Metropolitan News-Enterprise


Tuesday, February 19, 2008


Page 1


Court: Juror Misconduct Supports Order for New Trial in Asbestos Case




An order granting a new trial to a Navy veteran, because a fellow veteran relied on his personal experiences in explaining to fellow jurors why he believed the plaintiff was not exposed to asbestos aboard the USS Kitty Hawk in the 1960s, was affirmed Friday by the First District Court of Appeal.

Div. One ruled that San Francisco Superior Court Judge Mary Wiss acted within her discretion when she awarded a new trial to Paul Whitlock. Whitlock, who served on the guided-missile attack aircraft carrier during three separate periods between 1965 and 1967, contends that his terminal mesothelioma is a result of his exposure to asbestos in the Kitty Hawk’s boilers.

The defendant, Foster Wheeler LLC, did not dispute that Whitlock had the disease, with which he was diagnosed in 2005, or that the condition is almost always caused by exposure to asbestos. But it denied that he was exposed to any of the original Foster Wheeler asbestos in the boilers, saying it had all been removed before Whitlock came aboard.

Judgment for Defendants

The case came to trial in late 2006. After 16 days of testimony and three days of deliberation, the jury found by a vote of 9-3 that Whitlock was not “exposed to asbestos-containing insulating block and/or asbestos-containing gaskets sold or distributed by Foster Wheeler,” and judgment was entered for the defendants.

Fifteen days later, the plaintiffs moved for a new trial. They presented three declarations by jurors who said that one of their colleagues, referred to in the opinion as Mr. W., told them that his own experience in the Navy led him to believe that all of the original block insulation would have been replaced during previous repairs prior to Whitlock coming aboard the ship.

In granting the motion for a new trial, Wiss noted that the juror’s comments went to a critical issue at the trial, and that the jury took three days to reach a split decision as to whether Whitlock was exposed to Foster Wheeler asbestos. Those statements “constituted external information in the form of a juror’s own claim to expertise or specialized knowledge for which there was no evidence,” and thus qualified as juror misconduct, the judge said.

Wiss also noted that jurors had been given standard instructions not to treat external information as evidence unless so instructed, to determine the facts based solely on the evidence, and not to “use or consider any special training or unique personal experience” because such “training or experience is not a part of the evidence received in this case.”

Independent Standard of Review

Alameda Superior Court Judge Jeffrey W. Horner, sitting on assignment in the Court of Appeal, explained that where the trial judge grants a motion for new trial and supplies an adequate statement of reasons, the ruling is reviewed for abuse of discretion. Only when the motion is denied—the denial being reviewable only on appeal from the  final judgment—or when the trial judge does not give an adequate statement of reasons for granting a new trial is an independent standard of review applied, the jurist said.

There was no abuse of discretion, Horner said. The juror’s comments “were in blatant violation of” the instruction not to inject personal training or experience into the deliberations, and were prejudicial because they “bore directly on the hotly contested issue of whether Whitlock was exposed to Foster Wheeler’s asbestos aboard the Kitty Hawk and tended to buttress Foster Wheeler’s position that Whitlock was not exposed to its asbestos.”

The misconduct certainly influenced Mr. W’s vote for the defendant on the exposure issue and might well have influenced enough of the other jurors to have altered the outcome, Horner said.

The case is Whitlock v. Wheeler, A117221.


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