Appellate Court Affirms Dismissal of Pacira’s Lawsuit Against ASA and Authors

CHICAGO – The American Society of Anesthesiologists (ASA) is extremely pleased that the decision in the lawsuit filed against ASA, the editor-in-chief of Anesthesiology – the official peer-reviewed scientific journal of ASA – and 11 contributing authors by Pacira Biosciences Inc., which was originally dismissed by the United States District Court for the District of New Jersey in 2022, has been affirmed by the United States Court of Appeals for the Third Circuit.

 “This affirmation of the district court’s dismissal is an important victory for ASA as well as for the scientific process and free speech,” said Michael W. Champeau, M.D., FAAP, FASA. “This decision makes clear that pharmaceutical companies are not free to intimidate the scientific process by filing meritless lawsuits.”

The appellate court issued a decisive opinion, affirming not only the dismissal of Pacira’s complaint, but also the denial of Pacira’s request to file an amended complaint. The decision stated that Pacira’s “critiques about the Articles’ data and methodology may be the basis of future scholarly debate, but they do not form the basis for trade libel under New Jersey law. To conclude otherwise would risk ‘chilling’ the natural development of scientific research and discourse.”

The court also noted that “the statements were made in a peer-reviewed journal for anesthesiology specialists. While statements are not protected solely because they appear in a peer-reviewed journal, such journals are often ‘directed to the relevant scientific community.’ Their readers are specialists in their fields and are best positioned to identify opinions and ‘choose to accept or reject [them] on the basis of an independent evaluation of the facts.’ The journal’s readers were provided the basis for the statements, have the expertise to assess their merits based on the disclosed data and methodology, and thus are equipped to evaluate the opinions the authors reached.”

ASA wants particularly to thank those organizations that supported the case by filing amicus briefs: The American Medical Association, the American Society for Clinical Pharmacology & Therapeutics, the Association of American Publishers Inc., the Council of Medical Specialty Societies, the Federation of American Societies for Experimental Biology, the Foundation for Individual Rights in Education Inc., the International Association of Scientific, Technical and Medical Publishers and the Medical Society of New Jersey.

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 56,000 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.

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