lawsuit against plaintiffs' expert witness fails on First Amendment grounds

LTL Mgmt. LLC v. Moline, 2024 WL 3219683, No. 23-02990 (GC) (JTQ) (D.N.J. Jun. 28, 2024)

Not currently in bankruptcy, LTL—J&J’s solution to its talc woes—decided to sue a critic for her scientific conclusions about talc risks. The court dismisses J&J’s Lanham Act, trade libel, and common-law fraud claims.

In 2020, Dr. Moline and several co-authors published an article in the widely read Journal of Occupational and Environmental Medicine. It described “33 cases of malignant mesothelioma among individuals with no known asbestos exposure other than cosmetic talcum powder.” It purported to be “the first large case series to identify cosmetic talcum powder contaminated with asbestos as the cause of malignant mesothelioma in cosmetic talc users,” and concluded that “[e]xposure to asbestos-contaminated talcum powders can cause mesothelioma.” (Id. at 2, The article has been described as “groundbreaking,” with “widespread influence” on nationwide litigation in which plaintiffs allege that exposure to cosmetic talcum powder caused their mesothelioma.  

Dr. Moline, the lead author, is an occupational medicine specialist, professor of occupational medicine, and executive for various health departments and programs. She allegedly “made a career” as a paid expert testifying on behalf of plaintiffs in asbestos litigation over the course of twenty years. She appeared in more than 200 cosmetic talc cases against LTL, was deposed in 46 of those cases and testified at trial in 16.

LTL alleged that the central premise of the article was knowingly false for two reasons: (1) The article stated that “[n]o individual identified any asbestos exposure apart from contaminated talcum powder” but Moline allegedly “knew full well that individuals she cited in her Article had admitted to and claimed compensation for exposure to asbestos from other sources” than Johnson & Johnson’s talcum powder. (2) The article stated that that in the six cases where tissue samples were evaluated, “[a]sbestos of the type found in talcum powder was found in all six cases evaluated,” but several samples contained asbestos fibers of the type “encountered in cases of industrial and occupational exposure, not cosmetic talcum powder.”

The article itself cautions that the study “should be understood in the context of its limitations,” including the fact that the data “were obtained from medication records and transcripts of depositions, rather than structured, in-person interviews”; the risk of self-reporting and recall biases in these types of studies; and Dr. Moline’s role as an expert witness in “asbestos litigation, including talc litigation for plaintiffs,” which the article labels as a conflict of interest.

LTL’s allegations relied heavily on Bell v. American International Industries, 627 F. Supp. 3d 520, 526 (M.D.N.C. 2022). Bell, one of the case studies, “sued alleging that her exposure to asbestos through AII’s talcum powder caused her mesothelioma. But Bell had also filed two workers’ compensation claims asserting that she was exposed to asbestos while working for two textile employers.” The district court stated “Bell’s employment history, as well as her belief that she may have been exposed to asbestos during her textile employment, undermine[d] the weight of Dr. Moline’s finding that each of the ‘33 cases ... had no known exposure to asbestos other than prolonged use of talcum powder.’ ” Dr. Moline reviewed Bell’s deposition before drafting the article, leading LTL to allege that she “knew or recklessly ignored available information” that contradicted the Article’s central premise. LTL made similar allegations about alternative sources of exposure for at least four other individuals in the case studies.

In one case, tissue analysis allegedly revealed the presence of asbestos fibers caused only by “industrial and occupational exposure, not cosmetic talcum powder.” In another individual case, Dr. Moline issued an erratum, disclosing that one of the 33 persons should not have been included in the 2020 Article because the individual had been exposed not only to talcum powder, but also to “asbestos contaminated cigarette filters.”

LTL also alleged that Moline republished the allegedly false statements “in myriad settings and with large and varied audiences,” including to several news media organizations, conferences, and oral and written testimony that Dr. Moline delivered before a United States House of Representatives subcommittee on talc litigation, allegedly “for her own professional aggrandizement and financial gain,” and to “add a veneer of credibility” after courts had “repeatedly barred Dr. Moline from offering testimony.”

Were these claims of fact for purposes of the First Amendment constraints on these torts? The court began with the rule that, if a statement can be construed as either fact or opinion, courts “must construe it as an opinion. A contrary presumption would ‘tend to impose a chilling effect on speech.’ ”

As the Second Circuit has recognized, though, statements made in the context of scholarly and academic debate pose “several problems for the fact-opinion paradigm of First Amendment jurisprudence.” ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 496 (2d Cir. 2013). The difficulty arises in large part because academic freedom is “a special concern of the First Amendment.” (Query: Are there five votes for this proposition on the current Court?)

ONY says that scientific claims are in principle capable of verification, but at the same time “it is the essence of the scientific method that the conclusions of empirical research are tentative and subject to revision, because they represent inferences about the nature of reality based on the results of experimentation and observation.” Thus, ONY held, although scientific conclusions are “in principle matters of verifiable ‘fact,’ for purposes of the First Amendment and the laws relating to fair competition and defamation, they are more closely akin to matters of opinion, and are so understood by the relevant scientific communities.” ONY distinguished situations in which data were allegedly “fabricated or fraudulently created.”

The Third Circuit has relied heavily on ONY to conclude that a claim for trade libel based on “tentative scientific conclusions” failed as a matter of law. Pacira BioSciences, Inc. v. Am. Soc'y of Anesthesiologists, 63 F.4th 240 (3d Cir. 2023). Pacira alleged that each of the articles in suit “employed flawed methodologies by ... cherry-picking data, relying on studies that ... were deficient, improperly discrediting studies favorable to [Pacira’s drug], and failing to properly limit their conclusions.” The Third Circuit that the statements were not sufficiently “verifiable” because they were “tentative scientific conclusions and were expressly disclosed as such.” “[D]isagreements about the reliability of the methodology and data underlying the statements were insufficient,” because reliability is different from verifiability. But the Third Circuit also endorsed the rule that “a conclusion drawn from falsified or fraudulent data may be actionable.”

In terms of the content, the statements in various places that talcum powder was the only source of exposure for all 33 cases and that other sources of asbestos fibers weren’t found seemed more factual than the comparative claims in ONY and Pacira. Still, in the context of scholarly debate,  “[i]solating challenged speech ... indeed may result in identifying many more implied factual assertions than would a reasonable person encountering that expression in context.” The article was published in a peer-reviewed journal with a self-described purpose of “underlin[ing] the importance of collecting detailed exposure histories ... in patients presenting with mesothelioma.” This supported the conclusion that the statements, including their repetition outside of the journal, were nonactionable “tentative scientific conclusions” protected by the First Amendment.

Verifiability: LTL alleged that at least four additional cases, beyond the erratum, were individuals exposed to “known alternative sources” of asbestos. But cases like Bell instead demonstrate “that Dr. Moline’s statements about asbestos exposure are inferences or conclusions drawn from her review of deposition transcripts and medical records. Such inferences may be subject to critique about their reliability but are not sufficiently verifiable to be actionable as a matter of law.”

What about the Bell district court’s serious concern about the “seeming contradiction” between Bell’s previous workers’ compensation claims and the 2020 Article’s statement that each of the 33 cases “had no known exposure to asbestos other than prolonged use of talcum powder”? The opinion “focused on the weight to be given to Dr. Moline’s findings, thereby demonstrating that they are more akin to opinions as opposed to statements of fact.” Indeed, the Bell court recognized “that the mere existence of the unsuccessful workers’ compensation claims d[id] not definitively establish that Mrs. Bell was in fact exposed to asbestos at the textile workplaces.” The court here found it “telling” that the Bell court didn’t describe Moline’s statements as “false,” or even “incorrect.” Instead, it questioned the validity of the inferences drawn from the results of the underlying data. Imposing liability here would present too great a risk of chilling speech.

The same was true of the other allegedly alternatively exposed individuals. “Put differently, LTL accuses Dr. Moline of failing to include ‘variables that were available to [her]’ — such as the pipes in [one person’s] basement or [another’s] workplace — ‘but that were not taken into account in [her] analysis.’” Such perceived flaws in methodology can’t be cleverly pled as “ ‘false descriptions of data on which the studies rely.’ ” Perhaps other experts would consider these to be “known exposures” to asbestos. “But a scientific conclusion need not account for every piece of data that was not relied on to receive protection.”

Nor did the erratum change the analysis. It didn’t plausibly demonstrate that she fabricated or falsified data. “Rather, it demonstrates exactly why the ‘peer-review process — not a courtroom — ... provides the best mechanism for resolving scientific uncertainties.’”

As for the tissue analysis, the article didn’t purport to consider analyses performed by other experts. A footnote expressly disclosed: “Tissue analysis presented done by author. Tissue analysis might have been done in some cases by other investigator, these results are not presented in this paper.” Even if all of LTL’s allegations are true — that LTL correctly identified one case, and that Dr. Moline was aware of these other tissue analyses — this was a nonactionable scientific conclusion published alongside an “accurate description of the data taken into account.”

Context: Statements published in a peer-reviewed journal were the easiest case. “While statements are not protected solely because they appear in a peer-reviewed journal, such journals are often ‘directed to the relevant scientific community,’ ” who are “best positioned to identify opinions and ‘choose to accept or reject [them].” The various disclosures and stated limits of the article made it clearly scientific opinion for First Amendment purposes.

What about statements in other media? “The relevant case law does not support LTL’s argument that the only way it can combat Dr. Moline’s public statements is by suing her for trade libel, fraud, or false advertising.” Statements in other media that merely summarized the 2020 article’s findings could not give rise to liability. Plus, the actual context weighed in favor of finding nonactionable opinion. E.g., a Time Magazine article described the 2020 article as presenting “case studies of 33 people ... whose only substantial exposure to asbestos was through the use of talcum powder — theoretically ruling out other causes of the disease.” In another mass media publication, Dr. Moline repeated the “overall tenor and tone” of her article, stating that her “main reason” for publishing the article was to “alert clinicians that you need to take a comprehensive exposure history.” And statements in congressional testimony were privileged.

Fraud claims would independently fail because LTL didn’t allege that it reasonably relied on her allegedly false statements. Although LTL alleged that it “made its business decisions and defense of Talc Claims, including but not limited to LTL’s investigation of claims, approaches to settling such claims, retention of experts, and trial strategies — in reasonable and justifiable reliance on her fraudulent” statements, that was inconsistent with other parts of the complaint, where it alleged that, when it decided to discontinue its talc-based products in May 2020, it described questions about the products’ safety — such as the conclusion of the 2020 article — as “misinformation.” In direct response to the Time Magazine article focusing on Dr. Moline’s study, J&J insisted that its talcum powder “is safe, does not contain asbestos nor does it cause cancer, as reflected in more than 40 years of scientific evidence,” and noted that Dr. Moline “has served as a paid witness in asbestos lawsuits and in the study drew on cases referred to her by plaintiffs’ attorneys.” Thus, “the moment the 2020 Article was published, LTL responded as if the Article’s conclusions were false.” Reliance was not plausible.

Lanham Act: The 2020 article was protected noncommercial speech for Lanham Act purposes. “[S]econdary dissemination of a fully protected article can constitute a violation of the Lanham Act” only if the excerpts mislead a reader about the conclusions of the article. That wasn’t alleged here.