J&J's talc subsidiary can bring trade libel but not Lanham Act claims against testifying experts

LLT Management LLC v. Emory, No. 4:24-cv-75, 2025 WL 438100 (E.D. Va. Feb. 7, 2025)

The defendants “published an article in a scientific journal, asserting that they had identified 75 people, additional to 33 in an earlier study, who had malignant mesothelioma but no known exposure to asbestos except through cosmetic talc.” LLT, J&J’s talc subsidiary, alleged that the statement was false. It allegedly identified six of the anonymous study subjects and alleged that the defendants, through their expert witness work, knew those subjects had been exposed to asbestos through other means. LLT alleged that defendants’ “real goal was to create a body of scientific literature to appease the plaintiffs’ bar, who hired the defendants as expert witnesses in tort cases against LLT.” After the defendants published their article, sales of J&J’s talc-based baby powder allegedly declined due to misinformation about the product’s safety—including in the defendants’ article.

This lawsuit represents yet another disturbing development in the “sue your critics” space and highlights the need for a federal anti-SLAPP regime. Here, the court dismisses the fraud claim on statute of limitations grounds and the Lanham Act claim because of a mismatch between the “commercial advertising and promotion” alleged and the falsity alleged, but allows injurious falsehood/product disparagement claims to proceed.

Trade libel: The court predicted that Virginia would consider this an “injury to property” tort claim with a five-year limitations period. LLT sued within that period, and was thus not barred by the statute of limitations.

Fraud: Virginia has a two-year statute of limitations for civil fraud claims. The court declined to give any weight to LLT’s conclusory allegation that it “could not have known of the [defendants’] fraud until recently.” LLT pled that it discovered the defendants’ fraud by “match[ing] ... the [a]rticle’s subjects to [ ] litigation plaintiff[s]” with “documented alternative exposures to asbestos” that were known to the defendants because of the defendants’ roles as expert witnesses in the subjects’ “underlying tort cases.” Of those six subjects, five were plaintiffs in lawsuits against LLT. Thus, there were no facts in the complaint giving rise “to a reasonable inference that LLT required any additional information, outside of what it already possessed because of its role in earlier litigation, in order to match the alleged study subjects to the testimony of the expert witnesses in their respective trials or to spot the non-talc asbestos exposures the experts identified in each case. And if the matching process itself took years, LLT should have said that, but it did not. Thus, it appears on the face of the Complaint that the study subjects’ alleged non-talc asbestos exposures were discoverable, given the exercise of due diligence, at the time the study was published.”

What about defendants’ alleged concealment of the truth? That allegation was not enough to make out a plausible claim that the defendants’ concealment tolled the statute of limitations. Tolling requires plausible allegations that “the defendant undertook an affirmative act designed or intended ... to obstruct the plaintiff’s right to file [the] action.” LLT alleged: (1) “statements reaffirming the false statements in the [a]rticle,”; (2) “refus[al] to disclose the identity of the 75 subjects of the [a]rticle,” for example refusing to testify about their identities in depositions and stating they didn’t retain documentation of those identities; and (3) “omit[ing] from their publication that their statements regarding the lack of alternative exposures were false and that they knew they were false.” That last wasn’t an affirmative act. Even assuming that (1) and (2) could be affirmative acts, such acts must actually “have the effect of debarring or deterring the plaintiff from his action.” But defendants weren’t alleged to have ever changed their claims that all 75 subjects were new, that none of the 75 study participants had known non-talc asbestos exposure, or to have revealed the study subjects’ identities. “But LLT was able to bring its fraud claim anyway. That makes it facially implausible that the defendants’ repetition of the alleged falsehood or nondisclosure of the study subjects’ names ‘had the effect’ of deterring filing of the claim.”

False advertising: potential laches problems, though defendants didn’t show prejudice (shouldn’t the burden be on LLT to plead around it where laches is pled on the face of the complaint?). But that didn’t matter because of the bigger problem requiring dismissal.

LLT plausibly alleged two categories of harm: (1) lost “sales volume and profits,” and (2) costs incurred to “respond to, defend against, and otherwise counteract the [defendants] false statements.”  Even though the article was distributed in a publication “whose audience is doctors, not consumers,” LLT plausibly alleged that the defendants’ intended and actual audience was the plaintiffs’ bar, rather than the scientific community. While actions by the plaintiffs’ bar allegedly contributed to consumer behavior, they were plausibly not “independent” of the defendants’ conduct, and thus didn’t defeat traceability. Nor did preexisting negative publicity for talc break the causal chain. “[T]he Court cannot assume that negative publicity had already influenced 100% of Johnson & Johnson’s customers before the article came out.” And LLT plausibly pled increased litigation costs as a result, since some people might have been motivated to sue by the article. Additionally, “[e]very time LLT has to defend against an expert witness who relies on the defendants’ allegedly false statements in litigation, it costs money LLT would not otherwise have to spend. That too is a fairly traceable injury.” [I have to wonder about the cognizability of that—seems like a collateral attack on the underlying tort litigation. If the expert’s testimony is allowed despite LLT’s objections, should LLT be allowed to sue over it?]

Likewise, the complaint plausibly alleged “a commercial interest in reputation or sales.”  What about proximate causation? Lexmark says that “a plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising.” “[T]hat occurs when deception of consumers causes them to withhold trade from the plaintiff.” LLT plausibly alleged that defendants led consumers to believe that “cosmetic talc should be considered a probable cause of mesothelioma.” Although one prior study came to the same conclusion as the defendants’ article, “it is at least plausible that the earlier article was not an ‘independent’ case of consumer decisionmaking regarding Johnson & Johnson’s products, since LLT alleges the two publications were designed in concert, to create the impression that a ‘body of literature’ supported the defendants’ claims.” And “the defendants’ article did not merely cement the link to cancer in general—it purported to tie cosmetic talc to “mesothelioma,” which the defendants admit had not been the focus of earlier publicity around the dangers of Johnson & Johnson’s baby powder.”

What about commercial advertising or promotion? The complaint plausibly alleged that the defendants made their statements “in order to influence their own customers—plaintiffs’ attorneys—to hire them to provide expert opinions in tort litigation.” Here, the court stretches—it doesn’t go through the caselaw on identifying commercial advertising or promotion, but instead says that the “impli[cations]” of the article suffice to make it plausibly advertising: “something like ‘we will testify that we have identified 75 more people with mesothelioma who have no known asbestos exposure except to talc.’” That seems to be in tension with most of the false advertising cases about scientific studies as such, where for-profit companies subsidized studies that would allegedly promote their own products. Still, the court understood this as a limiting principle: the statements were only actionable to the extent that they were about the defendants’ own litigation services.

[This workaround has logical flaws of its own: “commercial advertising and promotion” is not an element of statutory standing, as the court assumes, but a separate requirement. If an advertiser, in the course of ordinary advertising for a noncompeting product, randomly falsely disparaged an innocent unrelated product, I think Lexmark would allow that claim. The statutory standing issue is whether the advertising proximately caused the harm, not whether the harm came from the part of the message that most directly served the advertiser’s interests. That’s one reason why we should police the definition of “commercial advertising or promotion” and not treat scientific articles as such in most cases.]

Anyway, doing it the court’s way: LLT had statutory standing to bring its Lanham Act claim only if the defendants’ statements “are construed to be about the defendants’ own litigation services.” But the complaint failed to allege that those statements—that they’d testify for plaintiffs—were false.

Injurious falsehood/product disparagement/trade libel: under New Jersey law, a plaintiff must allege (1) publication (2) with malice (3) of a false statement of fact (4) about the plaintiff’s product or property (5) that causes special damages. Publication and malice were adequately pled, the latter by alleging that defendants were informed in litigation about individual study subjects’ non-talc asbestos exposures or had access to the same information LLT used to demonstrate the alleged falsity of the defendants’ statements.

The court found that the statements at issue were statements of fact, not nonactionable opinion. They were clearly not figurative speech or rhetorical hyperbole, like name-calling, “which cannot reasonably be understood to be meant literally.” They were verifiable “because a factfinder can determine, based on proof at trial, whether any of the 75 study subjects had non-talc asbestos exposures that were ‘known’ to the defendants at the time they published the article, and whether any of the 75 subjects were common to the defendants’ study and the earlier study.” “While the Court takes seriously the ‘risk [of] chilling the natural development of scientific research and discourse’ that can arise from critiquing scientific opinions as though they were verifiable facts, it also has a duty to make all reasonable inferences in favor of the non-moving party at this stage of the litigation.” Thus, a jury “could verify the statements by deciding whether the defendants subjectively knew about non-talc asbestos exposures among the study subjects” and whether the subjects of their study were “additional” to the subjects in the previous study.

Moreover, “statements are not protected solely because they appear in a peer-reviewed journal.” “What matters is whether the facts are adduced through a scientific method, or whether they exist independent of the scientific process.” Defendants’ statements were plausibly construed as assertions about their own knowledge of the study subjects’ medical histories. “Those facts pre-existed the scientific process the article describes—in fact, they were discovered through litigation, not through any scientific method.”

And this was a claim about LLT’s product even without specific references to J&J, because LLT plausibly alleged that Johnson & Johnson’s talc-based products were “the leading brands among a discrete and limited number of cosmetic talc products in the market” and “maintained well over a majority of the market share for talc powder products in the United States.” Thus, “a consumer who learned of the defendants’ statements would understand the defendants to be calling into question the safety of Johnson & Johnson’s products.” The court expressed some interest in the argument that the allegedly false statements were “about the study, not about the talc-based products the study targets—that is, in saying they had 75 new subjects with no known non-talc asbestos exposure, the defendants were merely describing their data set, not commenting on the safety of any talc-based product.” But “it is reasonable at this stage to construe the allegedly false statements not as statements about the defendants’ method or assumptions, but as conveying the thrust of the whole publication—which is squarely about the safety of talc-based products like Johnson & Johnson’s.”

Special damages: The complaint didn’t identify specific customers Johnson & Johnson lost as a result of the defendants’ statements. But special damages are not extra-specific damages; they are simply “the loss of something having economic or pecuniary value.” It was enough to plead “loss of sales and customers” and “irreparable harm to its commercial reputation and goodwill.” [Lots of courts disagree about this, but I haven’t dived into the Virginia cases enough to see if Virginia is special.]