Andrew Wakefield keeps trying–another appeal

On September 19, 2014 the Third Court of Appeals of Texas rejected Andrew Wakefield’s appeal against the decision of a Texas trial court that it had no jurisdiction to hear his libel suit against The British Medical Journal (the original article), Brian Deer, and Fiona Godlee. The details of that case and the suggestion that Andrew Wakefield was strategically using litigation to both rally supporters and deter critics have been previously addressed.

Andrew Wakefield had 45 days to appeal the decision to the Texas Supreme Court (Tex. R. App. P. 53.7). That time ended on November 3–an appeal was not filed by Mr. Wakefield within that time.

On November 17, 2014 Andrew Wakefield filed a motion requesting that the time for review be extended for thirty days, until December 3. Rule 57.3 (f) of the court allows a request for such extension (Tex. R. App. P. 53.7(f)).  The rule says:

[infobox icon=”quote-left”](f) Extension of Time.  The Supreme Court may extend the time to file a petition for review if a party files a motion complying with Rule 10.5(b) no later than 15 days after the last day for filing the petition. The Supreme Court may extend the time to file a response or reply if a party files a motion complying with Rule 10.5(b) either before or after the response or reply is due.[/infobox]

The reason Andrew Wakefield gave for the request was:

[infobox icon=”quote-left”]Wakefield is currently in the process of securing additional appellate counsel and as a result requests an extension of time to retain such counsel.[/infobox]

The lawyer representing the respondents, Marc Fuller, opposed the request. Such requests are now decided by the clerk’s office (pdf), and “Generally, for good cause, the Clerk’s office will routinely grant a motion for extension of time to file a petition for review.” The current clerk’s document about the Internal Rules and Procedures explained that unopposed  motions are usually granted, if it’s a first extension (pdf) but is silent about opposed motions to extend such as this one, except perhaps this sentence: “Finally, no MET to file a petition for review is ever denied without the Court’s approval”.

The question will probably depend on whether Wakefield’s claim of securing additional counsel will be considered good cause and on the arguments the respondent makes.  Wakefield’s extension request has a decent chance, it appears. If granted, it will allow him to drag further litigation that, even if it is heard by the Supreme Court, and even if it succeeds on the jurisdiction issue, has very, very little chance of succeeding on the merits – since Wakefield’s chances of showing malice, required under American law, are very low. Wakefield withdrew a previous claim in the U.K., where libel laws are – even now, after the Defamation Act 2013–much more plaintiff-friendly, especially for public figures like Wakefield. This suggests his case is very, very weak, even without Texas’ Anti-SLAPP law.

At any rate, his chances of getting his case taken by the Texas Supreme Court at all are also very low. As explained (pdf), “Based on statistics from the last few years, a petition generally stands a 10% to 12% chance of being granted.”

The factors the Texas Supreme Court considers in deciding whether to accept a petition are:

  1. whether the justices of the court of appeals disagree on an important point of law;
  2. whether there is a conflict between the courts of appeals on an important point of law;
  3. whether a case involves the construction or validity of a statute;
  4. whether a case involves constitutional issues;
  5. whether the court of appeals appears to have committed an error of law of such importance to the state’ s jurisprudence that it should be corrected; and
  6. whether the court of appeals has decided an important question of state law that should be, but has not been, resolved by the Supreme Court.” TEX. R. APP. P. 56.1(a).

The court has extensive discretion in deciding what to take – and Wakefield’s case does not seem to fit any of those:

  • The court of appeals’ decision was unanimous,
  • the question of whether to allow a British citizen to sue other British citizens in Texas for events that happened in Britain is, as the Court of Appeals’ decision explained, something that previous caselaw has addressed, the issue is not constitutional or terribly novel.

This reads as an attempt by Andrew Wakefield to continue to drag the litigation on, with the benefits of continuing to be able to claim to his supporters that the articles Brian Deer published in the BMJ were untrue, see, he is suing for libel, and to continue to harass his opponent with this litigation, built on a very weak legal basis. Ideally, the clerk’s office will not allow him to continue to take advantage of the system for those goals – he was represented in the lower courts, and had 45 days – until November 3 – to file an appeal, or to secure additional counsel, if he thought he needed that. If the clerk’s office allows the extension, hopefully the Texas Supreme Court, using its usual criteria, will rapidly dismiss this petition and put end to Wakefield’s misuse of the process.

Update 1

In their response (pdf), respondents, the British Medical Journal, Mr. Deer and Dr. Godlee, opposed the motion, explaining that it is the latest in a series of cynical, abusive litigation tactics Andrew Wakefield used to fight critics. They document at some length Andrew Wakefield’s past behavior, and call on the court not to cooperate with this attempt to prolong the proceedings.

Update 2

The Texas Supreme Court’s clerk granted Wakefield’s extension request. His appeal is now due on December 3rd.

I am grateful to Narad Trabant for his invaluable help in researching this issue.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.