By Daniel Siegal

Law360 (August 18, 2020, 11:16 PM EDT ) Taking a pair of asbestos trials online in California state court has led to jurors working during opening statements and improperly making nice with a plaintiff, according to Honeywell and another company on trial over claims they respectively caused a former custodian's and Navy admiral's mesothelioma.

Defendant Metalclad Insulation LLC has filed multiple motions for a mistrial in the case brought by retired Rear Adm. Ronald Wilgenbusch, first in late July when Alameda County Superior Court Judge Brad Seligman moved the trial — which had been proceeding in person — onto Zoom after one of the jurors came down with a fever.

Metalclad argued two days after that move that Judge Seligman's plan to excuse that juror and shift to a remote trial midstream was "unfair and untenable," but the judge disagreed, denying the motion and proceeding with trying the case via the videoconference platform.

Last week Metalclad again moved for a mistrial, arguing that while the parties' attorneys and the judge were in a Zoom "breakout room," Wilgenbusch got into a friendly discussion with two jurors after noticing one had a virtual background of a courtroom setup.

Because the trial video is not being recorded, Metalclad said it assigned a paralegal to observe the jurors throughout, and this paralegal reported seeing the two jurors talk Wilgenbusch through the process of adding the custom background on Zoom, drawing "oohs" and "ahhhs" from other jurors when displaying a background of the Golden Gate Bridge.

Citing quotes from the best-selling self-help book "How to Win Friends and Influence People," Metalclad argued that by asking for and receiving help from the two jurors, Wilgenbusch "intentionally and subtly created juror empathy," thus incurably biasing those jurors in his favor.

On Monday, Metalclad also filed a motion urging Judge Seligman to reverse his position that the trial can't be recorded. Metalclad argued that a full recording needs to be kept to preserve a record of incidents like Wilgenbusch's conversation, adding that just making it known that the proceedings are being recorded would likely help keep things on track.

Both of these motions are still pending, according to the court docket, and the trial was continuing with witness testimony as of Tuesday afternoon.

Wilgenbusch alleges that he was exposed to asbestos during the installation and removal of Metalclad-supplied insulation on several Navy ships.

Meanwhile, the case brought by former custodian Ricardo Ocampo against Honeywell has been proceeding remotely since the trial started on July 27, but Honeywell filed a "notice of irregularities" about the proceedings two days later.

Honeywell told Alameda County Superior Court Judge Jo-Lynne Q. Lee that it was concerned about both jurors not paying attention during the remote proceedings and its own inability to fully participate in the trial due to the spottiness of the court's live audio feed.

Honeywell said it saw jurors walking around while the court was issuing jury instruction. The company also said it saw one juror working and emailing from another computer during opening statements and two other jurors looking at other screens.

On the second day of trial, three jurors "were very clearly working during the proceedings" and an alternate juror was lying in bed, according to Honeywell.

Honeywell also said the court's audio feed cut in and out for several minutes during the first days of trial and has continued to be unreliable.

Audio mishaps have been a theme in the case. Before it was assigned to Judge Lee, the case was presided over by Alameda County Superior Court Judge Frank Roesch, who accidentally left his microphone on after the day's proceedings' concluded on July 16.

Without realizing he was broadcasting to the attorneys, Judge Roesch had a conversation with his clerk about his own asbestos exposures, saying he had changed the brakes on his cars and did home repairs that "probably exposed [him] to asbestos" before he was aware of its hazards. The admission came in an order he filed last week in another asbestos case.

"I also said that I do not know whether I have been unfortunate enough to be exposed to, 'that one particular iota that does the thing that becomes mesothelioma,'" Judge Roesch wrote.

After being informed by counsel that they had heard his conversation, Judge Roesch recused himself from the Honeywell matter.

Ocampo, who worked at various auto dealerships and manufacturing businesses, alleges he was exposed to asbestos contained in Bendix brake linings, a brand Honeywell bears liability for due to corporate succession.

Attorneys for the parties did not immediately respond to requests for comment on Tuesday.

Wilgenbusch is represented by Sarah Gilson and William F. Ruiz of Maune Raichle Hartley French & Mudd LLC.

Metalclad is represented by Lisa L. Oberg, Sheila G. O'Gara, Michelle C. Jackson, Michael E. Sandgren and Samuel D. Jubelirer of Dentons.

Honeywell is represented by David R. Ongaro, Kirsten McNelly Bibbes and Nilufar Majd of Ongaro PC.

The cases are Ronald C. Wilgenbusch et al. v. Metalclad Insulation LLC, case number RG19029791, and Ricardo Ocampo et al. v. Honeywell International Inc., case number RG19041182, in the Superior Court of the State of California, County of Alameda.

--Editing by Haylee Pearl.

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