Asbestos-cases mistrial is sought Defense says juror analysis fell into hands of plaintiffs.

May 30, 1991|By Raymond L. Sanchez | Raymond L. Sanchez,Evening Sun Staff

Lawyers representing 10 manufacturers of asbestos products have asked a Baltimore Circuit Court judge to declare a mistrial in the largest consolidation of asbestos-related personal injury claims in U.S. history.

The defense lawyers asked Judge Marshall A. Levin to declare a mistrial because their "secret" analysis of prospective jurors fell into the hands of the opposition.

Levin was to hold a hearing today to find out why the report was faxed to a Philadelphia law firm representing one of the plaintiffs. The fax originated in the office of a lawyer representing the manufacturers.

"I want to get to the bottom of this," the judge told a group of lawyers in his courtroom, adding:

"I'm not a grand jury, but my function here is to find out how this alleged secret report got into the hands of plaintiffs' counsel."

Levin, presiding over a trial consolidating 9,032 claims, ordered the 13-page report sealed last Friday after learning of the fax transmission. This week, the judge this week barred lawyers from talking to reporters about the report.

The defense lawyers say a mistrial should be declared because the report reveals their jury selection strategy. They suggested that an error by a secretary resulted in the report being faxed to the wrong place. But some plaintiffs' lawyers accused the defense lawyers of deliberately faxing the report to sabotage the trial.

The inhalation of tiny asbestos fibers has been linked to lung cancer, asbestosis and mesothelioma, a rare cancer of the lining of the lung and abdomen. Asbestos is a mineral that was widely used in a variety of products including thermal and acoustical insulation.

The plaintiffs are mostly former steel and shipyard workers -- including many ex-employees at Bethlehem Steel Corp.'s Sparrows Point plant -- who claim they became ill after being exposed to asbestos in the workplace. They are suing 10 companies including Owens Corning Fiberglas Corp., GAF and Pittsburgh Corning.

The plaintiffs maintain that the companies were aware of the dangers associated with asbestos but failed to warn them about the health risks.

The jury must decide whether the asbestos products caused death or injury to the plaintiffs and whether the defendants knew about the health risks and concealed it from the workers. If the jury decides that the companies recklessly endangered workers, the settlement could include punitive damages.

The trial is expected to last six months. Despite the difficulty in picking a jury, the pool of prospective jurors was made up of 51 people. "I was in good shape until this thing came down," Levin said of the latest twist.

Defense lawyers said the report, written by an expert who specializes in jury selection, was "secret." It analyzed each prospective juror and suggested which ones could be unsympathetic to the defendants' case. Each juror was assigned a numerical value.

Lawyers said the leak of the report was extraordinary because jury selection is a crucial stage in a trial. There is a definite advantage in knowing which potential jurors the other side was going to eliminate.

Ironically, it was the plaintiffs' lawyers who disclosed the fax transmission to the judge. The fax originated from the Baltimore offices of one of the defendants' lawyers.

Lawyers for the plaintiffs' met privately Thursday evening and handed the report over to Levin the next morning.

This is just the latest snag in Levin's attempt to settle 9,032 asbestos cases filed in Baltimore and four surrounding counties through a giant trial.

Levin ordered the claims consolidated after claimants rejected his suggestion that the cases be combined in a class-action suit or settled through arbitration.

If the verdict is in favor of the plaintiffs, damages will be decided later in smaller trials.

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