Plaintiff Appealing Oregon Ruling on Motion for New Trial

April 1, 2001 – Media Coverage
HarrisMartin

PORTLAND, Ore. - Attorneys for a former sheet metal and auto parts worker who was on the losing end of a recent verdict have indicated their intent to appeal an Oregon judge's decision to deny plaintiff's request for a new trial based on juror misconduct. Emrick v. AC&S, Inc., et al., No. 0002-02019 (Ore. Cir. Ct., Multnomah Cty.)

A notice of appeal was filed with the Multnomah County Circuit Court on Feb. 23, less than a month after Judge John A. Wittmayer notified attorneys for Dennis Emrick that he would be denying the motion.

Plaintiff sought a new trial after jurors returned a verdict late last year in favor of five defendants, whose alleged negligence contributed to Emrick's asbestos exposure, eventually causing him to develop mesothelioma.

Emrick, a Detroit native, sued 57 defendants for allegedly causing his asbestos-related illness. Emrick was diagnosed with mesothelioma in 1999.

At trial, the five remaining defendants - AC&S Inc., Asten Group, Inc., Quimby Welding Supplies, Inc., Scapa Dryer Fabrics, Inc., and United States Mineral Products Co. - argued that much of Emrick's exposure occurred in Detroit, where he worked in the automotive industry, sources said.

Following a finding for the defense, Emrick moved the court to consider granting a new trial on ground that the jury had discussed evidence throughout the trial rather than waiting until after it had been instructed to deliberate.

In support of the motion, Emrick submitted the affidavit of Elden Eichler, an alternate juror dismissed during the proceedings. Eichler testified that during breaks in the trial, jurors engaged in discussions related to the believability of fact witnesses, the quality of expert presentations, and the amounts of damages requested by the plaintiff, among other things.

"These discussions amounted to partial, unauthorized deliberations," the motion said. "It is one thing to guard jealously the sanctity of the jurors' deliberations. However, misconduct extrinsic to those deliberations is another matter."

Plaintiff also argued that there existed no support for the jury's finding that defendant AC&S' Limpet Spray Insulation was not dangerously defective.

AC&S argued the jury rendered a general verdict that, in line with the instructions, clearly indicated the defendants had not manufactured or sold asbestos-containing products that were defective or unreasonably dangerous.

"Had plaintiff wanted a more specific interrogatory to be submitted to the jury, Plaintiff could have sought a verdict form that included that," Judge Wittmayer concluded.

As to the issue of jury misconduct, certain defendants argued that Eichler's affidavit was neither signed nor notarized and, as a result, could not be submitted in support of the motion. Without Eichler's signature and the notarization, the affidavit was not timely and could not even be considered an affidavit, the defense argued.

Judge Wittmayer agreed, but granted plaintiff leave to late-file Eichler's affidavit. Regardless, the judge said he did not believe that Eichler's affidavit reached the threshold that justifies either granting a new trial or launching an inquiry into the allegations of misconduct.

"The affidavit is too conclusionary in nature to justify either approach," the judge wrote.

Emrick is represented by Ray Thomas and James S. Coon of Swanson, Thomas & Coon in Portland, Ore., and Gilbert L. Purcell of Brayton Purcell in Novato, Calif. AC&S is represented by Terry Hall of Wolfstone, Panchot & Bloch in Seattle. Asten Group is represented by Ron Collins of Forman, Perry, Watkins, Krutz & Tardy in Jackson, Miss. Scapa Dryer Fabrics is represented by Hawkins Parnell & Young in Atlanta and George S. Pitcher of Tooze Duden Creamer Frank & Hutchison in Portland, Ore. And, U.S. Mineral Products is represented by Jim Case of Case & Dusterhoff in Beaverton, Ore. Quimby Welding Supplies, Inc. is represented by Rudy R. Lachenmeier of Lachenmeier, Enloe & Rall.

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