As a higher court sees it, Dorothy Fertig's $3 million victory in a lengthy Baltimore asbestos trial may have been a little too sweet.
In ordering a new trial this week for Fertig's award in the death of her husband, a shipyard worker, the Maryland Court of Special Appeals lectured Baltimore Circuit Judge Edward J. Angeletti for letting the Fallston woman bake chocolate chip cookies for the jury.
The higher court based its rulings against Fertig on other grounds, saying that the evidence was insufficient to support the jury verdicts against some defendants and damages against others.
But a chastising side note in its opinion has ended Angeletti's long tradition of indulging the sweet tooths of those in his courtroom and incensed several jurors in the case.
As juror Gloria Catlett put it: "At no time did we base anything on any durn cookies."
In a 1996 trial that took four months, Fertig and four other plaintiffs sought damages from a number of companies forshipyard and steel workers who contracted mesothelioma, a rare form of cancer caused mostly by asbestos exposure.
Fertig's husband, Robert E. Fertig Sr., worked as a coppersmith at the Sparrows Point shipyard, and later as an electrician at Bethlehem Steel, for 32 years. He died in February 1994 at age 55.
For years, Angeletti has passed a shiny red bucket full of sourballs, lemon drops and butterscotch candies to keep jurors from falling asleep during long trials. He encouraged everyone involved, from the court reporters to the lawyers, to contribute, .. and acknowledged who had brought what each day. Even jurors put in candy.
The problem arose the day Fertig decided to make chocolate chip cookies. A defense attorney objected, saying that was improper. "It is not improper," Angeletti replied, according to a transcript. "In fact, I think it is very nice."
On appeal, attorneys for two defendants pointed out that the jury gave Fertig $1 million more than the other plaintiffs and argued that the cookies might have been a factor.
The Court of Special Appeals, without ruling on the argument, took a dim view of Angeletti's candy bucket.
"Parties may feel compelled to contribute to the snack jar out of fear that the court or jury will disfavor them if they do not," Judge Robert F. Fischer wrote for a three-judge panel.
"As evidenced here, they may fear that the jury will reward the party that makes the more desirable contribution. In our view these concerns -- which are not necessarily unfounded -- militate against the practice of maintaining a snack jar, no matter how well-intentioned."
Angeletti would not comment yesterday on the case or the opinion, but said he would follow the higher court's directions. "And the directions here are crystal clear -- no more candy bucket," the judge said.
Robert Schlenger, a defense attorney who helped write a brief that made the cookie argument, said he was surprised that the court had addressed his complaint.
"It seemed to me, maybe the candy bucket isn't that bad if a big deal isn't made out of it," he said. "When the judge comes out smiling, saying so-and-so put the candy in the candy bucket, maybe it's a little different."
Fertig's attorney, Shepard Hoffman, said his client's damages were greater because her husband had died earlier than some of the other workers in the case. He called the cookie argument "beyond absurd" and said defense attorneys were the first ones to put candy in Angeletti's bucket. "They're the ones that endorsed the practice."
Baltimore Circuit Judge William D. Quarles, who as an attorney represented defendant Rapid-American Corp. in the asbestos trial, recalled Fertig's cookies as "quite tasty" and "among the best that I've had."
Quarles admitted that he and other defense attorneys also contributed to and feasted on the daily candy pool. "From my recollection, my personal favorite was the Butterfinger bar for whatever tactical advantage that gave us," he said.
For their part, several members of the six-person jury that heard Fertig's case said yesterday that they were outraged even by the suggestion that after listening to complex testimony from a crowd of plaintiffs and defendants over four months, their decisions could be swayed by chocolate chips.
In fact, Catlett, 61, said she didn't even partake of Fertig's offerings. "That particular day I wasn't into cookies. I'm a candy freak," she said.
The candy, Catlett said, helped keep her awake. "When you have something in your mouth, you aren't very likely to fall asleep," she said. "For one thing, you think of the fact that you might choke."
Baltimore Circuit Judge John N. Prevas, who also has presided over a long asbestos trial, said that holding jurors' attention during such trials is challenging. "The trials are long. It's difficult. The subject matter is not all that stimulating," he said.
Of the higher court opinion, Prevas said: "The stimulants obviously have to go through the mind and not through the stomach."
Pub Date: 3/14/98