Defending science and the First Amendment, ASA asks judge to dismiss Pacira’s lawsuit

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The American Society of Anesthesiologists (ASA) asked United States District Judge Madeline Cox Arleo on June 11 to see the “trade libel” suit filed by Pacira BioSciences two months ago for what it is: an egregious and unjustified public relations campaign that seeks to chill scientific research and debate about Pacira’s controversial drug EXPAREL (liposomal bupivacaine).

In its case, Pacira disputes the conclusions of peer-reviewed articles and an editorial in the February 2021 issue of Anesthesiology that EXPAREL lacks a comparative benefit over standard bupivacaine, even though it costs 100 times as much.

However, as explained in the motion to dismiss, that entitles Pacira to nothing in a court of law: “Scientific conclusions based on disclosed data and methodology are not capable of a defamatory meaning.” And the conclusions that EXPAREL does not provide a clinically-significant benefit in reducing a patient’s pain over standard bupivacaine are consistent with the conclusions and outcomes of numerous other clinical trials and papers, including Pacira’s own.

The motion also points out that Pacira has not and cannot allege the requisite “malice” needed to state a claim for trade libel. To believe that, one must assume that three disparate groups of doctors and researchers from across the United States and Canada secretly conspired with the ASA, Anesthesiology‘s Editor-In-Chief, and anonymous peer reviewers to simultaneously reach false conclusions about EXPAREL’s lack of comparative efficacy. Not only did that never happen, Pacira’s complaint does not even attempt to plausibly allege that it did.

The motion quotes statements from Pacira’s CEO David Stack and CFO Charlie Reinhart during a May 4 earnings call that eviscerate Pacira’s allegation of injury. When asked if there was any reason to be concerned about the articles, Pacira said the company did not have “anything to worry about,” that doctors were using the drug regardless of the articles, and that things “are going very, very well….” In other words, Pacira is lying either to a federal judge or its investors.

“The journal Anesthesiology stands proudly behind its scientific integrity and trusted evidence, and welcomes the dismissal of this suit,” said Evan D. Kharasch, M.D., Ph.D., Anesthesiology Editor-In-Chief.

The motion comes just weeks after Pacira, in an unusual about-face, withdrew its motion seeking a retraction of the articles and backed away from having Judge Arleo rule quickly on the supposed merits of its claims.

ASA and the author-defendants are represented by Quinn, Emanuel, Urquhart & Sullivan LLP and Marino, Tortorella & Boyle, P.C.

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