Pacira BioSciences Inc. is suing the American Society of Anesthesiologists (ASA) and a handful of the organization’s members over allegations that the defendants published articles in the ASA’s medical journal that falsely represented and “disparaged” Pacira’s drug Exparel.
Pacira’s Wednesday complaint brought one count of trade libel against the ASA and individuals Evan D. Kharasch, Nasir Hussain, Richard Brull, Brendan Sheehy, Michael K. Essandoh, David L. Stahl, Tristan E. Weaver, Faraj W. Abdallah, Brian M. Ilfeld, James C. Eisenach, Rodney A. Gabriel, and Mary Ellen McCann. These individuals were reportedly involved in overseeing or publishing articles in Anesthesiology which the plaintiff argued made misstatements about Exparel, a “long-lasting, non-opioid, non-narcotic pain medication” approved by the Food and Drug Administration for post-surgery pain management.
Such purported statements included those from the February 2021 issue of Anesthesiology, which featured three articles on the efficacy of liposomal bupivacaine, the active ingredient in Exparel — but, not only did the analyses depict Exparel in a bad light, the plaintiff alleged, they also were “riddled with errors.”
Pacira claimed that the defendants “cherry-picked selective studies that are likely to provide an unfavorable view of EXPAREL, excluded those that would result in the opposite conclusion, focused on surgical procedures for which EXPAREL is not approved or not commonly used, and used contorted methods and calculations that are contrary to accepted practices for conducting a meta-analysis.”
Pacira cited an alleged pro-opioid pain treatment agenda permeating the ASA journal leadership — Editor-in-Chief Kharasch in particular — as the possible reasoning behind the unfavorable analyses of Exparel.
“Dr. Kharasch authored an editorial in an April 2020 issue of Anesthesiology in which he described using non-opioid drugs like EXPAREL, which seek to reduce opioid use post-surgery, as an ‘arbitrary and commercially influenced’ approach to management of postoperative pain, that ‘presently lack(s) compelling evidence,’” the complaint claimed. “Kharasch’s own research interests include studies supporting opioid use in post-surgery patients.”
The complaint also claimed that Anesthesiology refused to publish a letter to the editor “that reported favorable experience” with Pacira’s Exparel and that “expressed concern about the over-generalizations” about the drug in the February 2021 issue.
According to the plaintiff, the defendants “knew or recklessly disregarded the fact that statements contained in the February articles were false or misleading.” Pacira argued that the defendants’ alleged conduct has caused the company loss of sales and customers as well as damage to Exparel’s reputation.
Pacira is seeking an order requiring the defendants to remove the purportedly disparaging content from the ASA website, an enjoinment of the defendants from publishing any other allegedly disparaging content about Exparel, and compensatory damages, among other relief.
Latham & Watkins LLP represents Pacira.
