OAKLAND, Calif. (Legal Newsline) – A friendly chat between a plaintiff and the jurors deciding his case was improper but isn’t enough for a mistrial, says the judge presiding over one of the first virtual asbestos trials during the coronavirus pandemic.
Alameda County, Calif., judge Brad Seligman on Wednesday denied the motion of Metalclad Insulation, which moved for a mistrial after Seligman left jurors alone with plaintiff Ronald Wilgenbusch in the main trial chatroom while he spoke with counsel and court staff in a separate room.
A paralegal working on Metalclad’s defense witnessed a conversation during which Wilgenbusch asked for help setting up a Zoom virtual background like one of the jurors had. This talk endeared the man to jurors, Metalclad argued.
Jurors claimed they had not been influenced by the talk. Seligman says there is no likelihood of prejudice now.
“Even if a presumption of prejudice arises, the court finds that the presumption is rebutted by the surrounding circumstances,” Seligman wrote. “The conduct did not relate to the trial.
“It was a brief interaction. Nothing in the communications was inherently prejudicial. All jurors stated they were not influenced by the incident. The court was able to observe the demeanor of the jurors when they were questioned and admonished and concludes that bias did not exist.”
In future sidebars, jurors and witnesses will be placed in a “waiting room” where they can’t see or talk to each other.
It was just one of many hiccups as the court tries to conduct two virtual asbestos trials, with a third starting soon. Incidents include a judge caught on a hot mic, possibly sleeping candidates during jury selection and jurors who appear to be working on other things during trial.
Metalclad’s first motion for mistrial came after a juror reported a fever, switching the trial from in-person to online. Another defendant had also moved for mistrial because of problems during jury selection that included being put on mute and being unable to raise objections.
In the case of Wilgenbusch’s chat with the jury, 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.”