Malignant Mesothelioma - Causes of Mesothelioma
II. Challenge for Cause of Jurors
Owens-Corning argues that the district court erred in refusing to strike for cause two prospective jurors (juror # 251 and juror # 45) who defendant argues revealed considerable potential bias against it during voir dire. We review for abuse of discretion a district court's decision regarding a motion to dismiss a juror for cause. United States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992), cert. denied, __ U.S. __, 113 S. Ct. 1367 (1993) (citing United States v. Salamone, 800 F.2d 1216, 1226 (3d Cir. 1986) (the factual determination by the district court whether a juror can serve impartially is entitled to special deference when reviewed on appeal)).
Because the trial judge is in the best position to assess the credibility and demeanor of the prospective jurors, "district courts have been awarded ample discretion in determining how best to conduct the voir dire." Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir. 1993) (citing Rosales- Lopez v. United States, 451 U.S. 182, 189, 101 S. Ct. 1629, 1635 (1991)). In determining whether a particular juror should be excused for cause, our main concern is "whether the juror holds a particular belief or opinion that will `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Salamone, 800 F.2d at 1226 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985)). "A juror is impartial if he or she can lay aside any previously formed `impression or opinion as to the merits of the case' and can `render a verdict based on the evidence presented in court.'" Polan, 970 F.2d at 1284 (citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1643 (1961)).
However, the district court should not rely simply on the jurors' subjective assessments of their own impartiality. See Waldorf, 3 F.3d at 710 (district court relied too heavily on jurors' assurances of impartiality); see also Government of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir. 1987) (though a juror swears that he could set aside any opinion he might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if other facts of record indicate to the contrary). Owens-Corning argues that prospective juror # 251 should have been struck for cause because he worked with asbestos-containing products for many years and indicated during voir dire that he was leaning in favor of the plaintiff. Kirk argues that this prospective juror was properly placed on the jury because when questioned by both the district court and counsel whether he could render a fair and impartial verdict, the prospective juror responded in the affirmative.
We are troubled by the fact that a district judge, despite assurances of impartiality, allowed a prospective juror to serve in a mesothelioma case when the juror's background raised serious questions as to his ability to serve impartially.[fn3] Specifically, we note the following facts which raise substantial questions of the potential bias of juror #251: (1) during the course of his work history he had "probably eaten a couple of pounds of [asbestos]"; (2) he was a union shop steward for 35 years and received one-sided literature from the union regarding asbestos; (3) he believed that 97% of the older workers in his local union had tested positive for asbestos in their system; (4) he had two uncles who died of lung cancer and although they were cigarette smokers, they had been exposed to asbestos during the course of their work lives; (5) he admitted in the first instance that he was leaning in favor of the plaintiff and against the asbestos company; (6) he believed that he was "probably high on the priority list" of getting an asbestos-related disease himself; and (7) he knew "a lot of [union] members" who presumably had asbestos- related medical problems.
Owens-Corning next argues that prospective juror # 45 should have been struck for cause because he had responded to the jury questionnaire that he could not be fair and later repeated at voir dire that he would have a difficult time being fair to the defendant. Kirk counters by pointing out that when further questioned by the district court as to whether he could render a fair and impartial verdict, the prospective juror responded in the affirmative.[fn4] Again, we are troubled because the second prospective juror: (1) stated in the jury questionnaire that he could not be fair to companies that made, distributed, supplied and/or installed asbestos- containing products; (2) felt it was immoral to produce asbestos if the company knew it was going to cause a problem; and (3) indicated that he could not be fair to the defendant if the evidence indicated that Owens-Corning knew that asbestos was hazardous.
Only after being repeatedly asked if he could be fair, the juror answered, "Whatever you say, yes." Recently, we had the opportunity to decide a similar case involving a challenge to a district court's refusal to remove several jurors for cause. Polan, 970 F.2d at 1284. In that case, which involved a prosecution for conspiracy to distribute and the distribution of illegally prescribed drugs, counsel for the defendant challenged for cause three prospective jurors who revealed during voir dire that either they or members of their families were victims of drug abuse. Id. Juror #1 revealed that one of his brothers had died of a drug overdose and another brother had served a lengthy prison term for drug offenses. Id. n.2. Juror # 2 indicated that she had become dependent upon tranquilizers after experiencing a family tragedy. Id. Juror # 3 revealed that his son had abused alcohol and drugs in the past. Id. However, all three prospective jurors ultimately assured the court that their past experiences would not affect their decision making and that they would be fair and impartial.
After reviewing the record of the voir dire, we concluded that the district court did not abuse its discretion in refusing to strike those prospective jurors. Polan, 970 F.2d at 1284. We find that Polan is distinguishable from the case before us. In Polan, the defendant wanted the prospective jurors removed presumably because he believed that some of their past experiences would make them more likely to vote for conviction. With regard to juror # 1, we gave little weight to the theory that an individual whose one brother died of a drug overdose and whose other brother served a prison sentence for drug offenses would be more likely to convict a criminal defendant charged with drug distribution. With regard to juror # 2, we were not convinced that a person who became dependent on sedatives after the shock of a family tragedy would be more likely to convict an individual accused of distributing drugs. Finally, with regard to juror # 3, we gave little credence to the notion that a father who endured his son's alcohol and drug problems would be biased in favor of the prosecution.
Thus, when the district court in Polan credited the assurances of the three prospective jurors, it implicitly made two findings: (1) that the jurors were telling the truth and (2) despite the experiences and personal biases of the jurors, they could be fair and impartial, precisely because their past experiences and personal biases did not make them more likely to convict the defendant. Here, Owens-Corning objected to jurors # 251 and # 45 being seated on the jury because it believed that their personal biases regarding asbestos and asbestos companies would make them more likely to return a finding of liability and a large damage award against Owens-Corning. Unlike the defendant in Polan, Owens-Corning's fear, that the prospective witnesses' past experiences and personal biases would affect their decision, was well-founded. Juror # 251 inhaled a considerable amount of asbestos, knew people who were suffering from asbestos- related diseases, and thought himself likely to succumb to some asbestos-related disease in the future. Thus, there was good reason to conclude that he would be more likely to return a large damage award because he sympathized with the plaintiff. See Gumbs v. Pueblo International, Inc., 823 F.2d 768, 773 (3d Cir. 1987) ("[A] jur[or] may not abandon analysis for sympathy for a suffering plaintiff and treat an injury as though it were a winning lottery ticket.").
It is difficult to conceive of a juror who would be more partial to this plaintiff than juror # 251. Because juror # 251's background is replete with circumstances which would call into question his ability to be fair to an asbestos manufacturer, we find that it was improper to allow him to serve on the jury. Juror # 45 stated that he was biased against asbestos companies and felt it was immoral knowingly to produce harmful and defective products. The danger existed that this juror would return a verdict of liability against Owens-Corning even if Owens-Corning's products were not responsible for the decedent's injuries. We can think of few admissions more compelling in asbestos litigation than a prospective juror who acknowledges that he would have moral qualms about being fair to an asbestos manufacturer. We conclude that juror # 45 and especially juror # 251 could not serve fairly and impartially in light of their past experiences and personal biases. The district court relied too heavily on the jurors' assurances of impartiality, and therefore abused its discretion. A district court's refusal to excuse a juror will not automatically be upheld simply because the district court ultimately elicits from the prospective juror that he will be fair and impartial, despite earlier statements or circumstances to the contrary. The application of Owens- Corning to dismiss these two jurors for cause should have been granted. The jury was not fairly and impartially constituted, and accordingly we will order a new trial.
Mesothelioma Info
Mesothelioma asbestos is a rare type of cancer that affects the mesothelial tissue of three large body cavities, yielding three distinct types of the disease: pleural mesothelioma (affecting the pleura), peritoneal mesothelioma, (affecting the peritoneum) and pericardial mesothelioma (affecting the pericardium).
Causes of mesothelioma have been limited to asbestos exposure. If you or a loved one has been diagnosed with malignant mesothelioma, contact an asbestos attorney to get information regarding your right to a mesothelioma settlement.