California Jury Decision in Zoom Asbestos Trial Admirable
November 3, 2020
Santa Clara, CA
Despite Metalclad Insulation LLC arguing that COVID-19 restrictions and juror irregularities unfairly impacted an asbestos lawsuit
claiming the manufacturer was liable for negligently failing to recall or warn about the risks of using insulation containing asbestos, a California jury awarded the plaintiffs, a Navy admiral and his wife, over $2.5 million.
After a virtual trial lasting three months, during which time Metalclad tried to “delay and deny justice at every turn”, said plaintiff’s attorney William F. Ruiz (reported by Law360
on Oct. 1), the 12-member jury handed 82-year-old Rear Adm. Ronald Wilgenbusch, and his wife, Judith, a win. The retired admiral, who is diagnosed with mesothelioma, became exposed to asbestos during the installation and removal of Metalclad-supplied insulation on several Navy ships in the 1970s, according to Wilgenbusch’s lawsuit. Ruiz told the jury that Metalclad boxes containing insulation were not labeled with adequate warnings and no one at the Navy yard was warned that they should wear masks or protective gear while handling the material. Ruiz added that mesothelioma will likely cut his client's life short by years, and that Metalclad’s defense team had tried to denigrate Wilgenbusch's service and minimize his suffering, even though he's "chasing the Reaper”.
Metalclad tried numerous times to request a mistrial. In one instance, the now defunct insulation manufacturer argued to Alameda County Superior Court Judge Brad Seligman that a friendly banter between the admiral and two jurors regarding how to put up a Zoom virtual background unfairly influenced the jury.
On another occasion, the defendant argued that trial experts had been unfairly limited
due to COVID-19 restrictions. This case, Ronald C. Wilgenbusch et al. v. Metalclad Insulation LLC
, case number RG19029791, was originally scheduled for a July in-person trial but was moved to Zoom by Judge Seligman after one juror came down with a fever and concerns over spreading COVID-19 were paramount.
Metalclad’s attorney Sheila G. O'Gara complained that the virtual trial missed the "humanity" that comes with being in a courthouse, where, "you can smell what's going on in the courtroom." She complained that jurors were unable to get to know each other, unable to have lunch together, and the process, i.e., the Zoom conference call, was limited to a “ two-dimensional screen." O’Gara went so far as to question whether Wilgenbusch actually saw the Metalclad boxes while he was in the Navy, and said that other witnesses testified they didn’t remember the Metalclad labels. Further, if the admiral had been "listening" to the information that his superiors in the Navy knew and told its crews, he would have been aware of the asbestos risks associated with the insulation.
Clearly, the jury didn’t buy O’Gara’s arguments.
Two More Virtual Trials
Since 1933, the California-based manufacturer Metalclad made insulation with asbestos for many Navy ships. Metalclad has been slammed with many lawsuits, including another virtual trial that began September 21, 2020. Robert G. Fenstermacher, a former Navy sailor, was diagnosed with mesothelioma last year and has undergone several rounds of chemotherapy. Fenstermacher’s attorney said that his client joined the Navy when he was 21 years old and worked for months on a Navy aircraft carrier that had “large quantities” of Metalclad insulation on the ship; that Metalclad was aware of asbestos insulations health risks and knew that vibrations on the ship would shake the insulation and cause asbestos fibers to attach to sailors. The case is Robert G. Fenstermacher et al. v. Metalclad Insulation LLC
, case number RG19036847.
Wilgenbusch v. Metalclad
is the third civil jury trial regarding asbestos product liability claims tied to take place in Alameda County, California, over Zoom. The first trial earlier in September was a win for defendant Honeywell and others whose brake pads containing asbestos allegedly contributed to plaintiff’s mesothelioma.
Defendants in virtual proceedings have argued that “irregularities” in trials conducted via Zoom have interfered with the trials.