Mesothelioma Case Illustrates Why Jurors Should Leave Bias Out of Courtroom

Attorney & Jury

A friend gave me a nice poster a couple of years ago. I’m embarrassed to say I stored it during a move and forgot to find a new place to hang it. Serving on jury duty recently reminded me about the poster and inspired me to hang it in my office. It features this quote by Thurgood Marshall:

“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”

Justice Marshall’s words can be used to sum up how plaintiffs view jurors: Plaintiffs hope juries will recognize the humanity in their suffering and decide to award them just compensation for their injuries.

But selecting a jury isn’t just about finding jurors who are sympathetic to your health and financial challenges. Jurors are only human. The same humanity that may lead a juror to sympathize with a plaintiff may also cause the juror to disregard evidence in favor of his own experiences or biases.

It is important to have jurors who are objective and follow the court’s rules and instructions. The case of Paul Whitlock shows what can happen when the jury isn’t objective.

Whitlock v. Foster Wheeler

Whitlock was 17 when he reported for duty aboard the USS Kitty Hawk. Many years later, he was diagnosed with mesothelioma. Whitlock claimed his illness was caused by exposure to asbestos fibers during boiler repairs aboard the Kitty Hawk. He filed a lawsuit against Foster Wheeler LLC, which made the boilers.

Foster Wheeler did not dispute that Whitlock had mesothelioma caused by asbestos exposure. But it did dispute whether Whitlock was exposed to the asbestosĀ  it originally placed in the boilers.

The company argued that the asbestos-containing insulation and gaskets may have been replaced during cleaning and repairs before Whitlock joined the ship. Foster Wheeler questioned whether there was enough evidence to prove that it was the source of Whitlock’s asbestos exposure.

It was ultimately up to the jury to decide whether Whitlock was exposed to asbestos materials that were sold or distributed by Foster Wheeler.

One of the jurors, “Mr. W,” was also a Navy veteran. You might expect him to favor the plaintiff based on his Navy background. However, the opposite happened. In fact, the jury ruled in favor of the defendant and the plaintiff had to move for a new trial.

According to a court opinion, Mr. W’s past experience not only influenced his own vote, but may have also convinced other jurors to rule for the defendant.

During the trial, a Foster Wheeler engineer testified that the asbestos originally used in the boilers could be left in place for 25 years, long after Whitlock came aboard the ship. The plaintiff’s expert witness testified that asbestos fibers from Foster Wheeler’s insulation and gaskets could remain on the ship long after they were removed.

The jury listened to this evidence. After the first day of jury deliberations, four jurors believed that Mr. Whitlock was exposed to asbestos from Foster Wheeler components, four disagreed and four were undecided.

However, as after Mr. W offered his personal experiences on Navy ships, the jurors increasing changed their votes. Mr. W told his fellow jurors that he did not believe Whitlock had been exposed to asbestos from Foster Wheeler. Based on his experience, the Navy would have removed all of the asbestos insulation and cleaned up the asbestos fibers before Whitlock came on board the ship. He explained how often components were replaced and how thoroughly the Navy cleaned.

By the end of the deliberations, the jury ruled in favor of the defendant.

Before deliberations, the judge had instructed the jury to consider only evidence presented during the trial. She specifically instructed the jurors not to consider any external information or “unique personal experience.” Apparently, they didn’t follow those instructions.

After a hearing, the court determined there had been juror misconduct. The judge decided that Mr. W’s comments were a “blatant violation” of her instruction not to add personal training and experience. The court was forced to order a new trial.

The Hazards of Juror Misconduct

Months of trial preparation, weeks of testimony and days of deliberation are wasted when misconduct happens. If a new trial is granted, the defendant will almost certainly appeal. That process takes months, if not years. The parties may settle to avoid wasting more time, but a jury verdict may be more favorable. If a new trial is finally scheduled, a favorable result is not guaranteed.

And remember, it’s in both parties’ interest to have an impartial jury. If the defendant suspects juror misconduct, it can also move for a new trial. Although a new trial in the Whitlock case meant the court would throw out the verdict for the defendant, it still posed a huge burden for a family that wanted resolution.

After all, a plaintiff goes to trial to win an award, not a new trial. In addition to compensation, efficient resolution of a claim is also a tribute to a person suffering with a terminal illness.

Help Selecting the Jury

Courts and attorneys work to make sure the jury selection and deliberation process remains fair. Fortunately, a mesothelioma attorney can help you with the entire trial process, including selecting objective jurors. Although it’s usually helpful to have jurors who can relate to you, it’s hard to predict what people will do. Your attorney will help the court select jurors who will listen to your case fairly. Your attorney will also help the court prepare clear jury instructions that help the jury decide your case.

Despite these efforts and jurors’ best intentions, errors and misconduct may occur in rare instances. A mesothelioma attorney will work to keep your case on track.Visit our legal pages or contact the Mesothelioma Center for general information about the litigation process and selecting an attorney.


Karen Marshall has more than 17 years of legal experience and is an attorney with The Peterson Firm. She has been contributing to The Mesothelioma Center since 2011 and writes about asbestos-related legal issues and blogs for Asbestos.com.

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