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Law360 (August 26, 2020, 6:07 PM EDT) -- A California state judge on Wednesday considered whether she'll require jurors to deliberate in person after an online asbestos jury trial against Honeywell wraps next week, telling jurors and counsel she's "trying to figure out what is the most reasonable way to proceed."
At the end of a day of testimony, Alameda Superior Court Judge Jo-Lynne Lee said she was still determining whether the jury would deliberate in person in a courtroom or remotely, noting that the issue is "sort of new for the court."
"Ultimately, no matter what the jury wants, no matter what counsel wants, it will be the court's determination," the judge said.
However, she asked jurors to let her know their preference. Judge Lee explained that if deliberations occur in person, jurors will likely be in their own courtroom all together, and still communicating with her remotely "to some level."
The judge said she and counsel will also be in the same room, but noted that the courthouse might not have enough space to accommodate them all. Alternatively, the judge said, if jurors deliberate remotely, they will have their own "jury breakout room" on Zoom. The judge did not elaborate on her reasoning for considering in-person deliberations.
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 later, Honeywell filed a "notice of irregularities" expressing concerns over the technical difficulties and the "attentiveness of jurors," who Honeywell complained were walking around while the court was issuing jury instruction 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 Wednesday, the parties spent the day examining Honeywell's expert, Dominik Alexander, a principal epidemiologist at consulting firm MetaMethod. Aside from the audio cutting out occasionally and one juror who lost connection very briefly, witness testimony went relatively smoothly.
On direct, Alexander explained that he conducted a "meta-analysis" of multiple epidemiological studies and determined that "it is clear that motor vehicle mechanics are not at an increased risk" of developing a certain type of mesothelioma. He added that he also concluded Ocampo's potential exposure after cleaning up mechanics did not increase his risk of mesothelioma.
Additionally, Alexander said he conducted a published study that concluded motor mechanics and those who are involved with brake repair are not at a statistically significant risk for mesothelioma.
Alexander also criticized one study that showed mechanics may be at a higher risk of mesothelioma. He said that study had "an overarching methodological bias at play," because when the researchers compared the study group to the general population, they removed workers who were exposed to a specific type of asbestos fibers.
But on cross, Ocampo's counsel, Peter C. Beirne of the Paul Law Firm, pointed out that certain studies Alexander reviewed only considered a person's occupation 10 years prior to the studies, and not whether they were a mechanic earlier.
The attorney also cast doubt on the reliability of meta-analyses and how the studies define a "mechanic." Beirne got Alexander to concede that not all mechanics perform work on car brakes and the studies don't specifically clarify how much work mechanics did on the brakes.
Ocampo's counsel noted that the "body does not take into consideration" a person's occupation in reacting to asbestos, but Alexander refused to concede the point, and said he wouldn't characterize it that way.
"I go with the epidemiology," he said.
Trial will resume Thursday morning.
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 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 Alanna Weissman.
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