Tom's Mesothelioma Lawsuit - The Jury

Posted on December 29, 2010 by Justinian

There's a common misconception that people have about "picking" or "selecting" juries.  In reality, you don't select a jury, you deselect a jury.  Here's an explanation of how the process works, and how we ended up with the jury we did in Tom's case.

Our jury needed to have 12 members, plus at least one alternate juror.  An alternate juror sits through the whole trial but only gets to deliberate if one other juror was sick or unable to attend the trial.  So we needed 13 jurors. 

The pool of jurors is called the venire, and we had 62 people in the venire.  About twenty minutes before the venire was called into the courtroom, we were given juror information slips.  They told us the juror's age, their educational level, their address, whether they were married, what their spouse did for a living, what they did for a living, and how many children they had. 

Once the venire was assembled, the judge asked the potential jurors some very standard questions, such as whether any of them knew the parties to the lawsuit or the lawyers, whether any of them had any felony convictions, whether they owned stock in the defendant company, and whether serving on the jury would pose an undue hardship on the jurors.  Once that was out of the way, the panel was turned over to the lawyers for questioning.

The process of lawyers questioning the potential jurors is called "voir dire."  Down in Texas, most lawyers pronounce it Vore Dyre.  In other parts of the country, it's "Vwah Deer."  Merriam-Webster pronounces it "Vwore deer."  However you say it, it means the same thing: lawyers asking questions of jurors.

Each side can strike jurors, which means to remove them from the potential juror pool.  Each side gets three strikes they can use for any reason other than race, and unlimited challenges for cause.  Challenges for cause are used if you have cause to believe the juror cannot follow the law, or has a bias that makes it impossible for him or her to be impartial.  For example, Union Carbide is owned by Dow.  13 jurors owned stock in Dow.  All of those jurors were struck for cause because if you own stock in a company, you're not likely to want to enter a verdict against it.

The plaintiff gets to go first.  The attorney who handled voir dire was a good friend of mine named Andy.  Because he's a good friend of mine, you're probably guessing that I don't have anything too critical to say of him.  You're right, but even if he was my worst enemy, there isn't much bad I could say.  Andy came across as personable, a little nervous, and very respectful.  (The jurors were always "Mr. Smith or Ms. Jones, not "Bill" or "Sally.") 

Andy asked open-ended questions like, "At the end of this trial, we're going to ask the jury to award a lot of money.  What does everybody here think about that?"  Or, "A lot of the people who made critical decisions in this case have been dead for a long time.  Will anybody have trouble holding a company accountable for decisions made years ago by people who aren't alive?"

Andy's questioning found out there were some great jurors on the panel.  My personal favorite was a gentleman who did asbestos abatement (removal) for a living.  He had been in just about every major petrochemical plant in the area to remove asbestos.  Andy asked him if he had been to the plant where Tom worked.  The juror said, "No, I would never step foot into a Union Carbide facility.  They're way too dangerous."  We obviously would have loved to have him as a juror.  But we don't get to select jurors - only deselect.  The other side deselected him.

Another juror said she couldn't award any money for the loss of a loved one because her husband had been killed by a drunk driver and she didn't get any money.  She was struck for cause, because she said she couldn't follow the law and award money if she found the company was responsible for Tom's mesothelioma.

And on it went for about two hours before the attorney for the other side got to speak.  I'll call him, "John."  John has been a lawyer for several decades and has picked hundreds of juries.  It showed in how smooth and fluid he was.  However, what was obvious to us was that John was trying to "bust the panel."  Busting the panel means disqualifying so many jurors that the trial has to be postponed.  To bust the panel, John asked a series of gently leading questions that nudged jurors into admitting that they'd be too biased to be fair, or that they were already pulling for one side, or any number of other reasons a juror can be struck for cause.

About an hour through John's voir dire, he realized he wouldn't be able to bust the panel.  Doing so would have meant he'd need to disqualify about 40 jurors.  That's tough to do.  So he eventually started doing a traditional voir dire, which revealed to us that there were some jurors we just couldn't let be on the panel because they seemed to be "defense jurors."

Jury selection involves a lot of guesswork and gut feelings.  For example, we struck a police officer from the jury because he scowled at us a lot, and we figured that a police officer would have a strong personality that would influence other jurors.  Who knows - he might have been scowling because lunch didn't agree with him. 

I don't like the jury selection process because who you pick as a jury can very likely determine whether you win or lose, and you have NO WAY OF KNOWING if you chose correctly.  Every lawyer has a story of polling (talking to) a juror after the case and hearing the opposite of what he or she expected from the juror. 

This trial occured in a state court in Texas.  Federal courts, and some courts in other states don't always let the lawyers ask individual questions.  Some of those courts have the judge do all the questioning.  Others make the jurors fill out questionnaires instead.

At the end of the day, something like 30 out of 62 jurors were struck.  Of the remaining 32, 13 were seated, and they were seated in numerical order.  Each juror gets a number upon arrival.  If the first 13 jurors remaining happen to be numbers, 3, 4, 5, 22, 24, 26, 27, 31, 35, 36, 40, 45, and 46, those will be the ones seated, regardless of how many jurors after number 46 remain.

Our jury was mostly female, and mostly under 40.  We had a couple of older (60+) jurors, but also a couple of young (under 30) jurors.  Their educational background varied, and so did their careers.  There was no real common thread amongst them.  I recall one or two Hispanics, but the rest were caucasian.  Overall, it seemed like a pretty fair representation of Brazoria county.  (Which, by the way, is Ron Paul's district.  So it's a pretty conservative jury pool.)

Jury selection was done at around 2pm.  Rather than have us do opening statements, the judge dismissed the jury and excused us for the day.  We breathed a sigh of relief as that gave us time to refine our opening statement and prepare for a full day of trial.

Tom's Mesothelioma Lawsuit - Pretrial Hearing

Posted on December 22, 2010 by Justinian

(This is part of a series about Tom's mesothelioma lawsuit.  The first entry is here.)

Every asbestos or mesothelioma lawsuit in Texas will have a pretrial hearing before Judge Mark Davidson in Houston, Texas.  During the pretrial, Judge Davidson will decide many important issues before the case goes to a jury.  The advantage of having a single judge decide issues in every asbestos lawsuit is that his rulings are pretty consistent.  That means that the outcome of a case shouldn't depend as much upon which judge the lawsuit is assigned to.

There were quite a few issues for Judge Davidson to decide in this case.  The pretrial hearing started at 9 in the morning and went until around 4 pm, if I remember correctly.  Broadly speaking, here is what Judge Davidson had to decide:

  • Whether any of the parties were entitled to summary judgment
  • Whether our experts were qualified to testify
  • Which exhibits should be entered, and against which party
  • What portions of deposition testimony could be read
  • What the attorneys could or could not say during the trial

Summary Judgment:  If all of the parties agree upon the facts, then a judge can determine who wins.  Juries are only needed if there is a factual dispute.  If none of the facts for a certain issue are disputed, then the judge may decide only that issue.  In this case, Judge Davidson decided whether the manufacturers of certain asbestos products should be added to the jury verdict sheet.  In Texas, a defendant in a lawsuit may state that another person or company is a "responsible third party" who is also at fault.  Under some circumstances, the responsible third parties are then added to the jury form, and the jury can apportion a percentage of fault to them.  In this case, all of the responsible third parties had already settled with us.  That means that if the jury found any of them responsible, they would not have to pay.  In a ruling I disagree with, Judge Davidson agreed that 34 parties could be added as responsible third parties.  This could have really hurt our case, but we ended up settling with the defendant that filed the motion.  For reasons too complicated to go into here, that meant that the 34 responsible third parties were not in fact added to the jury verdict form.

Expert testimony: We had several experts for this case,  but the one the defendants objected to was an industrial hygienist by the name of Steve Hays.  Mr. Hays has testified in dozens of cases over the past thirty years.  He has always been found qualified to testify.  This was likely his last case, and I'm happy to report his record did not end with this case.  There was quite a fight over this issue, but Mr. Hays was pertmitted to testify.  His testimony covered how much asbestos Tom was exposed to while working at Union Carbide Corporation.  Without his testimony, our case would have been sunk.

Exhibits: Each side had literally hundreds of exhibits they wanted to be able to show the jury.  We filled the back of a Suburban with file boxes.  The other side had their dozens of boxes delivered by a courier service.  One by one, we had to go over each exhibit and explain to the judge why it should be admitted.  It took a good part of the day, but Judge Davidson made his rulings and determined which evidence was or was not admissible.  At the end of the day, we knew what we had to work with.  The nice part about this is that we didn't have to worry about not being able to get a piece of evidence in during the trial and then having to switch gears.  It was also nice that everything was admitted so we could use whatever we wanted during opening statements.

Deposition testimony: One thing they never show on TV law shows is the boring reality of reading or playing depositions.  Depositions are a question-and-answer session that is performed under oath.  In many cases, witnessess can't show up to the trial, and as a substitute, their deposition testimony is read into the record, or a video of it is played.  In order to read or play the testimony, you must designate which portions you plan to play or read.  That way, the other side can object and the judge can determine what portions of the testimony can be read or played.  It is actually more boring that it sounds.  Juries don't like to sit there while two people read canned questions and answers into the record.

Motions in Limine: Lawyers often file a Motion in Limine in which they ask the judge to either allow them or to refuse to allow the other side to talk about certain things.  Union Carbide, for example, asked the judge to prohibit us from mentioning the disaster that took place in Bhopal, India.  We asked the judge to prohibit the other side from implying that jury verdicts cause increases in prices.  (They don't, but that's another story.)  Union Carbide had about 120 requests, and we had about 40, if I recall correctly.  The imbalance isn't unusual: Most corporations have lots of dirty laundry they don't want aired in a trial if it doesn't directly relate to the trial.  The Bhopal disaster had no relevance whatsoever to this case, so the judge properly prohibited us from bringing it up.  (Not that we were going to.)

I didn't agree with all of Judge Davidson's rulings, but I believe he treated all of us fairly and impartially.  That's all you can ask for from a judge.  The next morning, Judge Davidson signed a pretrial order that summed up everything that occurred during the hearing.  Once the order was signed, the case was sent to the trial court, which happened to be in Angleton, Texas.

Tom's Mesothelioma Lawsuit - Case Overview

Posted on December 17, 2010 by Justinian

Asbestos-warning-sign.jpgAs I sit here writing this post, a few days have gone by since a jury in Angleton, Texas entered a verdict in a mesothelioma lawsuit against Union Carbide Corporation.  I have many notes taken before, during, and after the trial, and I'm going to publish them here.  I could have "live blogged" the trial, but decided not to do so on the off chance any jury members might have come across them.

In 2009, a gentleman who I will call Tom (not his real name) had finally gotten tired enough of pains in his side to see a doctor.  After a few weeks of tests and analysis, Tom was told he had mesothelioma and probably wouldn't make it until the end of the year.  He did in fact die later that year.

While Tom was still alive, he hired a Texas law firm to represent him in a mesothelioma lawsuit.  Tom has worked for Union Carbide Corporation from roughly 1957 to roughly 1998.  He worked in a manufacturing facility in Seadrift, Texas, and then on a pipeline that stretched across Texas and Louisiana.  In his day-to-day job responsibilities, Tom was exposed to asbestos insulation and asbestos gaskets.  No one, not even Union Carbide Corporation disputed that fact.  Nor did anyone dispute the fact that he died from mesothelioma.

The lawyers representing Tom filed a lawsuit against Union Carbide Corporation, as well as some companies who worked at the Seadrift plant.  Those companies were partially responsible for exposing Tom to the asbestos that caused him to contract mesothelioma.

This lawsuit was filed in Texas.  Texas is one of a few states that lets you sue your employer for on-the-job injuries.  Many more states refuse to allow you to do so because of workers' compensation laws that pay the employee without forcing the employee to file a traditional lawsuit.  Texas does allow employees to sue their employers, but winning these cases is VERY tough.  Here's what you need to prove in order to win a case like that:

  • The employer had actual, subjective knowledge that it was doing something that put the employee in extreme risk.
  • The employer did it anyway, and did so with conscious indifference to the rights and safety of the employee.
  • All of the above must be proven with "clear and convincing evidence," which is a higher burden of proof than most civil cases.  Most civil cases only force the plaintiff to prove his or her case by "a preponderance of the evidence," which means "more likely than not."
  • The jury must also be unanimous.

Winning a case like this against Union Carbide Corporation is a very hard thing to do.  Few law firms will even take on such a challenge because the risks are so high.  Although Tom passed away, the lawsuit continued on behalf of his wife and adult children. 

I am licensed to practice law in Washington State, not in Texas.  Texas does allow out-of-state attorneys to try cases in Texas by filing a motion for admission Pro Hac Vice.  However, I was brought in too late to file such a motion.  My role was therefore limited to technological support (I worked in the tech industry for a decade before I went to law school, and I can definitely make sure a PowerPoint doesn't crash) and assisting with the thousands of little issues that pop up during a case.

I am writing this series of blog posts to share the actual experience of what it's like to go through a mesothelioma lawsuit.  It isn't pleasant, but for most people, it's the only way to get any sort of compensation from companies who knowingly exposed individuals to asbestos.