583 F.Supp.3d 654
D.N.J.2022Background
- Pacira Biosciences (maker of EXPAREL, a liposomal bupivacaine) sued the American Society of Anesthesiologists (ASA), the journal Anesthesiology’s editor, and several article authors for trade libel based on a February 2021 journal issue.
- Plaintiff challenged three pieces: a Hussain meta-analysis, an Ilfeld narrative review, and a McCann editorial, alleging methodological flaws, cherry-picking, omission of favorable data, and undisclosed conflicts of interest.
- Pacira also contended that related CME materials and a podcast repeated or amplified the alleged false conclusions.
- Plaintiff sought retraction, removal of materials, and compensatory and punitive damages; it filed a single-count trade libel complaint.
- Defendants moved to dismiss; the Court granted the Rule 12(b)(6) motion, dismissed with prejudice, and denied leave to amend as futile, finding the challenged statements protected scientific opinion absent allegations of falsified data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether challenged statements are "capable of defamatory meaning" (fact vs opinion) | Statements concluding EXPAREL is not superior are false factual assertions and therefore defamatory | Scientific conclusions in a peer‑reviewed journal are opinion and protected unless based on falsified data | Court: Protected scientific opinion; plaintiff failed to allege data falsification, so not defamatory |
| Whether alleged methodological flaws (cherry‑picking, crude pooling, omitted data) convert conclusions into actionable falsehoods | Methodological errors render the articles' conclusions false and defamatory | Methodological disagreements do not make an opinion a provable falsehood | Court: Methodological disputes are not actionable; they remain protected scientific debate |
| Whether secondary materials (McCann editorial, CME, podcast) are independently actionable | Editorial/CME reiterate or extend false claims (e.g., implying profiteering, stating inferiority) and thus defamatory | Summaries/repetitions consistent with the articles and aimed at the scientific community are not defamatory | Court: No defamatory meaning; the editorial/CME/podcast did not state falsifiable false facts beyond the protected articles |
| Whether leave to amend should be allowed | Pacira offered expert reports to show inaccuracy and departures from scientific norms and sought leave to amend | Defendants argued amendment would be futile given legal protection for scientific opinion | Court: Denied leave; amendment would be futile because additional factual detail cannot cure legal defect |
Key Cases Cited
- Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (pleading standard on motion to dismiss; accept factual allegations as true)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plaintiff must plead factual content to state a plausible claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard applied to complaints)
- ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (2d Cir. 2013) (scientific conclusions in peer‑reviewed publications are protected opinion absent fraud)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (distinguishes scientific inquiry from courtroom fact‑finding)
- Underwager v. Salter, 22 F.3d 730 (7th Cir. 1994) (scientific controversies are resolved by science, not defamation suits)
- Lynch v. New Jersey Educ. Ass'n, 161 N.J. 152 (1999) (statements that could be construed as fact or opinion should generally be treated as protected opinion)
- Ward v. Zelikovsky, 136 N.J. 516 (1994) (defamation requires falsifiable factual assertion)
- Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230 (5th Cir. 2014) (peer‑reviewed scientific publications directed to the scientific community receive protection)
- Sys. Operations, Inc. v. Sci. Games Dev. Corp., 555 F.2d 1131 (3d Cir. 1977) (elements of trade libel under New Jersey law)