In Distinguished Company · Apr 18, 04:00 PM

Many thanks to everyone who has offered encouragement, advice, and practical assistance since I published my Motion to Quash the non-party subpoena issued against me in the case, Sykes v. Bayer.

Last week, the First Amendment team at Public Citizen agreed to provide me with legal assistance. As of this morning, no response was forthcoming from Mr. Clifford Shoemaker, attorney for Rev. Lisa Sykes and Seth Sykes.

Yesterday I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.

From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. During her tenure, the committee published numerous reports of its findings, now made freely available on the National Academy of Sciences website. In its 2001 report, Measles-Mumps-Rubella Vaccine and Autism, the committee concluded that existing studies provided no support for an association on a population level between MMR immunization and autistic spectrum conditions. Vaccines and Autism, issued in May 2004, concluded that currently-available evidence favored a rejection of a causal relationship of thimerosal-containing vaccines and autism.

As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports. Now she, too, is the target of a subpoena in Sykes v. Bayer.

The subpoena was issued against Dr. McCormick on March 21 by Clifford Shoemaker, and commands her to appear for deposition on April 29 at the Boston offices of vaccine-injury litigators Conway, Homer & Chin-Caplan.

The subpoena demands:

• all documents pertaining to the “setup, financing, running, [and] research” of the Immunization Safety Review Committee;

• committee correspondence with federal funding and requesting agencies;

• documentation of “any association (financial or otherwise)” between committee volunteers and staff, and pharmaceutical companies or “any other private persons or companies with financial interest in any topics reviewed by the… committee and staff members”;

• all documents related to any “closed door transcript discussions” or “any discussions (open or closed door)” that preceded the issuance of final reports by the committee;

• material pertaining to “conflicts of interest, either apparent, potential or real,” of committee volunteers and staff;

• any documents pertaining to the manner in which the Institute of Medicine and its committees operate;

• communications surrounding committee member Dr. Polly Sager’s assessment of the work of Dr. Thomas Burbacher;

• documentation of supposed discrepancies between statements made to the press by committee members and staff, and the conclusions expressed in its reports;

• communications with the U.S. Centers for Disease Control; results of committee votes; and additional transcripts of committee meetings.

A Motion to Quash the subpoena was filed on April 9 in the United States District Court for the District of Massachusetts by Tobias Zimmerman, Terence J. Lynam and Christopher M. Egleson of Akin Gump Strauss Hauer & Feld. The Motion (assigned docket number 1:2008-mc-10102) indicates that although Dr. McCormick was served on March 26, and although her attorneys tried repeatedly to contact plaintiffs’ counsel to discuss the matter and to attempt in good faith to resolve or narrow the issue, Mr. Shoemaker did not respond until April 9 — the deadline for filing a motion to quash.

The Memorandum of Law in Support of Motion to Quash Third-Party Subpoena addresses the governance of the National Academy of Sciences, the processes by which its committees conduct and publish scientific studies and investigations, and the manner in which it screens committee members for conflicts of interest. It protests the subpoena as unduly burdensome and premature, particularly given the substantive and procedural flaws in the Amended Complaint recently filed in Sykes v. Bayer. The Memorandum discusses the legal rationale for and public policy interests served by preserving confidentiality of IOM committee deliberations reflecting “preliminary, incorrect, or incomplete analysis” of scientific matters, and previous attempts to compel discovery of such material. The Memorandum also addresses the inappropriateness of issuing the subpoena to Dr. McCormick personally, and protests its burdensome demands for material readily available from public sources and its personally invasive character.

The Memorandum of Law is supplemented by declarations of Dr. E. William Colglazier, Executive Officer, National Academy of Sciences, and Dr. Kathleen Stratton, Immunization Safety Review Committee Study Director; the 2002 Immunization Safety Review Committee report, Immunization Safety Review: Vaccines and Autism; Judge James R. Spencer’s February 2008 Memorandum Opinion in Sykes v. Bayer, the Sykes’ Amended Complaint and Bayer’s subsequent Answer; and various judicial opinions and administrative rulings upholding the right of the National Academy of Sciences to protect the privacy of its volunteers and the confidentiality of their disclosures and deliberations.

Dr. McCormick has my solidarity and sympathy — as do any other critical participants in public discourse about autism and vaccines who might join our ranks.

Case Documents

Case No. 1:2008-mc-10102, U.S. District Court for the District of Massachusetts (indexed on Justia.com)

• Motion to Quash Third-Party Subpoena

• Proposed text of Order

• Memorandum of Law in Support of Motion to Quash Third-Party Subpoena

• Subpoena issued to Dr. Marie McCormick (Redacted)

• Declaration of Dr. E. William Colglazier

• Immunization Safety Review Committee, Immunization Safety Review: Vaccines and Autism, Executive Summary (2002) (Part One)

• Immunization Safety Review Committee, Immunization Safety Review: Vaccines and Autism, Executive Summary (2002) (Part Two)

• Declaration of Dr. Kathleen Stratton

• Memorandum Opinion, Sykes v. Bayer, Slip Op. at 7 (E.D. Va. Feb. 12, 2008)

• Answer of Defendant Bayer Corporation, Sykes v. Bayer, (E.D. Va. March 17, 2008)

• Amended Complaint, Sykes v. Bayer (E.D. Va. Jan. 22, 2008)

• Order, U.S. v. Roberts (Sup. Ct. of D.C., Feb. 4, 2003)

• Order Granting Non-Parties’ Motion for Protective Order, Clegg v. Bristol Myers, No. BS 085263 (Cal. Sup. Ct. Oct. 21, 2003)

• Proposed Stipulation and Order, Clegg v. Bristol-Myers Squibb, No. 115708/03 (N.Y. Sup. Ct. Oct. 20, 2003)

• Order, Monroe v. United Air Lines, No 79-C-360 (N.D. Ill. Nov. 26, 1980)

• Order, In re General Nutrition, Inc., FTC Docket No. 9175 (March 19, 1985)

Excerpts

From Memorandum of Law in Support of Motion to Quash Third Party Subpoena, Case No. 1:2008-mc-10102, (D. Mass., Apr. 9, 2008) (Tobias Zimmerman, Terence J. Lynam and Christopher M. Egleson of Akin Gump Strauss Hauer & Feld, for Dr. Marie McCormick, movant).

On the apparent purpose of the subpoena

• [T]he subpoena seeks to pry into the internal deliberations of the National Academy of Sciences, a nongovernmental scientific organization chartered by Congress and frequently charged with providing impartial scientific opinions to the Federal government. The Academy and its scientists are not parties to the action to which the subpoena pertains. Plaintiffs in personal injury actions routinely serve subpoenas on the Academy and its scientists attempting to force exactly the kind of disclosure at issue here, and federal and state courts just as routinely quash those subpoenas or otherwise forbid the inquiry. An unbroken wall of authority recognizes that the Academy could not perform its important function if it were forced to reveal its internal deliberations to private litigants, and every court ever to consider a motion to quash like this one has granted relief. (p. 1)

• The plaintiffs’ success in the underlying case evidently depends on linking thimerosal to autism. The subpoena of course does not reveal the plaintiffs’ litigation strategy, but presumably the plaintiffs see the Safety Committee’s report as an obstacle to recovery, and wish to call its conclusions into question. They apparently hope to do so by questioning the good faith of the volunteer scientists that constituted the Committee, and by casting doubt on the unanimity of the Committee’s conclusion by ferreting out evidence of otherwise unexpressed dissenting views. (pp. 2-3)

On the National Academy of Sciences, its confidentiality policies and ethical safeguards

• The confidentiality of its deliberative processes is crucial to the work of the Academy. Disclosure would have a destructive effect on the important work of the Academy. Participants in Academy studies would be inhibited in expressing their views concerning controversial topics under consideration and reviewers would be hesitant to express their candid opinions regarding draft reports if they knew their comments would subject them to a defense of those comments at a later date in an unrelated matter. The threat of even limited disclosure of details of the deliberative process would disrupt the essential give-and-take between study-committee members, and moreover, disclosure of critical review comments would disrupt many working relationships. Further, the Academy’s ability to recruit volunteer scientists and experts to serve on its committees would undoubtedly be impaired, because individuals would be reluctant to serve if they knew their comments and deliberations were subject to disclosure. Furthermore, disclosure of preliminary or incomplete drafts which have not undergone review, which may contain incorrect information, and which may undergo substantial revision before becoming final, could confuse and mislead the public. Disclosure of this confidential information would adversely affect the Academy’s ability to produce the best possible reports and would endanger the public interest. (p. 5)

• In selecting members for the Safety Committee, the Academy precluded participation by anyone with a financial interest in a vaccine manufacturer; anyone receiving research funding from a vaccine manufacturer; anyone who had served on a major vaccine advisory committee; and anyone who had given testimony on or written about vaccine safety. The Academy determined that none of the selected scientists had any conflict of interest. (p. 8)

On premature and burdensome demands

• It would impose an undue burden on Dr. McCormick to require her to respond to a subpoena when the underlying complaint fails to properly invoke the jurisdiction of the federal court in the first place and when the court entertaining the underlying action has yet to determine whether the action will be allowed to continue. (p. 9)

• [T]he subpoena would subject Dr. McCormick to the burden of searching her files for responsive documents when plaintiffs can conduct their own searches of the Academy’s repositories and retrieve publicly available information. While some of the information sought in the subpoena will not be available in these repositories, because it is confidential, plaintiffs should not be allowed to ask Dr. McCormick to do their work for them with respect to the publicly available documents. There is no justification for imposing a burden on Dr. McCormick unless the plaintiffs have already exhausted the means at their disposal for recovering the same documents from public sources. (pp. 9-10)

Legal precedents protecting academic freedom by protecting the confidentiality of researchers’ work product

• Every federal and state court and administrative tribunal to have considered a third-party subpoena that would have forced the disclosure of information like that sought here has concluded that the Academy must preserve the confidentiality of its internal deliberations concerning its published reports, and has forbidden the inquiry…

[M]any… courts have recognized that confidentiality is essential if deliberations, particularly scientific deliberations, are to proceed unfettered, without being chilled into silence. Confidentiality is vital in scientific and academic settings. “Scholarship cannot flourish in an atmosphere of suspicion and distrust.” Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957).

As the Seventh Circuit pointed out in Dow Chemical Co. v. Allen, 672 F.2d 1262, 1275 (7th Cir. 1982), the protection for academic freedom “extends as readily to the scholar in the laboratory as to the teacher in the classroom.” The Court of Appeals affirmed the trial court’s refusal to enforce third-party subpoenas seeking the disclosure of university research information. The court explained that “enforcement of the subpoenas would leave the researchers with the knowledge throughout continuation of their studies that the fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs.” The court concluded that this “realization might well be both unnerving and discouraging,” and would “inevitably tend to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor.” It therefore believed that “enforcement of the subpoenas carrie[d] the potential for chilling the exercise of First Amendment rights.” (pp. 11, 15)

On the public’s interest in the advancement of science

• It is vital to the work of the Academy, and, in turn, to the public interest, that there be vigorous debate within study committees and robust criticism by the reviewers. Disclosure of candid committee deliberations during their closed meetings could seriously inhibit the process of give-and-take between and among volunteer scientists that is so crucial to producing the best possible Academy reports. Disclosure of committee deliberations would seriously impair the Academy’s ability to recruit volunteer scientists to serve on the study committees and as reviewers. Those who might still serve would be inhibited from giving their candid views in order to avoid the possibility of embarrassment or of jeopardizing working relationships for fear of subsequent disclosure. Deliberations of the volunteer scientists would be chilled if litigants could have easy access to their frank preliminary and internal comments and deliberations. The Academy’s procedures have long operated effectively because committee members and reviewers give candid evaluations, knowing that their deliberations will stay confidential. (p. 16)

• The Academy is one of the world’s most important scientific organizations; its work is vital to the public and the advancement of science. The public interest is best served by enabling the Academy to recruit the best scientific minds possible to serve on its committees and as reviewers, in order to produce the most rigorous reports on important scientific issues. The public interest is also well-served by preventing the confusion about scientific issues that would result from the release of confidential deliberations containing preliminary, incorrect, or incomplete analysis. (p. 17)

On demands for institutional information

• [F]ive requests relate to the constitution and management of the committee. Dr. McCormick did not establish the committee or handle its administrative affairs. She does not possess any documents in any of these categories, and plaintiffs can have no reason for thinking that she would have such documents. Such documents would be possessed and owned not by any individual member of the Committee but by the institution to which it belongs. (p. 18)

On demands for personal financial information

• These requests seek to inquire into the “financial interests,” “relationships,” “conflicts of interest” and “potential conflicts of interest” of twenty-three individuals… In soliciting “conflicts” information from candidates for membership on its committees, the Academy notifies the candidates that the information they provide will be kept confidential… [T]he disclosure of such information would breach the privacy rights of the nation’s scientists, could cause some of them personal embarrassment, and would ultimately discourage our nation’s scientists from volunteering their time for the Academy’s important work… That chilling effect on the Academy’s scientific work would ultimately harm not only the Academy, but the interests of the public. (pp. 18-19)

• This need for protecting the confidentiality of an individual’s financial information has also been recognized in cases that do not involve the Academy. As stated by this court, “[t]he right of privacy and the right to keep confidential one’s financial affairs is well-recognized.” Hecht v. Pro-Football Inc., 46 F.R.D. 605, 607 (D.D.C. 1969). This is especially the case when the information sought involves non-parties, and when the information is collateral and not direct proof of the plaintiffs’ claims. (pp. 19-20)

Comments


  1. Wow. I hope both subpoenas are quashed and that the motive behind he issuing of the subpoenas is examined and any bad faith on the part of a certain lawyer is exposed.

    — Ms. Clark    Apr 18, 04:11 PM    #

  2. That’s great news about Public Citizen. And what’s more, imagine the hilarity that will ensue if/when Cliffy, Inc., try to accuse PC, of all orgs, of being “in cahoots with Big Pharma”! That’ll be a wake-up call for the Daily Show!

    :-D

    — dkmnow    Apr 18, 04:29 PM    #

  3. dkmnow – Ka-zing! That is a delicious thought.

    So the Cliffster’s got Seidel, McCormick… all he needs now is George H.W. Bush and his delusionary triangle will be complete.

    — isles    Apr 18, 05:08 PM    #

  4. What a poor excuse for a lawyer! How could he ever hope to make that stick? And how come he never asked Dr McCormick about her religious affiliations like he asked you? I am sorry that Dr McCormick has to put up with this but at least she has a legal team to support her and it ought to increase the chances that your subpoena will be quashed, which makes me so happy!

    — mike stanton    Apr 18, 05:10 PM    #

  5. This part is interesting:

    “The subpoena of course does not reveal the plaintiffs’ litigation strategy, but presumably the plaintiffs see the Safety Committee’s report as an obstacle to recovery, and wish to call its conclusions into question. They apparently hope to do so by questioning the good faith of the volunteer scientists that constituted the Committee, and by casting doubt on the unanimity of the Committee’s conclusion by ferreting out evidence of otherwise unexpressed dissenting views.”

    The subpoena aimed at you, Kathleen, was clearly retaliatory, but it also stands to reason that you’re hurting them. Imagine how hard it is to put Mark Geier on the stand, for example, without him getting killed on cross-examination. They hope to find a way to help their case by discrediting the source of the damaging information.

    — Joseph    Apr 18, 05:14 PM    #

  6. So, Kathleen Siedel and her blog are on a par with the IOM?

    Your research is good, I grant that, but it appears that Mr. Shoemaker thinks even more highly of it than I!

    “Imagine how hard it is to put Mark Geier on the stand, for example, without him getting killed on cross-examination.”

    One doesn’t have to do much imagining. Take a look at the recent trials—Dr. Geier and other “experts” found to be, well, not experts. Take a look at vaccine court decisions, where as time has gone on, Dr. Geier’s legal weight has diminished.

    Still, Kathleen has done what would amount to many thousands of dollars worth of research if the respondants were to do it themselves.

    — Matt    Apr 18, 05:41 PM    #

  7. Wow. I cannot imagine what this Shoemaker thinks he can accomplish doing this. How many other such subpoenas has he issued that we haven’t heard about yet?

    — LW    Apr 18, 06:11 PM    #

  8. I think it is a chance by Shoemaker to play the martyr card. "Oh woe is me, the Courts are part of the conspiracy too. Send more money so I can keep up the good fight against the entire reality based community."

    — daedalus2u    Apr 18, 06:26 PM    #

  9. I just added a needed paragraph at the end summarizing the attachments to the memorandum.

    — Kathleen Seidel    Apr 18, 07:34 PM    #

  10. In good company indeed.
    Glad to hear that Public Citizen is providing you legal assistance.
    But please don’t vote for Mr. Nader for President: look what we all got — for 8 years running — the last time too many of your neighbors in New Hampshire did so :-).

    — Phil Schwarz    Apr 18, 09:57 PM    #

  11. Not to worry! Public Citizen has long been independent of its founder, and has never endorsed his political campaigns. (They could lose their charitable tax exemption if they did.) Here’s from their website:

    "Mr. Nader has no formal relationship with the organization and has not had any such relationship for years. He founded Public Citizen in 1971 to defend public health, safety and democracy, and we continue to be inspired by the principles he espoused. However, Mr. Nader stepped down as president of Public Citizen in 1980 and since then has not held any position or served on its board. Joan Claybrook has been president since February 1982."

    "Public Citizen is a nonprofit organization and does not endorse or support candidates. We therefore have no position on the candidacy of Mr. Nader or any other candidate. We are not associated with his campaign, nor were we in 2004 or 2000."

    — Kathleen Seidel    Apr 19, 03:19 AM    #

  12. And Phil, Kathleen, much appreciated if you would do your darndest to not inflict the rest of the world with similar for the next eight years :)

    — Alyric    Apr 19, 01:01 PM    #

  13. Good news on your legal representation. I too stand in solidarity with you and Dr. McCormack

    — Liz Ditz    Apr 19, 01:36 PM    #

  14. No way. no freaking way. I can’t believe this………………

    and why the hell would a reverend……..a supposedly (hardy har har) “religious” person want twenty million dollars for a “vaccine injury” anyhow?

    I know that doesn’t have much to do with the fact that both you and Dr. McCormick got idiotic subpoenas……..but I do think it’s a legitimate question that hopefully some bloggers out there will ask and explore much further………so that whoever reads their blogs can find out, and hopefully spread around the internet…..what kind of idiocy good people like you have to waste their time and energy dealing with……..as well as taxpayers down the road probably……for processing fees of the court and whatnot…….it must have a trickle down effect at some level…..

    Athena of athenivanidx

    — Athena    Apr 20, 02:24 AM    #

  15. “What a poor excuse for a lawyer! How could he ever hope to make that stick?”

    Of course he knows that this can’t stick. The point is not to win a legal case, but to punish anyone who stands up to his clients. Even if the case is (properly) thrown out, he can cost these people tens or hundreds of thousands of dollars, and put them through hell. There, let’s see who thinks it is worth it to tell the truth next time.

    — Green Eagle    Apr 20, 05:34 PM    #

  16. It’s as if Shoemaker is searching for any evidence (or allusion to) suggesting a link between thimerosal and autism because his “experts” are incapable of scientifically demonstrating it themselves.

    — bones    Apr 20, 10:12 PM    #

  17. The shotgun approach.

    I think it's less to harass you, as an attempt to find some nuggets they can read out of context, or to use something in the motions to quash and imply it supports them/substitutes their lack of evidence.

    Don't get me wrong, I’m one of the people who thinks there’s enough of a “question mark” over the link between vaccines and autism that it needs investigating further.

    But I also know ASD has become the “syndrome of the month”, and is used as a shotgun itself by lazy pshrinks who can’t be bothered to actually dX someone properly.

    Either way, the way the lawyers are behaving is abysmal, and abusing the system for harassment purposes.

    Makes you wonder just how good their case is if they’re trolling for evidence on a private “amateur” website like here.

    Best of luck to you kicking their asses Kathleen, and please, don’t let them affect the site.

    If something comes up that threatens the site’s hosting, let me know; I’d be proud to help you move it to one of my servers.

    — Moonwolf    Apr 21, 02:49 AM    #

  18. “I think it’s less to harass you, as an attempt to find some nuggets they can read out of context, or to use something in the motions to quash and imply it supports them/substitutes their lack of evidence.”

    No question; in this particular case, the are at least hoping to quote-mine the IOM deliverations in a similar manner to the Simpsonwood transcript. It’s interesting how it was done that time. See Skeptico’s analysis
    here and here.

    — Joseph    Apr 21, 10:34 AM    #

  19. Judge Young is a fine judge who will no doubt take a dim view of this behavior.

    — Elizabeth    Apr 21, 01:24 PM    #

  20. I think the inability of the legal team representing Dr McCormick to make contact with Shoemaker in the two weeks between when the subpoena was filed and and when the response was due speaks volumes.

    If Shoemaker had a good faith reason to issue the subpoena he would have responded. He didn’t. That speaks volumes.

    The subpoena was grandstanding for his clients and for the marks he and the Geiers are taking to the cleaners (that would be the mercury militia).

    — daedalus2u    Apr 21, 06:35 PM    #

  21. Who is funding Lisa Sykes activities? I don’t know what her husband does, but an associate reverend at a church doesn’t make much money. I doubt Shoemaker is doing all this pro bono or on a contingency basis either. Could Ms. Sykes be using church resources to pay Mr. Shoemaker?

    — CS    Apr 21, 07:51 PM    #

  22. The lawyer is not only fishing he is trawling and is trying to intimidate anybody who could threaten his rather lucrative trade.
    He is trying to silence you and you won’t be quiet. Good on you.
    Hopefully the judge will see this idiot for what he clearly is and will notify the relevant bar associations.

    — Harebell    Apr 22, 07:40 PM    #