SAN FRANCISCO, California – The First District Court of Appeals has agreed that a Navy veteran who had brought suit against Foster Wheeler, LLC is entitled to a new trial because a juror relied on his own experiences in explaining to fellow jurors why he did not believe that the plaintiff was exposed to asbestos on board the USS Kitty Hawk in the 1960s.

San Francisco Superior Court Judge Mary Wiss awarded the new trial to Paul Whitlock after a 2006 trial in which one of the jurors, a fellow Navy veteran, used his own experience aboard naval ships in a persuasive arguments during jury deliberations. Wiss stated that the juror’s arguments spoke to a critical issue in the trial – whether the plaintiff had been exposed to asbestos-containing materials manufactured by the defendant, Foster Wheeler.

Whitlock served on board the Kitty Hawk during three separate periods between 1965 and 1967. His suit contends that as a result of exposure to asbestos in the Kitty Hawk’s boilers, he developed terminal mesothelioma. Whitlock was diagnosed in 2005 with the rare cancer that is only caused by asbestos exposure.

Foster Wheeler did not dispute the diagnosis, but the company denied that Whitlock was exposed to Foster Wheeler asbestos in the boilers. They said that it had all been removed by the time Whitlock came on board.

Judgment for Defendants
At the original trial in 2006, the jury found after three days of deliberation that Whitlock was not exposed to asbestos containing materials distributed by Foster Wheeler by a 9-3 vote and judgment was entered for the defendant.

Whitlock’s lawyers moved for a new trial fifteen days later, presenting statements from three of the trial jurors. Each of the three stated that one of the jurors, who was referred to as Mr. W., told them that based on his own experience in the Navy, he believed that all of the original block insulation in the boilers would have been removed by the time Whitlock came on board the ship.

According to Wiss’ decision, the juror’s comments went to a critical issue at the trial. The statements made by the juror “constituted external information in the form of a juror’s own claim to expertise or specialized knowledge for which there was no evidence”. Wiss said that it qualified as juror misconduct. She also noted that the jurors had been given standard instruction which include an instruction not to treat external information as evidence unless instructed to do so, and to determine the case based solely on the evidence, and not to use or consider any special training or unique personal experience because those things are not part of the evidence of the case.

Alameda Superior Court Judge Jeffrey W. Horner reviewed Wiss’ decision as a matter of course. When a new trial is granted, the ruling is reviewed for abuse of discretion. Horner said that there was no abuse of discretion. The comments made by the juror were in blatant violation of the instruction, and were prejudicial because they reflected directly on a central issue in the case.

This entry was posted on Wednesday, February 27th, 2008 at 10:19 am and is filed under Asbestos Exposure, California. You can follow any responses to this entry through the RSS feed. Responses are currently closed, but you trackback from your own site.