Judge orders reselection of jury in giant asbestos trial Errant fax revealed jury strategy. Starting over could take a month.


Baltimore Circuit Court Judge Marshall A. Levin says it was pTC with "profound reluctance" that he dismissed all 51 prospective jurors in the nation's largest-ever consolidated trial.

The giant trial of 9,032 asbestos cases was derailed May 22 when a defense law firm faxed psychological profiles of prospective jurors to the opposition.

Calling the incident "bizarre," Levin decided yesterday to strike the potential jurors and start over again.

"I do that [strike the jurors] with profound reluctance," he said. "I don't want to delay this trial."

The 51 prospective jurors were culled from a panel of 300 and from questionnaires sent earlier to thousands of Baltimoreans. Jury selection, expected to begin anew next week, could take a month.

Levin agreed with the defense team, representing 10 manufacturers of asbestos products, that the errant fax revealed the "innermost thinking" of the defense on picking a jury.

But the judge noted that the San Francisco defense firm responsible for the fax -- Brobeck Phleger & Harrison -- could have taken precautions to see that the mistake did not happen.

"I find that the plaintiffs' attorneys have an advantage over the defense attorneys," the judge said. "The plaintiffs know pretty well which prospective jurors the defense is going to strike."

The fax was accompanied by a cover sheet warning that the information was "privileged and confidential."

In papers filed with the court, defense lawyers said members of the plaintiffs' team acted improperly when they made copies of the confidential report and distributed it among themselves. They asked for a mistrial.

"To fight back with this indicates the desperation of the defense position," charged Harry Goldman Jr., the plaintiffs' lawyer who distributed the report to others.

The firm of Peter G. Angelos, representing 90 percent of the plaintiffs, conceded that the plaintiffs received an unfair edge with the defense jury report. But other plaintiffs' lawyers urged the judge to proceed with the trial, saying the defense had acted negligently and waived their claim to confidentiality.

"My clients regard this as a war," said Clifford Cuniff, representing nearly 300 alleged asbestos victims. "They look at the defendants as the people who killed their fathers and their sons and stole their retirements. They don't want me to lose it."

A temporary secretary hired by the Brobeck firm, which represents Fibreboard Corp., told the court that she mistakenly faxed the jury report May 22 to Greitzer & Locks, a Philadelphia firm representing 16 plaintiffs. The secretary, Robin Frailey, said she mistakenly hit one of 32 speed-dial buttons on the fax machine, sending the report to the wrong place.

Testimony showed that the secretary was not told the report was confidential, although she said "common sense" told her the documents were sensitive. And she had not been told what to do about errant fax transmissions.

"I have concluded that it was a mistake," Judge Levin said.

Also yesterday, Levin ordered that the confidential report and copies made by plaintiffs' lawyers stay 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 trial consolidates 9,032 plaintiffs from Baltimore and four surrounding counties. The jury must decide whether the asbestos products caused death or injury to the plaintiffs and whether the defendants knew about the health risks and concealed it from the workers.

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