"Each plaintiff has dramatically different—and substantial—obstacles to overcome in proving causation. However, if the jury hears the claims of both plaintiffs who used Johnson's Baby Powder and subsequently developed a form of mesothelioma, they may well assume that there must be something to the plaintiffs' allegations. In other words, consolidation would allow plaintiffs to bolster their claims by stacking allegations before the jury," the brief said.

Along with J&J's brief, the U,S, Chamber of Commerce, the South Carolina Chamber of Commerce, the American Tort Reform Association and others filed an amicus brief asking that the high court adopt specific procedures that could give guidance to the litigants and lower courts about when cases can be consolidated. Instead of allowing the lower courts to use an "informal procedure" to determine consolidation, the amicus brief, filed by Mark Behrens and Caroline Gieser of Shook, Hardy & Bacon, said the court should adopt the factors outlined in the 1993 Malcolm v. National Gypsum Co. decision from the U.S. Court of Appeals for the Second Circuit.

"If this court allows asbestos case consolidation to continue under South Caroline Rules of Civil Procedure Rule 42(a) then, at a minimum, litigants and trial court judges should be given clear guidelines to reduce the risk of prejudice and confusion, among other adverse consequences, that flow from the improper joinder of dissimilar actions," the amicus brief said.

According to J&J's filing, one plaintiff, Terran Dupree, is 20 years old and suffers from mesothelioma in her abdominal lining, which, the company argued, is most often caused by naturally occurring cell replication errors. The other plaintiff, the brief said, is the widow of 70-year-old Robert Devey, who died from mesothelioma of the lungs after he spent time working at a facility that manufactured asbestos-containing products.

Attorneys for the plaintiffs moved for consolidation in March, and, following a hearing, the lower court judge granted the motion, saying that, although there were some factual differences, there was "an almost completely common set of facts" that would answer whether J&J's powder contained asbestos and whether using the powder resulted in the plaintiffs' mesothelioma.

J&J filed a writ of certiorari, which the Supreme Court granted specifically on the issue of whether the two actions should be consolidated.

In its brief, J&J argued that consolidating the two cases would confuse and prejudice the jury, and the two cases would require different proofs and expert testimony. The different damages would also likely implicate to jurors that "the fate of the deceased awaits the plaintiff who is living."

The brief also cited the fact that numerous courts have banned consolidated asbestos cases, and noted that, so far, none of the asbestos cases that have gone to trial in South Carolina have resulted in a plaintiff's verdict.

"They want to tilt the scales of the trials in their favor," the brief said.

Neither W. Christopher Swett of Motley Rice, who is representing Dupree and Devey, nor C. Mitchell Brown of Nelson Mullins returned a call seeking comment.