Opponent of juror masks settles abestos case on eve of trial

The quest for a mistrial in a personal injury asbestos case came to a close Monday in Alameda County as the company agreed to settle the matter the night before opening statements were to begin.

Edward R. Hugo of Hugo Parker LLP represents Fryer-Knowles Inc. a codefendant in a lawsuit filed by an 85-year-old former Navy admiral who said he contracted mesothelioma due to asbestos exposure. Fryer's codefendant is MetalClad Insulation LLC, which is the remaining defendant.

For the last several weeks, Hugo fought against Alameda County Judge Brad Seligman's mandate for all prospective jurors to wear masks during voir dire. The battle included unsuccessful trips to the 1st District Court of Appeal and the California Supreme Court. Hugo argued face covers hinder counsel's ability to gauge someone's impartiality and truthfulness. A motion to continue the trial was also denied. Wilgenbusch v. American Biltrite Inc. et al., RG1902791 (Ala. Super. Ct., filed Aug. 2, 2019)

"My clients are very happy with the resolution, so that's the most important thing," Hugo said Wednesday of the confidential settlement.

Hugo said he ducked into Tuesday's opening statements to gather his trial materials. He said he observed seven or eight video monitors placed about the room, facing the audience. Jurors and alternates aren't sitting in the jury box; instead they are spread about the courtroom. The monitors displayed PowerPoints, with counsel appearing via small window on the bottom right corner of the video screen, he said.

According to Seligman's orders, no more than one counsel per party will be permitted in the courtroom, which means lead counsel for either side must appear remotely.

"Absent an order from this court, no witnesses will testify live -- all will either be pre-recorded or via remote appearance, avoiding the necessity of masking the witnesses," Seligman's trial procedure rules state. "Counsel may also avoid masking by participating remotely as desired. The court will issue a further order at a later time regarding the rules for remote testimony. The jury will deliberate together in a separate space that allows sufficient social distancing."

Hugo said he was ready to try the case, and prepared all weekend working not just on his legal defenses, but for practical matters on how to best examine witnesses amid social distancing protocols. As lead trial counsel for Fryer-Knowles, Hugo said he likely would have had to appear virtually.

"I completely rearranged my home office, put a big video monitor on the wall easel to draw on, and tried to brainstorm how I can be live-streamed into the courtroom to present opening statements, rather than appear as a small talking head video in a small box on screen, which is what plaintiffs' counsel are doing," Hugo said.

Plaintiff Ronald Wilgenbusch's lawyer David L. Amell, partner at Maune Raichle Hartley French & Mudd LLC, responded Wednesday that trial was proceeding well, with two witnesses testifying remotely.

"The jury appear engaged and are listening to the evidence," Amell said. "While there has been the occasional delay due to the technology, there have been no significant irregularities such that any party can credibly claim substantial prejudice."

Amell opposed Hugo's motions for the last three weeks. His opposition papers argued that while there were a few unusual events that occurred during remote voir dire, the defense didn't demonstrate those events subjected Fryer-Knowles to prejudice or irreparably damaged the company's chances at a fair trial.

Amell confirmed that a settlement has been reached with Fryer-Knowles, and said, "nevertheless, we strongly contest the claims made in that motion, as you can see from our opposition."

Last Thursday, Hugo's partner Tina M. Glezakos, who conducted virtual voir dire, said the process was riddled with problems, and that jurors appeared inattentive, with some leaving the room, appearing to be asleep, exercising or distracted with other devices. Amell said he saw only minor, inconsequential problems and that jurors were paying attention and took their duties seriously.