Why Doctor's Data Is Trying to Shut Me Up

Stephen Barrett, M.D.

Doctor's Data, a laboratory that perfoms tests for many chelation therapists and other offbeat practitioners, has sued me. The suit was filed on June 18, 2010, about two weeks after I received the this message from a lawyer who represents them:

Dear Dr. Barrett:

It has recently come to the attention of our client, Doctor's Data, Inc., an Illinois corporation, that you have, on a continuing basis, harmed Doctor's Data by transmitting false, fraudulent and defamatory information about this company in a variety of ways, including on the internet and in other publications. Doctor's Data is shocked that you would intentionally try to harm its business and its relationship not only with doctors but also with the public. Doctor's Data has also learned that you have apparently conspired with and encouraged individuals to seek litigation against it, and have filed false complaints at various government and regulatory agencies against Doctor's Data.

"It is never libelous," you have said, "to criticize an idea." However, you have gone way beyond the idea stage, and our client will not tolerate it. You apparently have carried on this conduct in an intentional manner and with the assistance of others. It is clear that you have a specific intent to harm Doctor's Data, and this conduct must stop immediately.

We demand that you cease and desist any and all comments regarding Doctor's Data, which have been and are false, fraudulent, defamatory or otherwise not truthful, and make a complete and full retraction of all statements you have made in the past, including those which have led in some instances to litigation. Such comments include, but are not limited to, those made in your article entitled, "How the 'Urine Toxic Metals' Test Is Used to Defraud Patients," which you authored and posted on Quackwatch.com. "The best evidence for reckless disregard," you have written, "is failure to modify where notified." Consider this notice to you that if you do not make these full and complete retractions within 10 days of the date of this letter, in each and every place in which you have made false and fraudulent, untruthful or otherwise defamatory statements, Doctor's Data will proceed with litigation against you and any organizations, entities and individuals acting in common cause or concert with you, to the full extent of the law, and will seek injunctive relief and monetary damages, both compensatory and punitive.

Doctor's Data is a CLlA-certified company in full compliance with all state and federal regulatory and CLlA standards, and your false, fraudulent, defamatory and otherwise untruthful comments have been made to intentionally damage Doctor's Data, Inc. This conduct will no longer be tolerated and if the retractions are not made as written above, the lawsuit shall be filed imminently.

Very truly yours,

Algis Augustine

I replied:

Dear Mr. Augustine:

Thank you for your letter of June 4th in which you accuse me of "transmitting false, fraudulent and defamatory information" about Doctor's Data. Your letter asks me to:

Cease and desist any and all comments regarding Doctor's Data, which have been and are false, fraudulent, defamatory or otherwise not truthful. and make a complete and full retraction of all statements you have made in the past.

Make . . . full and complete retractions within 10 days of the date of this letter, in each and every place in which you have made false and fraudulent, untruthful or otherwise defamatory statements.

I take great pride in being accurate and carefully consider complaints about what I write. However, your letter does not identify a single statement by me that you believe is inaccurate or "fraudulent." The only thing you mention is my article about how the urine toxic metals test is used to defraud patients: (http://www.quackwatch.org/t). The article's title reflects my opinion, the basis of which the article explains in detail.

If you want me to consider modifying the article, please identify every sentence to which you object and explain why you believe it is not correct.

If you want me to consider statements other than those in the article, please send me a complete list of such statements and the people to whom you believe they were made.

Thank you,

Stephen Barrett, MD

Instead of specifying what was wrong, Doctor's Data's attorneys replied:

Dr. Barrett,

You have been making false statements about Doctor's Data and have damaged this company's business and reputation, and you have done so for personal gain and your own self-interest, disguised as performing a public service.  Your writings and conduct are clearly designed to damage Doctor's Data.  If you don't retract your false claims and issue a public apology, the lawsuit will be filed.

Today is June 14th, which is the deadline that was in our letter of June 2nd. Because you responded, you have until Thursday, June 17th, to post your retractions. If you do so and show good faith immediately, this will be taken into account in proceeding.

Jeff Levens
Augustine, Kern and Levens, Ltd.

I replied:

Dear Mr. Levens:

My letter asked you to identify the claims that you believe are false. You have not identified a single sentence that you believe is inaccurate. Since you have failed to do so, I have no choice but to assume that you cannot. My offer remains open, as it is to anyone who is criticized on any of my sites. If you identify anything that you consider inaccurate, I will seriously consider what you say and act accordingly.

Thank you,

Stephen Barrett, MD

On June 18th, Doctor's Data filed suit against me, the National Council Against Health Fraud, Inc., Quackwatch, Inc., and Consumer Health Digest, accusing us of restraint of trade; trademark dilution; business libel; tortious interference with existing and potential business relationships; fraud or intentional misrepresetation; and violating federal and state laws against deceptive trade practices. (On June 29th, Consumer Health Digest was dropped as a defendant.) The complaint asks for more than $10 million in compensatory and punitive damages. The suit objects to seven articles on my Web sites:

Provoked testing (administering a chelating agent before collecting a specimen for heavy metals testing) yields unreliable results. This is the prevailing scientific belief and has been the basis for many government actions against practitioners who administered such tests. Like the attorneys' warning letters, their suit objects to my opinion that provoked testing is used to defraud patients, but it fails to challenge my reasoning. Many others have criticized provoked testing, but my analysis may be more conspicuous than the others.

The lawsuit also asks the court to muzzle me:

WHEREFORE, DOCTOR'S DATA, INC., Plaintiff, prays that this court enter an order granting Doctor's Data a permanent injunction; direct them to remove or delete all disparaging statements and remarks pertaining to Doctor's Data from these or any web sites under their control; and prohibit them from publishing these or any other or additional such remarks on blogs, the aforesaid websites, or any other web sites pending the outcome of this litigation.

Status of the Suit

The suit complaint contained 11 counts. In January 2011, I asked the court to dismiss it for failure to plead the allegations necessary to support the elements of of the complaint. In judging an early motion to dismiss, the court must accept as true any factual allegations in the complaint. The judge denied the request for an injunction; dismissed four counts and part of a fifth; and ruled that discovery court proceed until June 2012, a date subsequently extended for more than a year. During discovery, we learned how Doctor's Data determined the reference ranges in its reports. Also, they made the amazing claim that their reports are not intended to suggest that provoked test results should be compared to these ranges (even though they provide a graph that compares them). In February 2014, we filed a motion for summary judgment, asking the court to dismiss the suit on multiple grounds. Unfortunately, defending the case has been quite time-consuming and expensive.

The Bottom Line

Very few people provide the type of information I do. One reason for this is the fear of being sued. Knowledgeable observers believe that Doctor's Data is trying to intimidate me and perhaps to discourage others from making similar criticisms. However, I have a right to express well-reasoned opinions and will continue to do so. If you would like to help with the cost of my defense, please follow the instructions on our donations page.

This article was revised on October 8, 2014.

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