Floyd grants new trial in scaffold case, appeals court oks

David Yates Apr. 21, 2009, 3:57am


In one year's time, 172nd District Judge Donald Floyd has granted two motions for new trials filed by displeased plaintiff's attorneys, tossing out two separate jury verdicts with little or no explanation.

Defendants in the cases have had no luck appealing Floyd's decisions either, as justices for the Texas Ninth District Court of Appeals have upheld his order in both cases.

On Thursday, April 16, the appeals court denied United Scaffolding's writ of mandamus, which argued Judge Floyd abused his discretion by granting a motion for new trial filed by plaintiffs James and Lisa Levine – a decision that put the already-tried case back on the court's July docket.

As the Record reported in December, a Jefferson County jury found that James Levine was 49 percent responsible for stepping through a hole in a scaffold and falling several feet, but still awarded the man $178,000 in future medical expenses.

Levine was awarded no damages for his alleged past and future mental anguish, impairment and pain. Nor did the jury award any damages to his wife Lisa, who sought money for her claim of loss of consortium.

Seeking a money award for his clients' assumed pain and loss, plaintiff's attorney Timothy Ferguson filed a motion for a new trial on Jan. 16, arguing the "jury's verdict was contrary to the overwhelming weight and preponderance of the evidence."

In his motion, Ferguson wrote that the jury's award of "zero damages" for the Levines' non-economic damages "is manifestly unjust" because the plaintiffs proved negligence.

United Scaffolding countered the attorney's motion by writing in its response that "justice has been served," and that the Beaumont Court of Appeals "explicitly disapproved" the zero damages rule, making the jury the "sole judge of credibility" of witnesses and evidence.

Judge Floyd disagreed, and on Jan. 30 granted the plaintiff's motion, ordering a new trial "in the interest of justice and fairness."

The order, which was only one sentence long, gave no other reasons for granting the motion.

On appeal, United Scaffolding contended the trial court abused its discretion by granting a motion for new trial "in the interest of justice and fairness" without identifying the particular injustice or wrongdoing that occurred in the case, court papers say.

"A new trial may be granted for good cause shown in a party's motion and may be granted when the damages are manifestly too small," states the appeals court's opinion, authored by Chief Justice Steve McKeithen.

"In this case, the Levines' motion for new trial clearly identified their specific complaint that the zero damages findings are manifestly too small … and United Scaffolding does not demonstrate that the trial court acted outside the limits of its discretion. Accordingly, we deny the petition for writ of mandamus."

This is the second time in the last year Floyd has overturned a jury verdict.

Throughout February and March 2008, Judge Floyd presided over a DuPont asbestos trial, which centered on deceased 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.

As the trial neared conclusion, plaintiffs' attorney Glen Morgan asked jurors to award the Whisnant family $1 billion in damages. When the jury found no negligence by DuPont, Morgan, a partner at Beaumont's Reaud, Morgan & Quinn, filed a motion for a new trial.

At a May 16, 2008, 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.

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

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 new trial was set to begin this month, but is on hold while DuPont takes the case to the Texas Supreme Court

Levine case history

As the Record reported, the personal injury trial of James and Lisa Levine vs. United Scaffolding et al began Dec. 8, 2008, and ended Dec. 12, when jurors found United Scaffolding 51 percent negligent in causing Levine's injuries, awarding him $178,000 in future medical expenses.

According to court documents, the day after Christmas 2005, Levine was working on a scaffold that had been erected by defendant United Scaffolding.

Levine was tightening a flange on an exchanger when one of the scaffold boards, which the plaintiffs allege was not "properly secured," shifted, "exposing a hole that Levine fell through," court documents state.

Levine's suit does not say how far he fell, but does say the fall resulted in injuries to his neck, shoulders and back.

United Scaffold is represented by attorney Kathleen Kennedy of Mehaffy Weber in Beaumont.

Case No. E177-607

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