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Twice delayed, mammoth asbestos trial ready to get under way Judge Levin presides over historic lawsuit

THE BALTIMORE SUN

Many issues will be in bitter dispute in Baltimore Circuit Court when a giant asbestos injury trial opens tomorrow. But the judge and even the most contentious lawyers agree on one thing:

This trial is big.

How big? Consider:

* The plaintiffs are 8,600 people who claim that they've suffered illnesses caused by asbestos. They're suing 14 companies that installed, make or used to make asbestos products.

"Believe me, I've never been in a trial like this," said Baltimore Circuit Judge Marshall A. Levin, who will preside. "No one has."

* The trial is expected to last four months. Lawyers on both sides protest that that won't give them enough time, but Judge Levin is determined not to let this case sprawl over the court calendar forever. "It could go four years if you let it," he said.

* The amount of paperwork spawned by the trial is staggering. One lawyer estimated that his office alone has photocopied 6 million to 7 million documents since January 1991.

* Not all the lawyers who must be in the courtroom could fit at the trial tables. The attorneys decided to split the cost of renting huge tables and 50 upholstered chairs -- to give them room to work and to give them seats more inviting than the standard wooden chairs.

* Out of compassion for witnesses, the witness chair has also been replaced with more comfortable furniture, because some witnesses will be testifying for hours.

* The jurors have new seats, too. Four months is a long time to be confined to hard chairs. And because there will be 20 jurors -- 12 regulars and eight alternates -- the jury box has been expanded to accommodate the extras.

* So many pre-trial motions have been filed so rapidly that Judge Levin has had to dispense with regular courtroom hearings. Instead, he has taken to holding hearings by conference call with as many as 40 lawyers from around the country.

One recent Friday morning, the conference call lasted 92 minutes, with Judge Levin hearing arguments on such issues as interrogatories, deadlines for selection of expert witnesses, punitive damages, motions to strike and motions to compel.

They work their way tediously through an agenda full of issues, trying to persuade the judge that their argument is better than the opposition's.

The calls are on the record, and transcripts are prepared, just as they would be for a court procedure. The tone of the discussions is professional, but Judge Levin allowed that no item goes unchallenged. "They fight me every step of the way," he said.

Last week, while the court was preparing for the opening of the trial, some defense lawyers were launching last-minute efforts to stop the proceedings before they begin by seeking delays both in the Court of Appeals and in federal court.

Both attempts were rejected Friday. They didn't knock the trial off schedule, but they did complicate life yet again for Judge Levin, 71, who was about to retire in 1987 when Administrative Judge Joseph H. H. Kaplan asked him to stay and preside over the city court's burgeoning asbestos-injury docket.

"In a weak moment, I said yes," Judge Levin said.

Five years later, "he's the asbestos guru," Judge Kaplan said.

The trial is a mammoth, the country's biggest-ever consolidated trial -- a proceeding that combines a variety of cases for hearing at one time.

About 6,000 of the cases were filed in Baltimore. About 3,000 others were contributed by courts in Prince George's, Washington, Allegany and Baltimore counties.

The consolidation, in 1990, became a legal necessity, Judge Kaplan said. Hearing the cases one by one, or even 10 by 10, would choke the city court.

"It would take 20 years, no question," Judge Kaplan said. "There's no way that we could try [thousands of cases] in any reasonable period of time."

The plaintiffs -- including people who worked around asbestos as long as 40 years ago -- allege that asbestos fibers caused their cancers and other lung diseases. Hundreds of the plaintiffs have died since the claims were filed. Their families will pursue the cases.

The trial will consider certain basic issues common to all: whether a product was dangerous and when a company knew or should have known that it was defective. The jurors will also be asked to decide whether the companies' conduct was so reckless that they should be assessed punitive damages.

Later "mini-trials" will decide damages for individual plaintiffs -- if they can prove that they were exposed to asbestos and that asbestos caused their illnesses.

In Judge Levin's chambers, documents are everywhere. More arrive by the hour -- by fax, by messenger, by mail.

They are prepared by lawyers as far away as California, Alabama and South Carolina. It's no wonder the attorneys are working so hard: At stake are damages that could total hundreds of millions of dollars if the plaintiffs can persuade jurors that asbestos caused their illnesses.

"There have been several forests dedicated to this trial," said David Palmer, a lawyer with the law offices of Peter G. Angelos, which represents more than 90 percent of the plaintiffs.

A year or so ago, as lawyers involved in the trial began filing pretrial motions, Judge Levin would hold hearings on motions, then write carefully crafted opinions on each ruling. But as the trial has grown nearer and the pace has accelerated, he "didn't have the luxury anymore." That's when he began regular conference calls with lawyers to allow him to rule quickly on their requests.

Now, on the eve of the trial, Judge Levin is determined it will open on time and proceed smoothly. But he's acutely aware that the trial was scheduled to begin twice before -- and both times was derailed.

The first delay occurred in May, after a secretary in a defense lawyer's office mistakenly faxed confidential memos right into the office of one of the plaintiff's lawyers. Judge Levin dismissed the jury and began the trial again.

In August, Mr. Angelos, lawyer for most of the plaintiffs, agreed to reduce the scope of the case by reducing the number of defendants from more than 100 to the current 14. "Well, I couldn't pass up that opportunity," Judge Levin said. And again, the trial was delayed.

This time, Judge Levin said, the case is going forward. About 280 potential jurors will arrive at the courthouse Tuesday, and the judge will begin questioning them in groups of 20 to see if they are able to serve.

Even after all these claims are dismissed or settled, asbestos will remain a monster for the Baltimore Circuit Court. Since these 8,600 claims have been consolidated, nearly another 1,000 have been filed at the city courthouse.

The documents will continue to pour into the judge's office.

As for Judge Levin, he hopes for the best: "I wish all the parties would settle and put me out of a job."

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