The medical societies that are defendants in the pedicle screw case have scored their first major victory. Four of the cases have been thrown out by federal judges for lack of evidence.
"I am ecstatic," says Tressa Goulding, executive director, Scoliosis Research Society, an organizations that is a defendant in the suit."This proves what I have suspected all along, that once we got to an open-minded judge, [he] would look at the actual evidence and see there is nothing."
The pedicle screw suit, the first mass tort litigation to hold associations liable for what they teach at seminars, is being closely watched not only by the medical society community but by the wider association community because of its potential threat to association-sponsored education, (See "Bone Screw Lawsuit May Threaten Free Speech at Association Seminars," December 1997 issue, page 11.)
In the massive tort litigation case, four medical societies--the North American Spine Society, the Scoliosis Research Society, the American Academy of Orthopaedic Surgeons, and the American Association of Neurosurgeons--are accused of putting on sales events under the guise of educational seminars, as part of a conspiracy with manufacturers to promote-- illegally-- pedicle screws, devices used in spinal surgery. (Although it is legal for physicians to use pedicle screws, it is illegal to promote them.)
After the societies lost in the last of their efforts to get the cases dismissed, U.S. District Court Judge Louis C. Bechtle remanded 53 of the cases to their original courthouses around the country, to be tried individually. That was last November.
In the months after, the societies' attorneys filed summary judgment motions in the individual courts, saying that there was no evidence to support the plaintiffs' claim of a conspiracy to defraud implanting surgeons. So far, the judges agree. Four cases were thrown out of U.S. District Courts: two in Mississippi, one in Virginia, and one in Wisconsin.
While the other federal judges who will be examining the numerous other cases are not bound to follow the first four judges' rulings, "typically other judges will pay attention," says Shawn Collins, chief counsel, pedicle screw litigation, North American Spine Society. "[The first rulings] tend to be persuasive because the cases are so similar." The plaintiffs can appeal the judges' rulings, says Collins, adding, "We expect they will lose."
Although the news is good, there are still negative ramifications from the lawsuit, cautions Robert M. Portman, Esq. Portman represents numerous medical societies, and is an attorney with Jenner & Block in Washington, D.C., the firm that acts as general counsel for the American Society of Association Executives. In an earlier ruling, U.S. District Court Judge Louis C. Bechtle decided that the court would consider the speech at seminars to be commercial speech, not free speech. Commercial speech is not entitled to full First Amendment protection.
That decision, and the fact that the plaintiffs' case survived the earlier motions to dismiss, requiring the societies to expend "extraordinary resources, has to be an ongoing concern," says Portman. While the situation is of most concern for medical societies, there is the potential for analogous suits to occur in the wider association community. An association could be dragged into a products liability suit, for example, says Portman, if a member of the public is injured using a product that a distributor learned about at a seminar.