First, Plaintiff argues that the Court erred in several ways by concluding that the second and third factors [of the Second Circuit pseudonymity test] (risk of retaliation and severity of harm to the plaintiff) weighed only slightly in favor of anonymity. In so arguing, Plaintiff suggests that the Court overlooked evidence presented along with the renewed motion that a sticker bearing the phrase "The only good Zionist is a dead Zionist" has been affixed to at least two locations inside FIT buildings since early February 2023. Similarly, Plaintiff highlights "[r]ecent violence against Jewish students" on school campuses in New York and across the country in arguing that the Court improperly assessed the risk of harm to her. While Plaintiff's allegations of derogatory stickers affixed to buildings on FIT's campus and of violence against Jewish students elsewhere "are abhorrent," these alleged actions "were 'not directed at plaintiff or similarly situated individuals and so do not demonstrate that plaintiff is at risk of harm.'"
Plaintiff also argues that the second and third factors weigh in her favor because she has "alleged more than reputational harm resulting from the disclosure of her identity." She claims instead that disclosure of her name would result in "potential employers and educational institutions [having] easy access to the disciplinary measures Defendant has taken against Plaintiff …, which would in turn threaten her ability to secure future employment and pursue academic opportunities," and would result in a "severely compromised" "likelihood of [Plaintiff] being hired or accepted to a prestigious graduate institution."
Plaintiff's identified harms are no different than mere reputational harms, insufficient to support a motion to proceed anonymously. These claims of "economic hardship and loss of professional goodwill" do not weigh in favor of anonymity.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
What's so natural about rights? Well, a lot of our state constitutions actually call some rights "natural." And state courts consider all kinds of rights of the "natural" variety, from life, liberty, and the pursuit of happiness to the right to worship to the right to earn a living. In State Court Report, Anthony Sanders, the director of IJ's Center for Judicial Engagement, summarizes the family of "natural," "inherent," "unalienable," and "fundamental" rights—both "enumerated" and "unenumerated"—and what state courts are doing these days to protect them.
This week on the Short Circuit podcast: One gun a month is too few, even in the Ninth Circuit.
At 2020 police-brutality protest, a 6'5", 250-lb. Stamford, Conn. officer—without warning or command—hoists woman by her bra strap, pushes her backward in the air for about 15 feet, and then slams her to the pavement. The woman—who was not a protester; she was there at the request of a police supervisor to deescalate—suffers serious head and neck injuries. Second Circuit: And since it's not clear from the video whether he was trying to get past her to aid other officers or just gratuitously thumping people, the grant of qualified immunity is vacated.
Shortly before the 2016 election, self-described Twitter "shitlord" tweets and retweets memes urging supporters of Hillary Clinton to vote by text message. More than four years later—and two days after the inauguration of President Biden—he is criminally indicted for conspiring to injure citizens in the exercise of their right to vote. After four days of deliberation and two Allen charges to the jury, he's convicted and sentenced to seven months in prison. Second Circuit: But there was no evidence he actually conspired with anyone, which is, y'know, an element of the crime. Read More
Supreme Court Justice Ketanji Brown Jackson said Thursday that the "state of our democracy" keeps her up at night, echoing a theme that has animated some of her recent public appearances and fiery dissents from recent decisions.
"I'm really very interested to get people to focus, and to invest and to pay attention to what is happening in our country and in our government," Jackson said. . . .
On Saturday, at a different event in New Orleans, Jackson called the conservative bloc's decisions "an existential threat to the rule of law." . . .
On why she writes dissents as much as she does, Jackson commented:
"It's because I feel like I might have something to offer and add, and I'm not afraid to use my voice," said Jackson, noting that she's not offended by other justices taking issue with her opinions because she has a "thick skin."
Justice Jackson's comments echoed sentiments she has expressed in some of her opinions, including her dissent in Trump v. CASA, which drew a sharp response from Justice Barrett writing on behalf of the Court.
UPDATE: C-Span has posted video of the talk, and highlights this quote:
There are sometimes when, even after the principal dissent is written, I have a slightly different perspective or a different take on something or this is an issue of particular importance to me for whatever reason. Where I will say, 'Forgive me Justice Sotomayor, but I need to write on this case.' It's because I feel like I have something to offer, and something to add and I'm not afraid to use my voice.
Today, in National Council of Agricultural Employers v. U.S. Department of Labor, the U.S. Court of Appeals for the D.C. Circuit helped bring a little more clarity to the question of when a new regulation becomes binding upon the public. Senior Circuit Judge Ginsburg wrote for court, joined by Judges Katsas and Childs.
The introduction of Judge Ginsburg's opinion effectively summarizes the nature and significance of the dispute, and the court's conclusions.
This case presents a recurring question of administrative law: At what point does a substantive rule submitted by an agency to the Office of the Federal Register (OFR) for publication become final so that it cannot be withdrawn or amended without going through the notice-and-comment requirements of the Administrative Procedure Act? The answer to this question is particularly significant during transitions between one presidential administration and the next. Those periods are often marked by a flurry of rulemaking activity. Agency leaders of the departing administration work furiously to finalize and publish new regulations, then newly appointed leaders act expeditiously to withdraw unpublished rules that might be inconsistent with the new administration's priorities, while through it all the OFR beavers away trying to keep up with the changes.
Ambiguity regarding the legal significance of processing by the OFR can result in regulatory uncertainty that persists well past the presidential transition period, as this case illustrates. In 2019 the Department of Labor (DoL) issued a notice of proposed rulemaking (NPRM) to amend its 2010 regulations regarding a visa program. During the last days of the Trump Administration in 2021, the DoL announced to the public and submitted to the OFR for publication in the Federal Register what it characterized as a final rule. While the OFR was processing the rule, however, the DoL under President Biden withdrew it. Then, in 2022, the DoL issued a new rule based upon the 2019 NPRM.
The question here is which rule marked the culmination of the rulemaking process that began in 2019, the 2021 Trump rule or the 2022 Biden rule? Or, more generally, at what point does a substantive rule submitted to the OFR for publication become final so that a new round of notice and comment is required before the agency can change or withdraw the rule?
In this case, we hold the rulemaking process culminated in the 2022 Rule. A substantive rule is not ordinarily final until the OFR makes it available for public inspection. At that juncture the rule is "duly fixed," GPA Midstream Ass'n v. Dep't of Transp., 67 F.4th 1188, 1195 (D.C. Cir. 2023), and "becomes 'valid' against the public at large," Humane Soc'y v. USDA, 41 F.4th 564, 570 (D.C. Cir. 2022) (quoting 44 U.S.C. § 1507). Although an agency can "for good cause," 5 U.S.C. § 553(d)(3), make a rule final without processing by the OFR — by putting it into effect expeditiously and giving actual notice of the official rule to members of the public — the DoL did not do so here. Instead, the DoL made the 2021 Rule contingent upon processing by the OFR and then withdrew the rule before it became final.
Should universities increase (initiate?) efforts to enhance viewpoint or ideological diversity among faculty? Some think so. Others are not so sure. And would such efforts necessarily require taking affirmative steps to increase the likelihood of hiring conservatives, such as creating special centers or faculty lines, or would it be enough to counteract bias against non-progressive views in the hiring process? On this there is active debate.
Certainly, there is not enough engagement with conservative ideas on college campuses. Schools can and should do more to ensure that students encounter a greater range of political perspectives in syllabuses and among speakers invited to give talks.
But a policy of hiring professors and admitting students because they have conservative views would actually endanger the open-minded intellectual environment that proponents of viewpoint diversity say they want. By creating incentives for professors and students to have and maintain certain political positions, such a policy would discourage curiosity and reward narrowness of thought.
Perhaps few would argue that universities should adopt policies or practices that "discourage curiosity and reward narrowness of thought." But if that is really the concern, it seems that potential, as-yet-unimplemented policies designed to increase viewpoint diversity would hardly top the list of things to be worried about.
In the aftermath of the Supreme Court's ruling in Trump v. CASA, barring nationwide injunctions, most informed observers expected courts to instead certify broad class actions against Donald Trump's birthright citizenship executive order (which denies birthright citizenship to children of undocumented immigrants and non-citizens present on temporary visas). That's precisely what happened today.
Obviously, the administration will appeal the class certification and injunction, and the issue could well get back to the Supreme Court. Perhaps sooner rather than latter.
I am no class action expert. But, for what little it's worth, I think this class does meet the Rule 23 requirements of numerosity (the class has hundreds of thousands of members), commonality (the class members all have an obvious common interest in getting citizenship, thereby avoiding potential deportation), typicality (the class representatives litigating the case seem to be typical of the class as a whole), and adequacy of representation (the ACLU lawyers litigating the case seem more than adequate, as far as I can tell). But, again, I am no class action expert, so this opinion may not be worth much more than the money you're (not) paying to read it!
Even if this class action succeeds, I remain convinced that Trump v. CASAwas a bad decision. The class action certification remedy may not be so readily available in some other important cases involving large-scale illegality by federal, state, or local governments.
But assume I am wrong about that. Assume that class actions or some other comparably broad remedy will be feasible in every situation where a nationwide injunction might have been available before. In that event, I would wonder what the point of getting rid of nationwide injunctions was in the first place, as litigants would still be able to get essentially the same remedy by another name. If basically the same remedy is in fact available to same degree as before, I say it's better to just call a spade a spade, than to pretend your spade is actually a shovel.
Today's ruling, like the Supreme Court decision, does not address the substantive legality of Trump's order. This same district court had already ruled that the order is unconstitutional, and the Supreme Court's decision did not overturn that, but only addressed the issue of the scope of the available remedy.
For my explanations of why children of undocumented immigrants are constitutionally entitled to birthright citizenship and criticisms of some standard contrary arguments, see here and here.
UPDATE: Judge Laplante's opinion justifying the class action certification is available here. His analysis of the various class action factors strikes me as compelling. But, again, this is not my area of expertise.
[Voice-over actors] Paul Lehrman and Linnea Sage bring this putative class action against .. Lovo, Inc. … alleging that Lovo used artificial intelligence … to synthesize and sell unauthorized "clones" of their voices….
Ultimately the Court concludes that, for the most part, Plaintiffs have not stated cognizable claims under federal trademark and copyright law…. [But] claims for misappropriation of a voice, like the ones here, may be properly asserted under Sections 50 and 51 of the New York Civil Rights Law [New York's right of publicity statute], which, unlike copyright and trademark law, are tailored to balance the unique interests at stake. Plaintiffs also adequately state claims under state consumer protection law and for ordinary breach of contract….
After hearing what appeared to be Lehrman's voice on Deadline Strike Talk, Plaintiffs sought to learn more about Lovo. Lehrman found that Lovo "had been marketing [the clone of his voice] as part of its subscription service under the stage name 'Kyle Snow,'" and that it was this "Kyle Snow" voice that he had heard on the podcast…. Sage discovered that Lovo had created a clone of her voice named "Sally Coleman" that was available to Lovo's subscribers. Lovo also marketed its product using "side-by-side" comparisons of Sage's original audio recordings … and the "cloned version of her voice." …
From Uzamere v. Trump, decided Monday by Judge Timothy Kelly (D.D.C.):
Over 201 paragraphs and 95 pages of the original complaint, Plaintiff purports to challenge Executive Orders 13899 and 14188 [the ones related to "Combating Anti-Semitism" -EV] on the ground that they "violate the Establishment Clause [of the First Amendment to the United States Constitution] that prohibits the government from establishing a religion; and the Free Exercise Clause, that protects individuals' right to practice their religion … as they choose."
Plaintiff, "an adherent of the Jehovah's Christian Witnesses sect," alleges the Executive Orders are "designed to subject individuals who engage in disseminating information regarding members of Jewish leadership who engage in unconstitutional, tortious or criminal acts that are permitted by the Babylonian Talmud to be subject to Jewish leadership's interference with commerce by threats, violence and other tortious and criminal offenses."
But Justice Clarence Thomas wrote a strong dissent to the denial, joined by Justice Gorsuch. Here is an excerpt:
I would grant review of the question whether a policy barring landlords from evicting tenants for the nonpayment of rent effects a physical taking under the Takings Clause.
This question is the subject of an acknowledged Circuit split. The Eighth and Federal Circuits have held that a bar on evictions for the nonpayment of rent qualifies as a physical taking, while the Ninth Circuit has held that it does not….
This Circuit split stems from confusion about how to reconcile two of our precedents. The Ninth Circuit treated as controlling this Court's decision in Yee v. Escondido, 503 U. S. 519 (1992), which held that a statute did not effect a physical taking when it allowed mobile home owners to evict tenants only after an onerous delay….
By contrast, the Eighth and Federal Circuits looked to our more recent decision in Cedar Point Nursery v. Hassid, 594 U. S. 139 (2021). There, we held that a law requiring agricultural employers to allow labor organizers onto their property constituted a physical taking because it "appropriate[d] for the enjoyment of third parties the owners' right to exclude." Id., at 149. And, the Eighth and Federal Circuits reasoned, if "forcing property owners to occasionally let union organizers on their property infringes their right to exclude," it follows that "forcing them to house non-rent-paying tenants (by removing their ability to evict)" does too….
Because "[w]e created this confusion," we have an obligation to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from denial of certiorari). That obligation is particularly strong here, as there is good reason to think that the Ninth Circuit erred. Under the logic of Cedar Point, and our Takings Clause doctrine more generally, an eviction moratorium would plainly seem to interfere with a landlord's right to exclude. See Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 765 (2021) (per curiam) ("[P]reventing [landlords] from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude"). Nor does Yee dictate otherwise: Although the statute there constrained landlords' right to evict, it was not "an outright prohibition on evictions for nonpayment of rent." Darby, 112 F. 4th, at 1035…
Finally, this issue is important and recurring. Given the sheer number of landlords and tenants, any eviction-moratorium statute stands to affect countless parties. And, the end of the COVID–19 pandemic has not diminished the importance of this issue. Municipalities continue to enact eviction moratoria in the wake of other emergencies.
I think Thomas is right on virtually all points here. I would add the split in the lower courts extends not only to federal circuit courts, but also to state supreme courts. In 2023, the Washington Supreme Court upheld an eviction moratorium in Gonzales v. Inslee. While the ruling was based on the state constitution, the court also held there was no taking under the federal standard for physical takings. I criticized the Washington ruling in my contribution to a December 2023 Brennan Center symposium:
In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled in 2021 that even temporary mandated physical occupations of privately owned land qualify as "per se" (automatic) takings under the Takings Clause of the Fifth Amendment. Gonzales only addresses claims under Article I, Section 16 of the Washington Constitution. But the state supreme court ruled that eviction moratoriums are not covered by the per se rule, even assuming it applies to Section 16. The justices reasoned the eviction moratorium was merely a "regulation" of a preexisting "voluntary relationship" between tenants and owners. They ignored the obvious point that, in the absence of the "regulation," the tenants would have no right to remain on the owners' land. Thus, an eviction moratorium undeniably does mandate a physical occupation of property.
The court's reasoning — which may be copied by other state and federal courts — has implications that go beyond eviction moratoriums (though those are significant in themselves). If there is no takings liability for physical occupations linked to "voluntary relationships," then there is no taking when conservative states require businesses and employers to allow employees and customers to bring guns onto their property, or when they enact laws barring employers from excluding workers who refuse to get vaccinated for Covid-19 or other contagious diseases.
While eviction moratoriums may seem like beneficial regulations, their effect is to raise the cost of housing and reduce its availability. Evidence indicates they did little to help the poor or to curb the spread of Covid during the pandemic.
See also my analysis of last year's Federal Circuit decision in Darby Development Co. v. United States, which went the other way. Thomas cites Darby in his discussion of the circuit split, quoted above.
I have my issues with Thomas's jurisprudence on a number of other fronts. But he is one of the best current justices on takings issues. I hope the Court eventually listens to him on this one. Eviction moratoria are clearly takings, and jurisdictions that impose them must pay compensation.
The Data Colada Defendants request sanctions based on Gino's defamation claims, which alleged that the Defendants falsely accused her of data fabrication in four academic studies. Gino's suit followed an investigation by Harvard University, which concluded that the data in the studies were altered in ways that aligned with the authors' hypotheses. The investigation relied on forensic analysis and original datasets. In response, Gino alleged that she was unfairly targeted by a campaign of harassment orchestrated by the Defendants in coordination with Harvard.
Gino's own admissions during the Harvard investigation—including her acknowledgment that the posted datasets were inconsistent with originals, and her concession that she had no explanation for the discrepancies—undermine the premise of her later-filed defamation complaint. As the Defendants correctly note, it is not defamation to publish statements that are true or substantially true. In their motion, the Defendants provide extensive excerpts from the Harvard report and Gino's responses that show she acknowledged the presence of data alteration, even if she denied responsibility for it. Plaintiff's opposition does not meaningfully rebut the central facts. Rather, it attempts to relitigate the credibility of the Harvard investigation and the intentions of the Defendants.
Still, while it is true that federal courts possess inherent power to sanction bad-faith conduct, it is also true that that power must be exercised with restraint and only where it is clear a party has acted in bad faith, vexatiously, or for oppressive reasons. Here, Gino's defamation claims against the Data Colada Defendants were weak indeed; however, that does not necessarily equate to bad faith, vexatious, or oppressive….
A short excerpt from today's long Braid v. Stilley, written by Seventh Circuit Judge Michael Scudder and joined by Chief Judge Diane Sykes and Judge Thomas Kirsch:
In September 2021 Dr. Alan Braid, a Texas OB/GYN, wrote an editorial in the Washington Post admitting he performed an abortion in violation of the Texas Heartbeat Act. Three individuals from three different states reacted by each invoking the citizen-suit enforcement provision of the Texas Heartbeat Act and seeking to recover at least $10,000 in statutory damages.
Now facing the prospect of duplicative liability, Dr. Braid made use of the federal interpleader statute, 28 U.S.C. § 1335, to join the claimants in a single suit. But, in an odd twist, he did not do so by going to any Texas federal court but instead by filing suit in federal court in Chicago. In addition to his interpleader claim, Dr. Braid sought declaratory relief, urging the district court to declare the Texas Heartbeat Act unconstitutional.
The district court dismissed Dr. Braid's entire suit, concluding that the existence of parallel state-court proceedings justified abstention under the Supreme Court's Wilton-Brillhart doctrine. Though we chart a different course of reasoning, we ultimately reach the same end point and therefore affirm the dismissal of Dr. Braid's federal case….
Like the district court, the parties, too, recognize that this case is far from an ordinary interpleader case which follows a similar and well-known pattern: "a neutral stakeholder, usually an insurance company or a bank," sues in federal court to force "all the claimants" to the policy or fund "to litigate their claims in a single action brought by the stakeholder." Congress originally limited our jurisdiction to this narrow set of claims, specifying that statutory interpleader applied only to actions brought by "any insurance company or fraternal beneficiary society."
American courts often rightly do consider foreign law and foreign judgments, because American law calls on them to do that; and it would generally be senseless for American law to categorically block American courts from doing that.
That sometimes includes the judgments of religious courts, and judgments of foreign courts applying religious law that is part of the foreign legal system.
In some situations, American courts should refuse to apply foreign or religious law, or enforce the judgments of foreign or religious courts—but existing American law already has the tools needed for that.
Here's a recent illustration of this (especially item 3) from CSHK Dubai Contracting LLC v. Ali, decided last week by a Texas Court of Appeals (opinion by Justice Dana Womack, joined by Justices Elizabeth Kerr and Dabney Bassel):
Plaintiffs' Motion to Permit Remote Trial Testimony of Expert Witness … states that their expert has been hospitalized for heart problems and is under strict doctor's orders not to travel. Plaintiffs submit a sworn affidavit in support of their Motion…. Defendant indicated that he would leave the determination up to the undersigned. Thus, the Court assumes he is unopposed. Accordingly, the Court finds it appropriate to GRANT Plaintiffs' Motion under these extenuating circumstances.
The Court notes that due to the age of the Courthouse, and the general policies in the Fort Worth Division, remote testimony has only ever been attempted once before by the Court—under similarly appropriate circumstances. That attempt was unsuccessful and as a result the Court was forced to strike the witness. Thus, the Court highly recommends that Plaintiffs contact the Court IT as soon as possible.
It's an obvious abuse of emergency powers, a claim to unconstitutional delegation of legislative power, and a threat to the economy and the rule of law.
Earlier today, President Donald Trump announced he intends to impose 50% tariffs on imports from Brazil, citing that country's prosecution of former President Jair Bolsonaro, for the latter's attempt to stage a coup to keep himself in power after losing an election. Bolsonaro is a political ally of Trump's. The incident highlights the illegal and dangerous nature of Trump's tariff policy.
The administration has not made clear what law they will use to impose the Brazil tariffs. But reporters tell me officials have indicated Trump will use the International Emergency Economic Powers Act of 1977 (IEEPA), which is also the statute at issue in the lawsuit against Trump's "Liberation Day" tariffs, filed by the Liberty Justice Center and myself, on behalf of five small businesses harmed by this massive trade war.
The Brazil situation exemplifies why Trump's use of IEEPA is illegal and harmful. Brazil's prosecution of Bolsonaro is pretty obviously not an "emergency" or an "unusual and extraordinary threat" to the US economy or national security. Both of these conditions are required to invoke IEEPA. This situation just underscores the danger of allowing the president to define those terms however he wants, without any judicial review, as the administration claims he can.
The Brazil tariffs are even more indefensible than Trump's other IEEPA tariffs. In addition to the Bolsonaro prosecution, Trump's letter announcing the new tariffs cites that country's supposedly unfair trade policies. But the US actually has a substantial trade surplus with Brazil, of some $7.4 billion per year, according to the office of the US Trade Representative. In combination with Brazil's retaliatory tariffs, Trump's massive new tariffs against that country will predictably harm consumers and businesses in both countries, for little if any gain.
If the president can use IEEPA to impose tariffs for completely ridiculous reasons like these, he can use it to impose them against any nation for any reason. That reinforces our argument that the administration's interpretation of IEEPA leads to a boundless and unconstitutional delegation of legislative power to the executive. A unanimous ruling in our favor by the US Court of International Trade concluded that IEEPA "does not authorize the President to impose unbounded tariffs" and that such "an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government." I hope appellate courts will reach the same conclusions.
The president's attempt to use tariff policy to punish Brazil for prosecuting one of his political allies underscores the threat that unlimited executive tariff authority poses to the rule of law. Tariff policy - like other significant economic policies - should be based on clear, stable rules that do not vary based on the whims of any one person, and cannot be used to punish the president's political enemies or reward his allies. Trump's tariff power grab is a huge step towards replacing the rule of law in trade policy with the unilateral rule of one man. That's yet another reason why courts should strike it down.
From last week's decision in Ziade v. Abdullah by the Nevada Court of Appeals (Chief Judge Bonnie Bulla and Judges Michael Gibbons and Deborah Westbrook)
Ziade, a Las Vegas resident, and … Abdullah, a Canadian citizen residing in California, were in a long distance online relationship for approximately five months before Abdullah relocated to Las Vegas. During the relationship, Ziade provided Abdullah with funds that she represented would be used to pay for legal representation to obtain a restraining order against her abusive ex-boyfriend, and to pay for hospital bills.
On August 6, 2021—shortly after Abdullah arrived in Las Vegas—she filed a police report that alleged Ziade sexually assaulted her on multiple occasions while visiting her in her hotel room. However, the responding officer indicated in the police report that Abdullah declined to press charges, and that she refused to submit to a Sexual Assault Nurse Examination exam at the time of the report. Soon after Abdullah moved in with Ziade.
The relationship quickly deteriorated. On August 27, both parties reported a domestic disturbance at Ziade's home. Ziade called the police non-emergency line and reported that Abdullah locked herself in her bedroom and was refusing to leave his home after a discussion wherein Abdullah was "crying and yelling because [he] was not showing her the attention she wanted."
After leaving the home, Abdullah called 9-1-1 and later reported to the officers responding to her call that Ziade had committed an act of domestic violence on her person by shoving her down the stairs, grabbing her by the shoulders and dragging her by the hair toward the front door. The accompanying police report reflects that Abdullah refused to show the responding officers her injuries at the scene and that they "could not substantiate that a battery occurred." Abdullah presented to the hospital the next day with bruising on her left collarbone.
As a result of the August 27 police report and related follow-up interviews, Ziade was charged with misdemeanor domestic violence. Although Ziade denied the allegations made against him, he apparently agreed to take anger management courses in exchange for a dismissal of the misdemeanor charge.
Pecos River Talc LLC … sued defendants, Drs. Theresa Emory, John Maddox, and Richard Kradin, alleging that certain statements they made in an article published in a scientific journal about cosmetic talc, asbestos, and malignant mesothelioma were false. The Court granted in part and denied in part defendants' motion to dismiss [see here -EV], allowing the case to proceed on the trade libel claim (count one).
Pending before the Court is Pecos River's motion to compel the identities of the article's subjects…. [T]he Court … [concludes that] the names of the subjects in the article are within the scope of discovery….
Pecos River was formed as part of Johnson & Johnson's effort to resolve talc-related claims through bankruptcy. Defendants … serve as plaintiff-side expert witnesses in litigation between individuals with mesothelioma and manufacturers of cosmetic talc. In March 2020, defendants published an article titled "Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients" in the American Journal of Industrial Medicine (the "article"). The article stated that it "present[s] 75 … subjects, with malignant mesothelioma, whose only known exposure to asbestos was cosmetic talc[,]" who were "additional" to the 33 subjects reported in an earlier study by Dr. Jacqueline Moline ….
Defendants identified and selected the 75 subjects "from medical-legal consultation practice." To determine asbestos exposures, defendants relied on records obtained when they served as expert witnesses for asbestos plaintiffs—many times in cases against Pecos River—and examined "sworn deposition testimonies and answers to sworn interrogatories provided from subjects, parents, and spouses." Tissue samples were tested for the presence of asbestiform fibers in nine subjects.
