Litigation Nation

Welcome to Litigation Nation. I'm your host, Jack Sankar. Today's stories, the c e O of Ocean Gate. This is the guy who died a couple weeks ago in the submarine that imploded deep in the ocean, knew that the sub had designed defects, but filed frivolous lawsuits against his own employees to silence them.

Johnson and Johnson, assuming a group of researchers personally for their published reports regarding. TLCs alleged linked to asbestos and mesothelioma in kind of an unprecedented move, and a federal judge weighs in on the recent scandals, plaguing the Supreme Court and asked why the justices have let things get so messy.

All that and more. Here's what you need to know.

Uh, first, do you remember the Titan Submersible that imploded while it was on its way to tour the wreck of the Titanic a few weeks ago? Well, apparently the billionaire, c e o of Ocean Gate, his name was Stockton Rush, which is like the most billionaire name ever knew of the design flaws in the sub, but he silenced his critics, uh, one.

At least with a frivolous lawsuit. Now, the Daily Beast has a writeup on the SLAP suit filed by Rush against his early critics. For those of you that don't know, SLAP is an acronym. It stands for Strategy Lawsuit Against Public Participation, and the Daily Beast gives a decent definition that I'll read to you.

A slap is a meritless lawsuit or merely threatened not to vindicate any rights, but instead to silence its targets. By imposing or threatening to impose a substantial cost and burden of litigating. The goal was not to win the case. The process is the punishment. Politicians use them to punish rivals or journalists for unflattering commentary.

Businesses use them to silence public reporting about their practices. Sexual predators use them to cow their victims into silence, and entrepreneurs use them to suppress questioning their claimed contributions, unquote. So the piece details, uh, a number of different warnings that Rush received well before the Titanic implosion incident.

Uh, regarding the Titan Submarine. Um, first there was one involving a man named Carl Stanley, who was a submarine expert who told Rush that he had heard cracking during a dive of the Titan sub, which obviously can't be good rash. Told him to keep his mouth shut and he said, quote, I hope you of all people will think.

Twice before expressing opinions on subjects on which you are not fully versed, unquote, yikes. All right. Then there was Rob McCallum, who was an advisor, advisor to Ocean Gate. He voiced some concerns. Rush threatened him with litigation if he criticized Ocean Gate publicly. And then there's Ocean Gate's own employee, David Lockridge, former directed of marine operations and sub pilot who wrote a detailed inspection report of the vessel's defects for which he was fired by Rush.

Now eventually, OSHA got involved and was investigating OS Ocean Gate probably tipped by Lockridge, at which point Rush through his attorney, threatened to sue him, take measures to destroy his professional reputation and accuse him of immigration fraud if he didn't withdraw the OSHA complaint and Rush did.

He did file the lawsuit against Lockridge and I looked at the complaint. Frankly, it's, it's. Garbage. Six count complaint alleging immigration fraud on Justin Richmond. Breach of contract pled pretty poorly. I might add. Um, the thing just screams, frivolity. Anyways, poor Mr. Lockridge was dragged through the mud, financially ruined.

He eventually capitulated and withdrew his OSHA complaint to settle with Ocean Gate. Now, there's no way to know whether the OSHA investigation would've prevented the tragedy from a few weeks ago, which killed Rush and his passengers, but it might have. And the slap suit followed by rush against Lockridge had its intended effect.

It swept the design issues of the sub under the rug until it was too late. Now, I don't wanna say this is karmic justice and a lot of people have been dancing on this guy's grave lately, and, and I don't, I don't wanna do that. But there's some level of irony here, right? It does go to show that bad actors with money can abuse the judicial system and that we probably need to do a better job, which would include passing the federal anti SLAPP law that has been proposed in every Congress since 2009 to present, but never passed.

All right. And in other free speech related news, Johnson and Johnson, the pharmaceutical and I guess everything company, uh, have sued researchers over a study that they published that Linked talcum powder. Used to mesothelioma quoting from a piece in Seeking Alpha. The lawsuit takes issue with a 2020 study published in the American Journal of Industrial Medicine by Teresa Emory, John Maddox, and Richard Creon.

The article was a case study of 75 individuals with melanoma who say that their only exposure to asbestos was through the use of cosmetic talc products, LTL management, which is by the way, the. Uh, shell company, subsidiary of j and j. We could talk about that in a minute, but. When I say LTL management, we're talking about j and j.

LTL management filed their case earlier this month in federal court in New Jersey. They say that the individuals in the study admitted other potential exposure to asbestos, and the authors knew or disregarded evidence regarding this. They published their junk litigation opinions and scientific journals.

LTL says that the plaintiffs, they use their credentials to instill their publications with false credibility. They then build from that fraudulent foundation by citing each other's work. Which manufactures a body of literature to present to judges and juries with the veneer of scientific legitimacy, and they actively resist attempts to make public the information that would reveal the deceit unquote.

So LTL said the researchers again, LTL was Johnson and Johnson said the researchers concealed the fact that some, all of their patients involved in their studies have been exposed to asbestos from other sources. Uh, I, I don't know about that. I mean, Technically everyone's been exposed to asbestos from other sources, or at least most people probably have or arguably have.

The company is also asking the court to force the research to disclose the identities of the patients that participated in the study, and that seems like it had only lead to harassment of those patients, the lawsuits allege product disparagement and fraud among other claims, and they're asking the researchers to issue a correction or a retraction of the research.

Now I don't have an opinion as to the talc, uh, the massive amount of litigation regarding the presence of. Asbestos, allegedly in talc powder that's used in everything from makeup products to certain other things that j and j sells. Um, there are a lot of lawyers across this country that are working on this stuff.

These are, these cases are everywhere. Every major courthouse has a talc docket. Uh, so I'm sure that a lot of people listening probably have strong opinions on this. I don't, this is not something that I work on. I will say that this is a bit of an unprecedented. Uh, moved by Johnson and Johnson to go after the researchers directly suing them for whatever they were published, whatever they said in their publications, which ostensibly would be used to support the plaintiffs in this, this TLC litigation.

To me, this is kind of more creative lawyering from Johnson and Johnson, which faces massive liabilities from the lawsuits and quoting from a Reuters piece recently published. Kind of summarizing that quote, j and j is facing more than 38,000 lawsuits alleging the company's talc products, including its baby powder, or contaminated by asbestos and cause cancers, including ovarian cancer, mesothelioma, J and J's, attempting to resolve these lawsuits as well as any future talc lawsuits through a 8.9 billion settlement in bankruptcy court.

So later it goes on to say, quote, the company in 2021 began exploring bankruptcy as a potential solution to the lawsuits, which saw a mixed record at trial, including several defense wins, but also a 2.1 billion verdict awarded to 22 women who blamed their ovarian cancer on asbestos in the company's talc products.

J and j said in bankruptcy court filings in April, that the cost of its talc related verdicts, settlements and legal fees have reached about 4.5 billion. Unquote. I mean, that's a lot of cash. Uh, Johnson Johnson has 3,800 lawsuits pending against it. They're telling the court that they have, that the total liabilities are equal to 4.5 billion.

So I don't wanna say that they're desperate and I, this doesn't necessarily look desperate, but they might be. And going after the researchers who have something to say about the presence of asbestos and talc products is one way to make sure that. A lot of other researchers don't speak up. Uh, And that is generally what is being alleged here by a couple of the critics to this move.

Going back to that Reuters piece, Adam Zimmerman was professor of the University of Southern California Gold School of Law said that companies rarely file lawsuits over a research they disagree with. It would be very difficult for LTL to prove that the researchers intentionally. Harm J and J's reputation, which is required for product disparagement cases in New Jersey, but the company may view the lawsuits as a way to discourage other researchers or reclaim the narrative about TA Talc safety, as everyman says, when when a litigant starts suing opposing experts, that's very aggressive, he said it sends a message that the gloves are off unquote.

I, I agree with that. I think that this move by Johnson Johnson to go after the researchers directly is definitely meant to have a chilling effect on whether anyone else is gonna even do research into this area. If, if publishing your findings, and, and I'm assuming by the way, That the researchers are acting in good faith, which I know that Johnson Johnson disagrees with.

But let's assume that they are merely publishing a finding that is, can be used by someone else to argue that a product is dangerous or unsafe or whatever can be grounds for a lawsuit. Um, yeah, that is, that is something that, uh, would've a chilling effect on that research. And I think that is the point here.

I think it's exactly what j and j is trying to do is to make sure that those who. Publish things negative about their products or the components of their products or the sources of the components of their products, or whatever you wanna call the TLC here. Um, think twice before they put something out there.

So, uh, in any event, the researchers suing the researchers being sued in this case probably have strong legal defenses. Um, I would not be surprised for this case to get dismissed at the pleading stage, but again, as we mentioned earlier, the point of these lawsuits, like in the Ocean Gate lawsuit against the employee, the point is not necessarily to win, it's just to cause harm and frustrate and to, uh, bury the individual plaintiffs with paperwork and legal bills.

Judge Ponza is a US District Court judge in the District of Massachusetts, and it begins his peace in the New York Times with what has gone wrong with the Supreme Court's sense of smell. Now he suggests that the Supreme Court should draft ethical guidelines, even non-binding ones. Uh, but he recognizes that that's unlikely that they will, and the reasons he offers are that it would probably further politicize the court and kind of by admitting that the court needs ethical guidelines at all.

You're sort of tacitly admitting that the individual justices can't be trusted to act ethically without them. So, It's gonna be difficult in my mind for the justices to cop to that and then adopt something that you know is gonna make them look bad anyways. He goes on to make an observation that I think is important.

The more important uncontroversial point is that if there will not be formal ethical constraints on our Supreme Court, or even if there will be, it's justice must have. Functional noses. They must keep themselves away from all conduct with the dubious aroma, even if it may not breach a formal rule, unquote.

And he goes on to tell a useful anecdote that illustrates this point. Quote, many years ago as a new federal magistrate judge, I was chatting about our kids with a local attorney. I knew only slightly, as our conversation unfolded, he mentioned that he'd be planning to take his 10 year old to a Red Sox game that weekend, but the plan had fallen through.

Would I like to use his tickets? He goes on. Moreover, the seats f Nway Park, like the more expensive seat on the private jet, used for free by Justice Samuel Alito on his Alaska vacation would go empty if I didn't take them, who would be harmed. And later he says, to my chagrin, as I pondered the situation, I became aware of an aroma of something off.

It wasn't that the lawyer had evil intent, it was that I was approaching a boundary. Silently gnashing my teeth. I turned the tickets down. Now he later tells us another story about how he had to turn out a gift, which is like a handmade pencil case from a litigant after he ruled on their social security case.

And it's just another example of staying well within the ethical boundaries, even though there weren't specifically rules around it. Judge Ponder talks about the recent SCOTUS scandals quote, the recent descriptions of the behavior of some of the justices, and particularly their attempts to defend their conduct have not just raised my eyebrows.

They've raised the. The whole top of my head, lavish, no-cost, vacations, hyper technical arguments about how a free private airplane flight is a kind of facility. A justice's spouse prominently involved in advocating on issues before the court without the justice's recusal repeated admissions. In mandatory financial disclosure statements, brushed under the rug is inadvertent.

A justice taxpayer finance staff repeatedly helping promote her books, private school tuition for a Justice Family member covered by a wealthy benefactor. Wow. Although the exact numbers fluctuate because of vacancies, the core of our federal judiciary Compri compromises roughly 540 Magistrate Justices, 670 district judges, and 180 appeals court judges and nine Supreme Court justices.

Fewer were than 1500 men and women in the country of more than 330 million people in three point. 8 million square miles. Much depends on this small cohort's acute sense of smell. Its instinctive, uncompromising integrity, and its appearance of integrity. If reports are true, some of our justices are sadly letting us down.

To me, this feels personal for the country. It feels ominous. What in the world has happened to the Supreme Court's noses and that's where he ends. I think that sums up my thoughts and a lot of other folks who I've spoken to regarding the myriad of recent. Supreme Court scandals. I mean, even if it's not technically bribery or currying favor, it sure looks like it in certain cases, and I would hope that the Supreme Court would spend a little more time and effort protecting its image against people who might have a less charitable view of these infractions.

It does reap a bad judgment, and I think a lot of people agree.

All right, everyone. That's the show. Thanks for listening. As always, remember, you can find us on Apple Podcasts, Spotify, YouTube, wherever you get your podcasts. Otherwise, we'll talk to you in two weeks.