If there's one thing I can't stand, it's lawsuits that are only filed to intimidate people into silence. Well, there are lots of things that I can't stand, actually, but this one sucks because, not only does it inconvenience the people who run web sites and news businesses, but it often deprives us, the readers, of useful information. Hiring lawyers is expensive, even when all you have to do is show up and ask the legal equivalent of "why are they wasting our time by filing this suit?"
A case in point is a suit recently filed by a medical laboratory that was accused of fulfilling requests for tests of dubious medical value. The lab, Doctor's Data, Inc. (DDI), was identified as having performed such a test by Steven Barrett, a retired psychiatrist according to his web bio, who runs a website named Quackwatch. The article begins:
Many patients are falsely told that their body has dangerously high levels of lead, mercury, or other heavy metals and should be "detoxified" to reduce these levels. This article explains how a urine test is used to defraud patients.
The report pictured to the right is a "urine toxic metals" test from Doctor's Data, a Chicago-based laboratory that caters to chelation therapists and other offbeat practitioners. The patient who gave it to me was told that his mercury and lead levels were high and should be reduced with EDTA chelation therapy.
How the "Urine Toxic Metals" Test Is Used to Defraud Patients
Chelation, incidentally, is a treatment where chemicals are introduced into a patient for the purpose of removing metals from his body. What that does is raise the level of mercury detected in the subject's urine:
In contrast, Doctor's Data uses reference values of less than 3 ug/g for mercury and 5 ug/g for lead. Standard laboratories that process non-provoked samples use much higher reference ranges [4,5], which means that if all other things were equal, Doctor's Data is far more likely than standard labs to report "elevated" levels. But that's not all. A disclaimer at the bottom of the above lab report states—in boldfaced type!—that "reference ranges are representative of a healthy population under non-challenge or nonprovoked conditions." In other words, they should not be applied to specimens that were obtained after provocation. Also note that the specimen was obtained over a 6-hour period, not the standard 24-hour period, which raised the reported level even higher.
How the "Urine Toxic Metals" Test Is Used to Defraud Patients
As befits a medical site, it goes on for some length about why this isn't a valid test. The upshot is that a patient who was given this test would assume he had unhealthy levels of mercury or other heavy metals in his body, when that was not really the case. Several states, according to Dr. Barrett, have found that using this form of test was worthy of censure or suspension of a doctor's license.
To make matters worse, one of the cures for excess heavy metal toxicity is chelation, which has some dangerous potential side effects:
Absolutely! All chelating agents have both minor and potentially life threatening side effects. They must be used under the supervision of a physician in a hospital setting.
Side effects of CaNa2-EDTA include: [kidney damage, loss of nutrient metals like iron and zinc, skin peeling]
Your online pharmacy viagra: Chelation Therapy
It's not something you want to go through if you don't have to.
Orac, who writes the medical blog Respectful Insolence
, takes up the tale from there:
[P]rovoked urine testing is a bogus test. According to Dr. Barrett, only does DDI use reference ranges for unprovoked urine tests, values that are utterly meaningless for provoked urine testing, but it uses reference ranges that are lower than what is commonly accepted by reputable laboratories and academic medical centers. This combination of factors virtually guarantees that it will produce many "positive" results for "elevated" mercury and other heavy metals in the urine, which practitioners can then apply dubious therapies, such as chelation therapy, to treat. Obviously DDI disputes this, but it doesn't provide any quality scientific data to do so, in my opinion. Consequently, in my view, what DDI does in essence is to do a technically sound measurement of mercury and heavy metals in the urine but on urine specimens collected using a completely inappropriate methodology that is not scientifically or medically valid.
More Legal Thuggery
As you might expect, DDI took action, which was to sue Dr. Barrett
. They sent a cease and desist letter to Dr. Barrett which did not identify the specific things they found wrong with his article. The letter is reprinted in that link, by the way. Barrett requested that they identify the portions of the article that they found objectionable, and he would try to correct it if possible. They did not. As Orac explains:
This is typical. Note that [DDI lawyer Algis] Augustine doesn't actually list which specific parts of Dr. Barrett's article are incorrect, false, fraudulent or otherwise not truthful in the view of his client. Doctor's Data doesn't appear to be interested in accuracy, at least not if the letter from its lawyer is any indication. It appears far more interested in shutting up the opposition, of purging the Internet of material that can be used against it in the lawsuit it is facing in Texas. The rest of the text of the letter comes close to actually admitting this.
More Legal Thuggery
Which is what honks me off. As I said, lawyers are expensive. This kind of lawsuit, commonly referred to as strategic lawsuits against public participation
or SLAPP suits, are discouraged in some states by making the losing party in such suits pay all court costs. But that's not true everywhere. According to John Pieret, an attorney who runs the site Thoughts In A Haystack
, DDI's case has little merit. In his first reaction, he wrote:
As I explained in my post about the the suit by the doyen of the anti-vaccination movement, Barbara Loe Fisher, against Dr. Paul Offit, under US libel law, specific words must be alleged that make a factual claim about a person. Complaining that you are described as part of a class of people who are irrational, uneducated, unscientific, controlled by fear and/or a danger to public health is not enough to allege defamation under US law.
So, saying that someone is "catering" to loonies "nonstandard practitioners" is not good enough. Not only is that not a factual claim, but no reasonable person could interpret that as anything other than a statement of opinion, which is fully protected speech under the First Amendment. As I pointed out before, even calling someone a "pathological liar" is protected speech, so it is hard to see how calling someone a 'caterer' could rise to the level of defamation.
This Could Take Awhile
In a later article, he added:
The Doctor's Data, Inc. (DDI) suit against Dr. Stephen J. Barrett and his excellent resources Quackwatch and The National Council Against Health Fraud is a piece of work. It's not loony-tunes, like the Institute for Creation Research's lawsuit against the Texas Higher Education Coordinating Board. In some ways, it is much worse. It is a professionally drafted complaint that throws plenty of s**t against the wall in hopes that something might stick. It is nothing but (a lot of) smoke and mirrors in furtherance of an obvious SLAPP suit.
The DDI DDIdn't
It appears that John hasn't quite gotten all the way through the complaint yet, so he may have additional thoughts. I doubt, though, that this basic opinion will change.
Which means that there's a website that needs help. Quackwatch
provides a valuable service, which is to warn us against the sort of quackery that this lab seems to be enabling. Letting miscreants intimidate expert bloggers into silence will only make it that much harder to get honest information.
So, if you can, please drop a bit of change
at Quackwatch's contributions page.
UPDATE: John Pieret was kind enough to add this in a comment:
Just so you know, I've been through all the allegations of fact and I don't see any viable actions for libel. But the plaintiff has included claims for "restraint of trade" under Federal law, "trademark dilution," "consumer fraud" and "deceptive trade practices" under Illinois law, "tortious interference with contracts," "fraud" and "civil conspiracy." None of those should survive a determination that Barrett was exercising his freedom of speech but they introduce nuances that I'm not yet willing to pontificate on.
Medical Quackery Meets Legal Quackery: Comment #1
Thanks for that update, John. As a non-lawyer, it's hard for me to believe they'd have much of a case with any of that, but the courts seem to make a habit of surprising me.