Medical Influencers Show Up in False Advertising Case

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From Rebecca Tushnet’s 43(B)log:

Wright [Medical Technology] 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.”

Link to the rest at Rebecca Tushnet’s 43(B)log

PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.

If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.

The OP reminded PG of the tort claim called False Light. From Wikipedia:

In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.

False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.

False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.

The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:

1. 1. A publication by the defendant about the plaintiff;
   2. made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
   3. which places the Plaintiff in a false light; AND
   4. that would be highly offensive (i.e., embarrassing to reasonable persons).

Link to the rest at Wikipedia

The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.

To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.