Attorney and juror misbehavior results in dismissal of $107M verdict

A Los Angeles County judge has set aside a $107 million verdict against Union Carbide and other defendants in an asbestos case after finding misconduct by jurors and plaintiff’s counsel.

“It is without doubt that jurors were deprived of the deliberation process on certain issues,” Judge Cary Nishimoto wrote in his Dec. 12 order. “Substantive deliberations were precluded by one or more jurors whose command over other jurors suppressed individual initiative and expression. These incidents, individually or together as a group, constitute a denial of due process and warrant a new trial.”

He granted the defense motion for judgment notwithstanding the verdict and a new trial. He said costs would be split between the parties.

The case was filed in 2011 and first tried in 2013. It went up on appeal twice. Two judges threw the case out, first for nonsuit and then on summary judgment. A Torrance jury in July found that Union Carbide acted with malice in the related death of a janitor, and awarded $32 million in compensatory damages and $75 million in punitive damages.

The case is unlikely to end with Nishimoto’s order, as the plaintiffs intend to appeal.

Attorneys for Union Carbide, Elementis Chemicals and E.F. Brady moved for a new trial and vacatur in October, alleging that the plaintiff’s counsel engaged in misconduct at every phase of the trial. Joel Hernandezcueva et al. v. American Standard Inc., et al., BC475956 (L.A. Super. Ct., filed Dec. 27, 2011)

A team from Orrick Herrington & Sutcliffe LLP led post-trial motions for Union Carbide, arguing that the trial was tainted and flawed, stated a post on the firm’s website.

“There is a throughline: the conduct of plaintiffs’ counsel, which repeatedly crossed into misconduct calculated … to arouse and inflame the jury [so] that it would render a large verdict,” reads the filing submitted by other defense attorneys from Polsinelli LLP; Hawkins Parnell & Young LLP; and DeHay & Elliston LLP.

“On issue after issue, the jury sided with counsel, notwithstanding the evidence and this court’s instructions. It is misconduct for an attorney to pander to the prejudice, passion or sympathy of the jury or to disregard [the] rules of evidence or procedure for the purpose and with the effect of prejudicing the adverse party’s claim or defense before a jury,” the filing continued.

They also alleged that the jury’s quotient verdict and undisclosed bias of a juror was improper.

Nishimoto agreed. A quotient verdict was expressly prohibited in the jury’s instructions, his order states. And one of the jurors withheld information during voir dire that her father died when she was young, and that her mother did not make any claims or remarry, leading to financial hardship.

“She lamented to other jurors during deliberations that she resented the trial defendants for having caused the [original] plaintiff’s death and wanted them to pay for it,” Nishimoto wrote. “Juror #8 demonstrated that she had a state of mind preventing her from “acting with entire impartiality, and without prejudice to the substantial rights of any party.”

Plaintiffs’ attorney Benjamin H. Adams said they intend to appeal.

“While the family is disappointed in the judge’s order dismissing the findings of a largely unanimous jury of their peers, we are confident that the order is not well-founded in either law or fact and that the California Court of Appeal will remedy the error,” Adams wrote in an email.

Adams is a partner with Dean Omar Branham Shirley LLP in Dallas, Texas.

A Union Carbide spokeswoman said the trial court’s rulings were well-reasoned and fair.

“The court correctly found that plaintiffs failed to present sufficient evidence that exposure to UCC’s asbestos was the cause of Mr. Hernandezcueva’s cancer and death and that the trial was tainted with both juror and plaintiffs’ attorney misconduct,” she wrote in an email.

Hernandezcueva, the plaintiff, claimed that he was repeatedly exposed to Union Carbide’s asbestos fibers during renovation of his workplace, which caused him to develop mesothelioma, an aggressive cancer that affects the mesothelial lining of the lungs. He died from the disease in 2014.

The original walls at the Park Place business complex in Irvine, where Hernandezcueva worked, were built with a dual-purpose joint compound manufactured by Hamilton Materials and installed by E.F. Brady Company Inc., both defendants, according to the complaint. Union Carbide was the exclusive supplier of the asbestos in the joint compound, and was added to the lawsuit in 2013.