Supplements industry finds it can win by losing
Pieter Cohen is a physician and professor at Harvard Medical School with a particular interest in dietary supplements. In 2015, he and a team from his lab published a peer-reviewed paper in a scientific journal with the scintillating title “Drug Testing and Analysis.”
The paper described a series of tests performed on 21 weight-loss supplements labeled as containing an extract from blackbrush acacia, a shrubby desert tree that is known in the supplement trade as acacia rigidula.
The paper describes in detail the forms of chemical analysis used by the team. Each sample was tested three times. The team found that 11 of the 21 supplements contained significant doses of BMPEA, which it termed an “amphetamine isomer.” Their paper explains that BMPEA “was synthesized in the 1930s as a potential replacement for amphetamine.” But it was never sold as a pharmaceutical and consequently hasn’t undergone the routine testing required of new drugs intended for human use.
Some of the weight-loss supplements that tested positive for BMPEA were manufactured by Hi-Tech Pharmaceuticals, a Georgia corporation. Hi-Tech sued Cohen and his team for defamation in Georgia federal court, claiming that, while it was true the products contained BMPEA, the substance occurs naturally in blackbrush acacia and is extracted “by a leading Chinese botanical factory” using a proprietary — that is, secret — method.
Cohen’s paper had anticipated this claim, citing a 2014 peer-reviewed analysis of the acacia tree that revealed no trace of BMPEA, which it described as “a nonnatural compound.”
Hi-Tech’s lawsuit asked for the sun and the moon in damages, but it also demanded that the journal’s publisher not only retract the paper, but also eliminate all references to it in all scientific databases, eradicating every trace that it had ever existed. But the publisher wasn’t named as a defendant. Because it wasn’t a party to the suit, the court had no power to tell it to do anything. The inclusion of a claim for relief against a non-party is the first clue that Hi-Tech didn’t seriously expect to win.
Hi-Tech’s owner and CEO told a reporter for the online medical news site STAT that, after filing the lawsuit, he received hundreds of supportive messages from others in the supplements industry wishing him success in his efforts “to silence this guy.” But, predictably, the suit was dismissed for lack of jurisdiction, since the researchers lived and worked in Massachusetts. They lacked “minimum contacts” with Georgia. Still, the suit wasn’t dismissed until Harvard hired lawyers to appear in the Atlanta court.
If the point of the lawsuit was to win, the decision to file in Georgia was a fiasco. But if the point was to impose costs, it was a smashing success.
Hi-Tech filed a second lawsuit in Massachusetts federal court, this time targeting Cohen alone, apparently because Cohen had talked about his research on television, making him a higher-profile target. The case went to trial last November. According to the STAT article, Cohen put aside all his other research projects to prepare for trial. He endured an all-day “deposition,” that is, hostile crossexamination without the moderating influence of an overseeing judge. He was compelled to give his tormentors copies of his research materials and private correspondence. And then he had to endure seven days in the courtroom wondering what a jury would make of a succession of scientistwitnesses describing forms of chemical analysis.
In the end, the jury deliberated just two and a half hours before finding for Cohen. Hi-Tech was “zeroed out,” as the lawyers say. The CEO told STAT that he had spent between $300,000 and $400,000 pursuing the lawsuit (implying his lawyers declined to work on a contingency fee basis). But he considered the money well spent if it discouraged other academics from pursuing research into dietary supplements. His advice to researchers: “Think twice and do better research, knowing you can get sued if you do this.”
The CEO’s remarks may have been postloss bravado, a way of putting the best face on things, but I don’t think so. I think the lawsuit accomplished several important goals for Hi-Tech, even if it didn’t accomplish everything that might have been wished. It made Cohen’s life uncomfortable, personal payback for the negative publicity his research generated. It temporarily prevented him from pursuing further research, effectively shortening his career. It imposed significant costs on his employer and insurer. And it sent a message to other researchers considering whether to build on his work. If those were the true goals of the litigation, then the loss was as good as a win.
The legal system is built on the reasonableseeming assumption that litigants sue with the goal of winning. But our courtroom rules of procedure, idealistically intended “to secure the just, speedy, and inexpensive determination of every action and proceeding,” can easily be put to other uses. A litigant intent on harming its opponent can achieve its strategic goal even while losing every step of the way.
Judges have the authority to impose penalties for frivolous lawsuits. But “frivolous” is a common insult in the legal profession, thrown around by every lawyer who’s ever gotten mad at opposing counsel. Judges are naturally reluctant to jump into the mud puddle with them. Besides, a great gulf exists between the frivolous and the meritorious. A suit with a 5 percent chance of success isn’t frivolous.
Cohen’s lawyer asked the jury to consider the public health implications of using the legal system to discourage scientific research. We might all do well to consider the even broader implications of a legal system that permits well-heeled plaintiffs to accomplish the goals of litigation, even while losing their case.