Pacira Biosciences, Inc. v. American Society of Anesthesiologists, Inc.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 22-1411
______________
PACIRA BIOSCIENCES, INC.,
Appellant
v.
AMERICAN SOCIETY OF ANESTHESIOLOGISTS, INC.;
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; MARY ELLEN
MCCANN
______________
On Appeal from the United States District Court
for the District of New Jersey
(No. 2-21-cv-09264)
U.S. District Judge: Honorable Madeline C. Arleo
______________
Argued March 6, 2023
______________
Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges.

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(Filed: March 24, 2023)
Michael Bern
Allen M. Gardner
Gregory G. Garre [ARGUED]
Sarah Gragert
Latham & Watkins
555 11th Street, N.W.
Suite 1000
Washington, DC 20004
Counsel for Plaintiff-Appellant
John A. Boyle
Kevin H. Marino
Marino Tortorella & Boyle
437 Southern Boulevard
Chatham, NJ 07928
Michael B. Carlinsky
Kaitlin P. Sheehan
Ellyde R. Thompson
Quinn Emanuel Urquhart & Sullivan
51 Madison Avenue
22nd Floor
New York, NY 10010
Robert Schwartz
Kathleen M. Sullivan [ARGUED]
Quinn Emanuel Urquhart & Sullivan
865 South Figueroa Street
10th Floor

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3
Los Angeles, CA 90017
Counsel for Defendants-Appellees
David S. Bloomfield, Jr.
Porter Wright Morris & Arthur
41 South High Street
Suite 2900
Columbus, OH 43215
Counsel for Defendants-Appellees Nasir Hussain,
Brendan Sheehy, Michael K. Essandoh,
David L. Stahl, and Tristan E. Weaver
Eugene Volokh
UCLA School of Law
385 Charles E. Young Drive
Los Angeles, CA 90095
Counsel for Amicus Appellee
Foundation for Individual Rights in Education Inc.
Leonard A. Nelson
American Medical Association
Office of General Counsel
330 North Wabash Avenue
Suite 39300
Chicago, IL 60611
Counsel for Amici Appellee
American Medical Association and
Medical Society of New Jersey

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Aaron A. Nichols
Steven E. Tiller
Whiteford Taylor & Preston
Seven Saint Paul Street
19th Floor
Baltimore, MD 21202
Counsel for Amicus Appellee
American Society for Clinical Pharmacology &
Therapeutics
Elizabeth A. McNamara
Alison B. Schary
Davis Wright Tremaine
1251 Avenue of the Americas
21st Floor
New York, NY 10020
Counsel for Amici Appellee
Association of American Publishers Inc.,
International Association of Scientific, Technical and
Medical Publishers and
Federation of American Societies for Experimental
Biology
Aaron D. Lindstrom
Barnes & Thornburg
171 Monroe Avenue N.W.
Suite 1000
Grand Rapids, MI 49503
Counsel for Amicus Appellee
Council of Medical Specialty Societies

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5
______________
OPINION OF THE COURT
______________
SHWARTZ, Circuit Judge.
Pacira BioSciences, Inc. (“Pacira”) sued the American
Society of Anesthesiologists, Inc. (“ASA”), the editor-in-chief
of its medical journal, and the authors of three articles for
statements made about one of Pacira’s drug products.1 Pacira
claims that the statements constitute trade libel. Because the
District Court correctly concluded that the statements that form
the basis of Pacira’s trade libel claim are nonactionable
opinions, Pacira has failed to state a basis for relief. We will
therefore affirm.
I
A
This trade libel action arises out of allegedly false and
misleading statements about liposomal bupivacaine, a non-
opioid pain medication that Pacira manufactures under the
1 The editor-in-chief is Evan D. Kharasch, and the
authors are 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.

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6
name EXPAREL.2 The drug is a local anesthetic administered
at the time of surgery to control post-surgical pain. According
to Pacira, EXPAREL offers longer lasting pain relief than
standard local anesthetics. As of 2020, EXPAREL sales
represented nearly all of Pacira’s total revenue.
B
Pacira complains that Defendants published statements
in a variety of forms, all of which conveyed their view that
EXPAREL is “not superior” to standard analgesics or provides
“inferior” pain relief. See Appellant’s Br. at 2, 40; JA62, 67.
More specifically, Pacira points to the February 2021 issue of
Anesthesiology, the ASA’s peer-reviewed academic journal
that has over 50,000 subscribers. The cover of the February
2021 issue states that “Liposomal Bupivacaine Is Not Superior
to Standard Local Anesthetics” and contains several articles
that Pacira alleges make false and misleading statements
disparaging EXPAREL. JA49. Pacira challenges three articles
in Anesthesiology: (1) a meta-analysis of studies examining
the efficacy of EXPAREL (the “Hussain Article”), which
concludes that the drug is “not superior” to standard
anesthetics, JA77; (2) a narrative review of clinical trials
involving EXPAREL (the “Ilfeld Review”), which reaches a
similar conclusion; and (3) an editorial based on the meta-
analysis and narrative review (the “McCann Editorial”)
2 The facts are drawn from Pacira’s complaint, which
we accept as true in accordance with our standard of review for
motions under Fed. R. Civ. P. 12(b)(6). Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

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(collectively, the “Articles”).3 Pacira alleges that the Articles
rely on studies that fail to isolate certain variables, reach
unqualified conclusions about EXPAREL’s efficacy, and
discredit industry-funded trials.
Pacira also raises specific issues about each of the
Articles. As to the Hussain Article, Pacira contends that it
“cherry-picked” studies that disfavor EXPAREL, JA51,
employed a “flawed method” known as “crude pooling,”4
JA52, and violated “the standards of medical research” by
failing to account for the statistical heterogeneity5 of the
studies on which it relied, JA53. As to the Ilfeld Review,
Pacira contends that it failed to discuss the “most relevant
anesthesia procedure,” JA54, ignored studies favorable to
EXPAREL with minimal explanation, and that two of its
authors failed to disclose financial conflicts of interest. As to
the McCann Editorial, Pacira alleges that it repeats the
conclusions of the Hussain Article and Ilfeld Review,
“criticize[s]” “EXPAREL’s cost” and “strongly insinuates that
the FDA approved EXPAREL with insufficient evidence.”
JA58.
3 Because the Articles are attached to the complaint as
exhibits whose authenticity is not questioned, we may consider
them. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.
2009). 4 According to Pacira, crude pooling is a methodology
in which results from different studies, analyzing different
populations, are grouped together.
5 In its complaint, Pacira explains that a heterogeneity
analysis accounts for differences in population, type of
medications, outcome definitions, and design across different
studies.

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8
In addition to publishing the Articles, the ASA offered
a Continuing Medical Education program (the “CME”) that
allowed participants to answer questions based on the Articles
and receive credit to satisfy medical licensure requirements.
Pacira alleges that these questions restate as fact the Articles’
conclusions, including that EXPAREL is “inferior” to standard
anesthetics, JA62, and that studies favoring EXPAREL are
biased. Finally, Anesthesiology produced a podcast (the
“Podcast”) that also allegedly repeated the conclusions of the
Articles “without acknowledging their many flaws.” JA65.
C
Pacira filed a complaint alleging a single count of trade
libel. The District Court granted Defendants’ motion to
dismiss the complaint for failure to state a claim under Federal
Rule of Civil Procedure Rule 12(b)(6), holding that Pacira
failed to allege that the statements are susceptible to a
defamatory meaning. Pacira Biosciences, Inc. v. Am. Soc’y of
Anesthesiologists, Inc., 583 F. Supp. 3d 654, 658 (D.N.J.
2022). The District Court explained that “a scientific
conclusion based on nonfraudulent data in an academic
publication is not a ‘fact’ that can be proven false through
litigation,” and Pacira failed to identify any aspect of the
Articles, CME, or Podcast that “bring their conclusions outside
the protected realm of scientific opinion.” Id. at 659.
Pacira appeals.

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II6
Defamation and trade libel are similar causes of action
but remedy different harms. See Dairy Stores, Inc. v. Sentinel
Publ’g Co., 516 A.2d 220, 224-25 (N.J. 1986).7 While
defamation remedies harm to one’s reputation, trade libel
remedies harm to the reputation of one’s property or product.8
6 The District Court had jurisdiction pursuant to 28
U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review of a district court’s
order granting a motion to dismiss for failure to state a claim,
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir.
2011), and must determine whether the complaint, construed
“in the light most favorable to the plaintiff,” Santomenno ex
rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d
284, 290 (3d Cir. 2014) (citation and quotation marks omitted),
“contain[s] sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The parties agree that New Jersey
law governs Pacira’s claim.
7 Trade libel has also been referred to as “product
disparagement” and “slander of title,” among other things, but
for consistency, we will use the term trade libel. See Dairy
Stores, 516 A.2d at 224; see also Sys. Operations, Inc. v. Sci.
Games Dev. Corp., 555 F.2d 1131, 1138 n.6 (3d Cir. 1977)
(noting the “confusing” terminology in this area of law).
8 To succeed on a trade libel claim under New Jersey
law, a plaintiff must prove: “(1) publication (2) with malice (3)
of false allegations concerning plaintiff’s property or product
(4) causing special damages, i.e., pecuniary harm.” Sys.

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10
See id. at 224. Despite their differences, both causes of action
protect similarly important interests in the free flow of
information and are thus subject to the same privileges, or
limitations, that render certain statements nonactionable. Id. at
226 (“[A] qualified privilege [for trade libel] should exist
wherever it would exist in a defamation action.”); see also Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748, 763-64 (1976) (holding society and consumers
both have a strong interest “in the free flow of commercial
information”).
One such limitation is that opinion statements are
generally nonactionable. Lynch v. N.J. Educ. Ass’n, 735 A.2d
1129, 1137 (N.J. 1999). Statements of pure opinion, which are
those “based on stated facts or facts that are known to the
parties or assumed by them to exist,” do not provide a basis for
relief. Id. (quoting Dairy Stores, 516 A.2d at 231); see also
DeAngelis v. Hill, 847 A.2d 1261, 1269 (N.J. 2004)
(“Statements of opinion, as a matter of constitutional law,
enjoy absolute immunity.” (quoting Dairy Stores, 516 A.2d at
231)). Mixed opinions, which are opinions based on
undisclosed facts or assumptions, are similarly nonactionable
“unless they imply false underlying objective facts.” Lynch,
734 A.2d at 1137. Whether a statement is a nonactionable
opinion is a threshold question of law. Kotlikoff v. Cmty.
News, 444 A.2d 1086, 1090 (N.J. 1982). In making this
determination, we consider the (1) content, (2) verifiability,
and (3) context of the statements. Lynch, 735 A.2d at 1136.9
Operations, 555 F.2d at 1140; see also Dairy Stores, 516 A.2d
at 238 (Garibaldi, J., concurring).
9 “The higher the ‘fact content’ of a statement, the more
likely that the statement will be actionable.” Lynch, 735 A.2d

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As explained below, each consideration supports our
conclusion that the statements here are nonactionable opinions.
A
We first examine the content of the statements.
“Evaluation of content involves consideration not merely of a
statement’s literal meaning, but also of the fair and natural
meaning that reasonable people of ordinary intelligence would
give to it.” Id.
Pacira seeks relief based on two statements: (1) that
EXPAREL is “not superior” to local anesthesia; and (2) that it
is an “inferior analgesic.” Appellant’s Br. at 2, 40; JA62, 67.
Stating that something is “not superior” or “inferior” is the type
of “loose” or “figurative” language that the New Jersey
Supreme Court has said is “more likely to be deemed non-
actionable as rhetorical hyperbole.” Ward v. Zelikovsky, 643
A.2d 972, 980 (N.J. 1994) (quoting Milkovich v. Lorain J. Co.,
497 U.S. 1, 21 (1990)); cf. Vitamin Energy, LLC v. Evanston
Ins. Co., 22 F.4th 386, 394 n.11 (3d Cir. 2022) (noting that
general “claims of relative superiority” are nonactionable
opinions in advertising context); Ponzio v. Mercedes-Benz
USA, LLC, 447 F. Supp. 3d 194, 235 (D.N.J. 2020) (holding
statements like Mercedes-Benz cars have “the best possible
paint job” were nonactionable opinions); EP Henry Corp. v.
Cambridge Pavers, Inc., 383 F. Supp. 3d 343, 350 (D.N.J.
at 1137 (quoting Ward v. Zelikovsky, 643 A.2d 972, 979-80
(N.J. 1994)). If a statement could be construed as either fact or
opinion, however, we must construe it as an opinion. Id. A
contrary presumption would “tend to impose a chilling effect
on speech.” Id. (quotations omitted).

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2019) (“[W]hether something is the ‘best’ is highly subjective
[and] is almost always a matter of opinion[.]” (internal
quotation marks omitted)); Hughes v. Panasonic Consumer
Elecs. Co., No. 10-cv-846, 2011 WL 2976839, at *12 (D.N.J.
July 21, 2011) (holding statements that the product “create[s]
superior image and color quality” were “subjective expressions
of opinion”).10 A “fair and natural” reading of these statements
shows that these are nonactionable subjective expressions.
Lynch, 735 A.2d at 1136.
B
The verifiability prong also supports the conclusion that
the statements are nonactionable opinions. The “concept of
verifiability” requires us to determine whether the statement is
10 That these are mostly false advertising cases
strengthens, not undermines, our conclusion that the statements
here are nonactionable opinions. Commercial advertisements
are directed at consumers, whereas peer-reviewed academic
journals are generally “directed to the relevant scientific
community.” ONY, Inc. v. Cornerstone Therapeutics, Inc.,
720 F.3d 490, 496-97 (2d Cir. 2013). If New Jersey courts
have concluded that statements of relative superiority would
not mislead an average consumer, then similar statements
made in an academic journal will not mislead the experts
reading the journal. See Eastman Chem. Co. v. Plastipure, Inc.,
775 F.3d 230, 236 (5th Cir. 2014) (holding disputed statements
made in sales brochures were actionable because “Eastman did
not sue Appellants for publishing an article in a scientific
journal. Rather, Eastman sought to enjoin statements made in
commercial advertisements and directed at customers”).

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“capable of . . . truth or falsity.” Ward, 643 A.2d at 979.11
There are two reasons the statements here are not verifiable.
First, the statements are tentative scientific conclusions
and were expressly disclosed as such. As the Court of Appeals
for the Second Circuit explained:
Most conclusions contained in a scientific
journal article are, in principle, capable of
verification or refutation by means of objective
proof. Indeed, it is the very premise of the
scientific enterprise that it engages with
empirically verifiable facts about the universe.
At the same time, however, it is the essence of
the scientific method that the conclusions of
empirical research are tentative and subject to
revision, because they represent inferences about
the nature of reality based on the results of
experimentation and observation.
ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490,
496 (2d Cir. 2013) (quotations and internal citation omitted);
see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
597 (1993) (“Scientific conclusions are subject to perpetual
revision.”); cf. United States v. Mitchell, 365 F.3d 215, 252 (3d
Cir. 2004) (concluding that, for the purposes of judicial notice,
“a scientific conclusion—something which is subject to
11 “Requiring that a statement be verifiable ensures that
defendants are not punished for exercising their First
Amendment right to express their thoughts.” Ward, 643 A.2d
at 979.

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revision—[is] not a ‘fact’”).12
The statements here expressly claim they are tentative
scientific conclusions. For example, immediately before
concluding that EXPAREL is not superior to standard
analgesics, the Hussain Article enumerates five “notable
limitations” of its study, including “variabilities” that “may
have played a confounding effect,” “publication bias” in
selecting studies, and statistical limitations due “to scarcity of
data.” JA88. As for the Ilfeld Review, Pacira takes issue with
its conclusion that “[t]he preponderance of evidence fails to
support the routine use of [EXPAREL] over standard local
anesthetics,” Appellant’s Br. at 48, but the Ilfeld Review
qualifies its conclusion, stating, “[h]owever, medicine is
constantly evolving with ongoing research, and the use of
[EXPAREL] for postoperative analgesia will certainly be no
different.” JA146. It then identifies several “knowledge gaps
for future research,” including improving comparative data for
certain metrics. Id. Based on these disclosures, it is clear the
statements here are tentative scientific conclusions subject to
revision. See, e.g., ONY, 720 F.3d at 498 (“Even if the
conclusions authors draw from the results of their data could
be actionable, such claims would be weakest when, as here, the
authors readily disclosed the potential shortcomings of their
methodology[.]”).
Second, Pacira fails to appreciate the difference
between “verifiability” and “reliability.” Verifiability turns on
12 One court has recently observed that if there is
consensus on a scientific issue, then a statement about the issue
may be deemed verifiable. Conformis, Inc. v. Aetna, Inc., 58
F. 4th 517, 533 (1st Cir. 2023).

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whether a statement is “capable of . . . truth or falsity,” Ward,
643 A.2d at 979, while reliability turns on whether the basis for
the statement is capable of being trusted.13 Pacira’s allegations
boil down to disagreements about the reliability of the
methodology and data underlying the statements.14 For
example, Pacira alleges that the Articles disregarded studies
favorable to EXPAREL and that the Ilfeld Review failed to
consider a relevant procedure, but allegations that “competent
scientists would have included variables that were available to
the defendant authors but . . . were not taken into account in
their analysis” cannot create an actionable falsehood because
they do not bear on whether the statements are verifiable.
ONY, 720 F.3d at 497.15 Pacira also alleges that the Hussain
13 See Reliable, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/reliable (last
visited Mar. 6, 2023) (defining reliable as “suitable,” “fit to be
relied on” or “[d]ependable,” which, in turn, is defined as
“capable of being trusted”).
14 To be sure, a conclusion drawn from falsified or
fraudulent data may be actionable because “there is no
constitutional value in false statements of fact.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 340 (1974); see also ONY,
720 F.3d at 497; CrossFit, Inc. v. Nat’l Strength &
Conditioning Ass’n, No. 14-cv-1191, 2016 WL 5118530, at *7
(S.D. Cal. Sept. 21, 2016) (holding a statement published in an
academic journal was actionable where “a reasonable fact
finder could conclude that the [defendant] fabricated the . . .
data”). Pacira, however, does not allege that any of the data
were falsified.
15 Pacira’s argument that statements in the Ilfeld Review
are “false” in part because of the allegedly undisclosed
conflicts of interest is unavailing. Appellant’s Br. at 50.

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16
Article employed a “flawed method,” JA52, but mere disputes
about the reliability of a scientific study’s disclosed
methodology cannot create an actionable falsehood for trade
libel, as such disputes do not address whether the statements
themselves are verifiable.16 See Saad v. Am. Diabetes Ass’n ,
123 F. Supp. 3d 175, 179 (D. Mass 2015) (“[T]he reliability of
the data in [scientific] articles is not fit for resolution in the
form of a defamation lawsuit.”).17
Substantial undisclosed conflicts of interests may be evidence
of “actual malice” but have no bearing on whether the
statements may be actionable as a threshold matter.
16 Pacira also argues that the Hussain Article falsely
states that studies into EXPAREL were “characterized by low
levels of heterogeneity.” Appellant’s Br. at 47. As the District
Court correctly noted, however, “the Article never claims to
have assessed the heterogeneity for pain scores and, in fact,
expressly discloses that it did not.” Pacira, 583 F. Supp. 3d at
660 (citing JA86).
17 There are, of course, circumstances in which courts
may need to assess the reliability of a scientific study. Liability
under the Lanham Act arises, for example, if the commercial
statement is “literally false.” Novartis Consumer Health, Inc.
v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d
578, 586 (3d Cir. 2002). For certain claims, literal falsity may
be established by showing that “the underlying studies upon
which the representations are based are not sufficiently reliable
to permit one to conclude with reasonable certainty that they
established the claim made.” Bracco Diagnostics, Inc. v.
Amersham Health, Inc., 627 F. Supp. 2d 384, 468 (D.N.J.
2009) (internal quotation omitted).
Our inquiry here is different. We must determine the
threshold question of whether the statements are nonactionable

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17
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.
C
Finally, the context of the statements further
demonstrates that they are nonactionable opinions. In
considering context, New Jersey courts examine, among other
things, the “medium by which the statement is disseminated
and the audience to which it is published.” Wilson v. Grant,
687 A.2d 1009, 1014 (N.J. Super. Ct. App. Div. 1996) (internal
quotation marks omitted); see also Sciore v. Phung, No. 19-
13775, 2022 WL 950261, at *6 (D.N.J. Mar. 30, 2022)
pure opinions protected from a trade libel suit. As part of that
inquiry, we consider whether the statements can be proven true
or false. It is only after establishing the statements can be
proven true or false that reliability of the underlying data and
methodology may become relevant. Pacira’s attacks on
Defendants’ studies do not answer the question of whether the
statements about whether its product is inferior or not superior
are verifiable.

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18
(considering fact that the challenged statement was “a
restaurant review” on Yelp as part of context analysis);
NXIVM Corp. v. Sutton, No. 06-cv-1051, 2007 WL 1876496,
at *10 (D.N.J. June 27, 2007) (considering a statement “in the
context of a scholarly article”).
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).18
18 Although we have not previously applied this
principle to scientific conclusions, we have held in other
contexts that statements directed at readers who are capable of
performing an independent evaluation of the facts upon which
an opinion is based support the conclusion that the opinion is
nonactionable. See, e.g., Dunn v. Gannett N.Y. Newspapers,
Inc., 833 F.2d 446, 454 (3d Cir. 1987) (applying New Jersey
law and holding that statements about a mayor were
nonactionable opinions because they were “based . . . upon
facts that were fully disclosed”); see also McCafferty v.
Newsweek Media Grp., Ltd., 955 F.3d 352, 358 (3d Cir. 2020)
(statements about plaintiff’s political beliefs were
nonactionable because they “characterize[d] disclosed facts”);
Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001) (same
for statements about the quality of plaintiff attorney’s
representation); Redco Corp., 758 F.2d at 972 (same for
statements about the risks of plaintiff’s tire rims); cf. Read v.

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19
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
Profeta, 397 F. Supp. 3d 597, 653 (D.N.J. 2019) (dismissing
trade libel claim under New Jersey law where disputed
statement was a “conclusion or an opinion-based
characterization of the facts”).
19 Pacira asserts that the McCann Editorial and Podcast
“repeat the false conclusions of the Hussain Article and Ilfeld
Review.” Appellant’s Br. at 52. Applying the content,
verifiability, and context considerations to those pieces leads
us to conclude that they are also nonactionable opinions.

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20
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.20
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.21
II
The District Court also correctly denied Pacira’s request
for leave to file an amended complaint. See Krantz v.
Prudential Invs. Fund Mgmt., 305 F.3d 140, 144 (3d Cir. 2002)
(per curiam). Under Federal Rule of Civil Procedure 15(a),
amendment “must be permitted . . . unless it would be
inequitable or futile.” Grayson v. Mayview State Hosp., 293
F.3d 103, 108 (3d Cir. 2002). The sole basis for Pacira’s trade
libel claim is the statements in the Articles, CME, and Podcast.
As discussed above, the statements constitute nonactionable
Moreover, the McCann Editorial allegedly “criticize[s]”
EXPAREL and its cost, JA58, but even “pejorative statements
of opinion are entitled to constitutional protection no matter
how extreme, vituperous, or vigorously expressed they may
be,” Kotlikoff, 444 A.2d at 1091.
20 To the extent that ONY embraced a categorical rule
that scientific statements contained in academic journals are
always immune from a trade libel claim, we decline to hold
that New Jersey law mandates such a rule.
21 As a result, we need not determine whether any of the
Defendants are immune from suit or outside the District
Court’s personal jurisdiction.

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opinions as a matter of law, and no new factual allegations,
including criticisms about the bases for these opinions, would
disturb that conclusion. Therefore, the District Court did not
abuse its discretion in finding that amendment would be futile.
III
For the foregoing reasons, we will affirm.

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