Medical society takes millions from company that sued it for defamation – and lost

When the American Society of Anesthesiologists last October announced the receipt of a $2.5 million donation from a drug company – “to advance education and innovation for our members”  – the news could have been dismissed with a shrug. After all, such gifts from industry to medical societies are commonplace. 

What makes this case noteworthy is that until the donation, the ASA and the drug maker, Pacira BioSciences, were better known as adversaries embroiled in a bitter lawsuit over three articles about the company’s flagship product the society had published in 2021 in its main scientific journal. 

The papers, which questioned the effectiveness of Exparel, an anesthetic intended for the treatment of patients undergoing orthopedic surgery and other procedures. As we reported in May 2021, as part of a larger suit against the ASA, Pacira demanded in legal filings that the ASA and its journal, Anesthesiology, retract the papers, which it considered libelous. 

The company didn’t hold that stance long, however. We wrote then: 

The company asked the court for a preliminary injunction to retract two papers and an editorial about Exparel that Anesthesiology published in February. But on May 7,  Pacira withdrew the motion, about a week after the ASA filed its own motion calling for a quick hearing on the merits of the company’s motion.

We also noted at the time ASA was taking a hard line against Pacira. The society said then: 

Although Pacira started this lawsuit, ASA will not shy away from refuting Pacira’s claims and from exposing the important issues with Pacira’s controversial drug.

Pacira may have backed down from its demands for retraction, but it didn’t quit the case – even after the the United States District Court for the District of New Jersey ruled in February 2022 the drug maker “fail[ed] to state a claim for trade libel against any defendant.” 

Pacira appealed that decision. And lost again, in March 2023. 

Praising the appellate court’s ruling, the ASA issued a statement quoting its then-president, Michael Champeau: 

This affirmation of the district court’s dismissal is an important victory for ASA as well as for the scientific process and free speech. … This decision makes clear that pharmaceutical companies are not free to intimidate the scientific process by filing meritless lawsuits.

What a difference seven months makes. 

In October 2023, the ASA posted a press release highlighting Pacira’s beneficence. The statement reads, in part: 

As an Industry Supporter, Pacira is helping to establish a strong, mutually beneficial relationship with the anesthesiology community, strengthen collaboration between physician anesthesiologists and industry, and add to the value the Society provides to patients and the public, while providing invaluable year-round support of ASA programs and priorities related to non-opioid alternatives and postsurgical care.

The release does not mention the lawsuit. 

Evan Kharasch, the top editor of Anesthesiology when the Exparel case began and a named defendant in Pacira’s initial suit, told us he had “no knowledge other than the ASA press releases” of the circumstances around Pacira’s donation to ASA and would not speak to its propriety. However, he said: 

I’m pleased and grateful that the ASA chose to defend the journal and the authors in this case. 

Kharasch, who wrote an article for the Mayo Clinic Proceedings this month about the lawsuit’s implication for academic freedom, added the fact the company lost its suit “speaks to the fact that courtrooms are not the place to debate science.” 
Pacira did not respond to a request for an interview. But a joint press release with ASA, dated Oct. 12, 2023, quotes Dave Stack, the CEO and board chair of the company, saying: 

Pacira is pleased to support ASA and we look forward to collaborating in our efforts to improve patient outcomes through opioid-minimizing strategies. … Our organizations share a common interest in advancing education and innovation for the anesthesia community and the patients we serve. We believe that working together, Pacira and the ASA can effect significant change in the best interest of patients.

The release notes Pacira’s grant puts it in rarified company: 

Launched in 2010, ASA’s Industry Supporter Program is limited to 10 organizations at any time. Participation is intended for companies who want to stand apart by showcasing high-level commitment to the education of physician anesthesiologists, the anesthesia care team and advancement of the specialty.

ASA president Ronald L. Harter told Retraction Watch that “the grant is not related to the lawsuit, which concluded long before the grant was ever discussed.”  (The lawsuit concluded at the end of March 2023. The grant was announced in October 2023.)

Harter continued:

We have moved forward and are pleased with the grant from Pacira to advance the medical specialty of anesthesiology and the perioperative, pain medicine and critical care our members provide; facilitate best-in-class clinician education; and improve patient care. 

Harter declined to say exactly how much the legal fees totaled, but said they “were substantially in excess of the grant amount. As noted, the two are unrelated.”

James Eisenach, an author of one of the Exparel papers and a named defendant in the Pacira suit, declined to comment on the donation. However, Eisenach praised ASA for paying for the legal defenses of himself and the other defendants, and called the outcome of the case: 

a resounding success for science. … I was really pleased; I think it’s precedent-setting.

But word of the donation has displeased some anesthesiologists, who did not want to be identified because of their connections with the ASA. One person familiar with Pacira’s gift called the payment “blood money,” adding: “I question the ethics” of the arrangement. 

Another leading anesthesiologist told us: 

The larger academic community was appalled by the implications of the Pacira legal maneuvers that challenged academic freedom of journals and societies, not to mention individual authors.  So the strong defense by ASA and the fact that ASA prevailed was a major win.  I was not happy to see this current bit of news. If it had been up to me,  I would have told them exactly where to deposit their donation! 

Asked about these concerns, Harter said: 

We recognize that it’s possible there are varying opinions across our membership of 57,000, but we believe that in general our members are looking forward to the progress that can be made through this support and understand the importance of working together with industry to achieve critical goals such as enhancing care and optimizing patient outcomes.

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