Three years ago we published a lengthy post, “Stupid Expert Tricks,” detailing several of the other side’s egregious attempts at passing off junk science “experts” as the real thing, along with our side’s trials and tribulations during the course of unmasking these phonies. Our rogues’ gallery contained: In In re Zofran (Ondansetron) Products Liability Litigation, 392 F. Supp.3d 179, 181-87 (D. Mass. 2019) (Zambelli-Weiner); In re 3M Bair Hugger Litigation, 924 N.W.2d 16, 19 (Minn. App. 2019) (Augustine); In re Mirena IUD Levonorgestrel-Related Products Liability Litigation (No. II), 341 F. Supp.3d 213, 222-23, 229-32 (S.D.N.Y. 2018) (Etminan); Gerke v. Travelers Casualty Insurance Co., 289 F.R.D. 316, 328-29 (D. Or. 2013) (Painter); McClellan v. I-Flow Corp., 710 F. Supp.2d 1092, 1119-25 (D. Or. 2010) (Matsen); Nelson v. Tennessee Gas Pipeline Co., 1998 WL 1297690, at *4, 7-8 (W.D. Tenn. Aug. 31, 1998), aff’d, 243 F.3d 244 (6th Cir. 2001) (Kilburn); and Wade-Greaux v. Whitehall Laboratories, Inc., 874 F. Supp. 1441, 1559-62 (D.V.I. 1994), aff’d mem., 46 F.3d 1120 (3d Cir. 1994) (Gilbert).
We’ve found another one – this time from talc litigation.
The recent decision in Bell v. American International Industries, ___ F. Supp.3d ___, 2022 WL 16571057 (M.D.N.C. Sept. 13, 2022), involved Dr. Jaqueline Moline, and her increasingly questionable paper “Mesothelioma Associated with the Use of Cosmetic Talc,” 62 J. Occup. Environ. Med. 11-17 (Jan. 2020). While cosmetic talc is not a drug or medical device, the FDA also regulates it (the “C” in the FDCA). Before the Moline paper, cosmetic talc asbestos exposure litigation had been hampered by the lack of any “scientific” support for the plaintiffs’ causation claims. So Dr. Moline set out to fill that void.
With the assistance of her employer, Dr. Moline put together an article:
The article analyzed medical records and deposition transcripts for thirty-three anonymous individuals diagnosed with mesothelioma for whom Dr. Moline had conducted a medico-legal evaluation as part of tort litigation. The article stated that each of the thirty-three individuals had no known asbestos exposure other than talcum powder. The article claimed to be the first large case series to identify cosmetic talcum powder contaminated with asbestos as the cause of malignant mesothelioma in cosmetic talc users.
Bell, 2022 WL 16571057, at *1 (citations omitted) (emphasis added). That article has “junk science” red flags flying all over it. Thirty-three anonymous would-be asbestos plaintiffs (that’s the “medico-legal” part), all purportedly claiming “no known asbestos exposure” other than cosmetic talc.
It got worse. The “approval” Dr. Moline obtained from her employer’s institutional review board to conduct the article was structured to “reference federal regulations governing human subject research,” while simultaneously “waiv[ing] the requirement that Dr. Moline obtain informed consent from the individuals whose cases she planned to study.” Id. That meant that the expert could seek to interpose federal “human subject” privacy requirements to block discovery of her litigation-purposed article, while at the same time not even have to tell the people whose privacy she would be asserting that they had been studied.
On the “strength” of this article, Dr. Moline not only set out to become a repeat P-side asbestos expert, but also “testified to Congress about her findings” using “a pseudonym . . . to discuss one of the thirty-three individuals analyzed for her article.” Id. at *2. That’s what ultimately tripped up the good Dr. Moline.
Not surprisingly, defendants sought to find out who the anonymous asbestos plaintiffs that comprised her “research subjects” were. The plaintiff in Bell turned out to be one of them.
Because the facts of [plaintiff’s] case paralleled the description of [the pseudonym] in Dr. Moline’s congressional testimony, [defendant] suspected that [she] was one of the thirty-three anonymous individuals that the article had studied. If so, [defendant] believed that would undermine the article’s express premise and the related expert testimony that none of the individuals had any known exposure to asbestos other than talcum powder because [plaintiff] and her estate filed workers’ compensation claims alleging occupational exposure to asbestos from textile workplaces.
Bell, 2022 WL 16571057, at *2 (citations omitted). Thus, the defendant sought discovery into the “specifics about the thirty-three individuals.” Id.
As with many of the previous “stupid expert tricks,” Dr. Moline and the plaintiffs she worked for fought discovery tooth and nail. Dr. Moline “declined to answer due to confidentiality concerns.” Id. Plaintiff’s counsel told the defendant to subpoena Dr. Moline’s (possibly former) employer at which she ostensibly conducted the study – but immediately sought to quash the subpoena after it issued. Id. Defendant countered with plaintiff’s HIPAA authorization (standard practice in asbestos and many other mass torts), and the employer produced a largely redacted (all but this plaintiff) five-page spreadsheet that: (1) established this plaintiff had filed two workers’ compensation claims against other sources of asbestos exposure, and (2) indicated that similar, albeit redacted, data being in fact existed for all “all thirty-three individuals the article studied.” Id.
Upon learning of the production of this document, plaintiff and her counsel freaked.
Plaintiff filed an emergency motion for a protective . . . to preclude discovery and inquiry into the identities of the thirty-three individuals. The motion also sought for all copies of the . . . Document to be destroyed and not disseminated in this case or any other forum.
Bell, 2022 WL 16571057, at *2. The employer also realized that the validity of research conducted under its auspices was being questioned and reacted defensively. It sought to intervene “to prevent defense counsel from questioning Dr. Moline about any link between [plaintiff] and the article.” Id.
This effort largely failed. The document was admissible, but “the information therein confirming [plaintiff] was one of the thirty-three individuals the article” was declared “confidential and limited solely to this case.” Id. The other side then sought to cut its losses. “Plaintiff effectively withdrew Dr. Moline as an expert,” suffered summary judgment, and the case was closed. Id. at *3. Again, this is typical of mass torts – sacrificing one plaintiff hardly matters when the larger goal is to preserve an expert and an article that the other side intended to use in numerous cases.
But then things really got interesting. The defendant sought to vacate the confidentiality order. In response, the employer sought to resurrect its mooted intervention motion. Lots of briefing occurred – all of it under seal, at plaintiff’s insistence. Id. (everything was “filed under temporary seal and . . . accompanied by corresponding motions to seal”).
We’re pleased to report that the defendant prevailed. “Good cause” existed under Fed. R. Civ. P. 26(c) to disclose the information that blew the essential premise of Dr. Moline’s article – the purported absence of any alternative asbestos exposure in the 33 anonymous asbestos plaintiffs who were “studied” – out of the water. Bell, 2022 WL 16571057, at *5. The defense prevailed because of the “reason” for disclosure, and “type of material” that was being disclosed.” Id.
The “reason” was “to allow for public access to data that undermines claims that plaintiffs’ experts and counsel continue to present to courts and factfinders.” Id. (citation and quotation marks omitted). In other words, disclosure was necessary “to prevent Moline and others from misrepresenting to courts, juries, and the public the truth about a study supposedly showing that cosmetic talc causes mesothelioma.” Id. Plaintiff, of course, disagreed, claiming that her claims for workers’ compensation (which she filed, presumably under oath) were “merely unsupported allegations.” Id.
The court in Bell refused to be party to plaintiff’s cover-up attempt:
- Using this document “in other litigation” “is the most forceful” grounds for modifying a protective order” given “the propriety of access to the fruits of one litigation to facilitate the preparation of other cases.”
- “[T]he issues and controversies in those [other] cases intimately intersect with those litigated in this case.”
- While the compensation claims did “not definitively establish” other asbestos exposure, plaintiff “nonetheless made statements . . ., while represented by counsel, that she had sustained an occupational disease [mesothelioma] caused by exposure to asbestos.”
- These facts “undermine the weight of Dr. Moline’s finding that each of the 33 cases had no known exposure to asbestos other than prolonged use of talcum powder.”
- “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.”
Bell, 2022 WL 16571057, at *5-6 (citations and quotation marks omitted). This was a mass tort, thus the “court’s concern is magnified considering the influence the article has had on cosmetic talc litigation nationwide.” Id. at *6. That “Dr. Moline has given testimony in many other cosmetic talc cases” while keeping the (at least potentially) false premise of her article secret supported disclosure of the contrary evidence. Id. (“defense counsel in cosmetic talc cases across the country [have been] stymied from effectively cross-examining plaintiff expert witnesses on the article’s foundation”).
Fed. R. Evid. 702 also supported disclosure, given the “issue created by concealment of [plaintiff’s] possible exposure.” Bell, 2022 WL 16571057, at *7.
[Plaintiff’s] assertion that she may have been exposed to asbestos through [her employment] and Dr. Moline’s possible rejection of that potential fact are important pieces of information to aid in the assessment of the potential rate of error of the study’s assertion that the thirty-three participants had no asbestos exposure other than talcum powder. Similarly, Dr. Moline’s possible rejection of evidence of additional exposure goes directly to the issue of standards controlling her study’s operation.
Id. Given that only one of the 33 anonymous asbestos plaintiffs had been investigated, and that as to that person the article’s assertion of no alternative exposure appeared to be false, the credibility of the same assertion to all the others was legitimately in question, and a subject for defense cross-examination.
From this court’s perspective, inquiry into the accuracy of facts and assumptions underlying scientific merit is not only an appropriate inquiry, but also necessary and required. . . . Even if reliability is examined by a court and deemed sufficient to support admissibility, relevant cross-examination of an expert includes factual underpinnings which affect the weight and credibility of the witness’ assessment.
Id. (citations and quotation marks omitted). “The absence of any specific information on the identities of the individuals studied precludes inquiry into the basis of the factual underpinning of no known exposure to asbestos other than talcum powder.” Id. “[A]t a minimum” defendants in similar cases “deserve a fair opportunity to explore the weight to be assigned to Dr. Moline’s facts and conclusions − an opportunity not previously available due to the absence of information stemming from the previous cloak of anonymity.” Id.
The “type of material” also supported disclosure. Counsel for the plaintiff in Bell tried to claim that plaintiff had the status of a “human research subject.” Id. at *10. Otherwise she “had no reasonable expectation of privacy since she placed her health at issue by commencing this lawsuit, and the information contained in the . . . Document is not HIPPA protected.” Id. The decision saw through plaintiff’s phony attempt to claim human research status. She was dead – as were presumably many of the other 33 anonymous asbestos plaintiffs, given that the article studied mesothelioma. “[Plaintiff] does not qualify as a human subject under that regulation because by the time . . . [of] the article] the article, [she] was no longer a “‘living individual.’” Id. (quoting 45 C.F.R. §46.111(a)(7)).
Plaintiff’s death meant that her “privacy interest in her study participation was always, and remains presently, diminished because she was deceased.” Bell, 2022 WL 16571057, at *11. It also put the lie to the argument that disclosure would “chill” further research.
[The] argument that forcing the disclosure of the identities of research subjects would significantly dissuade individuals from agreeing to participate in human subject research, neglects the fact that [plaintiff] never agreed to participate in Dr. Moline’s research because the study was not required to obtain informed consent from any of the individuals studied.
As a post-script, the legal doctrine “falsus in uno, falsus in omnibus” – “false in one thing, false in everything” − may well be factually applicable to Dr. Moline’s article. The first fallen domino amongst the article’s 33 anonymous asbestos plaintiffs purportedly without alternative sources of asbestos exposure may well bring down others. Defense counsel in another pending cosmetic talc case, Gref v. American International Industries, recently wrote a lengthy – and unsealed − letter to the court contending that the claim in Dr. Moline’s article of no alternative asbestos exposure is also false as to at least four other individuals:
In addition to the Bell case . . ., there are at least four other cases that appear to be ones Dr. Moline used that also involved additional exposures to asbestos, contrary to her claims. Defendants have determined at least four of the plaintiff-cases in Dr. Moline’s 2019 study match plaintiffs in other cases involving the Defendants for whom there is significant evidence of exposure to asbestos that is not alleged to be in talc.
Gref letter at 11 (four detailed case-by-case descriptions follow).
If the additional cases described in the Gref letter pan out as asserted, then withdrawal of the entire article would be appropriate, and an investigation into possible academic fraud – à la the Wakefield example of plaintiff-funded false research discussed in our original “Stupid Expert Tricks” blogpost, and elsewhere – should be considered.