On February 7, 2025, Judge Walker, sitting in the United States District Court for the Eastern District of Virginia, ruled that the Plaintiff (a subsidiary of a parent company engaged in nationwide talcum powder litigation) (“Plaintiff”) had standing to sue expert pathologists who testify for plaintiffs in personal injury litigation (“expert pathologists”) for injurious falsehood/product disparagement based on allegedly false statements in a scientific article purportedly linking cosmetic talc to mesothelioma.¹ Although the experts did not name Plaintiff, or specific products in their scientific article, Judge Walker held that the subsidiary plausibly alleged that their economic injuries were traceable to the expert pathologists’ allegedly false statements, which contributed to a decline in consumer demand for baby powder products.

Asbestos litigation is the longest-running mass tort litigation in U.S. history. The latest trends in asbestos litigation show a younger population of plaintiffs filing claims for asbestos-contaminated talcum powder in cosmetics and baby products. The expert pathologists asserted in their published article that they had identified 75 individuals, in addition to 33 additional individuals identified in an earlier study, who had malignant mesothelioma but no known exposure to asbestos except through cosmetic talc. In its Complaint, Plaintiff purported to have identified six of the anonymous study subjects and alleged that, as to those subjects, they had been exposed to asbestos through alternative means. Plaintiff alleged that the expert pathologists misled the public about the safety of cosmetic talc products, and that their real goal was “to create a body of scientific literature to appease the plaintiffs’ bar, who hired the defendants as expert witnesses in tort cases against” the Plaintiff.

There has long been a debate over the ethics of “litigation-generated science” and its potential to generate biased studies. In the 1994 Ninth Circuit decision on remand of Daubert v. Merrell Dow Pharmaceuticals, Inc., Judge Alex Kosinski stated that scientific studies done for the purposes of litigation should be subject to more stringent standards of admissibility than other scientific studies.² It stands to reason that experts conducting research to support litigation are at higher risk of engaging in scientific misconduct due to their bias toward a particular conclusion.³ This is particularly important in products liability cases where the verdict often hinges on a battle of the experts.

While Judge Walker’s ruling that Plaintiff had standing to file suit, allows plaintiff to prove these claims, time will tell whether discovery will uncover the veracity of the claims in the article. Judge Kosinki’s Daubert decision focused on gatekeeping the science that is presented to a jury, Judge Walker’s decision here has a broader potential gatekeeping function. If parties engaged in civil litigation are allowed to move forward with claims related to statements by experts in scientific articles that are allegedly false, it discourages biased scientific studies from being published by experts for the sole purpose of advancing the position of a party to ongoing litigation.

1. LLT Mgmt. LLC v. Emory, et al., No. 4:24-CV-75, 2025 WL 438100, (E.D. Va. Feb. 7, 2025). ↩︎
2. Daubert v. Merrell Dow Pharmaceuticals. 1995. No. 90-55397. U.S. Court of Appeals for the Ninth Circuit, San Francisco, CA. ↩︎
3. Haack S. What’s wrong with litigation-driven science? An essay in legal epistemology. Seton Hall Law Rev 2008 In press. ↩︎