ALAMEDA, Calif. (Legal Newsline) – The third virtual asbestos trial in Northern California starts Monday, while jurors are scheduled to resume deliberations in the second.
This all follows the result of the first – a victory for defendant Honeywell, which convinced Alameda County Superior Court jurors a plaintiff who sought $70 million failed to prove his case.
Honeywell had shown concerns that jurors were not paying close attention. At the same time, the defendant in the second trial – Metalclad – asked twice for a mistrial, once after jurors were left alone in a Zoom chatroom with the plaintiff.
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.
But deliberations started anyway on Sept. 17 and continue today.
“(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.
The seven-page verdict form asks jurors to decide if Metalclad’s asbestos insulation products were a “substantial factor” in causing Wilgenbusch’s mesothelioma. The jury must rule on claims of design defect, failure to warn, negligent failure to warn and failure to recall.
Also today, Metalclad starts its defense in the trial of Robert and Janet Fenstermacher. Opening statements are scheduled for this morning.
Fenstermacher spent two years in the Navy. He claims Metalclad sold insulation to the Long Beach Naval Shipyard that was used on the ship on which he served. He has mesothelioma.
Metalclad will argue there is no proof showing that the insulation it sold was used in the overhaul of the ship.