Appeals court denies DuPont's mandamus request regarding new asbestos trial

David Yates Jul. 29, 2008, 11:32am

M.C. Carrington

Harmless newspaper reports are not improper communications to a jury, nor should a judge grant a new trial on the "speculative inference that jurors read news articles about the case during the trial," wrote an attorney for DuPont in a petition for a writ of mandamus.

DuPont sought the writ from the Texas Ninth District Court of Appeals after a local judge tossed out a jury verdict in favor of the chemical company.

The judge granted the plaintiff's request for a new trial because of alleged jury influence by the Southeast Texas Record.

Beaumont justices denied DuPont's appeal July 24, ruling that "the discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus."

A writ of mandamus is filed in an appeals court to correct a lower court's assumed clear abuse of discretion.

Throughout February and March, 172nd District Judge Donald Floyd presided over a DuPont asbestos trial, which centered on plaintiff Willis Whisnant Jr., a former B.F. Shaw pipe-fitter who worked at DuPont back in 1966 as an independent contractor.

His family claimed he was exposed to enough asbestos fibers to contract mesothelioma, a lung condition that took his life in 1999 at age 72.

After deliberating two full days, on March 25 jurors found no negligence by DuPont.

As the trial neared conclusion, plaintiffs' attorney Glen Morgan had asked jurors to award the Whisnant family $1 billion in damages. When the verdict left him empty handed, Morgan, a partner at Beaumont's Reaud, Morgan & Quinn, filed a motion for a new trial.

At a May 16 hearing, Morgan contended that the jury verdict was completely contradictory to the preponderance of the evidence, and alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.

On May 28, Floyd granted Morgan's motion. The two-paragraph order contained no reason for Floyd's decision, and stated only that the motion was granted.

"The trial court did not state a reason for granting a new trial," DuPont's writ argued. "Because a new trial in a jury-tried case erodes the right to trial by jury, minimal due process requires that a trial court state the reason a new trial is granted."

The Record attempted to ascertain Floyd's reasoning for a new trial, but was told by the court coordinator that the judge was unable to comment on an ongoing case.

"It is true that the newspaper reported on the trial, as it had a First Amendment Right to do, and just as thousands of newspapers in the nation do every day," DuPont's petition states. "But, there was no proof in (Morgan's motion for a new trial) that jurors read the articles or that the articles influenced the jurors' deliberations."

During the May 18 hearing, Morgan tried to make a connection between The Record's coverage of the Whisnant trial, DuPont and the U.S. Chamber of Commerce, which owns the Southeast Texas Record.

He told Judge Floyd that the Chamber's goal was to have the Record influence juries by writing stories favorable to the defense and then making the paper available free of charge right outside the courthouse.

He also said that because the verdict did not match the evidence, the jury may have been affected by an outside influence, like the Southeast Texas Record.

DuPont, conversely, saw Morgan's motion and Floyd's subsequent decision in a different light.

"The trial court failed to analyze and apply the law properly with respect to plaintiffs' claim that the jury's failure to find in their favor was against the great weight and preponderance of the evidence," the petition for writ of mandamus states.

"The only evidence plaintiffs offered to prove jury misconduct through a 'communication made to the jury' … was a series of innocuous newspaper articles reporting on the trial," the request says.

To no avail, DuPont's attorneys had asked the appeals court to force Judge Floyd to state "a reason for granting the new trial," and for a mandamus review of The Record's alleged improper communications to a jury.

The Record was not able to reach DuPont attorneys Sandra Clark, M.C. Carrington or Larry Cotton for comment regarding the denial of the petition.

Clark and Carrington are attorneys for the Mehaffy Webber law firm. Cotten is a partner in the Fort Worth law firm Cotten Schmidt.

Appeals Case No. NO. 09-08-318 CV

Trial Case No. E159-183Q

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