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Law360 (August 27, 2020, 8:45 PM EDT) -- A California judge told jurors Thursday they must deliberate remotely in a Zoom "breakout room" after an online asbestos trial against Honeywell wraps next week, saying the logistics of in-person deliberations would be too challenging with jurors "shouting at each other" from a distance wearing masks.
After the parties finished presenting evidence, Alameda Superior Court Judge Jo-Lynne Lee told the jury she has decided to require jurors to deliberate remotely after speaking with courthouse personnel "higher up than I am" about the availability of courtrooms for in-person deliberations.
The judge explained that space is limited in the courthouse, and even the logistics of sitting inside the courtrooms would be challenging due to concerns about spreading the coronavirus.
"One of the reasons I decided not to have you come into court is because you would have to ... sit spaced out with masks," the judge said. "You would have had to kind of be shouting at each other, which I think would be difficult."
Judge Lee said she'll have the jury deliberate in their own Zoom breakout room, and they will have a verdict form and exhibits. After they reach a verdict, they'll fill out the form and someone will take a picture on their phone, convert it to a PDF document and email it to her, which she said is technology she didn't know existed until someone told her recently.
The judge noted alternates will be waiting with a telephone "on standby," while emphasizing the jury can only deliberate when all 12 jurors are together without anyone else listening in on their conversations.
"When you deliberate, it is really important wherever you are physically that there is nobody else that is hearing happenings in deliberations," the judge said. "Nobody else can be in the jury room."
Technical issues have been a prominent feature of the jury trial over former custodian Ricardo Ocampo's claims against Honeywell. Ocampo, who worked at various auto dealerships and manufacturing businesses, alleges he was exposed to asbestos contained in Bendix Corp. brake linings, a brand Honeywell bears liability for due to corporate succession.
The trial has been proceeding remotely due to the coronavirus pandemic since July 27, but two days in, Honeywell filed a "notice of irregularities" expressing concerns over technical difficulties and the "attentiveness of jurors," who Honeywell complained were walking around while the court was issuing jury instructions and "very clearly working" during trial, among other things.
Earlier this week, Judge Lee repeatedly asked the jurors to "pay attention, please," and the trial was delayed for more than an hour after the judge couldn't hear counsel in Zoom breakout rooms. Although the trial is being conducted over Zoom, only the audio is being streamed live to the public on the court's website.
On Thursday, the parties spent the day examining the last witness to testify in the trial, Dr. Richard S. Attanoos, who is Honeywell's hired pathologist.
On direct examination, Dr. Attanoos testified that if Ocampo was exposed to brake dust, it did not cause his mesothelioma, and that instead his cancer "arose through naturally occurring genetic mechanisms unrelated to any natural exposures he had."
To support his opinion, the doctor pointed to the cancer history of Ocampo's parents, who had breast and lung cancers, as well as Ocamp's age as purported evidence of his genetic disposition to developing mesothelioma.
But on cross-examination, Ocampo's counsel got the doctor to concede he doesn't have the details of the health history of Ocampo's parents and that the plaintiff's father was a smoker, which could have contributed to his lung cancer.
The trial is expected to resume Monday, with the parties presenting their closing arguments.
Ocampo is represented by Joshua S. Paul, Peter C. Beirne and Nectaria Belantis of the Paul Law Firm.
Honeywell is represented by David R. Ongaro, Kirsten McNelly Bibbes and Nilufar Majd of Ongaro PC and Ricky Raven of Reed Smith LLP.
The case is Ricardo Ocampo et al. v. Honeywell International Inc., case number RG19041182, in the Superior Court of the State of California, County of Alameda.
--Additional reporting by Daniel Siegal. Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
