This article, part 2 of the Catie Clobes v NBC anti-vaccine lawsuit, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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 a 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. She is also a member of the Vaccines Working Group on Ethics and Policy.
In part 1, I explained the elements of defamation and why Ms. Clobes will likely be a limited-purpose public figure for her lawsuit against NBC. This lawsuit would require her to prove actual malice, which she has neither alleged nor is likely to be able to show.
In this post, I will explain why Ms. Clobes is also unlikely to be able to prove the claims against NBC in the article are false. As a reminder, “Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can’t be unless they are premised on explicit or implied false statements of fact.” The claims that large parts of the article being opinion and not fact is essentially negating their case. Any parts of the article that are opinions are not defamation.
In addition to the problem of proving malice, the complaint against NBC has trouble showing false statements that harm Ms. Clobes reputation. Here is the heart of an actual defamation complaint, and not meeting this bar is likely fatal to it. Falsity is only likely to be litigated if the complaint gets to later stages in the legal process. For completion, I’m addressing it here.
Note that statements that are true, as said in the first post, are not defamatory. And the statements only have to be “substantially true – if the ‘gist’ or ‘sting”’ of it is true, and any inaccuracies do not materially alter the impact of the statement — it’s not defamatory even if some details are inaccurate.” So small errors – like the number of arms vaccinated – would not undermine a case.
The complaint provides two sets of things it alleges were untrue, most of them problematic.
Alleged errors of fact
In paragraph 7 in the Clobes v NBC complaint, it sets out alleged errors of facts. I read this as an attempt to set out negligence in writing the article, though the complaint does not allege these statements are defamatory themselves, and never alleges negligence for the statements it appears to allege are defamatory.
The complaint lists the following alleged errors. Each alleged error opens by what is allegedly wrong with correction in parentheses – and I added my comments after. Note that these are not quotes, and are often not quite what the article says – and that these would not be legally relevant anyway, since they are not linked to claims of defamation:
“Stated that the baby received several vaccinations. (The baby had six vaccinations).”
It’s unclear what the error is. “Six” would fall under “several”.
“Stated that the detective examined the baby at her home. (It was at the hospital.)”
This probably refers to this sentence in the article: “According to reports by a detective who examined Evee at the scene and the medical examiner who performed Evee’s autopsy, the skin on Evee’s face had creases that looked like they could have come from a blanket.” It’s not clear here what the “scene” was. But the police report referred to the hospital as “the scene.” Not clear it’s an error.
“Stated that tissue samples were retained by Wright County. (It was Anoka County.)”
“Stated that within hours after posting her feelings on Facebook (early March), she received answers. (She didn’t get conclusive medical answers until August of 2020.)”
Here is the text in the article. ‘Within hours of her post, some had answers. “Vaccine injury is real and a movement is spreading across the nation,” one woman wrote. “Organizations are filled with people and parents who understand what you are going through and can help offer guidance and support to you.” Some posters added links to Stop Mandatory Vaccination, a website founded by Larry Cook, a man without medical training who has made a name as a leader of the online anti-vaccination movement.’
It’s clear the text in the article refers to answers on the post, and there does not seem to be an error there.
[skipping some for brevity]
Stated “Areas of the nose, chest, arms and legs were discolored and pooled with blood, indicating Evee had been face-down for some time.” Errors in that sentence, include:
• There was no reference to legs in the investigative report.
• Both arms did not have pooling of blood, only the right arm.
• While the chest did have pooling of blood, the cause was lividity, not being face-down.
• The area of the nose had white pressure markings not pooling of blood. (Clobes contends that the reporters took this information from the “falsified” letter written to her by medical examiner for which she is now under investigation by the medical board.)
The police report said Evee “was showing pooling of the blood on the right arm and chest area. … White pressure areas on the face of Evee were consistent with a child that would have been on her face, showing in the chin, upper lip, and nose nose [sic]/bridge area. Redding of the check [sic] also indicate that the face was downward.” (p. 3 of 6) “findings at the autopsy showed anterior livor of the chest and legs which are concerning for an unsafe sleep environment”. (P. 5 of 6) This report fits the sentence in the article, which combined pooling and discoloring. As a reminder, lividity means discoloration after death that results from “pooling of blood at the lowest point in the body” – the area of lividity in the area that was down.
Further, the letter from the medical examiner was not falsified; it was written by the examiner. And there is no discipline against the medical examiner, and to my knowledge, no currently open investigation related to Ms. Clobes’ case.
“Stated there was a “separate Evee-branded campaign.” (There was no campaign before article.)”
In April 2019, Ms. Clobes was selling shirts branded with her daughter’s name. In May 2019, Ms. Clobes was selling #JusticeforEvee T-shirts – shirts branded with her daughter’s name. In August 2019, Ms. Clobes was selling sleeper pins in the name of her daughter. On September 23, 2019, the day before the article, Ms. Clobes was selling bumper stickers and window clings and other products with her daughter’s face and story.
I think it’s fair to say there was a campaign branded with Evee’s face, name, and story before the article.
Alleged claims of defamation in Clobes v NBC
The second set of claims against NBC from Clobes is mentioned in paragraph 8, and should be the meat of the complaint, but is not fully set out. Paragraph 8 says: “Clobes identified at least 15 false statements contained in the article. Many of these fueled the vitriolic negative communications directed at her and resulted in the reputation harm and damage she has experienced. Following is a representative list including nine of them..”
Since the allegedly false claims are the heart of the defamation claim, they should be spelled out, not just given as a representative list, but that’s not the only issue there. The claims themselves are problematic. Let’s look at the representative claims.
- “Clobes ….now say that vaccines caused Evee’s death.” (She never made that assertion at the time the article was published because she hadn’t yet received test results from the medical professionals.)”
On July 21, 2019 Ms. Clobes said on Facebook “I am just a grieving mother from Minnesota who didn’t know any better and got her daughter vaccinated, and a day and a half later she died. No, this is not just a coincidence.” This is a statement that vaccines caused Evee’s death.
On August 23, 2019 Ms. Clobes wrote on Facebook: “She hired a well-respected neuropathologist who found a bad cellular infiltration, triggered by an immune response, triggered by the diseases in those 2 pokes, in a part of my brain. My mommy now knows the truth and is fighting for more than that.”
Ms. Clobes is clearly saying that it was the vaccines that killed her child.
- “Evee had been face down for some time.” (There was no medical or investigative report that made that conclusion and Clobes reports she had expert reports stating the exact opposite.)”
The police report stated: “White pressures areas on the face of Evee were consistent with a child that would have been on her face .. Redding of the check [sic] also indicate that the face was downward.” The medical examiner letter to Ms. Clobes mentions that Evee “was face-down in the bed when she died and for some time afterward; this is supported by the presence of purge fluid on the sheet in the area where Evee was sleeping.”
While police reports and Medical Examiners can be wrong, the reporter was on solid ground saying this, given these sources.
- “Three months later, at Clobes’ request, the same examiner reviewed the case and amended the cause of death to positional asphyxia or suffocation.” (She never asked the examiner to review the case because she disputed her original findings and was seeking an independent test/study. Also, in no official report of any kind has the word “suffocation” ever been used.)”
Ms. Clobes may not have requested to review the case, but she was certainly making requests, including for testing, that led to the review. Asphyxia means suffocation.
- Clobes hinted she might sue the Wright County Medical Examiner over a “cover up.” (She never planned to do so or ever expressed that she was considering it. Also the medical examiner was with the Midwest Medical Examiner’s Office in Anoka County, not Wright.)”
In this public blog post, dated March 22, 2019, Ms. Clobes is clearly accusing the medical examiner, in essence, of not looking for vaccines and of corruption.
And after the article, Ms. Clobes was certainly suggesting she might sue the medical examiner in the past. In her fundraiser to support her lawsuit against NBC, Ms. Clobes also states she is acting against the medical examiner.
Finally, while not important to assess defamation, the Medical Examiner letter linked to from the NBC article identifies the medical examiner as the “Wright County Medical Examiner.”
- “Clobes has received more than $22,000 and has raised to goal to $40,000.” (She never had a “goal” of any kind and had never expressed having one. She also didn’t even start or run the fundraiser mentioned in the article or “raise the amount”.)
GoFundMe fundraisers have a goal. The article did not say she stated it. But the fundraiser was for her. On March 20, 2019, Ms. Clobes said they had to raise the goal.
- “Her face and chunky legs – adorned with Band-Aids from her shots – are featured on anti- vaccination ….billboards.” (There was only one billboard – not multiple – at the time the article was published and there was no mention of “vaccinations” anywhere on the billboard.)”
The article has pictures of two billboards that were up at the time. The article did not say vaccines were mentioned. One of the billboards shows a baby’s – presumably Evee’s – thighs with Band-Aids.
- “In August, she registered the Justice for Evee Organization as a nonprofit in Minnesota and began soliciting donations.“ There are three false statements in this one sentence:
– She has never registered an organization of any kind.
– The organization is not a nonprofit organization (or business) in Minnesota or anywhere.
– She didn’t personally solicit donations, others did.
On August 27, 2019 the Justice for Evee organization applied to be registered as a non-profit. Ms. Clobes is one of the “registered agents.” Maybe the registration was not completed, but it was filed.
On August 12, 2019, in the comments here, Ms. Clobes asked for funds and gave links to her GoFundMe. Here she is addressing the fundraiser again, showing her involvement.
- “(donations)…with proceeds slated to go to anti-vaccine advocacy in Minnesota and beyond.” (She did not even begin to receive donations through the website until the year after the article was published, 2020, and those donations were never for “Minnesota and beyond.” All money received from donations prior to the article being published was for pathology and legal fees related to determining the cause of the baby’s death.)”
Ms. Clobes also solicited donations to put billboards up in California – part of anti-vaccine advocacy.
And to help other parents in other states who blamed their children’s deaths on vaccines, as in Kentucky, Colorado, and Oklahoma (GoFundMe).
- “Clobes rejected these findings in an interview with NBC News.” (She never “rejected the findings” because the pathology study was still in progress at the time and no conclusions had been reached at that time. And Clobes never did an “interview” with NBC News.””
Ms. Clobes communicated with Brandy Zadrozny via PM. As shown above, she decided to blame vaccines early on.
These claims are highly problematic. Later in the complaint, Ms. Clobes’ expert claims that including “unnecessary” information was damaging to her – but that is not the test. The question is whether the information is true, and Ms. Clobes did not deny that the two facts described in the complaint were true: that Ms. Clobes had a whiskey cocktail and said, in the 911 call, that her daughter died from co-sleeping. I would add that the basis of the co-sleeping points in the article was not Ms. Clobes’ comments (which I agree, should be given limited weight, given her shock), but the Medical Examiner’s letter.
In short, the complaint makes a poor case that the claims it highlights are untrue.
To show defamation, Ms. Clobes will need to prove the NBC article said untrue things that damaged her reputation, and show that they were said with the necessary mental state – likely actual malice. On this complaint, she is unlikely to be able to do that.
The last part of the complaint attempts to add two causes of action but falls short once again.
P. 22 says “Count 1- Emotional Distress.” From the following sections, it’s clear the complaint is trying to plead intentional infliction of emotional distress, but it just doesn’t. It does not provide any facts that would support the elements, and just listing the elements does not cut it: a court will look for any indication that the elements apply to this case.
P. 23 says “Count 2- Reasonable Care.” From the next section it appears the plaintiff is trying to make a negligence case, but again, it’s not really made in any way. So these two claims are not really well-pled, and the defamation claim, as explained, is highly problematic.
Maybe this lawsuit from Catie Clobes will go somewhere, but I doubt NBC is particularly worried about it, at this point.
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