In a victory for due process, the Texas Supreme Court has issued a conditional writ of mandamus directing a Dallas County Court-at-Law to vacate its order allowing jurors who contracted COVID-19 during the trial to participate remotely over a defendant’s objection and in direct violation of the Court’s 57th Emergency Order Regarding the COVID-19 State of Disaster.
In Re Ethicon, Inc. and Johnson & Johnson (No. 22-1121) involves a product liability action alleging a defect in Ethicon’s ABBREVO pelvic mesh product. Trial commenced on November 28. Plaintiff rested her case after seven days of witness testimony. Just as Ethicon was in the middle of presenting its first witness, two jurors notified the trial court that they had contracted the virus. The trial court dismissed one of them but decided to order the other to participate remotely and mandated that defendants continue the trial. The court further stated that it would try to recall the previously dismissed juror and require that juror’s remote participation as well. Ethicon objected, citing SCOTX’s emergency order providing that a court “must not require a lawyer, party, or juror to appear remotely for a jury trial, absent the agreement of the parties.” Upon the trial court’s denial of its objection, Ethicon moved for mistrial and a stay of the trial pending the filing of a petition for writ of mandamus in the Dallas Court of Appeals. The trial court denied both motions, and the court of appeals subsequently denied the petition without opinion.
At SCOTX, Ethicon argued that it was entitled to emergency relief because the trial court’s order violated the Court’s emergency order and that requiring it to continue the trial with remote jurors deprived it of due process, especially because plaintiff got to present its entire case to the jury in person whereas Ethicon would not have that opportunity. Plaintiff argued that the trial court’s order did not violate the emergency order because the jurors “agreed” to appear remotely, which did not require the consent of both parties. Calling this argument “nonsensical” (too mild a characterization in our view), Ethicon argued that the rule is the rule, and in the face of a party’s objection, the trial has no discretion to allow a remote juror. Plaintiff responded further that Ethicon had declined to move the trial until after the holidays and thus had no basis for complaining about the remote juror. What plaintiff did not say was that “the trial court informed Ethicon if the trial was pushed to after the holidays, Ethicon would only be given two and a half days total to present its witnesses, which does not provide for sufficient time. By contrast, [plaintiff] was given seven days.”
SCOTX wasted no time in shutting down the circus that this trial had become, taking less than two days from filing to issue the conditional writ. Coming just weeks after the Court’s decision in In re East, which ordered a trial court to vacate an order requiring a remote jury trial over the objection of both parties, and the Court’s proposed rule mandating that jury trials may only be held remotely with the parties’ consent, this ruling once again emphasizes that the constitutional guarantees of due process and a jury trial entitle parties to a full and fair adversarial process unmediated by technology.
