Morgan blames Southeast Texas Record for unfavorable verdict, seeks new trial against DuPont

Marilyn Tennissen May 13, 2008, 7:30am

Editor's note: The Southeast Texas Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

After a Jefferson County jury ruled against his client in a recent asbestos trial, plaintiffs' attorney Glen Morgan believes the verdict was so contrary to the evidence that the jury must have been influenced by outside factors � namely the Southeast Texas Record.

Morgan filed a motion May 8 asking Jefferson County District Judge Donald Floyd to set aside the verdict and final judgment he signed on April 17 and order a new trial in the case of Caryl Richardson et al vs. E.I. DuPont de Nemours and Co. et al.

The trial began Feb. 21 and centered around Willis Whisnant, a former B.F. Shaw pipefitter who worked at DuPont back in 1966 as an independent contractor. Plaintiff Caryl Richardson, individually and as representative of Whisnant family, claims he was exposed to enough asbestos fibers to contract mesothelioma, a lung condition that took his life in 1999 at age 72.

For six weeks during the months of February and March, DuPont's attorneys successively fought off accusations that the company purposely and maliciously exposed the late Willis Whisnant Jr. to asbestos, effectively convincing jurors to find the company not negligent in a March 25 verdict.

But in the Plaintiffs' Motion for New Trial, Morgan wrote that the failure of the jury to find that negligence of DuPont proximately caused Whisnant's injury was "contrary to the overwhelming weight and preponderance of the evidence."

The 16-page motion argues that during the trial there was uncontroverted witness testimony establishing that the working conditions at DuPont posed an unreasonable risk of harm, that DuPont admitted that it had actual knowledge of the danger, that DuPont cannot dispute that it failed to exercise ordinary care to protect Whisnant, that DuPont admitted that it failed to warn Whisnant of the conditions and that DuPont failed to make its premises safe.

"When one considers the overwhelming evidence of DuPont's negligence in the above captioned case, it becomes clear that someone or something outside the courtroom must have influenced the jury's verdict.

"In this case, the outside influence was almost certainly the Southeast Texas Record. The Southeast Texas Record is a local 'newspaper' that is owned by the U.S. Chamber of Commerce.

"The U.S. Chamber of Commerce has identified one of its top goals is to end what it perceives to be lawsuit abuse and unfair litigation. In order to accomplish this goal, the U.S. Chamber of Commerce has instituted what it calls a multifaceted and multipronged attack on the plaintiffs' bar. One prong of this attack is the creation of 'newspapers' to disseminate anti-plaintiff propaganda in areas of the country that the U.S. Chamber of Commerce believes are favorable venues for plaintiffs, including Madison County, Ill., West Virginia and Southeast Texas. All of these 'newspapers' are also available on line."

By making the Record available free at the courthouse, Morgan alleges that the "U.S. Chamber of Commerce is clearly attempting to influence jurors that read the 'newspaper's' biased reporting."

Morgan notes that the Southeast Texas Record "took an immediate interest in the Whisnant case," which he suspects was because DuPont is a member of the U.S. Chamber of Commerce.

"However, there is no way to verify this because the U.S. Chamber of Commerce refuses to identify its members," he wrote.

During the trial, the Southeast Texas Record published at least seven different reports on the trial, and "the vast majority of the articles were favorable to DuPont," Morgan argues.

He specifically singles out a March 13 Record article which, he says, "crossed the line" by describing attempts by DuPont attorneys to enter B.F. Shaw employee records into evidence.

Judge Floyd eventually ruled the records, DuPont argued would prove Whisnat spent most of his time working for the company isolated from asbestos, were not admissible.

"It is bad enough that the Southeast Texas Record published an article that described the excluded evidence in a manner that was favorable to DuPont and made it available for free at the courthouse and online during the trial.

"It is very possible that one or more of the jurors in this case read this article and learned of information properly excluded from evidence by this Honorable Court," Morgan wrote. "This certainly appears to be an attempt by the Southeast Texas Record to influence the jury."

Morgan also tries to draw a connection between the U.S. Chamber of Commerce, the Southeast Texas Record and the jury, noting that the jury foreman, Jerry W. Plaia, is married to the executive director of the Port Neches Chamber of Commerce.

"Mrs. Plaia may receive e-mail updates from the U.S. Chamber of Commerce or from the Southeast Texas Record due to her position," Morgan wrote.

According the U.S. Chamber of Commerce Web site listing, the Port Neches Chamber of Commerce is not a member of the U.S. Chamber.

The Port Neches Chamber of Commerce is not listed as a subscriber of the Southeast Texas Record's weekly e-mailed newsletters, nor is there any subscriber with an e-mail address containing the name "Plaia."

"Even if this did not occur, she is much more likely to read the Southeast Texas Record than most persons. If one or more of the jurors was made aware of the content of these articles, this would certainly have benefited DuPont and may very well explain why the jury reached a verdict that was contrary to the overwhelming weight and preponderance of the evidence," Morgan wrote. "In any event, the jury's verdict was contrary to the overwhelming weight and preponderance of the evidence. Therefore, Plaintiffs respectfully request that this Honorable Court set aside the judgment in the above captioned case and grant a new trial."

A hearing date on the motion has been set in Floyd's court for Friday, May 16.

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