The first two remote asbestos jury trials showcase the unique challenges of trying cases remotely. Many Americans have become accustomed to working from home and the technology that comes with it. Most courts though are still hesitant to proceed with remote asbestos jury trials, which is likely for the best. If, however, remote asbestos jury trials become more prevalent, then courts and litigants must learn from the challenges presented in these early cases.

Remote Asbestos Jury Trial No. 1

The first remote asbestos jury trial was Ocampo, et al. v. AAMCO Transmissions, Inc., et al. in Alameda County, Calif. The plaintiff, Ricardo Ocampo, claimed he developed mesothelioma from sweeping floors in car dealerships where mechanics had worked with brake pads containing asbestos. The jury ultimately returned a verdict in favor of the sole remaining defendant, despite numerous challenges to the remote nature of the proceedings.

The defendant filed a notice of irregularities raising some of the problems it observed. As expected, the remote jurors seemed to be less attentive and faced more distractions than an in-person jury. Some jurors appeared to be working on other computers during the trial. Others were walking around or even reclining in bed. Technical glitches also affected the jurors’ ability to participate as some had difficulties getting online and staying connected. As a result, the trial experienced delayed start times and had to stop to repeat testimony and arguments.

Similar technical glitches prevented the defendant from hearing some of the proceedings and even impacted the court’s ability to hear the case. In fact, the presiding judge recused himself after he accidentally left his microphone on after a day’s proceedings concluded. The judge was heard discussing his concerns regarding his own potential exposure to asbestos from brake repairs.

Remote Asbestos Jury Trial No. 2

The second remote asbestos jury trial was Wilgenbusch, et al. v. American Biltrite Inc., et al. The plaintiff, Ronald Wilgenbusch, claimed that he developed mesothelioma from exposure to asbestos aboard U.S. Navy ships and facilities. The jury ultimately returned a verdict in favor of the plaintiff.

The sole remaining defendant at trial filed motions for a mistrial with no success. Notably, one motion was based on a conversation the plaintiff had with jurors while the judge and counsel were in a separate virtual room. The plaintiff showed jurors photographs of a trip to Spain and discussed setting up virtual meeting backgrounds. The defense argued that the conversation was an attempt to endear the plaintiff to the jury and bolster his claim for non-economic damages. The court denied the motion and found that no prejudice had occurred.

Moving Forward

While some of these issues may persist in future remote asbestos jury trials, courts and litigants can minimize some of the challenges through robust technological training and live support. Through training, courts and litigants will be better suited to avoid improper conversations with jurors and the infamous hot mic. Live technical support may help minimize delays through expedited troubleshooting. Technical problems, however, will still likely plague future remote asbestos jury trials.

Even if technical glitches could be completely resolved, the most alarming concern still remains. Courts cannot ensure that potential jurors adhere to court instructions. As observed in these trials and other remote proceedings across the country, jurors are less attentive because they are surrounded by distractions. One such distraction is at the fingertips of every juror and allows them to circumvent the rules of evidence in real time. While jurors are admonished to not research or discuss the case, the temptation may be too great when presented with complex expert testimony in a toxic tort case. An innocent internet search resulting in junk science may irrevocably taint a juror and undermine the entire proceeding.

Fortunately, many jurisdictions have yet to proceed with remote asbestos jury trials. In jurisdictions, such as Alameda County, however, litigants should work together with the court to master the technology and develop strong juror admonishments to avoid prejudicing the right to a fair trial.

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