Judge Halts Asbestos Trial, Citing 'Frightening Frequency' of COVID-19 Cases
First Circuit Judge Ronald Wilson, in a notice to lawyers about delaying an asbestos trial next month, said he had "witnessed the increasing nervousness of those around me." He also called a separate set of asbestos trials planned for next week a potentially "dreadful experience."
July 24, 2020 at 12:14 AM
5 minute read
The original version of this story was published on Law.com
A West Virginia judge who had been pushing hard for trials in asbestos lawsuits has now delayed one set for next month, citing the "frightening" numbers of COVID-19 cases in several of the state's counties.
"The troubling question is: Should I now permit the trial to take place on that date since the coronavirus cases in Hancock, Brooke, and Ohio County are increasing at a frightening frequency each day, and I have witnessed the increasing nervousness of those around me," wrote First Judicial Circuit Judge Ronald Wilson in a notice on Wednesday to the lawyers.
The move comes as West Virginia, the last U.S. state hit by COVID-19, had a record 262 new cases on Wednesday, for a total of 5,461 cases and 102 deaths, according to state health officials.
The remarks are stark acknowledgments for Wilson, who, in March, criticized the "fear contagion" hurting the asbestos docket while also pushing for trials. He has jury selection scheduled next week in more than 40 asbestos cases, with a proposed trial plan that he called "a dreadful experience." The cases are the same ones the judge tried to schedule for trial last month before the Supreme Court of Appeals of West Virginia halted those plans because of the coronavirus.
Unlike the August trial, however, the group trials will take place at a "vast room," not at an "old courtroom without extra space," he wrote. In particular, he moved the trials to the Highlands Event Center in Wheeling, West Virginia.
Wilson is among the judges in several states struggling to hold trials amid the COVID-19 pandemic. This week, opening statements began before Alameda County Superior Court Judge Brad Seligman in Hayward, California, in an asbestos trial against several defendants, one of whom filed a motion for mistrial after prospective jurors worked out and checked their stove during voir dire.
In his notice, Wilson predicted that 90% of the cases set for next week's group trials could settle before the Aug. 3 opening statements.
Defense attorney Joseph Beeson, of Robinson & McElwee in Charleston, West Virginia, said he already settled his case.
"It is difficult, and I don't think anybody, including the judge, wants to do it, but the judge feels like he has to, to move these cases along," he said of trials.
Other lawyers are in settlement discussions, some held virtually, said plaintiffs attorney Leif Ocheltree, of Pittsburgh's Goldberg Persky & White, who has cases in the trial group. He said the likelihood that next week's trials go forward was slim, even before the COVID-19 pandemic.
"It would be very unusual if all of this was not resolved for the most part prior to next week, and probably a handful of cases or less that would be still around in the days leading up to jury selection," he said.
For those cases remaining, the first 10 jurors plan to arrive on the morning of July 29 for voir dire, followed by another 10 that afternoon, with jury selection continuing through July 31. Every participant must fill out a contact tracing information form and, upon entering the event center, be subject to temperature checks, wear masks, answer questions about COVID-19 exposure and remain 6 feet apart at all times, with no more than 20 people in the room at a time, according to court notices.
Wilson, on Tuesday, encouraged lawyers to avoid trial altogether by reaching settlement.
"If you're going to settle — do it now and avoid this dreadful experience," he wrote in a notice. "If not, I have no choice but to make sure that the trials happen."
The August asbestos trial had been in a single case brought by the family of Bryan Swiger, who died of mesothelioma, a deadly lung cancer. In his notice, Wilson acknowledged he had delayed the trial, originally scheduled for February, several times.
"It is not my intent to diminish the importance of Bryan Swiger's case to his family," he wrote. "But, do I jeopardize the health of Mr. Swiger's family, the jury, the witnesses, the attorneys, the judge, the clerk, the court reporter, and the bailiff, when all that may be avoided with delay?"
He also envisioned a trial, which could last two weeks, with everyone wearing masks, and jurors, attorneys, clients, witnesses and the judge, separated by 6 feet, trying to communicate.
He suggested a new trial date in August 2021.
"I regret that I had to take this action," he wrote, "but I do believe that a jury trial that takes place next year in an atmosphere where people are not fearful of catching a virus that could take their life, will be in everyone's best interest."
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllRead the Document: 'Google Must Divest Chrome,' DOJ Says, Proposing Remedies in Search Monopoly Case
3 minute readApple Asks Judge to 'Follow the Majority Practice' in Dismissing Patent Dispute Over Night Vision Technology
Attorneys Go to DC Federal Court Seeking Damages for Plaintiffs in Oct. 7, 2023, Attack on Israel
3 minute read'Possible Harm'?: Winston & Strawn Will Appeal Unfavorable Ruling in NASCAR Antitrust Lawsuit
3 minute readLaw Firms Mentioned
Trending Stories
- 1UN Treaty Enacting Cybercrime Standards Likely to Face Headwinds in US, Other Countries
- 2Clark Hill Acquires L&E Boutique in Mexico City, Adding 5 Lawyers
- 36th Circuit Judges Spar Over Constitutionality of Ohio’s Ballot Initiative Procedures
- 4On The Move: Polsinelli Adds Health Care Litigator in Nashville, Ex-SEC Enforcer Joins BCLP in Atlanta
- 5After Mysterious Parting With Last GC, Photronics Fills Vacancy
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250