Date for new asbestos trial against DuPont rescheduled to April

David Yates Feb. 3, 2009, 9:33am

Last year, attorneys for DuPont convinced a Jefferson County jury that the company was not responsible for a former contractor's mesothelioma. A few months later, the judge granted the plaintiff's motion for a new trial and set the date for Feb. 9, 2009.

However, before jurors could be summoned, the trial was reset and is now slated for April, according to a court employee.

The trial of Willis Whisnant Jr. et al vs. DuPont was held in late February and March of 2008 in Judge Donald Floyd's 172nd District Court.

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.

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

During the trial, plaintiffs' attorney Glen Morgan, argued that 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.

A month following the verdict, Morgan submitted a motion for a new trial, contending that the jury verdict was completely contradictory to the preponderance of the evidence.

Without giving a reason for his decision, Judge Floyd granted Morgan's motion May 28, 2008. Morgan asked Floyd's court coordinator to schedule the new trial for February.

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, which owns the Southeast Texas Record.

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 2008.

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."

Case No. E159-183-Q

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