Discovery

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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.

Continue Reading Plaintiff Talc Expert Must Give Deposition Testimony in Trade Libel Lawsuit
Photo of Michelle Yeary

We call a treating physician who testifies to more than just their treatment a hybrid expert. But doctors who both treat and testify can sometimes be less “Doctor Do No Harm” and more “Doctor Show Me the Money.” And when their treatment comes under a letter of protection (“LOP”), things get even murkier. Like, swampy…

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In what we view as a game-changing submission, on September 3, Lawyers for Civil Justice filed a 20-page analysis of no fewer than nine third-party litigation funding (“TPLF”) contracts that, one way or another, have become public.  This analysis rips away the veil of secrecy that has surrounded TPLF, analyzes why and how specific TPLF…

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Today’s case is not a drug or device case. It’s not even a products liability case. But it does deal with sanctions against a plaintiff and his counsel for intentional spoliation of text messages—conduct that could (and undoubtedly has) taken place in prescription medical product liability litigation. So, we’ve added Pable v. Chicago Transit Authority,…

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Today’s guest post is from Jamie Lanphear and Daniel Kadar, both of Reed Smith, who follow product liability events in Europe closely. They are discussing the implications of recent changes on the availability of attorney/client and work product privileges—called “legal professional privilege” in Europe—not only in Europe itself, but how European restrictions might find their way back across the pond to parallel litigation in the United States. As always our guest posters are 100% deserving of all praise (and any blame) from their posts.

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If you’ve ever found yourself grumbling about the breadth of U.S. discovery, you’re not alone. For U.S. lawyers, turning over reams of company documents is a familiar—if unwelcome—part of litigation. For most of our European colleagues outside of the UK, however, the idea of broad, adversarial discovery has generally not been a concern. That’s likely about to change. The EU’s new Product Liability Directive (PLD), which the blog has previously covered here, here, here, and here will expand disclosure obligations in product liability matters across the EU, and the implications for legal privilege—especially for in-house and U.S. counsel—are significant.

Continue Reading Guest Post – The New EU Product Liability Directive: More Disclosure, More Risk for Privileged Communications
Photo of Stephen McConnell

Surely, you’ve heard the definition of insanity as repeating the same conduct but expecting different results. You might also have heard that Einstein said it, though that might not be right – not even relatively right. 

It is definitely not right for plaintiffs to keep filing meritless actions even after they keep receiving benchslaps.  Maybe…

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Here are a couple of recent favorable developments concerning the effort to require public disclosure of p-side third-party litigation funding to the same extent as defendants must disclose relevant insurance coverage.  In addition to litigation-related benefits, such disclosure would (unfortunately) benefit plaintiffs by allowing them to shop for the best terms (as one can with insurance), rather than essentially have to take what they are offered in the current utterly opaque market.

Continue Reading Recent TPLF Disclosure Developments
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We get paranoid in our old age.  We know that our clients spend a great deal of effort and money on keeping their internal data safe from criminal hackers.  We assume that hospitals and other repositories of electronic medical records are doing the same.  However, once such data, such as corporate trade secrets and personnel files, are turned over during discovery, we have no confidence whatever that the other side is employing similarly robust data security measures.  Equally, if not more, problematic is the degree of data security maintained by expert witnesses and the plethora of other litigation-related vendors who may receive confidential material − translators, court reporting services, copying services, data processors, database and remote deposition hosts, coders, document reviewers, graphics producers, jury researchers, and trial preparation services.  Similar confidentiality issues exist, although less of a concern for us, concerning plaintiffs’ personal medical records after they are collected.

Is there any way we can require them to upgrade their security?

Continue Reading Using Protective Orders To Protect Against Data Breaches

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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