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Saad v. American Diabetes Ass'n

United States District Court, D. Massachusetts

August 18, 2015

MARIO J.A. SAAD, MD PhD, Plaintiff,
v.
AMERICAN DIABETES ASSOCIATION, Defendant

          For MD Phd Mario J.A. Saad, Plaintiff: James T. Hargrove, Nicholas J. Dominello, Steven J. Brooks, Deutsch, Williams, Brooks, DeRensis & Holland, P.C., Boston, MA.

         For American Diabetes Association, Defendant: John Mark Dickison, LEAD ATTORNEY, Lawson & Weitzen, LLP, Boston, MA; Joshua M.D. Segal, Lawson & Weitzen, Boston, MA.

Page 176

         MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (Docket No. 18)

         TIMOTHY S. HILLMAN, DISTRICT JUDGE.

         Plaintiff 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 is granted.

         Background

         Viewing 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.

         In 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

Page 177

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.

         Dr. 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).

         Discussion

         Standard of Review

         This 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 ...


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