Gavel-court-legal-law-lawsuit

Last year Edward Tobinick sued the Society for Science-Based Medicine, SGU Productions (the producers of the Skeptics’ Guide to the Universe podcast), Yale University, and me personally for libel and (of all things) false advertising. I am frequently asked how the suit is going so here is an update.

Background

The lawsuit involved an article I wrote on Science-Based Medicine on May 8, 2013. Dr. Tobinick’s practice involves giving perispinal etanercept to treat sciatica, Alzheimer’s disease, traumatic brain injury (TBI), and chronic deficits following stroke. He claims that he can reverse the symptoms of these various conditions within minutes. He uses highly emotional videos and anecdotal evidence to promote his treatments.

Further, he has medical use patents on these and other treatments and charges other physicians a substantial fee for training and a royalty simply for treating patients with his methods. Medical use patents are considered by the AMA and other medical organizations to be unethical and are banned in 80 countries (but not the US).

My original article was highly critical of Tobinick’s practice. I emphasized the fact that he is making dramatic clinical claims, which he himself characterizes as revolutionary, without ever having conducted a single double-blind placebo controlled trial. In my opinion none of these uses of etanercept are supported by adequate clinical evidence. In fact, there are no published double-blind placebo-controlled trials of etanercept for post-stroke symptoms or TBI. There are some studies for sciatica, but a 2013 systematic review concluded:

There was insufficient evidence to recommend these agents when treating sciatica, but sufficient evidence to suggest that larger RCTs are needed.

There is a single pilot study of etanercept for Alzheimer’s – a phase II trial with 41 subjects total. That’s it – this is hardly sufficient evidence on which to revolutionize the treatment of multiple complex neurological disorders. In fact, during the hearing, his own expert testified that we are “not there yet.”

Libel suits in the US are highly problematic, in my opinion, as there is a strong potential for them to be used as a strategic lawsuit against public participation (SLAPP). Even if a case essentially has no merits, it takes tens of thousands of dollars to defend and can be a tactic for silencing critics based on the burden of mounting a defense. In other words, unless you have lots of disposable cash or can raise it quickly, someone with money can use the legal process to chill your freedom of speech (more on this below).

Updates

Here are some updates in the case: Yale University was quickly dropped from the case, which is unsurprising as they had no connection to the article at all. SGU Productions was also dropped from the case.

A few weeks ago the Society for SBM won a summary judgment motion, and so they are therefore out of the case also. In the summary judgment the judge ruled that the original article was not commercial speech, as alleged by Dr. Tobinick. This was good news because it not only let SfSBM out of the suit, it boded well for the same issue in my case.

For background, Tobinick is alleging that my article here on SBM was “commercial speech.” The claim is absurd on its face, and so I am not surprised that the judge is not buying it. However, whether or not the claim makes sense there needs to be a specific legal basis for ruling on the claim. The judge, in the ruling for the SfSBM summary judgment, laid out the three criteria by which speech constitutes commercial speech, and the article did not meet any of those criteria. However, because the motion was brought by SfSBM the judgment on that motion applied only to them, not to me.

Just yesterday there was another update on the case. We completed a two-day hearing on Tobinick’s motion for injunctive relief. Essentially this is a motion asking the judge to order me to take down several articles and an SGU podcast in which I discuss Tobinick and the case (I’m taking bets on whether he is going to add this one to the list), pending the final outcome of the case.

Yesterday the hearing concluded and the judge ruled from the bench, denying the motion. More importantly, the judge specifically rejected Tobinick’s commercial speech claim (among other things).

This is all very good news. However, the case will still go forward (unless Tobinick comes to his senses). It will likely take many more months for the case to play itself out.

Unfortunately, even though it seems that Tobinick’s case has no merit, the overall cost of defending my right to express my opinion on the pages of SBM has already been substantial and will continue to grow.

Libel reform

This experience has certainly been an eye-opener. One reaction, however, is that my attorney, the SGU, and myself, are beginning a serious effort for libel reform. What we need is to get effective anti-SLAPP legislation passed is as many states as possible. I have already received a score of e-mails from readers and listeners willing to help with this effort, and we will be discussing it further at NECSS in a week and a half.

We have model anti-SLAPP legislation and can send it to anyone who wishes to help by contacting their state legislature and looking for someone to sponsor the bill. E-mail me if you want more details.

Another Tobinick update

Another interesting update is that I recently learned that Tobinick is the target of another claim by the state of California Medical Board. In November 2014 they filed a complaint against him for false and/or misleading advertising, deceptive advertising, unprofessional conduct, and gross negligence. Here is one key part of the claim:

…he has disseminated or caused to be disseminated false and/or misleading statements and/or claims for the purposes of or that are likely to induce, directly or indirectly, the rendering of professional services with connection with his professional practice, which contained misrepresentation of facts, were likely to mislead or deceive, created false or unjustified expectations, and/or make scientific claims that cannot be substantiated by reliable, peer reviewed, published scientific studies.

These are devastating accusations, and echo my criticisms of Tobinick. Tobinick was subject to a very similar complaint that was settled in 2006.

I will continue to give updates when anything significant happens, but it may be half a year or more before there is anything to report.

Meanwhile, let’s fight together for libel reform and protect the freedom of speech on which our entire movement depends.

 

 

Posted by Steven Novella

Founder and currently Executive Editor of Science-Based Medicine Steven Novella, MD is an academic clinical neurologist at the Yale University School of Medicine. He is also the president and co-founder of the New England Skeptical Society, the host and producer of the popular weekly science podcast, The Skeptics’ Guide to the Universe, and the author of the NeuroLogicaBlog, a daily blog that covers news and issues in neuroscience, but also general science, scientific skepticism, philosophy of science, critical thinking, and the intersection of science with the media and society. Dr. Novella also contributes every Sunday to The Rogues Gallery, the official blog of the SGU.