We previously blogged about the bogus “scientific” articles in the cosmetic talcum powder litigation and the defendant’s relentless efforts to expose the likely fraud. Prior posts are here, here and here.  If you do not recall the ongoing saga, here’s the quick refresher. Plaintiffs’ paid experts in the talc litigation published two articles that purported to study groups of individuals whose only potential asbestos exposures involved talcum powder. Those “studies” were based on plaintiffs in litigation where the authors served as experts. The defendant discovered that several of the subjects in the articles were plaintiffs in ongoing cases, and the defendant knew from those cases that certain subjects had numerous, potential exposures to asbestos other than talcum powder—thus undercutting the entire foundation of the articles.  The defendant aggressively sought discovery about the study subjects’ identities and filed trade libel lawsuits against the authors.

Today’s decision, Moline v. Pecos River Talc LLC, 2025 WL 2898086 (S.D.N.Y. Oct. 10, 2025), involves a motion to quash a subpoena issued to Dr. Jacqueline Moline (who authored one of the papers) by Pecos River in the trade libel lawsuit brought against the other authors, Pecos River Talc LLC v. Emory et al., No. 4:24-cv-75 (E.D. Va.) (Pecos River was the entity created as part of Johnson & Johnson’s effort to resolve the talc-related claims through bankruptcy).  We’ll call the defendants in that case the Emory defendants.

The subpoena to Dr. Moline stemmed from her deposition testimony in another case where she testified that she had not communicated with any of the Emory defendants about potential overlap of the study subjects between her article and theirs. In response to Dr. Moline’s motion to quash, Pecos River provided the court with emails indicating that Dr. Moline had communicated with the Emory defendants about potential overlap in their articles. Moline, 2025 WL 2898086 at *2-3. Those emails included the following:

• An email from one of the Emory defendants to Dr. Moline stating: “I am working with [the other Emory defendants] on a study. Before we submit for publication, I want to make sure that a few of the cases have not already been published by you. If possible, I would appreciate the opportunity to discuss with you.” Id.  
• Dr. Moline responded to that email asking the author to call her the next day and indicated that she would be available “in the morning.”  
• At 11:03 a.m. the next morning, the Emory defendant who emailed Dr. Moline then emailed one of his co-authors the following: “I am removing 4 cases from the study because they have already been reported. . . .”  Id.  

The last email did not say that the Emory author spoke with Dr. Moline, but the chronology certainly suggests it. Based on these emails, the court concluded:

[I]n light of [the emails]—which themselves appear on their face to be communications between Dr. Moline and the Emory defendants about the articles, and suggest that Dr. Moline discussed the subject of overlapping mesothelioma patients with them on a call—there is sound reason to question whether her deposition answers were false or misleading, and to allow Pecos River to explore the point in a deposition of her in the Emory action.

Id. at *3.  Dr. Moline attempted to hedge her prior testimony by arguing that the emails didn’t involve any “substantive discussions about the two articles,” but the court noted that her prior deposition testimony did not contain any qualifiers. Rather, “she appears to have squarely testified that she had not had ‘any communications’ with the Emory defendants about either article.” Id.  

Dr. Moline made additional arguments that, rather than supporting her motion, appear to have put her in more of a pickle. She stated that, on a call with Dr. Emory, she told him it was inappropriate to discuss patients’ names and declined to discuss any overlap. The court found this troubling:

That assertion implicitly admits that the information sought by the subpoena is relevant, insofar as it appears tacitly to concede that the topic was broached on a call between Dr. Moline and Dr. Emory. And that representation by Dr. Moline appears to contradict her [earlier] testimony. There, when asked whether ‘any’ Emory defendants asked her to identify the subjects in her article ‘to ensure that there wasn’t an overlap between the two articles,’ she answered: ‘No, we didn’t have communications.’ Her statement now that, on a call, she purportedly declined to discuss that topic suggests that at least some such communications—even if promptly deflected—occurred.

Id. (internal citations omitted).

The subpoena also sought testimony and documents related to Dr. Moline’s communications with the Emory defendants, a plaintiff law firm, and a third group of authors (referred to as the “Steffen authors”).  The court held that “the extent to which the Emory defendants undertook their research in coordination with [the plaintiff law firm] for the purpose of bolstering litigation efforts is relevant to this dispute. It has potential to influence a factfinder in assessing whether, as Pecos River claims, the defendant authors were motivated to reach certain conclusions, and did so in reckless disregard for the truth.” Id. at *3.  Pecos River cited evidence showing that the plaintiff law firm had multiple communications with the Emory defendants about the articles before they were published. And the article by the Steffen authors was ultimately published alongside Dr. Moline’s article in the same volume of the same journal. Id. at *4. Based on that record, the court held that Dr. Moline “likely possesses information bearing on the communications among [the plaintiff firm] and the Emory defendants regarding overlap between the Moline and/or Steffen articles. Such evidence has clear potential to bear on Pecos River’s claims of actual malice.”  Id.

Since Pecos River showed that its subpoena sought relevant information, the burden shifted to Dr. Moline to show undue burden or harassment.  The court found Dr. Moline’s arguments in support of harassment and undue burden unconvincing.  As the court put it, “Dr. Moline has testified as a paid plaintiffs’ expert in asbestos litigation for more than 25 years, and she does so approximately once a month. Sitting for an additional deposition, and searching and producing responsive records, will not materially burden her.”  Id. at *4.  Finally, it’s worth noting that the court included a footnote in its decision stating that the Emory defendants “now admit, contrary to another representation in the Emory article, that multiple subjects were, in fact, exposed to asbestos from other sources than cosmetic talc.” Id. at *2, n.1.  Kudos to Pecos River and its counsel for continuing to pursue their efforts to expose these fake scientific articles authored by plaintiffs’ paid experts.