DuPont gathering evidence for new asbestos trial

Marilyn Tennissen Aug. 20, 2008, 7:20am

Judge Donald Floyd

Earlier this year, attorneys for DuPont convinced a Jefferson County jury that the company was not responsible for a former employee's mesothelioma. But after the judge granted the plaintiff's motion for a new trial, the defendants are back to gathering evidence.

DuPont's lawyers plan to depose the record keeper for the contractor that employed the plaintiff, Willis Whisnant Jr., in preparation for the new trial set for Feb. 9, 2009.

A six week trial was held in late February and March of this year in the court of Judge Donald Floyd, 172nd District. The plaintiffs claimed that Whisnant contracted mesothelioma and died because of his exposure to asbestos at DuPont's Sabine River Works. Whisnant was a former B.F. Shaw pipe fitter who worked at DuPont back in 1966 as an independent contractor.

But jurors found no negligence on the part of DuPont and awarded nothing to Whisnant's family.

In May, plaintiffs' attorney Glen Morgan, partner at Beaumont's Reaud, Morgan & Quinn, said during the trial there had been indisputable evidence that DuPont knew of the hazards of asbestos for decades, but failed to provide a reasonably safe place to work or properly warn workers of the danger.

Morgan contended that the jury verdict was completely contradictory to the preponderance of the evidence. He submitted a motion for a new trial.

Without giving a reason for his decision, Judge Floyd granted Morgan's motion May 28. Morgan has asked Floyd's court coordinator to schedule the new trial for February.

DuPont's counsel said in earlier hearings they would likely submit exactly the same evidence in a new trial, but Sandra Clark of Beaumont's Mehaffy Weber notified the court July 29 that the defendants plan to depose Linda Krake, the corporate secretary and custodian of records for Blount International, one of DuPont's contractors.

The oral and videotaped deposition was originally set for Aug. 21, but due to a scheduling conflict Morgan asked that the deposition be rescheduled for Sept. 9.

DuPont has also subpoenaed employment cards and all other personnel and payroll records including applications, reviews, interoffice correspondence, notes, insurance claims, employee earning ledgers, workers' compensation, employee health records, quarterly statements, time sheets and absenteeism records of Whisnant, Carl Gantt, Bobby Shugart and Albert Cook. The men were all employees of B.F. Shaw or Blount International.

When Morgan argued for a new trial, he alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.

He tried to make a connection between the Southeast Texas Record's coverage of the Whisnant trial, DuPont and the U.S. Chamber of Commerce. The Southeast Texas Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

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

But DuPont's attorney M.C. Carrington said Morgan's request for a new trial was like kids asking for a "do over."

At the hearing Carrington argued that Morgan presented no legal reasons that justified a new trial.

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."

"The plaintiff is just arbitrarily asking the court to set aside because it didn't go their way," Carrington told Floyd in May.

After Floyd agreed to the new trial anyway, DuPont's counsel asked the Texas Ninth District Court of Appeals for a writ of mandamus, arguing that 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."

"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."

However, 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."

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