The American Society of Anesthesiologists (ASA) is gratified that the lawsuit filed against ASA, the editor-in-chief of Anesthesiology – the official peer-reviewed journal of ASA – and 11 contributing authors by Pacira Biosciences Inc., has been dismissed by the United States District Court for the District of New Jersey.
U.S. District Judge Madeline Cox Arleo granted a defense motion to dismiss Pacira’s claims against ASA and related parties stemming from articles about its post-surgery pain medication EXPAREL in the February 2021 issue of Anesthesiology, a related podcast and other materials. Arleo found that the statements were scientific opinions that by their nature cannot constitute defamation.
“This dismissal is a significant victory for ASA and the publication of scientific thought,” said ASA President Randall M. Clark, M.D., FASA. “ASA stands by the work of the esteemed physicians named in this suit and their research into EXPAREL that was published in our peer-reviewed scientific journal. This decision from the federal court makes clear that pharmaceutical companies are not free to intimidate the scientific process by filing lawsuits. This is a landmark win for science.”
Without an allegation that the authors of the scientific articles "falsified the data" underlying their conclusions, "a plaintiff cannot sustain a claim for trade libel by alleging that some methodological flaw led to a scientifically 'incorrect' answer," Judge Arleo said in her opinion.
"Stated differently, a scientific conclusion based on nonfraudulent data in an academic publication is not a 'fact' that can be proven false through litigation," Judge Arleo said, adding that holding otherwise "would chill robust and open debate about the efficacy of drugs within the medical community."
ASA and the author defendants are represented by Michael B. Carlinsky, F. Dominic Cerrito, Kaitlin P. Sheehan and Robert M. Schwartz of Quinn Emanuel Urquhart & Sullivan LLP and Kevin H. Marino and John A. Boyle of Marino Tortorella & Boyle PC. ASA General Counsel Jeremy Lewin facilitated ASA’s defense in the case.
ABOUT THE AMERICAN SOCIETY OF ANESTHESIOLOGISTS
Founded in 1905, the American Society of Anesthesiologists (ASA) is an educational, research and scientific society with more than 55,000 members organized to raise and maintain the standards of the medical practice of anesthesiology. ASA is committed to ensuring physician anesthesiologists evaluate and supervise the medical care of patients before, during and after surgery to provide the highest quality and safest care every patient deserves.
For more information on the field of anesthesiology, visit the American Society of Anesthesiologists online at asahq.org. To learn more about the role physician anesthesiologists play in ensuring patient safety, visit asahq.org/madeforthismoment. Like ASA on Facebook and follow ASALifeline on Twitter.