Court hip checks company over libel suit against Harvard doctor

The Supreme Judicial Court today ruled against a Canton company that makes padded hip protectors, saying a Harvard Medical School researcher did not libel it in a medical-journal article that said the devices did not seem to do much to protect the elderly from broken hips.

The state's highest court said HipSaver of Canton failed to prove that Dr. Douglas Kiel and his co-authors had written anything false in their 2007 article in the Journal of the American Medical Association.

Kiel, a specialist in hip fractures among the elderly, was the lead reasearcher in an $8.4-million federally funded study, in which residents of nursing homes wore a hip protector on one hip but not the other. In their article, the researchers wrote it became so obvious the pads were failing to stop broken hips that they called off the study early.

The study did not include any HipSaver products, which the court said also doomed its claim, because Massachusetts defamation law requires proof a statement was aimed at the plaintiff:

At the time the article was published, the hip protector that was studied was not commercially available, unlike HipSaver's product. The article gave a lengthy, detailed description of the device that was used in the clinical trial, which was a one-sided hybrid hip protector comprised of a hard plastic sheath embedded in EVA foam. HipSaver always has marketed its product as being made entirely of soft pen cell foam, and has distinguished its product from those containing a hard shell. Additionally, HipSaver does not make a product that is designed to cover only one hip.

To the extent that the challenged statements referred to the inefficacy of "hip protectors" in general, this reference was insufficient to give rise to a conclusion that Dr. Kiel was specifically discussing HipSaver's product. Although HipSaver has alleged that it is the second largest manufacturer of hip protectors in the United States, [FN12] there are at least twenty-two other companies that make similar products. HipSaver has presented no affidavits from third parties prepared to testify that they understood the article as referring to or being about HipSaver and its product. During his deposition testimony on December 2, 2010, Edward L. Goodwin, the president and chief executive officer of HipSaver, stated that it was unlikely that the hip protector described in the article could be confused with HipSaver's product. Simply put, the article cannot be understood as referring to HipSaver, either expressly or by clear implication.

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