A journal will not retract a paper linking use of talc-based baby powder to cancer, despite legal pressure from the pharmaceutical giant that made the product.
A lawyer representing a unit of Johnson & Johnson in May asked editors of the Journal of Occupational and Environmental Medicine to retract a paper on cases of mesothelioma associated with cosmetic talc, following the court-ordered release of the identities of the people described in the article.
The lawyer alleged many of the patients had other exposures to asbestos than cosmetic talc, rendering the article’s fundamental claims “false.”
The journal evaluated the allegations according to guidelines from the Committee on Publication Ethics and found the author’s reply, also delivered via a lawyer, “satisfactory,” according to a decision letter seen by Retraction Watch.
The article “will not be altered or changed, the publication will stand, and therefore we consider this matter closed,” Paul Brand-Rauf, the journal’s editor, told us.
The legal system usually protects the identity of research participants, but the mesothelioma case series is different because the patients were plaintiffs in lawsuits about their disease, said Nathan A. Schachtman, a lawyer who has represented defendants in product liability litigation but who is not involved in this case. He has obtained underlying data for a published paper by subpoena in the past, he said, but the data remained under a protective order.
“Stuff like this does happen,” he said. “It’s a little different, but it rhymes.”
The paper, “Mesothelioma Associated With the Use of Cosmetic Talc,” was published in January 2020. It has been cited 30 times, according to Clarivate’s Web of Science. Corresponding author Jacqueline Moline of Northwell Health in Great Neck, N.Y., has also referenced the article in expert testimony for plaintiffs in talc litigation, as well as in remarks before Congress.
Moline and her coauthors identified “33 cases of malignant mesothelioma among individuals with no known asbestos exposure other than cosmetic talcum powder,” according to the abstract. Each case had been referred to Moline “for medico-legal evaluation as part of tort litigation.” The authors gathered data from the patients’ medical records and sworn testimony from their lawsuits, the paper stated.
LTL Management, a subsidiary Johnson & Johnson formed to handle its liability for cosmetic talc litigation – a strategy subbed the “Texas Two-Step” by critics – previously alleged some patients described in the publication had other exposures to asbestos after the identity of one was disclosed in the course of litigation.
In May 2023, Moline published an erratum to the article, stating she had identified a “single case” that “should not have been included in the manuscript” because the patient had smoked cigarettes with asbestos-contaminated filters.
“This error does not negate the other 32 cases, in which no other source of asbestos was present apart from cosmetic talcum powder,” Moline wrote in the erratum.
The same month as the erratum was published, LTL sued Moline in New Jersey federal court for product disparagement, fraud and making false statements in advertising. The company alleged five patients in the article had other exposures to asbestos based on matching their characteristics to known plaintiffs, but did not have data to confirm their identities.
In June 2024, a judge dismissed the case, writing:
The content of Dr. Moline’s statements, considered alongside their context and verifiability, supports a finding that her statements in both the 2020 Article and in other media are nonactionable “tentative scientific conclusions” protected by the First Amendment.
LTL has appealed the decision.
In April, Pecos River Talc, a successor to LTL, filed a motion to reopen the case due to “new evidence”: the company had prevailed in a legal battle with Northwell Health to acquire the identities of all the individuals described in the article.
The company acquired the document through a subpoena issued for another lawsuit, which Moline and Northwell fought to block in New York state court. A state Supreme Court judge ruled in favor of Moline and Northwell last June, but a panel of judges reversed the decision in October upon Johnson & Johnson’s appeal.
The judges deemed the names of the individuals described in the article were not protected by federal regulations on clinical research or patient privacy.
The law protecting the privacy of medical records doesn’t shield them from law enforcement, said Kayte Spector-Bagdady, an interim co-director of the University of Michigan Medical School’s Center for Bioethics & Social Sciences in Medicine.
Participants in research funded by the U.S. Department of Health and Human Services are typically protected from requests or warrants from law enforcement or a court under Certificates of Confidentiality, Spector-Bagdady said, but such protections “are not absolute”: In 2004, a court allowed a confidential reading of some study documents from Duke.
Moline and her coauthors did not receive any federal funding for their article, but researchers in the past have been able to apply for a Certificate of Confidentiality for non-federally funded projects. The Certificate of Confidentiality system went down under the Trump administration, Spector-Bagdady said, with a message on its website stating “an update will be provided by July 2025.”
After further litigation, a New York Supreme Court judge in March ordered Moline and Northwell to turn over the list of names to Johnson & Johnson.
The document identifying the patients “proves that the statements in the Article are false and that the Article is nothing more than a made-for-litigation attempt to distort the literature with something posing as ‘science’ to support the plaintiff bar’s tort claims in the talc litigation,” Pecos River’s lawyers wrote in their argument to reopen their suit against Moline.
“The suggestion that Dr. Moline and her multiple co-authors would jeopardize their careers and reputations by fabricating research data, deceiving both Northwell and medical journals in the process—an allegation Pecos River makes with no evidence—is absurd,” Kevin Marino, Moline’s lawyer, wrote in a response.
In May, Pecos River also wrote to the journal, pressing the editors to retract the article “no later than May 15, 2025,” according to a copy of the letter Marino filed in court, along with his rebuttal.
If the editors did not retract, “Pecos River will be compelled to seek the appropriate judicial relief,” lawyer Kristen Renee Fournier wrote on behalf of the company.
But journal editors Stacieann Yuhasz and Paul Brandt-Rauf informed Fournier they would not retract the article in a letter dated June 3, which Marino shared with us in response to our request for comment.
We reached out to Fournier for comment, and received a statement from Erik Haas, Johnson & Johnson’s worldwide vice president for litigation, who said the company “disagree[s] with the Journal’s decision not to retract the article or issue a corrective statement to address the numerous egregious misstatements that Dr. Moline made in her article. Fabricated articles serve only to pollute the pool of scientific literature.
“We intend to bring these issues to light in the pending legal actions against Dr. Moline,” Haas added.
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