Asbestos cases here form biggest trial ever

April 18, 1991|By Sheridan Lyons

At the end of this month in Baltimore's Circuit Court, the biggest batch of cases ever consolidated for one trial anywhere in the United States is to go before a jury: 9,032 claims of death and disease from asbestos exposure against 12 companies from around the nation.

Judge Marshall A. Levin had hoped it would be otherwise.

Handed the asbestos litigation on the eve of his planned retirement after 15 years on the bench, Judge Levin first tried to settle the cases through arbitration. When that failed, he invited the plaintiffs to file a class-action suit. They declined.

Then he devised a plan to have four judges spend virtually all their time trying asbestos cases. That didn't work either: His plan would have cleared only 220 cases a year, but even as those cases were being resolved, one Baltimore lawyer alone was filing 200 cases a month.

Finally, he came up with another plan, to hold one giant trial and have a jury decide the most basic questions: Whether the asbestos products injured or killed the plaintiffs, whether the defendants knew of the danger and whether their conduct was so reckless that the plaintiffs should receive punitive damages.

In a trial full of firsts, Judge Levin, 70, will take his place on the bench April 29 in the ceremonial courtroom in the Old Post Office on

Calvert Street and begin picking a jury for a trial expected to tie up scores of lawyers for four to six months.

"This is the biggest consolidated action in U.S. history," said Baltimore lawyer Peter G. Angelos, who represents 90 percent of the plaintiffs.

Indeed, according to Steven E.Hairston, staff associate of the National Center for State Courts, a research group in Williamsburg, Va., the size of Judge Levin's case dwarfs the previous largest, a federal case in Houston with a mere 274 plaintiffs.

"That's the largest, either class-action or consolidated case, ever," Mr. Hairston said.

To help him manage the cases, the judge has retained a national expert in so-called "toxic torts," law professor Francis E. McGovern of the University of Alabama School of Law in Tuscaloosa, who is sorting and grouping the cases and the issues for the various trials.

The case to be tried here will involve asbestos claims that have been filed in four Maryland counties as well as Baltimore. On the theory that he was going to be hearing the 6,000 asbestos cases filed in Baltimore anyway, Judge Levin invited the transfer of some 3,000 cases from Baltimore, Prince George's, Montgomery and Allegany counties.

The transfer required a change in the Maryland court rules and was resisted bitterly by some of the defendants. But the change was made, and now, "Baltimore is the center of it all" in asbestos litigation, Judge Levin said.

For Judge Levin and the lawyers, the courtroom work has already begun. Two weeks ago he began hearing pretrial motions. This week, lawyers are arguing over the admissibility of evidence.

Last week's crowd of more than 50 lawyers -- some of whom came from as far away as San Francisco -- was "a small one," said Judge Levin, who usually draws 100 to 130 to his pretrial gatherings in the asbestos cases.

Although much of the day proceeded calmly, there were occasional heated outbursts over issues such as "the sophisticated user" and "the government contracts defense," and whether one company that simply put its own label on an asbestos product should be tried with the manufacturers.

"They've fought me at almost every step," the judge commented with a smile at the end of the long day of pretrial motions last week. Just two months ago, he recalled, he threatened to hold some parties on both sides in contempt of court if they didn't pay their share of the unsuccessful arbitration.

This trial will focus on claims against 12 corporations alleged to have manufactured asbestos-laden pipe-covering, cement and block without warning of the health hazards posed by the naturally occurring mineral, whose heat-resistant properties made it a widespread insulating material.

The plaintiffs charge -- and must prove -- that asbestos fibers, once inhaled, remain in the body and can cause various forms of lung, gastrointestinal and other cancers, and asbestosis.

Of the the 9,000 plaintiffs, Mr. Angelos said, from 1,500 to 2,000 have died and are represented by their families.

The long latency of the disease, from 10 to 40 years before symp

toms appears, is one factor that makes trying asbestos cases unique and difficult, Judge Levin said.

"This will be an historic trial, which I hope will resolve the issues of the dangers of asbestos and when those dangers were known," he said. "It will be unusual in that it will be an abstract trial on the issues. You won't see a given plaintiff on the stand and the jury awarding him money for a disease."

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