Scientific Opponents Cannot Be Sued Into Silence

We have decried several times plaintiffs’ tendency in prescription medical product litigation, particularly mass torts, to try to sue into submission their opponents in scientific debates. This often takes the form of lawsuits alleging that journal articles, continuing medical education, and other forms of scientific discussion are actionable “misrepresentations.” We said some time ago:

[W]e’re sick and tired of plaintiffs alleging “you ghostwrote this” or “the article misrepresented the data.” We’re pleased to find a decision [referring to Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp.2d 384, 456-57 (D.N.J. 2009)] saying that the publication of scientific articles, per se, is protected by the right of free speech and can’t be the basis for a lawsuit. We don’t think courtrooms should be places where one side of a scientific debate seeks to sue the other side into silence.

Well, it’s not just the tort plaintiffs who want to litigate scientific opponents into submission, and it’s not just our clients being targets of such efforts. That’s why we’re pleased with the ruling in Informed Consent Action v. Becerra, 2022 WL 992814 (S.D.N.Y. March 31, 2022) (“ICA”), in which the plaintiffs were a couple of antivax groups, and the target of their scientific suppression was none other than Centers for Disease Control itself.

It seems that the CDC – in accord with essentially all gold-standard scientific studies ever conducted – includes on its website the following statement:

Vaccines do not cause autism

Some people have had concerns that ASD [autism spectrum disorder] might be linked to the vaccines children receive, but studies have shown that there is no link between receiving vaccines and developing ASD. The National Academy of Medicine, formerly known as Institute of Medicine, reviewed the safety of 8 vaccines to children and adults. The review found that with rare exceptions, these vaccines are very safe.

A CDC study published in 2013 added to the research showing that vaccines do not cause ASD. The study focused on the number of antigens given during the first two years of life. . . . The results showed that the total amount of antigen from vaccines received was the same between children with ASD and those that did not have ASD.

CDC, Vaccine Safety – Autism (links brought into text). This position has been the considered judgment of “federal health authorities” for “the past four decades.” ICA, 2022 WL 992814, at *2.

The plaintiff antivax organizations sued the federal government (the CDC is part of the Health & Human Services department run by Secretary Becerra, the nominal defendant) demanding that this statement be “forthwith” removed, allegedly because not every approved vaccine had been specifically studied for autism. Id. The government initially tried to accommodate the antivaxxers. But after the antivaxxers loudly proclaimed that accommodation meant more than was justified, the government ultimately said “pound sand,” and returned to its original position:

On August 27, 2020, Plaintiffs state that the CDC “finally removed” the “Vaccines Do Not Cause Autism” claim from its website and, after ICAN “widely publicized” the removal of the statement, the CDC restored the statement to its website.

Id. at *3. The scientific community responded vigorously to the misleading antivax media blitz, with the plaintiff antivax groups claiming that they were “removed from various social media platforms” as a result. Id. at *5 n.4. Good riddance.

Plaintiffs argued that they had standing to attack the CDC’s view of vaccine science because the online statement would somehow chill scientific research. Id. (“until the CDC removes the statement, ‘the necessary scientific inquiries will never receive the funding or the attention they deserve’”) (quoting complaint). The court agreed with the CDC, finding this statement to be even more unfounded than we’ve come to expect from antivaxxers. The CDC’s statement reflecting forty years of science was unlikely to cause anybody to do, or not to do, anything:

Defendant’s argument in chief is that the Complaint is too speculative, surmising that removal of the CDC Statement would somehow coerce independent researchers, none of whom are parties to this lawsuit, to begin studying and publishing research on the vaccine-autism connection for babies. The Court agrees. Plaintiffs’ causation theory is purely speculative and conjectural.

Id. at *6.

Given that research concerning vaccines and autism has been a dry hole for over 40 years, plaintiffs offered no basis for believing that the CDC’s statement – as opposed to the discredit blanketing this area due to pseudoscientific charlatans (underwritten by some p-side lawyers) with whom antivaxxers have allied. “Plaintiffs have not proffered facts to demonstrate that the alleged lack of research is not just explained by the fact that there is scientific consensus that vaccines do not cause autism.” Id. Plaintiffs’ purported “harm” from the statement was nothing but an unsupported house of cards that, upon examination, promptly collapsed:

Plaintiffs’ alleged injury would only be remedied if HHS removed the CDC Statement and if researchers refrained from citing or referencing the CDC Statement and if researchers began to study the vaccine-autism link for babies and if the researchers published their research findings so that eventually Plaintiffs could investigate their findings and disseminate them.

Id. at *7 (emphasis original). Plaintiffs did “not proffer[] facts” that the CDC’s accurate assessment of current science had anything to do with the scientific community’s reluctance to follow the antivax road to perdition.

Thus, ICA refused to allow plaintiffs suit seeking to silence the defendant’s public statements about vaccine science to proceed. “Because none of Plaintiffs’ standing theories satisfy the Article III case-or-controversy requirement, this Court must dismiss this case for lack of subject matter jurisdiction.” Id. at *8.