California Asbestos Trials in the Age of COVID-19

By: IAN WILLIAMSON, San Diego

We continue to monitor how various courts in California are handling asbestos trials. The situation is unsurprisingly fluid.  Some courts have started trials and we are closely following those.

San Francisco assigned one case to a trial judge on June 26, 2020. Discussions of how that matter would proceed to trial were ongoing when the case resolved. Generally, remote jury selection was discussed. There were discussions about how to have the jurors in court – socially distanced and having virtually all witnesses appear remotely.

In Alameda County (Oakland), jury selection is ongoing in two cases. These are both living mesothelioma cases with preference trial dates. Both cases had been initially set for trial in March. Jury selection is being conducted remotely – with hardships and questionnaires done electronically and voir dire via Zoom. Both cases appear headed to a situation where the jurors are participating 100% remotely unless they do not have the technical ability to do so. It appears that all witnesses will appear remotely. Defendants have raised significant due process concerns, and in one case petitioned the Court of Appeal for a writ. The Court of Appeal denied the petition as premature, even while acknowledging that serious fairness issues were being raised.

The COVID-19 pandemic continues to disrupt trials as court implement safety procedures.

Los Angeles County does not have any jurors available yet, but has just started re-issuing jury summonses. It is anticipated that all of the first wave of jurors will go to criminal cases. There are several preference cases pending trial that are being continued on a rolling 15-day basis (per the preference statute) until a jury pool is available. The court has urged parties to waive a jury (neither side has agreed) or consider smaller jury panels. The court is setting new preference trial dates in the fall, but noting that those trial dates are “not realistic” and the cases will likely be continued until there are juries available.

Low priority cases – such as wrongful death cases and non-preference personal injury cases – are being continued into 2021 in all three venues. When and how the courts will catch up on those remains to be seen.

All three of California’s primary asbestos courts are utilizing the MSC process to try to facilitate resolution of cases. Los Angeles and Oakland are ordering remote MSCs. San Francisco required counsel to appear in person. None of these courts are requiring client or carrier representatives to travel to appear in person.

Courts with very few cases (Fresno, Sacramento, Solano, etc.) do not seem to be treating asbestos cases any different than any other cases–meaning we do not anticipate trials before 2021.

Federal courts generally remain in operation but jury trials seem to be limited to criminal cases only. We are not aware of any Federal asbestos cases being called to start jury trials since the pandemic shut court operations down.

Visit the Gordon & Rees COVID-19 Hub for ongoing updates.

Illinois Slashes Jury Size from 12 to 6 Effective June 1

In December 2014, in the final moments of the lame-duck session, Governor Pat Quinn (D) signed a bill into law reducing Illinois’s jury size from 12 to 6 and increasing juror pay. The law is effective June 1, 2015. The bill was passed without bipartisan support just as recently elected Governor Bruce Rauner (R) was set to take office. Governor Rauner is targeting the law for repeal, but this is likely a futile effort without the support of the Democrat-controlled Illinois General Assembly.

Previously, parties in a civil case were entitled to demand a 12-person jury. For cases filed before June 1, 2015, the parties are still entitled to a 12-person jury if demanded and paid for.

The law was passed under the guise of increasing juror pay. Jurors will now receive $25 for the first day of service, and $50 for each additional day. Presently, jurors in Cook County receive $17.20 per day, while jurors in some other Illinois counties receive the statutory minimum of between $4 and $10 per day. Supporters of the law maintain that reducing the jury size from 12 to 6 was a necessary corollary to offset the pay increase.

The measure is largely viewed as favorable to plaintiffs and unfavorable to defendants, as underscored by the fact that the bill was lobbied by the Illinois Trial Lawyers Association (plaintiffs’ bar) and generally opposed by the Illinois Association for Defense Trial Counsel. The defense bar contends that it is easier for plaintiffs to convince 6 jurors than it is to convince 12, which they must do as plaintiffs have the burden of proof. Stated differently, it is easier for the defense to convince 1 in 12 to hold out than it is to convince 1 in 6 to hold out. This is important as Illinois requires unanimous jury verdicts. The plaintiffs’ bar makes the counterargument that—on the flip side—where the defense has a strong case, it is less likely that a 6-person jury will have a holdout for the plaintiff than a 12-person jury. In other words, the plaintiffs’ bar maintains that the law is neutral on its face, and whichever side has the better case will win irrespective of jury size.

Proponents of the law point to additional advantages, including higher pay, shorter voir dire, reduced litigation costs, and fewer citizens being called to jury duty. Supporters claim that being called upon less often and being compensated better will make jurors more willing to serve. Proponents state that the increased pay is paramount, because—although Illinois has a law requiring employers to permit employees time off for jury service—Illinois does not have a law requiring employers to pay employees for their time spent serving on a jury.

Opponents are unwavering in their belief that the law was passed with the primary intent of decreasing the jury size, and that increasing juror pay was mere pretext. Indeed, perhaps many would have been in favor of increasing juror pay, so long as it was “paid for” with other government cuts.

Opponents cite to additional drawbacks. First, they contend that 12-person juries are more diverse, which means they more accurately reflect the views of the broader community. Second, 12-person juries have a better collective memory of the testimony and other evidence, thereby decreasing the likelihood that pure emotion and passion will infiltrate jury deliberations. Third, critics claim that dominant personalities can more easily sway 6-person juries than 12-person juries. Fourth, opponents suggest that there is less debate with 6-person juries, which are more likely to reach a consensus quickly.

Interestingly, this law becomes effective on the same day as a separate measure that excludes asbestos-related personal injury claims from the ten-year construction statute of repose. We previously blogged about this measure here. Both bills were heavily backed by Democrats and the trial lawyers who support them. Both bills were also signed into law by former Governor Quinn in the waning days of his gubernatorial term.