W. Va. SC gives widow another crack at CSX in asbestos case

John O'Brien Jun. 6, 2007, 4:00pm

Justice Brent Benjamin was the lone dissenter

CHARLESTON, W. Va. - During a juror examination in 2005, Dr. Edward Polack was asked why he wrote that he had a bias against personal injury attorneys.

"Physicians tend to not like trial lawyers," he replied.

Though Polack went on to say that he would base his verdict on scientific information and not emotional information in the asbestos case of a widow who lost her husband to colon cancer, the West Virginia Supreme Court on Wednesday decided he never should have been allowed to stay on the jury and ordered a new trial for Sally Black in her case against CSX Transportation.

A Kanawha Circuit Court jury had found that while CSX was negligent in exposing Charles Black to asbestos, it was not responsible for his death.

After Sally Black's post-trial motions were declined, she filed the appeal, alleging that Polak should never have been allowed to stay on the jury panel. In fact, her attorney Robert Daley, of Pittsburgh's Robert Peirce and Associates, twice tried to have Polack disqualified.

However, Judge Arthur Recht decided that Polack could be trusted. One of Black's attorneys asked Polack if there was anything aside from trial lawyers that contributed to any bias.

"My personal bias is about asbestos, because a lot of the issues about asbestos are not science, and I'm perfectly willing to listen to the data, but I will have to be convinced predicated on scientific information, not emotional information," Polack said.

The Supreme Court decided, in an opinion delivered per curiam, that Polack should have been cut loose. Justice Brent Benjamin was the lone dissenter, and reserved the right to file a dissenting opinion in the future.

"Dr. Polack clearly expressed a bias against Mrs. Black," the majority's opinion states. "Despite his statements that he would render a decision based upon the scientific evidence presented and the trial court's instructions of law, Dr. Polack continued to convey a bias against parties claiming to have been injured by exposure to asbestos and against personal injury attorneys."

The Court also says Recht attempted to "rehabilitate" Polack while questioning him by asking "the magic question." It pointed to this exchange:

The Court: The ultimate question, of course, Doctor, is simply this -- you know as much about the case right now as I know. Based upon what I told you, do you believe that you'll be able to sit as a juror in this case, listen to the evidence from the witness stand, the law that will be given to you at the close of the case, and you're going to be asked to marry the facts as you determine them to the law as I give them?

Dr. Polack: Yes.

Black renewed her motion to strike Polack, leading to this exchange:

The Court: So we get back really to, any verdict that you would reach would be based upon the evidence from the witness stand and the law given you by the Court?

Dr. Polack: That's correct.

"We previously have cautioned against the use of such 'magic questions,' though, when it is clear that a potential juror is partial," the opinion says.

The result of keeping Polack, the Court said, was an adverse verdict for Black, who will now get a new trial.

"Because the trial court denied Mrs. Black's repeated motions to so strike Dr. Polack and, instead, required her to use one of her peremptory strikes to remove him from the jury panel, we find that the trial court abused its discretion," the opinion says.

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