March 14, 1998 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 high 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 for shipyard and steel
workers who contracted mesothelioma, a rare form of cancer caused mostly by
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 sour
balls, 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 it 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 buckets.
"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 other
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 I've
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
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."