COLUMBIA, S.C. (Legal Newsline) - A man who won a $63 million verdict against Johnson & Johnson over what he claims was asbestos-contaminated talcum powder worked in a building later condemned for being “full of asbestos” and told his doctor about his suspected exposure to the deadly fibers.
Jurors weren’t allowed to hear about Michael Perry’s workplace exposure, one of several grounds J&J plans to pursue in an appeal of the blockbuster verdict. It came Aug. 15 in a South Carolina court that has been criticized as excessively pro-plaintiff after Judge Jean Hoeffer Toal was assigned to oversee the asbestos docket.
In this case, Judge Toal denied several of J&J’s motions to present evidence that would have undermined the plaintiff’s theory that stray asbestos fibers in cosmetic talc caused his mesothelioma, a fatal cancer of the chest lining that is typically associated with industrial levels of exposure.
“The court made a series of erroneous rulings before and during the trial that prevented Johnson & Johnson from presenting its defense and forced the company to move for a mistrial on multiple grounds,” J&J said after the verdict.
Perry convinced jurors his disease could be explained by a lifetime of using talc in a house that contained a startling variety of brands, from Johnson’s Baby Powder to Gold Bond to Chanel No. 5 (his mother’s “power fragrance,” Perry testified). Following a well-established playbook in asbestos litigation, Perry’s lawyers sued more than 30 companies, from retailers like CVS and Piggly Wiggly to obscure talc brands, although only J&J and American International Industries went to trial.
In testimony, Perry said he and his mother had the same routine: He showered as many as three times a day and then applied “three or four shakes” of talcum powder in his hand, applying it “from my neck down to my groin and then feet.” The powder, he testified, created “this big haze all over,” and he recalled chasing his “white footprints all the way out the bathroom, down the hall, into the kitchen.”
While J&J Baby Powder was a constant throughout his life, Perry testified he also used Polo Ralph Lauren, Drakkar, Obsession by Calvin Klein, Ammens, Gold Bond and Equate. Perry said he was also exposed to his mother’s habitual use of Chanel No. 5, but he also remembered his mother using Estee Lauder White Linen because she saw it on “Falcon Crest” and her mother liked it.
He testified his mother also used – and exposed Perry to – powder from Avon, Vi-Jon and Estee Lauder, Cotillion, Skin So Soft, Birds of Paradise, Soft Musk and Topaz. He never bought Old Spice Powder but his father used it and exposed him to that brand, too.
The jury awarded Perry $3.8 million in economic damages, $19.3 million for pain and suffering, $9.6 million to his wife Lonnie for loss of consortium and $30 million in punitive damages. The jury also ordered American International Industries to pay him $760,000.
In court filings, J&J said Perry had worked at a hotel which stored furniture in a former library next door the county later condemned for asbestos. Perry testified he frequently went in the building to retrieve furniture and one of his expert witnesses said Perry’s doctor noted a “history of asbestos exposure from ‘working at the old library/Hotel Bennett downtown.’”
Judge Toal refused to allow the evidence in. Perry’s lawyers at Dean Omar Branham Shirley denied this was a handicap, however.
"Contrary to Johnson & Johnson’s assertion, it was permitted to and did put on evidence of alternative exposure, specifically brakes and other talc powders,” said Trey Branham in a statement. “J&J’s problem is that all of its own experts, none of whom they called, all testified in their depositions that none of those exposures were causative.”
Plaintiff lawyers devised the strategy of suing over supposedly asbestos-contaminated talc after the supply of mesothelioma patients with documented industrial exposures – many from working in World War II-era shipyards – dwindled. Bolstered by expert scientific testimony J&J and others have criticized as flawed, lawyers have won billions of dollars in jury verdicts despite the unlikeliness of inhaling enough fibers from talc to cause disease, given every human breathes millions of fibers from environmental sources over their lifetime.
Like many talc plaintiffs, Perry built his case around the opinions of William Longo, a mineralogist who has been paid millions by lawyers for research he claims detects asbestos fibers in talc.
Johnson & Johnson said “the verdict is irreconcilable with the decades of independent scientific evaluations confirming talc is safe, does not contain asbestos and does not cause cancer. For that reason, the vast majority of juries have rejected the false narratives regarding talc advanced by plaintiff law firms.”
The FDA tested 50 samples of cosmetic talc in 2023 and didn’t find asbestos in any of them. J&J wasn’t allowed to present evidence of FDA studies in the 1980s that also failed to find asbestos in cosmetic talc.
In closing arguments, Perry’s lawyer told jurors “Do y’all understand that the only way they win is if they played zero role?” J&J’s lawyers objected, arguing jurors must find its talcum powder was a “substantial factor” causing Perry’s cancer, not only one of many. Judge Toal overruled the objection and allowed Perry’s lawyer to repeatedly tell jurors it didn’t matter if he was exposed to asbestos in other ways as long as they concluded talc was also a source of asbestos fibers.
Asbestos lawsuits in South Carolina more than doubled after the state Supreme Court picked Toal, a former chief justice, to serve as judge for all of the state’s asbestos cases in 2017. The increase coincided with an influx of cases brought by Perry’s firm, Dean Omar Branham Shirley.
The American Tort Reform Association counted South Carolina among its “Judicial Hellholes” largely because of Judge Toal, who it said has a record of precluding defense evidence, imposing severe penalties on defendant companies and increasing jury awards.
In 2020, she allowed plaintiff lawyers to consolidate two entirely different talc cases into a single trial, combining the claims of a dead 70-year-old retired industrial worker with a young woman diagnosed at 14 with peritoneal mesothelioma whose disease was in remission. Before he died, the 70-year-old told a newspaper he attributed his cancer to working in a Garlock asbestos gasket factory.
The U.S. Chamber of Commerce sought South Carolina Supreme Court review of Judge Toal’s consolidation order but J&J ultimately settled the cases.
Last December, Judge Toal, then 80, took over the heavily publicized Alex Murdagh murder trial. Murdagh’s lawyers have asked the South Carolina Supreme Court to review Judge Toal’s denial of a new trial after allegations of jury tampering.
Earlier this year, Dean Omar Branham Shirley firm won a $260 million talc verdict in Oregon against Johnson & Johnson.