A medical waste disposal container company is taking a second shot at asking a Chicago federal judge to stem the spread of a medical study on hospital bacterial infection rates, which the company has alleged is specious, yet is being used by a competitor to infect the reputation of the company’s products.

Daniels Sharpsmart Inc. filed suit Sept. 26 alleging competitor Becton, Dickinson and Company Inc. violated the federal Lanham Act and the Illinois Uniform Deceptive Trade Practices Act, and engaged in unfair competition under Illinois common law. The action was lodged in U.S. District Court for Northern Illinois.

Both companies design, make and market container systems for the disposal of sharp medical waste, such as syringes, blood collection devices and intravenous needles. The containers are known as “sharps” containers and come in two types – reusable and disposable. Daniels sells reusable containers, while Becton sells disposables.

Daniels' main office is in Chicago and Becton is based in Franklin Lakes, N.J.

The suit, as well as an action brought by Daniels in 2015, revolve around a study commissioned by Becton.

The 2015 action was dropped in May 2017 after both sides agreed to drop the suit, saying they were negotiating a settlement. However, they also agreed to stop the clock on the statute of limitations, so if negotiations failed, the case could be resumed after the statute would have otherwise expired.

The new suit does not mention the first suit.

Daniels said in both suits it is one of a handful of companies in the world that deals in reusables, making its name synonymous among medical facilities with reusable containers. Competition between companies is “fierce,” according to Daniels, with reusable companies having gained more of the market in recent years.

To reverse that trend, Daniels alleged the defendants hired Monika Pogorzelska-Maziarz, Ph.D, in 2013 to conduct what they alleged was a sham study, the intent of which was to link reusable containers, such as those sold by Daniels, to higher rates of Clostridum difficile, or C.diff, bacterial infection.

According to the Centers for Disease Control, C.diff bacteria is a “healthcare-associated infection” which is largely spread among hospital patients. According to recent statistics, the disease infects about half a million annually, and about 5-6 percent of those infected die within 30 days of the diagnosis, the CDC reported.

For the study, Pogorzelska-Masiarz asked 1,900 hospitals what type of containers they used. After receiving responses from 604 hospitals, the study then purported to link this data to the hospitals’ C.diff infection rates. Daniels claimed this data skimmed the surface and was far too limited from which to derive conclusions as to why the bacteria may proliferate. Nonetheless, while conceding more research was needed, Pogorzelska-Masiarz credited lower infection rates to disposable sharps containers, and inferred reusable containers were linked to higher C.diff infection rates.

Daniels said the study overlooked a number of factors that could determine infection rates, with “user error” often to blame, as containers can breed bacteria when they are not kept dry and clean.

At any rate, Becton circulated the study throughout the healthcare industry, which included disseminating it at a major conference of healthcare professionals, the suit stated. Becton also cited the study in marketing materials distributed to Daniels’ clients, exclaiming in print, “Concerns about reusable sharps collectors are not new!” Also referenced in the court filing was a similar study from 2007, which Daniels said has since been “debunked” as having any tie to its containers.

Becton has not yet responded to the new lawsuit. However, in the 2015 action, Becton asked Judge Samuel Der-Yeghiayan to dismiss much of the case, saying its marketing tools never mentioned Daniels Sharpsmart by name, so anyone reading the ads or reading about the study could not conclude the marketing was aimed specifically at Daniels. Becton also argued its use of the study was not “commercial speech,” and so should be protected.

Der-Yeghiayan, however, disposed of those arguments, saying the way Becton used the study in its marketing, appeared to make the study more than just a scientific or academic exercise.

In addition, the judge said Becton didn’t need to include the Daniels name in its marketing materials, for readers to infer the study was cautioning against Daniels' products.

“Daniels’ allegations do not suggest that Becton funded the study out of a concern for public safety,” Der-Yeghiayan found. “The fact that Becton allegedly funded the study with the specific intent to use it to target sellers of Reusables and disparage their product and thereby divert business from such sellers to Becton is a further indication according to Daniels that Becton was specifically targeting Daniels and its product during the alleged disparagement."

In the current suit, as well as the previous one, Daniels wants Becton to retract the study and disclaim that the study does not relate to or implicate Daniels. Daniels also wants Becton to declare there is no link between reusables and C. diff in general, and to forgo using the study for any competitive purpose.

On top of it all, Daniels wants Becton to pay at least $75,000 damages.

The Chicago firm of Levenfeld Pearlstein is pursuing the new suit for Daniels, as it did in the 2015 litigation.

Becton was defended in the previous suit by Epstein, Becker & Green, which has offices in Chicago and Newark, N.J. No firm has yet filed an appearance on Becton's behalf in the new action.

Judge Matthew Kennelly is presiding over the new suit.

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Epstein Becker & Green, P.C. Levenfeld Pearlstein, LLC U.S. District Court for the Northern District of Illinois

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