Eve Switzer settles her libel suit against Oklahoma anti-vaccine activists

This article about Dr. Eve Switzer’s libel suit against some anti-vaccine activists 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.

In early June 2020, Dr. Eve Switzer apparently settled a libel suit that she had filed against an anti-vaccine organization – Oklahoman for Health and Parental Rights – and an anti-vaccine physician, Dr. Jim Meehan from Oklahoma. Both Meehan and the organization both wrote a statement admitting, in essence, that information they posted about Dr. Eve Switzer from Oklahoma was untrue.

While these statements may not seem resounding, they are, in fact, a substantial concession and admission, and part of a settlement of a defamation suit Dr. Switzer brought against these actors that have been settled in her favor. <

Generally, I do not recommend that people turn to defamation suits against anti-vaccine activists. That is because these suits are hard to win under our law (even if there is ground to see the statements as untrue and offensive), any win would take a long time and likely be costly, and the publicity would likely benefit the science denier more than the plaintiff.

Dr. Eve Switzer’s example suggests a different approach can, in some cases, lead to legal success. I still, however, hold to my view that suing is probably not a desirable choice for many of you – this suit was lengthy, not easy, and led to some publicity that I suspect hurt Dr. Switzer.

That said, I am glad that Dr. Switzer’s efforts ended with a settlement that would make it very hard for her attackers to repeat the offensive misrepresentations that led to this suit, and compensated her for her expenses.

Dr. Eve Switzer’s libel lawsuit

The complaint from Dr. Eve Switzer was filed on December 22, 2016, in Oklahoma.  She sued Dr. Meehan and Oklahoma for Vaccine Choice, as the organization was then called, for misrepresenting her comments in a newsletter she wrote as the President of the Oklahoma American Academy of Pediatrics chapter in 2015. <

As she explained in the complaint, the newsletter addressed her choice to move away from treating influenza vaccines different than other vaccines, and instead, treating them like every other vaccine. While the newsletter did not spell out how she treated other vaccines, Dr. Switzer gave no reason to think she deviated from informed consent rules or did not provide, for example, the federally required Vaccine Information Statement.

The newsletter also mentioned a family upset over not realizing that their infant was receiving the influenza vaccines. Anti-vaccine activists interpreted this as meaning the family was not given information about the vaccine.

That might have been an understandable misinterpretation at first, but very early Dr. Switzer said to these very people, expressly, online that the family was given the list of the vaccines to be given and information about them – it’s just that the influenza vaccine was not singled out separately.

As the complaint explains, anti-vaccine activists represented the newsletter as an admission that Dr. Switzer did not tell parents which vaccines their children were getting, and accused her of depriving parents of informed consent. And continued repeating the claim even after Dr. Switzer repeatedly told them it was not true.

Shortly after the lawsuit was filed Tulsa World wrote about it, interviewing both Dr. Eve Switzer and Dr. Meehan. Other local coverage, in February, also interviewed both and presented Dr. Meehan’s views as equivalent in accuracy to Dr. Switzer’s.

The trial was lengthy. A major win for Dr. Switzer was the court’s rejection of the defendant’s motion to dismiss. The standard for motions to dismiss is low – because dismissal deprives people of the day in court, it is supposed to be reserved for cases where there is no valid legal claim and assume that the facts are as the party against which the dismissal is requested claimed them.

But for defamation cases, the legal bar is high – because Dr. Switzer’s comments were in her capacity as President of Oklahoma AAP, and on a matter of public concern (vaccines and informed consent), she would have to show that defendant knew that their comments were untrue or had real doubt about the statements but went ahead and said them anyway – that they acted with legal malice.

Resolution

On June 6, 2020, Oklahomans for Health and Parental Rights – the new name of Oklahoman group (Since Facebook has been making it hard to find anti-vaccine pages, anti-vaccine have changed their names to game the algorithm) – posted the following:


Here is the statement:

Plaintiff, Dr. Eve Switzer, and Defendants Dr. Jim Meehan, the Oklahomans for Vaccine and Health Choice-PAC (now known as Oklahomans for Health and Parental Rights – PAC), Candace Chamberlain, and Linda Cronkhite, were involved in litigation in Tulsa County, Oklahoma, related to statements made about Dr. Switzer’s vaccine informed consent practices with her patients. The parties differ as to their beliefs on the requirements under Oklahoma law for vaccine informed consent. Public statements were made, which do not accurately reflect Dr. Switzer’s vaccine beliefs. Dr. Switzer has denied the allegation that she has admitted to not practicing vaccine informed consent and has affirmed that she believes in practicing informed consent with her patients and the safety of her patients. The parties are pleased to announce that the litigation has been resolved.

In addition, the parties settled for an undisclosed amount.

Yes, the statement is as weak as the defendant could make it. But this is still a substantial win for Dr. Switzer. First, libel law is stacked against public figure plaintiffs in the United States. Getting the defendants to a point where they had to settle is unusual, and a win for Dr. Switzer.

Second, in this statement, the defendants are openly acknowledging that the statements misrepresent (“do not accurately reflect”) Dr. Switzer’s views. If they repeat the statements, their own statement can be used to show malice – to show that they know they’re making false statements – making future repetitions very vulnerable to successful defamation claims. That’s a powerful barrier against further statements. <

So was it worth it? That’s a question for Dr. Switzer. I want to reiterate that this kind of successful resolution of a defamation claim is difficult. The law is intentionally designed to make suing for defamation over statements in discussions of public topics hard – and not without reasons, since science deniers, to name one group, can use defamation suits to silence critics.

So there’s a chance that even if someone did, in fact, make false, offensive claims against you you would lose. At best, it will be lengthy – multi-years, and costly, and may lead to press articles that highlight the attacks against you and may give your attackers an opportunity to attack you again, in public.

On the other hand, can that reluctance let those that make false claims attacking people get away with defamation and attacks? Dr. Switzer felt strongly that she should call her attackers to account – so she stuck, and she won.

Similar claims were made in support of Michael Mann’s suit against climate deniers attacking him. That suit is still in the process – in 2019 the Supreme Court declined to take up an appeal against a decision not to dismiss the case, so it is ongoing. Note, as these sources point out, that this, too, is controversial.

What else can you do? Well, one thing Dr. Switzer did before and during her conflict with the anti-vaccine activists that was, I think, effective on several levels, was to donate vaccines to UNICEF in their names. This has several advantages.

First, it is doing something in response to harassment.

Second, it is not only doing something, but it is doing something positive, something that has a good effect on the world, by saving lives. You can have a similar good effect by donating to your favorite pro-vaccine non-profit – for example, I donated to Voices for Vaccines in response to some instances of harassment.

Third, if that’s your focus, it bothers the anti-vaccine actor – in the negotiations for settlement, Dr. Eve Switzer told me, her attackers asked for a commitment that she will no longer donate vaccines in their name. They did not get that; such a commitment was never part of the settlement. They threatened her with legal action if she did donate in their name, but it’s not clear what the basis for that is. Donating vaccines is not harassment. Nor can I think of any other law it violates.

I understand the reaction to aggressive attacks. I would still not likely recommend a defamation suit as a response, for the reasons explained above – though I think a public response to claims is very justified.

But others clearly disagree, and there is a plausible argument for calling the attacker to account. For that reason, I would support those who do go forward, and I am glad for Dr. Switzer that her lawsuit against her attackers – attackers who made untrue claims against her – ended in a settlement in her favor. But I would still recommend donating vaccines in their name as the better option, for the person attacked and because it turns a bad turn to a good turn.

 



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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.