medical influencers show up in false advertising case

Wright Medical Technology, Inc. v. Paragon 28, Inc., 2019 WL
4751807,  No. 18-cv-00691-PAB-STV (D.
Colo. Sept. 30, 2019)
Wright is a medical device developer, manufacturer, and
distributor; its products include surgical plates and other instruments used to
repair bones in the foot and ankle areas. Paragon, founded by three former
high-level Wright employees, makes competing orthopedic plate systems and other
devices used to repair bones in the foot and ankle. Trade secret claims ensued.
Also, Paragon allegedly promoted a “cadaver course” intended
to teach surgeons to perform procedures of the foot and listed Dr. Christopher
Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical
influencer), as “anticipated course faculty” on the course’s promotional
material. It also allegedly engaged in unfair competition by submitting a
patent application that was nearly identical to a patent application that
Wright had filed a month prior and by offering several KOLs equity or ownership
interests in Paragon, leading to the KOLs using Paragon products in surgical
procedures without disclosing their interests.
As to false advertising, Paragon argued that predictions (here,
about who would teach the course) couldn’t be false advertising. But Wright alleged
that there was never any consent for the use of the doctor’s name in
advertising, and that Paragon was aware of this lack of consent, which was
enough.  (But that reasoning has to be
incomplete: did Wright allege that Paragon never even asked the doctor to teach
the course/that he turned them down before they started promoting it? If he had
agreed to teach the course, even without specifically consenting to use of his name
in advertising the course, it shouldn’t be false advertising, though the right
of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) 
Anyway, the rule is that, while “[a]n honest or sincere statement of
belief about a future event is not actionable,”…a statement known at that
time by the speaker to be false, or a statement by a speaker who lacks a good
faith belief in the truth of the statement, may constitute an actionable
misrepresentation.”
However, Wright failed to adequately plead that the lack of
disclosure from KOLs was deceiving the public, and therefore didn’t adequately
plead unfair competition as to that.
Nor did Wright adequately plead passing off (or false
advertising) based on the dueling patent applications. A patent application is
not a tangible good offered for sale and it didn’t constitute commercial
advertising or promotion. 

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