PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

______________ 

No. 22-1411 

______________ 

PACIRA BIOSCIENCES, INC., 

 Appellant 

v. 

AMERICAN SOCIETY OF ANESTHESIOLOGISTS, INC.; 

EVAN D. KHARASCH; NASIR HUSSAIN; RICHARD 

BRULL; BRENDAN SHEEHY; MICHAEL K. 

ESSANDOH; DAVID L. STAHL; TRISTAN E. WEAVER; 

FARAJ W. ABDALLAH; BRIAN M. ILFELD; JAMES C. 

EISENACH; RODNEY A. GABRIEL; MARY ELLEN 

MCCANN 

______________ 

On Appeal from the United States District Court 

for the District of New Jersey 

(No. 2-21-cv-09264) 

U.S. District Judge: Honorable Madeline C. Arleo 

______________ 

Argued March 6, 2023 

______________ 

Before: SHWARTZ, BIBAS, and AMBRO, Circuit Judges. 
2

(Filed:March 24, 2023)

Michael Bern

Allen M. Gardner

Gregory G. Garre [ARGUED]

Sarah Gragert

Latham & Watkins

555 11th Street, N.W.

Suite 1000

Washington, DC 20004

Counsel for Plaintiff-Appellant

John A. Boyle

Kevin H. Marino

Marino Tortorella & Boyle

437 Southern Boulevard

Chatham, NJ 07928

Michael B. Carlinsky

Kaitlin P. Sheehan

Ellyde R. Thompson

Quinn Emanuel Urquhart & Sullivan

51 Madison Avenue

22nd Floor

New York, NY 10010

Robert Schwartz

Kathleen M. Sullivan [ARGUED]

Quinn Emanuel Urquhart & Sullivan

865 South Figueroa Street

10th Floor
3

Los Angeles, CA 90017

Counsel for Defendants-Appellees

David S. Bloomfield, Jr.

Porter Wright Morris & Arthur

41 South High Street

Suite 2900

Columbus, OH 43215

Counsel for Defendants-Appellees Nasir Hussain, 

Brendan Sheehy, Michael K. Essandoh, 

David L. Stahl, and Tristan E. Weaver

Eugene Volokh

UCLA School of Law

385 Charles E. Young Drive

Los Angeles, CA 90095

Counsel for Amicus Appellee

Foundation for Individual Rights in Education Inc.

Leonard A. Nelson

American Medical Association

Office of General Counsel

330 North Wabash Avenue

Suite 39300

Chicago, IL 60611

Counsel for Amici Appellee

American Medical Association and

Medical Society of New Jersey
4

Aaron A. Nichols

Steven E. Tiller

Whiteford Taylor & Preston

Seven Saint Paul Street

19th Floor

Baltimore, MD 21202

Counsel for Amicus Appellee

American Society for Clinical Pharmacology & 

Therapeutics

Elizabeth A. McNamara

Alison B. Schary

Davis Wright Tremaine

1251 Avenue of the Americas

21st Floor

New York, NY 10020

Counsel for Amici Appellee

Association of American Publishers Inc.,

International Association of Scientific, Technical and 

Medical Publishers and

Federation of American Societies for Experimental 

Biology

Aaron D. Lindstrom 

Barnes & Thornburg

171 Monroe Avenue N.W.

Suite 1000

Grand Rapids, MI 49503

Counsel for Amicus Appellee

Council of Medical Specialty Societies
5 

 

______________ 

OPINION OF THE COURT 

______________ 

SHWARTZ, Circuit Judge. 

Pacira BioSciences, Inc. (“Pacira”) sued the American 

Society of Anesthesiologists, Inc. (“ASA”), the editor-in-chief 

of its medical journal, and the authors of three articles for 

statements made about one of Pacira’s drug products.1

 Pacira 

claims that the statements constitute trade libel. Because the 

District Court correctly concluded that the statements that form 

the basis of Pacira’s trade libel claim are nonactionable 

opinions, Pacira has failed to state a basis for relief. We will 

therefore affirm. 

I 

A 

This trade libel action arises out of allegedly false and 

misleading statements about liposomal bupivacaine, a nonopioid pain medication that Pacira manufactures under the 

1

 The editor-in-chief is Evan D. Kharasch, and the 

authors are Nasir Hussain, Richard Brull, Brendan Sheehy, 

Michael K. Essandoh, David L. Stahl, Tristan E. Weaver, Faraj 

W. Abdallah, Brian M. Ilfeld, James C. Eisenach, Rodney A. 

Gabriel, and Mary Ellen McCann. 
6 

name EXPAREL.2 The drug is a local anesthetic administered 

at the time of surgery to control post-surgical pain. According 

to Pacira, EXPAREL offers longer lasting pain relief than 

standard local anesthetics. As of 2020, EXPAREL sales 

represented nearly all of Pacira’s total revenue. 

B 

Pacira complains that Defendants published statements 

in a variety of forms, all of which conveyed their view that 

EXPAREL is “not superior” to standard analgesics or provides 

“inferior” pain relief. See Appellant’s Br. at 2, 40; JA62, 67. 

More specifically, Pacira points to the February 2021 issue of 

Anesthesiology, the ASA’s peer-reviewed academic journal

that has over 50,000 subscribers. The cover of the February 

2021 issue states that “Liposomal Bupivacaine Is Not Superior 

to Standard Local Anesthetics” and contains several articles 

that Pacira alleges make false and misleading statements 

disparaging EXPAREL. JA49. Pacira challenges three articles 

in Anesthesiology: (1) a meta-analysis of studies examining 

the efficacy of EXPAREL (the “Hussain Article”), which 

concludes that the drug is “not superior” to standard 

anesthetics, JA77; (2) a narrative review of clinical trials 

involving EXPAREL (the “Ilfeld Review”), which reaches a 

similar conclusion; and (3) an editorial based on the metaanalysis and narrative review (the “McCann Editorial”) 

2 The facts are drawn from Pacira’s complaint, which 

we accept as true in accordance with our standard of review for 

motions under Fed. R. Civ. P. 12(b)(6). Fowler v. UPMC 

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). 
7 

(collectively, the “Articles”).3 Pacira alleges that the Articles

rely on studies that fail to isolate certain variables, reach 

unqualified conclusions about EXPAREL’s efficacy, and 

discredit industry-funded trials. 

Pacira also raises specific issues about each of the 

Articles. As to the Hussain Article, Pacira contends that it 

“cherry-picked” studies that disfavor EXPAREL, JA51, 

employed a “flawed method” known as “crude pooling,”4

JA52, and violated “the standards of medical research” by 

failing to account for the statistical heterogeneity5 of the 

studies on which it relied, JA53. As to the Ilfeld Review, 

Pacira contends that it failed to discuss the “most relevant 

anesthesia procedure,” JA54, ignored studies favorable to 

EXPAREL with minimal explanation, and that two of its 

authors failed to disclose financial conflicts of interest. As to 

the McCann Editorial, Pacira alleges that it repeats the 

conclusions of the Hussain Article and Ilfeld Review, 

“criticize[s]” “EXPAREL’s cost” and “strongly insinuates that 

the FDA approved EXPAREL with insufficient evidence.” 

JA58. 

3 Because the Articles are attached to the complaint as 

exhibits whose authenticity is not questioned, we may consider 

them. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 

2009). 

4 According to Pacira, crude pooling is a methodology 

in which results from different studies, analyzing different 

populations, are grouped together. 

5 In its complaint, Pacira explains that a heterogeneity 

analysis accounts for differences in population, type of 

medications, outcome definitions, and design across different 

studies. 
8 

In addition to publishing the Articles, the ASA offered 

a Continuing Medical Education program (the “CME”) that 

allowed participants to answer questions based on the Articles 

and receive credit to satisfy medical licensure requirements. 

Pacira alleges that these questions restate as fact the Articles’ 

conclusions, including that EXPAREL is “inferior” to standard 

anesthetics, JA62, and that studies favoring EXPAREL are 

biased. Finally, Anesthesiology produced a podcast (the 

“Podcast”) that also allegedly repeated the conclusions of the 

Articles “without acknowledging their many flaws.” JA65. 

C 

Pacira filed a complaint alleging a single count of trade 

libel. The District Court granted Defendants’ motion to 

dismiss the complaint for failure to state a claim under Federal 

Rule of Civil Procedure Rule 12(b)(6), holding that Pacira 

failed to allege that the statements are susceptible to a 

defamatory meaning. Pacira Biosciences, Inc. v. Am. Soc’y of 

Anesthesiologists, Inc., 583 F. Supp. 3d 654, 658 (D.N.J. 

2022). The District Court explained that “a scientific 

conclusion based on nonfraudulent data in an academic 

publication is not a ‘fact’ that can be proven false through 

litigation,” and Pacira failed to identify any aspect of the 

Articles, CME, or Podcast that “bring their conclusions outside 

the protected realm of scientific opinion.” Id. at 659. 

Pacira appeals. 
9 

II6

Defamation and trade libel are similar causes of action 

but remedy different harms. See Dairy Stores, Inc. v. Sentinel 

Publ’g Co., 516 A.2d 220, 224-25 (N.J. 1986).7 While 

defamation remedies harm to one’s reputation, trade libel 

remedies harm to the reputation of one’s property or product.8

 

6 The District Court had jurisdiction pursuant to 28 

U.S.C. § 1332(a)(1). We have jurisdiction pursuant to 28 

U.S.C. § 1291. We exercise plenary review of a district court’s 

order granting a motion to dismiss for failure to state a claim, 

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 

2011), and must determine whether the complaint, construed 

“in the light most favorable to the plaintiff,” Santomenno ex 

rel. John Hancock Tr. v. John Hancock Life Ins. Co., 768 F.3d 

284, 290 (3d Cir. 2014) (citation and quotation marks omitted), 

“contain[s] sufficient factual matter, accepted as true, to ‘state 

a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). The parties agree that New Jersey 

law governs Pacira’s claim. 

7 Trade libel has also been referred to as “product 

disparagement” and “slander of title,” among other things, but 

for consistency, we will use the term trade libel. See Dairy 

Stores, 516 A.2d at 224; see also Sys. Operations, Inc. v. Sci. 

Games Dev. Corp., 555 F.2d 1131, 1138 n.6 (3d Cir. 1977) 

(noting the “confusing” terminology in this area of law). 

8 To succeed on a trade libel claim under New Jersey 

law, a plaintiff must prove: “(1) publication (2) with malice (3) 

of false allegations concerning plaintiff’s property or product 

(4) causing special damages, i.e., pecuniary harm.” Sys. 
10 

See id. at 224. Despite their differences, both causes of action 

protect similarly important interests in the free flow of 

information and are thus subject to the same privileges, or 

limitations, that render certain statements nonactionable. Id. at 

226 (“[A] qualified privilege [for trade libel] should exist 

wherever it would exist in a defamation action.”); see also Va. 

State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 

425 U.S. 748, 763-64 (1976) (holding society and consumers 

both have a strong interest “in the free flow of commercial 

information”). 

One such limitation is that opinion statements are 

generally nonactionable. Lynch v. N.J. Educ. Ass’n, 735 A.2d 

1129, 1137 (N.J. 1999). Statements of pure opinion, which are 

those “based on stated facts or facts that are known to the 

parties or assumed by them to exist,” do not provide a basis for 

relief. Id. (quoting Dairy Stores, 516 A.2d at 231); see also

DeAngelis v. Hill, 847 A.2d 1261, 1269 (N.J. 2004)

(“Statements of opinion, as a matter of constitutional law, 

enjoy absolute immunity.” (quoting Dairy Stores, 516 A.2d at 

231)). Mixed opinions, which are opinions based on 

undisclosed facts or assumptions, are similarly nonactionable 

“unless they imply false underlying objective facts.” Lynch, 

734 A.2d at 1137. Whether a statement is a nonactionable 

opinion is a threshold question of law. Kotlikoff v. Cmty. 

News, 444 A.2d 1086, 1090 (N.J. 1982). In making this 

determination, we consider the (1) content, (2) verifiability, 

and (3) context of the statements. Lynch, 735 A.2d at 1136.9

 

Operations, 555 F.2d at 1140; see also Dairy Stores, 516 A.2d 

at 238 (Garibaldi, J., concurring). 

9 “The higher the ‘fact content’ of a statement, the more 

likely that the statement will be actionable.” Lynch, 735 A.2d 
11 

As explained below, each consideration supports our 

conclusion that the statements here are nonactionable opinions. 

A 

We first examine the content of the statements. 

“Evaluation of content involves consideration not merely of a 

statement’s literal meaning, but also of the fair and natural 

meaning that reasonable people of ordinary intelligence would 

give to it.” Id. 

Pacira seeks relief based on two statements: (1) that 

EXPAREL is “not superior” to local anesthesia; and (2) that it 

is an “inferior analgesic.” Appellant’s Br. at 2, 40; JA62, 67. 

Stating thatsomething is “not superior” or “inferior” is the type 

of “loose” or “figurative” language that the New Jersey 

Supreme Court has said is “more likely to be deemed nonactionable as rhetorical hyperbole.” Ward v. Zelikovsky, 643 

A.2d 972, 980 (N.J. 1994) (quoting Milkovich v. Lorain J. Co., 

497 U.S. 1, 21 (1990)); cf. Vitamin Energy, LLC v. Evanston 

Ins. Co., 22 F.4th 386, 394 n.11 (3d Cir. 2022) (noting that 

general “claims of relative superiority” are nonactionable

opinions in advertising context); Ponzio v. Mercedes-Benz 

USA, LLC, 447 F. Supp. 3d 194, 235 (D.N.J. 2020) (holding 

statements like Mercedes-Benz cars have “the best possible 

paint job” were nonactionable opinions); EP Henry Corp. v. 

Cambridge Pavers, Inc., 383 F. Supp. 3d 343, 350 (D.N.J. 

at 1137 (quoting Ward v. Zelikovsky, 643 A.2d 972, 979-80 

(N.J. 1994)). If a statement could be construed as either fact or 

opinion, however, we must construe it as an opinion. Id. A 

contrary presumption would “tend to impose a chilling effect 

on speech.” Id. (quotations omitted). 
12 

2019) (“[W]hether something is the ‘best’ is highly subjective 

[and] is almost always a matter of opinion[.]” (internal 

quotation marks omitted)); Hughes v. Panasonic Consumer 

Elecs. Co., No. 10-cv-846, 2011 WL 2976839, at *12 (D.N.J. 

July 21, 2011) (holding statements that the product “create[s] 

superior image and color quality” were “subjective expressions 

of opinion”).

10 A “fair and natural” reading of these statements 

shows that these are nonactionable subjective expressions. 

Lynch, 735 A.2d at 1136. 

B 

The verifiability prong also supports the conclusion that 

the statements are nonactionable opinions. The “concept of 

verifiability” requires us to determine whether the statement is 

10 That these are mostly false advertising cases 

strengthens, not undermines, our conclusion that the statements 

here are nonactionable opinions. Commercial advertisements 

are directed at consumers, whereas peer-reviewed academic 

journals are generally “directed to the relevant scientific 

community.” ONY, Inc. v. Cornerstone Therapeutics, Inc., 

720 F.3d 490, 496-97 (2d Cir. 2013). If New Jersey courts 

have concluded that statements of relative superiority would 

not mislead an average consumer, then similar statements 

made in an academic journal will not mislead the experts 

reading the journal. See Eastman Chem. Co. v. Plastipure, Inc., 

775 F.3d 230, 236 (5th Cir. 2014) (holding disputed statements 

made in sales brochures were actionable because “Eastman did 

not sue Appellants for publishing an article in a scientific 

journal. Rather, Eastman sought to enjoin statements made in 

commercial advertisements and directed at customers”). 
13 

“capable of . . . truth or falsity.” Ward, 643 A.2d at 979.11 

There are two reasons the statements here are not verifiable. 

First, the statements are tentative scientific conclusions 

and were expressly disclosed as such. As the Court of Appeals 

for the Second Circuit explained: 

Most conclusions contained in a scientific 

journal article are, in principle, capable of 

verification or refutation by means of objective 

proof. Indeed, it is the very premise of the 

scientific enterprise that it engages with 

empirically verifiable facts about the universe. 

At the same time, however, 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 nature of reality based on the results of 

experimentation and observation. 

ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 

496 (2d Cir. 2013) (quotations and internal citation omitted); 

see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 

597 (1993) (“Scientific conclusions are subject to perpetual 

revision.”); cf. United States v. Mitchell, 365 F.3d 215, 252 (3d 

Cir. 2004) (concluding that, for the purposes of judicial notice, 

“a scientific conclusion—something which is subject to 

11 “Requiring that a statement be verifiable ensures that 

defendants are not punished for exercising their First 

Amendment right to express their thoughts.” Ward, 643 A.2d 

at 979. 
14 

revision—[is] not a ‘fact’”).12 

The statements here expressly claim they are tentative 

scientific conclusions. For example, immediately before

concluding that EXPAREL is not superior to standard 

analgesics, the Hussain Article enumerates five “notable 

limitations” of its study, including “variabilities” that “may 

have played a confounding effect,” “publication bias” in 

selecting studies, and statistical limitations due “to scarcity of 

data.” JA88. As for the Ilfeld Review, Pacira takes issue with 

its conclusion that “[t]he preponderance of evidence fails to 

support the routine use of [EXPAREL] over standard local 

anesthetics,” Appellant’s Br. at 48, but the Ilfeld Review 

qualifies its conclusion, stating, “[h]owever, medicine is 

constantly evolving with ongoing research, and the use of 

[EXPAREL] for postoperative analgesia will certainly be no 

different.” JA146. It then identifies several “knowledge gaps 

for future research,” including improving comparative data for 

certain metrics. Id. Based on these disclosures, it is clear the

statements here are tentative scientific conclusions subject to 

revision. See, e.g., ONY, 720 F.3d at 498 (“Even if the 

conclusions authors draw from the results of their data could 

be actionable, such claims would be weakest when, as here, the 

authors readily disclosed the potential shortcomings of their 

methodology[.]”). 

Second, Pacira fails to appreciate the difference 

between “verifiability” and “reliability.” Verifiability turns on 

12 One court has recently observed that if there is 

consensus on a scientific issue, then a statement about the issue 

may be deemed verifiable. Conformis, Inc. v. Aetna, Inc., 58 

F. 4th 517, 533 (1st Cir. 2023). 
15 

whether a statement is “capable of . . . truth or falsity,” Ward, 

643 A.2d at 979, while reliability turns on whether the basis for 

the statement is capable of being trusted.

13 Pacira’s allegations 

boil down to disagreements about the reliability of the 

methodology and data underlying the statements.

14 For 

example, Pacira alleges that the Articles disregarded studies 

favorable to EXPAREL and that the Ilfeld Review failed to 

consider a relevant procedure, but allegations that “competent 

scientists would have included variables that were available to 

the defendant authors but . . . were not taken into account in 

their analysis” cannot create an actionable falsehood because 

they do not bear on whether the statements are verifiable. 

ONY, 720 F.3d at 497.15 Pacira also alleges that the Hussain 

13 See Reliable, Merriam-Webster Dictionary, 

https://www.merriam-webster.com/dictionary/reliable (last 

visited Mar. 6, 2023) (defining reliable as “suitable,” “fit to be 

relied on” or “[d]ependable,” which, in turn, is defined as 

“capable of being trusted”). 

14 To be sure, a conclusion drawn from falsified or 

fraudulent data may be actionable because “there is no 

constitutional value in false statements of fact.” Gertz v. 

Robert Welch, Inc., 418 U.S. 323, 340 (1974); see also ONY, 

720 F.3d at 497; CrossFit, Inc. v. Nat’l Strength & 

Conditioning Ass’n, No. 14-cv-1191, 2016 WL 5118530, at *7 

(S.D. Cal. Sept. 21, 2016) (holding a statement published in an 

academic journal was actionable where “a reasonable fact 

finder could conclude that the [defendant] fabricated the . . . 

data”). Pacira, however, does not allege that any of the data 

were falsified. 

15 Pacira’s argument that statements in the Ilfeld Review 

are “false” in part because of the allegedly undisclosed 

conflicts of interest is unavailing. Appellant’s Br. at 50. 
16 

Article employed a “flawed method,” JA52, but mere disputes 

about the reliability of a scientific study’s disclosed 

methodology cannot create an actionable falsehood for trade 

libel, as such disputes do not address whether the statements 

themselves are verifiable.

16 See Saad v. Am. Diabetes Ass’n, 

123 F. Supp. 3d 175, 179 (D. Mass 2015) (“[T]he reliability of 

the data in [scientific] articles is not fit for resolution in the 

form of a defamation lawsuit.”). 17

Substantial undisclosed conflicts of interests may be evidence 

of “actual malice” but have no bearing on whether the 

statements may be actionable as a threshold matter. 

16 Pacira also argues that the Hussain Article falsely 

states that studies into EXPAREL were “characterized by low 

levels of heterogeneity.” Appellant’s Br. at 47. As the District 

Court correctly noted, however, “the Article never claims to 

have assessed the heterogeneity for pain scores and, in fact, 

expressly discloses that it did not.” Pacira, 583 F. Supp. 3d at 

660 (citing JA86). 

17 There are, of course, circumstances in which courts 

may need to assess the reliability of a scientific study. Liability 

under the Lanham Act arises, for example, if the commercial 

statement is “literally false.” Novartis Consumer Health, Inc. 

v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d

578, 586 (3d Cir. 2002). For certain claims, literal falsity may 

be established by showing that “the underlying studies upon 

which the representations are based are not sufficiently reliable 

to permit one to conclude with reasonable certainty that they 

established the claim made.” Bracco Diagnostics, Inc. v. 

Amersham Health, Inc., 627 F. Supp. 2d 384, 468 (D.N.J. 

2009) (internal quotation omitted). 

Our inquiry here is different. We must determine the 

threshold question of whether the statements are nonactionable 
17 

Pacira’s critiques about the Articles’ data and 

methodology may be the basis of future scholarly debate, but 

they do not form the basis for trade libel under New Jersey law. 

To conclude otherwise would risk “chilling” the natural 

development of scientific research and discourse. Kotlikoff, 

444 A.2d at 1088; see also ONY, 720 F.3d at 497 (observing 

that scientific conclusions inspire other scientists to “respond 

by attempting to replicate the described experiments, 

conducting their own experiments, or analyzing or refuting the 

soundness of the experimental design or the validity of the 

inferences drawn from the results”). Thus, the verifiability 

factor supports our conclusion that the statements are 

nonactionable opinions. 

C 

Finally, the context of the statements further 

demonstrates that they are nonactionable opinions. In 

considering context, New Jersey courts examine, among other 

things, the “medium by which the statement is disseminated 

and the audience to which it is published.” Wilson v. Grant, 

687 A.2d 1009, 1014 (N.J. Super. Ct. App. Div. 1996) (internal 

quotation marks omitted); see also Sciore v. Phung, No. 19-

13775, 2022 WL 950261, at *6 (D.N.J. Mar. 30, 2022) 

pure opinions protected from a trade libel suit. As part of that 

inquiry, we consider whether the statements can be proven true 

or false. It is only after establishing the statements can be 

proven true or false that reliability of the underlying data and 

methodology may become relevant. Pacira’s attacks on 

Defendants’ studies do not answer the question of whether the 

statements about whether its product is inferior or not superior 

are verifiable. 
18 

(considering fact that the challenged statement was “a 

restaurant review” on Yelp as part of context analysis); 

NXIVM Corp. v. Sutton, No. 06-cv-1051, 2007 WL 1876496, 

at *10 (D.N.J. June 27, 2007) (considering a statement “in the 

context of a scholarly article”). 

The statements here were made in a peer-reviewed 

journal for anesthesiology specialists. While statements are 

not protected solely because they appear in a peer-reviewed 

journal, such journals are often “directed to the relevant 

scientific community.” ONY, 720 F.3d at 496-97. Their 

readers are specialists in their fields and are best positioned to 

identify opinions and “choose to accept or reject [them] on the 

basis of an independent evaluation of the facts.” Redco Corp. 

v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985).18

18 Although we have not previously applied this 

principle to scientific conclusions, we have held in other 

contexts that statements directed at readers who are capable of 

performing an independent evaluation of the facts upon which 

an opinion is based support the conclusion that the opinion is 

nonactionable. See, e.g., Dunn v. Gannett N.Y. Newspapers, 

Inc., 833 F.2d 446, 454 (3d Cir. 1987) (applying New Jersey 

law and holding that statements about a mayor were 

nonactionable opinions because they were “based . . . upon 

facts that were fully disclosed”); see also McCafferty v. 

Newsweek Media Grp., Ltd., 955 F.3d 352, 358 (3d Cir. 2020)

(statements about plaintiff’s political beliefs were 

nonactionable because they “characterize[d] disclosed facts”); 

Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001) (same 

for statements about the quality of plaintiff attorney’s 

representation); Redco Corp., 758 F.2d at 972 (same for

statements about the risks of plaintiff’s tire rims); cf. Read v. 
19 

Such is the case here. First, Anesthesiology is a leading 

journal in the field and is offered as a free benefit to the ASA’s 

members, who are “physicians practicing in anesthesiology as 

well as anesthesiologist assistants and scientists interested in 

anesthesiology.” JA34. Second, the readers were provided 

with the data and methodology on which the statements were 

based. The Hussain Article stated that it was based on nine 

randomized studies, gave the reasons for selecting those 

studies, and disclosed the possible shortcomings of its 

methodology. The Ilfeld Review disclosed the seventy-six 

randomized controlled trials involving EXPAREL it reviewed, 

what those trials concluded, and the methods the authors used 

to analyze the data. The CME’s statement that EXPAREL is 

“inferior” to local anesthetics is based directly on the Ilfeld 

Review’s finding that “[n]inety-two percent of trials (11 of 12) 

suggested [standard local anesthesia] provides superior 

analgesia to [EXPAREL].” JA96. Similarly, the CME’s 

statement allegedly suggesting that industry-sponsored studies 

favoring EXPAREL were biased is drawn directly from the 

Articles, which state that industry-sponsored studies were 

“considered a potential source of bias.” JA78; see also JA145 

(“Explicitly excluded from the Cochrane bias tool is industry 

funding.”).19 Therefore, the journal’s readers were provided 

Profeta, 397 F. Supp. 3d 597, 653 (D.N.J. 2019) (dismissing 

trade libel claim under New Jersey law where disputed 

statement was a “conclusion or an opinion-based 

characterization of the facts”). 

19 Pacira asserts that the McCann Editorial and Podcast 

“repeat the false conclusions of the Hussain Article and Ilfeld 

Review.” Appellant’s Br. at 52. Applying the content, 

verifiability, and context considerations to those pieces leads 

us to conclude that they are also nonactionable opinions. 
20 

the basis for the statements, have the expertise to assess their 

merits based on the disclosed data and methodology, and thus 

are equipped to evaluate the opinions the authors reached. 20

For these reasons, content, verifiability, and context all 

support the conclusion that the statements are nonactionable 

opinions. The District Court, therefore, properly dismissed 

Pacira’s complaint.21

II 

The District Court also correctly denied Pacira’s request 

for leave to file an amended complaint. See Krantz v. 

Prudential Invs. Fund Mgmt., 305 F.3d 140, 144 (3d Cir. 2002) 

(per curiam). Under Federal Rule of Civil Procedure 15(a), 

amendment “must be permitted . . . unless it would be 

inequitable or futile.” Grayson v. Mayview State Hosp., 293 

F.3d 103, 108 (3d Cir. 2002). The sole basis for Pacira’s trade 

libel claim is the statements in the Articles, CME, and Podcast. 

As discussed above, the statements constitute nonactionable 

Moreover, the McCann Editorial allegedly “criticize[s]” 

EXPAREL and its cost, JA58, but even “pejorative statements 

of opinion are entitled to constitutional protection no matter 

how extreme, vituperous, or vigorously expressed they may 

be,” Kotlikoff, 444 A.2d at 1091. 

20 To the extent that ONY embraced a categorical rule

that scientific statements contained in academic journals are 

always immune from a trade libel claim, we decline to hold 

that New Jersey law mandates such a rule. 

21 As a result, we need not determine whether any of the 

Defendants are immune from suit or outside the District 

Court’s personal jurisdiction. 
21

opinions as a matter of law, and no new factual allegations, 

including criticisms about the bases for these opinions, would 

disturb that conclusion. Therefore, the District Court did not 

abuse its discretion in finding that amendment would be futile.

III

For the foregoing reasons, we will affirm.