Summary
The Third Circuit affirmed the dismissal of a trade libel claim against the American Society of Anesthesiologists, holding that statements in a peer-reviewed journal characterizing a drug as "not superior" or "inferior" to standard alternatives are nonactionable opinions, not verifiable facts. Applying New Jersey law, the court reasoned that the statements were tentative scientific conclusions, the underlying data and methodology were disclosed, and the specialist audience could independently evaluate the opinions. The court also held that disputes over scientific methodology and data reliability do not transform such opinions into actionable falsehoods, making amendment futile.
Topics
Questions Presented
- Whether the statements in the articles, CME, and podcast that EXPAREL is 'not superior' or 'inferior' to standard anesthetics are nonactionable opinions under New Jersey trade libel law.
Holdings
- The statements are nonactionable opinions because they are subjective expressions of relative superiority, not verifiable as true or false, and are made in the context of a peer-reviewed scientific journal with disclosed data and methodology.
Key quotations
“Statements of pure opinion, which are those 'based on stated facts or facts that are known to the parties or assumed by them to exist,' do not provide a basis for relief.” (8)
“For these reasons, content, verifiability, and context all support the conclusion that the statements are nonactionable opinions.” (9)
“A 'fair and natural' reading of these statements shows that these are nonactionable subjective expressions.” (11)
“Most conclusions contained in a scientific journal article are, in principle, capable of verification or refutation by means of objective proof. Indeed, it is the very premise of the scientific enterprise that it engages with empirically verifiable facts about the universe. At the same time, however, it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision.” (12)
Factual background
Pacira manufactures EXPAREL, a liposomal bupivacaine pain medication. The American Society of Anesthesiologists and others published articles in the journal Anesthesiology stating that EXPAREL is not superior to standard local anesthetics. The articles included a meta-analysis, a narrative review, and an editorial. Pacira alleged that the statements were false and constituted trade libel. The articles disclosed limitations and were based on scientific studies.
Procedural history
Pacira filed a trade libel action in the District of New Jersey. The district court dismissed the complaint under Rule 12(b)(6), holding that the statements were nonactionable opinions. Pacira appealed.