Asbestos suits still tossup, lawyers say Md. loss no herald of courtroom trend

February 07, 1991|By Ann LoLordo and Sheridan Lyons

When Maryland lost its lawsuit Tuesday to recover the costs of removing asbestos from public buildings, Jay S. Steinberg chalked up another jury verdict in favor of the manufacturers of the notorious insulation material.

As editor of Asbestos Property Litigator Report, Mr. Steinberg has been monitoring the outcomes of similar court cases filed by county and city governments, school boards and universities since March 1985. The outcome of the Maryland case "puts the defense over by one: It was 16 up and 16 down," Mr. Steinberg said yesterday.

The Maryland lawsuit -- considered a landmark case when it was filed in 1984 -- represented the first time in the United States that a state government had tried to recover the enormous costs of removing asbestos material from public buildings.

The Anne Arundel County jury's verdict favoring three asbestos manufacturers came on the heels of another closely watched case, in the city of Boston. The defendants there also won a total victory.

But whether the recent trend in favor of asbestos manufacturers will continue in upcoming cases, including three more in Maryland, is a tossup, say lawyers on both sides of the issue.

"The verdicts have gone both ways," said Assistant Attorney General Janet E. LaBella, the state's lawyer in the asbestos case. "I'm not sure you can take one trial or even two trials and project from that what's going to happen in all property damage cases and say 'now we have a trend here of defense verdicts.' "

The upcoming Maryland cases will involve "somewhat different facts, with a different jury and a different judge," said defense attorney George A. Nilson. But he said the lawyers representing the city of Baltimore and Baltimore and Anne Arundel counties will surely recognize -- "deep down inside" -- that "the state lawyering was very good, that the products were the same and if the jury system works, the result will be the same."

Mr. Steinberg, whose Philadelphia-area publication monitors asbestos property damage cases, attributes the slight shift favoring asbestos manufacturers to new Environmental Protection Agency guidelines on the removal of asbestos.

"In the last six months, the EPA put out another guidebook . . . TTC saying in a nutshell [that] you're going to cause more problems by ripping it out," said Mr. Steinberg. "Basically, if you leave it alone, if it's encased in cement and similar situations where there's no chance to deteriorate or break down into fibers, which people can inhale, then what's the beef?"

The danger posed by two asbestos products -- spray fireproofing and acoustical ceiling plaster -- in Maryland public buildings certainly was a key issue in the Anne Arundel County jury's two days of deliberations.

"There was not sufficient evidence in the courtroom that these particular materials, even though they contained asbestos, were dangerous," said jury foreman Robert M. Vukovich, 47, of Odenton. "Just because a material contains asbestos does not mean it's hazardous."

When Circuit Judge Raymond G. Thieme Jr. instructed the jury in the Maryland case, he set the parameters for their discussion on the product's danger.

The jury had to determine whether the danger of the product outweighed the "usefulness and desirability" of the product," an instruction that favored the defendants.

Although the city of Baltimore will be facing some of the same defendants and products, there's no way to know if the jury will review similar evidence or receive similar instructions when they deliberate.

Maryland's case was rare in that the defendants argued that the state knew as much about the dangers of asbestos between 1941 and 1979 as the manufacturers did, and that the state continued to use asbestos products in its building materials.

Carl E. Tuerk Jr., the lawyer representing the city of Baltimore, said he expects that the asbestos manufacturers will raise a similar argument when the city's case goes to trial Sept. 23.

But, Mr. Tuerk insisted, "The factors are different in our case." He declined to elaborate.

"None of these cases demonstrate anything other than that this particular set of facts" persuaded a jury, he said.

The stakes, however, are just as high.

State and local governments have spent millions of dollars to remove or contain asbestos in their buildings. The state had hoped to recover at least $17 million from asbestos manufacturers when it went to trial. Now, after spending six years and $6 million on its legal fight, the state is left with only the $1 million-$2 million it received through settlements with asbestos manufacturers. The state has not yet decided whether to appeal the case.

The city of Baltimore has estimated its claim against asbestos manufacturers at $135 million, but Mr. Tuerk maintains that the figure is still in flux. The Sept. 23 trial is seven months away and the city already has spent nearly $2 million in legal fees.

Baltimore County's case goes to trial May 20. The county's lawsuit also involves some of the same defendants and products, said attorney Stephen J. Nolan. The county has reached "a compromise" settlement for removal and replacement costs on ceiling tile and surface treatment products, Mr. Nolan said. But the actual amounts will remain secret until the trial ends.

The first phase of the Anne Arundel County case goes to trial in November.

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