”He that violates his oath profanes the divinity of faith itself.” — Cicero.
It might seem unlikely that, long ago, we noticed the above maxim inscribed on the south side of the Los Angeles City Hall while walking to our first jury trial (almost as unlikely as the fact that we were walking in L.A.). It might seem even more unlikely that we found a way to use that maxim in our closing argument. It is not exactly catchy. But, yes, we tossed a little bit of old Cicero at the 12 citizens good and true. We wanted to remind the jurors of their oaths (we had some concern that jurors might engage in nullification because the case involved a so-called “victimless crime”) and we wanted to highlight how our semi-brilliant cross-examination caught the defendant in a lie. Cicero’s point was that a person who lies under oath probably does not really believe in anything, except pursuit of personal advantage.
Over the last several years, it has been a disappointing revelation that our government runs on the honor system. It has been even more disappointing to learn that honor is in short supply. The news is mostly a cascade of lies.
It has also been disappointing to encounter, almost every week, proof that witnesses occasionally lie under oath. Sure, cross-examination is an engine of truth, and, sure, there is the threat of a perjury prosecution. But if you think witnesses seldom lie, then you have been walking the earth in a fog. We teach young lawyers about to take depositions to study the deponent closely when they answer the question as to whether they discussed the case with anyone besides their lawyers. Why? Because the expression on the witness’s face when they answer the question tells you what they look like when they lie.
Maybe testifying is not always testi-lying, but any deposition or trial transcript is chock full of truth-shading. There are expert witnesses who are experts at precisely that. We are not saying that all plaintiff expert witnesses lie. But there are some who ought to add “prevarication” to their overblown list of competencies. The sad thing is that they usually get away with it.
Let’s not linger on such a depressing thought. Let’s be lawyers. Putting aside the issue of whether or not an expert witness has deceptive intent, is one necessarily stuck with an adverse expert’s say-so if cross-examination does not quite do the trick? Are there other ways to cut through a blizzard of expert nonsense?
Yes, indeedy. And that brings us to the saga of plaintiff talcum powder experts who invariably attribute an unfortunate plaintiff’s mesothelioma to talcum powder exposure. The theory is that talcum powder contains asbestos. From what we can tell, the theory is bunk. The valid epidemiology does not show that shaking cosmetic talcum powder onto one’s body, even over the course of many years, causes illness. But you can be sure that a plaintiff lawyer will not only find an expert who will say that epidemiology shows that talcum powder causes mesothelioma, but also that such expert has written an article documenting that selfsame bogus causation. That article will purport to show a group of people (“subjects”) who suffered mesothelioma and had no conceivable exposure to asbestos save talcum powder.
Except that some of the subjects almost certainly did have other potential exposures to asbestos. (That’s even putting aside background exposure. Believe it or not, asbestos is everywhere.) We have written posts about the saga of plaintiff talcum powder experts, including Dr. Moline, whose articles were not entirely accurate about the subjects. See here, for example.
Today’s case is Pecos River Talc LLC v. Dr. Theresa Swain Emory, et al., 2025 WL 1888565 (E.D.Va. July 8, 2025). The plaintiff in that case was “formed as part of Johnson & Johnson’s effort to resolve talc-related claims through bankruptcy.” The plaintiff sued authors (not Moline this time, but wait, for she plays a role in this drama — or farce) of an article that allegedly made false statements about talcum powder, asbestos, and malignant mesothelioma. The lawsuit proceeded on a theory of trade libel. The defendants were “plaintiff-side expert witnesses in litigation between individuals with mesothelioma and manufacturers of cosmetic talc.” They had published an article in March 2020 that said two things that the plaintiff alleged were false:
1. The article stated that it “presents 75 subjects with malignant mesothelioma, whose only known exposure to asbestos was cosmetic talc,” and
2. These subjects were “additional” to the 33 subjects in an earlier study by Moline.
The authors had selected the 75 subjects “from medical-legal consultation practice.” That is, the subjects were talc plaintiffs.
Why did the plaintiff think there was something fishy about these subjects? The article did not supply the names of the subjects, but described certain facts concerning them. From prior talc product liability cases, the plaintiff spotted some remarkable similarities. Its complaint alleged that at least six of the 75 subjects in fact had exposures to asbestos other than talc (for example, one had smoked cigarettes with asbestos, and another lived with parents who might have brought asbestos home in their clothes), and that at least one was also included in the Moline study. To prove those allegations, the plaintiff sought the names of the subjects. The author-defendants refused. The plaintiff filed a motion to compel identities of the article’s subjects.
Previously, Moline had also tried to keep hidden the names of the subjects in her study. That resistance worked … until it didn’t.
The noose appears to be tightening around the talc plaintiff side experts who conducted these made-for-litigation studies. The authors in this case (again) argued that discovery of the subjects’ names was not appropriate, as the names were not relevant and production of such names would be disproportionately burdensome.
But the plaintiff successfully argued (and past history supports) that the names will reveal not only that those “subjects” were exposed to other asbestos sources, but that these experts had evaluated them in other cases and thus knew that the statements in the studies at issue were false. Such knowledge constitutes “malice” − which is what trade libel requires. The court saw through the authors’ desire to “demarcate the universe of Pecos River’s discovery based on their preferred outcome of this key legal question.”
Proof of intent is obviously central to the case. Names are by far the simplest and strongest way to establish that the defendant’s statements were false, and known to them to be false. A trade libel plaintiff is entitled to prove malice however it thinks best. The authors were not entitled to limit such methods artificially. The plaintiff could use the names to seek corroborating evidence from other litigations.
Further, release of the names was not burdensome. The authors were willing to supply information about the subjects, but with the names redacted. Unredactions, by themselves, are no trouble and no expense. Proportionality was satisfied.
The experts also resisted disclosure based on “principles of research ethics.” That was risible. These “subjects” were all asbestos plaintiffs who provided information knowing such information was going to be used in litigation. They had no privacy interest in their names, which were never confidential. There was no patient-physician relationship. The simple fact is that the authors did not solicit the subjects “to participate in a medical research study, obtain written consent from them, or even notify them that they were included in the study.”
What about HIPAA? Nice try. HIPAA has an exemption for litigation, and does not even apply to the author-defendants, who were acting as litigation experts. They were not “covered entities” under HIPAA. Moreover, the court emphasized that “this is a trade libel case. The veracity of the statements in the article is directly at issue, shifting the calculus on the appropriateness of disclosing the subjects’ names when balanced with ethical or confidentiality concerns.”
In short, the defendants could not successfully oppose production with their own subjective beliefs about confidentiality. Contrary to the defendants’ protestations, medical research would not be chilled, since the business of litigation consulting is not medical research at all. Peer review of a study does not create confidentiality that did not exist otherwise. It is not the source material underlying the study that the defendants fear, but the outside information that plaintiff may obtain once it has the names. Such a chilling effect was at best speculative. Importantly, the information here was being sought directly from parties to the litigation, not from third-party scientists.
The court also stated that it could not “turn a blind eye to the elephant in the room.” One of the authors had called Moline to see if she could get access to information that would help ensure there was no overlap between their articles. Moline declined to discuss patients’ names. As the court acutely observed, “At that time, defendant Emory was seemingly content with discussing the same information she now claims the disclosure of which would violate research ethics with a third party.” Touché.
The court permitted discovery of the subjects’ names. Disclosure was subject to a protective order as to public release of identifying information. But the bottom line was that the plaintiff was free to use this information in other litigation. There will be some juicy cross-examinations in future talc cases.
We applaud the court’s reasoning. Even more, we applaud the defense lawyers’ energy, ingenuity, and persistence.
It reminds us of our days working on tobacco cases. Similar to the talc cases, plaintiff lawyers and their experts seemed to be governed by an extreme ends-justifies-the-means attitude. A well known polling company grew annoyed that tobacco companies seized upon polls as evidence that Americans have long believed that cigarette smoking posed serious health risks. Too bad. It was the truth. Nevertheless, some employees of that polling company authored an article that purported to refute the defense interpretation of the polls. Rather than take that indignity lying down, one of the tobacco companies undertook discovery of what went into that plaintiff-friendly article. The answer: a lot of hooey. We particularly remember the deposition of one of the polling company anti-tobacco die-hards. The tobacco lawyer had them dead to rights. Just before asking a particularly devastating question, he turned to the row of fellow defense lawyers along the table, grinned, and said, “Watch this.” And then came the coup de grace. Good times. We defense hacks need to follow the lead of such lawyers, including the plaintiff lawyers in the Pecos River case. When we espy chicanery from the other side’s experts, let’s try to get behind it. Let’s test it. Let’s be enterprising and clever. And then … watch this.