Aug 18

H/t reader S.M.:

“The second link shows the investigation into who the hell the man who trashed Wakefield is.

It makes worrying reading.

Related info:

Who in the Hell is Brian Deer?… (Bolen Report):

Opinion by Consumer Advocate Tim Bolen

Friday, March 16th, 2012

To a lot of us in the North American Health Freedom Movement, meeting with the Autism Parents opened up a whole new world of intrigue and manipulation focused at the victims of Autism Spectrum Disorder.  That intrigue and manipulation itself is familiar to us in the Movement, for, as we found out quickly after meeting the Autism Parents, the same predators, operating in the same way, used the same techniques – but this time, simply trying to cover up the fact that Vaccines are causing major worldwide health problems, and not “saving humanity” as the Vaccine Construction” claims.

Of course vaccines cause Autism, and inflict one in six children with neurological disorders.  Yes, Big Pharma lies about that, and yes, of course, the government agencies that “we the people” put in place to stop this sort of thing from happening have been co-opted by the very industry that they are supposed to regulate.  So, what’s new about that?  It is a fact of life here in the United States.  Move on.  Deal with it.

But, for us in the Movement, there is a learning curve.  We needed to get up to speed on the existing situations extant in the Autism issue.  And, as we soon found out, among other things, there is this big fight going on over a peer-reviewed paper written way-back-when, and published in a journal called Lancet in Great Britain.  That paper has had quite a bit of British media surrounding it, and, in short, caused significant controversy in Great Britain.  It’s in this venue that Brian Deer, from Britain, comes into play.

Now let’s put all this into perspective so we can look at this situation in the proper light…

Why is this situation important in the Autism community – and why the is this situation important to the Health Freedom Movement?

At first I was a bit baffled that anything occurring in Britain would be of any interest to us here in the US, so I took a “so what?” approach.  After all “we the people” kind of told Britain way back in 1776, that we don’t really give a big rat’s ass about much of anything that Britain thought or wanted, and nicely, at gunpoint, told them to stay the hell out of our affairs.  And, when they came back in 1812 all huffy about being rebuffed, in their Red Coats, we shot them when and where we found them, buried them shallow, and planted corn.

Consider, of course, that Britain, for all its claimed majesty, is geographically smaller than most counties in California.  And, since the weather there is abysmal, most people there hibernate – contrast that, of course, to California where we are one-with-the-sun.  When the Brits do come out to find a fish-and-chips place they are each photographed, by the security cameras surrounding them, more times than Lindsey Lohan coming out of rehab.  The British government is the epitome of paranoia.  They trust their citizenry, obviously, not-all-all.

I thought, when I first read about all those security cameras, that all that photo security was a bit overdone, and of course, it is.  But then I started taking a look at this Brian Deer character, and it began to dawn on me that there just might be some justification for keeping photographic track of certain kinds of people.

Keep in mind that I have been investigating, very carefully, the group that calls itself “the skeptics.”  There was a time, early in my investigation, when I considered attending, quietly, a local skeptic meeting.  But, I thought about what I was uncovering about them, and decided that there was a good chance, even here in the US, that local law enforcement might be photographing everyone that goes in and out of one of their meetings.

Why would I be concerned about a local skeptic meeting might be photographed by the police?  I’ll give you a three part sample overview:

(1)   The acknowledged skeptic leader is James Randi – the guy who calls himself “The Amazing Randi.”  He, among other things, heads the James Randi Educational Foundation.  And, just so we are on the same page here about Randi, take the time to listen, perhaps once again, to the audio tape of James Randi soliciting sex from a teenage boy.  The boy had gotten Randi’s phone number on the wall of a video game arcade.  Click here.

James Randi is the skeptics’ moral touchstone.

(2)  Take a look at a website, here, of the person who hosts a significant portion of the skeptics’ web offering.  The website owner “Steve Rider” says:

“Homosexual Agenda

As a known homosexual we seek to promote the Homosexual Agenda whenever possible. We do this by creating websites that ridicule Jeebus-based anti-gay propaganda, offering merchandise for sale that is of interest to homos, as well as filtering YouTube videos to offer innocent young children the ability to easily find queer videos.”

Listen to “Steve Rider,” pictured at the right with James Randi, in his video, tell you about his position.  Take what he says literally.  Want this guy as your next-door-neighbor?  The head of your local Boy Scout Troop?  Working for the local Child Protective Services?  Park Patrol?  Click here to see the video and website.  I have reason to believe that “Steve” is your typical, everyday, “skeptic” – just the type of guy you’ll find attending “Skeptics in the Pub” meetings throughout their network.

Remember when you consider the “Steve Rider” situation that the so-called skeptics want to tell parents of Autistic children what to do with those children.  They also conspire to control health care information on the internet.

(3)  To understand the core of the “skeptics” you have to understand the role of Loren Pankratz PhD in the “skeptic” scheme of things.  Pankratz describes himself as a forensic psychologist from Oregon Health Sciences University.  He is a fellow of the Committee for Skeptical Inquiry (CSI) division of the Center For Inquiry (CFI), a board member of the National Council Against Health Fraud (NCAHF), and a board member of the False Memory Syndrome Foundation (FMSF).  It’s that last group that makes him really interesting.

Pankratz is joined on the FMSF board by James Randi and a man named Ralph Underwager (you’ll see more about Underwager just below).

Pankratz has made a career out of testifying on behalf of accused child molesters, claiming that he, as an expert psychologist, knows that the children are lying, or that they have “False Memory Syndrome,” whatever that is.  In a famous federal criminal court case in South Dakota, Pankratz, along with another FMSF goofball Ralph Underwager, teamed up to try to get a new trial for four extended family tribal males who had been convicted of the sexual abuse of five adopted female children, ages 20 months to seven years old.  Underwager, according to the court documents, had “interviewed” the children, by himself, getting them to recant their testimony so as to get a new trial.  Pankratz had given the small children a lie detector test, which, supposedly showed that they had lied in court the first time.  But the Federal Appeals Court didn’t buy it and disqualified both Underwager and Pankratz as expert witnesses.

The Appeal Decision is sickening reading.  It shows a depth of depravity most people don’t even want to think could happen to children.  You can read the whole document by clicking on the blue highlighted text just above.  But, if you are short of time, just below, is ONE of the examining MD’s reports on the children.  I give you this so there is NO MISTAKE here about what we are talking about:

“The trial testimony of Dr. Kaplan and Dr. Farrell established that the children had been sexually abused. The children described the abuse to Dr. Kaplan shortly after they were removed from their home. The government concisely summarized some of the pertinent medical testimony in its Post-Hearing Brief:

    Dr. Kaplan testified that on January 15, 1994, he examined [J. R.], who was four-and-a-half years old at the time. Trial Transcript (hereinafter referred to as TT) 202. [J.R.] told Dr. Kaplan that Uncle Jess hurt her “privates.” TT 203. While Dr. Kaplan was completing the genital examination of [J.R.]., she told him “Uncle Jess hurt me” and when asked where, [J.R.] pointed to her left labia. TT 205. Dr. Kaplan found redness and signs of recent trauma, including a bruise or contusion. TT 205. As Dr. Kaplan examined [J.R.’s] anal opening, [J.R.] said that Uncle Jess has used his hand in her butt. TT 206. Dr. Kaplan found that his physical findings were consistent with sexual abuse. TT 208.

    Dr. Kaplan also examined [L.R.], who was six years old at the time. [L.R.] told Dr. Kaplan to “check my peach” because it hurt. TT 213. [L.R.] told Dr. Kaplan that her uncles hurt her. TT 213. Dr. Kaplan found a large bruise and redness on [L.R’s] labia majora on the right side and found that [L.R’s] hymen was somewhat disrupted. TT 213. He determined that the injury was fairly acute and had occurred within the last few weeks. TT 214. He testified that his findings were consistent with child sexual abuse. TT 214.

    Dr. Kaplan also examined [R.R.], who was five years old at the time. While examining [R.R’s] genitalia, she volunteered spontaneously, “ I have a bruise where my uncle put his private spot. TT 219. [R.R.] volunteered that her uncle Garfield did this at her Grandma’s house. TT 219. [R.R.] also stated that her uncle put his private “in my butt.” TT 220. Dr. Kaplan found a readily open hymen and a midline scar on the anus at six o’clock. TT 221.

Dr. Kaplan also examined [T.R.], who was seven years old at the time. He found obvious trauma and contusion on her inner labia majora. [T.R.] told Dr. Kaplan, “Uncle Jesse hurt me there.” TT 224. Dr. Kaplan found [T.R’s] hymen to be disrupted and determined that his findings were consistent with sexual abuse. TT 225.

    Dr. Farrell conducted further examinations of [R.R, T.R, F.R, L.R, and J.R.] in February of 1994. Dr. Farrell found evidence of tearing and scarring of the anal mucosa on [F.R.] TT 387. In examining [R.R.], Dr. Farrell found obvious damage to the hymenal ring and a scar at six o’clock. TT 390. [R.R.] also had a tearing at the seven o’clock position in the anal area. TT 389 [should be TT 393]. Dr. Farrell found a fusion at the six o’clock position on [L.R.] TT 396. He also found evidence of anal trauma at the twelve o’clock position on [L.R.] TT 398. Dr. Farrell further noted a tag or scar on the hymen at the six o’clock position when he examined [J.R.]. TT 399. Dr. Farrell also found that the anterior portion of he hymenal ring was essentially gone on seven-year-old [T.R.] TT 400.

    At trial, even the defendants’ medical expert, Dr. Fay, found that the injuries to [L.R., R.R., and J.R.] were very suspicious and may have been acquired through sexual trauma. TT 1023. Dr. Fay also found that the labial injuries to [T.R, L.R, and J.R.] were only seven to ten days old. TT 1016.

Pankratz, it was shown, had no idea how to conduct a polygraph examination.  Underwager, Pankratz and Randi’s FMSF buddy, went on to be disqualified in a stream of cases, shown here, throughout America.  At the time this happened these little girls were respectively, 20 months old, four-and-a-half, six, and seven years old.

I could go on almost endlessly with the connections between the so-called skeptics and inappropriate sexual behavior.  Leaf through my older articles and you’ll find a trail of uncomfortable information.  A good summary place is here.

So, where do the skeptics meet to plot their nefarious machinations?   Well, a few times a year they gather at various “skeptic meetings.”  But, for the most part, they meet in “Skeptics in the Pub.”

Brian Deer pub

So, now let’s introduce Brian Deer…

As you have probably figured out where this is heading… the photo at the right shows Brian Deer at the Westminster “Skeptics in the Pub” meeting in Liverpool.

Make the connection?  Good.  Let’s begin.

Brian Deer is the guy who wrote a series of articles in the London Times deriding Andrew Wakefield’s scientific work.  Then, last year he wrote for the British Medical Journal (BMJ), a similar crop of articles.

Andrew Wakefield is suing Brian Deer and the BMJ in Austin, Texas, his new home, after Deer put Wakefield’s life at risk in Britain.  The skeptics brag about what they did to Wakefield.  I wrote about that before.  You can find my comments here.

Deer claims to be an award winning Investigative Journalist, blah, blah, blah.  And the skeptics shriek that term everywhere.  But the truth is quite different.   Deer hasn’t actually been employed by a media outlet in over ten years.  He was NOT employed by the London Times when he wrote those articles.  He was a free lance journalist.  And, he wrote for the BMJ on contract.

“So,” we should ask, “who financed Brain Deer to write those London Times articles?”  He researched, he claims, for years, and he wrote articles about Wakefield from 2004 through 2009 in the Times.  Even if he was paid, handsomely, by the word, he couldn’t have even bought food, much less paid the rent, on what he made from the London Times.

There is this thing called “crowdsourcing.”  Below, so I don’t have to repeat myself, is what I wrote about it before in an article I called Trine “Two Shoes” Tsouderos – Barrett’s Tokyo Rose…

American newspapers are on their ass… as well they should be.

Trine “Two Shoes” Tsouderos is a writer for the failing, failing, failing, failing, failing, failing, failing, failing, failing Chicago Tribune.  These days she virulently attacks the Autism bio-medical treatments and parents.  Not long ago little Trine (with only one shoe) was writing suburban restaurant reviews. Then, I suspect, probably on the edge of being laid-off, she was recruited to become part of the new breed of so-called “Investigative Reporters,” the ones that get funded by outsiders for their work.

Yes, that’s what I said “funded by outsiders for their work.”

American newspapers are nearly dead – for they held on to old ideas about news distribution way too long.  Now they are playing catch-up – as fast as they can, and they are WAY behind the ball in this market.

Way behind the ball…

So what are the newspapers doing?  They are scrambling to find anything, virtually any kind of crappy tactic, to get readers – for it is numbers of readers that generate advertising dollars.  News vehicles that formerly relied on printed pages are suddenly thrust into the internet competition for readers.

One of the tactics beginning to be employed is a thing called “paid content,” and it is controversial.  It comes in two parts:  The first, where a reader pays to log on to a news source, and the second, something called “crowdsourcing”  where a so-called “Investigative Journalist” gets funded by someone.  See the quote from the Wikipedia article:

“The increased accessibility and interactivity of online journalism has also created new opportunity in the guise of crowdsourcing, enabling people to get investigative journalists working on stories that they themselves have suggested and funded.[8]

An article on “crowdsourcingdescribes the practice thus:

“Basically it works by members of the public providing suggestions and tips for stories. When a journalist accepts a suggestion, he creates a pitch, which is then funded by those who are interested, in a piecemeal fashion. Once written, the story is published or sold to a mainstream media outlet.”

In short, what I’m saying here is that it was simply not possible for Brian Deer to have been a neutral “Investigative Journalist” for a ten year period of unemployment.  He was then, and is now, a kept man.

So, let’s ask that question again:  “So,” we should ask, “who financed Brain Deer to write those London Times articles?”

Bringing it all up to date…

On March 9th, 2012 Brian Deer, etc. filed a Motion To Dismiss – Anti-SLAPP which was patently ludicrous.  It looked like it was written, by consensus, on a table at a “Skeptics in the Pub” meeting somewhere – Appletini and wine spritzer stains included.

The document was clearly not written in legal language whatsoever.  It was written for the Press.  But the beauty is that except for a small nothing article in the Austin, Texas American Statesman newspaper, Brian Deer and Fiona Godlee fumbled badly – The media didn’t cover their story.  The only people that covered the Deer response were the skeptics.

So, what’s THAT all about?  When Andy Wakefield filed suit against Deer, Godlee, and the BMJ, in Austin, Texas the worldwide media picked it up.

To Review…

You can read the whole original Texas filing by clicking here.  Before you do that let me give you a few highlights.  For a short read, click here to read the “Demand Letter” sent to the British Medical Journal, Brian Deer, and Fiona Godlee on November 10th, 2011.  The letter lays out the basis of the claim against the Defendants and demands retraction of the original articles and protection of the information relied on.  Of course, the Defendants failed to respond.  Hence the lawsuit.

“This defamation lawsuit arises, in part, out of the publication on or about January 5, 2011 and thereafter, in the British Medical Journal, of an article authored for the BMJ by Brian Deer, titled Secrets of the MMR Scare (Exhibit A) and accompanying editorials by the BMJ’s editor, Fiona Godlee (Exhibit B 1-2). Defendants’ article and editorials, distributed to subscribers in Texas and which form the basis of Plaintiff’s claims, contained unfair, incorrect, inaccurate and unjust criticisms of findings previously reported by Dr. Wakefield and 12 other co-authors. More significantly, Defendants accused Dr. Wakefield of fraud and of fraudulently and intentionally manipulating and falsifying data and diagnoses in connection with a clinical paper he co-authored called Ileal-lymphoid-nodular hyperplasia, non-specific colitis, and pervasive developmental disorder in children, originally published in the medical journal The Lancet in 1998 (the “Lancet Paper”). Defendants’ false and defamatory allegations have been widely disseminated by Defendants through the BMJ and other sources since their original publication.”

“This Court has personal jurisdiction over the Defendants pursuant to the Texas Long-Arm Statute and consistent with the requirements of Due Process because the Defendants purposefully availed themselves of the privileges, benefits, advantages, and profits of conducting their affairs in the State of Texas by directing a significant and regular flow of publications, including periodicals, journals, articles, subscriptions, and electronic media to institutional and
individual residents of this State. Defendants further committed a tort, which is the subject of this suit, in whole or in part, in this State, to wit, authoring, editing, and approving articles and making statements with knowledge or intent that said articles be published and statements be made and directed to residents of this State, including, but not limited to Plaintiff at his residence in Austin, Texas. Said articles, publications and statements contained false and defamatory
allegations about Plaintiff Dr. Wakefield and his affairs, business and reputation in the State of Texas as detailed herein.”

You can read the Plaintiff’s Exhibits by clicking here.

And, one more thing…


The photo above is of none other than BMJ’s Fiona Godlee addressing a skeptic meeting.

Fiona Godlee is the one who hired Brian Deer to write the articles she published in the British Medical Journal – the ones Andrew Wakefield is suing over.

Just so we know the whole story, ask yourself the question “Where does the money come from that keeps the British Medical Journal operating?”  Do you think it might be the vaccine/pharmaceutical industry?

Things are coming along nicely…

I’d like to be there when Brian Deer has to walk into the Travis County courthouse under the steely eyes of those Texas Rangers.  Smile here…

And, stay tuned.

Tim Bolen – Consumer Advocate

* * *

About the Wakefield Appeal… (Bolen Report):

Opinion by Consumer Advocate Tim Bolen 

Tuesday, October 30th, 2012

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.


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 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.


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 aggressivelyprosecute 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.

  1. 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

Tags: , , , , , , , ,

Leave a Reply