X-ray manufacturers Bennett X-ray and Gendex are at legal loggerheadsover a recent study that claims that Bennett's x-ray generatordelivers less radiation to patients than a Gendex unit. The disputeraises intriguing questions about the proper role of the
X-ray manufacturers Bennett X-ray and Gendex are at legal loggerheadsover a recent study that claims that Bennett's x-ray generatordelivers less radiation to patients than a Gendex unit. The disputeraises intriguing questions about the proper role of the courtsin determining the validity of scientific research.
The study was authored by three chiropractors and was conductedat Logan College of Chiropractic in St. Louis. It compares radiationdoses delivered to patients by two high-frequency x-ray generators,the 6-kHz Gendex GX30 and the 100-kHz Bennett HFQ-450SE. Accordingto the study, the Bennett unit produces sharper images while deliveringlower radiation doses.
Those findings have been disputed by Gendex, which asked for andreceived a preliminary injunction in Chicago Federal Court barringBennett from using the study's findings in promotional materials.Gendex, of Des Plaines, IL, particularly objected to a bulletinBennett sent to its dealers describing the study's results. Bennettis based in Copiague, NY.
Gendex has also used the threat of litigation to force the study'sauthors to withdraw the paper from presentation at an academicconference and from publication in a trade magazine.
Gendex argues that the paper's findings are based on bad science,that Bennett employees had a hand in drafting the paper and thatone of the study's co-authors, Dr. Terry Yochum, receives royaltiesfor sales of Bennett X-ray units that use software written byYochum.
"An expert witness testified at the hearing on behalf ofGendex that many of the physics principles in the article werewrong," said Gendex attorney Charles Glick of Chicago lawfirm Hedlund & Hanley. "The results these doctors claimto have found in their study are impossible under his understandingof the rules of physics."
Gendex attorneys also pointed out similarities between languagein the paper and a Bennett promotional brochure about the HFQ-450SE.Several sentences in the paper bear a close resemblance to thebrochure, including identical placement of commas, according toGlick. Gendex attorneys also charged that Bennett employees hada hand in editing the paper.
Bennett representatives say that both companies were given preliminaryresults of the papers for review. They also deny that any materialwas lifted.
"I would say there's a close proximity to some of the wording,but what the wording said was that a 100-kHz high-frequency generatorruns an x-ray tube more efficiently than single-phase, three-phaseor mid-frequency systems," said Walter Schneider, operationsmanager at Bennett X-ray. "We've been saying that for years."(SCAN 12/26/90)
Because of questions about the validity of the article, U.S. DistrictCourt Judge Brian Duff ruled in May that Gendex had a reasonablechance of proving in a trial that Bennett's promotional materialswere unsupported by fact and could be considered false advertising.Duff issued the preliminary injunction to prevent "immediateand irreparable injury" to Gendex's reputation pending theoutcome of litigation the company has filed against Bennett.
In addition to its suit against Bennett, Gendex has pursued anaggressive strategy to prevent further dissemination of the paper.The company sent letters to the Conference of Radiation ControlProgram Directors, where the study was scheduled to be presentedin May, and to Today's Chiropractic, a trade magazine that hadplanned to publish the paper in its June issue. Gendex asked thatthe paper not be published, and hinted that legal action couldfollow if it were.
"We decided to stay clear of the study," said Paul Gillette,editor of Today's Chiropractic. "We didn't want to be partof a legal battle."
Both the magazine and the conference notified Dr. Othel Pirtle,a study co-author, of the Gendex letter. He agreed to withdrawthe study.
GENDEX'S SUCCESS IN QUASHING distribution of the paper could seta troubling precedent. Under most circumstances, publication ofa paper in a trade magazine or academic journal would enable themedical community to determine whether or not a paper is scientificwithout having to resort to legal action. Gendex's threat of litigation,however, has derailed that process and has in effect handed theresponsibility of determining scientific validity to the courts.
"It's absurd," said Dr. George Lundberg, editor of theJournal of the American Medical Association. "Courts of laware not the place to determine whether a paper is scientific.That's exactly the wrong way to do any science."
Judges and attorneys are simply not equipped to determine questionsof science, Lundberg told SCAN. Those decisions are best leftto the scientific community, he said.
Glick defends Gendex's decision to take its case to the courtsby citing Yochum's financial ties to Bennett, as well as Bennett'suse of the study's findings in dealer bulletins before the studyhad been published.
"It became clear to Gendex that (the authors) were not theindependent people they purported to be," Glick said. "Itdidn't appear to be worthwhile to pursue a scientific path withthem."
Principal study co-author Dr. Gary Guebert, however, says thestudy was conducted scientifically and without bias.
"I feel that I've done reproducible science," Guebertsaid.
As the case now stands, Bennett has appealed the preliminary injunctionand has filed litigation of its own, accusing Gendex of suppressingcompetitive information. Gendex will pursue its case against Bennett,seeking to permanently bar the company from distributing the articleor using it in advertising.