From Friday's Third Circuit decision in Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc., written by Judge Patty Shwartz, joined by Judges Stephanos Bibas and Thomas Ambro:
Pacira BioSciences, Inc. … sued the American Society of Anesthesiologists, Inc. …, the editor-in-chief of its medical journal, and the authors of three articles for statements made about one of Pacira's drug products…. Because the District Court correctly concluded that the statements that form the basis of Pacira's trade libel claim are nonactionable opinions, Pacira has failed to state a basis for relief….
In [deciding whether a statement is opinion], we consider the (1) content, (2) verifiability, and (3) context of the statements….
Pacira seeks relief based on two statements: (1) that EXPAREL is "not superior" to local anesthesia; and (2) that it is an "inferior analgesic." Stating that something is "not superior" or "inferior" is the type of "loose" or "figurative" language that the New Jersey Supreme Court has said is "more likely to be deemed non-actionable as rhetorical hyperbole." …
The verifiability prong also supports the conclusion that the statements are nonactionable opinions…. First, the statements are tentative scientific conclusions and were expressly disclosed as such …:
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, because they represent inferences about the nature of reality based on the results of experimentation and observation.
