HipSaver, Inc. v. Kiel
464 Mass. 517
Mass.2013Background
- HipSaver, Inc. sues Kiel for commercial disparagement arising from JAMA article about a hip protector trial.
- JAMA article led by Kiel concluded hip protectors are not effective in nursing home populations; article described a one-sided hip protector trial with 1,042 participants.
- The trial used a one-sided device not sold by HipSaver; HipSaver markets a soft foam dual-hip protector and contends the article disparaged hip protectors generally.
- HipSaver alleged Kiel knew or should have known the product design was inferior and published false statements intended to harm HipSaver, causing economic damages.
- Superior Court granted Kiel summary judgment; appellate review upheld, concluding HipSaver failed to prove essential elements of commercial disparagement, including falsity, “of and concerning,” malice, and special damages.
- The court framed the analysis around Restatement (Second) of Torts § 623A and distinguished commercial disparagement from defamation while recognizing the limited damages framework and the need to prove pecuniary loss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Falsity of statements proven | HipSaver | Kiel | HipSaver failed to prove falsity |
| "Of and concerning" the plaintiff proven | HipSaver | Kiel | "Of and concerning" not shown |
| Publication with knowledge or reckless disregard | HipSaver | Kiel | No sufficient evidence of actual malice |
| Pecuniary harm and causation from publication | HipSaver | Kiel | No reasonable expectation of proving causal pecuniary harm |
| Special damages proveability | HipSaver | Kiel | Special damages not demonstrated; widespread dissemination insufficient alone |
Key Cases Cited
- Dulgarian v. Stone, 420 Mass. 843 (Mass. 1995) (Restatement § 623A standard for commercial disparagement)
- Eyal v. Helen Broadcasting Corp., 411 Mass. 426 (Mass. 1991) ("of and concerning" analysis in defamation and its relevance to disparagement)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (actual malice standard for defamation)
- Ravnikar v. Bogojavlensky, 438 Mass. 627 (Mass. 2003) (defamatory publication and its effects on reputation; Restatement alignment)
- Driscoll v. Trustees of Milton Academy, 70 Mass. App. Ct. 285 (Mass. App. Ct. 2007) (defamation-like analysis and disparagement elements in Massachusetts)
- Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., 590 F.3d 56 (1st Cir. 2009) (First Circuit on pleading special damages and causation in commercial disparagement)