United States District Court, D. Massachusetts
MARIO J.A. SAAD, MD PhD, Plaintiff,
AMERICAN DIABETES ASSOCIATION, Defendant
Phd Mario J.A. Saad, Plaintiff: James T. Hargrove, Nicholas
J. Dominello, Steven J. Brooks, Deutsch, Williams, Brooks,
DeRensis & Holland, P.C., Boston, MA.
American Diabetes Association, Defendant: John Mark Dickison,
LEAD ATTORNEY, Lawson & Weitzen, LLP, Boston, MA; Joshua M.D.
Segal, Lawson & Weitzen, Boston, MA.
AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
PLEADINGS (Docket No. 18)
S. HILLMAN, DISTRICT JUDGE.
Mario J.A. Saad, MD, PhD, (" Dr. Saad" ) asserts a
single count of defamation against Defendant American
Diabetes Association (the " ADA" ). The ADA has
moved for judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c). (Docket No. 18). For the following reasons, the motion
the pleadings in the light most favorable to Dr. Saad for
purposes of this motion, the relevant facts are as follows.
Dr. Saad is a professor of medicine employed by the State
University of Campinas in São Paulo, Brazil.
See Pl.'s Compl. ¶ 6. He has published over
200 articles in scholarly journals, four of which appeared in
the ADA's prominent research publication,
Diabetes, in 2011, 2007, 2006 and 1997,
respectively. Id. at ¶ ¶ 12-16. In March
2014, the ADA's Subcommittee on Ethical Scientific
Publications (" ESP" ) informed Dr. Saad that his
2011 and 2007 articles " appear to contain instances of
image manipulation and duplication that violate the
journal's publication policies." Id. at
¶ 17. Dr. Saad was provided an opportunity to respond,
but his explanation did not resolve the ADA's doubts
about the reliability of the data in the articles.
Id. at ¶ 19.
April 2014, the ADA contacted the State University of
Campinas regarding their concerns about Dr. Saad's work,
and the University appointed an " Inquiry
Commission" to investigate the matter. Id. at
¶ ¶ 20-21. In June 2014, the Inquiry Commission
concluded that " mistakes had occurred in the treatment
of the digital images, identification methods, storage and
manipulation of the laboratory images." Id. at
¶ 23. However, the Commission also found that, despite
the mistakes, the results of the 2007 and 2011 articles were
valid and there was no evidence of dishonesty on the part of
Dr. Saad. Id. In October 2014, the ADA informed Dr.
Saad that the ESP would review the Inquiry Commission's
report, and that it had received new image duplication
allegations regarding the 2006 and 1997 articles.
Id. at ¶ 27. Again, Dr. Saad provided a
response to the allegations. Id. at ¶ 28. In
December 2014, upon completing the review of the Inquiry
Commission's investigation and Dr. Saad's response,
the ADA informed Dr. Saad that Diabetes would
publish an " Expression of Concern" both online and
in the print issue of the journal. Id. at ¶ 30.
The ADA posted a digital expression of concern on February 2,
2015 and also published a hard copy of the expression of
concern later that month. Id. at ¶ 34.
Saad filed this complaint on February 5, 2015, asserting one
count of defamation. The complaint attached and incorporated
the ADA's Expression of Concern. See Expression
of Concern, Docket No. 1-14. Dr. Saad initially sought a
temporary restraining order and preliminary injunction
against the ADA to prevent the hard copy publication of the
Expression of Concern. The Court denied the emergency relief
on the grounds that it amounted to an unconstitutional prior
restraint. (Docket No. 10). Subsequently, Dr. Saad moved for
reconsideration on the ground that the expression of concern
had already been published and therefore injunctive relief
would not be a prior restraint. The Court found that Dr. Saad
failed to prove a likelihood of success on the merits of his
defamation claim and therefore denied the motion for
reconsideration. (Docket No. 17). On March 26, 2015, the ADA
moved for judgment on the pleadings. (Docket No. 18).
Court reviews motions for judgment on the pleadings under a
standard that is essentially the same as that for a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), except that " [a]
Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates
the pleadings as a whole." Aponte--Torres
v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006).
Thus, the court views " the facts contained in the
pleadings in the light most favorable to the party opposing
the motion . . . and draw[s] all reasonable inferences in
[that party's] favor." Curran v. Cousins,
509 F.3d 36, 43 (1st Cir. 2007). Dismissal is only
appropriate if the pleadings, viewed in the light most
favorable to the non-moving party, fail to support a "
plausible entitlement ...