Vascular Solutions Inc. v. Marine Polymer Technologies

Filing 920091223

Opinion

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var WPFootnote1 = 'Massachusetts courts have not decided whether malice is an\
element of the tort, e.g., Dulgarian v. Stone, 652 N.E.2d 603, 609\
& n.9 (Mass. 1995), but might require it if faced with the issue\
again, see id. at 609 (quoting the Restatement (Second) of Torts §\
623A (1977), which provides the actual malice standard for\
injurious falsehood/product disparagement actions).\
'

var WPFootnote2 = 'The Ortel article states that "[a]dverse clinical\
complications in the postoperative period did not appear to be\
associated with the development of elevated antibody levels to\
bovine or human coagulation factors" (emphasis added). One of the\
experts at trial, Dr. Mann, explained that this passage "means . .\
. that [the article\'s authors] could not identify an association\
between the generation of an antibody and . . . any clinical\
event."\
'

var WPFootnote3 = 'The claim that 36 percent of patients have abnormal\
coagulation results that are "irreversible for life" is\
significantly different, and better supported by the Ortel article\
in combination with Stevens\' probable understanding of immune\
memory, than the stronger statement that linked two bovine thrombin\
exposures to a substantial (impliedly 36% or higher) risk of\
particular bleeding disorders, which we have decided was\
unsupported by the Ortel article and made with actual malice. \
'

var WPFootnote4 = 'The phrase "special damages"--common in defamation law--means\
nothing more than actual damages (as opposed to damages--e.g., to\
reputation--that are presumed for certain libelous statements),\
Peckham v. Holman, 28 Mass. (1 Pick.) 484, 486 (1831); the\
Restatement, followed in a number of jurisdictions, goes even\
further--in certain but not all cases--by demanding proof of\
specific lost sales. Restatement (Second) of Torts § 633 (1977)\
(special damages "may be established by (a) proof of the conduct of\
specific persons, or (b) proof that the loss has resulted from the\
conduct of a number of persons whom it is impossible to identify");\
e.g., Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 75\
F. Supp. 2d 235, 240-41 (S.D.N.Y. 1999) (rejecting suit because the\
plaintiff did not identify specific lost customers when it was\
possible to do so), aff\'d, 314 F.3d 48 (2d Cir. 2002). \
'

var WPFootnote5 = 'However, because MPT had only about 25 sales representatives\
in addition to a few executives who made sales calls, it should\
have been feasible to identify for at least some of those agents\
the customers and potential customers to whom they spoke during the\
relevant time period and so to follow the trail to at least some\
lost sales.\
'

var WPFootnote6 = 'See, e.g., Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co.,\
788 N.E.2d 522, 544 (Mass. 2003); Brewster Wallcovering Co. v. Blue\
Mountain Wallcoverings, Inc., 864 N.E.2d 518, 529-30, 541-43 (Mass.\
App. Ct. 2007); Ricky Smith Pontiac, Inc. v. Subaru of New England,\
Inc., 440 N.E.2d 29, 46-47 (Mass. App. Ct. 1982).\
'

var WPFootnote7 = 'Restatement 633 provides that the asserted pecuniary loss\
must "result[] directly and immediately from the effect of the\
conduct of third persons" and that such loss "may be established by\
\
                   (a) proof of the conduct of specific persons, or\
                   (b) proof that the loss has resulted from the\
conduct of a number of persons whom it is impossible to\
identify.\
\
The pecuniary loss thus must be caused by the impact of the\
challenged statements on the conduct of third parties, who may be\
identifiable ((2)(a)) or not ((2)(b)).\
'

var WPFootnote8 = 'The district court in Bose did not invoke the "widespread\
dissemination" exception by name, but used its approach in allowing\
Bose to prove a decline in sales from publication of the article. \
See 529 F. Supp. at 364.\
'

var WPFootnote9 = 'It alternatively claims that VSI has not proven wide\
dissemination because the record shows only a single instance in\
which the challenged statements were actually published to a\
customer. That contention is unpersuasive. The fact that only one\
known customer was given physical possession of the marketing\
bulletin does not mean the statements it contained were not widely\
disseminated. The marketing bulletin itself urged sales agents to\
communicate its message "to all health care providers," and it is\
a fair inference that they followed those instructions and verbally\
disseminated the bulletin\'s content, at least generally, to a large\
group of customers and potential customers.\
'

var WPFootnote10 = 'These determinations must be made pretrial because the nature\
of the evidence that will be required at trial depends on whether\
the widespread dissemination exception applies, and to what extent. \
This requirement is not an innovation. The availability of the\
exception would always have to be determined pretrial because of\
its effect on the damages proof at trial.\
'

var WPFootnote11 = 'The chart, which shows sales totals in dollars for numerous\
MPT customers for the years 2002 through 2007, is labeled "MPT\
Accounts lost as a Result of Vascular Solutions Activities."\
'

var WPFootnote12 = 'Although not all of the customers Stevens visited had\
switched to the D-Stat Dry, VSI acknowledges that at least some of\
those customers were among its clientele, and that group included\
some who remained VSI customers despite Stevens\' efforts to woo\
them back.\
'

var WPFootnote13 = 'MPT did object to VSI\'s mid-trial change in its damages\
theory from asserting lost sales at the nine specifically\
identified hospitals identified in discovery to claiming a loss of\
market share, but it did not raise the requirements of the product\
disparagement cause of action as a basis for its objection.\
'

var WPFootnote14 = 'In that case, the district court also would need to decide\
how much specific lost-customer evidence must be presented in\
conjunction with generalized evidence of lost sales.\
'

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