AUSTIN - Yesterday, the Texas Supreme Court directed a trial court to vacate an order allowing jurors to appear virtually in a pelvic mesh trial against Johnson & Johnson and Ethicon.
A day before the high court’s finding, the Fifth Court of Appeals denied the companies’ writ of mandamus, which sought to compel the trial court to vacate its order denying their motion for mistrial, court records show.
According to the companies’ petition for mandamus, the trial began on Nov. 28. Last week, two jurors were dismissed—one after testing positive for COVID-19. Two more jurors tested positive for COVID-19 on Dec. 12. The trial court dismissed one of the new COVID-19 positive jurors but retained the other one. The trial court then instructed Ethicon that it was either required to proceed with a virtual trial or to permit the juror—or both jurors, if it could somehow call back the other juror it had already dismissed—to participate virtually. Ethicon objected and moved for a mistrial.
The trial court denied the motion for mistrial and ordered that the juror would participate remotely for the remainder of trial, over Ethicon’s objection.
The Texas Supreme Court found that the trial court abused its discretion because section 4(a) of its Fifty-Seventh Emergency Order Regarding the COVID-19 State of Disaster provides that a court “must not require a lawyer, party, or juror to appear remotely, absent the agreement of the parties.”
Supreme Court case No. 22-1121