A scientist has scored a victory over Johnson & Johnson, which alleged her influential research linking asbestos-contaminated cosmetic products to the deadly cancer mesothelioma was libelous and fraudulent.
On Friday, U.S. District Court Judge Georgette Castner granted Dr. Jacqueline Moline’s motion to dismiss the lawsuit that LTL, a wholly owned indirect subsidiary of J&J, filed against her. Castner’s ruling stated the article was based on scientific opinions protected under the First Amendment.
In January 2020, Moline, an occupational medicine professor and specialist, and several co-authors published an article in the Journal of Occupational and Environmental Medicine that described 33 cases of malignant mesothelioma among individuals who used cosmetic talcum powder. The article is considered a key reason for a nationwide wave of litigation against J&J by individuals who contracted mesothelioma or ovarian cancer after prolonged, continued use of Johnson’s Baby Powder and Shower-to-Shower products.
LTL claimed Moline knew the article’s premise was false, “or recklessly ignored available information demonstrating its falsity” because she was an expert witness for plaintiffs in the underlying tort cases where patients identified other sources of possible exposure to asbestos.
In particular, LTL alleged that some tissue samples referenced in the article containing a type of asbestos associated with talc also tested positive for asbestos “encountered in cases of industrial and occupational exposure, not cosmetic talcum powder.”
However, Castner noted in her ruling that the article was upfront about the study’s limitations and disclosed that the cases were referred to Moline for evaluation as part of tort litigation.
The ruling also stated the other alleged sources of asbestos exposure identified by LTL “do not render Dr. Moline’s finding that the individuals had ‘no known asbestos exposure other than cosmetic talcum powder’ a verifiably false statement of fact as opposed to a nonactionable scientific conclusion.”
The ruling noted the article stated that it only took into consideration tissue analysis conducted by one of the co-authors, and any analysis that might have been done by other investigators was not presented.
The ruling also stated that the court “must also consider the content of the whole communication and its apparent purpose,” and that the article’s self-described purpose of underlying the importance “of collecting detailed exposure histories … in patients presenting with mesothelioma.”
Erik Haas, global vice president of litigation for J&J, said Monday that the company will appeal Castner’s ruling.
Why LTL, and Not J&J, Filed the Fraud Claim
In the wake of mounting lawsuits from consumers who contracted cancer after using J&J products, the company created LTL in 2021 to assume all its talc liability. LTL then filed for bankruptcy protection in Texas. However, the court has twice rejected LTL’s maneuver, known as the “Texas Two-Step.”
After both bankruptcy failures, J&J announced it was lowering its proposed settlement agreement with ovarian cancer claimants.
Last month, attorneys for talc claimants filed a class action suit in an effort to prevent J&J from filing for bankruptcy for a third time through LTL after the subsidiary proposed a reorganization plan to pay a proposed $6.48 billion to settle claims filed by tens of thousands of women with ovarian cancer. Lawyers for the women called the payout grossly inadequate because each client would receive only $43,000 on average, and liens and attorney fees would be deducted from that amount.
However, on the same day, Castner threw out LTL’s libel and fraud suit, U.S. District Court Judge Michael Shipp dismissed a preliminary order in the class action suit asking the New Jersey federal court to block J&J’s bankruptcy settlement plan.
If 75% of the claimants agree to the proposed settlement by July 26, the reorganization plan will go forward.
The Long History of J&J, Talc, and Cancer
Cancer patients have been filing personal injury lawsuits against J&J for decades, claiming they got sick due to asbestos in its talcum powder products. However, research studies on the link between talc and cancer have shown mixed results.
The company allegedly knew in 1971 that its baby powder contained talc that had been contaminated with asbestos during the mining process, but continually stated its products were asbestos-free.
In 2019, J&J finally recalled 33,000 bottles of its baby powder after testing revealed trace amounts of asbestos. The following year, the company ceased baby powder sales in the United States and Canada.
In recent years, J&J has won some of the lawsuits filed against it but has also had to pay millions to consumers through verdicts and settlements. The company recently settled claims from nearly all the U.S. states plus the District of Columbia for $700 million.
