A Superior Court judge has cited juror misconduct in the decision to award a new trial in the case of a Navy veteran seeking compensation for developing an asbestos-related disease as a result of on-the-job exposure to the dangerous mineral.

An article in the Metropolitan News-Enterprise states that the new trial has been granted because a fellow veteran relied on his personal experiences in explaining to fellow jurors why he believed the plaintiff was not exposed to asbestos aboard the USS Kitty Hawk in the 1960s.

Paul Whitlock, who served on the Kitty Hawk from 1965-1967, contends that his mesothelioma is indeed linked to his service aboard the naval vessel. According to the article, the defendant, Foster Wheeler LLC, did not dispute that Whitlock had the disease or that the condition is almost always caused by exposure to asbestos. But it denied that he was exposed to any of the original Foster Wheeler asbestos in the boilers, saying it had all been removed before Whitlock came aboard. Whitlock was diagnosed with the aggressive form of cancer in 2005.

The case was originally tried in late 2006 and the verdict was for the defendant, Foster Wheeler. Later, it was discovered that the juror in question, referred to as Mr. W., told other jurors that his own experience in the Navy led him to believe that all of the original block insulation would have been replaced during previous repairs prior to Whitlock coming aboard the ship.

Those statements “constituted external information in the form of a juror’s own claim to expertise or specialized knowledge for which there was no evidence,” and thus qualified as juror misconduct, said Judge Mary Wiss.

Wiss also noted that jurors had been given standard instructions not to treat external information as evidence unless so instructed, to determine the facts based solely on the evidence, 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.”

Alameda (Calif.) Superior Court Judge Jeffrey Horner upheld the original ruling by Judge Wiss, noting that the misconduct “certainly influenced Mr. W’s vote for the defendant on the exposure issue and might well have influenced enough of the other jurors to have altered the outcome.”

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