Workers' Compensation: Expert’s Published Study Protected Speech

A Federal Court held that the statements in a published academic article authored by a plaintiff’s expert were not actionable because they were either statements of opinion or because they were protected by the First Amendment.

FACTS
LTL Management LLC, a subsidiary of Johnson & Johnson, sued Dr. Jacqueline Moline for allegedly publishing false statements in a 2020 article about the link between cosmetic talc and mesothelioma. The article, published in the Journal of Occupational and Environmental Medicine, described 33 cases of mesothelioma where the only known asbestos exposure was from cosmetic talcum powder. LTL, a subsidiary of Johnson & Johnson, argued that Dr. Moline knew the article's premise was false and that it caused significant harm to LTL's reputation and finances. Dr. Moline appeared in more than 200 cosmetic tac cases against LTL.

The expert’s “review of the underlying data was not a sufficiently verifiable statement of fact—-it is a tentative scientific conclusion that is nonactionable as a matter of law.”

UNDERLYING WORKERS’ COMPENSATION CASE
Workers' compensation becomes involved in this case due to the lawsuit filed by LTL Management LLC against Dr. Jacqueline Moline. LTL claimed that Dr. Moline's 2020 article contained false statements about the link between cosmetic talc and mesothelioma. The article described 33 cases where cosmetic talcum powder was the only known asbestos exposure.

One of the cases mentioned in the article was Betty W. Bell, who had sued a talcum powder manufacturer, claiming that exposure to asbestos through their product caused her mesothelioma. However, Bell had also filed two workers' compensation claims asserting asbestos exposure during her employment with two textile employers. These claims were ultimately dismissed without prejudice.

LTL used Bell's case to argue that Dr. Moline's statement in the article, claiming no known asbestos exposure other than talcum powder for the 33 individuals, was false. They contended that Dr. Moline was aware of Bell's workers' compensation claims, which indicated potential exposure to asbestos from sources other than talcum powder. This information was used to challenge the credibility of Dr. Moline's research and the central premise of her article

EXPERT PUBLISHED OPINION NON-ACTIONABLE
The court focused on whether Dr. Moline's statements were verifiable facts or protected scientific opinions. It considered the statements' content, verifiability, and context, ultimately determining that they were nonactionable scientific conclusions. The court emphasized the importance of academic freedom and the difficulty distinguishing fact from opinion in scientific discourse.

Even if the statements were actionable, the court reasoned that LTL failed to plausibly allege reliance on Dr. Moline's statements, a necessary element for a fraud claim. LTL's Lanham Act claim also failed because the statements were considered non-commercial speech published in a scientific journal for educational purposes. The court concluded that LTL's claims were not supported, and Dr. Moline's motion to dismiss was granted, although LTL was given the …opportunity to amend its complaint.

LTL Management LLC v Dr. Jacueline Mirian Moline, Civil Action No. 23-02990 (GC) (JTQ), (US DCT NJ 2024). Filed 06/28/2024.

Recommended Citation: Gelman, Jon L., Expert’s Published Study Protected Speech, www.gelmans.com (07/06/2024) https://workers-compensation.blogspot.com/2024/07/experts-published-study-protected-speech.html

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ORDER NOW

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*Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (West-Thomson-Reuters). For over five decades, the Law Offices of Jon Gelman 1.973.696.7900
jon@gelmans.com has represented injured workers and their families who have suffered occupational illnesses and diseases.