So says the Fifth Circuit in Torrey v. Infectious Diseases Society of America, — F.4th –, 2023 WL 7890067 (5th Cir. Nov. 16, 2023). Which joins the Second and Third Circuits in protecting scientific free speech. Cases we discussed here and here and which support our firm belief that scientific articles are “core” speech that is fully protected under the First Amendment.
Torrey in not a products liability case. Plaintiffs, individuals who allege they suffer from persistent Lyme disease symptoms, brought a misrepresentation claim against the Infectious Diseases Society of American (“IDSA”) regarding guidelines IDSA published in a peer-reviewed medical journal. Plaintiffs claim the guidelines cast doubt on how chronic Lyme disease should be treated or even whether the condition exists. Plaintiffs allege this led to insurance companies denying coverage for chronic Lyme disease. Id. at *1.
Why are we interested? Because this is not so far off from the attacks on scientific speech that we see in products liability litigation. Attacks on methodology used. Attacks on potential conflicts of interest due to corporate funding. The types of attacks that should be resolved by the scientific community, not litigation. So, we laud decisions regardless of context that support our view that nobody should be able to use litigation to sue the other side of an ongoing scientific debate into silence.
The district court in Torrey dismissed the misrepresentation claim because “medical opinions” are “not factual representations.” Id. at *2. The fact that other studies exist that reach different conclusions does not make the IDSA guidelines factual misrepresentations. On appeal, the Fifth Circuit reviewed the decision de novo.
First, the court found that plaintiffs did not challenge the premise that “merely publishing a medical opinion,” cannot give rise to liability for misrepresentation. Id. at *3. Rather, plaintiffs claimed that the district court failed to read the guidelines “in context.” Plaintiffs suggested that the test should be “the perception” of the guidelines as applied by the medical community but cited no authority for that proposition. The court in fact looked at the guidelines as a whole, finding they are explanations of medical research and knowledge citing to other published studies and clinical trials. As opposed to plaintiffs who targeted “isolated portions” of the guidelines. Id.
Second, plaintiffs argued that the guidelines “explain away” contradictory studies. But that is part of the scientific process – examining and refuting contradictory evidence. Scientific literature does “not become actionable factual representations merely because [it] disapprove[s] of studies Plaintiffs prefer.” Id. A difference of opinion is jut that and nothing more.
Third, plaintiffs argued that the guidelines disclaimer contradicts its opening sentence. The opening sentence states that the guidelines are for use by health care providers who treat Lyme disease. The disclaimer essentially says the guidelines are just that—guidelines. They “cannot always account for individual variation among patients” and ultimate treatment decisions should be made by the treating physician. Id. at *4. As the court noted, it is hardly contradictory both to offer general guidance and to recognize that final treatment decisions should be left to the judgment of the treating doctor; the person who best knows the individual patient.
Finally, plaintiffs focused on two statements in the guidelines which the court quickly concluded were medical opinions:
In this context (a scientific debate over treatment options 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 because their doctors or insurance providers found the opinions persuasive.Id.
With absolutely no compelling argument from plaintiffs, the Fifth Circuit joined the others in holding that scientific discourse and journal articles are protected by the First Amendment. Ring another bell for freedom of speech.