From its start, the Blog has railed against certain expansions of traditional product liability that could have negative impacts on scientific progress and the availability of good medical products.  Innovator liability, first described in Conte back in 2008, is a good example of a bad idea.  Its offspring, the so-called duty to innovate, is such a bad idea that we might liken it to Fenrir, the mythological wolf-son of Loki who was fated to swallow the earth.  Not quite so overly dramatic are the variety of alleged liabilities of clinical trial sponsors for doing the various things described in informed consent documents, such as assigning the participant to a placebo arm of the trial or ending free treatment with a study drug once the trial ends.  Perhaps a little lower down the list is the subject of publisher liability, both as to journals and to investigators and institutions that conduct research that might help get an allegedly harmful medical product on the market.  See here, here, and here.  It is not hard to see how creating liability, or even the threat of costly litigation, that runs from someone who conducts research to someone who was allegedly harmed by the product at issue in the research (but was not part of the study itself) could have a chilling effect on research.  We do not think we are going out on a limb by saying sound public policy favors encouraging quality scientific and medical research that might lead to new medical products and other advances in public health.

But what about dreck?  Some research is of low quality, not just because it has poor design, poor funding, and/or poor investigators, but because the investigators have an agenda.  We know that plaintiff lawyers like to portray all industry-sponsored research and research done by researchers with even tangential ties to industry as being inherently biased.  However, there is research that really can be labeled as “litigation-driven.”  This genus has a species where experts write up their take on patients they were retained to help in litigation.  If you lump enough of these takes together, especially if you throw in some non-litigation cases, then you have something that can dressed up for publication as a case series or a case study (the deceptively dressed case series).  If published in a peer reviewed journal, such a litigation-driven case series can be accorded a check on each side of Daubert ledger.  There is also a species with legitimate, protocol-driven research to address an issue raised in litigation or to respond to a publication from the other side offering a hypothesis that goes against the established mainstream scientific view but helps one side in litigation.  Of course, there is also the species where laboratories with partially obscured ties to the plaintiff bar purport to detect potentially dangerous levels of some unexpected chemical in an everyday item, with the intent to further litigation before the lack of reproducibility can have its own impact.

Most of the attention on these pages to litigation-driven research has related to admissibility of expert opinions based in whole or in part on them.  Dressed up ipse dixit is still ipse dixit.  “My proof of general causation is that I have a specific causation opinion in this case in which I am retained as an expert for the plaintiff” is not too different than “My proof of general causation is that I have had specific causation opinions in multiple cases where I was retained as an expert for the plaintiff and I was able to publish a case series about them.”  We have seen a few cases recently where defendants have gone after data from the research frequent flyer plaintiff experts claims supports their recurring positions.  Results have been mixed, like here, here, and here.  In LLT Management, LLC v. Emory, No. 4:24-cv-75, 2025 WL 438100 (E.D. Va. Feb. 7, 2025), a subsidiary of a well-known talc manufacturer took a different approach.  It sued three plaintiff experts who published an article that it claims created liability for business harms under three different theories.  The experts-turned-defendants moved to dismiss and knocked out two of the three claims.  However, surviving the motion to dismiss means the manufacturer will be able to seek discovery from the experts that we expect will be broader than could have been obtained through a more traditional route.  Plus, the experts have to defend and risk liability in the case as it proceeds through the E.D. Va. “rocket docket.”

Negative consequences for an expert who provides testimony that is less than factual are generally limited.  We have never heard of a prosecution for perjury of a testifying expert.  Sanctions are rare.  Reputational damage is hard to measure, and the skeptical defense lawyer in us might proffer that being good at stretching the truth might help a plaintiff expert get work in serial product liability litigation.  While a few states have a cause of action against a party that brings frivolous litigation, liability for an expert for slander from the stand is not really a thing.  If the false statement appears in writing in an article that is available to the public, however, then the expert/author has at least theoretically exposed herself to liability, particularly if the statement is viewed as being tied to the author’s own business ventures.  That distinction was key in the Emory decision.

The allegations in the Emory complaint were that the three frequent flyer experts in asbestos litigation published a case series in March 2020 that purported to describe 75 patients who were separate from 33 patients in an earlier case series, each of whom purportedly had mesothelioma despite no known exposure to asbestos except through cosmetic talc, of which plaintiff’s parent was a major manufacturer.  However, the authors allegedly knew of overlap between the two case series and that at least six of the patients had other known exposures to asbestos; they allegedly knew this because they had been retained experts for those patients when they sued the manufacturer.  They also allegedly published the case report as part of a symbiotic relationship with plaintiff lawyers to generate negative attention about the manufacturer, encourage more lawsuits against it, and provide more opportunities where they could be hired as experts.  These allegations were offered in support of New Jersey common law claims for “Injurious Falsehood/Product Disparagement” and fraud and a Lanham Act claim for false advertising.  Defendants moved to dismiss on statute of limitations, laches, standing, and failure to state a claim.

We will focus our discussion on the issues that are more likely applicable to future cases like this.  In terms of statute of limitations and laches, the main issues were 1) that the clock started with the publication given the manufacturer’s knowledge from prior litigation and 2) that the experts failed to articulate prejudice from any delay in bringing the Lanham Act claim approximately four years after the publication.  The fraud count fell based on the application of Virginia’s two-year statute of limitations.

As to standing, the manufacturer claimed harms from the article in terms of lost sales volume and profits and the increased expense of defending litigation.  Each was sufficient to create standing for the surviving common law claim.  The allegation that there was a connection between the publication of the case series and the manufacturer’s discontinuation of certain products two months later may prove to be unsupported, but it was enough of an allegation for Article III standing.  So too for allegations that more lawsuits were brought because of the article and that defending cases became more costly when opposing experts relied on the article.  Standing under the Lanham Act requires, among other things, that the defendant’s advertising or promotion be made “for the purpose of influencing customers to buy goods or services.”  Because the experts were not selling or encouraging the purchase of any goods, the only promoted services that could lead to standing would be for plaintiff lawyers to hire them as experts.  That meant the Lanham Act claim had to be somewhat circumscribed.  (We also find it interesting that one of the arguments the experts made in challenging Lanham Act standing was that “the potential link between cosmetic talc and cancer has long been known to consumers,” which seems contrary to the positions taken by consumers as product liability plaintiffs against cosmetic talc manufacturers.  Plaintiffs tend not to want their experts to support an assumption of the risk defense.)

The limitation on the Lanham Act claim meant that it did not state a claim.  If the alleged false advertising related to the experts’ “litigation services,” then the alleged statements by the experts in the article did not constitute false advertising.  They accurately promised to testify consistent with the article, regardless of whether the article contained misrepresentations about the cases it discussed.  That left the claim for “Injurious Falsehood/Product Disparagement” under New Jersey law.  Somewhat surprisingly, the authors did not challenge that the element of malice has been properly pleaded.  Instead, they argued that the article contained opinions instead of verifiable facts.  Whether there were cases that appeared in both of the case series and whether there were “known” exposures to asbestos beyond cosmetic talc were matters of fact, not opinion.  New Jersey law does not have a blanket protection for what is in a peer-reviewed journal, but sets the test as whether “the facts are adduced through a scientific method, or whether they exist independent of the scientific process.”  Information the authors had from being experts in litigation before the article was published is the latter.  The other challenges also failed.  In a bit of a reverse nod to market share liability, the statements in the article were reasonably inferred to relate to the manufacturer’s products, because they had a majority of the market and name recognition.  The damages allegations discussed above were also sufficient, at the motion to dismiss stage, to establish the requirement that the product disparagement is alleged to cause special damages.

That brings us back to where we started.  The expert-turned-authors-turned-defendants will be subjected to discovery on their work, their relationship with plaintiff lawyers, and presumably other sensitive subjects.  It remains to be seen whether the underlying facts of Emory are too unusual to make this sort of collateral litigation a standard option and whether there will be a chilling effect on legitimate scientific scholarship about products that are or will become the subject of major product liability litigation.  We doubt either will come to pass, but, having crossed many experts whose allegedly independent scientific publications overlap with their decidedly biased litigation work, we cannot help but be intrigued by the implications of Emory.