Pure Hearts & Empty Heads · 2008-05-27 16:00

This afternoon, the following brief (.pdf) was filed on my behalf in the U.S. District Court for the District of New Hampshire by Jeffrey C. Spear, media and First Amendment law specialist at the Concord N.H. firm Orr & Reno, and Paul Alan Levy of the Washington D.C.-based Public Citizen Litigation Group. (The brief and a summary of the case can also be found on the Public Citizen website.)

Public Citizen is a national, not-for-profit consumer advocacy organization specializing in health and safety issues, consumer rights, access to the courts, open government, and the First Amendment, including Internet free speech. The organization relies on tax-deductible donations to do its work, such as providing pro bono legal services to beleaguered opinionistas like me.

I offer my heartfelt thanks to Mr. Spear, Mr. Levy, and the staff of their respective firms for their generosity and willingness to speak forcefully against overzealous litigant-advocates’ misuse of the courts to stifle their fellow citizens’ competing opinions.


UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
1:08-MC-13

Lisa Sykes, et al., Plaintiffs,
v.
Bayer Corporation, Defendant

Response of Kathleen Seidel to Clifford Shoemaker’s Response to Court’s Sua Sponte Order to Show Cause Why Shoemaker Should Not Be Sanctioned for the Overbroad Subpoena That He Served On Seidel

On April 21, 2008, the Court granted the pro se motion of Kathleen Seidel to quash an incredibly broad subpoena served on her by Clifford Shoemaker, a Virginia lawyer who was prosecuting a tort action in the United States District Court for the Eastern District of Virginia on behalf of plaintiffs Lisa Sykes et al., against Bayer Corporation and several affiliated companies (whose names do not appear in the caption in this miscellaneous proceeding). Regrettably, Mr. Shoemaker has concluded that the only way he can defend his subpoena is by submitting affidavits, signed by himself, his client, and his star expert witness, that make a number of serious accusations against Seidel, who is accused of participating in a wide-ranging conspiracy to suppress the “truth” about the impact of trace elements of mercury in medicines, and to retaliate against those who oppose Bayer on this issue. Although Seidel objects to the contents of these affidavits, we are not submitting any counter-affidavits because, in our view, the Court need not make any findings about the truth of Shoemaker’s rants against Seidel to decide the current question of sanctions. We do, however, suggest that the bases put forward by Shoemaker not only do not support his opposition to sanctions, but tend to show that some sanctions would be appropriate. (1)

Plaintiff Lisa Sykes is the mother of an autistic child who believes that his condition was caused by thimerosal-containing vaccines and Rho(D) immune globulin, and by environmental mercury pollution. In addition to filing the underlying action against Bayer for damages that she believes were caused by Rho(D) immune globulin manufactured by Bayer’s predecessor, Miles, Inc., Sykes is an impassioned leader of a political and educational campaign to promote general awareness of the problems she believes are created by the use of mercury-containing antimicrobials in medical products and to hold Bayer, and other pharmaceutical companies which she deems equally guilty of concealing harm caused by these products, socially and legally responsible for their alleged misdeeds. She has been joined in this campaign by Dr. Mark Geier and his son, Mr. David Geier, two scientists whose research purports to support the hypothesis that autism is a consequence of iatrogenic mercury poisoning. Numerous damages actions have been brought by various lawyers who have concluded that Sykes and the Geiers are correct in their analysis, even though the great weight of scientific evidence runs to the contrary.

Respondent Kathleen Seidel is also a mother. One of her children has Asperger Syndrome, one of several diagnoses on the “autism spectrum” — technically, autism and Asperger Syndrome are two of four diagnoses categorized in the Diagnostic and Statistical Manual of Mental Disorders as “Pervasive Developmental Disorders.” See http://www.neurodiversity.com/aboutus.html; Sanger-Katz, A Forceful Voice in Autism Debate, Concord Monitor (April 27, 2008), A-1; Brooks, What a Web of action[ab]le links we can weave, Nashua Telegraph (April 9, 2008). Like Sykes, Seidel has become passionate about issues surrounding autism. However, she does not hold the makers of vaccines responsible for her child’s condition. To the contrary, based on her own research and analysis of relevant materials, she agrees with the general scientific consensus that Sykes and her associates are wrong; indeed, she regards Sykes’ claims as a dangerous delusion that has the potential to divert society from finding workable solutions to the problems faced by autistic children and adults, their families and communities, and the social institutions intended to support them. Seidel has worked as a librarian (in fact, she has a masters degree in library science), and she has put her considerable research skills to use to find, analyze and discuss written material about autism. Like Sykes, and relying on the very same First Amendment on which Sykes relies to publish her views, Seidel publishes her research and analysis on a comprehensive web site devoted to autism, disability, and related issues, http://www.neurodiversity.com. The website features an extensive “link portal” leading to over 10,000 popular and academic sources of information on over 300 subjects ranging from autism to left-handedness to hysteria. The website also includes over 150 original articles and letters, most of them published in weblog format at http://www.neurodiversity.com/weblog. Seidel has authored essays about the depiction of autism in the press and in nonprofit organizations’ fundraising appeals, the history of autism as a diagnostic category, and autism-related research and public policy development, as well as about the controversy over autism and vaccines.

Her published opinions about Sykes, the Geiers, Mr. Shoemaker and certain other lawyers who bring cases based on the theory of iatrogenic causation of autism are certainly not flattering. And given the power of the Internet as described by the Supreme Court in Reno v. ACLU, 521 U.S. 844 (1997), she is able to disseminate her findings and conclusions widely. (2)

There is great diversity of opinion about autism and related subjects, and feelings among advocates on various sides of the issue are intense. Solomon, The Autism Rights Movement, New York Magazine (June 2, 2008). Apparently, Sykes and Dr. Mark Geier, along with Mr. Shoemaker, simply cannot conceive of the possibility that a “mere mother . . . and housewife” (Shoemaker Mem. at 8; see also Shoemaker Response at 3; Sykes Decl. 6; Geier Decl. 10) might entertain views just as strong as their own, might be willing without compensation to spend her spare time exploring and addressing the issue, and might be able to match their own devotion to the issue by searching for, finding and disseminating relevant materials. (3) This disbelief leads them to conclude that Seidel must be engaged in a conspiracy with their various adversaries to drive them from the field by the force of her advocacy, and Sykes and Shoemaker freely admit that the main purpose of the subpoena that they sent Seidel was to learn whether this was so.

Specifically, Mr. Shoemaker admits that although in part, his subpoena to Seidel was justified because he was hoping that it might produce communications between Seidel and defendant Bayer, including proof that Bayer was feeding her documents and paying her to express her views on her web site, the subpoenas also had a broader purpose. Mr. Shoemaker was using discovery to ascertain whether he and Sykes (together with Dr. Geier) might have a basis to file suit against Seidel for defamation and for a “conspiracy” under 42 U.S.C. § 1985(3) to punish them for their own public advocacy on that subject.

Given this admittedly broad purpose, the subpoena was not limited to seeking communications between Seidel and Bayer. Instead, Shoemaker sought to compel Seidel to search through all of her files on the subject of autism (and any other “issue that was included on the website neurodiversity.com”). As a practical matter, she would have had to surrender every scrap of information, in paper or digital form, that she had painstakingly accumulated on any of more than 300 different subjects featured on her web site. She was required to find and provide any documents she had about Lisa Sykes or her family or her associates or attorneys or physicians (paragraph 1); any communication with any “member, employee or consultant” of the federal government (paragraph 3); any communication with any “member, employee or consultant” of any one of six corporations besides Bayer, or indeed of any company or other entity in “the pharmaceutical industry” (paragraphs 4 and 7); any communication with any “member, employee or consultant” of any “advocacy group, non-governmental organization, political action group, profit or non-profit organization” or other “concerned inividuals” including but not limited to the proprietors of more than 100 different weblogs (paragraph 5); any use of PACER, “Lexus Nexus” [sic] or any other “legal search engine” (paragraph 8); any communications with religious groups (paragraph 9); and any communications with “journals, scientific/academic boards or medical licensing boards” (paragraph 10). (4)

Had the subpoena been limited to communications between Seidel and Bayer, or funds received from Bayer, the subpoena might at least have appeared to bear some relevance to the existing case. It would also have been very easy for Seidel to respond to such a subpoena, because there were no such payments, and Seidel did not receive any such communications. See Seidel Motion to Quash, at 2 4 (describing how www.neurodiversity.com is financed). It was the astounding breadth of the subpoena, ranging far beyond any legitimate issue pertaining to Sykes’ claims against Bayer, that made the subpoena abusive and burdensome, and that, we assume, led the Court to issue its sua sponte order about sanctions.

In that regard, the fact that Mr. Shoemaker and his client may have hoped to find a basis for suing Seidel, whether for defamation or for conspiracy, was not a proper basis for abusing the pendency of its case against Bayer — a case which, apparently, Sykes was on the verge of dismissing — as an excuse to go on a fishing expedition for a hoped-for claim against Seidel. A burdensome fishing expedition would have been bad enough, but a fishing expedition unrelated to the issues in the case in which the subpoena was issued can only be described as an abuse of process. And an abuse of process is a proper basis for imposing Rule 11 sanctions on Mr. Shoemaker. Moreover, the fact that Sykes and her lawyer may genuinely believe that they are the targets of a conspiracy, and that they were entitled to use the filing of a tort action against Bayer as a platform from which to pursue harassing discovery against a political adversary, does not excuse them from an award of sanctions. “An empty head but a pure heart is no defense.” Thornton v. Wahl, 787 F.2d 1151, 1154 (7th Cir. 1986).

Indeed, given the many different subjects covered by the web site, ranging far beyond autism, even the now-stated justification of seeking to investigate an alleged conspiracy against Sykes, the Geiers, and Shoemaker is too narrow to justify the demand for documents pertaining to “any issue” addressed on the web site. The only possible conclusion is that the subpoena represented a form of harassment intended to silence a critic.

Finally, Mr. Shoemaker protests that Rule 11 sanctions should not be awarded because Seidel did not meet and confer with him in an effort to narrow the issues before filing her motion to quash. At most, this argument might have been offered in response to Seidel’s motion to quash, had Shoemaker deigned to file an opposition, although in the circumstances presented here — a grossly overbroad and abusive subpoena — the Court could well have exercised its discretion to excuse her failure to confer. But that motion has already been decided, and Mr. Shoemaker cannot excuse his own failures in connection with the subpoena by reference to Seidel’s failure to call him personally about his abusive subpoena. (5) Moreover, although Seidel’s failure to serve a Rule 11 motion — coupled with the fact that she was pro se — bars the Court from awarding Seidel her attorney fees as a sanction, it does not in any way limit the Court’s own sua sponte authority to impose sanctions.

We fully recognize that, just as the Geiers have sued other detractors for defamation and conspiracy, Geier et al. v. Department of Health and Human Services et al., 1:05-cv-01749-TFH (D.D.C.) (dismissed May 15, 2006), Seidel runs some risk that they and Sykes may be able to recruit Mr. Shoemaker or some other lawyer to bring the tort suit against her that they served this subpoena to try to document, and to try to take this sort of discovery in connection with that case. She only hopes that the lawyer who represents them in such a case will have deep enough pockets to pay her own attorney fees and costs at the end, because she will certainly serve a Rule 11 motion at the outset of such a case to begin the running of the safe harbor period prescribed by Rule 11(c)(2) of the Federal Rules of Civil Procedure. However, the reasons given by Mr. Shoemaker for having served that subpoena in this case do not provide any excuse that would avoid the Court’s imposition of sanctions.

Respectfully submitted,

Paul Alan Levy
Gregory Beck
Public Citizen Litigation Group
1600 – 20th Street, N.W.
Washington, D.C. 20009

Jeffrey Spear
Orr & Reno
One Eagle Square
P.O. Box 3550
Concord, NH 03302-3550

Attorneys for Kathleen Seidel
May 27, 2008


Footnotes

1. In the event the Court concludes that it needs a response to Mr. Shoemaker’s factual assertions before it can rule on sanctions, Seidel is prepared to submit a detailed affidavit.

2. “From the publisher’s point of view, [the Internet] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. . . . Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, . . . the same individual can become a pamphleteer.” 521 U.S. at 853, 870.

3. In fact, the great majority of web sites are the product of individual, eleemosynary endeavor by people who have become passionate about certain issues (or personalities) and have chosen to devote themselves to talking about them online.

4. Apparently, it was their hope that, once they forced Seidel to identify all of her available sources, they could then comb through her various statements to see if they could identify something they could sue her about for which she had not produced a written source.

5. In fact, after the pro se motion to quash came to Mr. Levy’s attention, he agreed to help Seidel with a possible reply brief, and tried to reach Mr. Shoemaker in connection with the subpoena, both to advise that he was ready to enter the case and to suggest that Mr. Shoemaker narrow the subpoena. Mr. Shoemaker never responded to Mr. Levy. It is questionable, therefore, whether a telephone call to Mr. Shoemaker would have been fruitful.

Comments


  1. Thank goodness for Public Citizen.

    I hope this saying ain’t too bold but, “Here come the judge! Here come the judge!”

    — Tom    2008-05-27 20:06    #

  2. I keep wondering in my non-legal cognizant mind:
    will Cliffy have to make an actual appearance in front of a judge in New Hampshire to explain himself?

    — HCN    2008-05-27 22:23    #

  3. Good for Kathleen, and Public Citizen and attorneys Levy and Spear. Effort undertaken at this juncture to establish a priori the frivolous nature of the kind of SLAPP action that may have been the ulterior motive of the original subpoena is prudent and hopefully will prevent future wastes of time, money, and intellect in having to defend against such lawsuits.

    — Phil Schwarz    2008-05-27 23:40    #

  4. Kudos to Public Citizen. I look forward to the ruling as well.

    — Joseph    2008-05-28 11:06    #

  5. I can’t help but wonder which cluster of people is guilty of engaging in conspiracy and defamation? I wonder if Cliffy will have enough money to get some help for himself and his friends.

    — Ms. Clark    2008-05-28 11:12    #

  6. Good brief. Short and too the point. Good luck for a quick and favorable ruling.

    — Ken    2008-05-28 17:38    #

  7. I agree, a really nice pleading. Looking forward to hearing from the judge!

    — isles    2008-05-28 23:07    #

  8. I meant to add: It’s striking that Public Citizen has come to Kathleen’s defense, given that they are frequent critics of the medical and especially pharmaceutical fields. How will Shoemaker and friends explain P.C.‘s complicity in the Great Conspiracy?!

    — isles    2008-05-28 23:16    #

  9. Hmm — let me see if I can get the gist of the pleading in 1 sentence:

    “Your honor: The vast difference between what they asked for and what they needed is proof in and of itself of the outrageousness of the subpoena, and hence sanctions are justified.”

    Well written argument. I hope the judge buys it. Sanctions just couldn’t happen to more deserving people!

    — spudbeach    2008-05-29 22:41    #

  10. Kathleen, my heartfelt relief!
    A month or two ago, I agreed to appear in court in the UK for an unrepresented mother who believed her child was AS.

    The court disagreed, were charging her with emotional abuse, and hadn’t understood his Ed Psych report. I offered pro bono to interpret that report for them.

    They had me in court, agreed I could do this, asked me to write a 7,000 word report in 3 days (free of charge) and appear in court a week later, personally financed.

    If you’re laughing out loud, let me tell you that they were offering the same deal to Tony Attwood.They were willing to listen to him on video link, no less. This was a third rate court, in a third rate town in the UK, and they made use of me, finally, as Tony had agreed to send an email in support of what I had to say.

    But, the other caveat was that I had to send to the court all the emails that had passed between me and the mother since I first met her. Fine. I did that. Nothing to hide.

    I appeared in court, did my stuff about how the child had macrocephaly in the first three months of his life, had serious developmental delays in his first 18 months, had a typical AS profile, and hyperlexia (reading age of 15, at age 11, IQ of 75)

    I was in the witness box for four hours. It was barbaric.I was attacked over my emails to mum in which I’d said I wasn’t happy with the fact that Social Services and the courts couldn’t understand autistic spectrum conditions. In the end, mum’s lay representative broke down in tears because of the ferocity of the attack on me, and we had to have an adjournment.

    Ultimately, the judge decided that my expert opinion could not be recognised as I was “too close to the mother”, and found in favour of the court’s appointed witness, a rogue psychiatrist, who claimed that “children grow out of autism” and said, ‘Of course I haven’t heard of Tony Attwood, as I see from his website that he’s Australian’

    Welcome to Judge Dead, Backwoods City, UK.

    Another pat on the back for you, mate, as I owe so much of my understanding to you (and thanks to this website I got my son’s German girlfriend to translate Asperger’s untranslated paper, which is pure magic.)

    My PhD on autistic intelligence and inclusive schooling will be finished in the next 6 months – 6 months ahead of the 3-year deadline.

    Kathleen, you’re a beacon to us all. I can’t tell you how much we value you. Many congratulations for escaping the rottweiler that is brain-dead Litigation.

    xxx

    — Barbara Jacobs    2008-06-07 17:24    #

  11. Barbara— That sounds terrifying for that poor mother and awful for you! What a bad situation! You were great to help her like that— it’s only too bad the court held fast to its ignorance.

    — Melissa G    2008-06-14 19:16    #