SAN FRANCISCO (Legal Newsline) – An asbestos defendant is appealing the rejection of its request for a mistrial after the plaintiff was left alone in a Zoom chatroom with the jury.
While the judge, trial counsel and court staff were in a sidebar, plaintiff Ronald Wilgenbusch and jurors discussed how to change their Zoom virtual backgrounds. Wilgenbusch also showed the jury photographs of a trip to Spain.
Feeling the conversation endeared Wilgenbusch to the jury, Metalclad filed a motion for mistrial that was turned away in August by Alameda County Superior Court Judge Brad Seligman. Metalclad has appealed that decision to the California Court of Appeal, asking for a stop to the trial.
“(T)he photographs shared with the jurors during his private communications were of a nature and subject matter identical or similar to many of the photographs introduced during Admiral Wilgenbusch’s prolonged direct testimony literally days earlier,” the company says.
“He testified that travel in general, and travel to Spain specifically, was particularly important to him and his family, and that that he was devastated that his claimed illness now prevents him from traveling.”
The company says the photos directly tie to the issue of non-economic damages.
“Showing photographs of Spain (and possibly other vacation locations) was an undeniable attempt to cement in the jurors’ minds how important Spain and travel is to him and his family and how the loss of the enjoyment of traveling there because of his illness is a significant loss to him,” Metalclad says.
“He sought to engender sympathy and empathy through his contact with the jury.”
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.
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.
The case is one of two asbestos trials being conducted on Zoom in Alameda County. Jurors are deliberating in the other after Honeywell complained of inattentive jurors who were working on a different computer and an alternate who was watching in bed.
The original judge in that case had to be replaced after being caught on an audio stream he thought was turned off worrying that he hadn’t been exposed to enough asbestos to develop a cancer.