Wednesday, May 30, 2012

Federal Court Tells Drug Makers to Take Their Libel Dispute Elsewhere

English: Aerial view of Buffalo, New York, USA... (Photo credit: Wikipedia)Laboratories, scientific journals and classrooms, not courtrooms, are sometimes better venues to resolve disputes.

That's the message sent by United States District Court for the Western District of New York Chief Judge William M. Skretny in his 25-page decision this month granting defendants' motion to dismiss in ONY, Inc. v. Cornerstone Therapeutics, Inc. et al. (Case No. 1:11-cv-01027-WMS), a defamation suit in which competing drug manufacturers battled it out.

Plaintiff ONY, Inc. produces Infasurf, a calfactant that treats Respiratory Distress Syndrome ("RDS") in premature infants. The plaintiff initiated a libel suit over an article that appeared in the Journal of Perinatology whose findings regarding a study of Infasurf were negative.

The study underlying the article was funded by Chiesi Farmaceutici, a competitor of ONY, Inc. that makes a rival drug that also treats RDS. The Journal of Perinatology piece concluded Infasurf treatment carried "a 49.6 percent greater likelihood of death" than did the Chiesi drug.

ONY's trade libel claim alleged the study was scientifically flawed and contained actionable false assertions of fact, but Judge Skretny disagreed. "The average reader would perceive these statements as debatable hypothesis rather than assertions of unassailable fact," Judge Skretny wrote. "TUOL" questions whether the average reader is taking the Journal of Perinatology to the beach as summer reading, but that's not the point.

Essentially, the Buffalo, N.Y.-based court said the allegedly defamable statements in the article were neither true nor false, but pure opinion, and thus, incapable of causing injury to ONY's reputation. The scientific community, not the legal community, is the better outlet for resolving such disagreements, the court ruled.

(Tip of the hat to the Reporters Committee for Freedom of the Press for its coverage of this esoteric libel matter.)
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