The Blog has written about a J&J subsidiary’s litigation against the other side’s junk-science talc “experts” on several occasions.  Recently, however, those experts managed to obtain summary judgment against the trade libel action brought by the subsidiary over the expert’s blatantly false “scientific” article about talc.  Pecos River Talc LLC v. Emory, 2026 WL 2431332 (E.D. Va. Aug. 19, 2026).  While we think that summary judgment was improper − the opinion reads throughout like a pro-plaintiff juror drawing inferences in favor of the movant seeking summary judgment – as a broader matter, it doesn’t really matter.  By becoming a plaintiff, the defendant was able to discover enough about both the junk data that these “experts” used and the “junk” study that they produced to render both the witnesses and their study useless (or worse) in any trial.  The cross-examination would be devastating.

Just looking at the Pecos Talc opinion, which is hardly favorable to the subsidiary, we learn the following about these “experts” and their study:

• Their study’s claim that “[e]xposures were identified through sworn deposition testimonies and answers to interrogatories provided from subjects, parents, and spouses” − is “false.”
• The study hid the use of “concise statements of exposure received from attorneys” concerning talc exposure.
• “[T]he [study’s] no overlap claim is literally false because discovery in this case revealed that eight of the 75 subjects do in fact overlap with [a prior] paper.”
• The “experts”/study authors admitted the falsity of the no overlap claim in their depositions in this case.
• One of the overlapping cases was “egregious,” and the only explanation was that one of the “experts” “missed it” and “didn’t notice some of the closeness” of the overlapping study subjects.
• One of the “experts” “reached out to a law firm to determine whether particular subjects were overlaps.”
• The “experts” “fail[ed] to investigate” their data before publishing the article.
• “Even if an overlap was objectively ‘apparent,’” that could be due “careless acts of publication,” “clumsy editing,” or “a mistake … due to haste.”
• The “expert” who knew “subject names” refused to reveal them, even to her own co-authors.
• The article admittedly failed to consider “tissue digestions” or coded “brand names” in claiming there were no overlaps.
• It is possible to “conclude[] that [the principal author] made mistakes, was careless, and did not investigate sources or data that could seem obvious after the fact.”
• The “experts”/authors used “Helsinki criteria” to discount the study subject’s actual asbestos exposures.
• The lead author was “unwilling . . . to ‘even say that someone who indisputably ‘inhaled asbestos from changing a brake’ would be excluded from the [a]rticle.’”
• The “experts”/authors used “known exposure” in the article, but actually “meant significant exposure,” thereby discounting actual exposures that they knew of but claimed were not “significant” under the Helsinki criteria.
• The “experts” admitted, after discovery in this case,” that several subjects actually had significant exposure that they had omitted.
• “[T]he [“experts”] sought to prevent the identities of the subjects from being released in litigation by . . . [one of them] instructing [another] to lie during a deposition in another case and say that she did not have the list of 75 subjects names when she did.”
• The lead author “swore it would be a HIPPA violation if she divulged the identities, but she sent the names to a plaintiffs’ asbestos law firm.”
• [Two of the “experts”] swore in another case that several of the supposed subject matches were not plausible, when in fact they were, and that they never served as expert witnesses in any case filed in any state or federal court in New Jersey, when in fact they did.”
• One of the “experts,” despite regularly testifying in court, had a practice of “delet[ing] all his emails immediately after sending or receiving them” to avoid leaving a paper trail.
• The lead author “had never previously published anything in the peer-reviewed literature about asbestos or mesothelioma.”
• Another “expert” delegated the entire process of reviewing the subjects to his wife (also his administrative assistant) who is not a medical doctor and has no experience related to mesothelioma or asbestos.”
• The lead author “relied on the review efforts of [the other two] and did not assess the raw data herself.”
• “It is also undisputed that the [“experts’] understood their role was not to gather exposure information and that they knew there was ‘always a possibility’ that an additional exposure would come to light after the expert report had been drafted.”
• In assessing non-talc exposures, the “experts” “ignored” “sources of information . . . like interrogatory responses, deposition transcripts, complaints, medical records, trial transcripts, expert reports, verdicts, and other documentation.”

2026 WL 2431332, at *3-12 (citations and some quotation marks omitted).

The Pecos River decision accepted all of this evidence as true and still entered summary judgment for the defendants.  Why?  Two reasons, mostly.  First the scienter standard for trade label is very high.  Falsity is not enough.  For first amendment reasons, “actual malice” is required.  2026 WL 2431332, at *2.  That is a tough standard to meet:

This standard requires proof either that the defendant in fact entertained serious doubts about the truth of the statement or that the defendant had a subjective awareness of the statement’s probable falsity.  In other words, a plaintiff may prove either knowledge or reckless disregard of the statement’s falsity.

Id. (citations and quotation marks omitted).  Further, malice must be proven with “convincing clarity,” New York Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964), which Pecos River interpreted as meaning “clear and convincing” evidence.  2026 WL 2431332, at *2.  That also appears to be a correct statement of New Jersey law, under the cited authority,  Durando v. Nutley Sun, 37 A.3d 449, 458-60 (N.J. 2012).

Second, and we believe incorrectly, the opinion oversteps the bounds of summary judgment and usurped the role of the jury.  Repeatedly, the opinion weighs evidence and makes its own procedurally improper judgment calls and credibility determinations about which “inferences” are reasonable and which are too attenuated.  Pecos River, 2026 WL 2431332, at *3 (“[s]uch inferences do not rise to the level of clear and convincing evidence”). *6 (determining the “only reasonable “reading” of disputed communications), *8-9 (concerning “exposure”; declaring the defendants efforts “genuine”); *9 n.12 (finding “inferences” from one “expert’s” spoliation of emails “not ‘concrete’ enough”); *10 (finding “tenuous inferences”); *11 (“though it’s possible a jury could infer such a conclusion, it would require multiple successive inferences”) (emphasis original)); *11 (declaring inferences in favor of liability “a stretch” and “not complete enough”).  With all due respect, the Pecos River opinion does not read like any summary judgment decision we have ever read, but instead resembles the thought processes of a juror reaching a defense verdict on the merits.

The opinion also relies on numerous occasions on the obviously interested testimony of the defendants themselves, although it tries to claim that it doesn’t.  See id. at *4-6 (concerning “knowledge”), *5, 6 (concerning “reckless disregard”), *11 (also concerning “reckless disregard”) .  If this opinion were truly not “relying” on this testimony, then why cite and quote it so extensively?  Indeed, Pecos River even held the evidence of malice was only “minimally probative” given the defendant “experts’” own “emails and internal documents.”  2026 WL 2431332, at *9.  That reads like classic weighing of evidence that should be reserved for the jury.

But in the end we don’t think any of that matters very much.  While these stumblebum “experts” may have escaped liability for their faked, junk science, the discovery that the manufacturer plaintiffs were able to obtain has destroyed the credibility of both in the larger talc litigation.  Look at the bullet point list above again.  Their slapdash methodology for their result-oriented study was so bad that even a court ruling in their favor found it “careless,” “clumsy,” “mistake[n],” incomplete, and downright false on key points.  We can’t see how these “experts’” methodology could possibly satisfy Rule 702 gatekeeping.  Nor can we see, under the same rule, their study, with its admittedly false results, being able to serve as a valid basis for any other expert’s opinion, either.

Beyond that, the discovery that the Pecos River litigation made possible has shot the credibility of these “experts” to hell.  One of them had to admit that he deliberately deletes all his emails about his litigation work.  We’ve seen the other side blow their tops and demand spoliation sanctions over much less.  The others were caught in repeated falsehoods or deliberate avoidance of at least retrospectively “obvious” sources of information likely to contradict their opinions.  All of them were forced to reveal how much they were operating in cahoots with the lawyers who were paying them.  Not only does that make them problematic witnesses in any talc litigation, but these revelations will continue to haunt them in any other litigation where they ask juries or judges to believe what they are saying.

That’s why, even though the corporate plaintiffs in Pecos River, may have lost the liability battle, they won the war against these would-be talc “experts.”