# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 40728

**____________ Lisa Torrey; Kathryn Kocurek,**  Individually and on behalf of **the Estate of J. David Kocurek, Ph.D.; Amy Hanneken; Jane**  **Powell; Carol Fisch; John Valerio,** Individually and as Next Friend of **Christopher Valerio; Randy Sykes; Brienna Reed; Rosetta Fuller; Adriana Monteiro Moreira;**  **Jessica McKinnie; Kristine Woodard; Gayle Clarke;**  **Allison Lynn Caruana; Chloe Lohmeyer; Tawnya Dawn Smith,**  Individually and as Next Friend of **Monet Pitre; Mike Peacher,**  Individually and as Next Friend of **Ashleigh Peacher; Alarie Bowerman,**  Individually and as Next Friend of **Elisa Bowerman, Emory Bowerman**  and **Anais Bowerman,**
Plaintiffs

— Appellants **,**

versus
**Infectious Diseases Society of America,**
Defendant

— Appellee

**.**

**______________________________** Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:17

- CV

- 190

**______________________________** Before **Jones ,**  **Stewart ,**  and **Duncan ,**  Circuit Judges

**. Stuart Kyle Duncan,**  Circuit Judge **:** United States Court of Appeals Fifth Circuit 

### FILED November 16, 2023 Lyle W. Cayce Clerk Case: 22-40728 Document: 00516971426 Page: 1 Date Filed: 11/16/2023No. 22

- 40728

2 A professional society specializing in the study and treatment of infectious diseases published guidelines in a peer

- reviewed medical journal for treating Lyme disease. Individuals who claim to suffer from persistent Lyme disease symptoms sued the society, alleging the guidelines harmed them by casting doubt on how chronic Lyme disease should be treated and even whether the condition exists . The district court dismissed the claims because it concluded that the statements at issue were non

- actionable medical opinions, not factual assertions that could support a claim for fraudulent or negligent misrepresentation . We **AFFIRM**

. **I.**

**A.** Plaintiffs are people who claim to suffer from chronic Lyme disease. A person co ntracts Lyme disease from ticks carrying the bacterium Borrelia burgdorferi

. S ee generally Robert L. Bratton et al., Diagnosis and Treatment of Lyme Disease , 83 **Mayo Clinic Proc**

**.** 566 (2008)

. Typical symptoms are fever, headache, swollen joints, fatigue, and rash es . M any patients respond

to short

- term antibiotics , but some do not. This latter group is said by some to experience “post

- Lyme disease syndrome,” “posttreatment chronic Lyme disease,” or “chronic Lyme di sease.” The nature of chronic Lyme disease, and how to properly treat the condition, are matters of scientific dispute. Plaintiffs allege that s ome doctors , accepting the phenomenon’s existence , recommend a holistic approach that may include long

- term anti biotics. Others take a different view

— like the Defendant here, the Infectious Diseases Society of America (“ **IDSA** ”), a professional society of doctors, scientists, and other healthcare professionals.
In 2006, **IDSA** published The Clinical Assessment, Treatmen t, and Prevention of Lyme Disease, Human Granulocytic Anaplasmosis, and Babesiosis: Case: 22-40728 Document: 00516971426 Page: 2 Date Filed: 11/16/2023No. 22

- 40728

3 Clinical Practice Guidelines by the Infectious Diseases Society of America (“the Guidelines”). The Guidelines appeared in the peer

- reviewed medical journal Clinical Infecti ous Diseases , one of **IDSA** ’s publications. T he Guidelines extensively discuss how to diagnose and treat Lyme disease

. 1 Throughout, they express doubt about the causes, frequency , and even the existence of chronic Lyme disease. Moreover , the Guidelines do not recommend long

- term antibiotic therapy for persons with persistent Lyme symptoms who have already received recommended treatments

. **B.**

In November 2017, Plaintiffs sued **IDSA** , six health insurance companies and a health insurance trade association (collectively, the “Insurance Defendants”) , and seven doctors (“the Doctors ”) who were among the fourteen authors of **IDSA** ’s 2006 Guidelines. Plain tiffs alleged that the Insurance Defendants paid the Doctors “large consulting fees” to include baseless treatment recommendations in the Guidelines, which, in turn, would allow the Insurance Defendants to deny coverage for chronic Lyme disease . Plaintiffs asserted claims under the Racketeer Influenced and Corrupt Organizations Act ( **RICO** ), 18 U.S.C. § 1962(a)

– (d), as well the Sherman Act. From 2019 to 2021, Plaintiffs settled with all Insurance Defendants. They also conducted full discovery on their **RICO** an d anti t rust claims. I n January 2021, on the last day of fact discovery, Plaintiffs filed a Second Amended Complaint, adding for the first time fraudulent and negligent misrepresentation claims against **IDSA**

. **IDSA** and the Doctors moved to

**_____________________**

1 We discuss specific statements from the Guidelines below, as necessary to address Plaintiffs’ arguments

. Case: 22-40728 Document: 00516971426 Page: 3 Date Filed: 11/16/2023No. 22

- 40728

4 dismiss Plaintiffs ’ Second Amended Complaint and also moved for summary judgment on the **RICO** and antitrust claims.

In March 2021 , Plaintiffs filed a Third Amended Complaint, adding allegations supporting their misrepresentation claims. **IDSA** and t he Doctors again moved to dismiss. Plaintiffs later voluntarily dismissed with prejudice their **RICO** claims against **IDSA** and the Doctors and likewise dismissed their antitrust claim against the Doctors (but not against **IDSA** )

. I n September 2021, the d istrict c ourt granted **IDSA** ’s motion for summary judgment on the antitrust claim s

. All that remained were Plaintiffs’ misrepresentation claims against **IDSA** , which the district court dismissed shortly thereafter. The court reasoned tha t “the statements in the **IDSA** Guidelines are not the type of statements that Plaintiffs can recover for based on misrepresentation, as they are medical opinions, not f actual representations.” At best, t he c ourt observed , “Plaintiffs cite other studies or s tatements that have reached different conclusions or formed different opinions than those expressed in the **IDSA** Guidelines.” Subsequently, **IDSA** moved to recover $43,940.06 in costs for defending against Plaintiffs’ **RICO** and antitrust claims. Plaintiffs filed a notice stating they agreed with **IDSA** ’s proposed bill of costs

. Accordingly, the district court granted **IDSA** $43,940.06 in costs and entered final judgment against Plaintiffs

. Plaintiffs timely appealed

. **II.**

We revi ew de novo a Rule 12(b)(6) dismissal for failure to state a claim. See Norsworthy v. Hous

. Indep. Sch. Dist. , 70 F.4th 332, 336 (5th Cir. 2023) . A complaint that fails to state a facially plausible claim must be dismissed

. Bell Case: 22-40728 Document: 00516971426 Page: 4 Date Filed: 11/16/2023No. 22

- 40728

5 Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)

. “ [ F ] acial plausibility”

means “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). We accept well

- pled facts as true and view them in the light most favorable to the plaintiff. PHI Grp., Inc. v. Zurich Am. Ins. Co. , 58 F.4th 838, 841 (5th Cir. 2023). But we disregard “ conclusory allegations, unwarranted factual inferences, or legal conclusions.” Heinze v. Tesco Corp. , 971 F.3d 475, 479 (5th Cir. 2020) (citation omitted)

. **III.**

Plaintiffs argue the district court erred in dismissing their misrepresentation claims against **IDSA**

. T hey contend that the Guidelines , properly read, do not merely report medical opinions but instead mak e factual representations about the proper treatment for , and indeed the very existence of , chronic Lyme disease

. W e disagree . Instead, as explained below,

we agree with the district court that the Guidelines “ are medical opinions, not factual representations ,” and cannot form the basis for a claim of fraudulent or negligent misrepresentation. Before beginning our analysis, we say a brief word about the applicable law. Plaintiffs’ misrepresentation claims might be g overned by the laws of three different States

— Texas, New York, or Virginia. See generally **Rest atement**  **( Second**  **) of**  **Conflict of Laws** §§ 6, 145 ( **Am. L. Inst.**  1971). The parties spar over this choice

- of

- law question , but their disagreement does not touch the k ey issue on which we resolve this appeal

— i.e. , whether the Guidelines constitute non

- actionable medical opinions or actionable factual representations. 2 As to that issue, t he parties appear to

**_____________________**

2 The parties’ disagreement about applicable state law instead centers on the issue of “derivative” reliance

— specifically, whether Plaintiffs may maintain a claim based on the allegation that their doctors relied on **IDSA** ’s alleged misrepresentations. Because we Case: 22-40728 Document: 00516971426 Page: 5 Date Filed: 11/16/2023No. 22

- 40728

6 agree that those States’ laws do not meaningfully differ. 3 Accordingly, we need not resolve the choice

- of

- law question. See LHC Nashua P’ship, Ltd. v. PDNED Sagamore Nashua, L.L.C. , 659 F.3d 450 , 456

– 57 (5th Cir. 2011) ( explaining we need not decide governing State law “if our conclusions would be the same” )

. We t herefore turn to Plaintiffs’ arguments.

Plaintiffs appear to agree that merely publishing a medical opinion

— even a hotly debated one

— in a peer

- reviewed journal cannot give rise to a misrepresentation claim

. Some of our sister circuit s have adopted that
pro position in analogous contexts , relying on both the First Amendment and commonsense observations about the nature of scientific debate

. See Pacira Biosci

. , Inc. v. Am

. Soc ’ y of Anesthesiologists, Inc. , 63 F.4th 240 , 249 (3d Cir. 2023) ( holding that “ content, verifiability, and context ” all support conclusion that statements in peer

- reviewed medical journal are

“ nonactionable opinions ” for trade libel claim s ); ONY, Inc. v. Cornerstone Therapeutics, Inc. , 720 F.3d 490 , 498 (2d Cir. 2013) ( holding that c ontents of article published in peer

- reviewed medical journal are “non

- actionable scientific conclusions” for false advertising claim under Lanham Act ). Our circuit has discussed one of those precedents favorably, albeit in dicta

. See Eastman Chem

. Co. v. Plastipure, Inc. , 775 F.3d 230 , 235 (5th Cir. 2014) (“After a thorough analysis, the Second Circuit concluded that the First Amendment places scientific debates unfolding within the scientific community beyond the reach of the Lanham Act.” (citing ONY , 720 F.3d at
496

– 97) ) . We discuss those cases in greater detail below. For their part,

**_____________________** do not address this issue, we need not address the antecedent choice

- of

- law question posed by the parties.

3 Indeed, Plaintiffs’ brief concedes there is no substantive difference on th is issue among the laws of Texas, New York, or Virginia and that, consequently, “the Court need not resolve the choice

- of

- law question with regards to this issue.” Case: 22-40728 Document: 00516971426 Page: 6 Date Filed: 11/16/2023No. 22

- 40728

7 Plaintiffs do not contest th e principle and, in any event, cite no decision casting any doubt on it. 4 What Plaintiffs do argue, however, is that the district court failed to read the Guidelines’ statements about chronic Lyme disease “in context.” Had it done so, they contend, the court would have seen that the Guidelines do not merely report opinions but, rather, make factual assertions intended to influence doctors and insurance companies. These arguments miss the mark.

Plaintiffs contend the district court “literally ” read the Guidelines without considering “ the perception of them as applied by medical practitioners, other researchers, and influential players within the medical community.” We disagree. Plaintiffs cite no authority instructing courts to read the Guidelines in that way. Instead, Plaintiffs cite cases merely saying

courts must consider “a reasonable person’s perception of the entirety of a publication,” In re Lipsky , 460 S.W.3d 579, 594 (Tex. 2015) , and must avoid “literalism.” Immuno AG. v. Moor

- Jankowski , 567 N.E.2d 1270, 1273 (N.Y. 1991)

. These are everyday interpretive rule s, but Plaintiffs fail to show how the district court violated them

. To the contrary, t he district court explicitly recognized the Guidelines’ context : it noted that the Guidelines “set forth explanations of medical research, experiments and knowledge base d on citations to other published studies and clinical trials, not naked assertions of fact.” Indeed, if any one has taken the Guidelines out of context, it is Plaintiffs . As the district court observed, the statements targeted by Plaintiffs

**_____________________**

4 Accordingly, we need not determine when, if ever, the mere publication of a medical or oth er scientific opinion might form the basis for a cause of action for misrepresentation or any other tort. Case: 22-40728 Document: 00516971426 Page: 7 Date Filed: 11/16/2023No. 22

- 40728

8 “are isolated portions of complex documents and reading the **IDSA** Guidelines in their entirety undermines Plaintiffs’ pleadings

. ”

Plaintiffs also contend the Guidelines show that **IDSA** tried to “bury” or “explain away” treatment failures , which Plaintiffs in terpret as the organization’s “skepticism and overall disapproval of the studies relating to instances of chronic Lyme disease.” This argument is unavailing. Contrary to Plaintiffs’ view, the Guidelines do not become actionable factual representation s mere ly because they disapprove of studies Plaintiffs prefer

. As t he district court concluded, “[a]t best, Plaintiffs cite other studies or statements that have reached different conclusions or formed different opinions tha n those expressed in the **IDSA** Guidelin es.” See Am. Sch. Of Magnetic Healing v. McAnnulty , 187 U.S. 94 , 106 (1902)) (“[D]ifferent schools of medicine have their followers, and many who believe in the one will pronounce the other wholly devoid of merit. But there is no precise standard by which to measure the claims of either

. . . .”).

Plaintiffs next argue that the district court e rred by relying on a Guidelines disclaimer which “contradicts” the Guidelines’ opening

sentence

. We again disagree. The disclaimer states that the “[G]uidelines cannot always account for individual variation among patients,” and that “the ultimate determin ation” to apply them should “ be made by the physician in the light of each patient’s individual circumstances.” The Guidelines ’ introductory sentence states that they “are intended for use by health care providers who care for patients who either have thes e infections or may be at risk for them.” We see no contradiction between the two

statements

. It is perfectly consistent (1) to offer general guidance to physicians about treating Lyme disease, while (2) recognizing the final decision should be left up to the treating physician given inevitable variation in individual cases. In any event, even if Plaintiffs were correct that some Case: 22-40728 Document: 00516971426 Page: 8 Date Filed: 11/16/2023No. 22

- 40728

9 tension existed between the two statements (although we see none) , they cite no authority that this amounts to an actionable misr epresentation.

A s to specific statements in the Guidelines, Plaintiffs emphasize two. They take issue with **IDSA** ’s position s that (1) “[t]here is no convincing biological evidence for the existence of symptomatic chronic B. burgdorferi infection among patients after receipt of recommended treatment regimens for Lyme disease,” and (2) “[ a ] ntibiotic therapy has not proven to be useful and is not recommended for patients with chronic ( > 6 months) subjective symptoms after recommended treatment regimens for Lyme disease.” 5 On their face, however, these statements are medical opinions

. In this context (a scientific debate over treatment option s for persistent Lyme symptoms), to say that evidence is not “convincing” or that some treatment is “not recommended” is plainly to express a medical opinion. Just because Plaintiffs disagree with those opinions does not mean that **IDSA** is somehow liable be cause their doctors or insurance providers found the opinions persuasive

. Not only do Plaintiffs misread the Guidelines, but accepting their arguments would risk p u tting us at odds with other circuits

. For instance, in the Second Circuit’s ONY case, the plaintiff claimed an article in a peer

reviewed medical journal made false statements about the effectiveness of

treatments to help lung function in premature infants. 720 F.3d at 49 2

– 95. The Second Circuit recognized that scientific discourse “ poses several problems for the fact

- opinion paradigm of First Amendment jurisprudence.” Id. at 496. On the one hand, “[m]ost conclusions contained in a scientific journal article are, in principle, capable of verification or refutation by means of objectiv e proof.” Ibid. (internal quotation marks and citation omitted). On

**_____________________**

5 Plaintiffs raise similar objections to **IDSA** ’s not recommending long

- term antibiotic therapy “[b]ecause of a lack of biologic al plausibility, lack of efficacy, absence of supporting data, or the potential for harm to the patient.” Case: 22-40728 Document: 00516971426 Page: 9 Date Filed: 11/16/2023No. 22

- 40728

10 the other hand, “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 na ture of reality based on the results of experimentation and observation.” Ibid. Accordingly, t he court concluded that the statements at issue were “more closely akin to matters of opinion, and [were] so understood by the relevant scientific communities.” I d. at 497. It therefore held that “the contents of the article [were] non

- actionable scientific conclusions.” Id. at 498. Similarly, the Third Circuit’s Pacira case involved a dispute over the efficacy of an anesthetic to control post

- surgical pain. 63 F.4 th at 243. T he manufacturer plaintiff sued defendants for trade libel for publishing

statements in a medical journal criticizing the anesthetic

. Ibid. Ci ting ONY , the Third Circuit examined the content of the publication, the verifiability of the assertions, and the context in which they were written. Id. at 24 5

– 4 9. The

court concluded that a “fair and natural reading of these statements shows that these are nonactionable subjective expressi ons.” Id. at 246 (internal quotation marks and citation omitted)

. Plaintiffs rely on our opinion in Eastman Chemical Co. v. Plastipure, Inc. , but it does not help them. That case involved a plaintiff who manufactured a plastic resin used in drinking conta iners

. 775 F.3d at 233. D efendants, who were plaintiff’s competitors, published an article in a peer

reviewed journal “ summarizing the results of its testing of more than 500 commercially available plastic products. ” Ibid. They also distributed a three

page brochure depicting plaintiff’s resin as containing harmful chemicals. Id.
at 233

– 34. We allowed plaintiff’s Lanham Act suit to go forward, but only after emphasizing that “[plaintiff] did not sue [defendants] for publish ing an article in a scientific journal. ” Id. at 236. Rather, we stated, “[ plaintiff] sought to enjoin statements made in commercial advertisements and directed at customers.” I bi

d. Accordingly, we affirmed the injunction, which appli ed Case: 22-40728 Document: 00516971426 Page: 10 Date Filed: 11/16/2023No. 22

- 40728

11 only to defendants’ statements “in connection with any advertising, promotion, offering for sale, or sale of goods or services , ” but not to the journal article. Id. at 237. As this description of Eastman confirms, the case helps **IDSA** , not Plaintiffs.

In sum , the district cour t did not err in holding that **IDSA** ’s Guidelines statements about chronic Lyme disease constitute nonactionable medical opinions. 6

**IV.** The district court’s judgment is **AFFIRMED**

.

**_____________________**

6 Alternatively, Plaintiffs argue that

— even if the Guidelines are nonactionable medical opinions

— they can still sue for misrepresentation because **IDSA** k new th e opinions were false. We need not address this argument because, as **IDSA** points out, P laintiffs did not raise it in the district court. Plaintiffs ’ reply brief does not even attempt to argue to the contrary. Accordingly, the argument is forfeited. S ee Moore v. LaSalle Mgmt. Co., L.L.C. , 41 F.4th 493 , 509 (5th Cir. 2022) (“We do not consider arguments raised for the first time on appeal.” ( internal quotation marks and citation omitted)). Finally, Plaintiffs argue the district court erred by granting **I DSA**  ’s bill of costs as the prevailing party. But the only basis on which Plaintiffs argue for reversal is that the district court erred in dismissing their misrepresentation claims. Because we affirm the dismissal of those claims, we necessarily affirm the bill of costs. Case: 22-40728 Document: 00516971426 Page: 11 Date Filed: 11/16/2023