Baltimore Circuit Judge Marshall A. Levin was to decide today whether a massive trial of 9,032 asbestos-related claims will be held up at least another month to pick a new jury.
Yesterday, the judge heard for the first time how a law firm representing one of the defendants faxed psychological profiles of prospective jurors into the hands of the opposition.
The mistake halted the largest asbestos trial in U.S. history one month into jury selection.
The defendants want a mistrial, claiming that the plaintiffs' lawyers, who distributed copies of the confidential report among themselves, know their jury-selection strategy. The plaintiffs counter that the defense, in sending the errant fax, waived its claim to confidentiality.
The Canon fax machine was set up behind the witness stand yesterday. A secretary hired temporarily by the Baltimore offices of Brobeck Phleger & Harrison -- a San Francisco firm representing Fibreboard Corp. -- showed how she hit the wrong button.
The secretary, Robin Frailey, testified she had been hired in April to work nights.
The evening of May 22, Frailey received the jury-selection report compiled by a San Francisco consulting firm helping the defense pick a jury, with orders to fax copies to several lawyers on the defense team.
As she tried to dial the fax number of one of the defense firms, Frailey testified, she accidentally hit one of the 32 "speed dial" buttons. She hit the one programmed to send faxes to Greitzer & Locks, a Philadelphia firm representing 16 of the plaintiffs.
The machine spit out a sheet of paper saying the fax went to Greitzer & Locks, but Frailey testified that she assumed the defense lawyer she was trying to reach was associated with the Philadelphia firm. Frailey said she didn't tell anyone. She tossed the fax receipt into a tray.
"I never thought of contacting anyone," she testified. "It was a mistake. The fax was not addressed to them so it should have been sent back."
"Privileged and Confidential," is typed in bold-face near the bottom of the fax cover sheets. The warning says documents should not be copied or distributed by anyone other than the intended recipient.
"One of the things that is a fact of life in this day and age is that facsimile transmissions can go awry," testified James L. Miller, a lawyer with Brobeck who said he wrote the warning himself.
"I wanted it to be very clear that if something did go awry . . . the people who got [the fax] would do the right thing."
Miller said the jury report was prepared in San Francisco by David Graeven, of Trial Behavior Consulting Inc. The 51 prospective jurors were given scores that indicated whether the defense might want to accept them or strike them from the panel.
Miller said the report outlined,the "strategic thinking" of the defense on jury selection.
Michael B. Leh of Greitzer & Locks testified he received the faxed report the morning of May 23. Leh said he believed attorney work-product privilege was waived by the errant transmission, but he didn't research the matter.
Leh said he immediately called Baltimore lawyer Harry Goldman Jr., who was coordinating jury selection for the plaintiffs. "Harry . . . said fax it right down," Leh said.
Goldman, who represents 111 former shipyard workers at Bethlehem Steel's Sparrows Point yard, agreed that the defense waived its claim to confidentiality.
The report "belonged to us for whatever use," he said. "The matter of the cover sheets did not interest me," he said.
The "potential value" of the report to the plaintiffs was that it hinted which jurors the defense planned to strike, Goldman said. "We might take advantage of that fact."
Goldman had copies distributed to the other plaintiffs' lawyers and their trial consultant. Some lawyers suggested that that the plaintiffs tell the defendants about the fax, but Goldman said no.
"I told them not to do it!" he said.
The plaintiffs' lawyers went to Levin with the news of the disclosure. The judge collected the copies from the plaintiffs' team and ordered them sealed.
Asbestos is a mineral that was widely used in thermal and acoustical insulation. Inhalation of asbestos has been linked to lung cancer, asbestosis and other cancers.
The 9,032 plaintiffs are mostly former steel and shipyard workers who claim they became ill after being exposed to asbestos in the workplace. They are suing 10 companies that manufactured asbestos products.