Neurotron, Inc. v. American Ass'n of Elec-Trodiagnostic Medicine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NEUROTRON, INCORPORATED, 
Plaintiff-Appellant,
v.
 No. 01-2115
AMERICAN ASSOCIATION OF
ELECTRODIAGNOSTIC MEDICINE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge; William M. Nickerson,
Senior District Judge.
(CA-00-514-WMN)
Argued: May 8, 2002
Decided: October 4, 2002
Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Kevin Francis Arthur, KRAMON & GRAHAM, P.A.,
Baltimore, Maryland, for Appellant. Deanne Elizabeth Maynard,
JENNER & BLOCK, L.L.C., Washington, D.C., for Appellee. ON
BRIEF: Jeffrey H. Scherr, Jean E. Lewis, KRAMON & GRAHAM,
P.A., Baltimore, Maryland, for Appellant. Donald B. Verrilli, Jr.,
Katherine A. Fallow, Jared O. Freedman, JENNER & BLOCK,
L.L.C., Washington, D.C., for Appellee.
2 NEUROTRON v. AMERICAN ASSOC. OF ELECTRODIAGNOSTIC MEDICINE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Plaintiff Neurotron filed suit against American Association of Elec-
trodiagnostic Medicine (AAEM) stemming from their publication of
a technology review of Neurotron’s product that was not favorable.
Neurotron alleged several claims including injurious falsehood, false
light commercial disparagement and a Lanham Act claim and sought
a retraction. AAEM filed a motion for summary judgment which the
district court granted.* Neurotron now appeals and we affirm.
Defendant AAEM is an association of approximately 4500 medical
professionals based in Minnesota. AAEM exists "to serve[] physi-
cians who diagnose and treat patients with disorders of muscle and
nerve" by knowledge exchange and advocacy. AAEM carries out this
mission, in part, through the publication of its official journal, Muscle
& Nerve. AAEM periodically conducts technology reviews and issues
AAEM statements in dedicated pages of Muscle & Nerve.
Neurotron, Inc., a Maryland corporation, is the manufacturer and
distributor of the Neurometer CPT (NCPT), an electrodiagnostic med-
ical device. The NCPT uses electrical current to allow physicians to
test and diagnose neurological disorders that would otherwise require
the intervention of a neurologist or other specialist. In 1989, Dr. Jef-
ferson Katims, the inventor of the NCPT and Neurotron’s medical
and research director, asked AAEM to evaluate the NCPT. At this
time, the AAEM declined, but by 1993, enough of AAEM’s members
had expressed interest or concerns over the use of the Neurometer that
AAEM assigned Dr. George Baquis to prepare a technology review.
*Because all of the remaining claims depended on the resolution of the
Lanham Act and injurious falsehood claims, the district court did not
address those claims individually. The only claim raised on appeal is
with respect to injurious falsehood. Brief, p.1.
NEUROTRON v. AMERICAN ASSOC. OF ELECTRODIAGNOSTIC MEDICINE 3
Dr. Baquis reviewed 164 articles dealing with the NCPT’s useful-
ness in diagnostic testing. Dr. Baquis adopted a set of six factors to
evaluate the literature in order to narrow the field of articles upon
which he would base his review to those with highest degree of schol-
arly merit. Four of these factors required some facility with statistics,
but owing to his limited knowledge in that field, Dr. Baquis applied
those factors loosely, i.e., he credited with statistical analysis any reli-
ance on statistics in an article reviewed. Dr. Baquis eventually identi-
fied 44 articles meeting his criteria. The review concluded that "the
information in the publications is insufficient to make conclusions
about the usefulness of . . . [the NCPT] at the present time."
The AAEM approved the article in 1996, but did not publish it
until 1999. The author of the article was listed as "AAEM Equipment
and Computer Committee." The parties disagree about whether the
article was in fact authored solely by Dr. Baquis or the committee as
a whole. The district court found that this was not a material fact.
Dr. Katims prepared a comprehensive response to the article and
requested that AAEM publish it in Muscle & Nerve and retract the
review. AAEM notified Dr. Katims that the review would not be
retracted, that his response would not be published because it was too
long, and that if he wanted to respond, it would have to conform to
the length of a letter to the editor of 500 words or fewer.
Neurotron brought claims against AAEM for injurious falsehood,
false light commercial disparagement, civil conspiracy, violation of
the Lanham Act, 15 U.S.C. § 1125, and tortious interference. Neu-
rotron claims that the article has caused insurers to stop reimbursing
practitioners for NCPT testing. Neurotron claims that the AAEM had
a financial motive for publishing a negative article because the NCPT
can be used by medical professionals other than those who are AAEM
members. The district court granted summary judgment in favor of
AAEM on all claims.
The district began its analysis with the Lanham Act claim. The dis-
trict court stated that the threshold requirement for a Lanham Act
claim under 15 U.S.C. § 1125(a)(1)(B) was a showing that the chal-
lenged speech is commercial speech. Citing United States v. Edge
Broadcasting Co., 509 U.S. 418, 426 (1993), and quoting City of Cin-
4 NEUROTRON v. AMERICAN ASSOC. OF ELECTRODIAGNOSTIC MEDICINE
cinnati v. Discovery Network, Inc., 507 U.S. 410, 422 (1993), the dis-
trict court concluded that AAEM’s article did not fall into the
definition of commercial speech because it did not refer only to a
commercial transaction, nor was it an "expression related solely to the
economic interests of the speaker and its audience." Importantly, the
district court also found that "chilling the speech of the AAEM in this
instance would likely prevent all debate about such subjects from
entering into the marketplace," because AAEM is the leading profes-
sional association for practitioners in the field. As stated, this part of
the district court’s decision is not contested on appeal.
On the injurious falsehood claims, the district court reviewed the
relevant Maryland law and stated that ECC "‘must establish that
[Defendant], with malice, published a known falsity to a third party,
that caused special damages.’" Mem. Op. at 12 (quoting National
Board for Certification in Occupational Therapy, Inc. v. American
Occupational Therapy Association, 24 F.Supp.2d 494, 511 (D. Md.
1998) (italics added by district court). A principal proof plaintiff
offered as tending to show malice was its characterization of the
defendant’s Strategic Plan, available on AAEM’s website. The plain-
tiff alleged that this plan showed a clear economic motivation to dis-
courage the use of "competing emerging technologies," of which the
NCPT is one. Mem. Op. at 13. The district court found that this plan
did not establish malice by clear and convincing evidence required by
Maryland law, stating that the plan, to the contrary, "identifies the
need for the assimilation to adapt to modern standards in the field."
Additionally, the district court found that the technology review could
not be viewed as an attempt to prevent insurers from reimbursing
users of the NCPT because the review specifically included a dis-
claimer that "[t]his review is not written with the intent that it be used
as a basis for reimbursement decisions." Mem. Op. at 13. Accord-
ingly, the district court granted summary judgment on the injurious
falsehood claim. Having had the benefit of briefing and oral argu-
ment, we are of opinion that the grant of summary judgment to
AAEM was proper for the reasons substantially stated in the opinion
of the district court.
Accordingly, the judgment of the district court is
AFFIRMED.