ALAMEDA, Calif. (Legal Newsline) – Things aren’t smoothing out in the nation’s first attempt at virtual asbestos trials in Alameda County, Calif.
The county is attempting to run two trials on Zoom but has run into technical problems, juror inattention and even one plaintiff being left alone with jurors to have a friendly chat.
The latest problem? Fire. Last week, one of plaintiff Ronald Wilgenbusch’s lawyers, Will Ruiz of Maune Raichle, took a day off from the trial to evacuate his home because of the current California wildfires.
And this week, one juror told the court she had been evacuated from her home and couldn’t be present for the trial.
This comes after two other jurors were excused from the trial, which has survived three motions for mistrial already.
One excused juror said she was having coronavirus symptoms while the other had connection problems, even after the court sent an iPad to his home. Only two alternate jurors remain, and there will possibly be only one if the woman who had to evacuate her home can’t find a way to attend.
The Wilgenbusch trial started with online jury selection during which members of Fryer-Knowles’ defense team complained they were put on mute and unable to object. It also claimed one prospective juror was working out and another was possibly asleep.
When a jury was selected, the court then attempted in-person proceedings. However, a juror reported a fever, moving the trial online and prompting the second mistrial motion, this one from defendant Metalclad.
“(T)he 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,” Metalclad wrote.
The next rejected mistrial motion concerned an incident during which Judge Brad Seligman moved himself, court staff and counsel to a separate Zoom room for a sidebar. Left alone in the main trial room, jurors and the plaintiffs discussed how to change a Zoom virtual background.
In the other trial this week, in the case of Ricardo and Elvia Ocampo against Honeywell, Judge Jo-Lynne Q. Lee had to remind a juror to pay attention, according to a report in Law360. She was forced to do this as jurors endured connection problems.
“You do need to be paying attention, please,” Law360 reported the judge as saying. “You need to imagine yourself being here in court, so we do need you to pay attention.”
Honeywell had noticed this apathy before, filing a notice of irregularities on July 29 that said jurors were working during opening statements and walking around during jury instructions.
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 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 the Campos’ case but not his next asbestos trial because he felt 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 1-2 weeks.