Libertà di ricerca scientifica e di parola vs. diffamazione: possono i ricercatori dire che un certo anestetico non è superiore agli altri in commercio?

la risposta dovrebbe essere senza esitazioni  positiva e  tale è quella dell’appello del 3 circuito USA in Pacira Biosciences v. AMERICAN SOCIETY OF ANESTHESIOLOGISTS, INC ed altri, 24 marzo 2023, No. 22-1411  (link da JUSTIA US LAW e notizia dal blog di Rebecca Tushnet).

Sentenza interessante, anche perchè riferisce in dettaglio delle opinioni espresse.

Violazione azionata: <<Pacira seeks relief based on two statements: (1) that EXPAREL is “not superior” to local anesthesia; and (2) that it is an “inferior analgesic.”>>

Ma i due gradi rigettano perchè :

i) si tratta di opinioni, non suscettibile di essere sottoposte al test di vero/falso : <<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;>>, P. 17

La corte si sofferma anche sulla (sottile) differenza tra defamation e trade libel, p. 9 ss.

ii) anche il contesto indica che si trattava di opinioni e non di fatti: <<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).
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 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.
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.>>