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'The Ugly Truth'

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British cardiologist sued by American company for a Canadian article

Read the background to Dr Wilmshurst's case

See coverage of Dr Wilmshurst's case

***Update 2nd August 2011***

NMT Medical defamation cases against Dr Peter Wilmshurst discontinued

The three defamation cases brought by US medical device company NMT Medical against cardiologist Dr Peter Wilmshurst have been discontinued.

Earlier this year, NMT Medical, who have pursued Dr Wilmshurst in the London libel courts for almost four years, announced it was ceasing operations and selling off its assets.

Peter Wilmshurst said: “My family and I are very relieved that the three defamation claims brought against me by NMT Medical have finally ended after almost 4 years. I never believed that the claims were brought to protect NMT's reputation in this country, but that they were started so that the enormous financial and time costs of the litigation would prevent discussion of concerns about a clinical trial involving patients in the UK. That a foreign corporation was able to do this shows that amendment of these laws is badly needed to protect patients and the rights of scientists to discuss research. The costs were so great that defence of my case would have been very difficult but for the willingness of lawyers Mark Lewis and Alastair Wilson QC to act for me on a Conditional Fee Agreement ("no win, no fee"). I am very grateful to them and to the other individuals and organisations that supported me, including Sense about Science and Health Watch.”

Simon Singh, science writer and Libel Reform Campaigner said:England’s expensive and anti-free speech laws essentially gagged Dr Wilmshurst from speaking out for three years. It is great news that Peter has now won his case and he can get back to his career and his family. The bad news is that England’s current libel laws will continue to discourage scientists, journalists, journals and newspapers from speaking out on matters of serious public interest. Only the most tenacious and bloody-minded of doctors would dare to speak out while our laws are so antagonistic towards libel defendants. Even more worrying, the Government’s current draft defamation bill is not radical enough to change the situation. I hope Peter’s miserable experience serves as a reminder to the Ministry of Justice that we need a libel law that acts in the public interest.”

Mark Lewis, solicitor for Dr Wilmshurst said: “At the start of the case, NMT was solvent, it ended because it ran out of money. Libel is about reputations not about scientific challenges. The lesson to be learnt from BCA v Singh and NMT v Wilmshurst – companies shouldn’t sue about scientific debates”

Síle Lane, Campaigns Manager of Sense About Science, part of the Libel Reform Campaign said: “We are delighted that Peter’s libel cases are now over and we should be very grateful that Peter has been willing to face bankruptcy to defend the importance of open discussions in medicine. But we should be very worried about the many cases where people have no chance of standing up to the threats of organisations with legal and financial muscle and have no choice but to fall silent. As it stands, the Government’s draft defamation bill does not protect individuals like Peter. A stronger Public interest defence must be included.”

Dr Evan Harris of the Libel Reform Campaign said: "The key message from this saga is that despite a brave stance from resolute scientist, libel suits can close down debate on matters of vital public interest for years. This is why proper libel reform must mean no right of companies to sue without showing malice and actual loss, an effective public interest defence, a rule that prevents claimants suing in London when the vast majority of the offending publication is elsewhere, and the ability of scientists to freely debate the peer reviewed scientific literature."

Mike Harris, Head of Advocacy at Index on Censorship, part of the Libel Reform Campaign said: “If it wasn’t for Peter’s determination, serious concerns over a heart device would have been silenced and patients across the globe would be none the wiser. The government is in the process of redrafting our libel laws, we need a stronger public interest defence, that protects individuals like Dr. Wilmshurst.”

Press GazetteHeart doc Wilmshurst wins libel battle by default

***Update 20th April 2011***

NMT Medical have released a statement announcing that the company has assigned all of its assets for the Benefit of Creditors, effective immediately, in accordance with Massachusetts law.

Mark Lewis, solicitor for Dr Wilmshurst said:“it looks like the nightmare is nearly over. After 4 years NMT looks to have gone out of business. Poor Dr Wilmshurst. The continual deployment of the libel laws to stop scientific discussion seems to be over. Peter Wilmshurst and his family enter the normal world blinking from the bright light of a case that is over”

The Times, US company suing cardiologist for libel goes into liquidation

Nature online, Contentious libel action ends as medical company folds

TheHeart.org, NMT Medical shutters shop; libel limbo may end for Wilmshurst

***Update 25th March 2011***

At 10:21 last night, NMT Medical’s solicitors served a 4th libel claim against cardiologist Dr Peter Wilmshurst.

The claim, which was issued at the High Court on 26 November 2010, relates to an interview given by Dr Wilmshurst on the Today Programme on BBC Radio 4 on 27th November 2009. The deadline for NMT Medical to serve the claim was 4pm today.

Mark Lewis, solicitor for Dr Wilmshurst said: “This is a transparent abuse of a system to try and bully Dr Wilmshurst rather than trying to protect a reputation. If they were really concerned about their reputation they would have issued proceedings against Dr Wilmshurst immediately after the radio interview. That they waited a year to start a claim and then served it at the last possible minute shows that the purpose of these proceedings is just a feeble attempt at intimidation and bullying.

It is this sort of abuse of libel proceedings that gives English libel law a bad name. Dr Wilmshurst is faced with having to waste more time to beat off such a brazen attempt to try and scare him. His answer as ever is that he will defend his words and that he spoke the truth. Rather than issue further proceedings maybe they could try and get on with their initial claims. Dr Wilmshurst was entitled to talk to the BBC about the first case.”

30th November 2010

Today in the High Court in London US medical device company NMT Medical have been ordered to pay £200,000 into court in their libel action against cardiologist Dr Peter Wilmshurst. Master Foster ruled that if NMT Medical do not pay this money by 18th January 2010 their libel claim will be struck out and the court will decide how much of Dr Wilmshurst’s costs NMT Medical should pay.

Dr Wilmshurst has been fighting since 2007 to defend his comments about a clinical trial of a heart device manufactured by NMT Medical. Losing the case could mean he loses his house.  NMT Medical recently threatened to sue Dr Wilmshurst for libel again for comments he made about his case in a BBC Radio 4 Today Programme piece on the chilling effects of England’s libel laws on scientific and medical discussions.

Mark Lewis, solicitor for Dr Wilmshurst said: “What does Peter Wilmshurst have to celebrate this Christmas? Nothing proved, nothing established, no protection for scientists. The fact is that he should never have been sued in the first place. It is in that context that it is mildly pleasing that we can see the end of the tunnel. Either money is put up so that Peter can fight the case or money is not paid and Peter wins by default. What a waste of time and money.

Dr Peter Wilmshurst said: “During the last three years enormous pressure has been placed on my family and me from time wasted dealing with the case, money laid out for legal costs and interference with my ability to work and other activities. I’m concerned my case will have a chilling effect because other scientists and doctors will realise the enormous financial and time costs of speaking out about products and the risk of being sued by manufacturers.

19th January 2011

At a hearing in the High Court in London today NMT Medical were granted more time to pay money into court in their libel case against cardiologist Dr Peter Wilmshurst. Yesterday, 18th January, was the deadline set in November for NMT Medical to pay £200,000 or have the case struck out (see below). They now have to pay £61,000 by 4.30 pm Monday 24th January or the case will be over.

On 24th January 2011 NMT Medical paid the £61,000 security costs, and are now required to make three further fortnightly payments of £50,000.

Mark Lewis, solicitor for Dr Wilmshurst said “I am speechless, as we go into the 5th year of this case, that NMT Medical seem keener to put pressure on Dr Wilmshurst than sorting out their own finances. Why don’t they just accept that suing was a bad idea and drop the case? I can see this case going on until 2013 at least. That verges on cruelty.”

Dr Evan Harris of the Libel Reform Campaign said: “This case demonstrates why it is essential that companies must be required to demonstrate financial damage and prove recklessness in any claims because otherwise they will prevent legitimate scientific and public interest discussion of their products.

Jonathan Heawood, Director of English PEN, part of the Libel Reform Campaign said: “It’s extraordinary that after three years of legal wrangling, this case is still only on the threshold of justice. We urgently need a way of resolving libel disputes swiftly and effectively, so that writers and scientists like Dr Wilmshurst can get on with their work. At the moment, Dr Wilmshurst’s only options are to devote his entire life to defending this libel action - or total silence on the subject, which would go against his integrity as a scientist.”

Tracey Brown, Managing Director of Sense About Science, part of the Libel Reform Campaign said: “We should be very grateful that Peter has been willing to face bankruptcy to defend the importance of open discussions in medicine. But we should be very worried about the many cases where people have no chance of standing up to the threats of organisations with legal and financial muscle and have no choice but to fall silent.”

John Kampfner, the CEO of Index on Censorship, part of the Libel Reform Campaign said: “It is not acceptable that because of the inadequacies of English libel law, a scientist faces losing his home, because there is no straightforward public interest defence he can rely on. Dr. Peter Wilmshurst made his comments at an academic conference, and yet he finds himself sued by a US corporation. We need reform now.”

Background

Dr Peter Wilmshurst is a British cardiologist who has spent more than two decades challenging misconduct in medical research. In 2003 he was awarded the HealthWatch award, given annually to the person who has done the most to expose poor clinical trials.

“Exposing this bad practice usually requires a whistleblower who thereby puts his own career in peril,” explained HealthWatch.

In 2005, Wilmshurst did just that. He was a joint principal investigator in a clinical trial testing the effectiveness of the STARFlex device, which was expected to reduce the incidence of migraines when implanted in the heart. The study failed to find any benefits. At a cardiology conference in Washington, Wilmshurst criticised the device’s American manufacturer, NMT Medical, for the way they were handling data from the clinical trial. His criticism was reported by the Canadian website Heartline, where it could be viewed online for three days. NMT launched a libel lawsuit against Wilmshurst, who has chosen to defend himself despite receiving no support from his NHS Trust. His solicitor maintains that Wilmshurst had a “social, moral, and ethical duty” to make the information public and demanded that NMT drop the suit and repay all the costs.

“We also want them to say they recognise my right to have said this,” Wilmshurst told The Times. “They should recognise that even though they don’t agree, this is an expert opinion and they shouldn’t have sued.”

Despite the potentially crippling legal costs even if he wins, Wilmshurst is defending his right publicly express his concerns to ensure that future researchers are free to speak honestly about clinical trials for the good of the public.

Coverage

The Guardian, Setback for US company suing cardiologist Peter Wilmshurst for libel

The Press Gazette, Libel doctor Peter Wilmshurst could lose his hous

The Guardian, A migraine-inducing libel case

Ben goldacre, Bad Science, NMT are suing Dr Wilmshurst. So how trustworthy are this company? Let’s look at their website…

Ben goldacre, Bad Science, NMT Gets Plugged (Not in a Good Way) by Ben Goldacre

The Guardian, Mutual criticism is vital in science. Libel laws threaten it