Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Injunctive relief denied in action over articles critical of physician’s practice, (Apr 3, 2015)

By Linda O’Brien, J.D., LL.M.

In an action by one physician against another physician for false advertising, the federal district court in Fort Pierce, Florida has denied a motion for temporary and preliminary injunction, seeking to remove two articles published by the defending physician from a non-profit organization’s website that were critical of the complaining physician’s practice. The plaintiff physician failed to demonstrate a likelihood of success on the merits of his Lanham Act false advertising claim, since the accused articles were not shown to be commercial speech (Tobinick v. Novella, April 2, 2015, Rosenberg, R.).

Edward Tobinick is a doctor who treats patients through two institutes—“Edward Lewis Tobinick M.D.” and “INR PLLC”—both doing business as the “Institute of Neurological Recovery.” In May 2013, Dr. Steven Novella, a neurologist, published an article on the website of a non-profit organization, Society for Science-Based Medicine, critical of Tobinick’s use of the biopharmaceutical Enbrel for a growing list of conditions. After Novella refused Tobinick’s request to retract the article, in June 2014, Tobinick filed suit against Novella and the Society for Science-Based Medicine, alleging, in part, violations of the Lanham Act. Tobinick claimed that the article contained false statements concerning the viability of Tobinick’s treatments, the scientific literature discussing those treatments, and the size and locations of Tobinick’s institutes. In July 2014, Novella published a second article, largely restating his comments from the first article.

In March 2015, the Society for Science-Based Medicine’s motion for summary judgment was granted. Before the court was Tobinick’s motion for temporary and preliminary injunctive relief seeking removal of the articles from the Society’s website.

To obtain a preliminary injunction against Novella, Tobinick was require to demonstrate a likelihood of success on the merits, irreparable harm absent injunctive relief, and the absence of an adequate remedy at law, the court explained.

Lanham Act claims. In denying the motion for injunctive relief, the court determined that the plaintiff did not demonstrate a substantial likelihood of success on his Lanham Act claim. Tobinick’s argument that the articles were advertisements for Novella’s neurology practice was rejected. According to the court, the articles proposed no commercial transaction as to fall within the definition of commercial speech. Both articles clearly stated their intent to raise public awareness about issues pertaining to Tobinick’s treatment so they did not relate solely to the “economic interests of the speaker and its audience.”

Moreover, Tobinick failed to show that Novella had an economic motivation for the speech. Science communication was Novella’s passion, interest, and hobby. There was no evidence that his association with the Society for Science-Based Medicine was his primary source of income.

Irreparable harm. Additionally, Tobinick failed to demonstrate that a substantial threat of irreparable injury. The court noted that Tobinick’s delay in filing the motion negated any claim of irreparable harm. Furthermore, he failed to show an inadequate remedy at law, since any harm he suffered could be compensated with money damages.

The case is No. 9:14-CV-80781-ROSENBERG/BRANNON.

Attorneys: Aaron R. Gott (Bona Law, PC) for Edward Lewis Tobinick, MD and INR PLLC. Theresa M. Haar (Randassa Legal Group) for Steven Novella, MD.

Companies: INR PLLC

Cases: Advertising FloridaNews