Defense wins 1st asbestos trial verdict by Zoom

In the nation's first asbestos trial held entirely by videoconference to reach a verdict, attorneys for Honeywell International Inc. got a defense victory in a case filed by a former custodian who claimed he got mesothelioma due to exposure to the mineral in brake pads at auto dealerships where he worked.

The sweeping win came after a trial that featured a host of objections by defense counsel, who raised concerns about comments by the judge at a pretrial hearing that led to his recusal, a variety of technological glitches, a short delay due to wildfires, and allegations that jurors were not paying attention on their remote feeds.

Before deliberations started Tuesday, Alameda County Superior Court Judge Jo-Lynne Q. Lee warned jurors, who deliberated in a Zoom breakout room and had not spoken during the trial, not to allow anyone else in their room or engage in any other activities, "including caring for pets."

Ricardo Ocampo and his wife, Elvia, sued Honeywell after he got mesothelioma, which his attorney -- Peter C. Beirne of the Paul Law Firm -- attributed to exposure to asbestos contained in Bendix Corp. brake linings, a company Honeywell acquired, when he worked at various auto dealerships and other businesses. They sought $70 million in damages.

Honeywell's legal team -- led by David R. Ongaro, Kirsten McNelly Bibbes and Nilufar K. Majd of Ongaro PC -- challenged the connection between Ocampo's exposure to the Bendix brake linings and him getting cancer.

Ongaro referred a reporter's query to a Honeywell spokesman, who hailed the jury verdict. Ocampo et al. v. Honeywell International Inc. et al., RG19041182 (Alameda Co. Sup. Ct., filed Oct. 29, 2019).

"Mr. Ocampo's illness has and will have a profound impact on him and his family and we are, of course, sympathetic," company spokesman Scott Sayres said in a prepared statement.

"The overwhelming weight of the evidence established that Mr. Ocampo's disease was not caused by exposure to a Bendix product," he added. "We thank the members of the jury for their careful review of the facts and for rendering a verdict consistent with the evidence presented."

During the trial, however, the Ongaro lawyers were less complimentary of the jurors. They filed a "Notice of Irregularities" on July 29, two days after the trial started, citing a variety of technological glitches as well as assertions that several jurors were walking around, laying down, or -- in the case of one juror -- "working and emailing from another computer during the parties' opening statements."

Beirne did not return a message seeking comment.

Before the trial started, Honeywell raised objections over comments made by Alameda County Superior Court Judge Frank Roesch, who acknowledged making comments to his clerk on the court audio livestream after a July 16 hearing about his exposure to asbestos dust during the course of his life and the possibility he might get mesothelioma.

Roesch recused himself from the Honeywell case the following day but refused to do so in another asbestos case on Aug. 12. Lee took over the Honeywell case.

Another Alameda County asbestos case is ongoing. A retired rear admiral, Ronald C. Wilgenbusch, sued two defendants. One settled in July, while the trial continued Thursday against the remaining defendant, MetalClad Insulation LLC.

On Wednesday, attorneys for MetalClad filed a petition for a writ of mandate with the 1st District Court of Appeal challenging Alameda County Superior Court Judge Brad Seligman's ruling denying a mistrial after Wilgenbusch chatted the jurors while the judge and attorneys were conferring in a "breakout room" and showed them photographs.

"Admiral Wilgenbusch's deliberate and intentional communications directly with two jurors, in the presence of the entire jury, unquestionably is 'conduct which gives rise to an appearance of evil' which could and should be scrupulously avoided," wrote Dentons US LLP attorney Jules S. Zeman. MetalClad Insulation LLC v. Superior Court for the County of Alameda, A160845 (1st Dist. Court of Appeal, filed Sept. 2, 2020).

Mark A. Behrens, co-chair of the public policy practice group with Shook, Hardy & Bacon LLP and a veteran defense litigator, said companies defending asbestos claims in the Zoom trial era have been concerned jurors not paying close attention "might gloss over the details and decide by emotion."

At the same time, he said keeping jurors and a sick, sympathetic plaintiff and his wife out of the same room might place more of an emphasis on factual defenses, such as alternative causes of a disease, even if some jurors are not focusing on every detail.

"Maybe the emotional aspect might be diminished somewhat [if plaintiffs are only seen] through the video," Behrens said.