Trial News

The Appellate Court of Washington rejected claims that jury selection for a pandemic trial that resulted in a nearly $13.5 million verdict for a mesothelioma plaintiff was flawed, finding the trial court substantially complied with the state’s “randomness” requirement. The appellate court also rejected the defense argument that by permitting potential jurors 60 and over to be excused from service due to COVID-19 precautions, the selection process unlawfully excluded a cognizable class. (Budd v. Kaiser Gypsum Co., Inc., 2022 WL 521501 (Wash. App. Ct. Feb. 22, 2022).)

Raymond Budd worked in the drywall business from 1962 to 1972 and, in the course of his work, he used Kaiser Gypsum Co. joint compound containing chrysotile asbestos. Years later, Budd was diagnosed with malignant pleural mesothelioma—a disease caused by asbestos fiber inhalation. He attributes his disease to his work with Kaiser’s asbestos-containing joint compound. In 2019, he brought claims in King County, Wash., state court against Kaiser and other entities, claiming negligence, strict liability, failure to warn, and defective design.

A jury found in favor of Budd in August 2020, awarding him more than $13.4 million. Kaiser had challenged King County’s jury selection process, arguing that coronavirus-related precautions had led to an insufficiently random juror pool and had excluded potential jurors age 60 and over. The trial court rejected both Kaiser’s pretrial and posttrial challenges to the jury selection process and explained the pandemic-related changes to the process at two hearings. In particular, the court explained that King County had mailed summonses to more than 1,000 potential jurors of all ages who had previously deferred service, and that those potential jurors were asked to respond in person or via email or telephone. King County received responses from 183 potential jurors who were then emailed juror questionnaires, the court said, and 77 potential jurors submitted questionnaires.

Kaiser appealed the jury verdict on several grounds, again raising concerns with the jury selection process’s randomness and arguing that a cognizable class—those 60 and over—was excluded. The appellate court acknowledged that under Wash. Rev. Code §2.36, jurors must be selected at random and that trial courts have a duty to ensure random selection. It also noted that “prejudice will be presumed only if there is a material departure from the statutory requirements,” but that where there is “substantial compliance . . . a challenger may claim error only if he or she establishes actual prejudice.” (City of Tukwila v. Garrett, 196 P.3d 681 (2008).)

Jury notices were sent only to those who had previously deferred service, said Kaiser, arguing that this violated Washington state’s “randomness” requirement for jury selection. The appellate court, however, disagreed with Kaiser’s contention that sending summonses only to those who had deferred service was a violation. It found that “there can be numerous reasons why a juror defers service” and that “Kaiser offers no information to suggest that the pool of over 1,000 people was less random than a venire another process would yield.”

Kaiser also took issue with the use of emailed questionnaires, arguing that this resulted in an insufficiently random jury pool by excluding potential jurors without email addresses. The appellate court again disagreed, noting that initial outreach to jurors was by mail and that “the jury services department did not unilaterally decide to contact only potential jurors with email addresses.” Kaiser also argued that the jury services department lacked the authority to excuse jurors for cause—but the appellate court found that sending summonses to jurors who previously deferred service and sending questionnaires to those who responded to the summonses did not constitute excusing jurors for cause.

Noting the jury selection process’s substantial compliance with the statute’s randomness requirement, the appellate court looked to whether Kaiser had shown actual prejudice. However, the court said, Kaiser had not even contended it was prejudiced, basing its argument solely on the alleged material deviation from statutory requirements.

The appellate court then moved on to Kaiser’s second juror-related challenge—that a cognizable class of jurors had been excluded from the jury pool in violation of the Sixth and Fourteenth Amendments. The court noted that jury trials were suspended early in the pandemic, and after they resumed, the presiding Superior Court judge sent a memorandum explaining that jurors 60 and older could be excused if they did not wish to report for jury duty. The Washington Supreme Court subsequently issued an order requiring that jurors’ summonses include the ability to defer service for those at higher risk from COVID-19 due to age or health conditions. The appellate court found that in complying with this memo and order, the trial court had not unconstitutionally excluded a cognizable class of potential jurors because those 60 and over were not automatically excluded—they were just permitted to be excused if they did not wish to report for jury duty.

Budd’s attorney, Brian Weinstein, of Seattle, said “this was the first case tried in King County, Wash., since the outbreak—it may have been the first case tried in the entire state. The Washington Supreme Court issued guidelines on how to deal with potential jurors who were 60 and older who might wish to defer jury service, and King County complied with these guidelines. Jurors over 60 were not systematically excluded.” Weinstein added that “it was clear during oral arguments that the Court of Appeals thought Kaiser’s claims that King County violated its constitutional rights by systematically excluding a certain class of jurors and its statutory rights by not having a random jury selected were meritless.”