OAKLAND, Calif. (Legal Newsline) – Jurors are working on other things, joking with plaintiffs and possibly asleep during the first virtual asbestos trials caused by the coronavirus pandemic, say the companies facing millions of dollars in liability.
Two ongoing trials in California’s Alameda County have defendants objecting to being forced to participate on Zoom, where they say jurors clearly have their attention split with other things as they are asked to weigh the complex issues presented in asbestos trials. One company even recently claimed jurors and the plaintiff had a friendly conversation about how to change a Zoom background.
This happened while Judge Brad Seligman, court staff and counsel were in a separate Zoom room, says Metalclad Insulation.
“The communication tended to endear (plaintiff) Admiral (Ronald) Wilgenbusch to the jurors, and thus was evidence of his likeability and credibility," Metalclad’s Aug. 11 motion for mistrial says.
Because the trial is not being recorded, there is some dispute as to what went on when jurors and the plaintiff were left alone, virtually. According to a member of the defense who stayed in the main trial chatroom, paralegal Janelle Walton, someone asked a juror if he was in a real courtroom.
That juror had set up a courtroom as his Zoom virtual background, then scrolled through space and Golden Gate Bridge backgrounds as other jurors “were smiling and sounds of ‘oooh’ and ‘ahhh’ could be heard,” the motion for mistrial says.
“I’ve been trying to do that but I can’t figure it out. Can you tell me how to do that,” the plaintiff, Wilgenbusch, then allegedly asked the juror. That juror and another instructed Wilgenbusch on how to set up a virtual background, the motion says.
“Admiral Wilgenbusch then thanked Mr. Draper and Mr. Dent for the instructions,” the motion says. “He then said, ‘I’m going to get out now before the judge comes back… This is our family room.’”
Walton says more than one juror laughed at Wilgenbusch’s comments and characterized the conversation as warm, friendly and familiar. A minute later, the judge, all counsel, the clerk and the court reporter returned from their separate room to the main trial room.
Plaintiffs counsel has resisted that the interaction created any prejudice and accused Metalclad of fulfilling a promise “that it would be obstructionist.”
“Simply put, the interaction between Admiral Wilgenbusch and the two jurors, in the entire jury’s presence, is ‘calculated’ to have an effect upon the verdict, for two reasons,” Metalclad’s lawyers wrote.
“First, it is essentially the reception by the jury of new, extrinsic evidence of Admiral Wilgenbusch’s friendly, self-deprecating, honest and solicitous character, rather than only ‘the evidence in the court.’
“Second, the jury is now irreparably tainted because at least two of them have formed a positive relationship with Admiral Wilgenbusch, and the rest of the jury saw it happen.”
Metalclad has also asked that the proceedings begin being recorded so there can be no dispute over what happens during the rest of the trial, if it proceeds.
It’s the third motion for mistrial in the case. First, Fryer-Knowles asked for one on July 16 because of how jury selection was conducted. It complained its lawyers were not able to object because the moderator of their online connection put them on mute.
And during jury selection, potential jurors appeared to be asleep or exercising, the company further argues.
One juror “was laying in what appeared to be a bed, curled up and possibly asleep.”
Another was “working out on an elliptical machine.”
Another “had a child that was in and out of the room, and the juror appeared to leave the room at times with the child.”
That motion for mistrial was denied, as was Metalclad’s first, filed July 29. This came after the court attempted to hold proceedings in person but one juror reported a fever, shutting down the physical courtroom.
Metalclad noted that federal courts have already delayed in-person jury trials until at least Sept. 30.
“But this court chose to press forward and ordered 17 jurors to join the Court, its staff and counsel for days in a single room,” Metalclad said. “The Court could have chosen to end this experiment, but it has not.
“To the contrary, the Court has indicated that unless it receives some outside information from a higher authority compelling it to stop, the Court intends to compound the prejudice and move to a fully remote trial proceeding post haste… The Court’s plan to proceed with this trial is – and always has been – unfair and untenable…”
Elsewhere, Judge Jo-Lynne Q. Lee has been alerted by Honeywell that jurors seem distracted during the trial in the case filed by Ricardo and Elvia Ocampo. The company filed a notice of irregularities on July 29.
Honeywell says its audio feed has been unreliable and was unable to hear anything on July 27. The same day, the company’s lawyers noticed three jurors walking around during jury instructions.
Later, one juror was working and emailing from another computer during opening statements, the company says.
“On July 28, 2020, Juror No. 2, Juror No. 10 and Juror No. 12 were very clearly working during the proceedings. Alternate Juror No. 2 was laying down throughout the proceedings,” the notice says.
Jurors have lost their connections and caused delays too, Honeywell says. But those aren’t the only technical problems.
The original judge in the case, Frank Roesch, was accidentally still hooked up to LiveStream, an audio-only option for the public to listen, after court proceedings. It caused the case to be referred to Judge Jo-Lynne Q. Lee.
Roesch was heard talking to someone about being exposed to asbestos years earlier changing his brakes and hoped he wasn’t exposed to enough that it would cause him health problems like the plaintiff.
“Frankly, I have no idea whether there is a safe exposure level and what it might be, and I will be the first to admit that I am unqualified to offer an opinion,” Judge Roesch wrote on Aug. 12 when he refused to recuse himself from another case that is headed toward trial.
“In my personal and professional life, I defer to medical researchers and other professionals to answer those questions.”
Roesch recused himself from that case but not his next asbestos trial because he feels a delay caused by reassignment might take longer than a disqualification hearing. Ultimately, the trial was assigned to a different judge, Jeffrey Branch.
Jury selection could begin in that case in the next 2-3 weeks.