Legal thuggery directed at Steve Novella and Science-Based Medicine

oracknows — Wed, 23 Jul 2014 06:40:57 +0000

If there’s one characteristic of supporters of dubious medicine, it’s that they detest criticism. Whereas your average skeptic might not like criticism—sensitivity to criticism being a human trait and all—science- and evidence-based criticism tends to drive dubious medical practitioners (and, I might add, promoters of various other forms of woo) into paroxysms of anger. Not infrequently, because they can’t refute such criticisms with science and evidence, they respond by lashing out, by going on the attack. That lashing out can take many forms, from simply writing abusive posts about their critics, with or without the intent to poison their critics’ Google reputation, to, in the case of pseudonymous bloggers, “outing” their critics in order to try to silence them. Sometimes they will try to make trouble for their critics by harassing them at work, complaining to their bosses, or generally doing what they can to make their critics pay for criticizing them. Sometimes they will make legal threats. I have experienced all of these things from my critics, including antivaccinationists and supporters of Stanislaw Burzynski, such that my Google reputation is in tatters, and my bosses tend to roll their eyes and sigh when another complaint comes in from an antivaccinationist or Burzynski supporter.

Sometimes, in not rare enough cases, such people will go so far as to actually sue their critics for libel or defamation. We’ve seen this happen before to defenders of science such as Brian Deer, who was sued by Andrew Wakefield; Simon Singh, who was sued by the British Chiropractic Association; and Ben Goldacre, who was sued by Matthias Rath. The lawsuits were all frivolous, of course, and the plaintiffs usually lose or back off, but frivolous lawsuits designed to silence can wear down even the most dedicated defender of science through expense, nuisance, and lost time. Worse, there is always the possibility of the skeptic losing and being on the hook for major dollars for damages, even when the case against the skeptic was weak. After all, the law is not perfect. Indeed, because British libel laws were so plaintiff-friendly, making it easy to sue scientists and bloggers criticizing pseudoscience, a movement sprang up to reform them—and, seemingly against all odds, ultimately succeeded. Unfortunately, even though the libel laws in the US are much more favorable toward the person being sued for libel than toward the plaintiff, thanks to the First Amendment, there are still defenders of science who are sued—like Brian Deer, for instance, who was sued in Texas by Andrew Wakefield—for defending science.

Unfortunately, one of those people is a friend of mine, Steve Novella, who this morning announced that he and a certain blog that I’ve been known to frequent, if you know what I mean, are being sued for having criticized a man named Dr. Edward Tobinick. This lawsuit, IMHO, is cut from the same cloth as the lawsuits against Brian Deer, Ben Goldacre, and Simon Singh. (The online documents regarding the lawsuit can be found here.) Oddly enough, Tobinick isn’t suing over what I would have thought (defamation or libel), which is what practitioners like Dr. Tobinick usually sue over, but rather appears to be using a legal tactic I have never heard of. Specifically, he's suing under the Lanham Act and claiming that Steve Novella was using false advertising to attack him in order to promote his own Yale Neurology practice. I’ll let Steve tell the tale from here on out:

An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a clinic in California and Florida. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

Perhaps he feels that my 18 year career promoting science, critical thinking, and science-based medicine is just a cover so I can occasionally attack distant tangential “competitors.”

Not being a lawyer, for the life of me I can’t understand why his lawyers chose this strategy. Lawyers, feel free do educate me in the comments! Other than that, Tobinick has cast the usual wide net, suing Steve, the New England Skeptical Society (which owns and maintains the SBM blog), the Society for Science-Based Medicine (which does not own SBM but on whose board of directors Steve sits), as well as Yale (yes, Yale). Suffice to say that Tobinick appears to be roping into his lawsuit anyone and any entity even remotely related to Steve and his criticism of his treatments.

So what, exactly, is Tobinick doing in his clinic that attracted Steve’s attention over a year ago? Basically, he’s using a drug called Enbrel (etanercept), an injectable fusion protein in which the receptor for a cytokine protein called tumor necrosis factor (TNF) is attached to the constant end of the IgG1 antibody. It’s a drug that inhibits the activity of TNF, whose normal function is to promote inflammation, which makes etanercept an immunosuppressant. That’s why it’s used to treat inflammatory and autoimmune diseases, such as rheumatoid, juvenile rheumatoid and psoriatic arthritis, plaque psoriasis and ankylosing spondylitis.

Tobinick, it turns out, is injecting Enbrel near the spine (perispinal) off label to treat a number of conditions, including Alzheimer’s disease. (Again, Again, Steve has the details.) From my perusal, Tobinick’s website for his Institute for Neurologic Recovery is lean on convincing research but includes, of course, heart warming testimonials of near miraculous cures for a variety of conditions. Moreover, Dr. Tobinick is not a neurologist, and, as Steve has pointed out, he has not produced any compelling clinical trial evidence for his proposed treatment:

The only way to really know if the treatment itself is having any neurological benefit is with careful double-blind placebo controlled clinical trials. Tobinick, however, has not produced such evidence. He has a long list of publications – all case series, observational studies, pilot studies, case reports, and reviews. I could not find a single double-blind placebo controlled trial establishing the efficacy of his treatment for any of the conditions I listed above.

At best Tobinick’s treatment should be considered experimental. I think the plausibility of the effects he is claiming is extremely low. It’s possible that and anti-TNF effect may be of some use, but given the type of evidence we have it is likely we are seeing mostly (if not completely) placebo effects.

This is the scientific criticism that Dr. Tobinick cannot abide. In my opinion, it is legitimate criticism, and he cannot answer it other than with a lawsuit. Certainly, he appears unable to me to answer them with basic science and clinical trials—same as it ever was for practitioners such as he. I’ll give you updates as I learn them. In the meantime, Steve has, admirably, decided to fight, and I admire him for that. After all, if all it took were a legal threat to get SBM to take down a post that offended someone like Dr. Tobinick, SBM would open itself to all manner of attempts to silence it using legal thuggery.

oracknows Wed, 07/23/2014 - 02:40

Categories

Social Sciences

Someone else who has never heard of the Streisand Effect. He'll know what it is soon though.

Unfortunately I've heard via PRN that there will be a lawsuit and an expose of physicians who are paid to denigrate alt med hokum. Supposedly, the chief loon will unveil an article detailing United Woo's investigation and future plans.

Yes, we are all shills engaged in selfish self-promotion and advertising when we speak up for SBM and against quackery. I sure hope this tactic doesn't work.

It is an interesting legal tactic, but totally without merit. They agree attempting to classify the blog posts as commercial speech, which has lesser protections under the First Amendment. I think it would be absurd for a court to find that SBM is posting commercial speech; this suit will fail very quickly.

Oh, dear, I'll bet he wasn't expecting Randazza.

Glad to see (from the comments over st SBM) that you've already contacted Popehat.

Gah. Of course the suit will fail. Dr Novella (and Yale) should counter-sue, alleging harassment and lost income damages.

Ken White (from Popehat) does brilliant work.

Narad @4 -- Randazza? What did I miss?

Not being a lawyer, for the life of me I can’t understand why his lawyers chose this strategy.

Predictably, he's trying to use the Lanham Act. There's some background here.

The docket should appear here one RECAP gets its sh*t together, but I didn't have the $11.80 to download the complaint.

Randazza? What did I miss?

Novella is represented by Marc Randazza.

Narad @11 -- Thanks. Randazza is apparently quite the character.

So, because Orac is a cancer-sugeon, mr Burzynski can sue him, because his blog-posts are actually advertisements?

What a minute! If he is suing a corporation, aren't they people now? And corporations have First Amendment rights now, so ... what's the problem?

Randazza is on board? Oh my. This should be GOOD.

A minor quibble about the Streisand effect -- I should think that quacks are relatively immune from it, as their client base is heavily into confirmation bias.

No...wait. This turkey is suing The Society for Science-Based Medicine? Yikes !!! There's a lilady who is a paid up member of that Society.

(the other) lilady...who is not a member of The Society for Science-Based Medicine.

Just think of all the tailored News websites where half the posts do contain an extortion to buy the crank's books and supplements.

Maybe we should ask Dr Tobinick if he wants to sue them, too. I'm pretty sure our usual suspects are proposing cures for the same ailments he is treating.

Google Edward Tobinick's name and you'll see what is almost certainly the reason why he's suing Steve and SBM.

Not his first Lanham Act suit, by the way. Tobinick v. Scripps Clinic Medical Group, No. 2:00-cv-06137 (C.D. Cal. 2000). It appears that Scripps had, inter alia, included "Photolysis HR" in "hidden text" on its site. He lost in the trial court and, it appears, in the 9th Circuit.

There also appears to be an ongoing patent dispute, Tobinick v. Olmarker (PDF).

Tobinick has filed a motion for a preliminary injunction, defendants have filed motions to dismiss. I got a kick out of Steve Novella's opposition to the motion for a preliminary injunction, in which Dr. Novella's lawyer Marc Randazza points out that the case presents a defamation claim masquerading as a claim for violation of the Lanham Act (false advertising), but that ""no matter how eloquently someone may call a 'dog' a 'chicken,' it will never lay eggs." Complaint and opposition to motion for preliminary injunction are here:
http://goo.gl/uTPWAz

He's lost before in an attempted patent interference, BTW.

GOVERN YOURSELVES ACCORDINGLY

I wonder if ANTI-SLAPP (anti-Stragetic Lawsuit Against Public Participation) protection applies to this jurisdiction?

I wonder if ANTI-SLAPP (anti-Stragetic Lawsuit Against Public Participation) protection applies to this jurisdiction?

Florida's anti-SLAPP statute is good for next to nothing unless you're sued by a homeowners' association.

Has anyone seen this guy's wiki page?

http://en.wikipedia.org/wiki/Edward_Tobinick

"Edward Lewis Tobinick is an American physician who is the inventor of new methods of treatment of neurological disorders."

Un. Fucking. Believable. Isn't there like, some association of skeptics who can cut this asshole down to size?

So, he's a litigious fucknuckle. Got it.

Obligatory: We refer you to the reply given in the case of Arkell v. Pressdram.

Has anyone seen this guy’s wiki page?

Take a look at the history page.

Fight the good fight Dr. Novella. Hopefully this quack will expeditiously lose and we can return to our regularly scheduled life.

I don't know in which state this case is being brought, but if anyone does know, do you also know if that state has laws against vexatious suits?

So, he’s a litigious f[]cknuckle. Got it.

This is an amusing example. The whole hair-removal thing (which may not even have involved a laser) really needs to be expanded on the W—pedia page.

I don’t know in which state this case is being brought, but if anyone does know, do you also know if that state has laws against vexatious suits?

It's a federal suit brought in the Southern District of Florida. Any appeal would be to the 11th Circuit, which, as I understand it, is a hard place to so much as recover attorney's fees for an unsuccessful trademark action.

Meanwhile, on the Dr. Oz front:

http://www.anh-usa.org/medical-student-launches-campaign-against-dr-oz/

@Anne:

Complaint and opposition to motion for preliminary injunction are here

Thanks. Did you RECAP those? (I always plead for people to use this tool.)

Off-topic P.S.: While looking around at miscellaneous PACER stuff, this item, published yesterday, fell out. RI gets a couple of mentions.

It would appear that some recent edits have been made to his Wikipedia page to point out some of his deficiencies. Any bets on how long before he edits them out again?

One of the attorneys Justia lists for Tobinick appears to have been involved in hijinks recently:

http://chapter11cases.com/2013/08/12/new-bankruptcy-opinion-in-re-herma…

Did he find his lawyer on Craigslist? (Mad props if you know what I'm talking about.)

AIDS Denialist Clark Baker sued me in TX Fed Court and lost. (He has appealed) He lost, in part, because the Lanham Act worked in my favor. And yes, Ken White at Pope Hat is awesome. He sent out the Pope Hat Signal on my behalf and that is why I got pro-bono, kick-ass attorneys!
http://hivinnocencegrouptruth.com/2014/07/04/clark-baker-loses-in-feder…

Mark Thorson @36 -- I think I'd seen that article elsewhere a few days ago. I did look at the comments on the link you sent -- nearly all are the comments are indignant defenses of Oz and the usual crapola about how bad "allopathic" medicine is. Then I noticed that the site you link is the "Alliance for Natural Health" -- so this is yet another example of the way people on the web tend to frequent echo chambers where they hear exactly what they want to.

Even us RI regulars are birds of a feather, but at least we have real evidence and critical thinking ...

Ooh! The banner ad is for a company that sells cases that reduce "cell phone radiation exposure!"

Almost as good as the creepy old guy with the big muscles.

Did he find his lawyer on Craigslist? (Mad props if you know what I’m talking about.)

I don't suppose it involves the movie "Twister."

One of the attorneys Justia lists for Tobinick appears to have been involved in hijinks recently

Ooh, skanky. I suppose he's protected by the Florida homestead exemption all the same.

Tobinick, it turns out, is injecting Enbrel near the spine (perispinal) off label to treat a number of conditions, including Alzheimer’s disease.

I'm pretty sure this has been mentioned somewhere in the link tree, but there's nothing like an AD drug that doesn't "cross the blood-brain barrier," leading to a secondary need to speculate about breakdown of the neurovascular unit.

In Tobinick's hair-removal-related litigation, I particularly liked this part:

Additionally your web pages include quotations attributed to my client's web sites which are not currently present on the web sites. Some of these statements were taken from old material, written in 1997, which was long ago updated. Please review the current web sites of my clients and correct these many mistakes.

"Your accurate citation of what my client[s] used to claim is defamatory, because he is now unsaying it."

Did he find his lawyer on Craigslist?

Past evidence suggests that his lawyers advertise with fliers stapled to powerpoles.

@herr doktor bimler

I thought that his lawyers advertised through popup ads.

Yale? Why include Yale?

Composer99: Yale? Why include Yale?

Possibly in the hope that they'll pay him to shut up and go away. Let's face it,Yale is kinda famous for being rich and buttoned down. (And not that bright, if their alumni are a fair sample.)

(And not that bright, if their alumni are a fair sample.)

Yea another vapid generalisation completely devoid of any basis. Every institution of higher learning is going to have less-than-stellar graduates, mediocre graduates and stellar graduates. That shouldn't be hard to grasp.

@ PGP:

But did you ever see their art musems?

Let’s face it,Yale is kinda famous for being rich and buttoned down.

Yes, in your head. I insted tend to think of Louis' Lunch and the Yale Robot Joke when I think about it at all.

Let’s face it,Yale is kinda famous for being rich and buttoned down.

Not really.

Princeton, maybe.

The docket for Tobinick's failed trademark action is finally up. Only the decision itself (doc. 271) was downloaded.

I expect PGP is referring to at least one of Yale's better known alumni in particular.

And yes, I do mean William Howard Taft. Or possibly Bill Clinton.