Tmj Implants, Inc. v. Aetna, Inc., 06-1020.

Citation498 F.3d 1175
Decision Date21 August 2007
Docket NumberNo. 06-1146.,No. 06-1020.,06-1020.,06-1146.
PartiesTMJ IMPLANTS, INC., a Colorado corporation, Plaintiff-Appellant, v. AETNA, INC., a Pennsylvania corporation; CIGNA; Connecticut General Corporation, a Florida corporation; Connecticut General Life Insurance Company, a Connecticut corporation; CIGNA Dental Health, Inc., a Florida corporation; CIGNA Health Corporation, a Delaware corporation; Healthsource, Inc., a New Hampshire corporation; CIGNA Dental Health of Colorado, Inc., a Colorado corporation; CIGNA Healthcare of Colorado, Inc., a Colorado corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Joseph J. Mellon, Shughart Thomson & Kilroy, P.C., (Paul S. Swedlund, Shughart Thomson & Kilroy, P.C., and Walter L. Gerash, Andrew B. Reid, Gerash Law Firm, Denver, CO, with him on the brief), for Plaintiff-Appellant.

John B. Shely, Andrews, Kurth LLP, Houston, TX, (John M. Palmeri, Franz Hardy, White & Steele, Denver, CO, and James C. Crumlish, III, Elliott Greenleaf & Sieszikowski, PC, Blue Bell, PA, with him on the brief), for Defendant-Appellee Aetna Inc.

Daniel R. Satriana, Jr. (Matthew Y. Biscan with him on the brief), Clisham, Satriana & Biscan, L.L.C., Denver, CO, for Cigna Defendants-Appellees.

Before HARTZ, SEYMOUR, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

This appeal concerns a suit by plaintiff TMJ Implants, Inc. (TMJI) against defendants Aetna, Inc. and CIGNA1 for defamation and related torts. TMJI is a Colorado corporation that manufactures prosthetic total- and partial-temporomandibular-joint (TMJ) implants for use in patients suffering from TMJ disorders. Aetna and CIGNA provide health and dental insurance under various benefit plans. Both companies produce bulletins explaining what treatments and procedures they cover. In its bulletin describing coverage for treatment of TMJ disorders, Aetna states that it will not cover either the total or partial TMJ implants manufactured by TMJI. In a similar bulletin CIGNA states that it will not cover TMJI's partial-joint device. TMJI contends that the coverage bulletins defamed and disparaged its products, tortiously interfered with prospective business advantage, and tortiously interfered with existing and prospective contracts.

TMJI filed suit in Denver County District Court, but Aetna and CIGNA removed the case to the United States District Court for the District of Colorado, see 28 U.S.C. § 1441(a) (removal statute); id. § 1332 (diversity jurisdiction). Aetna and CIGNA then moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. The district court granted the motions on the ground that the bulletins were protected statements of opinion. TMJI appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

We summarize the allegations of the amended complaint: Approximately 30 million Americans suffer from TMJ disorders, which can cause jaw pain and inhibit normal jaw function. Dr. Robert Christensen developed prosthetic TMJ implants to replace parts of the mandible that had been surgically removed. After refining and obtaining patents on his devices, he established TMJI to manufacture and market them. The total-joint prosthesis is available in three sizes (for both the right and left sides of the jaw) and can also be custom made; the partial-joint prosthesis is available in 44 premade sizes (for both sides of the jaw). TMJI is the only manufacturer of a partial-joint prosthesis. Approximately 25,000 of TMJI's devices have been implanted in patients, 40% of which have been partial-joint prostheses. Clinical studies have shown that the partial-joint implants "reduce the need for further significant surgical intervention of a total joint replacement in over 95% of the cases." Aplt.App. at 6 (Amended Complaint). Fewer than 10% of the partial-joint devices implanted in patients have later been removed.

The total and partial prostheses have "been the subject of various peer reviews in peer-reviewed journals." Id. at 7. There have also been "two clinical studies conducted by [TMJI] that support the safety and effectiveness of the implants." Id. The Food and Drug Administration (FDA) approved both the total and partial implants in 2001. The FDA has approved one other manufacturer, TMJ Concepts, to make custom total-joint prostheses.

Aetna has published, in several editions, Clinical Policy Bulletin (CPB) 28, which describes the limitations on what it will cover for treatment of TMJ disorders. CIGNA also publishes a bulletin, Coverage Position Number (CPN) 156, regarding the limitations on what it will cover for TMJ disorders. Both CPB 28 and CPN 156 are available to the public over the internet. TMJI challenges several statements in Aetna's CPB 28 regarding TMJI's total-joint and partial-joint prostheses. Some statements refer to the prostheses as "experimental" and "investigational." Others question the adequacy of research supporting their use. TMJI also challenges similar statements in CIGNA's CPN 156 regarding TMJI's partial-joint prosthesis. The amended complaint alleges that these statements about TMJI's products were false and defamatory, disparaged its products by publication of injurious falsehoods, and tortiously interfered with its business advantage and existing and prospective contracts.

Aetna and CIGNA moved to dismiss the amended complaint for failure to state a claim on several grounds, including that the allegedly defamatory statements were not defamatory as a matter of law and were protected statements of opinion. Aetna and CIGNA attached copies of their bulletins to their motions to dismiss, contending that because the bulletins were central to TMJI's amended complaint, the district court should consider them in deciding the motions. TMJI's response asserted the sufficiency of its claims and argued that the court should not consider the version of the bulletin proffered by Aetna because it was an amended version. Three versions of CPB 28 and one version of CPN 156 were attached to the response.

The district court considered the bulletins and granted the motions to dismiss. It held that although it could not say as a matter of law that the bulletins were incapable of defamatory meaning, the statements were not actionable. Following Colorado Supreme Court opinions, it reasoned that Aetna's and CIGNA's statements that TMJI's devices were experimental and investigational were protected statements of opinion because they were incapable of being proved false and a reasonable person reading the bulletins would conclude that the statements were ones of opinion rather than fact. It further held that the statements were protected under the First Amendment because they were on a matter of public concern and did not imply the allegation of undisclosed defamatory facts. As for the remaining tort claims, the court held that Aetna's and CIGNA's protected statements of opinion were not improper; so neither defendant could be liable for disparagement, tortious interference with business advantage, or tortious interference with contract, each of which requires the commission of an improper act.

TMJI appeals, contending (1) that the district court resolved several factual issues against it despite its duty to view the facts in the light most favorable to the nonmoving party; (2) that CPB 28 and CPN 156 are not protected statements of opinion because the terms experimental and investigational have sufficiently definite meanings in the medical community to be proved true or false and an average reader would understand the bulletins to be asserting fact; and (3) that Aetna and CIGNA forfeited any privilege accorded their statements of opinion because they were based on an incomplete and inaccurate evaluation of outdated facts, were published to avoid payment of claims rather than to convey a coverage determination, and were published with malice. We reject these arguments, substantially agreeing with the district court's analysis.

II. DISCUSSION

We review de novo a dismissal of a complaint under Rule 12(b)(6) for failure to state a claim, applying the same standard that the district court should have applied. See County of Santa Fe, N.M. v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1034 (10th Cir.2002). We accept as true "all well-pleaded factual allegations in the amended complaint," and view those allegations "in the light most favorable to the nonmoving party." Id. (internal quotation marks omitted). Although we ordinarily limit our review to the allegations in the complaint, we consider documents "incorporated into the complaint by reference." Tellabs, Inc. v. Makor Issues & Rights, Ltd., ___ U.S. ___, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007). Our review of the bulletins shows that the differences between various editions are immaterial to the following analysis. To give TMJI the benefit of the doubt, however, we have relied on the editions of CPB 28 and CPN 156 that TMJI references in its opening brief on appeal.

Because this case arises under the federal court's diversity jurisdiction, the law governing TMJI's causes of action is the law that would be applied if the case had been brought in Colorado state court. See Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir.2007) ("When exercising diversity jurisdiction, we apply state law with the objective of obtaining the result that would be reached in state court."). "Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do." Wade v. Emcasco Ins. Co., 483 F.3d 657, 666 (10th Cir.2007) (internal quotation marks omitted). The parties agree that the applicable substantive law is that of Colorado, although subject to any restrictions on the alleged torts that may be imposed by the United States Constitution. We therefore assume that this case is governed by Colorado substantive law (and, of course, the federal constitution). S...

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