Save a hip, sue a critic

Marilyn Mann pointed me to the following story:

Dr. Douglas Kiel and colleagues published a study in JAMA about hip protectors for elderly patients, concluding that their 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.” HipSaver, a manufacturer of hip protectors that weren’t tested in the study, not only published a response on its website, but subsequently sued Dr. Kiel for tortious disparagement. This Harvard Crimson story does a good job of articulating HipSaver’s argument that the study wrongly attributed failure to all hip protectors while testing only one brand:

“The question is, can someone testing the lowest end of a relatively new product conclude that all designs are poor?” [HipSaver’s lawyer] said.

…. Studies in the past have shown conflicting results as to the effectiveness of hip protectors, [HipSaver’s president] Goodwin said. But the manufacturer said that previous articles that were critical of hip protectors had made a clear distinction that their conclusions were restricted to hard-padded hip protectors. HipSaver’s models are soft-padded.

“The difficulty is that all of the media picked up on the abstract,” Goodwin said.

“Some of the old customers have stopped buying,” Goodwin said, adding that he has heard of at least one other hip protector company “having difficulties.”

Stating that there has been both experimental and anecdotal evidence in favor of HipSaver’s products, Goodwin likened Kiel’s article to “studying one automobile, finding negative results, and concluding that all automobiles are no good.”

HipSaver’s own statement, meanwhile, gets in a jab at a competitor, whose product was allegedly chosen for the test because of another study claiming that the competitor’s product was superior to others on the market. (HipSaver has also sued competitors for false advertising; see previously.) For a response to HipSaver's claims, see this post by a bone metabolism specialist.

Perhaps oddly, HipSaver doesn’t focus on what might seem to many to be a salient fact: three of the study’s authors consulted for or received money from makers of bone-strengthening drugs. This doesn’t make the study invalid, of course. But it’s something you might want to know if you think that there’s potential competition between bone-strengthening drugs and bone-protecting devices. JAMA stands by the study, and I have no reason to think it’s made any mistake, though I think the researchers should have disclosed the ties.

In any event, the elements of commercial disparagement are generally stated something like: (1) falsity; (2) publication; (3) malice (knowledge of falsity or reckless disregard as to truth or falsity); and (4) special damages. Some states require that the speaker must have intended, or reasonably should have known, that harm would result. HipSaver faces some high hurdles on malice—even if readers take away the implication that this study shows that all hip protectors are bad, and even if this implication is not true, it will probably be hard to show that the authors knew or recklessly disregarded the risk that readers would ignore the specifics of the study. In a straight-up falsity case, it’s easier to say that a defendant should have known that the facts were wrong, but in the absence of something like market research it’s harder to show that a defendant should have known that the audience would be misled by an implied claim.