Today’s post is a little different, in that it involves not an order, but a Motion for Relief from Judgment and to File an Amended Complaint (the “Motion”) filed by Pecos River Talc (“Plaintiff”) against Dr. Jacqueline Miriam Moline (“Dr. Moline”). Pecos River Talc LLC v. Moline, 3:23-cv-02990, Doc. No. 47-1 (D.N.J. Apr. 29, 2025).  Dr. Moline is a serial expert on behalf of plaintiffs in the cosmetic talcum powder litigation, and she was the lead author on a paper entitled “Mesothelioma Associated with the Use of Cosmetic Talc” (the “Article”).  The article was faked, as we originally discussed, here, in our “Stupid Expert Tricks Redux” post. That’s even clearer now, as the Motion we discuss here identifies bombshell, newly discovered evidence that undercuts the foundation of the Article and Dr. Moline’s opinions. This is a true “smoking gun.”

The Article is a case series of 33 individuals who brought lawsuits alleging that talcum powder caused their mesothelioma. The 33 individuals discussed in the Article were anonymized, deliberately, so defendants in the talc litigation had no way to test the veracity of its claims.  Dr. Moline represented in the Article that (1) talcum powder usage was the only source of asbestos for all 33 individuals, and (2) although potential exposures to other asbestos sources were considered, there were no identified sources for the 33 individuals other than talcum powder.  Cosmetic talc litigation plaintiffs rely heavily on the Article, and Dr. Moline testified about it before Congress. It has been described as “groundbreaking” and having a “widespread influence on nationwide litigation in which plaintiffs allege that exposure to cosmetic talcum powder caused their mesothelioma.” LTL Mgmt. LLC v. Moline, Case No. 3:23-cv-02990, 2024 WL 3219683, at *1 (D.N.J. June 28, 2024).

Plaintiff initiated a lawsuit against Dr. Moline in 2023 for trade libel, but the New Jersey federal court dismissed that for failure to state a claim.  Plaintiff appealed to the Third Circuit but recently obtained an extension of time for that appeal while the district court evaluates its Motion—which attempts to reinstate an amended complaint based on newly discovery evidence about the Article.

The Article and Dr. Moline’s role as an expert witness have some history that pre-date today’s Motion and the Plaintiff’s underlying lawsuit.  As we previously blogged, in 2022 a different defendant in a cosmetic talcum powder lawsuit suspected that the plaintiff was one of the 33 individuals described in the Article. Bell v. Am. Int’l Indus., 627 F. Supp. 3d 520 (M.D.N.C. 2022).  That plaintiff previously filed a worker’s compensation claim for asbestos exposure, so the defendant sought discovery into the identities of the individuals in the Article.

The fact that one of the individuals filed a worker’s compensation claim related to industrial exposure to asbestos undermined the Article’s “express premise and [Dr. Moline’s] related expert testimony that none of the individuals had any known exposure to asbestos other than talcum powder.”  Id. at 525. After much opposition from the plaintiff, the defendant was able to obtain through a subpoena to Dr. Moline’s employer a redacted “key” that identified the Bell plaintiff as one of the litigants addressed in the Article. In response, plaintiff effectively withdrew Dr. Moline as an expert by not presenting her for deposition by the court-imposed deadline in Bell, and summary judgment was ultimately entered in the defendant’s favor.  The defendant in that case was also successful—despite strenuous opposition by plaintiff and Dr. Moline’s employer—in vacating the protective order as it applied to the de-identified plaintiff so that the information could be used in other litigation.

And defendants did use it in other litigation. In 2023, the Plaintiff in today’s Motion filed its underlying lawsuit against Dr. Moline alleging trade libel, common law fraud and false advertising under the Lanham Act.  Plaintiff relied heavily on the information disclosed in Bell. The New Jersey district court dismissed LTL’s complaint against Dr. Moline on the grounds that Dr. Moline’s conclusions were protected by free speech and that the lawsuit did not show that Dr. Moline’s underlying research was “verifiably false.”  LTL appealed to the Third Circuit.

While the Third Circuit appeal remained pending, Plaintiff was able to obtain the “key” to all 33 individuals in the Article through a subpoena to Dr. Moline’s employer (enforced over the employer’s repeated objections by a New York appellate court, after Dr. Moline’s attempt to string things out even more was rejected by the highest state court in New York).  With that, Plaintiff was finally able to compare the individuals to the asbestos exposure histories alleged in their lawsuits.

As set forth in the Motion, the key revealed—in stark contrast to the Article’s representations that talcum powder was the only source of asbestos exposure for the 33 individuals—that there were numerous instances where the individuals discussed in the Article had potential exposure to other asbestos sources, as attested to by none other than Dr. Moline herself:

• Dr. Moline’s expert report in one plaintiff’s case described the husband’s work in sanding and applying joint compound in their home during the 1960s as a “potential exposure” for the plaintiff.
• In another expert report by Dr. Moline, she described another plaintiff’s work as a press operator at an industrial facility as a “potential exposure” to asbestos.
• Dr. Moline stated in another expert report that one of the plaintiff’s handling of laundry from her husband – who worked with raw asbestos and other asbestos containing products – was a potential exposure.
• A plaintiff who filed a worker’s compensation claim swore that she was exposed to asbestos during employment at two textile facilities.
• A plaintiff smoked asbestos-containing cigarettes, and Dr. Moline stated in an expert report that the plaintiff was exposed to asbestos by those cigarettes.
• A plaintiff’s basement had 60 feet of exposed asbestos pipe, his schools had hundreds of bags of asbestos removed after he left them, and asbestos that is not alleged to be found in cosmetic talc was found in his tissues.
• A plaintiff filed a claim from the Manville Personal Injury Settlement Trust for $450,000 and recovered over $28,000.

Motion at 10-11.  Apart from these examples, Plaintiff’s Motion identifies other individuals in the Article who alleged exposure to asbestos from different sources than talcum powder in their complaints, fact sheets, medical records, and deposition testimony. Plaintiff’s Motion summarizes this new information as follows:  

Dr. Moline’s assertion that the litigation records she reviewed showed that the subject’s sole exposure to asbestos was talc was not a scientific opinion.  It was a demonstrably false knowing representation. It was a lie.

Motion at 9. That’s the kind of intent that trade libel requires, and which the New Jersey trial court’s decision in the 2024 LTL Mgmt. case said was missing. Now Dr. Moline’s specific intent is alleged, in spades, in the proposed amended complaint.

Apart from the strength of the information discovered after it obtained the key to the Article, Plaintiff also emphasized another case pending in the Eastern District of Virginia where Plaintiff’s product disparagement claim against a different p-side talc expert who authored a similarly questionable cosmetic talc paper survived a motion to dismiss. LLT Mgmt. LLC v. Emory, 2025 WL 438100 (E.D. Va. Feb. 7, 2025). We blogged about that case here, but it’s worth noting that this second paper analyzed 75 litigation plaintiffs and similarly asserted that none of them had exposures to asbestos other than cosmetic talc.  As with the Article, Plaintiff similarly claims that those factual assertions in the second article are also false, and that lawsuit is moving forward.

Plaintiff’s Motion sets forth a detailed argument why the court should grant its Motion, and it relies heavily on the newly discovered information discussed above.  The court previously granted a motion to dismiss based on a holding that the initial complaint did not show that the Article was “verifiably false.” The newly information goes far in making that showing.  According to Plaintiff, its “newly discovered evidence confirms that Dr. Moline’s statement is . . . literally false.” Id. at 20.

The Motion also addresses the court’s prior view that the peer review process, rather than the courtroom, “provides the best mechanism for resolving scientific uncertainties.” LTL Mgmt. LLC v. Moline, 2024 WL 3219683, at *13.  Given the difficulties the Plaintiff had in obtaining the de-identified information, it would be impossible for a peer reviewer to uncover what it took years for defendants in the talc litigation to do:

The new evidence shows that the peer review process is not the proper mechanism to address the falsity of Dr. Moline’s Article.  That evidence shows that the peer review process is simply not capable of or not well-suited for that task. Indeed, Dr. Moline did not provide the peer reviewers with any of the underlying materials, so they had no way to vet Dr. Moline’s assertion that none of the Article’s subjects had alternative asbestos exposures.

Motion at 23. We also understand the Plaintiff has now contacted the publisher, seeking to have the Article formally withdrawn.

Plaintiff’s Motion is founded on hard-fought discovery that was vigorously opposed at every instance. It is the kind of offensive attack that keeps the playing field level in litigation—as it is supposed to be. There is a lot left to happen in this case, and we’ll continue to post on new developments. Congratulations to defense counsel for persisting, and exposing what now looks like a clear case of academic fraud.