Promote Scientific Discourse, Not Lawsuits

The United States District Court for the District of New Jersey recently granted a motion to dis-miss the case Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc.1 The dismissal has important and welcome implications for journals and other publications commenting on the quality and impact of studies. The asserted claims of trade libel raised concerns about the potential chilling effect of publishing analyses critical of outcomes or benefits.

The Case

Pacira Biosciences, Inc. (“Pacira”) brought trade libel claims against a host of parties in a case labeled Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc., et al. (Complaint). These claims arose out of articles, editorial comments, continuing medical education (CME) materials, and a podcast published in or in connection with the February 2021 edition of Anesthesiology — the peer-reviewed journal published by the American Society of Anesthesiologists, Inc. The trade libel claims were dis-missed with prejudice by the United States District Court for the District of New Jersey in an opinion dated February 4, 2022 (Opinion). Dismissal with prejudice means Pacira cannot attempt to amend its complaint to assert claims that could be allowed to proceed. The dismissal means Pacira cannot try to refile the claims in a new suit.

The Claims

The Complaint asserted three instances of alleged trade libel. The first claim alleged that a meta-analysis of studies examining the efficacy of liposomal bupivacaine marketed by Pacira as EXPAREL (bupivacaine) con-tained false and misleading statements (labeled the “Hus-sain Article” in the Opinion). The second claim alleged that a narrative review of EXPAREL trials was inaccurate ( labeled as the “Ilfeld Review” in the Opinion). The third claim focused on an editorial based on the Hussain Article (labeled as the “McCann Editorial” in the Opinion). Finally, questions that could provide CME credit and a podcast that repeated the same conclusions were also identified as being allegedly libelous.Each claim asserted different forms of trade libel. Trade libel is a claim based on the state law. The Complaint was filed in New Jersey, which resulted in New Jersey law being applied. As summarized by the court, in New Jersey, trade libel requires proving publication with malice of the false statements concerning the plaintiff ’s property or product that caused special damages to the plaintiff.

Want to read more? Head here: https://doi.org/10.30953/tmt.v7.360

Authors

• Vikram Dhillon | Institute of Simulation and Training, University of Central Florida, Orlando
• Matthew Fisher | Carium, Inc., Petaluma, California