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CAUSE NO. D-1-GN-12-000003 DR. ANDREW J. WAKEFIELD, MB., BS. v.

THE BRITISH MEDICAL JOURNAL, a d/b/a of BMJ PUBLISHING GROUP LTD, also d/b/a BMJ GROUP, and BMJ, BRIAN DEER, individually, and DR. FIONA GODLEE, individually.

§ § § § § § § § § § §

Filed 12 April 12 A7:31 Amalia Rodriguez-Mendoza District Clerk Travis District D-1-GN-12-000003

IN THE DISTRICT COURT

FOR THE 250th JUDICIAL DISTRICT

TRAVIS COUNTY, TEXAS

PLAINTIFF’S RESPONSE TO DEFENDANTS’ SPECIAL APPEARANCES Plaintiff Dr. Andrew Wakefield hereby files this response to Defendants’ special appearances challenging personal jurisdiction under Rule 120a of the Texas Rules of Civil Procedure and will show as follows: SUMMARY OF QUESTIONS BEFORE THE COURT 1. Have Defendants waived their special appearances and subjected themselves to the jurisdiction of the Court? Plaintiff believes the answer is clearly: Yes

2. Plaintiff is objecting to portions of the Declarations submitted by Defendants in support of their special appearances. Should those objections be granted and should portions of said Declarations be stricken? Plaintiff believes the answer is clearly: Yes

3. Based upon the evidence before the Court, has jurisdiction been established? Plaintiff believes the answer is clearly: Yes 1


4. In the event the Court does not find that jurisdiction is established based upon the evidence provided to date, is Plaintiff entitled to a continuance of this hearing in order to conduct discovery related to the issue of jurisdiction consistent with Plaintiff’s Motion for Continuance and related affidavits and as allowed by Tex. R. Civ. Pro. 120a(3)? Plaintiff believes the answer is clearly: Yes

I. DEFENDANTS HAVE WAIVED THEIR SPECIAL APPEARANCE Rule 120a requires that “[a]ny motion to challenge the jurisdiction provided for herein shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard.” TEX. R. CIV. P. 120a.2. Failure to comply with Rule 120a results in waiver of the special appearance. Id. A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (quoting Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 324, 327 (Tex. App. – El Paso 1994, writ denied). Thus, a party enters a general appearance and waives a special appearance “when it: (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.” Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). By logical extension, certain actions by a defendant challenging personal jurisdiction have not been held to be a waiver of a special appearance where the actions were limited to the

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matters necessitated by the defendant’s special appearance. For example, engaging in discovery related to personal jurisdiction, and filing motions to quash or seeking protective orders for such discovery, does not constitute a general appearance. See Dawson-Austin. Similarly, filing a Rule 11 agreement to extend an answer deadline to file a special appearance will not thereby enter a general appearance. Exito Electronics Co. v. Trejo, 142 S.W.3d 302 (Tex. 2004). By contrast, any time a party makes a request of a court for affirmative relief that is not in furtherance of the party’s special appearance, it thereby makes a general appearance. Numerous courts have found that a party who files instruments requesting relief inconsistent with the party’s challenge to the court’s jurisdiction thereby has made a general appearance. For example, in SBG Dev. Servs., L.P. v. NuRock Group, Inc., No. 02-11-0008-CV, 2011 Tex. App. LEXIS 8813, 11-12 (Tex. App. – Fort Worth Nov. 3, 2011, no pet.)(mem. op.), the court of appeals held that a party entered a general appearance by the filing of a motion to strike pleadings that was unrelated to the defendant’s jurisdictional challenge, and additionally waived it by violating the “due order of hearing” rule by having the motion to strike heard before the special appearance was resolved. Id. Significantly, the filing of the motion to strike, by itself, constituted waiver independent of the hearing: Because Hoskins, via the motion to strike, specifically requested and prayed for affirmative relief from the trial court inconsistent with his position that the trial court possessed no personal jurisdiction over him—that being an order or judgment dismissing all of SBG's claims against him for reasons other than the trial court's purported lack of jurisdiction over him—he waived his special appearance. Id. Similarly, in Branckaert v. Otou, 01-08-00637-CV, 2011 Tex. App. LEXIS 6286, 6-7 (Tex. App. – Houston [1st Dist.] Aug. 11, 2011, no pet.) (mem. op.), explaining “the test for a general appearance is whether a party requests affirmative relief inconsistent with an assertion 3


that the trial court lacks jurisdiction” before concluding that a defendant had waived its special appearance by filing a motion for continuance of the trial date in order for the defendant to prepare for a paternity dispute, the court concluded: The issues raised in Branckaert's motion have nothing to do with the court's jurisdiction, but indicate Branckaert's intention to defend the case of [sic] the merits by obtaining DNA testing to disprove paternity. Branckaert's motion for continuance, with its request for time to perform DNA testing, “recognizes that an action is properly pending” and “seeks affirmative action from the court.” [quoting Dawson-Austin, supra.]. Thus, he has entered a general appearance in the case and waived his previously filed special appearance. Id. (citations omitted). The appearance need not be in any specific, formal instrument. In Triad Realty Servs., LTD v. Green, No. 05-07-01631-CV, 2008 Tex. App. LEXIS 8192 (Tex. App. – Dallas 2008, no pet.)(mem. op.), the court found a non-resident defendant had waived a special appearance by filing a letter with the trial court that effectively constituted an answer, and therefore a general appearance. Id.; Gales v. Denis, 260 S.W.3d 22, 30 (Tex. App. – Houston [1st Dist.] 2008, no pet.) (same). Though the court in Toyo Seat Co. v. Garcia, No. 04-07-00427-CV, 2008 Tex. App. LEXIS 428 (Tex. App. – San Antonio 2008, no pet.)(mem. op.), determined there was no waiver, the court’s reasoning is instructive as to how a court should view whether a party has made an affirmative claim for relief thereby entering a general appearance. In Toyo Seat, the defendant, a vehicle seat manufacturer, filed a special appearance and a pleading styled a “cross-claim” against its co-defendants, Ford and Mazda, seeking “indemnification for costs incurred in defending this suit.” Id. The court of appeals acknowledged that a defendant who files its own claim for affirmative relief enters a general appearance, but that Toyo Seat had not done so even though it was styled a “cross-claim” because the pleading contained “no averments of fact upon which affirmative relief could be granted.” Id. at *5. It was because this was not a claim for 4


affirmative relief, but merely a pleading that “resists the plaintiff’s right to recover,” that it was not a general appearance. Id. This is precisely how the Texas Supreme Court applied the analysis in Exito. Going out of its way to disagree with the court of appeals that the Dawson-Austin framework for requesting affirmative relief was inapplicable, the Exito court explained that the key aspect missing from Exito’s Rule 11 agreement was the absence of any request for affirmative relief from the court: The court of appeals found Dawson-Austin inapplicable because in that case, the challenged motion was clearly filed after the special appearance and therefore the “due-order-of-pleading” requirement was not at issue. But the Court in DawsonAustin discussed the framework for what constitutes a general appearance, without tying it to a particular requirement. In addition, the primary case we cited in Dawson-Austin in support of our general appearance analysis did involve the “due-order-of-pleading” requirement . . . Applying the Dawson-Austin framework to the instant case, we conclude that Exito did not waive its special appearance by filing the Rule 11 Agreement. The agreement is a typical letter agreement between the parties that did not address the trial court and in which Trejo's attorney, by signing the letter, confirmed in writing that he would grant Exito an extension of time to file a responsive pleading . . . while filing a Rule 11 Agreement with the trial court is a requirement for enforcement, it is not in and of itself a request for enforcement or any other affirmative action by the trial court. Id. at 305-06 (emphases added, footnotes omitted); see also Dawson-Austin, 968 S.W.2d at 323 (observing that test for a general appearance is whether motion requested affirmative relief inconsistent with assertion that district court lacked jurisdiction); Klingenschmitt v. Weinstein, 342 S.W.3d 131 (Tex. App. – Dallas 2011, no pet.) (“The test for a general appearance is whether a party requests affirmative relief inconsistent with an assertion that the trial court lacks jurisdiction.”); Arnold v. Price, No. 02-10-00054-CV, 2011 Tex. App. LEXIS 10067 (Tex. App. – Fort Worth Dec. 22, 2011, no pet.) (to be published)(same)(“. . . the requests for affirmative relief in her counter-petition for divorce are inconsistent with her contention that the trial court lacked personal jurisdiction.”). 5


Thus, the “due order of pleadings” requirements operates to waive a special appearance where a party makes a request for enforcement or any other action that is not specifically limited to its jurisdictional challenge, and addresses that request to the trial court. As the analytical framework in Exito and Toyo Seat cases demonstrates, whether before or after filing a special appearance, any request for affirmative relief not limited to the jurisdictional challenge or resisting a plaintiff’s claims for relief constitutes a general appearance, because it is inconsistent with the party’s claim that the court lacks jurisdiction. In those two cases, the defendants made no such requests, and therefore did not make general appearances. See also Exchequer Fin. Group, Inc. v. Stratum Dev., Inc., 239 S.W.3d 899, 906 (Tex. App. – Dallas 2007, no pet.)(“The motion, requesting dismissal on the ground appellant was not legally authorized to pursue its case, did not request affirmative relief that is inconsistent with appellee's assertion that the trial court lacked jurisdiction.”). This case, by contrast, clearly involves affirmative requests for relief. Importantly, Texas applies a disjunctive test. A party can make a general appearance either by going forward with a hearing on a matter unrelated to the special appearance before the special appearance is heard or just by the act of pleading for a type of affirmative relief inconsistent with the party’s claim that the trial court lacks jurisdiction. This disjunctive rule for waiving a special appearance is inherent in the analytical framework of Dawson-Austin, Exito, and Toyo Tire, and was expressly described in SBG: “A party enters a general appearance and waives a special appearance ‘when it (1) invokes the judgment of the court on any question other than the court's jurisdiction, (2) recognizes by its acts that an action is properly pending, or (3) seeks affirmative action from the court.’[quoting Exito] . . . a party also enters a general appearance when it violates rule 120a's ‘due-order-of-hearing’ requirement. SBG, supra. at *10-

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11 (emphasis added, citations omitted); see also Anderson v. Bechtle, No. 01-00-00593-CV, 2001 Tex. App. LEXIS 5549 (Tex. App. – Houston [1st Dist.] 2001, no pet.)(mem. op.)(“All requests for affirmative relief do not waive a special appearance; rather, the special appearance itself is such a request. Waiver occurs only if the relief requested is inconsistent with the defendant's assertion that the district court lacked jurisdiction.”). Moreover, any request made of a court that goes beyond what it necessary to challenge jurisdiction effectively recognizes the jurisdiction of the court and waives a special appearance. Even the slightest invocations of jurisdiction will suffice - as demonstrated by Seals v. Upper Trinity Reg'l Water Dist., 145 S.W.3d 291, 298-299 (Tex. App. – Fort Worth 2004, pet. dism’d). The defendant in Seals had properly filed a special appearance, and its counsel showed up to a status conference only at the insistence of the trial judge. Id. The case shows that even the smallest request constitutes an acknowledgement of the trial court’s jurisdiction: Although Appellee attempted to avoid invoking the trial court's jurisdiction by stating on the record that it was, “here in response to the call of the Court” and “not asking for any affirmative relief,” the record reveals that Appellee's participation at the hearing constituted a general appearance. Appellee stated that it had no objection to Appellant's unsworn testimony, reserved the right to place Appellant under oath, and asked the trial court to determine the scope of the pleadings in this case. Appellee's actions rose above the level of merely acting as a silent figurehead in the courtroom and represent affirmative action which impliedly recognized the trial court's jurisdiction over the parties and the pendency of the proceeding. Id. Beistel v. Allen, No. 01-06-00246-CV, 2007 Tex. App. LEXIS 4307 (Tex. App. – Houston [1st Dist.] 2007, no pet.)(mem. op.), is equally instructive. In Beistel counsel for a defendant who had not yet made a formal appearance, appeared at a termination of parental rights hearing where, during the course of the hearing, he objected to a spreadsheet being offered into evidence. The court of appeals found this simple objection to evidence constituted a general appearance:

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Beistel's counsel's objection to the admission of Allen's spreadsheet invoked the judgment of the court on a question other than the court's jurisdiction, recognized that the action was properly pending in Texas, and sought affirmative action from the court . . . While Texas courts have held that a party who merely observes a proceeding without participating does not make a general appearance, Beistel's counsel participated when she objected to the admission of Allen's spreadsheet. . . Counsel's participation in the hearing was inconsistent with the assertion in Beistel's special appearance that the trial court lacked jurisdiction over her. Id. at *7-8. As detailed below, the pleadings filed by Defendants in this case, by contrast, clearly detail claims for specific affirmative relief completely inconsistent with Defendants’ assertion that this Court lacks jurisdiction. Therefore, Defendants have made a general appearance, and their request for a special appearance has been waived. 1. Defendants Waived Their Special Appearance By Requesting Affirmative Relief Through Their Motion to Dismiss. There is little doubt that Defendants have invoked this Court’s jurisdiction. Not only have they specifically prayed for their own affirmative legal relief beyond merely resisting Dr. Wakefield’s claims against them by filing their motion to dismiss under CPRC Chapter 27, but they have requested that this case be assigned to a single judge both for the special appearance and the hearing set on their motion to dismiss, without conditioning that request on the resolution of their jurisdictional challenge. Indeed, the very nature of that request makes it impossible to condition it on their special appearances, because the whole purpose of requesting the same judge for their Chapter 27 motion is to set up the affirmative relief they are requesting via Chapter 27 – affirmative relief from a Court they claim lacks jurisdiction. The two actions – in filing an anti-SLAPP motion and requesting a special court assignment for that motion before the special appearances are heard – taken either separately or together, constitute a general appearance.

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Chapter 27 of the Texas Civil Practice & Remedies Code specifically creates a cause of action for damages and costs for a party claiming to be aggrieved by the filing of a lawsuit in contravention of that party’s exercise of certain constitutional rights. See TEX. CIV. PRAC. & REM. CODE §27.001, et. seq. The statutory claim allows a party to seek a judgment for court costs, attorneys’ fees and other expenses, as well as punitive damages. See TEX. CIV. PRAC. & REM. CODE §27.009. All of these remedies are sought in Defendants’ Chapter 27 motion. The Defendants’ filed their special appearances on or about February 29, 2012. The Defendants followed with their motion seeking affirmative relief from the Court, filing it on or about March 9, 2012. In it, Defendants assert the statutory cause of action for fees, costs and punitive damages under Chapter 27. See Exhibit A, Defendants’ Anti-SLAPP Motion to Dismiss on file with the Court. The special appearances were then unilaterally set by Defendants for hearing on April 12, 2012, and well before the hearing on their special appearances, Defendants also set a hearing on their anti-SLAPP motion for April 26, 2012. Defendants have already obtained significant legal advantages from asserting their Chapter 27, claims for affirmative relief – even in advance of the special appearance hearing. To begin with, the mere filing of a Chapter 27 motion to dismiss automatically suspends all discovery in the action. TEX. CIV. PRAC. & REM. CODE §27.003(c). Indeed, in their briefing resisting Dr. Wakefield's request for additional discovery to respond to the issues raised in the special appearance, Defendants invoked the benefits of their filing of a Chapter 27 Anti-SLAPP Motion to Dismiss (even attaching a copy of said motion to their Defendants' Opposition to Motion for Continuance), essentially using their Chapter 27 motion to obtain a legal advantage. See Exhibit B Defendants’ Opposition to Motion for Continuance.

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Moreover, Chapter 27 places a burden on the non-moving party to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE §27.005(c). By unilaterally setting their Chapter 27 motion just two weeks after the hearing on their special appearances, Defendants are using their claim for affirmative relief and the burdens imposed by it, to force additional burdens on Dr. Wakefield to distract him from preparing fully for the issues raised in the special appearances. Indeed, the hearing on the Chapter 27 motion has been set during the twenty (20) day period during which an interlocutory appeal would have to be docketed if the Court were to deny the special appearances on or about April 12, the date they are currently set for hearing. See TEX. CIV. PRAC. & REM. CODE §52.014(a)(7) (allowing interlocutory appeal from the grant or denial of a Rule 120a special appearance); TEX. R. APP. P. 26.1(b)(requiring notice of appeal in accelerated interlocutory appeals to be filed within 20 days of the date of the order from which appeal is sought). The incongruous result is that the Defendants could hedge their bets and have both matters heard, including a request for what is clearly affirmative relief, and decide only after the hearing on their Chapter 27 motion whether to accept the affirmative relief they claim this Court has no jurisdiction to afford them, or appeal the denial of their special appearance. This pleading was filed to potentially create the bizarre result that Defendants could have in their hands a judgment awarding them damages under Chapter 27 – at the same time these Defendants were filing an interlocutory appeal to contest this Court’s jurisdiction to enter any judgment. This sort of gamesmanship is clearly not the purpose of a special appearance to contest a court’s personal jurisdiction. If a party wishes to challenge a trial court’s jurisdiction, it must do so without simultaneously claiming the advantages of the forum state’s law for its own affirmative claims. To do as the Defendants have here – contest jurisdiction and simultaneously

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seek an award from the same court on its request for affirmative relief – constitutes a general appearance. Moreover, to the extent that Defendants should suggest that they had no choice but to file their Chapter 27 motion, that claim is belied by the Statute. While Chapter 27 requires that the motion to dismiss be filed within sixty (60) days after the service of process of the legal action, the legislature expressly allowed the trial court to extend the deadline to file a Chapter 27 motion on a showing of “good cause.” TEX. CIV. PRAC. & REM. CODE §27.003(b). Defendants easily could have resolved their special appearances and then requested leave to extend the deadline for filing their Chapter 27 motion after they had resolved their jurisdictional challenges. However, Defendants want to have their cake and eat it too. They want to simultaneously claim this Court both does and does not have jurisdiction over them, and then choose the result of whichever of the two hearings gives them the better relief. In the meantime, they have sought and obtained the advantages of the discovery stay and the burden placed on Dr. Wakefield to respond solely by virtue of their filing of a claim for affirmative relief, in order to get a strategic advantage with regard to their special appearances. Having invoked the judgment of the court on a question other than the court's jurisdiction, recognized by their acts that an action is properly pending, and sought affirmative action from the court, Defendants have made a general appearance and their special appearances are waived. See Exito, supra. 2. Defendants Further Waived Their Special Appearances By Requesting A Complex Case Assignment for Both Their Special Appearances and Chapter 27 Motion. Defendants took further action beyond the advantages they have obtained by filing their Chapter 27 motion, which also constitutes a general appearance. On or about March 23, 2012,

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Defendants filed with the Hon. Lora J. Livingston, Presiding Travis County Local Administrative Judge, a motion (in the form of a letter) requesting that their Chapter 27 motion be specially assigned to an appointed judge under Travis County Local Rule 2.6. See Exhibit C, (also attached as Exhibit 1 to Supplemental Affidavit of William Parrish). This motion is not conditioned upon or subject to Defendants’ special appearances. Id. Nor could it be. The whole point of Defendants LR 2.6 motion is to get a special assignment specifically for the purpose of having their Chapter 27 motion heard by the same judge as their special appearances. The motion details the relief sought in the Chapter 27 motion and presumes that the presiding judge will issue an order of assignment under LR 2.6 to benefit Defendants specifically in the hearing on their Chapter 27 motion.

The LR 2.6 motion necessarily

acknowledges that that case is properly pending before this Court as it asks relief that is specifically in furtherance of Defendants’ own claims for affirmative relief. Defendants’ act of filing their LR 2.6 motion is more substantial than the limited participation at hearings that constituted general appearances in both Seals and Beistel, supra. Indeed, far from conditioning this request on first having their special appearances heard, Defendants expressly requested that their LR 2.6 motion be granted and acted upon prior to March 29, 2012, which is two weeks before the hearing they set on their special appearances. Id. This request serves no function in furtherance of their special appearances. It is solely for the purpose of having the latter hearing before the same judge, and presumes that this court has jurisdiction to enter orders relevant to their Chapter 27 motion, in stark contradiction of their special appearances. Defendants have invoked the Court’s jurisdiction on a matter other than their special appearances, and requested relief before having their jurisdictional challenges heard. In doing so

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they have violated both the “due order of pleadings” and the “due order of hearing” rules, and thereby made general appearances. The Court should summarily deny the special appearances because the Defendants have made general appearances and thereby waived their challenges to this Court’s personal jurisdiction over them. The Court therefore need not consider the special appearances on their merit. However, even if the Court were to find the special appearances were not waived, as detailed below, the proper course of action would be to either continue the hearing on the special appearances to give Dr. Wakefield a fair and reasonable opportunity to pursue jurisdictional discovery, or, based on the record as it is now, simply deny the special appearances on their merits, since the Defendants have all purposefully availed themselves of the privilege of conducting business in Texas and otherwise satisfy the minimum contacts requirements of Due Process to support this Court’s exercise of personal jurisdiction. II. OBJECTIONS TO DEFENDANTS’ DECLARATIONS FILED IN SUPPORT OF SPECIAL APPEARANCES 1. Objections to Deer Declaration Plaintiff objects to the Declaration of Brian Deer submitted in support of his special appearance and moves that it be stricken. First, Plaintiff objects on the grounds that Plaintiff has not been afforded an opportunity to cross-examine the witness on the subject of his declaration testimony. The Declaration contains numerous ambiguities, which warrant cross-examination. Plaintiff objects to the consideration of this declaration without having been afforded a reasonable opportunity to conduct jurisdictional discovery, to depose or cross-examine the witness, or otherwise test the veracity, truthfulness or accuracy of the statements contained therein.

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In the event the Court allows consideration of said Declarations without crossexamination, Plaintiff further objects to specific portions of said Declaration. Plaintiff objects to paragraph 8 of the declaration in its entirety and moves that it be stricken because the statements contained therein are totally irrelevant to the issue of jurisdiction and are submitted solely for the purpose of creating prejudice against Plaintiff. Allowing such highly prejudicial statements without allowing a right of cross-examination is clearly unfair and prejudicial to Plaintiff. Plaintiff objects to that portion of paragraph 4 of the Deer Declaration which characterizes his contacts with the state of Texas as "extremely limited" on the grounds that such statement is conclusory. Conclusory statements are not competent evidence. See Coastal Trans. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004); Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377, 380-81 (Tex. 1956). Plaintiff objects to that portion of paragraph 6 of the Deer Declaration wherein Deer characterizes his contacts with the State of Texas for development of the defamatory publications at issue as "extremely limited." Plaintiff does not object to Defendant Deer’s admission that he made contacts with the State of Texas for development of the article at issue, but does object to the characterization on the grounds that it is conclusory and ambiguous and Plaintiff has been denied the opportunity to cross-examine the witness or take discovery regarding the matters stated. Plaintiff objects to paragraph 3 of the Deer Declaration on the grounds that it is totally irrelevant to the issues before the court with respect to the question of jurisdiction, and Plaintiff has not had an opportunity to cross examine the declarants on the matters referred to.

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Plaintiff objects to paragraph 7 of the Deer Declaration on the grounds that it is conclusory and Plaintiff has not had an opportunity to cross examine the declarant on the matters stated. 2. Objections to Godlee Declaration in Support of BMJ Plaintiff objects to the Amended Declaration of Fiona Godlee in Support of Special Appearance of BMJ Publishing Group Ltd. (“the Declaration�) (as well as the earlier version of said Declaration in the event that it is not superseded by the Amended Declaration) in its entirety, and moves that they be stricken. First, Plaintiff objects on the grounds that Plaintiff has not been afforded an opportunity to cross-examine the witness on the subject of her declaration testimony. The Declaration contains numerous ambiguities which warrant cross-examination. Plaintiff objects to the consideration of this declaration without having been afforded a reasonable opportunity to conduct jurisdictional discovery, to depose or cross-examine the witness, or otherwise test the veracity, truthfulness or accuracy of the statements contained therein. Plaintiff objects to paragraph 6 of said Declaration on the grounds that it is conclusory and lacks any foundation. No evidence is provided to support how the declarant came up with the conclusions stated in the second sentence and subparagraphs (a)-(d). Plaintiff objects to the last sentence of paragraph 7 of said Declaration in which Defendant Godlee claims not to believe that she knew Plaintiff was a Texas resident at the time of the publications on the grounds that Plaintiff has not had an opportunity to cross examine the witness on that point and the overwhelming evidence is that the British Medical Journal had published numerous articles referencing the fact that Plaintiff Wakefield lived and worked in Texas. See Affidavit of John Saba. Even if Defendant Godlee's statement were credible, which it

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plainly is not in light of the circumstances, it would be irrelevant to the extent that it masks the fact that others at BMJ knew plaintiff Wakefield was a Texas resident, and BMJ staff reporters published articles indicating same. See Saba Affidavit. Plaintiff objects to the portion of the sentence in which Defendant Godlee claims that she is not aware of anyone else at BMJ Publishing Group who knew that Plaintiff was a Texas resident on the grounds that it is conclusory, irrelevant, not credible, and lacks foundation. There is no evidence that Defendant Godlee made any effort to determine whether or not others at BMJ Publishing Group knew Plaintiff was a Texas resident, and the evidence indicates that, if she had merely asked or even read articles in the British Medical Journal of which she is the editor, she would have easily discovered others with such knowledge. See Id. Plaintiff objects to paragraph 5 of said Declaration on the grounds that it is conclusory and lacks proper foundation. Plaintiff objects to all of paragraph 5(h) of said Declaration other than the statement that says: "for example, in 2011, there were only 63 Texas subscribers to the BMJ." The remainder of that paragraph is irrelevant and conclusory and ambiguous. The fact that Defendant BMJ distributes its journals elsewhere in the world is not relevant to the question of whether or not BMJ has subscribers in Texas. Likewise, the fact that the Texas subscribers may constitute a small percentage of the overall number of subscribers is not relevant. Additionally, the statements fail to clarify whether, when one considers the number of institutional and consortia subscribers included in the 63 Texas subscribers and the number of readers those subscriptions allow, the same percentages would apply. Plaintiff objects to paragraph 5(i) of the original Declaration other than to the extent it admits that Defendant BMJ operates a website which had thousands of visitors from Texas. The

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actual percentage of Texas visitors compared to visitors from other states or countries is irrelevant. Plaintiff objects to the Declaration on the grounds that it is ambiguous and vague and Plaintiff has not been afforded the opportunity to cross-examine the Declarant about the statements. For example, it fails to identify the number of Texas residents to whom the publications at issue were delivered pursuant to institutional subscriptions. 3. Objections to Godlee Declaration Plaintiff objects to the Declaration of Fiona Godlee in its entirety and moves that it be stricken. Plaintiff objects on the ground that Plaintiff has not been afforded opportunity to cross examine the witness on the subject of said declaration testimony. Plaintiff objects to the last sentence of paragraph 7 of said Declaration on the grounds that it is clearly unreliable speculation and Defendant Godlee fails to state what effort, if any, she made to determine whether she knew Plaintiff was a Texas resident at the time of the publications at issue. Had Defendant Godlee merely read the British Medical Journal, of which she is the editor, she would have seen multiple publications which refer to Plaintiff living and working in Texas. See Saba Affidavit. Her statement lacks credibility and Plaintiff has not had an opportunity to cross examine her regarding same. See e.g. Gossett, supra. III. JURISDICTION OVER THE DEFENDANTS IS PROPER IN TEXAS A Texas court may assert personal jurisdiction over a nonresident defendant if the requirements of both the Due Process Clause of the Fourteenth Amendment and Texas’s longarm statute are satisfied. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413 (1984); Giacomini v. Lamping, 42 S.W.3d 265, 271 (Tex. App. – Corpus Christi 2001, no pet.);

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Frank A. Smith Sales, Inc. v. Atlantic Aero, Inc., 31 S.W.3d 742, 745 (Tex. App. – Corpus Christi 2000, no pet.). The Texas long-arm statute allows a court to exercise personal jurisdiction over a nonresident defendant who does business in Texas. TEX. CIV. PRAC. & REM. CODE ANN. §17.042. “Doing business” under the long-arm statute means any of the following: (1) contracting by mail or otherwise with a Texas resident when either party is to perform the contract in whole or in part in the State of Texas; (2) committing a tort in whole or in part in this state; (3) recruiting Texas residents, directly or through an intermediary located in this state, and (4) “other acts.” TEX. CIV. PRAC. & REM. CODE ANN. §17.042. The Texas Supreme Court has repeatedly interpreted this broad statutory language “to reach as far as the federal constitutional requirements of due process will allow.” Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002); CSR, Ltd. v. Link, 925 S.W.2d 591, 594 (Tex. 1996). Federal due-process allows a state to assert personal jurisdiction over a nonresident defendant when the nonresident defendant has achieved minimum contacts in purposefully availing itself of the privilege of conducting activities within the state, invoking the state’s benefits and protections. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 576 (Tex. 2007). Minimum contacts is established through specific jurisdiction where the nonresident defendant’s liability “arises out of or is related to” its activity with the state or through general jurisdiction when the nonresident defendant has made continuous and systematic contacts with the state. Id. at 57576. Additionally, the exercise of jurisdiction must comport with “traditional notions of fair play and substantial justice.” Id. (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

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1. Specific Jurisdiction Is Appropriate Over All Defendants Defendants’ purposeful actions, mainly directly selling publications to residents of this State, are sufficient, and in fact, the exact type of contacts that subject Defendants to the jurisdiction of this State. “Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007)(finding sufficient minimum contacts, but that those contacts were not related to plaintiff’s claims of negligence and deceptive trade practice violations). Further: “’A defendant should reasonably anticipate being haled into court where the effects of its conduct have been intentionally caused through the purposeful direction of activity toward the forum state, even if the defendant never physically enters the state.’ SITQ, E.U., Inc. v. Reata Rests., Inc., 111 S.W.3d 638, 646 (Tex.App.-Fort Worth 2003, pet. denied) (quoting Cole v. The Tobacco Inst., 47 F.Supp.2d 812, 815 (E.D.Tex.1999)).” Luxury Travel Source v. Am. Airlines, Inc., 276 S.W.3d 154, 163 (Tex. App.--Fort Worth 2008, no pet.). It is undisputed that in 2011, the year of the defamatory statements were published, Defendant BMJ had 63 subscriptions with residents of the State of Texas. See Amended Godlee BMJ Decl. at ¶5(h). This subscription base is for industry specific medical journals which contained the BMJ’s January 2011 publications underlying Plaintiff’s claims –unlike general newspapers targeted to a general population. This fact, alone, is all that is necessary for this Court to exercise specific jurisdiction over Defendants. “It is not the number of the defendant's contacts with the forum that is controlling, but it is the quality and nature of these contacts that is important.” Texas Commerce Bank Nat. Ass'n v. Interpol '80 Ltd. P'ship, 703 S.W.2d 765, 772 (Tex. App.--Corpus Christi 1985, no writ).

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Paul Gillrie Institute, Inc. v. Universal Computer Consulting, Ltd. – a 2005 court of appeals case (Houston) finding jurisdiction over a foreign defendant with approximately 50 industry trade journals subscriptions with the State of Texas – is a case directly on point to the facts and issues in this matter. 183 S.W.3d 755 (Tex.App. – Houston [1st Dist.] 2005, no pet.). In Gillrie, plaintiffs, Universal Computer Consulting, Ltd and Dealer Computer Services (“UCS”) were two affiliated companies that provided computer systems to auto dealers. Id. at 757. In 2004, one of UCS’s customers informed UCS that a foreign defendant corporation, Paul Gillrie Institute, Inc. (“PGI”), had published an article revealing an unfavorable survey with regard to UCS’s computer services in PGI’s industry trade journal. Id. at 758. UCS sued PGI and two of its employees who authored the articles for defamation in Texas. Id. PGI was a Florida corporation that did not have offices, employees or a registered agent in Texas. Id. It did not operate in Texas and it did not routinely send or recruit employees from Texas. Id. PGI’s journals were “written, compiled, and published in Florida” and PGI only sent its journals to customers through the U.S. mail. Id. Aside from a limited number of subscribers in Texas – 18 active subscribers and 32 non-paying subscribers – PGI claimed that it had no contacts with the State. Additionally, Darmento, one of the individually named defendants, claimed to never have stepped foot in Texas since 1990. Id. at 758. The other individual defendant, Gillrie, claimed to have only visited the State once a year for unrelated trade shows. Id. Defendants challenged jurisdiction. The trial court found against them and they appealed. On appeal, PGI argued it had “absolutely no connection to the State of Texas,’ the journal did not mention the State of Texas, there was no evidence to show that UCS's operations were centered in Texas, and there was no evidence that the journal was aimed at Texas or widely circulated in Texas.” Id at 755.

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However, the court of appeals, disagreed. The very fact that the defendants had distributed and sold a publication containing allegedly defamatory statements about a Texas resident to a handful of Texas residents was sufficient contacts to exercise specific jurisdiction. Id. at 762. In its minimum contacts analysis, the court reasoned that: [T]he exercise of personal jurisdiction over PGI, a non-resident, is consistent with the touchstone of purposeful availment. PGI is subject to the jurisdiction of Texas courts, not because of the unilateral activity of a third party, but because of its purposeful contacts with Texas. Additionally, PGI's mailing of the journal to Texas subscribers is not ‘random, isolated, or fortuitous.’ Finally, by directing the trade journal to Texas subscribers, PGI was seeking a ‘benefit, advantage, or profit,’ and, thus, consented to being sued in Texas for allegedly defamatory statements contained in the journal. Id at 763 (emphasis added). The fact that PGI had limited circulation (approximately 50 subscribers) was neither “surprising nor determinative” considering the fact that defendants published a specific industry journal to a limited targeted audience, as opposed to a general publication offered to a general population. Id. at 762. Despite the Gillrie court’s minimum contacts analysis, the defendants argued that jurisdiction was not justifiable because the alleged defamatory statements published in defendants’ industry trade magazine were not aimed at Texas and, in fact, had “absolutely no connection to the State of Texas.” Id. at 761. The defendants argued that the alleged defamatory article did not mention Texas, the UCS’ operations in Texas, and was neither aimed at Texas residents nor widely circulated in the State. Id. However, the court again disagreed stating that under Calder v. Jones, 465 U.S. 783 (1984), the mere fact that defendants’ alleged defamatory statements were published in the same industry journals that it sold to a handful of subscribers in Texas and that concerned a Texas plaintiff, was sufficient enough to exercise jurisdiction. Thus, even under Calder’s “effects test” the defendants were subject to jurisdiction.

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Additionally, defendants Paul Gillrie and John Darmento, employees and authors of the publication at issue and named as individual defendants, challenged jurisdiction with regard to each of them, individually. They argued that they were both Florida residents, one having never visited Texas in ten years, the other having visited only once a year for an unrelated conference. Id. at 758. Further, no evidence existed that either made any telephone calls to the State in researching or drafting the defamatory articles. Despite these facts, the Gillrie court held that the direct relationship these individuals had as employees of PGI and authors of the defamatory publications was sufficient enough to exercise jurisdiction over each individually. Citing the United States Supreme Court decision in Calder, the court held that specific jurisdiction also applied to the individuals responsible for authoring the publications: Their status as employees does not somehow insulate them from jurisdiction…In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a [forum State] resident, and jurisdiction over them is proper on that basis. Id. (quoting Calder). Because the individuals authored and edited the published articles in the PGI journal, this alone was sufficient grounds for exercising jurisdiction over them individually. Id. Considering the holding in Gillrie, this Court should have no trouble finding jurisdiction over Defendants in this matter. Evidence of the Defendant BMJ’s contacts are as follows: 1. BMJ delivered the British Medical Journal to more than 63 persons in the State of Texas: The BMJ produced data that, in 2011 alone it had 62 “subscribers” in Texas for the British Medical Journal – the same Journal that contained the January 2011 defamatory articles concerning Dr. Wakefield. See BMJ 000001&3, attached as Exhibit 1 to Saba Affidavit. (Note that according to the Declaration of Dr. Fiona Godlee, this number is actually 63 “subscribers”). See Amended Godlee BMJ Decl. at ¶5(h). This number equates 22


to approximately 5% of subscribers in the United States. Of greater significance is the fact that institutional BMJ Texas institutional subscribers allow their members (e.g. medical students, facility and staff), as well as members of the general public, free access to their subscriptions. Consequently, BMJ has understated the actual extent of its contacts with Texas residents. According to Defendant BMJ’s limited production, the BMJ had 26 Texas “institutional” subscribers, 13 Texas “Consortia subscribers,” 13 Texas “Free, Exchange & Society subscribers,” and 10 personal Texas subscribers in 2011.

See Parrish Supp.

Affidavit at ¶7 (citing Exhibit 3 or BMJ 000003). Additional BMJ documents indicate that institutional subscriptions are priced according to the number of full-time equivalent employees. Institutional subscribers range from 1 to 3,000 plus FTEs. Thus, a single BMJ institutional subscription could actually be a subscription for more than 3,000 individual members. See Id. As stated in the Affidavit of John D. Saba, members of the general public have free access to individual medical school subscriptions, such as the University of Texas Health Science Center – San Antonio. See Saba Affidavit at ¶ 6-11. This means that through its 63 Texas “subscriptions,” the BMJ delivered its defamatory publications to potentially tens of thousands of Texas residents, including medical school students, researchers, facility and staff, in addition to the general public who have guest access to such medical libraries. In reality, this multiplier effect results in thousands of additional Texas contacts over and above the 63 that Defendants admit to. 2. British Medical Journal Publishing Group, Ltd. has an additional 468 subscribers in Texas: Defendant BMJ produced additional documents stating it had 468 Texas subscribers for the “other” British Medical Journal affiliated publications in 2011. See BMJ 000002, attached as Exhibit 1 to Saba Affidavit. Again, many of these may have been to institutional

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subscribers, thereby constituting delivery and access to hundreds or thousands of Texas individuals/members. 3. The BMJ contracts and generates advertising revenue from persons and institutions in the State of Texas: According to the Defendants limited production, in the last several years, the Defendant BMJ contracted with several doctor offices and medical schools in the State of Texas and generated approximately $7,200 in advertising revenue from same. See BMJ 0000055-77 of Exhibit 1 of Saba Affidavit. 4. Individuals in Texas accessing BMJ.com: While little is known about the persons who interact with Defendant BMJ’s website, bmj.com, according to documents produced by Defendant BMJ, in January 2011 alone at least 22,993 individuals from Texas accessed the website. See BMJ 000005 of Exhibit 1 to Saba Affidavit. While, Plaintiff has not been afforded his full right to jurisdictional discovery, what Defendant BMJ did produce (in approximately 100 pages of select documents) more than sufficiently proves Defendants’ minimum contacts with this State and further evidences Defendants’ purposeful availment of the economic benefits of this State. Defendant BMJ admits that it has had employees visit Texas on business averaging once or twice a year, including a sales manager who visited Texas in 2011. See Amended Godlee Declaration at ¶ 5(f). Documents produced by Defendant BMJ show that it has a sales executive assigned to Texas. See BMJ 000079, attached as Exhibit 1 to Saba Affidavit. To argue that Defendants’ subscription base and advertisement revenue is random or fortuitous is simply incorrect. Defendants rely upon a Fifth Circuit case Fielding v. Hubert Burda Media, Inc., for the proposition that Defendants’ contacts are insufficient to meet minimum contacts or that in the

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alternative, the Calder effects test definitively proves that Defendants’ articles were not aimed at Texas or do not concern Texas. But Fielding is inapplicable. In Fielding v. Hubert Burda Media, Inc. plaintiffs, Thomas Borer and Shawne Fielding filed suit against German tabloids for publishing a series of defaming articles (in German) about the couple’s alleged extramarital affairs in Germany. Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005). However, the plaintiffs sued the German defendants in Dallas, Texas, since Fielding was originally from Texas. Despite the fact that the defendant tabloids had a very limited subscription base in Texas, the Fifth Circuit ultimately found that jurisdiction could not be exercised over the defendants for a variety of reasons, each distinguishable from this matter. It its analysis the court first weighed whether or not defendants circulation of 60-70 subscriptions in Texas was sufficient. From the outset of its analysis, the court noted that the number of subscriptions alone was not determinative per se, as “jurisdiction requires a case-bycase analysis of the purpose and the impact of the publication in question.” Id. at 425. In fact, the court recognized that other cases have correctly found specific jurisdiction in matters involving merely 13 to 18 subscriptions, citing Gordy v. The Daily News, 95 F.3d 829, 834-35 (9th Cir. 1996) – a case discussed in more detail below. Id. at 425. In the case of Fielding, the court noted that defendants were German tabloid newspapers, directing the overwhelming majority of their publications to German residents, in a publication written in the German language, concerning the activities of German residents. Id. at 427. Most notable, however, is the fact that the plaintiffs did not prove that they ever resided in Texas at anytime relevant to the suit. Id. If anything they were considered residents of Germany at the time of the defamatory articles. Id. at 423, fn.2. Thus, the court reasoned the brunt of the harm was not suffered in Texas. Id. at 427-28. The court states a defendant must

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have “some control over the jurisdiction of his alleged tort, either through his intentional availment of economic benefits,” or by directing “tortuous activities towards the forum, such that the impact of the injury on the plaintiff and subsequent exercise of jurisdiction by the courts is reasonably anticipated.” Id. at 427-28. In Fielding, this was clearly not the case. The facts at issue in this matter are readily distinguishable from those in Fielding. First, in this case Defendants have a significant circulation of annual subscribers in the State of Texas. These medical journals are not, as in Fielding, general German tabloid newspapers targeted to a general German audience. Rather, these are specific industry journals targeted to a specific medical/research audience, including several medical/research institutions in Texas (e.g. University of Texas Health Science Center San Antonio), as likened to the publications and associated targeted audience in Gillrie. Second, unlike Fielding, Plaintiff Dr. Wakefield, resided in Texas for years prior to and at the time of the Defendants’ defamatory publications and the harmful effects of the Defendants’ publications were felt in the State of Texas by Plaintiff Dr. Wakefield. See Affidavit of Andrew Wakefield at ¶ 3-6 & 10-11. Plaintiff Dr. Wakefield moved to Texas in January of 2005. See Wakefield Affidavit at ¶3. He purchased a home in May of 2006 and has maintained his permanent residence in Austin, Texas since then. Id. During that time, he has worked with non-profit agencies and founded his own businesses in this State. Id. When Defendants published their defamatory articles in the British Medical Journal, Dr. Wakefield describes the effects as he felt them in Texas as an attack on his “honesty, integrity and reputation” and exposing him in his Texas community to “public hatred, contempt and ridicule.” Id. at ¶ 10. Dr. Wakefield believed that the publications “would go to medical schools, major hospital organizations, and doctors throughout Texas.” Id. (They did. See Saba Affidavit at ¶ 6-11).

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Almost contemporaneously with Defendants’ publication of the January 2011 articles, several major Texas newspapers began publishing articles about the Defendants’ publications targeting Dr. Wakefield. Attached to Dr. Wakefield’s affidavit are a few examples of the negative articles in Texas concerning Dr. Wakefield as published by The Austin American Statesman, the Houston Chronicle and The Dallas Morning News (to name a few) in early 2011 as a result of Defendants’ publications. See Exhibits 4A-4M attached to Wakefield Affidavit. The articles appear to draw from the language of a press release that the BMJ had issued on January 6, 2011 concerning the defamatory publications at issue in this suit. See Exhibit 21 of Saba Affidavit. And, in this matter, Defendants’ knew that Plaintiff Wakefield lived in Texas as evidenced by their numerous and continuous references to Dr. Wakefield in Texas. Below is a table containing some examples of Defendants’ references to Plaintiff Wakefield in Texas: Article

Publication Quote

Citation

Clare Dyer, High Court judge criticises Andrew Wakefield for trying to silence his critics, BMJ, (Nov. 10, 2005)

“Mr Justice Eady said that he was quite satisfied that Dr Wakefield, who now works in Austin, Texas, ‘wished to extract whatever advantage he could from the existence of the proceedings while not wishing to progress them or to give the defendants an opportunity of meeting the claims.” “Dr Wakefield now lives in Austin, Texas, where he is executive director of research at Thoughtful House, a non-profit making school and clinic for autistic children. He is in the United Kingdom to attend the case.” “Dr Wakefield now lives in Austin, Texas, where he is director of Thoughtful House, a centre for children with developmental disorders, but he has returned to Britain to attend the GMC hearing.” “Dr Wakefield left the Royal Free by mutual agreement and is now executive director of Thoughtful House Center for Children in Austin, Texas, which studies developmental disorders.” “Dr Wakefield left the Royal Free Hospital by mutual agreement and is now executive director of Thoughtful House Center for Children in Austin, Texas, which studies developmental disorders.”

Exhibit 8 of Saba Affidavit at ¶ 28.

Owen Dyer, GMC hearing against Wakefield opens, BMJ, (July 17, 2007)

Owen Dyer, Wakefield tells GMC he was motivated by concern for autistic children, BMJ, (April 3, 2008) Clare Dyer, Wakefield was dishonest and irresponsible over MMR research, says GMC, BMJ (Jan. 29, 2010) Clare Dyer, Lancet retracts Wakefield’s MMR paper, BMJ (Feb. 2, 2010)

In same publication, Defendant Godlee also published an editorial about Plaintiff Wakefield

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Exhibit 9 of Saba Affidavit at ¶ 29

Exhibit 10 of Saba Affidavit at ¶ 30

Exhibit 11 of Saba Affidavit at ¶ 31

Exhibit 12 of Saba Affidavit at ¶ 32; Exhibit 13 of Saba Affidavit at ¶33.


In brief Wakefield resigns from autism centre he founded in Texas, BMJ (Feb. 25, 2010)

Brian Deer, Wakefield’s ‘autistic entercolotis’ under the microscope, BMJ (April 15, 2010) Zosia Kmietowicz, Wakefield is struck off for the ‘serious findings against him, BMJ (May 24, 2010) Brian Deer, Pathology reports solve ‘new bowel disease’ riddle, BMJ (Nov. 9, 2011)

titled Editor’s Choice MMR and other controversies “Andrew Wakefield, the British gastroenterologist who sparked a worldwide scare over the measles, mumps, and rubella vaccine, has resigned from Thoughtful House, the autism centre he founded in Austin, Texas.” “In 2005 [Dr. Wakefield] established a private clinic in Austin, Texas, focusing on researching and treating this ‘syndrome.’” “Dr Wakefield left the Royal Free by mutual agreement and became executive director of Thoughtful House Center for Children in Austin, Texas, which he founded in Texas.” “Wakefield, meanwhile, now self employed in Austin, Texas, says he had nothing to do with the findings.”

Exhibit 14 of Saba Affidavit at ¶34.

Exhibit 15 of Saba Affidavit at ¶35. Exhibit 16 of Saba Affidavit at ¶36.

Exhibit 17 of Saba Affidavit at ¶37.

Given the history of Defendants’ publications concerning Plaintiff Dr. Wakefield, Defendants knew that Plaintiff lived in Texas. Defendants also knew their publications would reach Texas and the impact would be felt by Dr. Wakefield in Texas. Defendants admit that their publications concerning Plaintiff Dr. Wakefield were not covered extensively in the United Kingdom but were covered extensively in the United States. In a series of podcasts available on the bmj.com website, Dr. Fiona Godlee, in an interview concerning the January 2011 BMJ publications, admits that none of the U.K tabloids covered the publications as much as the American Media: I think the reaction has been very interesting, the fact that the U.K. media has really not picked it up at all. I think there's a small story in the Telegraph. None of the other broadsheets or -- or tabloids have picked it up. There may be other stories that are a little more --seem more important. But I think they've had legal concerns, which I think are unjustified, and also some people have -- the BBC I gather feels that the MMR story is old news. I think this is new news. I think this is something that is important, for us to understand the study is fraudulent and really is finally discredited. Interestingly, the American media has been very interested, but as you say, they may be in a different stage in their MMR cycle, MMR scare cycle, but there's no doubt that they see this as important news and have covered it really quite extensively both in the press and in the television media.

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See Exhibit 19 to Saba Affidavit referencing Interview by Defendant Godlee on January 10, 2011. Defendant Deer is much more blatant about the effects of the coverage of the publications in the United States: I expected the editorial to get massive coverage in the United States because the -- the scare has moved there. The natural dynamic of -- of public health scares, if you like, is such that they come and they go, and I think it's been and gone in the U.K. really, but it's -- it's in a different phase in the United States. See Exhibit 20 to Saba Affidavit referencing Interview by Defendant Deer on January 14, 2011; Parrish Supp. Affidavit at ¶16. These admissions, at the very least, dispel any arguments that Defendants intended to direct their articles to a United Kingdom audience. Instead, they are further evidence that Defendants directed their publications to the United States, and to Texas, where Dr. Wakefield resided. “The fact that the interview was broadcast in other states does not diminish the fact that the statements about [plaintiff] were directed at Texas and had foreseeable effects there.” Arthur v. Stern, 2008 WL 2620116 at *13 (S.D. Tex., June 26, 2008)(finding specific jurisdiction where defendant directed defamatory statements to nationwide U.S. media, including Texas). Additionally, Defendant Deer, in particular, continued to push and direct the statements made in the January 2011 BMJ publications through news media and through his website. First, on January 6, 2011, within a matter of hours after the first of the BMJ articles concerning Dr. Wakefield was published, Deer was on CNN’s news broadcasts (which are broadcast in Texas) parroting his defamatory statements made about Dr. Wakefield in the BMJ. During Defendant Deer’s interview on CNN’s American Morning, Deer stated that: (a) Dr. Wakefield is “a determined cheat” and embarked on “a campaign of lies”; (b) Dr. Wakefield is trying to “work out a nice little living…on the expense of parents with autistic children”; and, that (c) it was not Deer individually alone stating this but rather “the editors of [the BMJ] who are behind this.” See 29


Saba Affidavit at ¶ 13. Further, Deer invited Dr. Wakefield to file a lawsuit against Deer stating that: “if it is true that Andrew Wakefield is not ‘guilty as charged,’ he has the remedy of bringing a liable action against myself, against The Sunday Times of London, against the British Medical Journal, against television networks here -- and he would be the richest man in America.” See Saba Affidavit at ¶ 14. Defendant Deer also appeared that same day on CNN’s Anderson Cooper 360 show. During that talk show Defendant Deer stated that “[Wakefield] has been fired by his employers in Austin, Texas. He has now been branded by the British Medical Journal a fraudster. They described his work as an elaborate fraud, and now I think he’s consigned to the realms of being a freelance charlatan preying on the parents of autistic children. So I think that sums up my position.” See Saba Affidavit at ¶ 19-21. Similar to the defendant in Auther, this is just further evidence that the Defendants directed their defamatory statements to Texas. Defendant Deer also uses his website, briandeer.com to further propagate his defamatory articles directly at Dr. Wakefield in Texas. According to his website, Deer states that: (a) Dr. Wakefield’s work was “a scandal of astounding proportions”; (b) Dr. Wakefield’s work “had no scientific basis whatsoever”; (c) “Wakefield had repeatedly changed, misreported and misrepresented diagnoses, histories and descriptions of the children, which made it appear that the syndrome had been discovered”; (d) Dr. Wakefield’s “study had been rigged”; and, (e) “even when [Wakefield] knew that his allegations had been proven baseless, he was found promoting them from a controversial business in Austin, Texas called Thoughtful House” and that “Wakefield was ousted by the directors of his Texas business.” See Saba Affidavit at ¶22-24. Deer also touts the impact of the BMJ publications concerning Dr. Wakefield noting that “hundreds of media reports worldwide on the BMJ revelations [] were covered by all north

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American networks and reached almost half of Americans surveyed days later in a Harris poll.” Id. He further claims that “in the United States alone nearly 145 million people kenw of Deer’s key finding.” Id. at 25. Thus, considering the great lengths that Defendants went to not only in publishing the January 2011 articles, but also in promoting the defamatory articles to Texas and the United States, and the fact that the BMJ had multiple Texas subscribers with whom they contracted for access to the journal that carried the defamatory publications, it seems clear that Defendants “purposefully availed” themselves of this jurisdiction. The Defendants’ rely on Clemens v. McNamee, 615 F.3d 374, 380 (5th Cir. 2010). That case is also distinguishable from the facts and issues at hand in this case. Clemens involved claims brought by famed baseball pitcher, Roger Clemens, who sued his personal trainer, McNamee, in Texas for disparaging statements that McNamee made about Clemens’s alleged doping. Note that Clemens sued the individual who made the statement but not the magazine or reporter who wrote an article about it. McNamee, a non-resident individual defendant, challenged Texas’s jurisdictional reach. Although the district court acknowledged that McNamee had visited Clemens in his Texas home a number of times, the court noted that the visits were incidental and “not determinative of the personal jurisdiction analysis.” Clemens v. McNamee, 608 F.Supp.2d., 811, 818 (S.D. Tex. 2009). And since there were not sufficient minimum contacts, the court then turned to the Calder to analyze whether McNamee’s statements were purposefully directed to Texas. “According to his affidavit, McNamee told Mitchell, and later Heyman [the Sports Illustrated journalist], that he injected Clemens with steroids and HGH in Clemens’s New York apartment, during the time that Clemens was pitching for the Yankees…The geographical focus of McNamee’s statements was undoubtedly New York” Id. at 820. Ultimately, the district court

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and subsequently the Fifth Circuit agreed, that personal jurisdiction could not be exercised over McNamee in Texas on the facts of the case. Clemens is distinguishable from the issues in this matter. As the district court noted, McNamee’s handful of personal visits to Clemens’s home in Texas over the course of years was not indicative of the type of contacts necessary to establish minimum contacts. With regard to the issues at hand, the BMJ’s 63 subscriptions is all that is necessary to find minimum contacts and that the Defendants purposefully availed themselves of the benefits of this State. In fact, the district court in Clemens states: “[e]ven a single, substantial act directed toward the forum can support specific jurisdiction.” Clemens, 608 F.Supp.2d., at 818 (citing Dalton v. R&W Marine, Inc., 897 F.2d 1359, 1361 (5th Cir. 1990) and further quoting Ham v. La Cienega Music Co., 4 F.3d 413, 415-16 (5th Cir. 1993) “[p]urposeful forum-directed activity-even if only a single substantial act-may permit the exercise of specific jurisdiction in an action arising from or related to such acts.” ). Second, absent sufficient contacts, Clemens attempted to find jurisdiction through McNamee’s statements claiming they were directed at plaintiff in Texas. However, Clemens was a New York Yankee at the time and McNamee’s statements were made in New York. For Defendants in this case, the statements made in the January 2011 publications were about Plaintiff Dr. Wakefield, who resided in Texas for years prior to and at the time of publication, and were directed to the BMJ’s subscribers in this State by the BMJ. In fact, plenty of cases concerning minimum contacts analysis in claims involving defamation support the legal notion that 13 to 18 contacts are enough and in fact as few as 2 are also enough to confer jurisdiction. In Gordy v. The Daily News, 95 F.3d 829 (9th Cir. 1996) – cited by the Fifth Circuit in Fielding – the plaintiff, former founder and president of Motown Records, sued a New York newspaper and its author, individually, in California for defamatory

32


statements made about plaintiff in a news article. Id. at 831. In its jurisdictional analysis, the Gordy court held that 13-18 subscriptions sent to California (comprising .0017% of the defendants subscription base) was enough to show purposeful availment: [M]ailing to regular subscribers, even though few, is not random or fortuitous and is not even necessarily isolated. Surely if some New York entity had written only 13 defamatory letters and sent them all to California, we would permit a defamed California resident to sue the entity in California. It is not clear why the distribution of 13 to 18 defamatory copies of a column loses magnitude as a contact simply because the Daily News does a lot of other things elsewhere. Id. at 833-34(emphasis added). Further, the Gordy court also noted that because the plaintiff was an individual and not a corporation, “[i]t was reasonable to expect the bulk of the harm from defamation of an individual to be felt at his domicile.” Id. at 833 (Citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780 (1984). In Miracle v. N.Y.P. Holdings, Inc., 87 F.Supp.2d 1060 (D.C. Hawaii, 2000), the court found jurisdiction over foreign newspaper defendant for merely sending two publications to the forum. In Miracle, The New York Post was sued in Hawaii by Miracle, a Hawaii resident and allegedly the daughter of actress Marilyn Monroe, for defamation as related to allegations that Miracle wrongfully collected Marilyn Monroe’s social security benefits. In the court’s analysis, the court readily determined that because defendants had sent at least two publications to the forum state and because the plaintiff was harmed in the forum, jurisdiction over the defendant was proper. Id. at 1066. 2.

Exercising Jurisdiction Over All Defendants Does Not Offend Traditional Notions of Fair Play and Substantial Justice

“Only in rare cases…will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state.” See Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991).

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“Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’” Burger King, 471 U.S. 462, 476 (1985). The other relevant factors are frequently stated as follows: (1) the burden on the nonresident defendant, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering substantive social policies. World-Wide Volkswagen, 444 U.S. 286, 292 (1980). When the defendant is a resident of another nation, the court must also consider the procedural and substantive policies of other nations whose interest are affected by the assertion of jurisdiction by a state court. Id. More specifically, when an international dispute is involved, the following factors should also be considered: (a) the unique burdens placed upon the defendant who must defend itself in a foreign legal system; and, (b) the procedural and substantive policies of other nations whose interests are affected as well as the federal government’s interest in its foreign relations policies. Id. at 229. When a defendant that has purposefully directed activity at the forum state seeks to defeat jurisdiction, the defendant “must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King, 471 U.S. at 477. Because of the availability of modern communications and transportation, distance is generally insufficient to offend notions of fair play and substantial justice, especially in a state where a defendant engages in business activities. McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957). However, given the inclusion of several of the fairness factors in the minimum contacts analysis, rare is the case where a defendant would have sufficient contacts with Texas to permit

34


exercise of personal jurisdiction, but where jurisdiction should still not be exercised over that defendant due to traditional notions of fair play and substantial justice. See Schlobohm v. Schapiro, 784 S.W.2d 355 (Tex. 1990). Thus, in evaluating the fairness factors, this Court must remain cognizant of the fact that the defendant bears the heavy burden of establishing that exercise of personal jurisdiction over it would render the litigation “so gravely difficult and inconvenient” that it is unfairly at a “severe disadvantage.” See Burger King, 471 U.S. at 477. In the Gillrie case, the defendants argued that it would be too inconvenient to have to travel to Texas to defend themselves. In response, the court ruled “there is no legal requirement that this hardship must be borne instead by the plaintiff whenever the defendant is not found in the state of the plaintiff’s residence.” Gillire, supra. at 764. Given the fact that BMJ has had little trouble, given modern technology, selling its publications in Texas for profit, that it has sales managers and sales executives in the United States, who have traveled to Texas, that it contracts with and provides services to subscribers throughout the United States and that both Goodlee and Deer have traveled to the United States for lectures and presentations, repeating the defamatory statements made in the BMJ’s publication in January 2011, there is little chance of Defendants meeting the heavy showing required to demonstrate travel to Texas for this matter would create such a burden on them as to violate traditional notions of fair play and substantial justice. Moreover, nothing about this lawsuit implicates significant matters of procedural or substantive public policy sufficient to present any risk or threat to international relations. It is simply a defamation lawsuit by a Texas resident against Defendants who knowingly and regularly sell, market and distribute their publications to Texas residents, and directed their defamatory statements toward a Texas resident. Put another way, there is nothing about the nature of this cause of action that

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particularly implicates matters of public policy or national interests of the United Kingdom over the interests of Texas in protecting its residents from the harmful effects of defamation and slander. “Texas does have an interest in providing its citizens with a forum to adjudicate claims against citizens of other states who committed tortious acts against its residents.” Gillire, at 764. IV. PLAINTIFF’S REQUEST IN THE ALTERNATIVE FOR A CONTINUANCE In the event that the Court determines that Defendants have not waived their special appearances and determines that jurisdiction has not been proven by the evidence submitted to date, Plaintiff requests that the Court grant the Motion for Continuance seeking a continuance in order to conduct discovery, which Plaintiff has previously filed in this matter. See Plaintiff’s Motion for Continuance on file with the Court. Plaintiff previously sought a ruling on said motion from the duty judge. Defendants opposed a continuance and took the position that Plaintiff's request was premature and that the motion should be heard at this special appearance hearing on April 12, 2012. In their opposition pleading, Defendants stated: "This inquiry is best suited to the 45-minute hearing reserved for April 12, and Plaintiff will not suffer any prejudice in waiting until then to argue for more time and discovery." See Exhibit B at p. 1. Defendants further stated: "If Plaintiff believes there is additional evidence that is truly ‘essential to justify his opposition’ to Defendants' special appearances, then he may so argue that the April 12 hearing, as Rule 120a contemplates. In deciding any such request for additional time and discovery, the Court will consider the evidence and case law or relating to the specific jurisdictional facts at issue here…" Id. at p. 2. They further stated: "… Defendants respectfully request that Plaintiff's motion be denied without prejudice, so that the Court may decide the issue based on full consideration of the evidence and case law at the April 12 hearing. In the unlikely event that Plaintiff can identify any 36


undiscovered facts that are truly ‘essential to his opposition,’ the Court may grant an appropriate continuance and allow appropriate discovery." Id. at pp. 4–5. Defendants concluded their Opposition by stating: "In any event, nothing prohibits Plaintiff from asking for more discovery at the special appearance hearing in just two weeks, where the Court will be in a better position to evaluate how "essential" Plaintiff's request to discovery is. Accordingly, Defendants respectfully request that the Court deny Plaintiff's motion for a continuance without prejudice to Plaintiff's ability to ask the Court for that relief in connection with the April 12, 2012 hearing on Defendants' special appearances." Id. at p.16. The Hon. Judge Rhonda Hurley denied Plaintiff’s motion without prejudice to Plaintiff's ability to re-urge same and request additional jurisdictional discovery in connection with this hearing, if necessary. For the reasons set forth in Plaintiff's Motion for Continuance, and the affidavits submitted in connection therewith, including but not limited to the Supplemental Affidavit of William Parrish, Plaintiff re-urges its Motion to request that Plaintiff be granted a continuance of the hearing on Defendants Special Appearances in order to conduct appropriate jurisdictional discovery. V. PRAYER Plaintiff hereby respectfully prays that the Court enter an order denying Defendants’ special appearances. In the alternative, Plaintiff respectfully prays that the Court continue the hearing on the special appearances, grant Plaintiff’s motion for continuance, and reset the hearing on the special appearances after sufficient time for the parties to conduct reasonable jurisdictional discovery.

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William M. Parrish State Bar No. 15540325 bparrish@dpelaw.com Jay D. Ellwanger State Bar No. 24036522 John D. Saba Jr. State Bar No. 24037415 DINOVO PRICE ELLWANGER & HARDY LLP 7000 North MoPac Expressway, Suite 350 Austin, Texas 78731 (512) 539-2626 Telephone (512) 539-2627 Facsimile

Brendan K. McBride The McBride Law Firm of counsel to Gravely & Pearson, LLP 425 Soledad, Suite 620 San Antonio, Texas 78205 210.227.1200 210.881.6752 (fax) bmcbride@gplawfirm.com ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Plaintiff’s Response to Defendants’ Special Appearances has been served on counsel of record as set forth below in accordance with the Texas Rules of Civil Procedure on this 12th day of April, 2012.

Mr. Tom Leatherbury Mr. Marc A. Fuller Vincent & Elkins LLP Trammel Crow Center 2001 Ross Ave., Ste. 3700 38


Dallas, TX 75201-2975 (214) 220-7700 (214) 220-7716 facsimile tleatherbury@velaw.com mfuller@velaw.com David P. Blanke Lisa Bowlin Hobbs Vinson & Elkins LLP 2801 Via Fortuna, Suite 100 Austin, TX 78746 (512) 542-8622 (512) 236-3314 (fax) dblanke@velaw.com lhobbs@velaw.com

John D. Saba

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4 12 12 Ps Response to Defs Spec Appearances (ED227J016824790)  
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