Products Liability Trials in the Midst of a Pandemic

Recently, Alameda County Superior Court in California conducted a jury trial on a products liability claim for asbestos exposures. The jury selection process was carried out electronically via Zoom, and the entire trial was conducted virtually. Several issues were raised about conducting the trial remotely, including judge, jurors, witness, and/or counsel speaking without muting and jurors being inattentive (e.g., handling other tasks while the trial was being conducted). Nonetheless, the trial went forward and the jury deliberated via teleconference. After the completion of that first virtual trial, a second began and a third was set to start.

During the first trial, the defendant raised concerns over jurors not paying attention (e.g., jurors appeared to be walking around, working on separate screens, or on their phones when laptops were required). Also during that trial, the defendant moved to remove the judge (who eventually recused himself) after the judge made unmuted statements of concern about his own potential asbestos exposures. At another point, the judge’s stream was again left open, and he was heard saying he did not believe the defendant. During the second trial, the defendant moved for a mistrial after jurors were left alone in a Zoom chatroom with plaintiff while the judge, counsel, and court staff were in a sidebar. (During that chat, plaintiff shared photographs with the jurors of his travels to Spain, which were similar to pictures that had been admitted as evidence.) The judge denied the mistrial, and the defense filed an appeal asking for a stop to the trial, which the appeals court ordered. (It was decided that during future sidebars, jurors and witnesses will be placed in “waiting rooms” where they cannot see or speak with others.)

Virtual civil trials have not yet been conducted in any jurisdiction in which HeplerBroom practices. (Madison County has successfully conducted an in-person criminal trial, but it has not yet been determined if a jury will be made available for a civil trial.) Since the entry of orders continuing cases due to COVID-19, neither St. Clair or Cook Counties in Illinois nor St. Louis City nor St. Louis County in Missouri have conducted any trials. However, if in-person trials are not permitted for upcoming personal injury claims, then virtual trials may become an option, and it seems wise to look to other jurisdictions’ experiences for guidance.

The California asbestos trials point out one of the most likely pitfalls of any virtual meeting or trial: the misuse of the mute button. Most of the issues in these cases came from assuming others could not see or hear what were meant as side comments. They also emphasize the importance of planning for every aspect of a trial (e.g., the sidebar conversation that left the plaintiff alone with jurors). In addition, a virtual trial relies on the assumption that all potential jurors have the equipment to participate in a virtual trial or that all rules will be followed (e.g., the juror who was using a cell phone rather than the required laptop). Any trial presents the issue of keeping jurors’ attention, but a virtual trial magnifies that challenge. (There are far more distractions around a juror attending virtually than there are inside a courthouse.)  As with any trial, preparing for the unexpected is one of the keys to success.


“California Jury Returns Defense Verdict in First COVID-Era Asbestos Trial,” Lexis Legal News (Sept. 4, 2020).

First Virtual Asbestos Trial Ends in Defense Verdict,” The Recorder (Sept. 3, 2020). https://www.law.com/therecorder/2020/09/03/first-virtual-asbestos-trial-ends-in-defense-verdict/

“Appeals Court Asked to Halt Asbestos Trial after Plaintiff’s Friendly, Private Chat with Jurors,” Legal Newsline (Sept. 3, 2020). https://legalnewsline.com/stories/552658779-appeals-court-asked-to-halt-asbestos-trial-after-plaintiff-s-friendly-private-chat-with-jurors

“Zoom Asbestos Trial Nears Verdict While Another Starts,” Legal Newsline (Sept. 21, 2020). https://legalnewsline.com/stories/555253907-zoom-asbestos-trial-nears-verdict-while-another-starts

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Kerri Forsythe

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