The nation's largest-ever consolidated trial went into reverse gear yesterday in Baltimore Circuit Court when Judge Marshall A. Levin reluctantly dismissed the 51-member panel from which attorneys were to select a jury to decide 9,032 asbestos-related personal injury claims.
The decision wipes out three weeks of effort and energy that had gone into questioning hundreds of prospective jurors. It also means at least another month's worth of jury selection before the start of what is expected to be a six-month trial.
For years, state courts have been overwhelmed by thousands of asbestos-related cases filed by shipyard, steel plant and construction workers. Last fall, Judge Levin decided to consolidate these cases and hold one trial to decide when various asbestos manufacturers knew about or should have known about the dangers of their products, and whether manufacturers should have to pay punitive damages.
Trial preparation had gone well until last month, when a secretary for one of the defense attorneys inadvertently sent a confidential fax to an opposing attorney. The 12-page report documented the defense's psychological evaluations of the prospective jurors.
Attorneys for the plaintiffs, seeing the report as virtual manna from heaven, copied it and distributed it among themselves. But some of the attorneys later told Judge Levin what had happened.
After learning of this, defense attorneys asked Judge Levin to declare a mistrial and dismiss the prospective jurors. They claimed that the opposition had gained a strategic advantage by learning the defense's jury selection strategy. Attorneys for the plaintiffs countered by saying the defense's mistake amounted to gross negligence with the result that the defense had waived any right to claim the report as a privileged and confidential document.
During a subsequent hearing, which ended yesterday after a day and a half, Judge Levin listened as the secretary recounted how she accidentally pushed a speed dial button on her company's fax machine. Plaintiffs' attorneys also testified about what they did when the fax arrived.
Though some of the plaintiffs' attorneys argued against a mistrial, one of the plaintiff's lawyers, David Palmer, urged Judge Levin to grant the defense motion. The mistake, he said, "constitutes prejudice of constitutional dimensions which cannot be cured" except by dismissing the jury panel.
In making his decision yesterday, Judge Levin said the mistake put the integrity of the jury selection at stake, something he could not allow. Thus, taking the jury selection process back to square one became the only acceptable solution.