United States District Court for the Eastern District of Virginia, Newport News Division
In the case of Pecos River Talc LLC v. Emory, plaintiff Pecos River Talc LLC (“Pecos River”) – a corporate entity formed as part of Johnson & Johnson’s restructuring to manage talc-related liabilities – brought a trade libel action against Drs. Theresa Emory, John Maddox, and Richard Kradin. These defendants, who frequently serve as expert witnesses for plaintiffs in asbestos litigation, co-authored a 2020 article in the American Journal of Industrial Medicine titled “Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients.” The article asserted that the 75 individuals studied had no known asbestos exposure other than from cosmetic talc, and that they were “additional” to 33 subjects previously reported in a 2020 study by Dr. Jacqueline Moline.
Pecos River alleged that these two statements were false and defamatory: (1) that the 75 subjects’ only known exposure to asbestos was via cosmetic talc, and (2) these subjects were not included in the Moline study. The plaintiff claimed that at least six of the 75 subjects had other known asbestos exposures and at least one subject overlapped with the Moline study. Pecos River further alleged the defendants acted with actual malice and intended to influence litigation by publishing misleading scientific literature. The court had previously dismissed Pecos River’s fraud and Lanham Act claims, allowing only the trade libel claim to proceed. Discovery was bifurcated into two phases: Phase One was limited to the core elements of trade libel and whether the statements were about Pecos River’s product, while Phase Two would address causation and damages.
The defendants moved to compel discovery from Pecos River, seeking admissions and documents related to whether cosmetic talc can cause mesothelioma and whether Johnson & Johnson’s talc products contained asbestos. They argued that such discovery was relevant to the article’s broader conclusions and to their defense against the trade libel claim.
The court denied the motion to compel, holding that the requested discovery was neither relevant to the claims or defenses in Phase One nor proportional to the needs of the case. The court emphasized the case centers on whether the specific statements about the 75 subjects were false, not whether cosmetic talc causes mesothelioma. The court also rejected the defendants’ argument that the discovery was necessary to rebut allegations of actual malice. It held that actual malice focuses on the defendants’ state of mind at the time of publication, and that materials in Pecos River’s possession – such as FDA findings or media reports – were not probative of what the defendants knew about the subjects’ exposure histories. Additionally, the court found the discovery requests were not proportional. Expanding the case to include causation and asbestos contamination would transform the trade libel action into a complex toxic tort case, contrary to the court’s bifurcation order. The court noted that such an expansion would significantly increase the burden, cost, and duration of litigation.
In conclusion, the court ruled that the discovery sought by the defendants was neither relevant to any party’s claim or defense nor proportional to the needs of the case. Accordingly, the motion to compel was denied.
Read the full decision here.
