Wilgenbusch et al. v. American Biltrite Inc. et al.

Product liability, Asbestos exposure

Alameda County

Superior Court Judge Brad S. Seligman

$2.545 million

David Amell

Plaintiff's Lawyers: Maune Raichle Hartley French & Mudd LLC, David L. Amell, William F. Ruiz, Sarah F. Gilson, Marissa Y. Uchimura

Defense Lawyers: Dentons US LLP, Lisa L. Oberg, Sheila G. O'Gara, Michelle C. Jackson, Michael E. Sandgren, Samuel D. Jubelirer; Sheila G. O'Gara, Berkeley

In one of the first state trials to take place over Zoom, a retired U.S. Navy rear admiral who claimed his illness was caused by asbestos exposure won a jury verdict from an Alameda County Superior Court jury.

The case was brought on behalf of the plaintiff, and his wife Judith, by attorneys David L. Amell and William F. Ruiz of Maune Raichle Hartley French & Mudd LLC against multiple defendants seeking damages for his exposure to asbestos insulation during his service in the Navy.

Superior Court Judge Brad S. Seligman faced a host of legal and logistical challenges created by the COVID-19 pandemic.

Defense attorneys filed various motions arguing voir dire could not be done with jurors wearing masks or remotely via Zoom. The judge denied both requests. Wilgenbusch et al. v. American Biltrite, RG19029791 (Alameda County Sup. Ct, filed Aug. 2, 2019).

"We had a case of a client who was very sick and whose effort to gain some sort of justice was running up against the clock," Amell said.

"It was different, but not materially different than voir dire in person," Ruiz said. "There were certainly people that were not paying attention. We actually saw one juror on an exercise bike -- they were not in the box and were never actually called into the box -- but I equate that to the juror sitting in the back of the courtroom reading a book in a live trial."

William Ruiz

The defense's main argument was that the plaintiff was not exposed to any insulation supplied by Metalclad at any time and that medical evidence suggested the plaintiff did not have mesothelioma at all.

Dentons US LLP attorney Lisa L. Oberg and Berkeley lawyer Sheila G. O'Gara led the defense team, which filed a mistrial motion after Wilgenbusch spoke with members of the jury while Seligman and all counsel were in a breakout room during the trial's virtual cross examination.

"The prejudice to Metalclad cannot be overstated, nor can it be cured by any kind of voir dire or admonition," defense lawyers argued in the motion. "Now that Admiral Wilgenbusch has endeared himself directly to two jurors, and potentially indirectly to the entire rest of the jury, there is no way for Metalclad to receive a fair trial."

Seligman rejected the mistrial motion.

After over a week of deliberations, the jury returned in September with a $2.545 million verdict and allocated 7% fault to Metalclad, 4% fault to Wilgenbusch, 51% fault to the Navy. The remainder of the fault was allocated to other defendants that already had settled.

The jury verdict allocated less than $500,000 to Metalclad, attorneys said.

Amell and Ruiz subsequently filed a motion requesting a greater allocation of fault on Metalclad based on the state's product liability law. Seligman agreed with the motion, increasing the damages.

Metalclad filed a notice of appeal in January.

Oberg and O'Gara declined requests for comment through a Dentons spokesperson.

-- Kamila Knaudt