GREENSBORO, N.C. (Legal Newsline) - A scientific study that concluded talcum powder causes cancer -- and helped turn talc lawsuits into a multibillion-dollar enterprise -- is potentially misleading, a federal judge has concluded, allowing defense attorneys to mount more probing cross-examinations of the study’s author.
The ruling by a federal judge in North Carolina lifted a protective order shielding evidence that at least one subject in the study had made workers’ compensation claims over prior exposure to asbestos, undermining the premise of the article that talc was the only explanation for their mesothelioma.
Dr. Jacqueline Moline, a frequent expert witness for asbestos plaintiffs, published an article in the Journal of Occupational and Environmental Medicine in 2020 that described 33 cancer patients who she said had no known exposure to asbestos other than cosmetic talc. She and her co-author Ronald Gordon, also a prolific expert for asbestos plaintiffs, said the study was the first “large case series to identify cosmetic talcum powder contaminated with asbestos” as the cause of mesothelioma, and plaintiff lawyers have relied upon it ever since to support allegations against Johnson & Johnson and other talc companies.
Dr. Moline also testified about the supposed talc-cancer connection before Congress, and defense lawyers matched the personal information about one patient she identified only as “Ms. D” with Betty Bell, a woman who died in 2017 of mesothelioma. Bell’s husband sued American International Industries over the Clubman talc she used as a hairdresser, but defense lawyers discovered Bell had also filed workers’ comp claims for talc exposure against two textile companies where she worked, undercutting Dr. Moline’s claim none of her study subjects had prior exposure to asbestos.
Dr. Moline, plaintiff lawyers and her employer, Northwell Health, fought hard to keep the identities of the study subjects secret, citing patient confidentiality and the Health Insurance Portability and Accountability Act, or HIPAA. But defense lawyers subpoenaed Northwell and obtained a spreadsheet showing Bell was one of the study participants, with the other 32 names redacted.
After that disclosure, Dr. Moline withdrew as an expert from Bell’s case and it was dismissed. But lawyers for AII pressed to lift the protective order over the Northwell spreadsheet and on Sept. 13, U.S. District Judge William Osteen granted it. Lawyers for have since cited that order in other cases, seeking to cross-examine Dr. Moline about whether other study subjects made asbestos claims that contradict the central conclusion of her paper that talc was their only source of exposure.
“Given the groundbreaking nature of the article and its express premise that all individuals studied had no known alternative asbestos exposures, the fact that one of the individuals claimed otherwise has direct bearing on the study’s credibility,” Judge Osteen wrote in his order. “This court’s concern is magnified considering the influence the article has had on cosmetic talc litigation nationwide.”
Lawyers for AII, Colgate-Palmolive and other talc producers cited his order in a November letter to a judge in New York, seeking additional time to depose Dr. Moline about her study. In that letter, they say Dr. Moline continues to testify that the study subjects had no known exposure to asbestos because Bell’s workers’ compensation claims were dismissed.
Judge Osteen ruled that the claims were dismissed without prejudice, however, meaning there was no finding they were false. The fact Bell made them under criminal penalty for false statements and with the assistance of lawyers undermines Dr. Moline’s statement that prior asbestos exposure “was shown to be without evidence,” the judge wrote.
Dr. Moline didn’t immediately respond to a request for comment. In their letter to the New York court, defense lawyers said she has been evasive and combative in depositions, refusing to even discuss her 2020 paper or identify any of the subjects in it, despite the fact she was never their treating physician and many were dead by the time she compiled their health information, meaning they aren’t covered by HIPAA.
Defense lawyers identified least four other study subjects they say pursued asbestos claims over other sources of exposure. One was a teacher who also claimed exposure to “ceiling pipes with degrading insulation” in an opinion by Gordon. Another suspected study subject received $28,000 from the Manville trust and filed a $450,000 claim based on her husband’s automotive work. Dr. Moline reported in an expert opinion for another suspected study subject that the plaintiff smoked Kent cigarettes with asbestos filters, although she didn’t mention any such fact in her article.
Presented with this evidence in depositions, the questioning has become heated. In one case, Dr. Moline’s lawyer accused defense lawyers of “borderline harassment” when they repeatedly asked if she was aware of evidence her study subjects had other exposures to talc.
“Questioning how Dr. Moline developed her methodologies cannot be considered `bad faith,’ let alone unreasonably annoying, harassing, or oppressive,” defense lawyers said in their letter to the New York court. “Indeed, Dr. Moline cannot claim to be oppressed while charging $750 per hour to give her testimony.”