COLUMBIA, S.C. (Legal Newsline) - South Carolina's asbestos judge took more than $16 million off of Johnson & Johnson's share of a huge talcum powder verdict, but that isn't stopping the company from seeking total relief from the state's appeals courts.
The company on Jan. 10 filed its notice of appeal to the state's Court of Appeals, about a month after Judge Jean Toal rejected most of its post-trial arguments in the case of Michael Perry. A Richland County jury awarded him and husband Lonnie $63 million last year in a lawsuit alleging he contracted mesothelioma from longtime use of Baby Powder.
Johnson & Johnson and Perry's lawyers at Dean Omar Branham Shirley agreed to reduce the verdict by the amount of settlements Perry reached with other companies, so Toal subtracted $11.2 million. She also reduced a $30 million punitive damages award by $5 million.
All told, J&J is on the hook for $39,401,250 - an amount it must put up as bond while it appeals. Toal rejected J&J's post-trial arguments regarding successor liability and jury instructions, among others, finding jurors were reasonable in finding J&J liable.
J&J complained before trial it wasn't allowed to present evidence Perry worked in a former library that was later condemned for asbestos.
"The evidence supports the jury's finding that J&J's conduct was reprehensible," Toal wrote in December.
"J&J has been selling baby powder since 1894. The serious health risks of inhaling asbestos dust from talc were well-published in the scientific literature, and actually known by J&J decades before Mr. Perry was ever born, let alone exposed to asbestos from JBP."
Perry was diagnosed with mesothelioma in 2023, at 53 years old. The fatal disease has a long latency period but is said to move aggressively once established and cause extreme chest and lung pain.
Perry testified his mother used Baby Powder on him when he was in diapers, and his use of it continued through his life because he is allergic to deodorant. The jury was told his eventual death will be a sensation similar to drowning.
Though J&J was recently successful in defending itself against a similar lawsuit in Pittsburgh, it is clearly not a fan of opening itself to jackpot verdicts by juries who are told by plaintiff lawyers it could have changed the makeup of Baby Powder from asbestos-containing talc to corn starch. The company has maintained there was no asbestos in the talc it used.
The company is in its third effort to establish a bankruptcy fund that will pay claimants quicker and without the need to go to court. Lawyers representing claimants are split on whether to approve the $9 billion plan and will voice their arguments at an upcoming hearing in Houston.
J&J argued in Perry's case that Judge Toal treated it differently than the other side, specifically that she commented it has spent years trying to resolve cases through bankruptcy.
"The record reflects the uncontradicted fact that any such discussion did not happen in the presence of the jury at any point in time," she wrote. "There is no precedent preventing this Court from disagreeing with the steps taken by a defendant to avoid talc liabilities, and J&J has provided none."
So what did Toal say? It came during a motion related to evidence of J&J's LTL spinoff's ultimately failed bankruptcy. Critics of companies using Texas bankruptcy law to create new companies that will absorb liability called it the "Texas Two-Step."
"These -- these corporations weren't established for some theoretical idea of restructuring," Toal said. "They were structured to try to throw all the liability into a corporation that had no assets so J&J can go on their merry way forward."
She also told J&J "(Y)ou all are the ones that created this monster with this bankruptcy, that was later dismantled, and with this Texas Two-Step and all the rest of it."
J&J also complained Toal welcomed plaintiff experts and was hostile to defense experts. 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.
J&J has constantly decried the "junk science" being told to juries and has even sued Dr. Jacqueline Moline, an expert witness in some talc cases who allegedly fudged her research to create a false narrative her subjects had no exposure to asbestos other than Baby Powder.
Toal's court is seen by some as hostile to corporate defendants, with the American Tort Reform Association placing it No. 3 on its list of "Judicial Hellholes." Previous Legal Newsline coverage chronicled efforts by her and a Columbia personal injury lawyer to bring dead companies to life to raid decades-old insurance policies, with the proceeds going to secret Delaware funds and the benefit of asbestos plaintiffs now being able to sue those defunct companies.
J&J is hoping for an outlier of a result in the appeals courts, which do not overturn Toal (a former chief justice of the state Supreme Court). It has affirmed rulings in which she took it upon herself to fatten jury verdicts, something judges in federal courts aren't permitted to do.