts between Mr. Handley and Ms. Seidel. After publication, Mr. Handley brought additional information to my attention confirming that, in fact, the post quoted in the book related to a different topic, and was intended to address individuals he believed may have been harassing members of Generation Rescue. I have agreed to make revisions to the text of the book in subsequent printings to address this issue. I regret any mistaken impression the original language may have created."
Offit's Explanation For The Mistake
From a letter by Offit's lawyers to Handley's lawyers:
“Moreover, Dr. Offit has informed the Press [Columbia University Press] that the book had been sent for review to a long list of individuals, including Kathleen Seidel. Further, the Press had a high degree of confidence in Dr. Offit, a confidence enhanced by the initial review of Dr. Offit’s manuscript by an eminent scientist and former dean, and a review of his manuscript by Fred R. Volkmar, M.D., a leading autism expert at Yale University School of Medicine, Marie McCormick, Professor of Maternal and Child Health at Harvard School of Public Health, and Anne Gershon, MD, director of the division of Pediatric Disease at Columbia Presbyterian…
"Dr. Offit interviewed Ms. Seidel at some length. While Dr. Offit was writing the book, somebody sent him a copy of the Oct. 10, 2005 post from Handley directed ‘To the Nuero-Diverse Crowd Reading the List’ as a stand-alone document. At the time, he put it in his JB Handley file. When he went to write his book, he assumed that, given its salutation ‘To the Nuero-Diverse Crowd,’ the post was directed principally at Kathleen Seidel in response to her writings on Handley, Generation Rescue, and the Rescue Angels. Seidel created the neurodiversity website and she is strongly associated with that term. To Paul’s knowledge, no one else used that unusual term prior to Seidel…
"After Dr. Offit completed a draft of the manuscript, he sent it to Kathleen Seidel for her review. Although she made several other suggested changes regarding other portions of the manuscript she did not indicate that there were any errors regarding the language at issue or make any suggested changes to correct the language.”
Handley's Take On The Settlement
From Handley:
"Our case wasn’t a slam-dunk. We’d proven Offit had lied, that was easy. The higher hurdle was to prove Offit’s passage actually damaged me in any material way – that’s what you need to prove to win a false light claim. Was I worse off for it? Could I show that he had damaged my ability to hold down a job or anything else? My lawyers gave me 51/49 odds of winning in court. There was damage, but the other side would spend all their time challenging that position So, because I’d rather spend my time with my kids, I decided to settle, which Offit’s side (including Columbia University Press) was very eager to do."
Summary
Offit is unquestionably in the wrong in this matter. "Autism's False Prophets" quoted Handley's "We will sue you for libel and we will go after your homes and assets" posting as personally directed to Kathleen Seidel, and as being a direct response to the her earlier email exchange with Handley around chelation. The book was wrong on both counts. Offit himself has admitted this in a settlement that includes an apology, an agreement to correct the passage in dispute, and a $5,000 donation to one of Jenny McCarthy’s favored autism charities. The error has been corrected in later editions of "Autism's False Prophets".
It is no excuse for Offit's supporters to say that such misleading rhetoric is the stock in trade of his opponents - in fact such a tack dangerously plays into the hands of Offit's opponents themselves. It is a crucial plank of Offit's camp that they rely on science and logical argument, eg that they possess an evidence-based view of the world has been arrived at via scientifically valid means. Any slips of this kind of nature are far more damaging to Offit's camp than they are to his opponents.
Offit and Handley are as far apart on autism and vaccines as it is possible for any two people to be, and there is no love lost between Handley and his opponents more generally. This leads to a lot of robust language being used both by Handley and about him, and is presumably why Offit felt the linkage of posting and exchange he asserted in the book was a credible one that didn't need explicit checking on his part other than running the final text of the section by Seidel. But this ultimately is no excuse for placing postings in the wrong context; the final text is ultimately Offit's responsibility, and he got it wrong.
As to the wider implications, the interpretation (as with so many Offit-related topics) depends on preconceptions of Offit's character.
Someone with a broadly positive view of Offit would view this as an isolated mistake that will hopefully not ever be repeated - if it was part of a pattern of wider behaviour then this would ultimately fatally undermine any claims of Offit to be someone putting an evidence and logic based view of the issues. At best it would relegate him from the role of medical authority to one of a mere polemicist, a far less significant role - arguably a role that is actively damaging to a cause that supposedly relies on objective evidence.
Someone with a negative view of Offit will find ample confirmation of that view in this incident, interpreting it as a deliberate smear - and one of many such, part a consistent pattern of dishonest argument.
Offit writes copiously to oppose the views of anti-vaccination activists on a number of fronts. As part of this ideological clash, he has been sued a number of other times. To my knowledge this is the only suit that Offit has admitted fault and settled on - more usually the suits are dismissed as without merit. Bearing in mind the number of people who are prepared to take Offit to court if at all possible, this indicates that overall the arguments in Offit's books and other writings do not fail this kind of legal criterion. But this is unquestionably not a positive incident for Offit, and is potentially very damaging if it could be established as part of a wider pattern of behaviour.