Floyd denied motion for new trial in 2002 asbestos case

Marilyn Tennissen Jun. 5, 2008, 5:15am

Judge Floyd

A few weeks ago, Judge Donald Floyd granted plaintiff's attorney Glen Morgan's motion for a new trial against DuPont. Morgan claimed the jury must have gotten the verdict in favor of the chemical company wrong since the trial evidence showed so overwhelmingly that the plaintiff's mesothelioma was caused by his exposure to asbestos while working at DuPont.

From preliminary research, the Southeast Texas Record has found no other cases in which Morgan has requested a new trial, and found one instance where Judge Floyd denied a plaintiff's motion for a new trial.

The Jefferson County District Clerk's office is currently working on compiling comprehensive case information for the Record, and in the meantime the news staff has conducted its own search on the county's public computer system.

In 2002, Floyd denied Provost Umphrey attorney Rodney Barnwell's request for a new trial in an asbestos case against Brown & Root (Case No. E158-369).

Barnwell argued that throughout the trial Brown & Root resisted attempts to conduct basic discovery for plaintiff Barbara Meekins.
Court documents showed that on three occasions, the court ordered sanctions against the defendant for discovery violations. Two of those orders were granted post-trial.

On Aug. 31, 2001, Floyd signed an order for sanctions based in part on defendant's refusal to answer discovery. On Oct. 25, Judge Gary Sanderson, sitting for the court, entered another sanctions order.

In his order, Sanderson detailed numerous discovery violations on the part of the defendant.

Ultimately, defendant's discovery abuse rose to such a level that the court stated "striking defendant's answer may be an inappropriate sanction for this case."

A third motion for sanctions was granted on the record during the trial, it was based on defendant's pattern of discovery abuse.

The trial began on Jan. 8, 2002, and lasted until Jan. 17, 2002.

"During the trial, it became apparent that defendant had withheld additional information," Barnwell wrote. "Plaintiff files this motion because defendant did not fully disclose all relevant documents and witnesses. As such, plaintiff was prejudiced and unable to conduct discovery necessary to fully develop her cause of action."

Barnwell cited the Texas Rule of Civil Procedure 320, which states that a new trial may be granted "for good cause."

"The Texas Supreme Court recognizes that new trials may be granted 'in the interest of justice.' (see Champion Int'l Corp. v 12th Ct of Appeals)

In his motion for a new trial, Barnwell gave examples that he believed showed Brown & Root's refusal to submit discovery.

For instance, the plaintiff requested the identity and home address of all personnel in the safety department employed by Brown & Root for the years 1962 to 1987.

The defendant responded "Defendant's records are not maintained in a fashion that would allow it to name every employee whose position involved safety or industrial hygiene issues."

A short list of about a dozen names followed, stating that one of the B&R employees named them during a deposition as having some responsibility for safety/industrial hygiene. It also stated that the individuals could be reached care of Brown & Root.

The motion included similar examples of requests for the identities of industrial hygienists, industrial technicians and physicians – all with similar responses from Brown & Root.

The interrogatories for the industrial hygienists and physicians were the subject of two motions to compel, and Barnwell points out that the defendant's failure to properly answer was cited in the two sanctions orders.

Barnwell wrote that the defendant failed to disclose the identity of a former Brown & Root safety supervisor, who stated that he was aware in 1972 that asbestos was hazardous and could cause cancer.

"Again, defendant benefits from hiding witnesses with information," he wrote.

The plaintiff also requested "any documents, records, letters or memorandums concerning the knowledge of when this defendant first became aware that asbestos containing insulation products could produce the diseases of asbestosis, mesothelioma, lung cancer or any disease, or constituted any health hazard at all, and copies of tests or studies which were conducted by defendant to verify or disprove the truth of this knowledge."

Brown & Root answered: Defendant states that its awareness of certain diseases, associated with occupational exposure to asbestos, coincided with and was a result of the promulgation of regulations by OSHA in the early 1970s which addresses asbestos-related health hazards. Those documents have been produced at the office of defendant's counsel.

Barnwell asked for all documents relating to any danger or potential danger regarding asbestos insulation material, including any pamphlets, instruction booklets, manuals, material safety data sheets or brochures produced before 1987.

Brown & Root again stated that its records were not maintained in a way to enable defendant to respond to the request.

To the extent that the questions applied to jobsites at issue, Brown & Root said responsive documents, if they exist, could be found "in the contract files which will be produced at a mutually convenient time at the office of defense counsel."

"The witnesses and information defendant concealed are exactly the types of witnesses and documents needed to prove the requisite corporate knowledge in a gross neglect case," Barnwell wrote. "The information defendant failed to disclose is so material that it would probably lead to a different result in a new trial.

"An order granting a new trial is interlocutory and not subject to appellate review (see Cummins v. Paisan Constr. Co)," Barnwell wrote. "Plaintiff's motion should be granted because defendant withheld documents and witness information relevant to the case."

Floyd denied Barnwell's motion for new trial on Sept. 23, 2002.

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