Toal
COLUMBIA, S.C. - The judge in charge of South Carolina’s asbestos docket recently rejected Johnson & Johnson’s request for a mistrial after she refused to allow testimony by the plaintiff’s own doctor, who doesn’t think talc was the cause of his cancer, and refused to allow jurors to hear expert opinions about other causes of the disease.
Johnson & Johnson asked for a mistrial several days into the trial after complaining fiercely about Judge Jean Toal’s pro-plaintiff rulings, including her repeated assertions that a central defense theory – that peritoneal mesothelioma can arise through spontaneous cell mutations -- “is not consistent with what I know about this area.”
Toal repeatedly dismissed defense complaints in the case, once even by commenting “yada, yada, yada.” Another time she said: “Samuel Johnson, in his definitions of the law, called it cages for gnats and chains to yoke a flea, dried butterflies and tomes of casuistry. That’s what this argument is all about.”
The judge also allowed the plaintiff’s sole medical expert to testify that any exposure to asbestos, even as little as a few hours, can cause deadly mesothelioma even though courts in South Carolina and elsewhere have long prohibited the “any exposure” theory as scientifically unsupported. In pretrial arguments, Judge Toal said of the plaintiff’s experts: “They’ve never said that and I won’t allow them to say that here.”
Yet she allowed Dr. Steven Haber to show jurors slides including one that said “even a slight exposure to asbestos can result in malignant mesothelioma,” and testify “there’s no threshold. There’s no safe level.”
After defense lawyers called for a mistrial, the judge told them in sidebar Dr. Haber hadn’t crossed the line she had earlier established.
“Each and every exposure contributes or can result,” she said. “And I see those as different things.”
Gregory Johnson, a Tennessee resident, was diagnosed with peritoneal mesothelioma, a rare cancer of the abdominal lining, in 2023 and sued Johnson & Johnson that year after his wife saw references to talc as a mesothelioma cause on a Facebook group. Judge Toal allowed his case to stay in her South Carolina court because he said he used cosmetic talc when he visited relatives in the state.
Dr. Haber, a $650-an-hour plaintiff expert, first consulted on the plaintiff’s case earlier this year and acknowledged he had spent 10 hours studying the patient’s records before concluding his mesothelioma was caused by asbestos-contaminated talc. The judge allowed his testimony, while barring Johnson & Johnson from presenting experts to discuss peer-reviewed articles stating cell mutations can cause the disease.
The judge justified excluding J&J’s experts by saying their opinion “is not supported by any physical evidence in the body or anything that's been shown.”
J&J presented other evidence peritoneal mesothelioma is associated with heavy industrial exposure to asbestos fibers, not the amount one might inhale from allegedly contaminated talc. People inhale millions of asbestos fibers already through ambient exposures, a fact plaintiff experts admit under cross-examination.
“J&J Defendants have been prohibited from offering alternative causation opinions based on the Court’s erroneous belief that no one can rule out cosmetic talc as a cause of mesothelioma because it is a foregone conclusion that cosmetic talc does have asbestos and thus does cause mesothelioma,” the company said in the mistrial motion filed Sept. 25. “This is plain error and is itself an improper assumption.”
The judge also threatened devastating consequences if J&J discussed its own studies showing there was no asbestos in its products. Relying on a ruling in an earlier case, Judge Toal said she would respond to any mention of those studies by instructing the jury to assume J&J had other evidence there was asbestos in its talc. The judge earlier ruled J&J had improperly disposed of talc samples and other evidence, much of it decades old and dating to before talc litigation began, that backed up those reports.
The judge also allowed plaintiff experts to testify that Johnson’s disease is due to exposure to the asbestos in talc, based entirely upon the work of Dr. William Longo, who claims to have found asbestos fibers in J&J’s Baby Powder. J&J disputes those findings and wanted to press a witness on why Longo’s lab was no longer accredited by the main asbestos-testing association.
Defense lawyers complained they couldn’t cross-examine Longo directly because plaintiff lawyers didn’t call him as a witness. Judge Toal dismissed the complaint as immaterial.
Amid contentious pretrial argument over what evidence to allow in the trial, the judge consistently sided with plaintiff lawyers and expressed her own strong opinions about what the scientific evidence shows. She said “there’s a lot of proof in the cases I’ve tried” supporting the idea J&J’s Baby Powder and other talc products contained dangerous amounts of talc.
“They’ve taken it off the market because of all these lawsuits,” the judge told defense lawyers.
She went on to tell lawyers about her own long experience with the theory of asbestos-contaminated talc. When she was pregnant with her second child in 1980, the judge said, she came across some “some products liability stuff” “about possible contamination by asbestos in baby powder.”
“And I went to my pharmacy and said `You know, is there a chance people will sell cornstarch-based baby powder?’” she said. The pharmacist said J&J does, “and I’ve used it ever since,” the judge said.
Judge Toal, a former chief justice of the South Carolina Supreme Court, was appointed head of the state’s asbestos docket after she retired and conducts every trial. Twice in 2024, J&J won defense verdicts, but was hit with a $60 million jury verdict, since reduced to $39 million, in a case the company is appealing for many of the same reasons it is seeking a mistrial now.
In that case, plaintiff Michael Perry testified he was exposed to asbestos when changing car brakes as a teenager and later working in a hotel building that was condemned for asbestos.
The judge refused to allow jurors to hear any of that testimony, as well as any evidence the type of asbestos that doctors found in Perry’s tissue wasn’t consistent with what plaintiff experts claim to have found in cosmetic talc.
The result was a blockbuster verdict for lawyers at the Dallas firm Dean Omar, which also represented Gregory Johnson, along with the firm Kassel McVey.
