Asbestos plaintiffs granted new trial Jury had denied claims against one distributor

August 20, 1993|By Jay Apperson | Jay Apperson,Staff Writer

New trials were granted yesterday to the estates of two ex-Bethlehem Steel workers that lost in the first "minitrial" to decide individual claims in the nation's largest asbestos personal injury case.

In a 21-page opinion, Baltimore Circuit Judge Marshall A. Levin described as "palpably unjust" the minitrial jury's June ruling that asbestos distributor Porter Hayden Co.'s products did not cause diseases contracted by the workers.

"This court is very reluctant to strike down a jury verdict, but its duty to do so is quite clear in these cases. If justice is the objective, this court should and must grant a new trial," the judge wrote.

After considering the witnesses and documents presented during the trial, "The conclusion is quite inescapable that the verdicts were against the weight of the evidence," the judge said.

B. Ford Davis, lawyer for Porter Hayden, said that he and his client were disappointed in the ruling.

"I think it's the wrong result. I think he should have allowed the verdicts to stand," Mr. Davis said. "You sort of feel like you wasted a month of your life. I'm trying a case to a jury, and we won the case with a jury."

Judge Levin's order means the estates of Albert Kirby, a steel mill worker who died of mesothelioma in 1990 at age 72, and William Eberwein, another mill worker who died of mesothelioma in 1988 at age 71, will get a new trial.

Asbestos exposure is the only known cause of mesothelioma, a cancer of the lung lining or abdomen.

Previously, Judge Levin ruled that another plaintiff, Dillard Howell, a 68-year-old former Beth Steel worker who contracted lung cancer, would not get a new trial. A fourth losing plaintiff in the minitrial, the estate of Joseph Hinton, who worked at Beth Steel's Sparrows Point mill and died in 1991 at age 66, did not seek a new trial.

In the Kirby and Eberwein cases, the minitrial jury found the men had been exposed to high levels of asbestos before they came into contact with Porter Hayden products, according to jury foreman James Steiner.

When announced June 9, that verdict seemed to stun the plaintiffs' lawyers. One attorney for the plaintiffs, David L. Palmer, said yesterday, "In light of all the evidence, I believe the judge's decision was proper. I think the jury's verdict was clearly erroneous."

Porter Hayden was the only company left as a defendant in the initial minitrial; nine other defendant companies settled all claims with the four workers. Mr. Palmer and Mr. Davis said Porter Hayden tendered a settlement offer during the trial. Neither lawyer could say yesterday whether the order for a new trial would prompt a settlement.

The minitrials constitute the second stage of a procedure that Judge Levin ordered in 1990 to try 8,555 asbestos personal injury cases, most of them involving former workers at the Sparrows Point steel mill. Last year, in a "megatrial" covering all 8,555 workers, a jury found that seven makers of asbestos products were negligent when they made or sold asbestos to Bethlehem Steel and other plants and that the companies should pay workers' damages for health effects and pain and suffering plus punitive damages.

Dates have not been set for either the second minitrial or the new trial.

Jury selection is scheduled to begin Nov. 1 for a "cross-claims" trial, in which companies assessed damages in the three plaintiffs' individual claims heard during the megatrial will try to prove some of the blame belongs to about 25 other companies.

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