By Bill Wichert

Law360 (June 26, 2020, 6:49 PM EDT) -- A New Jersey state judge on Friday said American International Industries had failed to show "good cause" why it should be allowed to interview former jurors who heard claims that asbestos in its Clubman talcum powder caused cancer before the COVID-19 pandemic ultimately led to a mistrial in the case.

During a telephone hearing, Superior Court Judge Ana C. Viscomi denied AII's motion to permit its attorneys and counsel for plaintiffs Margaret Lashley and Dwayne Johnson to interview the former jurors, rejecting the company's argument that such inquiries would provide valuable insight about the previous trial and likely lead to a more efficient retrial.

The judge relied on the New Jersey Supreme Court's 2014 opinion in Davis v. Husain , in which the justices barred "ex parte post-verdict communications between a trial judge and jurors."

That ruling shows "the hallmark of the protection of the jurors at all costs," Judge Viscomi said during the hearing.

"Although the case here did not go to verdict, the principles are still the same and, regardless, AII has not demonstrated good cause in proceeding forward," the judge added.

That "good cause" requirement derives from state court rule 1:16-1, which states: "Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney, interview, examine, or question any grand or petit juror with respect to any matter relating to the case."

The trial in the consolidated action kicked off March 5 over allegations that Lashley, a former hairdresser, and Johnson, a longtime barbershop patron, developed mesothelioma from Clubman brand talc.

AII purchased the Clubman brand in 1987 and should have known about the risk that there could possibly be asbestos in the product and the hazard this would pose to consumers, plaintiffs' attorney Joseph Mandia of Simon Greenstone Panatier told jurors that day in his opening statement.

AII no longer makes and sells Clubman talcum powder, having switched to selling a Clubman brand of cornstarch powder in 2017, according to Mandia and an attorney for AII.

AII attorney Robert Thackston of Lathrop GPM countered in his opening statement by saying that not only did Clubman's talc not contain asbestos, but neither of the plaintiffs actually has a disease caused by asbestos.

The trial went on for four more days before it was suspended due to the COVID-19 pandemic, court documents state. At the time, the plaintiffs were still presenting their case and AII had not had its turn yet, court documents state.

Two of the jurors were later excused after saying "it would be a hardship for them to complete the trial," according to a May 4 order from Judge Viscomi declaring a mistrial. When the parties refused to "proceed with the trial with only 5 jurors remaining to deliberate," the judge declared the mistrial, the order states.

A little over two weeks later, AII filed the current motion to interview the former jurors, arguing in a brief that information from them "could assist both parties with their trial presence, their introduction of evidence, and their presentation of expert testimony on re-trial."

"This rare circumstance — a civil mistrial due to no fault of either party before deliberations — justifies leave of court to allow the parties to gain valuable insight into their trial performance in an effort to make re-trial more effective and efficient," the brief said.

During Friday's hearing, Thackston echoed those points, saying it seems to be "the kind of civil case in which it would be particularly useful and instructive to talk to jurors" about "what made sense to them, what didn't make sense to them, what they would like to hear more of or less of because we are going to have to retry the case."

"It would be helpful to us all ... to know how they were viewing the evidence and what we can do better," Thackston later added.

But plaintiffs' attorney Robert E. Lytle of Szaferman Lakind Blumstein & Blader PC countered Friday that AII has failed to meet the "good cause" burden.

The company wants to interview former jurors to determine what they thought about witnesses and trial strategies, but "that doesn't amount to good cause," Lytle told Judge Viscomi.

"If it did, the protections for jurors provided by the rule would be eviscerated, because every attorney would want to speak to jurors after a trial in the event the case was reserved or really out of just curiosity," he added.

The plaintiffs are represented by Robert E. Lytle of Szaferman Lakind Blumstein & Blader PC and Joseph Mandia of Simon Greenstone Panatier.

AII is represented by Robert Thackston of Lathrop GPM and Roy Viola of Hawkins Parnell & Young LLP.

The cases are Lashley v. American International Industries Inc. et al., case number L-7336-16 (AS), and Johnson v. American International Industries Inc. et al., case number L-6651-16 (AS), in the Superior Court of New Jersey, County of Middlesex.

--Additional reporting by Daniel Siegal. Editing by Jack Karp.

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