Tuesday, December 09, 2008

Drug Company Claims "Disparagement" by Proxy

We have occasionally posted on what has come to be called the "Nancy Olivieri case," one of the most important cases of attempted suppression of clinical research from the 1990s. Briefly, Apotex, a pharmaceutical company, acted against Dr. Nancy Olivieri after she revealed preliminary data from a trial of deferiprone, a chelating agent for the treatment of iron overload in thalassemia, suggesting that the drug was often ineffective in treating iron overload, and appeared to be associated with hepatic fibrosis. Ultimately, a report by the Canadian Association of University Teachers also held that her academic freedom was abridged, in the context of a negotiation between the University of Toronto and Apotex over a large donation, and that the hospital harassed Dr. Olivieri during her dispute with Apotex (link here for report) (See this post.) This case has been reprised via several posts by Dr Aubrey Blumsohn on the [Anti-] Scientific Misconduct Blog here, here and here.

This month, the Canadian Association of University Teachers (CAUT) published a news item about a bizarre sequel to this case. Here is the background,

Dr. Olivieri [tried] to enforce an agreement she entered into with Apotex in November of 2004 in settlement of defamation claims by both parties.

On Friday, November 28, 2008, after a lengthy course of litigation, Justice George Strathy of the Ontario Superior Court of Justice ordered that Apotex must perform all the terms of the settlement agreement. Those terms include the payment to Dr. Olivieri by Apotex of $800,000, a figure first made public by Justice Strathy in his order.

The settlement agreement contained a term that Dr. Olivieri would not subsequently 'disparage' Apotex or the drug deferiprone.

Now here is the amazing part,

Most recently, Apotex has made its claims of “disparagement” against Dr. Olivieri in a Superior Court action commenced on November 4, 2008. Justice Strathy’s order does not affect the new Apotex action. In its action Apotex could claim from Dr. Olivieri the full amount of $800,000 required to be paid to her under the settlement agreement.

In its statement of claim Apotex takes a very broad view of what constitutes actionable 'disparagement' by Dr. Olivieri. Apotex claims that actionable 'disparagement' includes situations in which Dr. Olivieri is said to have 'acquiesced or consented' to alleged 'disparagement' by others. Instances of 'disparagement' alleged by Apotex include:

* A Wikipedia internet description of Dr. Olivieri, written by a person other than Dr. Olivieri;
* An opinion column referring to Dr. Olivieri in The Globe and Mail written by a Globe columnist, not Dr. Olivieri, which does not contain any statement about Apotex attributed to Dr. Olivieri;
* A motion picture company’s description of a potential movie about Dr. Olivieri;
* A complaint to a newspaper by Dr. Olivieri that statements made in an article referring to her were incorrect.

In its claim Apotex also makes many allegations of 'disparagement' that appear to be based solely on Dr. Olivieri’s participation or attendance at conferences on the relationship between universities and the pharmaceutical industry at large, academic freedom, scientific research and conflict of interest.

So according to Apotex, physicians and medical academics are liable for what is said or written about them by third parties, even if the physicians and academics had nothing to do with what the third parties wrote or said.

So, by the way, by extension from the arguments made by Apotex, by writing this blog post, I have somehow caused Dr Olivieri to further disparage Apotex.

This is egregious nonsense. The filing of the lawsuit by Apotex, which Dr Olivieri will presumably have to go to considerable expense to defend, is a threat to the academic freedom and free speech of all in academia, but particularly to medical academics, and by extension, also is a threat to the free speech of all physicians. This sort of litigation further chills the atmosphere in free speech in health care, a sphere in which criticism of powerful organizations and their powerful leaders is already scarce and threatened.

This should be a wake up call for those physicians and medical academics who maintain a consistently rosy view who persistently believe that those nice people at the top of pharmaceutical, biotechnology, and medical device companies are always on the side of righteousness and good.

Hat tip to the Center for Science in the Public Interest's Integrity in Science Watch here.

See additional comments by Dr Howard Brody on the Hooked: Ethics, Medicine and Pharma blog.


InformaticsMD said...

This sounds like a SLAPP (Strategic Lawsuits Against Public Participation) and should be treated as such by the courts.

From The Anti-SLAPP Resource Center:


SLAPPs all arise out of expressive activity which is directed to public concerns. Often, SLAPPs are "camouflaged" as ordinary civil lawsuits based on traditional theories of tort or personal injury law. Among the most often used legal theories are the following:

Defamation. Broadly defined, this is an alleged intentional false communication, which is either published in a written form (libel) or publicly spoken (slander), that injures one's reputation.

Invasion of Privacy. This legal theory refers to the unlawful use or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities.

Nuisance. This legal theory includes everything that endangers, or may endanger, life or health, gives offense to the senses, violates the laws of decency, or obstructs, or may obstruct, the use and enjoyment of property.

Malicious Prosecution or Abuse of Process. A "malicious prosecution" is a criminal or civil lawsuit which is begun with knowledge that the case lacks merit, and which is brought for a reason (e.g., to harass or annoy) other than to seek a judicial determination of the claim. The use of the legal process to intimidate or to punish the person against whom the suit is brought is generally referred to as "abuse of process.

Conspiracy. A conspiracy is an alleged agreement between two or more persons to commit an illegal, unlawful, or wrongful act.

Intentional Infliction of Emotional Distress. This legal theory is based on an alleged commission of some outrageous act with the intent and knowledge that the act will result in severe mental or emotional anguish of another.

Interference With Contract or Economic Advantage. This legal theory is based on the alleged commission of an act with the intent to interfere with or violate a contract between two people, or hinder a business relationship which exists between those persons.

Roy M. Poses MD said...

Unfortunately, although there are some US states that have anti-SPAPP statutes, I don't know if there is anything comparable in Canada.

Anonymous said...

I know nothing about Canadian law, but it seems unlikely that a court would interpret the word "disparagement" in the agreement between Dr. Olivieri and Apotex as broadly as Apotex is claiming. I have to wonder, though, what made her decide to agree to that provision in the first place.

The procedural posture is unclear to me. Is Apotex simply claiming that it doesn't have to pay the $800,000 because Dr. Olivieri breached the contract? If so, why did it not raise this in the prior litigation?

In any case, if I understand the facts correctly, Apotex is not alleging any common law cause of action such as those discussed above. Rather, its suit is based on the wording of the contract between Dr. Olivieri and Apotex.