Calif. Jury Told No Pets In Zoom Asbestos Trial Deliberations

By Dorothy Atkins
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Law360 (September 1, 2020, 6:56 PM EDT) -- A California judge sent a jury into a Zoom "breakout room" on Tuesday to begin deliberations in an asbestos trial against Honeywell and other defendants, but warned jurors that they must be alone as they deliberate remotely and "cannot be engaged in any other tasks, including caring for your pets."

After closing arguments, Alameda Superior Court Judge Jo-Lynne Lee read instructions to the jury regarding deliberating remotely through the Zoom videoconferencing platform and advised them that "generally, you must conduct yourself as if you're in court."

The judge said a single juror cannot be excused "even momentarily to do any other work or activity while jurors are deliberating," and that no other person may be in the room that each juror is deliberating in "because you can't have anyone listening in on discussions." She added that caring for pets during deliberations is also prohibited.

"No dogs or cats," she said.

The judge gave the special instructions at the close of a jury trial that has been proceeding remotely since July 27 due to the coronavirus pandemic.

Ricardo Ocampo alleges that he was exposed to asbestos contained in brake linings sold by Bendix Corp. — a brand for which Honeywell bears liability because of corporate succession — while working as a janitor at auto dealerships and manufacturing businesses in the 1990s.

The remote trial has faced technical problems that have delayed witness testimony and prompted Honeywell to file a "notice of irregularities." The notice expressed concerns over the technical mishaps and the "attentiveness of jurors," who Honeywell complained were walking around while the court was issuing jury instructions and "very clearly working" during the trial, among other things.

Although the trial is being conducted through Zoom, only the audio is being streamed live to the public on the court's website.

Before the jury retired to deliberate on Tuesday, Peter C. Beirne of the Paul Law Firm gave rebuttal arguments on behalf of Ocampo, who is seeking $60 million for past and future expenses, and Ocampo's wife, who is seeking $10 million for loss of consortium.

In arguing that Honeywell should be held liable for exposing Ocampo to asbestos, the couple's counsel recalled the words of Maya Angelou, saying, "When someone shows you who they are, believe them the first time."

The attorney said that's what E. A. Martin, director of purchases at Bendix's Troy, New York, facility, did when he wrote a memo in 1966 to Bendix's asbestos supplier that said, "If you have enjoyed a good life while working with asbestos why not die from it?"

Beirne told the jury that Ocampo didn't even make a good living as a janitor working with asbestos, and that he was exposed to asbestos products without even knowing it, which will likely cost him his life.

Beirne also argued that Honeywell has been "trying to change the facts" by conducting new asbestos studies on the brakes in the early 2000s after the company stopped selling those brakes, in order to "change the complexion of these [asbestos] cases."

"They're trying to change what occurred, trying to fund studies after they're not even selling the products anymore. ... This is all trying to put doubt in your mind," Beirne said.

The attorney repeatedly emphasized the preponderance of evidence standard that his clients need to meet to win their claims, and argued that "it's more likely true than not" that exposure to asbestos in the brakes contributed to Ocampo's mesothelioma.

He added that Honeywell's suggestion that a large dealership somehow didn't use asbestos brakes, even though those brakes made up 90% of the market at the time, "is beyond common sense." The attorney also criticized the company's argument against the qualifications of the Ocampos' experts.

"It's not a numbers game," Beirne said. "If it was, those who brought in more witnesses would win."

After the rebuttal arguments, the jury retired to deliberate via Zoom. Before they went into deliberations, Judge Lee pointed out that jurors won't be able to get out of the Zoom jury breakout room by themselves, so they will have to notify the court via email if a juror loses connection and drops off, which she said could stall deliberations.

When they reach a verdict, the judge said the jury foreperson must fill out the verdict form and take a picture of it with their phone and then use an app to convert the image to a PDF document and email it to the judge.

The Ocampos are 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 Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.

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