Appeals court looks at DuPont case under new standards

Marilyn Tennissen Jan. 27, 2015, 8:31am


DuPont de Nemours won a legal victory in a Jefferson County asbestos case almost seven years ago, and now the company is asking a Texas appeals court to look at why the trial court judge has granted the plaintiff a new trial. 

Plaintiff Caryl Richardson filed suit in 2007 in Jefferson County against DuPont on behalf of her deceased father and refinery worker, Willis Whisnant Jr. The plaintiffs were seeking more than a billion dollars in damages, claiming Whisnant was negligently exposed to asbestos-containing materials while working for DuPont, which led to his death, but in 2008 a jury found no negligence on the part of the chemical company.

Following the no negligence verdict, plaintiff’s attorney Glen Morgan, of the Beaumont law firm Reaud, Morgan & Quinn, filed a motion for a new trial, arguing the evidence did not support the jury’s verdict.

Judge Donald Floyd, 172nd District Court, granted the motion in a May 28, 2008, order, but offered no explanation for his decision.

DuPont appealed and the case circulated through the appellate courts before the Texas Supreme Court in 2009 ordered Judge Floyd to disclose his reasons for granting the new trial, court records show.

After a long series of continuances, on Sept. 10 Floyd once again issued an order granting Morgan’s motion for a new trial, finding that the jury’s answer of “no” as to the question of DuPont’s alleged negligence is against the “great weight and preponderance of the evidence.”

Unlike his previous one-page order, Floyd’s second order goes on for six-pages and cites the testimony of the plaintiffs’ experts and Whisnant’s co-workers as the reasons behind his decision.

A month later, DuPont appealed, asserting Floyd’s order does not “pass muster,” court papers say.

“The trial court granted a new trial on grounds that the jury’s verdict against Plaintiffs was contrary to the great weight and preponderance of the evidence, adopting verbatim an order prepared by Plaintiffs’ counsel that ignored the evidence supporting the verdict and, further, wrongly stated that DuPont produced no such evidence,” states DuPont’s petition for writ of mandamus.

On Jan. 22, Dennis Conrad, representing DuPont, said it is now a question of accountability and transparency as to why the trial court is taking away the jury verdict.

He pointed out that after two important cases regarding new trials, Toyota and United Scaffolding, a judge has to give reasons for a new trial.

Conrad said the most recent order Floyd signed had been “completely written by plaintiff’s counsel” raised a “red flag.”

Floyd’s order said nothing about evidence presented by DuPont during the trial, he said, and said “the court can’t set aside a jury verdict based only on evidence of one side.”

“It was as if DuPont’s evidence did not exist,” Conrad said.

But speaking for the plaintiffs, attorney John Werner said the judge is in the best position to make a decision, since he has heard all the evidence and testimony and has the professional experience.

Werner also said that the plaintiffs failed to file an official copy of the court records in the case, but Conrad told the justices there is plenty of evidence and affidavits that the transcripts are valid.

Background

Court records show that Whisnant, a former subcontractor for DuPont from 1966 to 1975, was in his late 70s when he died from cancer that plaintiffs allege was caused by asbestos exposure.

Whisnant’s treating physician had diagnosed him with lung cancer and his official death certificate attributed his death to lung cancer probably caused by smoking, court papers say.

DuPont is represented in part by MehaffyWeber attorney Sandra Clark and M.C. Carrington.

Trial case No. E159-183Q

Appeals case No. 09-14-00465-CV

Reporter David Yates contributed to this story

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