Huge asbestos trial is over now battle cry seems to be 'on to the appeal!'

August 16, 1992|By Jay Apperson | Jay Apperson,Staff Writer

After two years of hard-fought pretrial motions and another five months of trial, all of it generating thousands of pages of transcribed testimony and millions of photocopied documents, a Baltimore jury spoke for the final time last week to end the nation's largest asbestos personal-injury trial.

But the jury's word will hardly be the last word.

The jurors hadn't even digested an end-of-the-trial lunch with the judge and the lawyers before the companies renewed their squawking about the fairness of the consolidated trial.

On to the appeal! seemed to be the battle cry.

"Something's cooking"

Behind the scenes, the verdict prompted renewed settlement negotiations involving at least one of the four companies slapped with punitive damages. Just as the plaintiffs' lawyers had hoped and predicted it would.

While the Keene Corp. -- whose outspoken Chairman Glenn W. Bailey once laid out his case in a newspaper column headlined, "Litigation Abuse Is Destroying My Company" -- complained about the judge in the case, and while GAF Corp. took stock of its 11th-hour shift to a more hard-nosed trial strategy, another company apparently was looking to cut its losses in Maryland.

"Something's cooking with Pittsburgh Corning," an attorney with knowledge of settlement negotiations said Tuesday, one day after the end of the trial.

Eight other companies, originally defendants in the trial, have agreed to settle the complaints against them; the terms of those agreements remain sealed, but reported figures of $200 million to $400 million for the total settlement are "fairly accurate," according to two sources with knowledge of the negotiations.

Of those figures, Keene general counsel Stuart Rickerson said last week: Too high.

In the wake of the verdicts, Keene and other companies renewed old complaints, including the claim that the lawyers are getting rich, not the victims of asbestos exposure.

In a July 15 column in the Wall Street Journal, Mr. Bailey said his company spends $800,000 a week on asbestos litigation.

In a statement released Tuesday, he suggested that more than $6 billion of the $10 billion paid out of companies' insurance policies in the past decade in asbestos litigation has gone to lawyers.

He added: "The fees of the plaintiff lawyers in this Baltimore case have exceeded $125 million just from settlements to date. Not bad for five months' work -- about $1 million a day."

Asked what those figures were based upon, company spokesman Rickerson said, "Some documentation, some informed speculation."

He said the figures were derived from calculations based on assumptions contained in magazine and newspaper articles and Rand Corp. study from the 1980s.

Mr. Bailey also complained that presiding Judge Marshall A. Levin was off base in saying, in court but out of the presence of the jury, that Keene apparently diverted its assets out of the reach of asbestos victims.

The companies -- and, for that matter, some of the former shipyard and steel mill workers who made up the more than 8,500 plaintiffs -- continue to complain about the very act of consolidating thousands of claims into massive trials.

The practice makes for a "lottery" system of asbestos litigation, is unconstitutional and is designed to twist companies' arms to settle, the companies complain.

"A circus-like atmosphere," was how Bill Harvard, lawyer for Pittsburgh Corning Corp., described the trial in Baltimore, where sometimes up to two dozen lawyers would be suited up for hearings.

A better way, according to Mr. Bailey, would be to set up an administrative system to resolve meritorious claims.

In a jab at Peter G. Angelos, whose office represents about 90 percent of the more than 8,500 plaintiffs in the Baltimore trial, Keene's Mr. Rickerson said 90 percent of the plaintiffs' attorneys' cases fall into the "junk lawsuit" category.

As the trial wound down, Paul Safchuck, president of the White Lung Association, handed out statements complaining that the consolidations delay justice for individual plaintiffs.

For that, the statement said, Judge Levin and judges who have ordered consolidations in other states are "enemies of the asbestos victims and their families."

In a recent interview, Judge Levin defended the consolidation process as the most expeditious way to handle the mountain of cases and said the trial had been fair.

"The court has to safeguard individual rights but also has to provide for an efficient resolution of cases," he said.

The companies predicted success in their appeals of the verdicts reached in the trial.

They seem to have especially set their sights on an unusual method designed for awarding punitive damages based upon a "multiplier," or formula based on actual awards to any of the plaintiffs whose claims would be heard at mini-trials that may begin as soon as this fall.

Indeed, the defense strategy for much of the trial seemed to be to preserve for the record the objections to various rulings by Judge Levin.

But a curious thing happened nearly five months into the trial, as it entered its final phase. GAF sent in a new team of New York lawyers to represent the company, and those lawyers seemed to turn the intensity level up several notches.

During a break in the trial on that first day the new lawyers were in town, Ellis R. Mirsky, chief counsel for litigation management for GAF, flagged down a reporter in the second-floor lobby of the Clarence M. Mitchell Jr. Courthouse.

He ran down many of the same complaints raised by Mr. Bailey.

In the end, the jury hammered GAF with the highest punitive damages of any defendant in the trial, $2.50 for every dollar of its share of compensatory damages.

But only time will tell how many millions will be assessed against GAF and the other three companies socked with punitive damages because the jurors were asked only to come up with the multiplier that will be applied to awards as yet unknown.

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