Verdict reached in asbestos trial plagued by problems

The second asbestos trial held entirely by videoconference to reach a verdict appeared to leave both sides satisfied despite multiple mistrial motions along the way.

After more than a week of deliberations, an Alameda County Superior Court jury found an insulation company liable for a retired U.S. Navy rear admiral's mesothelioma late Monday, awarding Ronald W. Wilgenbusch and his wife Judith $2.545 million in economic and noneconomic damages.

But the jury also found defendant Metalclad Insulation LLC just 7% responsible for Wilgenbusch's illness and rejected punitive damages. The plaintiff was held 4% responsible.

Further, Metalclad will likely avoid paying most of the award because the company can offset the amount by subtracting settlements reached with other companies, attorneys said.

The U.S. Navy was held 51% responsible for Wilgenbusch's illness by the jury but was not a defendant in the case.

Mark A. Behrens, co-chair of Shook, Hardy & Bacon LLP's public policy practice group who was not involved in the case, commented that the net judgment against Metalclad is likely to be less than $500,000 once the company's 7% share and credits are applied.

The trial's conclusion followed several mistrial motions by Metalclad and by a second defendant, Fryer-Knowles Inc., over allegations the trial should be dropped due to a wide range of problems stemming from it being conducted via Zoom.

The plaintiffs' attorney, David L. Amell, a partner with Maune, Raichle, Hartley, French & Mudd, hailed the outcome and said in a statement Tuesday the trial was handled well.

"While the procedure was unusual, we don't believe that anything about the remote trial unfairly impacted the due process rights of the litigants," Amell said. "The fact that the deliberations took five days demonstrates how seriously the jury took its oath to consider the evidence and arrive at a verdict."

"Unfortunately, plaintiffs who have been injured by asbestos exposure do not have the luxury of waiting for in person trials to resume," he added. "Admiral Wilgenbusch has terminal cancer and but for the Alameda court's willingness to utilize its power to adopt remote trial procedures, it is unlikely he would have seen his day in court."

Attorneys for Metalclad Insulation -- led by Dentons US LLP and Berkeley sole practitioner Sheila G. O'Gara -- did not return messages seeking comment.

During closing arguments Sept. 17, the plaintiffs' attorney, William F. Ruiz of Maune Raichle, argued Metalclad knew asbestos caused cancer in 1968 but kept selling insulation products with it until 1974. Wilgenbusch opened boxes at Navy shipyards without getting any warnings he should wear protective gear, he said.

O'Gara questioned whether Wilgenbusch even had mesothelioma, suggesting he may have prostate cancer instead and citing his other medical problems. She also sharply questioned his credibility. Wilgenbusch v. American Bilrite Inc. et al., RG19029791 (Alameda Co. Sup. Ct., filed Aug. 2, 2019).

During the trial, attorneys for Metalclad sought a mistrial multiple times, most recently because Wilgenbusch chatted with jurors and showed them photographs of a vacation to Spain while Superior Court Judge Brad Seligman was conferring with attorneys in a Zoom "breakout room."

"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," Dentons attorney Jules S. Zeman wrote in a brief to the 1st District Court of Appeal.

Previously, Metalclad's lawyers objected to holding the trial over Zoom in the first place after a juror developed COVID-19 symptoms, then said they could not see jurors either in court or on the teleconference while introducing evidence.

Seligman rejected the mistrial motions and Metalclad's appeals were unsuccessful.

A co-defendant in the case, Fryer-Knowles Inc., settled shortly before opening statements started in July after the company's lawyer, Edward R. Hugo of Hugo Parker LLP, also unsuccessfully sought a mistrial.

Another Alameda County jury reached a defense verdict Sept. 3 for Honeywell International Inc. in a lawsuit filed by a former custodian who claimed his mesothelioma was caused by exposure to the mineral in brake pads in auto dealerships where he worked. Ocampo et al. v. Honeywell International Inc. et al., RG19041182 (Alameda Co. Sup. Ct., filed Oct. 29, 2019).

Despite their many complaints, defense attorneys got favorable results at both trials for their clients. And Wilgenbusch's attorney was satisfied with Monday's outcome.

"This trial demonstrates that remote trials are not only possible, they are necessary for injured and sick plaintiffs to obtain a measure of justice," Amell said.