Asbestos firms escape payment as Md. loses suit

February 06, 1991|By Ann LoLordo Lynda Robinson of The Sun's metropolitan staff contributed to this article.

After spending six years and $6 million trying to recover the cost of removing asbestos from public buildings, Maryland walked away from an Anne Arundel County courtroom empty-handed yesterday.

A Circuit Court jury, after deliberating for two days, found that three asbestos manufacturers -- United States Gypsum Co., U.S. Mineral Co. and Asbestos Spray Corp. -- were not liable for the $17 million cost of removing the hazardous material from almost all of the 29 state buildings involved in the case, said lawyers for the state and the companies.

"A total and complete victory," said Thomas F. McDonough, the Towson attorney representing the defunct, New Jersey-based Asbestos Spray Corp.

"We are obviously disappointed," said Assistant Attorney General Marlene Trestman, one of the state's lawyers. "It was a complete defense verdict."

This was the only part of the state's original, multimillion-dollar lawsuit from 1984 to be decided by jury. And the Anne Arundel County trial covered only a fraction of the state facilities in which asbestos has been found.

The state has either voluntarily dismissed other parts of the suit or reached out-of-court settlements with other asbestos manufacturers, Ms. Trestman said. But she could not say last night how much the state had recouped in damages through those actions.

After yesterday's defeat, Ms. Trestman said the state would weigh its options for a possible appeal. But she added, "The state will continue in its effort to keep control of asbestos in its buildings and keep its workers trained in how to safely work with asbestos."

For almost three months, the state has been presenting its case to the Anne Arundel County jury.

Lawyers for the state sought to show that the two products at issue in the case -- spray fireproofing and acoustical ceiling plaster -- were dangerous. But the jury found the materials to be not defective or "unreasonably" dangerous, lawyers for both sides said.

"What we've always said is there is a huge difference between heavy-duty occupational exposure like you would have in a shipyard and what happens to somebody who is working in a building where you have these products installed," said George A. Nilson, the attorney for U.S. Gypsum.

The jurors also could not decide if the manufacturers were negligent in not warning the state of any danger from the asbestos products, said Mr. McDonough, the lawyer for the Asbestos Spray Corp.

The jury did find that the state had to assume the risk of any danger, he said.

In the early 1980s, Maryland was regarded as a national leader in tackling asbestos hazards in state-owned buildings. It filed its landmark lawsuit against 48 asbestos manufacturers in 1984, becoming the first state in the country to try to recover the enormous costs of removing asbestos from public buildings.

At the time, it was the largest legal action ever brought in Maryland.

To bolster the lawsuit and gather the information needed to protect thousands of state workers, Maryland spent more than $5 million to survey all its buildings for asbestos hazards. But the survey, conducted by Tracor Jitco Inc. of Rockville, was riddled with inaccuracies and wound up weakening the state's case instead of strengthening it.

"This was a big roll of the dice for the state," said Keith Truffer, another attorney who helped represent Asbestos Spray Corp. "They sunk a lot of money, a lot of effort, a lot of time in the case."

Two years ago, as the case headed into court, there were 12 defendants and 200 state buildings.

By the time the trial began Nov. 7 under Circuit Judge Raymond G. Thieme, only three defendants and two products remained at issue. The total amount of damages the state would be able to claim had been set at $17 million.

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