New Jersey Judge Perpetuates Usage of Junk Science in Talc Litigation
Following the implementation of the newly amended Rule 702, ATRF has applauded judges across the country for stepping up to the plate and applying rigorous scientific standards for expert evidence. Many have embraced their gatekeeping function, which was fortified by the December 2023 amendments.
Unfortunately, one area of litigation yet to see the complete expulsion of junk science from courtrooms is in talc litigation. The fight against junk science recently hit an unfortunate roadblock. In late June, Judge Georgette Castner of the U.S. District Court for the District of New Jersey dismissed a case brought by LTL Management, a Johnson & Johnson subsidiary, against a plaintiffs’ expert who has been championing junk science in the talc litigation.
In 2020, Dr. Jacqueline Moline published an article about her study of 33 cases involving malignant mesothelioma and exposure to cosmetic talcum powder. Her article has had “widespread influence on nationwide litigation” involving plaintiffs claiming that their mesothelioma was caused by exposure to cosmetic talcum powder. Not only has her study been relied upon in the courtroom as proof of Johnson & Johnson’s liability, but she has engaged in numerous media interviews and publicly disparaged Johnson & Johnson’s products multiple times.
LTL Management argued that two conclusions of Dr. Moline’s 2020 article were “verifiably false.” First, she claimed that in all 33 case studies, no individual identified any asbestos exposure apart from contaminated talcum powder. This claim later was proven false. Individuals cited in the article admitted to and claimed compensation for exposure to asbestos from sources other than Johnson & Johnson’s talcum powder.
Additionally, Dr. Moline’s article claimed that only asbestos of the type found in talcum powder was found in all six cases where tissue samples were evaluated. LTL Management challenged that claim and argued that several of the tissue samples contained asbestos fibers of the type “encountered in cases of industrial and occupational exposure not cosmetic talcum powder.”
In light of these developments, LTL Management brought claims against Dr. Moline for trade libel, common-law fraud, and false advertising under the Lanham Act. Dr. Moline contended that LTL Management’s causes of action should be dismissed because the 2020 article’s statements are “scientific opinions… protected under the First Amendment” and nonactionable as a matter of law. In response, LTL Management argued that Dr. Moline’s statements were not protected scientific opinions “but rather economically-motivated, false, and inaccurate statements concerning the data underlying her article.”
Ultimately, Judge Castner agreed with Dr. Moline, finding that LTL Management failed to demonstrate that any of the challenged statements are actionable because they are more closely akin to opinions as opposed to statements of the truth of a matter. The court reasoned that if a statement could be interpreted as either fact or opinion, courts must construe it as an opinion, which is protected under the First Amendment.
Judge Castner’s refusal to take a stand against junk science is disappointing. The court repeatedly referred to the article’s findings as “tentative scientific conclusions” and “subject to revision,” so one must ask – is it being characterized the same way when its being used as the basis for multi-million-dollar verdicts? In dismissing this case against Dr. Moline, Judge Castner is perpetuating the use of this discredited article by the plaintiffs’ lawyers.
Judges overseeing talc litigation across the country must take it upon themselves to prevent junk science from entering their courtroom, a problem that long has plagued the nation’s civil justice system. Rule 702 demands a rigorous review, and it is essential for restoring balance to this litigation.
