Plaintiff will have to wait a little while longer to collect on his colossal $322 million jury award, if he will collect at all. On July 13, 2011, the Supreme Court of Mississippi granted Union Carbide’s emergency motion to stay the proceedings. The May 4, 2011, Smith County, Mississippi jury award is believed to be one of the largest awards ever in a single-plaintiff asbestos personal injury case.
Union Carbide’s motion was filed in conjunction with a petition to disqualify the trial judge on grounds that the judge’s father had “lived with a diagnosis of asbestosis for over 20 years and has filed not one – but two – asbestos personal injury lawsuits” against defendants whose products incorporated the very same asbestos materials at issue in the pending case. One of these personal injury cases is apparently still pending, while the judge’s father apparently “settled his asbestos claims with Petitioner UCC” in the other. According to Union Carbide’s petition, during the jury selection phase, the trial judge agreed to strike potential jurors for cause who had the same kind of familial involvement with asbestos personal injury litigation, yet the trial judge said nothing about his own family’s involvement. Defendants did not learn of this fact until the judge made a casual off-record comment in chambers two weeks into the trial.
The petition to disqualify alleges that under Canon 3 of the Code of Judicial Conduct, a reasonable person might doubt the trial judge’s impartiality in the case, evidenced by not only the fact that he did not notify parties of his family’s involvement with this litigation, but also by the judge’s conduct throughout the trial. For example, the judge’s demeanor was characterized as “openly hostile” to defendants’ counsel. The judge refused to change venues despite a demonstrated community bias against asbestos defendants in Smith County; and, he allegedly made a number of comments in open court throughout the trial that could have affected the jury’s consideration of the evidence. Union Carbide initially filed a motion for recusal at the trial court level, but at least 30 days later, the trial judge had yet to respond, prompting Union Carbide to seek relief from a higher court.
The Mississippi Supreme Court’s ruling means that the whopping verdict will be on hold until the motion for recusal, or the petition for disqualification, is resolved. Time will tell whether the high court agrees with Union Carbide’s assertion that based upon the evidence described in Union Carbide’s petition, a “reasonable person knowing all of the facts and/or considering the totality of the circumstances “might” harbor doubts about the judge’s impartiality,” which Union Carbide presents as the standard for compulsory recusal. If so, the court could vacate the judgment against Union Carbide, and set-aside the pre-trial proceedings over which the judge presided, effectively granting all parties a do-over. Even if the verdict stands, it is likely that Mississippi’s statutory punitive damages cap will reduce the $300 million punitive damages award to $20 million against each defendant.
Practitioners are well aware that given the “elephantine mass” of asbestos cases filed throughout the last half-century and around the nation, one may be hard-pressed to find jurors who have never had any connection with asbestos litigation, at least somewhere across their family tree. There is no reason to believe that the same would not be true for judges, and perhaps even more so, given the potential that a prior legal practice may have touched upon the same types of claims [a potential source of bias that has caused at least one judge in a jurisdiction with significant asbestos litigation to voluntarily recuse himself in any asbestos case if requested]. However, answering the question of “how close is too close” to asbestos litigation to warrant a jury strike for cause or otherwise should be a far different analysis than for judicial recusal, where even the appearance of impropriety is a cause for concern, especially given that litigants have virtually no ability to learn of potential sources of bias - like the kind that would warrant the striking of a juror for cause - unless it is volunteered by the trial judge. Even given such potential bias, it is not clear whether this would be sufficient in and of itself to warrant the disqualification of a trial judge, given the judge’s far different role than that of a juror, and given the expectation that judges are well able to impartially preside over cases independent of any personal experience. Mississippi’s high court may soon provide much-needed guidance regarding this question, depending upon the method the Court chooses to resolve this issue.