In the midst of gubernatorial race, Tulsa attorney represents vaccine choice group in defamation lawsuit

A Tulsa attorney who is among the dozen candidates vying to become Oklahoma’s governor said he supports the efforts of a political group opposed to childhood vaccinations, which he is representing in court.

Gary Richardson, a Republican candidate in the 2018 gubernatorial race, is representing the Oklahomans for Vaccine and Health Choice political action committee as well as Tulsa opthamologist Jim Meehan in a defamation lawsuit filed against them and others by Enid pediatrician Eve Switzer.

The lawsuit, filed in December in Tulsa County District Court, accuses the organization, Meehan, Candice Chamberlain, Linda Cronkhite and Elizabeth Aven of making statements online about Switzer accusing her of not providing enough information for parents to adequately be able to give informed consent for children whom she was administering a flu vaccination.

Switzer, who is former president of the Oklahoma chapter of the American Academy of Pediatrics, states in her lawsuit that the defendants took statements she wrote in a newsletter out of context and as a result she has suffered financial damages and received harassment and death threats.

The defendants argue that they did not take Switzer’s comments out of context, that the lack of informed consent allegations are true, that she has not suffered damages as a result, and that the lawsuit is part of an effort by Switzer to antagonize the defendants.

The outcome of the lawsuit has yet to be decided.

Richardson, who was representing Oklahomans for Vaccine and Health Choice prior to his late April announcement that he was running for governor, said his stance on the issue of vaccination was close to that of the group’s.

“I think one could conclude what my position is in view of who I’m representing, and I don’t represent anyone if I don’t believe in their cause,” Richardson said. “I believe it should be the parents’ privilege to decide. I believe the parents should be fully informed about the vaccination and the parents should have the right to decide whether the vaccination should be given to their child.”

Asked whether there is a link between autism and childhood vaccinations — a claim made by some childhood vaccination opponents — Richardson said he does not have a basis to say that a link does exist.

Though some claim a connection between childhood vaccination and autism, there is no concrete evidence of such a connection, and the U.S. Centers for Disease Control and Prevention unequivocally states that there is no link between vaccination and autism.

The Lawsuit
Though Oklahomans for Vaccine and Health Choice and its members had been active previously, Switzer’s court filings indicate the lawsuit came about because of events surrounding Gov. Mary Fallin’s 2016 veto of House Bill 3016.

House Bill 3016, titled the “Parental Rights Immunization Act,” would have required health care providers administering vaccines to children to present the parent with “relevant information regarding the benefits and risks of the vaccine as well as information concerning the National Vaccine Injury Compensation Program.”

The minimum a physician providing a vaccination would have to provide to parents or guardians under the bill would be the vaccine information statement and the U.S. Centers for Disease Control and Prevention’s Epidemiology and Prevention of Vaccine-Preventable Diseases: Vaccine Excipient and Media Summary.

The bill, backed by Oklahomans for Vaccine and Health Choice, was authored by Rep. Randy Grau and Sen. Nathan Dahm, and co-authored by Reps. Mike Ritze, Jason Murphey and Sean Roberts. After passing both the House and Senate, it was sent to Gov. Mary Fallin on April 21, 2016.

Fallin’s office emailed Switzer on April 27, asking for her thoughts on the measure, court documents show. Switzer replied on the same day, and much of the information she responded with was included in Fallin’s statement when she vetoed the bill on May 2, 2016.

The bill, Fallin wrote in her veto message, would require providers to give consumers a 34-page document prior to any vaccination, and she said much of the information in that document is irrelevant or obsolete. Moreover, Fallin wrote, Oklahoma’s vaccination rate has declined since 2006 from 94 percent to 90 percent and is on the cusp of falling below 90 percent.

Providing the document “to the consumer without the proper context and without adequate explanation may be confusing and intimidating, resulting in a drop in vaccination rates,” and increasing the likelihood of a disease outbreak in Oklahoma, Fallin wrote.

A later attempt to override the governor’s veto failed.

A few days after Fallin’s veto, Oklahomans for Vaccine and Health Choice issued a press release stating the bill was vetoed based on false information. The media release also referenced an article in the Oklahoma chapter of the American Academy of Pediatrics’ November/December 2015 newsletter written by Switzer.

In the newsletter, Switzer wrote that her office often has to dispel misinformation that the flu vaccine causes the flu.

“I made a decision to stop asking and treating the flu vaccine differently than all the other routinely recommended vaccines in my office,” Switzer wrote. “So now when a child between the ages of 6 – 24 months comes in for their routine checkup, unless directed to do so otherwise, we draw up ALL the recommended vaccines including the flu vaccine without that one clarification.”

This did not mean that Switzer or her workers were not providing parents with less information about the shot, only that they were not asking about administering it separately from other vaccines that were recommended, Switzer said later in the lawsuit.

However, in the media release, Oklahomans for Vaccine and Health Choice accused Switzer of acting unethically and failing to provide parents with enough information to provide informed consent. Switzer, the media release said, “made it known in the group’s November/December newsletter that she does not obtain informed consent prior to giving children a flu vaccine.” The release also linked to the full newsletter.

The press release was also shared to the group’s Facebook page, where it began to get national attention from other like-minded groups and individuals. The organization then issued a second press release on the newsletter in mid-June 2016.

Many of the social media comments directed toward Switzer were not kind, and she said she began receiving threats of physical harm.

Jim Meehan, a Tulsa ophthalmologist, said he became involved after seeing the newsletter, and was particularly struck by a part where Switzer wrote about a mother of a child who was given a flu vaccine under the new policy. Switzer states in the newsletter that the mother was upset and called her office after getting home, looking at the list of vaccinations the child was given and seeing the flu vaccine on the list.

“She needs to be shamed for her arrogance, reported to the Oklahoma Medical Board for her unethical behavior, and removed from the practice of medicine for her negligence,” Meehan wrote on his Facebook page.

“I think any reasonable reader who at least understands the ethical principles of informed consent would read and say ‘how is it this mother doesn’t know her 6 month old daughter received a flu vaccine until she gets home and is reading through this paperwork she received?” Meehan told The Frontier. “Patients have to be fully informed of the risks, benefits and alternatives of a procedure before they receive them. If we don’t do that, we’re not engaged in a shared medical decision making process.”

On Dec. 22, 2016, Switzer filed the defamation suit against the organization and Meehan, claiming they had taken her words out of context painting her in a false light, harming her business and causing emotional distress. Other individuals were later added as defendants.

On Feb. 2, Richardson filed a motion to dismiss the suit on behalf of the organization and Meehan, arguing that the suit raised free speech concerns and that the defendants did not make any untrue statements in response to Switzer’s statements in the newsletter.

“Despite Plaintiff’s self-serving assertions to the contrary, there is no ‘mis-quoting’ of her statements whatsoever,” Richardson wrote. “Defendants’ statements are substantially the same as Plaintiff’s, yet she seeks to impute liability to Defendants for making public knowledge of her own failings as a professional.”

The defendant’s’ speech on the matter was protected, Richardson wrote, because Switzer is a public figure and the subject is a matter of state and national concern. Richardson also accused opponents of House Bill 3016 of attempting to silence dissenters on the issue of vaccinations.

“The goal of the Parental Rights Immunization Act was to facilitate knowledge and trust by creating an opportunity for the meaningful conversation between doctors and parents,” Richardson wrote. “Persons in opposition to the bill, like the plaintiff, seek to silence such conversations. This lawsuit is merely an attempt to stifle those public policy discussions.”

A judge has since ruled that the lawsuit can move forward.

Liza Greve, chair of Oklahomans for Vaccine and Health Choice, said her group is letting the matter play out in court, rather than social media.

“We feel like this is a pretty frivolous lawsuit,” Greve said. “We’ve done nothing wrong. We just shared her own words.”

Twitter brawl
Though Switzer’s suit is currently working its way through the court, that hasn’t stopped people on both sides from arguing their case — and taking shots at one another.

A March 23 response filed in court on behalf of Meehan and Oklahomans for Vaccine Choice accuses Switzer of filing the suit as part of a multi-pronged effort to antagonize the defendants.

“Plaintiff has also taken the liberty of sending … OVHC a ‘Christmas card’ notifying them that she donated one hundred (100) vaccines on their behalf in an effort to spite them for having views different than her own,” the filing states.

A copy of the Christmas card, which was from UNICEF was attached to the filing as “Exhibit A.”

“100 vaccine doses (Measles, Tetanus and Polio Vaccines) and a vaccine carrier have been donated to UNICEF on behalf of the Oklahomans for Vaccine and Health Choice PAC by Dr. Eve Switzer. Merry Christmas and thank you for your support!” a letter accompanying the card states.

Switzer and Meehan still regularly spar with each other (as well as other users) on Twitter over vaccinations and the ongoing court case.

Replying to one Twitter user who brought up the newsletter, Switzer replied in a May 15 tweet “This is why the defendants got in trouble.” before linking to the entire newsletter. Meehan responded “‘Got in trouble?!’ That’s not how it works, Eve. You best wait for the hearing. We’ll see whose (sic) in trouble when the verdict is delivered.”

“I’m not ‘in trouble,’ Eve,” Meehan replied to Switzer in a July 30 tweet. “I’m defending my free speech rights from a public figure & political activist trying to silence me with a lawsuit.”

“You already tried that approach & it didn’t work. Yes, your trouble began when u crossed line into libel by claiming ‘informed consent,’” Switzer replied.

Other interactions have been less civil.

Switzer states in her lawsuit that the issue has caused her to receive death threats and threats of physical harm. Meehan said he too has received threats, including one that his children would be force-vaccinated.

“I’ve certainly gotten a lot of harassment,” Meehan said. “I had to get an alarm system and stuff like that.”

However, Meehan said he will continue to engage with Switzer and others to publicly debate the issue, and hopes the debate brings more attention to the importance of informed consent.

“As a medical doctor we’ve got to police our profession, we’ve got to make sure we’re protecting parents,” Meehan said. “I see a violation of that. That newsletter to me has become an attempt by the pediatric profession to lower the standard for informed consent.”

As for the lawsuit, Meehan said he’s confident about prevailing.

“I’m very confident on grounds of free speech, not only do I not believe anything I said was defamatory,” Meehan said. “Everything I said was truthful. I’m very confident we’ll win this.”