TRADE LIBEL

Pacira Biosciences, Inc. v. Am. Soc’y of Anesthesiologists, Inc., 2023 U.S. App. LEXIS 7084 (3d Cir. March 24, 2023) (Shwartz, C.J.) Pacira BioSciences, Inc. (“Pacira”) sued the American Society of Anesthesiologists, Inc. (“ASA”), the editor-in-chief of its medical journal, and the authors of three articles for statements made about one of Pacira’s drug products. Pacira claims that the statements constitute trade libel. Because the District Court correctly concluded that the statements that form the basis of Pacira’s trade libel claim are nonactionable opinions, Pacira has failed to state a basis for relief. We will therefore affirm. Pacira complains that Defendants published statements in a variety of forms, all of which conveyed their view that EXPAREL is “not superior” to standard analgesics or provides “inferior” pain relief. Defamation and trade libel are similar causes of action but remedy different harms. See Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 224-25 (N.J. 1986). While defamation remedies harm to one’s reputation, trade libel remedies harm to the reputation of one’s property or product. One such limitation is that opinion statements are generally nonactionable. Lynch v. N.J. Educ. Ass’n, 161 N.J. 152, 735 A.2d 1129, 1137 (N.J. 1999). Statements of pure opinion, which are those “based on stated facts or facts that are known to the parties or assumed by them to exist,” do not provide a basis for relief. Id. (quoting Dairy Stores, 516 A.2d at 231); see also DeAngelis v. Hill, 180 N.J. 1, 847 A.2d 1261, 1269 (N.J. 2004) (“Statements of opinion, as a matter of constitutional law, enjoy absolute immunity.” (quoting Dairy Stores, 516 A.2d at 231)). Mixed opinions, which are opinions based on undisclosed facts or assumptions, are similarly nonactionable “unless they imply false underlying objective facts.” Lynch, 734 A.2d at 1137. Whether a statement is a nonactionable opinion is a threshold question of law. Kotlikoff v. Cmty. News, 89 N.J. 62, 444 A.2d 1086, 1090 (N.J. 1982). In making this determination, we consider the (1) content, (2) verifiability, and (3) context of the statements. Lynch, 735 A.2d at 1136. The statements here were made in a peer-reviewed journal for anesthesiology specialists. While statements are not protected solely because they appear in a peer-reviewed journal, such journals are often “directed to the relevant scientific community.” ONY, 720 F.3d at 496-97. Their readers are specialists in their fields and are best positioned to identify opinions and “choose to accept or reject [them] on the basis of an independent evaluation of the facts.” Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985). Although we have not previously applied this principle to scientific conclusions, we have held in other contexts that statements directed at readers who are capable of performing an independent evaluation of the facts upon which an opinion is based support the conclusion that the opinion is nonactionable. See, e.g., Dunn v. Gannett N.Y. Newspapers, Inc., 833 F.2d 446, 454 (3d Cir. 1987) (applying New Jersey law and holding that statements about a mayor were nonactionable opinions because they were “based . . . upon facts that were fully disclosed”); see also McCafferty v. Newsweek Media Grp., Ltd., 955 F.3d 352, 358 (3d Cir. 2020) (statements about plaintiff’s political beliefs were nonactionable because they “characterize[d] disclosed facts”); Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001) (same for statements about the quality of plaintiff attorney’s representation); Redco Corp., 758 F.2d at 972 (same for statements about the risks of plaintiff’s tire rims). Such is the case here. The statements constitute nonactionable opinions as a matter of law, and no new factual allegations, including criticisms about the bases for these opinions, would disturb that conclusion. Therefore, the District Court did not abuse its discretion in finding that amendment would be futile. For the foregoing reasons, we affirm.