COLUMBIA, S.C. (Legal Newsline) - Johnson & Johnson is scheduled to begin trial next month in a South Carolina court where it lost a $63 million verdict last month and the presiding judge has a reputation for pro-plaintiff rulings and stiff sanctions against companies that dare to oppose her.
The South Carolina asbestos docket is overseen by Judge Jean H. Toal, celebrated as the state’s “Ruth Bader Ginsberg” for serving as the first female chief justice of the South Carolina Supreme Court. After she retired, Judge Toal was appointed to run all of the state’s asbestos cases, which she has done with a penchant for finding money in decades-old insurance policies and corporate subsidiaries to produce a steady stream of plaintiff awards.
She also doesn't mind inflating jury verdicts she feels are too low, and the state Supreme Court has given its stamp of approval to her actions. Since Judge Toal took over in 2017, asbestos claims in South Carolina have surged, driven significantly by the Dallas law firm of Dean Omar Branham Shirley.
Plaintiff lawyers are now filing talc lawsuits in Judge Toal’s court, claiming the ubiquitous product sold by Johnson & Johnson, Avon and many other companies was contaminated with asbestos. And Johnson & Johnson is one of their biggest targets, especially after a jury last month ordered the company to pay $63 million to a man who blamed baby powder for his fatal cancer even though he worked in a building that was condemned for asbestos.
In the latest skirmish, lawyers at Dean Omar are seeking sanctions against J&J for failing to provide executives who can testify about how the company set up special subsidiaries with names like LTL and LLT to hold asbestos-related liabilities. The plan was to place those companies in bankruptcy so a judge could oversee an orderly process for paying claims.
To explain the corporate maneuvers, J&J provided John Kim, chief legal officer of LTL and LLT, to testify in several pending cases. But plaintiff lawyers said he wasn’t prepared to answer questions and Judge Toal agreed, sanctioning J&J in August in the case that ended with a $63 million jury award against the company.
“Court action and sanctions are needed,” plaintiff lawyers argue in their latest motion for sanctions.
Judge Toal has a pattern of using sanctions orders – including rich fees for the lawyers who seek them – to discipline companies she believes have been defying her. She has even ordered companies not named in lawsuits, primarily insurers, to pay the lawyers pursuing them, including $1.6 million in fees she said Travelers insurance should pay for fighting earlier discovery orders.
The judge also approved a $5 million settlement of a legal malpractice claim brought by a receiver she had appointed to control a defunct company. That receiver filed suit against that company’s own lawyers.
Lawyers have found great success in Judge Toal’s courtroom arguing companies that went bankrupt or otherwise out of business were fraudulently stripped of assets and need a court-appointed receiver to recover money for asbestos plaintiffs. Usually those recoveries are in the form of old insurance contracts, although the judge has also approved legal action against solvent corporate subsidiaries.
Plaintiff lawyers say they also may want to question J&J executives about “Project Plato,” which was reportedly the code name for the legal strategy of placing asbestos liabilities in bankrupt subsidiaries.
In the case set for trial, Angela M. Hood seeks money for the death of Mary McBrayer, who she claims contracted mesothelioma from a variety of products including Johnson’s Baby Powder. As in other cases, J&J denies there ever was asbestos in its cosmetic talc, so it can’t be held liable for causing someone’s cancer. The trial is scheduled to begin Oct. 21.
From Legal Newsline: Reach reporter Daniel Fisher at dan.fisher@therecordinc.com.