From Pecos River Talc LLC v. Emory, decided Tuesday by Magistrate Judge Robert Krask (E.D. Va.):
Pecos River Talc LLC … sued defendants, Drs. Theresa Emory, John Maddox, and Richard Kradin, alleging that certain statements they made in an article published in a scientific journal about cosmetic talc, asbestos, and malignant mesothelioma were false. The Court granted in part and denied in part defendants' motion to dismiss [see here -EV], allowing the case to proceed on the trade libel claim (count one).
Pending before the Court is Pecos River's motion to compel the identities of the article's subjects…. [T]he Court … [concludes that] the names of the subjects in the article are within the scope of discovery….
Pecos River was formed as part of Johnson & Johnson's effort to resolve talc-related claims through bankruptcy. Defendants … serve as plaintiff-side expert witnesses in litigation between individuals with mesothelioma and manufacturers of cosmetic talc. In March 2020, defendants published an article titled "Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients" in the American Journal of Industrial Medicine (the "article"). The article stated that it "present[s] 75 … subjects, with malignant mesothelioma, whose only known exposure to asbestos was cosmetic talc[,]" who were "additional" to the 33 subjects reported in an earlier study by Dr. Jacqueline Moline ….
Defendants identified and selected the 75 subjects "from medical-legal consultation practice." To determine asbestos exposures, defendants relied on records obtained when they served as expert witnesses for asbestos plaintiffs—many times in cases against Pecos River—and examined "sworn deposition testimonies and answers to sworn interrogatories provided from subjects, parents, and spouses." Tissue samples were tested for the presence of asbestiform fibers in nine subjects.
