More Legal Trouble for ABIM

Last Thursday, US District Judge Katherine Hayden ruled in favor of Jaime Salas Rushford, MD's motion to sever and transfer his counterclaims and third-party complaint against the American Board of Internal Medicine (ABIM) to the District of Puerto Rico.

For those unfamiliar with this case that began in 2014, a brief summary is included in the Opinion (references removed):

ABIM is an Iowa corporation that oversees the board certification process for internal medicine physicians, which includes administering a one-day, computer-based exam given annually on different days at testing centers nationwide and abroad. Salas Rushford resides and practices medicine in Puerto Rico, where he (was) registered to take the 2009 ABIM exam. In preparation, he enrolled in a preparatory course given in New York by Arora Inc., a New Jersey corporation that gives courses to physicians seeking board certification.

In December 2009, ABIM sued Arora (the “ABIM-Arora action”) in the Eastern District of Pennsylvania, alleging that the company “unlawfully obtained ABIM’s secure [e]xamination items by mobilizing course attendees to divulge the contents of the [e]xamination” in violation of federal copyright law. (Am. Bd. of Internal Med. v. Arora, No. 09-05707). That complaint also named John Doe defendants, “a presently unknown number of past and/or present candidates for Board Certification who have complied with [Arora’s] requests…to provide secure, copyrighted [e]xamination content to Arora for further dissemination.” The ABIM-Arora action settled and was dismissed in mid-2010. (June 11, 2010). Non-identical tests are offered through the month of August, which offers early test-takers the opportunity to alert later test-takers about content. To guard against this, ABIM requires that before they take the exam, all candidates must sign a “Pledge of Honesty” whereby they promise “not to disclose, copy, or reproduce any portion of the material contained in the Examination.”

It took ABIM until October 2014 to sue Salas Rushford in this district, alleging in a one count complaint that he was among those John Doe “past candidates” who unlawfully shared exam questions with Arora. Salas Rushford moved to dismiss for lack of personal jurisdiction. Early in 2015, while Salas Rushford’s motion to dismiss was pending in this district, ABIM sued him in the District of Puerto Rico in a parallel action, asserting a copyright infringement claim identical to the one it filed here. In both actions, Salas Rushford filed counterclaims against ABIM and a third-party complaint against the ABIM Individuals alleging malicious breach of contract, commercial disparagement under the Lanham Act, 15 U.S.C. § 1125(a), and tortuous conduct under Article 1802 of the Puerto Rico Civil Code. In these claims Salas Rushford challenged ABIM’s publication on its website that Salas Rushford’s board certification was “suspended” during a disciplinary investigation, as well as the manner in which that investigation and subsequent hearings were conducted. In addition to his motion to dismiss, Salas Rushford moved to stay the action in this district pending the result of the Puerto Rico litigation and for sanctions. In September 2015 this Court denied Salas Rushford’s motions and in the same month, the district court in Puerto Rico dismissed the parallel action without prejudice.

Salas Rushford then moved for judgment on the pleadings on the basis that ABIM’s lawsuit for copyright infringement was barred by the three-year statute of limitations. In March 2017, this Court granted the motion, and dismissed ABIM’s complaint with prejudice. Following that decision, ABIM and the ABIM Individuals (Richard Baron, M.D., Christine K. Cassel, M.D., Lynn O. Langdon, Eric S. Holmboe, M.D., David L. Coleman, M.D., Joan M. Von Feldt, M.D., and Naomi P. O’Grady, M.D.) moved for judgment on the pleadings on Salas Rushford’s counterclaims and third-party complaint, and Salas Rushford moved to sever and transfer them to the District of Puerto Rico. (Magistrate) Judge Waldor granted Salas Rushford’s motion to sever and transfer in the Opinion and Order from which ABIM now appeals.

The 2010 Arora-ABIM case led to this article published the Wall Street Journal. That article claimed as many as "140 physicians" were involved, and mentioned five physicians that the ABIM had just sued. Dr. Christine Cassel, President and CEO of the ABIM at the time was quoted as saying:

"Any high-school kid knows that cheating is unfair," said Dr. Christine Cassel, president and chief executive of the ABIM, who called the sanctions "a message and a deterrent."

What Dr. Cassel had never mentioned were the tactics the ABIM used to bring those charges against the vulnerable Arora course attendees. Furthermore, none of the charges brought by ABIM were ever upheld in court.

No doubt US internists who have been subjected to the strongman tactics used by ABIM sense a bit of schadenfreude knowing the "ABIM Individuals" may be traveling to Puerto Rico to stand trial there, too.

Sadly, their travel and legal fees will be at our expense, too.

-Wes