UK libel laws threaten scientific debate

By Ned Stafford/Hamburg 

A libel lawsuit brought by GE Healthcare has succeeded in silencing, at least temporarily, an eminent Danish radiologist who publicly questioned the safety of one of the firm’s drugs, but the firm is now being accused by some in the scientific community of trying to stifle legitimate scientific discussion. 

News of GE Healthcare’s lawsuit, coming after two other high-profile libel actions involving scientific debate have been filed in UK courts, also appears to have helped galvanise political support for changing UK libel laws, generally thought to favour claimants and to encourage so-called libel tourism from claimants with weak links to the UK. 

GE Healthcare, a UK-headquartered unit of General Electric Company with annual sales of $17 billion (?10.6 billion), has alleged in a written statement published on its web site that Henrik Thomsen, of the University of Copenhagen, made ’knowingly false and inaccurate statements about GE Healthcare or its products’ and that ’he persisted in making false accusations that he knew were untrue.’ GE Healthcare added that the legal action ’is intended to prevent the further repetition of those statements.’ 

The lawsuit focuses on statements Thomsen made during a presentation in Oxford, UK, where he highlighted his belief that Omniscan, a gadolinium based contrast agent (GBCA) marketed by GE Healthcare, could have potentially fatal side-effects. Omniscan and other GBCAs are given to patients before magnetic resonance imaging (MRI) scans to improve image clarity.  

According to a paper published by Thomsen in European Radiology, there is a possible association between Omniscan and patients with kidney problems developing nephrogenic systemic fibrosis (NSF), a serious condition that affects the skin, liver, lungs, muscles and heart. In this paper (which is not mentioned in the legal action), Thomsen notes that the problem only occurs in patients suffering from end-stage renal (kidney) disease - perhaps unsurprising as the drug is ’almost exclusively excreted renally’.

Thomsen declined to comment about the case, referring Chemistry World to his attorney, Andrew Stephenson, partner in the high-profile London media law firm Carter Ruck, which in the past has represented well-known claimants in libel lawsuits.

Stephenson told Chemistry World that the legal case concerns statements made by Thomsen during a ’10-15 minute’ presentation at Oxford to ’about 30 to 40 people’ in October 2007 and in an article published in his name in February 2008 in Imaging Management, which Stephenson says has a circulation of ’about 1000 within the jurisdiction of the English Court.’

Stephenson adds that Thomsen’s principal line of defence is that his Oxford presentation and journal article ’are covered by qualified privilege in that he had a duty, alternatively a common legitimate interest, in communicating to his audience and the readers his experience in managing the crisis which arose at his hospital in Herlev when he learned of the link which had been drawn between the use of Omniscan and the disease NSF.’

GE Healthcare, which is pursuing the lawsuit in the High Court in London, is demanding that Thomsen pay damages and legal costs, which as of June 2009 was estimated by GE lawyers to be over ?380,000, Stephenson says. GE also has requested an injunction to prevent Thomsen ’from repeating any of the allegations of which GE complains,’ he adds.

’A wretched law’

News of GE’s libel lawsuit in mid December unleashed a flurry of criticism against the company by newspaper commentators and bloggers on the internet. An article about UK libel law and the Thomsen case in the Sunday Times (of London) December 20 appeared under the headline: ’A wretched law that threatens our free speech.’ The two other current science cases involve science writer Simon Singh, currently being sued by the British Chiropractic Association for comments he made in a newspaper article in 2008, and British cardiologist Peter Wilmshurst, being sued by an American firm for comments made on an American website about a study into using heart implants to treat migraines.

In late December, Jack Straw, UK justice secretary, announced that a panel of lawyers, academics and newspaper editors would be appointed to consider nine areas of concern about Britain’s libel laws and make recommendations for change by mid-March.

In an interview with Chemistry World, Lynne Gailey, GE Healthcare’s executive vice president for global communications, says: ’We are not disputing Thomsen’s scientific comments about our product.’ The lawsuit was filed to stop Thomsen from making what GE considers ’false and inaccurate statements,’ including allegations of ’concealing and suppressing information from regulatory authorities,’ she says, adding that GE filed the lawsuit to protect its reputation.

’This libel action is not about suppressing scientific debate,’ she says. ’In fact, GE Healthcare encourages scientific debate.’ And that includes debate on the safety of GBCAs such as Omniscan.

She says that GE Healthcare had a series of phone calls and written contact in late 2007 and early 2008 with Thomsen, asking him to publicly retract what GE feels were false statements and to apologise for them or he would face a libel lawsuit. GE sent a final letter written in Danish in the spring of 2008, giving Thomsen three months to respond, she says.

’An apology or retraction was our principal concern,’ she says, adding that he did not respond. ’We did not take this action lightly. It was a matter of last resort.’