Products Liability Law Daily Wrap Up, PLEADINGS—HOUSEHOLD PRODUCTS—E.D. Va.: Scientific article tying J&J talc to mesothelioma deemed facial disparagement on motion to dismiss, (Feb 12, 2025)

By Justin Marcus Smith, J.D.

The court analyzed that the defendants allegedly made assertions plausibly construed as their own knowledge of their study subjects’ medical histories, and that made the assertions statements of fact, not opinion.

LLT Management LLC, a subsidiary of Johnson & Johnson, sufficiently pleaded a claim for disparagement against the authors of a scientific article, held the federal district court in Newport News, Virginia in declining to dismiss the claim. However, LLT’s two other claims, for fraud and false advertising under the Lanham Act, failed. The court ruled the statute of limitations barred the fraud count because LLT should have discovered the fraud earlier, when the defendants published their article. The defendants’ statements, construed as advertising their own litigation services, were true, so LLT did not have standing to state a claim for false advertising. The disparagement count was the only count that survived the defendants’ limitations period and standing arguments (LLT Management LLC v. Emory, No. 4:24-cv-00075-JKW-RJK (E.D. Va. Feb. 7, 2025)).

LLT sued three natural person defendants for fraud, false advertising, and disparagement in connection with a scientific article published in the American Journal of Industrial Medicine in March 2020. LLT alleged the defendants’ article contained a false statement that they had identified 75 people, in addition to 33 in an earlier study, who had malignant mesothelioma with no known exposure to asbestos except through J&J brand cosmetic talc. LLT said it identified six of the anonymous study subjects and alleged that the defendants knew they were exposed to asbestos through other means. LLT said demand for J&J talc dropped shortly after publication of the article and in connection with other purported “misinformation” about talc product safety. J&J said it discontinued its talc-based baby powder two months after publication of the article.

LLT posited that the defendants knowingly misled the public about the safety of cosmetic talc products, but their underlying goal was to create a body of scientific literature to satisfy attorneys who hired the defendants as expert witnesses or otherwise used their findings in tort cases against LLT. The defendants moved to dismiss all three claims.

Timeliness. First, with respect to timeliness, there was no statutory substantive time bar to the disparagement claim. Only the Virginia procedural statute of limitations applied, but there was no direct definition of a limitations period for disparagement. The court endeavored to predict how a state court would rule in this context.

The defendants argued for the limitation period for defamation under Va. Code § 8.01-247.1, but the court said that statute did not apply. It only enumerated common law libel, slander, insulting words, or defamation, and it did not include words to suggest that list was non-exhaustive. None of the names LLT gave to the disparagement tort count were present in the text, and the defendants did not argue that the complaint actually attempted to plead the enumerated words, like defamation. Similarity based on the type of wrong did not matter.

The court resorted instead to the five-year limitations period for damage to property under Va. Code § 8.01-243(B). Less than five-years had passed since publication of the article, so the disparagement count was not time-barred.

Next, as to the fraud count, Virginia had a two-year limitations period for fraud claims under Va. Code § 8.01-243(A). It begins on the discovery of fraud, either actual or when reasonable diligence would have revealed it. This was a question of fact, but, if clear, dismissal could be appropriate on the face of the complaint. LLT’s allegation that it could not have known of the defendants’ fraud until recently was conclusory and therefore not worthy of deference under. Fed. R. Civ. P. 12(b)(6). LLT stated it discovered the fraud by matching six subjects (persons studied) of the article to the litigation plaintiffs, but the LLT complaint admitted that five of them were plaintiffs in lawsuits against LLT. The court interpreted that LLT did not need any information to make its discovery about them beyond what it already possessed from the earlier litigation with them. LLT did not allege that the matching process itself took years, so it appeared LLT could have discovered the alleged fraud when the study was published in 2020, more than two years ago.

The court did not find any tolling, as LLT had urged, based on any effective affirmative act by the defendants to conceal the alleged falsity of the statements in their article. The court construed that LLT was not able to bring its fraud claim despite its contention that repetition of the defendants’ alleged falsehood or nondisclosure of study subject names had the effect of deterring the claim. In the court’s view, LLT’s argument about defendant concealment was implausible on its face. There was no tolling, so the court dismissed the fraud count as untimely.

Next, with respect to false adverting under the Lanham Act, there was no express limitations period for §43(a) claims. Instead, courts apply the affirmative defense of laches. For the same reasoning the court applied to the fraud count, the court concluded LLT could have discovered its Lanham Act claim as early as the 2020 publication date of the article. That meant LLT lacked diligence to satisfy the first element of laches. The defendants did not mention any prejudice, but the court resolved that laches did not bar the false advertising count.

Standing. The court found LLT had Article III standing inasmuch as the complaint plausibly alleged the defendants’ false statements were at least partly responsible for a drop in sales of J&J talc. Other tort liability, press coverage, decades of scientific studies, and an FDA recall may have contributed, but such things did not break the chain of causation. See GBA Assocs. v. Gen. Servs. Admin., 32 F.3d 898, 901 (4th Cir. 1994). The court continued that it could reasonably infer that the article only made things worse. The court rejected the defendants’ argument that the article could not have caused harm so quickly or forcefully to cause product withdrawal within mere weeks. Discovery or trial might ultimately show that attributable loss was small or that the article did not change J&J’s financial position, but the LLT allegations were enough for standing to sue.

The fact that the article was aimed at the scientific community, rather than consumers, did not change the outcome. LLT said enough about the self-reinforcing dynamic between scientific literature, litigation, and the asbestos’ plaintiffs’ bar promoting the article on websites that target people who have cancer. The court could trace a facial connection between litigation advertising and changes in consumer habits. The actions of the plaintiffs’ bar were not independent and did not defeat traceability. It was also plausible that news of the defendants’ statements reached at least some people who were still using the talc product, who did not already know about its alleged risks, and who stopped using the product.

As for increased litigation costs, this harm was fairly traceable on its face to the defendants’ alleged conduct because some people may have chosen to sue LLT based on the alleged false statements. Second, LLT has to spend money every time LLT has to defend against an expert witness that relies on the defendants allegedly false statements.

The court also found LLT had statutory standing for the false advertising count because the complaint plausibly alleged injuries to J&J’s reputation and the sales of its talc products. Again, LLT said J&J was forced to remove the products from the market due to demand drop. The court found consumer deception for proximate cause. The defendants again argued that other causes broke the causal chain, but the court said it was at least plausible that an earlier article was not an “independent” cause of consumer decision-making to the extent the two articles were “designed in concert” to support the defendants’ scientific claims.

The defendants also challenged traceability on the basis that consumers have long known about a potential link between talc and cancer, but the court construed that the defendants’ article went a step further by linking J&J talc to “mesothelioma” as a new or unique statement. LLT also plausibly alleged that the defendants intended their message to reach consumers, electronically and in print publication, in addition to attorneys and expert witnesses involved in talc litigation.

Commercial advertising was facially evident based on LLT’s allegation that the defendants made their statements in order to influence their own customers, i.e., plaintiffs’ attorneys, to hire them as experts in talc tort litigation. However, this posed a wrinkle for LLT under Fed. R. Civ. P. 12(b)(6).

R. 12(b)(6). The court ruled that the complaint adequately pleaded disparagement; however, the Lanham Act false advertising claim failed as matter of law because LLT failed to allege the defendants’ statements were false in the context of advertising to their own customers, the plaintiffs’ bar.

As to disparagement, the defendants argued their statements were scientific opinions, not statements of fact, but the court said that was incorrect. Whether a statement is nonactionable opinion is a threshold question of law, and here, the court ruled the defendants’ statements were “obviously” genuinely defamatory communications rather than bluster or exaggeration not to be taken literally. The court specifically declined to construe “known exposure” as unverifiable. The context also showed the defendants’ statements were factual, not opinion. They were published in a peer-reviewed journal, but what really mattered was whether or not the statements were tied to the scientific method or whether they existed independently of the scientific process. The defendants made assertions plausibly construed as their own knowledge of the study subjects’ medical histories. Such histories pre-existed the scientific process and were in fact discoverable in litigation.

J&J talc was the leading brand, so the court said it must make a reasonable inference that consumers who learned of the defendants’ statements would understand they were calling the safety of the J&J product, and products like it, into question.

Turning to whether LLT alleged special damages as required for disparagement, the court said the requirement was not extra-specific damages, for example, about individual customers J&J lost. It was sufficient that J&J pleaded loss of economic or pecuniary value through lost sales and customers and harm to reputation and goodwill. In sum here, the court found all elements of trade libel.

The Case is No. 4:24-cv-00075-JKW-RJK.

Judge: Walker, J.

Attorneys: Benjamin Lucas Hatch (McGuireWoods LLP) for LLT Management LLC. Kathryn Marshall Ali (Ali & Lockwood LLP) for Theresa Swain Emory.

Companies: LLT Management LLC

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