GOTLIN v. LEDERMAN UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 483 FED. APPX. 583 (2012) CASE 25-1 FACTS: Gary

[answerhappygod]

GOTLIN v. LEDERMAN UNITED STATES COURT OF APPEALS FOR THE SECONDCIRCUIT 483 FED. APPX. 583 (2012) CASE 25-1 FACTS:
Gary D. Gotlin, an administrator of the estate of a decedent,and the deceased’s surviving spouse, Giuseppe Bono, alleged themisrepresentation of a particular form of cancer treatment,Fractionated Stereotactic Radiosurgery (FSR). The plaintiffsfurther asserted that this deceptive marketing led the decedent to“unnecessarily undergo an ineffective and harmful form of radiationtherapy.” According to the plaintiffs, the marketing of the cancertreatment, which included brochures, videos, advertisements,seminars, and Internet sites, made unrealistic claims about thetreatment’s success rates. Specifically, the defendants madedeceiving claims that the FSR treatment had success 539kub2384x_ch25_536-560.indd 539 11/3/14 2:07 PM Final PDF toprinter540 (continued) rates of greater than 90 percent in treatingpancreatic cancer. The district court dismissed the plaintiffs’claims, and the plaintiffs subsequently appealed. ISSUE: Did theDefendants Engage in Deceptive Advertising when Marketing theirCancer Treatment? REASONING: New York business law states thatdeceptive practices are “those likely to mislead a reasonableconsumer acting reasonably under the circumstances.” the courtreviewed the expert testimony provided in the lower court todetermine whether the way in which the FSR treatment had beenadvertised was fraudulent or misleading. while reviewing thetestimony of two medical experts, Judge Katzmann concluded that thetherapy in question was not as highly successful as it had beenmarketed to be. the following excerpt from Judge Katzmann’s courtopinion highlights the evidence the judge relied on in reaching hisconclusion: This claim as to FSR therapy’s 94% success rate intreating pancreatic cancer is materially identical to claims madein defendants’ marketing brochures. Moreover, while the brochuresat one point define “success” in a relatively circumscribed manner,including cases in which the cancer stopped growing or shrunk butdid not disappear altogether, at other points the brochures suggestthat FSR treatment will yield much broader successes than merelyarresting the growth of cancer (describing “possibilities neverdreamt before,” “superb results,” “great effectiveness,” and“superior outcomes”). In addition, Drs. Harrison and Gliedman’sexpert report states several times that FSR therapy wasunnecessary, either because it had no “curative potential” withregard to a particular patient’s circumstances or because thepatient in question “presented with incurable disease” generally.Accordingly, in the opinion of Drs. Harrison and Gliedman, thosepatients had been “subjected to widespread radiation therapywithout any chance of benefit.” By making such statements, Drs.Harrison and Gliedman impliedly impugn the accuracy of defendants’brochure’s representations that FSR therapy had achieved “superbresults” in instances in which “normal radiation has not beensuccessful.” Importantly, Drs. Harrison and Gliedman did not merelyrepresent that FSR treatment had not proven effective for theparticular patients in question, but that defendants marketed FSRtreatment as having “a very high rate of success,” for “so-called‘hopeless cases,’” to patients who, in fact, had incurable cancer.DECISION AND REMEDY: The court found that a genuine issue ofmaterial fact existed about whether the marketing of the FSRtreatment’s success rates was materially deceptive to a reasonableconsumer and whether plaintiffs suffered injury as a result of thealleged misleading advertising. consequently, the court vacated thedistrict court’s judgment and remanded. SIGNIFICANCE OF THE CASE:Deceptive advertisements can lead consumers to make decisions thatnegatively affect their health. court should be particularlyvigilant in considering whether scientific evidence supports thecontentions of medical advertisements.
Do you think the company's advertising for the cancertreatment in this case was ethical given the facts of thecase?