By Michelle Casady

Law360 (June 10, 2021, 8:23 PM EDT ) Jury selection in a Houston trial devolved into a virtual voir dire circus that shows judges shouldn't be forcing parties into remote trials, a fuel company fighting for an in-person jury trial in an unrelated $100 million personal injury lawsuit told the Texas Supreme Court on Thursday.

Prospective jurors for an asbestos trial were seen sleeping, driving cars, disappearing off camera, applying makeup, playing video games while wearing a gaming headset, preparing and eating meals, watching TV, playing with pets, lying in bed and on a couch, drinking alcohol and vaping during questioning, attorneys for Allied Aviation Fueling Co. of Houston told the court. Allied is asking the high court to block the same judge who is presiding over the asbestos trial from forcing it into a virtual trial. 

Allied's lawyers observed the June 9 jury selection through Zoom video made available by the court. They told the court what they saw "has thus far looked nothing like the serious, substantive endeavor expected of jury trials in which significant property interests are at stake."

According to an affidavit filed with Allied's response, Harris County District Judge Dedra Davis at one point noticed a potential juror applying false eyelashes and allegedly told the woman, "A girl's gotta do what a girl's gotta do."

Judge Davis began the asbestos trial proceedings after the Texas Supreme Court on Tuesday stopped her from requiring Allied to remotely try a $100 million personal injury case brought by a pedestrian who says he was injured by an Allied driver. The high court is considering whether to allow Allied to demand an in-person trial. 

A message left with Judge Davis' staff requesting an interview with the jurist Thursday wasn't returned.

Rusty Hardin of Rusty Hardin & Associates LLP, who represents Allied and its driver Reginald Willis, told Law360 on Thursday that the jury selection conduct "is an insult to the entire civil justice system."

"When a juror is sound asleep, or driving around town when being questioned, when they're drinking wine in a restaurant … this is wrong, what's going on here," he said. "And it's not the system we signed up for."

In the petition for writ of mandamus Allied filed with the state's high court on Monday, the company said it was "ready-willing and able" to proceed with a jury trial as long as it was in person. Allied argued that forcing the company into a remote trial was a "unilateral, arbitrary and unauthorized decision." Allied argued the Texas Supreme Court's 38th emergency order, issued during the coronavirus pandemic, doesn't authorize a jury trial to be conducted entirely remotely without the consent of all parties.

On Tuesday, after the Texas Supreme Court granted Allied's request for a stay, an attorney for plaintiff Ulysses Cruz, Randy Sorrels of Sorrels Law, told Law360 he wasn't opposed to an in-person jury trial and would ask Allied to agree to modify the order to allow an in-person trial to proceed. He said that would moot the mandamus petition.

But on Thursday, Allied told the court that even if Judge Davis is willing to allow an in-person jury trial without being ordered to do so by the Texas Supreme Court, "that alone will not answer (let alone moot) all of the important issues relators raise in their mandamus petition."

"Nor will it provide the trial court (and the parties in this and other cases) with the clear guidance necessary on what it means to have a 'trial by jury' in today's post-COVID world," Allied told the court.

Sorrels told Law360 on Thursday that Allied's response has raised interesting questions before the Texas Supreme Court, "but that's not what the mandamus is about. The court doesn't give advisory opinions."

He said the alleged voir dire conduct witnessed by attorneys for Allied and Willis doesn't raise concerns for him about proceeding with virtual voir dire.

"It's been successful before, so assuming there were hiccups in this one, does that mean you scrap the whole thing? I don't think so," he said. "My take on it is that now the defendants' motives have become clear. They want to avoid any type of trial…. We just want to get to trial. Any trial."

In May, the First Court of Appeals in Houston conditionally granted a petition for writ of mandamus in which Allied and Willis asked the panel to force Judge Davis to vacate her rulings denying their request for a jury trial. After that, and over objections from Allied and Willis, Judge Davis set the case for a virtual jury trial.

Cruz filed his lawsuit in November 2019 after he was struck by a van driven by Willis, and owned by Allied, at Houston's Bush Intercontinental Airport. Sorrels said the incident left his client, who was 48 at the time, a paraplegic.

Harris County District Court Administrator Clay Bowman told Law360 on Thursday that two Harris County district judges have held voir dire remotely via Zoom, which he said is permitted under the Texas Supreme Court's 38th emergency order.

Willis and Allied are represented by Rusty Hardin, Joe Roden, Ryan Higgins and Daniel Dutko of Rusty Hardin & Associates LLP and Stuart B. Brown Jr., Brett Kutnick, Justin V. Lee and Joseph A. Fischer III of Jackson Walker LLP.

Cruz is represented by Randall O. Sorrels and Alexandra Farias-Sorrels of Sorrels Law.

The case is In re Reginald Willis and Allied Aviation Fueling Company of Houston Inc., case number 21-0472, in the Texas Supreme Court.

--Editing by Jill Coffey.

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