Mistake at fax machine puts nation's biggest asbestos trial on hold

June 03, 1991|By Sandy Banisky

Because someone somewhere in a Baltimore law office hit the wrong button on a fax machine 10 days ago, the biggest asbestos trial in U.S. history has been stopped dead while lawyers argue over what to do now.

On May 22 someone in the defense lawyers' office accidentally faxed psychological profiles of prospective jurors -- a tool in the defense's jury-selection strategy -- right into the hands of one of the plaintiffs' lawyers.

At stake are 9,032 injury and wrongful death claims by plaintiffs who say they were hurt by exposure to asbestos.

The defense attorneys say the errant fax was a mistake, that the report was supposed to be confidentialdefense information and that Judge Marshall A. Levin, who has been presiding in Circuit Court, should declare a mistrial.

The plaintiffs argue that the defense waived whatever claim it had to confidentiality when it sent the information to the wrong office. They say the trial should proceed.

The two sides spent all last week arguing about the fax and its after effects.

Judge Levin expects they'll continue arguing this week as well. And while all this arguing goes on, the asbestos trial, which is expected to last six months, cannot begin.

If the judge rules that all the jurors should be dismissed and jury selection should start anew, the trial might be delayed another month.

The trial, by its sheer size, hastaken on historic proportions. By the reckoning of some legal experts, it is the largest consolidated trial in U.S. history. Now, its timing all hinges on something as small as a fax machine button.

The plaintiffs charge -- and must prove -- that asbestos fibers, once inhaled, remain in the body and cancause various forms of asbestosis and lung, gastrointestinal and other cancers. They are suing 10 firms that manufactured asbestos products.

Judge Levin, who had spent weeks hearing pretrial motions and searching for jurors willing to sit on a six-month trial, thought he was nearly ready to impanel a jury May 24 when lawyers for the plaintiffs came to his chambers with the news.

They said a lawyer at Greitzer & Locks, a Philadelphia fir representing one of the plaintiffs, had received by fax a report detailing the defense's psychological profiles of the 51 prospective jurors -- a numberthe judge had reduced from about 300.

The profiles, prepared in California by a jury consultant working for the defense, gave all prospective jurors scores that indicated whether the defense might want to accept them or strike them from the panel.

Most of the plaintiffs' lawyers apparently believed the transmission was a mistake. But some feared it was a defense trick.

The judge immediately called the defense lawyers. Both sides trooped into the courtroom for a hearing.

The defense pieced together this sequence: The report had been faxed from the jury consultant to the Baltimore offices of the San Francisco law firm of defense lawyers Brobeck Phleger & Harrison. From Baltimore,the report was faxed on to a list of other defense attorneys -- and to one lawyer for the plaintiffs in Philadelphia.

At the hearing, defense attorney James L. Miller said that the report on the jury profiles is a critical part of the defense strategy.

"These materials obviously reveal the distilled essence of defense counsels' thinking about these jurors and about the exercise of peremptory challenges," requests by lawyers to reject a prospective juror for no stated reason, Mr. Miller said.

He told the court he was "obviously mortified by this." And he said that giving his opponents the defense strategy on jurors "is just one of the most damaging things that could be done at this juncture of a trial."

This morning each side is to deliver to Judge Levin legal memos detailing their arguments why the trial should proceed or why the jury selection should begin over again.

The judge said in court Friday that he will consider such issues as the precautions the defense lawyers took to be sure faxes were not sent to the wrong parties.

"The matter of overriding fairness is obviously on my mind," he said.

"If I conclude that there's a waiver," Judge Levin said at Friday's hearing, "then the plaintiffs' counsel can do anything they want" with the faxed defense documents.

And if that's the case, the judge said, "it's tough for the person who let the material get into the hands of the opponent."

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