Pacira Biosciences Inc v. American Society of Anesthesiologists Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 22-1411

______________

PACIRA BIOSCIENCES, INC.,

Appellant

v.

AMERICAN SOCIETY OF ANESTHESIOLOGISTS, INC.;

EVAN D. KHARASCH; NASIR HUSSAIN; RICHARD

BRULL; BRENDAN SHEEHY; MICHAEL K.

ESSANDOH; DAVID L. STAHL; TRISTAN E. WEAVER;

FARAJ W. ABDALLAH; BRIAN M. ILFELD; JAMES C.

EISENACH; RODNEY A. GABRIEL; MARY ELLEN

MCCANN

______________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2-21-cv-09264)

U.S. District Judge: Honorable Madeline C. Arleo

______________

Argued March 6, 2023

______________

Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.

(Filed: March 24, 2023)

Michael Bern

Allen M. Gardner

Gregory G. Garre [ARGUED]

Sarah Gragert

Latham & Watkins

555 11th Street, N.W.

Suite 1000

Washington, DC 20004

Counsel for Plaintiff-Appellant

John A. Boyle

Kevin H. Marino

Marino Tortorella & Boyle

437 Southern Boulevard

Chatham, NJ 07928

Michael B. Carlinsky

Kaitlin P. Sheehan

Ellyde R. Thompson

Quinn Emanuel Urquhart & Sullivan

51 Madison Avenue

22nd Floor

New York, NY 10010

Robert Schwartz

Kathleen M. Sullivan [ARGUED]

Quinn Emanuel Urquhart & Sullivan

865 South Figueroa Street

10th Floor

2

Los Angeles, CA 90017

Counsel for Defendants-Appellees

David S. Bloomfield, Jr.

Porter Wright Morris & Arthur

41 South High Street

Suite 2900

Columbus, OH 43215

Counsel for Defendants-Appellees Nasir Hussain,

Brendan Sheehy, Michael K. Essandoh,

David L. Stahl, and Tristan E. Weaver

Eugene Volokh

UCLA School of Law

385 Charles E. Young Drive

Los Angeles, CA 90095

Counsel for Amicus Appellee

Foundation for Individual Rights in Education Inc.

Leonard A. Nelson

American Medical Association

Office of General Counsel

330 North Wabash Avenue

Suite 39300

Chicago, IL 60611

Counsel for Amici Appellee

American Medical Association and

Medical Society of New Jersey

3

Aaron A. Nichols

Steven E. Tiller

Whiteford Taylor & Preston

Seven Saint Paul Street

19th Floor

Baltimore, MD 21202

Counsel for Amicus Appellee

American Society for Clinical Pharmacology &

Therapeutics

Elizabeth A. McNamara

Alison B. Schary

Davis Wright Tremaine

1251 Avenue of the Americas

21st Floor

New York, NY 10020

Counsel for Amici Appellee

Association of American Publishers Inc.,

International Association of Scientific, Technical and

Medical Publishers and

Federation of American Societies for Experimental

Biology

Aaron D. Lindstrom

Barnes & Thornburg

171 Monroe Avenue N.W.

Suite 1000

Grand Rapids, MI 49503

Counsel for Amicus Appellee

Council of Medical Specialty Societies

4

______________

OPINION OF THE COURT

______________

SHWARTZ, Circuit Judge.

Pacira BioSciences, Inc. (“Pacira”) sued the American

Society of Anesthesiologists, Inc. (“ASA”), the editor-in-chief

of its medical journal, and the authors of three articles for

statements made about one of Pacira’s drug products. 1 Pacira

claims that the statements constitute trade libel. 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. We will

therefore affirm.

I

A

This trade libel action arises out of allegedly false and

misleading statements about liposomal bupivacaine, a non-

opioid pain medication that Pacira manufactures under the

1

The editor-in-chief is Evan D. Kharasch, and the

authors are Nasir Hussain, Richard Brull, Brendan Sheehy,

Michael K. Essandoh, David L. Stahl, Tristan E. Weaver, Faraj

W. Abdallah, Brian M. Ilfeld, James C. Eisenach, Rodney A.

Gabriel, and Mary Ellen McCann.

5

name EXPAREL. 2 The drug is a local anesthetic administered

at the time of surgery to control post-surgical pain. According

to Pacira, EXPAREL offers longer lasting pain relief than

standard local anesthetics. As of 2020, EXPAREL sales

represented nearly all of Pacira’s total revenue.

B

Pacira complains that Defendants published statements

in a variety of forms, all of which conveyed their view that

EXPAREL is “not superior” to standard analgesics or provides

“inferior” pain relief. See Appellant’s Br. at 2, 40; JA62, 67.

More specifically, Pacira points to the February 2021 issue of

Anesthesiology, the ASA’s peer-reviewed academic journal

that has over 50,000 subscribers. The cover of the February

2021 issue states that “Liposomal Bupivacaine Is Not Superior

to Standard Local Anesthetics” and contains several articles

that Pacira alleges make false and misleading statements

disparaging EXPAREL. JA49. Pacira challenges three articles

in Anesthesiology: (1) a meta-analysis of studies examining

the efficacy of EXPAREL (the “Hussain Article”), which

concludes that the drug is “not superior” to standard

anesthetics, JA77; (2) a narrative review of clinical trials

involving EXPAREL (the “Ilfeld Review”), which reaches a

similar conclusion; and (3) an editorial based on the meta-

analysis and narrative review (the “McCann Editorial”)

2

The facts are drawn from Pacira’s complaint, which

we accept as true in accordance with our standard of review for

motions under Fed. R. Civ. P. 12(b)(6). Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

6

(collectively, the “Articles”). 3 Pacira alleges that the Articles

rely on studies that fail to isolate certain variables, reach

unqualified conclusions about EXPAREL’s efficacy, and

discredit industry-funded trials.

Pacira also raises specific issues about each of the

Articles. As to the Hussain Article, Pacira contends that it

“cherry-picked” studies that disfavor EXPAREL, JA51,

employed a “flawed method” known as “crude pooling,” 4

JA52, and violated “the standards of medical research” by

failing to account for the statistical heterogeneity 5 of the

studies on which it relied, JA53. As to the Ilfeld Review,

Pacira contends that it failed to discuss the “most relevant

anesthesia procedure,” JA54, ignored studies favorable to

EXPAREL with minimal explanation, and that two of its

authors failed to disclose financial conflicts of interest. As to

the McCann Editorial, Pacira alleges that it repeats the

conclusions of the Hussain Article and Ilfeld Review,

“criticize[s]” “EXPAREL’s cost” and “strongly insinuates that

the FDA approved EXPAREL with insufficient evidence.”

JA58.

3

Because the Articles are attached to the complaint as

exhibits whose authenticity is not questioned, we may consider

them. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.

2009).

4

According to Pacira, crude pooling is a methodology

in which results from different studies, analyzing different

populations, are grouped together.

5

In its complaint, Pacira explains that a heterogeneity

analysis accounts for differences in population, type of

medications, outcome definitions, and design across different

studies.

7

In addition to publishing the Articles, the ASA offered

a Continuing Medical Education program (the “CME”) that

allowed participants to answer questions based on the Articles

and receive credit to satisfy medical licensure requirements.

Pacira alleges that these questions restate as fact the Articles’

conclusions, including that EXPAREL is “inferior” to standard

anesthetics, JA62, and that studies favoring EXPAREL are

biased. Finally, Anesthesiology produced a podcast (the

“Podcast”) that also allegedly repeated the conclusions of the

Articles “without acknowledging their many flaws.” JA65.

C

Pacira filed a complaint alleging a single count of trade

libel. The District Court granted Defendants’ motion to

dismiss the complaint for failure to state a claim under Federal

Rule of Civil Procedure Rule 12(b)(6), holding that Pacira

failed to allege that the statements are susceptible to a

defamatory meaning. Pacira Biosciences, Inc. v. Am. Soc’y of

Anesthesiologists, Inc., 583 F. Supp. 3d 654, 658 (D.N.J.

2022). The District Court explained that “a scientific

conclusion based on nonfraudulent data in an academic

publication is not a ‘fact’ that can be proven false through

litigation,” and Pacira failed to identify any aspect of the

Articles, CME, or Podcast that “bring their conclusions outside

the protected realm of scientific opinion.” Id. at 659.

Pacira appeals.

8

II6

Defamation and trade libel are similar causes of action

but remedy different harms. See Dairy Stores, Inc. v. Sentinel

Publ’g Co., 516 A.2d 220, 224-25 (N.J. 1986). 7 While

defamation remedies harm to one’s reputation, trade libel

remedies harm to the reputation of one’s property or product. 8

6 The District Court had jurisdiction pursuant to 28

U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 28

U.S.C. § 1291. We exercise plenary review of a district court’s

order granting a motion to dismiss for failure to state a claim,

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir.

2011), and must determine whether the complaint, construed

“in the light most favorable to the plaintiff,” Santomenno ex

rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d

284, 290 (3d Cir. 2014) (citation and quotation marks omitted),

“contain[s] sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). The parties agree that New Jersey

law governs Pacira’s claim.

7

Trade libel has also been referred to as “product

disparagement” and “slander of title,” among other things, but

for consistency, we will use the term trade libel. See Dairy

Stores, 516 A.2d at 224; see also Sys. Operations, Inc. v. Sci.

Games Dev. Corp., 555 F.2d 1131, 1138 n.6 (3d Cir. 1977)

(noting the “confusing” terminology in this area of law).

8

To succeed on a trade libel claim under New Jersey

law, a plaintiff must prove: “(1) publication (2) with malice (3)

of false allegations concerning plaintiff’s property or product

(4) causing special damages, i.e., pecuniary harm.” Sys.

9

See id. at 224. Despite their differences, both causes of action

protect similarly important interests in the free flow of

information and are thus subject to the same privileges, or

limitations, that render certain statements nonactionable. Id. at

226 (“[A] qualified privilege [for trade libel] should exist

wherever it would exist in a defamation action.”); see also Va.

State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,

425 U.S. 748, 763-64 (1976) (holding society and consumers

both have a strong interest “in the free flow of commercial

information”).

One such limitation is that opinion statements are

generally nonactionable. Lynch v. N.J. Educ. Ass’n, 735 A.2d

1129, 1137 (N.J. 1999). Statements of pure opinion, which are

those “based on stated facts or facts that are known to the

parties or assumed by them to exist,” do not provide a basis for

relief. Id. (quoting Dairy Stores, 516 A.2d at 231); see also

DeAngelis v. Hill, 847 A.2d 1261, 1269 (N.J. 2004)

(“Statements of opinion, as a matter of constitutional law,

enjoy absolute immunity.” (quoting Dairy Stores, 516 A.2d at

231)). Mixed opinions, which are opinions based on

undisclosed facts or assumptions, are similarly nonactionable

“unless they imply false underlying objective facts.” Lynch,

734 A.2d at 1137. Whether a statement is a nonactionable

opinion is a threshold question of law. Kotlikoff v. Cmty.

News, 444 A.2d 1086, 1090 (N.J. 1982). In making this

determination, we consider the (1) content, (2) verifiability,

and (3) context of the statements. Lynch, 735 A.2d at 1136.9

Operations, 555 F.2d at 1140; see also Dairy Stores, 516 A.2d

at 238 (Garibaldi, J., concurring).

9

“The higher the ‘fact content’ of a statement, the more

likely that the statement will be actionable.” Lynch, 735 A.2d

10

As explained below, each consideration supports our

conclusion that the statements here are nonactionable opinions.

A

We first examine the content of the statements.

“Evaluation of content involves consideration not merely of a

statement’s literal meaning, but also of the fair and natural

meaning that reasonable people of ordinary intelligence would

give to it.” Id.

Pacira seeks relief based on two statements: (1) that

EXPAREL is “not superior” to local anesthesia; and (2) that it

is an “inferior analgesic.” Appellant’s Br. at 2, 40; JA62, 67.

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.” Ward v. Zelikovsky, 643

A.2d 972, 980 (N.J. 1994) (quoting Milkovich v. Lorain J. Co.,

497 U.S. 1, 21 (1990)); cf. Vitamin Energy, LLC v. Evanston

Ins. Co., 22 F.4th 386, 394 n.11 (3d Cir. 2022) (noting that

general “claims of relative superiority” are nonactionable

opinions in advertising context); Ponzio v. Mercedes-Benz

USA, LLC, 447 F. Supp. 3d 194, 235 (D.N.J. 2020) (holding

statements like Mercedes-Benz cars have “the best possible

paint job” were nonactionable opinions); EP Henry Corp. v.

Cambridge Pavers, Inc., 383 F. Supp. 3d 343, 350 (D.N.J.

at 1137 (quoting Ward v. Zelikovsky, 643 A.2d 972, 979-80

(N.J. 1994)). If a statement could be construed as either fact or

opinion, however, we must construe it as an opinion. Id. A

contrary presumption would “tend to impose a chilling effect

on speech.” Id. (quotations omitted).

11

2019) (“[W]hether something is the ‘best’ is highly subjective

[and] is almost always a matter of opinion[.]” (internal

quotation marks omitted)); Hughes v. Panasonic Consumer

Elecs. Co., No. 10-cv-846, 2011 WL 2976839, at *12 (D.N.J.

July 21, 2011) (holding statements that the product “create[s]

superior image and color quality” were “subjective expressions

of opinion”). 10 A “fair and natural” reading of these statements

shows that these are nonactionable subjective expressions.

Lynch, 735 A.2d at 1136.

B

The verifiability prong also supports the conclusion that

the statements are nonactionable opinions. The “concept of

verifiability” requires us to determine whether the statement is

10

That these are mostly false advertising cases

strengthens, not undermines, our conclusion that the statements

here are nonactionable opinions. Commercial advertisements

are directed at consumers, whereas peer-reviewed academic

journals are generally “directed to the relevant scientific

community.” ONY, Inc. v. Cornerstone Therapeutics, Inc.,

720 F.3d 490, 496-97 (2d Cir. 2013). If New Jersey courts

have concluded that statements of relative superiority would

not mislead an average consumer, then similar statements

made in an academic journal will not mislead the experts

reading the journal. See Eastman Chem. Co. v. Plastipure, Inc.,

775 F.3d 230, 236 (5th Cir. 2014) (holding disputed statements

made in sales brochures were actionable because “Eastman did

not sue Appellants for publishing an article in a scientific

journal. Rather, Eastman sought to enjoin statements made in

commercial advertisements and directed at customers”).

12

“capable of . . . truth or falsity.” Ward, 643 A.2d at 979. 11

There are two reasons the statements here are not verifiable.

First, the statements are tentative scientific conclusions

and were expressly disclosed as such. As the Court of Appeals

for the Second Circuit explained:

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.

ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490,

496 (2d Cir. 2013) (quotations and internal citation omitted);

see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

597 (1993) (“Scientific conclusions are subject to perpetual

revision.”); cf. United States v. Mitchell, 365 F.3d 215, 252 (3d

Cir. 2004) (concluding that, for the purposes of judicial notice,

“a scientific conclusion—something which is subject to

11

“Requiring that a statement be verifiable ensures that

defendants are not punished for exercising their First

Amendment right to express their thoughts.” Ward, 643 A.2d

at 979.

13

revision—[is] not a ‘fact’”). 12

The statements here expressly claim they are tentative

scientific conclusions. For example, immediately before

concluding that EXPAREL is not superior to standard

analgesics, the Hussain Article enumerates five “notable

limitations” of its study, including “variabilities” that “may

have played a confounding effect,” “publication bias” in

selecting studies, and statistical limitations due “to scarcity of

data.” JA88. As for the Ilfeld Review, Pacira takes issue with

its conclusion that “[t]he preponderance of evidence fails to

support the routine use of [EXPAREL] over standard local

anesthetics,” Appellant’s Br. at 48, but the Ilfeld Review

qualifies its conclusion, stating, “[h]owever, medicine is

constantly evolving with ongoing research, and the use of

[EXPAREL] for postoperative analgesia will certainly be no

different.” JA146. It then identifies several “knowledge gaps

for future research,” including improving comparative data for

certain metrics. Id. Based on these disclosures, it is clear the

statements here are tentative scientific conclusions subject to

revision. See, e.g., ONY, 720 F.3d at 498 (“Even if the

conclusions authors draw from the results of their data could

be actionable, such claims would be weakest when, as here, the

authors readily disclosed the potential shortcomings of their

methodology[.]”).

Second, Pacira fails to appreciate the difference

between “verifiability” and “reliability.” Verifiability turns on

12

One court has recently observed that if there is

consensus on a scientific issue, then a statement about the issue

may be deemed verifiable. Conformis, Inc. v. Aetna, Inc., 58

F. 4th 517, 533 (1st Cir. 2023).

14

whether a statement is “capable of . . . truth or falsity,” Ward,

643 A.2d at 979, while reliability turns on whether the basis for

the statement is capable of being trusted. 13 Pacira’s allegations

boil down to disagreements about the reliability of the

methodology and data underlying the statements. 14 For

example, Pacira alleges that the Articles disregarded studies

favorable to EXPAREL and that the Ilfeld Review failed to

consider a relevant procedure, but allegations that “competent

scientists would have included variables that were available to

the defendant authors but . . . were not taken into account in

their analysis” cannot create an actionable falsehood because

they do not bear on whether the statements are verifiable.

ONY, 720 F.3d at 497. 15 Pacira also alleges that the Hussain

13

See Reliable, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/reliable (last

visited Mar. 6, 2023) (defining reliable as “suitable,” “fit to be

relied on” or “[d]ependable,” which, in turn, is defined as

“capable of being trusted”).

14

To be sure, a conclusion drawn from falsified or

fraudulent data may be actionable because “there is no

constitutional value in false statements of fact.” Gertz v.

Robert Welch, Inc., 418 U.S. 323, 340 (1974); see also ONY,

720 F.3d at 497; CrossFit, Inc. v. Nat’l Strength &

Conditioning Ass’n, No. 14-cv-1191, 2016 WL 5118530, at *7

(S.D. Cal. Sept. 21, 2016) (holding a statement published in an

academic journal was actionable where “a reasonable fact

finder could conclude that the [defendant] fabricated the . . .

data”). Pacira, however, does not allege that any of the data

were falsified.

15

Pacira’s argument that statements in the Ilfeld Review

are “false” in part because of the allegedly undisclosed

conflicts of interest is unavailing. Appellant’s Br. at 50.

15

Article employed a “flawed method,” JA52, but mere disputes

about the reliability of a scientific study’s disclosed

methodology cannot create an actionable falsehood for trade

libel, as such disputes do not address whether the statements

themselves are verifiable. 16 See Saad v. Am. Diabetes Ass’n,

123 F. Supp. 3d 175, 179 (D. Mass 2015) (“[T]he reliability of

the data in [scientific] articles is not fit for resolution in the

form of a defamation lawsuit.”). 17

Substantial undisclosed conflicts of interests may be evidence

of “actual malice” but have no bearing on whether the

statements may be actionable as a threshold matter.

16

Pacira also argues that the Hussain Article falsely

states that studies into EXPAREL were “characterized by low

levels of heterogeneity.” Appellant’s Br. at 47. As the District

Court correctly noted, however, “the Article never claims to

have assessed the heterogeneity for pain scores and, in fact,

expressly discloses that it did not.” Pacira, 583 F. Supp. 3d at

660 (citing JA86).

17

There are, of course, circumstances in which courts

may need to assess the reliability of a scientific study. Liability

under the Lanham Act arises, for example, if the commercial

statement is “literally false.” Novartis Consumer Health, Inc.

v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d

578, 586 (3d Cir. 2002). For certain claims, literal falsity may

be established by showing that “the underlying studies upon

which the representations are based are not sufficiently reliable

to permit one to conclude with reasonable certainty that they

established the claim made.” Bracco Diagnostics, Inc. v.

Amersham Health, Inc., 627 F. Supp. 2d 384, 468 (D.N.J.

2009) (internal quotation omitted).

Our inquiry here is different. We must determine the

threshold question of whether the statements are nonactionable

16

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. Kotlikoff,

444 A.2d at 1088; see also ONY, 720 F.3d at 497 (observing

that scientific conclusions inspire other scientists to “respond

by attempting to replicate the described experiments,

conducting their own experiments, or analyzing or refuting the

soundness of the experimental design or the validity of the

inferences drawn from the results”). Thus, the verifiability

factor supports our conclusion that the statements are

nonactionable opinions.

C

Finally, the context of the statements further

demonstrates that they are nonactionable opinions. In

considering context, New Jersey courts examine, among other

things, the “medium by which the statement is disseminated

and the audience to which it is published.” Wilson v. Grant,

687 A.2d 1009, 1014 (N.J. Super. Ct. App. Div. 1996) (internal

quotation marks omitted); see also Sciore v. Phung, No. 19-

13775, 2022 WL 950261, at *6 (D.N.J. Mar. 30, 2022)

pure opinions protected from a trade libel suit. As part of that

inquiry, we consider whether the statements can be proven true

or false. It is only after establishing the statements can be

proven true or false that reliability of the underlying data and

methodology may become relevant. Pacira’s attacks on

Defendants’ studies do not answer the question of whether the

statements about whether its product is inferior or not superior

are verifiable.

17

(considering fact that the challenged statement was “a

restaurant review” on Yelp as part of context analysis);

NXIVM Corp. v. Sutton, No. 06-cv-1051, 2007 WL 1876496,

at *10 (D.N.J. June 27, 2007) (considering a statement “in the

context of a scholarly article”).

The statements here 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.” ONY, 720 F.3d at 496-97. 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.” Redco Corp.

v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985). 18

18

Although we have not previously applied this

principle to scientific conclusions, we have held in other

contexts that statements directed at readers who are capable of

performing an independent evaluation of the facts upon which

an opinion is based support the conclusion that the opinion is

nonactionable. See, e.g., Dunn v. Gannett N.Y. Newspapers,

Inc., 833 F.2d 446, 454 (3d Cir. 1987) (applying New Jersey

law and holding that statements about a mayor were

nonactionable opinions because they were “based . . . upon

facts that were fully disclosed”); see also McCafferty v.

Newsweek Media Grp., Ltd., 955 F.3d 352, 358 (3d Cir. 2020)

(statements about plaintiff’s political beliefs were

nonactionable because they “characterize[d] disclosed facts”);

Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001) (same

for statements about the quality of plaintiff attorney’s

representation); Redco Corp., 758 F.2d at 972 (same for

statements about the risks of plaintiff’s tire rims); cf. Read v.

18

Such is the case here. First, Anesthesiology is a leading

journal in the field and is offered as a free benefit to the ASA’s

members, who are “physicians practicing in anesthesiology as

well as anesthesiologist assistants and scientists interested in

anesthesiology.” JA34. Second, the readers were provided

with the data and methodology on which the statements were

based. The Hussain Article stated that it was based on nine

randomized studies, gave the reasons for selecting those

studies, and disclosed the possible shortcomings of its

methodology. The Ilfeld Review disclosed the seventy-six

randomized controlled trials involving EXPAREL it reviewed,

what those trials concluded, and the methods the authors used

to analyze the data. The CME’s statement that EXPAREL is

“inferior” to local anesthetics is based directly on the Ilfeld

Review’s finding that “[n]inety-two percent of trials (11 of 12)

suggested [standard local anesthesia] provides superior

analgesia to [EXPAREL].” JA96. Similarly, the CME’s

statement allegedly suggesting that industry-sponsored studies

favoring EXPAREL were biased is drawn directly from the

Articles, which state that industry-sponsored studies were

“considered a potential source of bias.” JA78; see also JA145

(“Explicitly excluded from the Cochrane bias tool is industry

funding.”). 19 Therefore, the journal’s readers were provided

Profeta, 397 F. Supp. 3d 597, 653 (D.N.J. 2019) (dismissing

trade libel claim under New Jersey law where disputed

statement was a “conclusion or an opinion-based

characterization of the facts”).

19

Pacira asserts that the McCann Editorial and Podcast

“repeat the false conclusions of the Hussain Article and Ilfeld

Review.” Appellant’s Br. at 52. Applying the content,

verifiability, and context considerations to those pieces leads

us to conclude that they are also nonactionable opinions.

19

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. 20

For these reasons, content, verifiability, and context all

support the conclusion that the statements are nonactionable

opinions. The District Court, therefore, properly dismissed

Pacira’s complaint. 21

II

The District Court also correctly denied Pacira’s request

for leave to file an amended complaint. See Krantz v.

Prudential Invs. Fund Mgmt., 305 F.3d 140, 144 (3d Cir. 2002)

(per curiam). Under Federal Rule of Civil Procedure 15(a),

amendment “must be permitted . . . unless it would be

inequitable or futile.” Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002). The sole basis for Pacira’s trade

libel claim is the statements in the Articles, CME, and Podcast.

As discussed above, the statements constitute nonactionable

Moreover, the McCann Editorial allegedly “criticize[s]”

EXPAREL and its cost, JA58, but even “pejorative statements

of opinion are entitled to constitutional protection no matter

how extreme, vituperous, or vigorously expressed they may

be,” Kotlikoff, 444 A.2d at 1091.

20

To the extent that ONY embraced a categorical rule

that scientific statements contained in academic journals are

always immune from a trade libel claim, we decline to hold

that New Jersey law mandates such a rule.

21

As a result, we need not determine whether any of the

Defendants are immune from suit or outside the District

Court’s personal jurisdiction.

20

opinions as a matter of law, and no new factual allegations,

including criticisms about the bases for these opinions, would

disturb that conclusion. Therefore, the District Court did not

abuse its discretion in finding that amendment would be futile.

III

For the foregoing reasons, we will affirm.

21