This is defendant -- Meadox's motion for summary judgment. The unique question presented is whether a true statement made in a letter to third persons by one competitor about another competitor's product can constitute a basis for liability, when the competitor disseminates the information through a marketing survey company employed for that specific purpose.
Plaintiff, C.R. Bard, and defendant, Meadox Medicals, are manufacturers of artificial vascular grafts, a medical device used by surgeons. (The device is also known as a vascular prosthesis). Defendant, Wordtronics Corporation, is a company engaged in the marketing of various products.
In February 1988, the Food and Drug Administration (FDA), adopted a regulation which required all manufacturers of vascular grafts to obtain from the FDA either premarketing approval (PMA), or an investigational device exemption (IDE), as prerequisites to the lawful marketing of their product.
Plaintiff, which had marketed vascular grafts for many years prior to the FDA regulation, failed to comply with the FDA
requirement, and continued to market its grafts without FDA approval.
Sometime after the adoption of the FDA regulations, defendant-Meadox employed defendant-Wordtronics to assist it in the marketing of its vascular grafts.
Thereafter, Wordtronics sent letters to a number of health care providers whose names had been furnished by Meadox, informing them of the fact that there was no currently marketed vascular graft which had FDA approval. The contents of this letter were prepared by Meadox. The letter stated:
On June 1, 1988, the Food and Drug Administration (FDA) stated that impregnated or coated vascular prosthesis will now be considered Class III medical devices. As such, manufacturers of these products must now submit an Investigational Device Exemption (IDE) for clinical evaluation and a Pre-marketing Approval Application (PMAA (sic)) for usage in general patient population. . . . To date, no currently marketed coated graft has yet been granted a PMAA (sic) by the FDA. However, one continues to be commercially marketed.
After receiving the letter, numerous medical-care providers either returned their store of vascular grafts to plaintiff or cancelled their existing orders.
Plaintiff claims that it has been damaged as a result of this letter, and has brought an action against defendants for the torts of interference with contractual relations, product disparagement and unfair competition. Plaintiff's position is succinctly set forth in its brief:
In a cunningly contrived masquerade conducted under the guise of an independent study by Wordtronics' nonexistent 'Health Care Research Division,' defendants conducted a poison pen campaign against Bard's product in an underhanded and deceptive attempt 'to get the market ready for (Meadox's) new competing graft.'
Defendant's actions are clearly in violation of the standards of fairness and commercial morality imposed by the law of this State.
Defendants respond that the contents of the letter were true and dealt with matters of public concern, and that therefore, ...