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ECRI v. Guidant

Topic(s): Internet Free Speech - Miscellaneous
Status: open
Date Of Involvement: 05/03/2006

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The lawsuit, filed in the U.S. District Court for the Eastern District of Pennsylvania, seeks to guarantee ECRI (Emergency Care Research Institute), the nation’s leading independent medical product testing organization, the right to publish information about Guidant’s medical devices. ECRI’s guide is intended to assist hospitals, health care consultants, group purchasing organizations, health plans and government agencies with decisions about the cost-effectiveness of various competing medical devices that they are considering.

Guidant recently developed a business model purportedly requiring all of its customers to keep the prices it charges for its products confidential. Despite the fact that ECRI and other members of the public did not know of this new business model or consent to be bound by confidentiality clauses in Guidant’s contracts with its customers, Guidant claims that the public is bound to obey its contracts with customers and therefore ECRI should not be allowed to publish Guidant’s product prices.

Guidant’s claims of contract interference are unfounded because ECRI has not used unlawful means to obtain information about the prices that hospitals pay for Guidant’s medical devices and because the First Amendment and the Due Process Clause prohibit Guidant from binding third parties to conditions they never agreed to, the suit says. Moreover, Guidant’s attempt to suppress publication of product prices also contravenes the strong public policy favoring price transparency. Under Guidant’s business model, even pacemaker patients and implanting physicians are forbidden from knowing the price of the device.

After Publc Citizen’s local counsel took over the lawsuit, the case was settled.