The Virginia Defamation Law Blog
In defamation cases where actual malice must be shown, a plaintiff must prove the defendant made a false statement with knowledge that it was false or with reckless disregard of falsity. “Reckless disregard” generally means a high degree of subjective awareness that a statement is probably false. A mere failure to sufficiently investigate the factual basis for a statement, without more, does not establish recklessness unless there are obvious reasons to doubt the veracity of a source. A federal court in Virginia granted summary judgment for the defendants earlier this month in a trade libel case in which the plaintiff could not raise a genuine dispute of material fact on actual malice. The case is Pecos River Talc LLC v. Emory (E.D. Va. Aug. 19, 2026). Although it applies New Jersey substantive law, its reasoning rests almost entirely on federal First Amendment precedent that applies with equal force in Virginia.
The defendants were pathologists experienced in mesothelioma science who often testified for plaintiffs in asbestos litigation. In March 2020, they published “Malignant mesothelioma following repeated exposures to cosmetic talc: A case series of 75 patients” in the American Journal of Industrial Medicine, and later repeated its conclusions in a letter to the editor and a MedicalResearch.com article. Pecos River Talc LLC, a subsidiary of Johnson & Johnson, alleged that the study disparaged its product. The suit centered on three categories of statements. The “review claim” asserted that subject exposures were identified through sworn deposition testimony and interrogatory answers. The “no overlap claim” presented the 75 subjects as additional to the 33 subjects in an earlier study by Jacqueline Moline. And the “exposure claim” stated that all 75 subjects’ only known asbestos exposure was cosmetic talc. Discovery established that the no overlap claim was literally false in that eight of the 75 subjects in fact overlapped with Moline’s cohort. Summary judgment was nevertheless granted in the defendants’ favor because Pecos River failed to prove the authors published any of the statements with actual malice.