Johnson & Johnson
NEWPORT NEWS, Va. - Researchers who published a paper claiming 75 cancer patients had no “known exposure to asbestos” other than Johnson & Johnson cosmetic talc even though some had sued over other exposures cannot be accused of trade libel, a judge has ruled.
No jury could conclude Theresa S. Emory, John C. Maddox and Richard L. Kradin knew the paper identifying J&J products as causing cancer was false, Virginia federal judge Jamar Walker said, dismissing J&J’s lawsuit against the trio. Applying the heightened standards for proving libel against a figure involved in a matter of public debate, the judge said the most J&J could prove is the researchers made mistakes.
The dismissal is a blow against J&J’s strategy of suing the plaintiff experts who made the multibillion-dollar talc litigation possible by combining disputed claims Johnson’s Baby Powder was contaminated with asbestos with their own medical opinions that the tiny amounts said to be in the powder could cause cancer. Johnson & Johnson is still suing Dr. Jacqueline Moline, another doctor who has published papers linking talc to cancer. Some of the same subjects were in the Moline and Emory papers, and J&J accuses Moline of knowingly including patients who had hired her to sue other asbestos companies while claiming their only known exposure was to talc.
Johnson & Johnson sued Emory, Maddox and Kradin after the trio published a paper in 2020 claiming 75 people had contracted mesothelioma, a fatal cancer of the chest lining associated with asbestos, from using cosmetic talc. The authors claimed their subjects were different from those in an earlier Moline paper, but discovery proved at least two were the same, and all of the subjects were provided by plaintiff lawyers who frequently make identical asbestos claims against multiple defendants.
At least 11 of the 33 cancer patients in Moline’s research were exposed to asbestos from other sources. Six of the subjects in the Emory paper had documented “documented alternative exposures to asbestos,” J&J wrote in its complaint. One of them had 60 feet of exposed asbestos pipe in his basement, which was a family room with a television in couches. The claim that talc users had no other known exposure also conflicts with the fact everyone in the modern built environment inhales asbestos fibers from the ambient air.
Judge Walker disagreed, saying the most the researchers could be accused of was making a few mistakes. To prove libel against a public figure, J&J had to prove “actual malice,” which is knowingly or with reckless disregard publishing falsehoods.
“Mistakes are not evidence of actual malice,” the judge wrote in his Aug. 19 order.
The judge also rejected J&J’s argument Dr. Kradin had destroyed potentially incriminating emails, suggesting he knew they could be used as proof he knew the paper was false. The judge said only if Dr. Kradin had selectively destroyed emails could J&J convince a jury he was trying to cover his tracks.
After a challenge that seemed poised to strike plaintiff experts from testifying talc caused ovarian cancer, J&J proposed settling most cases for $5.5 billion. Plaintiff lawyers will likely take at least $2 billion of that in fees.
