Naval Veteran and Asbestos Victim Gets New Trial

Most regular visitors to Asbestos.net are well aware that veterans of the U.S. Navy, Coast Guard and Merchant Marine are among the most likely to suffer from asbestos-related diseases because of the extensive use of asbestos in the construction of sea-going vessels. Paul Whitlock is one such veteran, having served aboard the U.S.S. Kitty Hawk during the Vietnam conflict. In a lawsuit filed in San Francisco Superior Court in 2005, Whitlock alleged that his terminal mesothelioma was caused by exposure to asbestos in the boiler room of the guided-missile attack aircraft carrier. During the actual trial, which took place in the fall of 2006, legal counsel for the named defendant, Foster-Wheeler LLC, argued that all asbestos had been removed from the Kitty Hawk prior to the time of Whitlock’s service. Whitlock first boarded the carrier in 1965. The trial lasted a total of nineteen days, including three days of jury deliberation. In the end, nine of the twelve jurors found in favor of the defendant. (Verdicts in civil actions require only a majority, unlike criminal trials in which the verdict must be unanimous.) It later came out that one of the jurors was also a Navy veteran.

The juror in question, identified in the source only as “Mr. W,” commented during deliberations that his own naval experiences led him to believe that all asbestos materials would indeed have been removed prior to the time of Whitlock’s service. This comment was found to violate the judge’s explicit instructions to the jury that they were to base their verdict solely on evidence presented at trial, and “not to use or consider any special training or unique personal experience, because such training or experience is not a part of the evidence received in this case.” As a result, Paul Whitlock has been granted a new trial. Counsel for Foster-Wheeler LLC appealed the decision, claiming that in granting a new trial, the judge had abused her judicial discretion. The appellate court disagreed; Judge Jeffery W. Horner of the Alameda Superior Court said that “Mr. W’s” comments “were in blatant violation of the instruction not to inject personal training or experience into the deliberations, and… prejudicial because they bore directly on the hotly contested issue of whether Whitlock was exposed to Foster Wheeler’s asbestos aboard the Kitty Hawk and tended to buttress Foster Wheeler’s position that Whitlock was not exposed to its asbestos.”