Posts tagged "HipSaver"

HipSaver, Inc. v. Kiel (Lawyers Weekly No. 10-039-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11085   HIPSAVER, INC.  vs.  DOUGLAS KIEL.       Norfolk.     November 5, 2012.  ‑  March 13, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Practice, Civil, Summary judgment.  Libel and Slander.  Commercial Disparagement.  Damages, Libel.       Civil action commenced in the Superior Court Department on February 15, 2008.   The case was heard by Barbara A. Dortch‑Okara, J., on a motion for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Robert LeRoux Hernandez (Mark Booker with him) for the plaintiff. Robert P. Powers for the defendant. Thomas F. Maffei, Scott McConchie, Paul G. Cushing, & Kaitlyn L. Dunn, for Massachusetts General Hospital & others, amici curiae, submitted a brief.       SPINA, J.  The present action concerns a claim for commercial disparagement arising from the publication of an article in the Journal of the American Medical Association (JAMA).[1]  The plaintiff, HipSaver, Inc. (HipSaver), is a Massachusetts corporation engaged in the design, manufacture, and sale of hip protectors, a device that provides protective padding over the wearer’s hip bones in order to reduce the risk of hip fractures in the event of a fall.  On July 25, 2007, JAMA published an article entitled “Efficacy of a Hip Protector to Prevent Hip Fracture in Nursing Home Residents:  The HIP PRO Randomized Controlled Trial” (article).  According to the article, the “Hip Impact Protection PROject (HIP PRO) was designed to test the efficacy of a biomechanically tested energy-absorbing/shunting hip protector in reducing hip fracture incidence among nursing home residents.”  The article was authored by nine individuals, including the defendant, Dr. Douglas P. Kiel, an associate professor at Harvard Medical School, who conducted the clinical trial that formed the basis for the article and was its lead author.  The article described the clinical trial, analyzed the data collected, and concluded, among other things, that the clinical trial “confirm[ed] the growing body of evidence that hip protectors are not effective in nursing home populations.”   On February 15, 2008, HipSaver filed a complaint in the Superior Court against Dr. Kiel, alleging that he had disparaged HipSaver’s product in the JAMA article and was liable for monetary damages.[2]  A judge denied Dr. Kiel’s motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. […]

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Posted by Massachusetts Legal Resources - March 14, 2013 at 8:13 am

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