Hipsaver, Inc. v. Kiel

• Decision Date: 13 March 2013
• Docket Number: SJC–11085.
• Parties: HIPSAVER, INC. v. Douglas KIEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 517

984 N.E.2d 755

HIPSAVER, INC.

v.Douglas KIEL.

SJC–11085.

Supreme Judicial Court of Massachusetts,

Norfolk.

Submitted Nov. 5, 2012.

Decided March 13, 2013.

Robert LeRoux Hernandez (Mark Booker, Boston, with him) for the plaintiff.

Robert P. Powers, Boston, for the defendant.

Thomas F. Maffei, Scott McConchie, Paul G. Cushing, & Kaitlyn L. Dunn, Boston, for Massachusetts General Hospital & others, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

The present action concerns a claim for commercial disparagement arising from the publication of an article in the Journal of the American Medical Association (JAMA).¹ The plaintiff, HipSaver, Inc. (HipSaver), is a Massachusetts corporation engaged in the design, manufacture, and sale of hip protectors, a device that provides protective padding over the wearer's hip bones in order to reduce the risk of hip fractures in the event of a fall. On July 25, 2007, JAMA published an article entitled “Efficacy of a Hip Protector to Prevent Hip Fracture in Nursing Home Residents: The HIP PRO Randomized Controlled Trial” (article). According to the article, the “Hip Impact Protection PROject (HIP PRO) was designed to test the efficacy of a biomechanically tested energy-absorbing/shunting hip protector in reducing hip fracture incidence among nursing home residents.” The article was authored by nine individuals, including the defendant, Dr. Douglas P. Kiel, an associate professor at Harvard Medical School, who conducted the clinical trial that formed the basis for the article and was its lead author. The article described the clinical trial, analyzed the data collected, and concluded, among other things, that the clinical trial “confirm[ed] the growing body of evidence that hip protectors are not effective in nursing home populations.”

On February 15, 2008, HipSaver filed a complaint in the Superior Court against Dr. Kiel, alleging that he had disparaged HipSaver's product in the JAMA article and was liable for monetary damages.² A judge denied Dr. Kiel's motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). After the completion of discovery, Dr. Kiel filed a motion for summary judgment on April 19, 2011, asserting that HipSaver had no reasonable expectation of proving the essential elements of its claim, including falsity and special damages. Following a hearing, the judge allowed the motion and dismissed HipSaver's complaint. We granted HipSaver's application for direct appellate review. Because we conclude that the judge properly entered summary judgment for Dr. Kiel where HipSaver failed to demonstrate that it had a reasonable expectation of proving all of the essential elements of a cause of action for commercial disparagement, we affirm.³

1. Background. We briefly summarize the undisputed facts contained in the summary judgment record, reserving additional facts for later discussion in conjunction with specific issues.

HipSaver was incorporated in 1995 and is one of at least twenty-three companies that markets hip protectors. There are two varieties of the device, one designed to divert the energy of a fall (hard shell type) and another designed to absorb the energy of a fall (foam type). HipSaver's product is made of “soft pen cell foam.” Its customer base is, and always has been, long-term care facilities, and its largest client is the United States Veterans Administration. HipSaver advertises its product on a national basis, including through its own Internet Web site, and it also markets its product through distributors in eight foreign countries.

Dr. Kiel is a licensed physician in Massachusetts who is board certified in internal medicine and geriatric medicine. He has done research on osteoporosis, falls, and related bone fractures; has published over 125 papers in peer-reviewed journals; and is regarded by others as an expert on hip protectors. In February, 2001, the National Institutes of Health awarded Dr. Kiel a five-year grant, in the amount of $8,424,636, to study the efficacy of hip protectors in reducing the risk of hip fractures when worn by nursing home residents. The findings of at least twelve earlier studies on the efficacy of hip protectors had produced mixed conclusions.

A clinical trial was conducted between October, 2002, and October, 2004, and involved 1,042 residents of thirty-seven nursing homes in Massachusetts, Missouri, and Maryland. The device that was studied was a hybrid hip protector that contained a plastic sheath embedded in ethylene vinyl acetate (EVA) foam. It was not a HipSaver product. During the clinical trial, nursing home residents wore the pad on one hip, but not on the other hip, so that they could serve as their own control subjects.⁴ The National Institutes of Health appointed a data and safety monitoring board (DSMB) to oversee the conduct of the trial. Approximately twenty months after its commencement, the DSMB recommended that the trial be terminated “due to lack of efficacy and the low probability of being able to demonstrate efficacy in the remaining years of the study.” The researchers involved with the clinical trial then decided to submit an article to JAMA for publication.

JAMA is a highly respected, peer-reviewed, general medical journal whose key objective is to “promote the science and art of medicine and the betterment of the public health.” It is the most widely circulated medical journal in the world and has been published continuously since 1883. Following submission of the article, JAMA undertook a seven-month peer review process, after which it proceeded with publication. The following statement appeared in the conclusion of the article: “In summary, this large multicenter clinical trial failed to demonstrate a protective effect of a hip protector on hip fracture incidence in nursing home residents despite high adherence, confirming the growing body of evidence that hip protectors are not effective in nursing home populations” (emphasis added). Similarly, the following statements appeared in the abstract summarizing the article: “In this clinical trial of an energy absorbing/shunting hip protector conducted in U.S. nursing homes, we were unable to detect a protective effect on the risk of hip fracture, despite good adherence to protocol. These results add to the increasing body of evidence that hip protectors, as currently designed, are not effective for preventing hip fracture among nursing home residents” (emphasis added). ⁵

In its action against Dr. Kiel for commercial disparagement, HipSaver alleged that, prior to publishing the results of the clinical trial, Dr. Kiel knew or had reason to know that the product he had tested had a design that was different from and inferior to HipSaver's product, that persons likely to read and write about the article would be unaware of this distinction, and that these people would believe that the challenged statements, which were false, applied to all hip protectors, including those made by HipSaver. HipSaver further alleged that Dr. Kiel published the article with malice and with reckless indifference to the fact that his conduct would injure the company. HipSaver claimed that, as a direct and foreseeable consequence of the article's publication, it has suffered and will continue to suffer severe economic damages, including, but not limited to, the loss of sales and the costs of advertising to mitigate the harm caused by the challenged statements.

In her memorandum of decision and order allowing Dr. Kiel's motion for summary judgment, the judge first stated that HipSaver had not introduced any evidence demonstrating the falsity of the challenged statements. Proposed testimony from two expert witnesses that, in their opinions, the design of the clinical trial was flawed did not necessarily mean that its scientific conclusions were false. Therefore, HipSaver had failed to produce evidence to satisfy its burden of proof with regard to this essential element of its claim. Next, the judge pointed out that the issue whether “malice” is a required element of the tort of commercial disparagement has not been decided definitively in Massachusetts. Nonetheless, proceeding on the assumption that it is a required element, see Dulgarian v. Stone, 420 Mass. 843, 852, 652 N.E.2d 603 (1995), the judge concluded that HipSaver had not demonstrated that Dr. Kiel published the challenged statements with intentional or reckless disregard for their truth or falsity. Finally, the judge determined that, where HipSaver had failed to introduce evidence to support two essential elements of its claim for commercial disparagement, the judge need not address the remaining arguments presented in Dr. Kiel's motion for summary judgment.

2. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). See also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.” Id. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991) (moving party's burden “need not be met by affirmative evidence negating an essential element of the plaintiff's case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial”). We review a decision to grant summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007).

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