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Suit Against Scientific Journal Raises Litigation Issues
The National Law Journal
October 31, 2008
Pharmaceutical company Biopure Corp.'s defamation and trade libel case against a National Institutes of Health official for his statements in an article co-authored for the Journal of the American Medical Association raises concerns about the litigation risks of scientific discourse.
The Cambridge, Mass.-based company, which makes the Hemopure blood substitute product being sold in South Africa and awaiting regulatory approval elsewhere, sued NIH's Charles Natanson in federal court in the District of Columbia on Oct. 10 and made a public announcement about the case on Oct. 28. Natanson is a senior investigator and chief of the Anesthesia Section in the NIH's Clinical Center's critical care medicine department, according to the NIH Web site.
Biopure's claims include defamation, trade libel and intentional interference with prospective business advantage. Biopure seeks a preliminary and permanent injunction against Natanson barring him from publishing "malicious, false, defamatory, and/or misleading statements concerning Biopure." Biopure v. Natanson, No. 1:08-cv-01732 (D. D.C.)
In addition to its claims about the medical journal article, Biopure also claimed that statements in Natanson's letters to foreign health officials about Biopure's products is also defamation and trade libel.
In its complaint, Biopure claimed that it has raised $600 million to develop oxygen therapeutic products, which includes the Hemopure hemoglobin-based blood substitute.
The company said Natanson's April 28 article in the journal's online edition falsely stated that using Hemopure "is associated with significantly increased risk of death and myocardial infarction."
According to Biopure, Natanson also co-authored and sent letters with similar statements to top health officials in Greece, South Africa and the United Kingdom.
Biopure's lawsuit also claims Natanson is trying to patent and market a technology that decreases the negative effects of hemoglobin-based products.
"Despite the fact that Natanson seeks to benefit financially from widespread adoption of the contentions he makes (and, therefore, he has a financial incentive to injury Biopure's business), Natanson did not disclose this conflict in connection with the April 28 2008 JAMA Article," stated Biopure's complaint.
Rob Bertsche, a media lawyer with First Amendment and libel case experience at Boston's Prince Lobel Glovsky & Tye said Biopure faces numerous legal hurdles. One example is the company's request for a prior restraint or gag order, Bertsche said.
"Courts are loath to issue prior restraint or gag orders except for extreme matters of national security," Bertsche said.
Despite Biopure's tough case, Bertsche said the filing raises concerns "about the impact cases like this one could have on scientific discourse and the publication of disputed scientific findings about medical and scientific affairs."
"If we can't have free and fair debate about life-saving drugs I think that sets back scientific speech as well as political speech," Bertsche said.
Biopure's attorney Robert Buhlman, a Boston partner at Bingham McCutchen, could not immediately be reached for comment. The company referred questions to Bingham.
Sara Byars, spokeswoman for NIH's Clinical Center, which employs Natanson, said NIH employees "contribute to the medical journals a great deal." Byars also said the agency had no comment about the litigation.
