Editor's note: For the arguments presented by plaintiffs' attorney Glen Morgan, see "Morgan argues for new trial against DuPont" and "Morgan blames Southeast Texas Record for unfavorable verdict, seeks new trial against DuPont" on the Southeast Texas Record Web site.
A defense attorney said plaintiffs' lawyer Glen Morgan's motion for a new trial against DuPont was like kids asking for a "do over."
M.C. Carrington of Mehaffy Weber in Beaumont defended a recent jury's verdict in favor of DuPont at a hearing before District Judge Donald Floyd on Friday, May 16.
The hearing was scheduled after Morgan, who represented the plaintiff in the asbestos trial, asked the judge to order a new trial, citing that the jury's verdict was contradictory to the preponderance of the evidence.
In a six week trial that concluded March 25, Morgan had argued that a former DuPont employee, Willis Whisnant Jr., contracted mesothelioma and died because of his exposure to asbestos at the Sabine River Works. But the jury found that there was no negligence on the part of DuPont and awarded the plaintiff nothing.
Carrington began by saying that Morgan did nothing but restate his closing arguments from the trial.
"Mr. Morgan has just made the same arguments that the jury has already rejected," Carrington said.
Carrington quickly addressed Morgan's argument that since the verdict did not match the evidence, then the jurors may have been affected by an "outside influence," namely the allegedly "biased reporting" by the Southeast Texas Record, calling it "all just conjecture" on Morgan's part.
"There is not enough evidence of anything (regarding the Southeast Texas Record's influence) to have any impact (on the verdict) at all, so let's just get past that," Carrington said.
What was important, Carrington said, was that contrary to what Morgan claimed, the evidence was not undisputed.
"Nothing in the Whisnant trial was undisputed," Carrington said. "Testimony was heard from coworkers and experts, but nothing that was said was uncontroverted."
And Carrington disagreed with Morgan's statement to Judge Floyd that even the defense attorneys were stunned by the verdict, because the evidence had been so "overwhelmingly" in the plaintiffs' favor.
"I know the most surprised person in this courtroom when the verdict was read was Mr. Morgan," Carrington said. "You don't argue for $1 billion if you don't think you are going to win."
He added that there was "no way" the verdict would get reversed if the case were to be reviewed by an appeals court.
"The jury is the sole judge of the credibility of witnesses," Carrington said. "The jury has the right to disregard anything that is said. There were things that were unbelievable and inconsistent (in the trial), and they had the right to accept it or reject it. All of their witnesses had baggage that we exposed.
"In toto, the jury had every reason to reach the decision that they did. There is not any way that the court will find that there is insufficient evidence to support the jury finding."
Carrington said that in 26 years practicing law, he had never seen a motion for a new trial as unusual as Morgan's.
"This motion is not about the law or any legal issues. He cites no rules of procedure or cases, it's just a recitation of facts," Carrington said. "Mainly, Mr. Morgan's motion says 'it ain't fair, so we want to do it again.'"
Carrington said the motion offers no complaint or explanation, and does not say that the court failed to allow some evidence or should have excluded some evidence.
"The entire trial went their way," Carrington said. "Every significant evidentiary ruling went their way. Now its time for a 'do over?' That's not right."
The plaintiffs' argument for a new trial, Carrington said, is based on Morgan's belief that if the jury didn't believe him "then something cannot be right, that there's no way he could lose."
In a new trial, Carrington said the evidence would be exactly the same.
"Would he have us just keep retrying this case until it came out in favor of the plaintiff?" Carrington asked. "This is a classic case of 'heads-I win, tails-you lose.' Well that is not the way the system works. A 'do over' is not what the law provides.
"The plaintiff is just arbitrarily asking the court to set aside because it didn't go their way."
Floyd said he would take the matter under advisement.