Another displeased plaintiff seeks new trial in Floyd's court

David Yates May 6, 2009, 8:17am

In March, the Record reported on an automobile collision trial in which jurors awarded plaintiff Sherrie Pool $1,500 in damages.

Although she scored a victory, on May 8 Pool will ask the presiding judge to grant her a new trial.

If Judge Donald Floyd, 172nd Judicial District, grants her request it will be at least the third time in a year he has granted a new trial at the demand of dissatisfied plaintiffs.

Pool, along with her attorney Giles Kibbe of the Weller, Green, Toups & Terrell law firm in Beaumont, are arguing that the verdict was not in sync with the evidence and that Pool should have been awarded damages for her physical pain and mental anguish.

The three day trial of Pool vs. William Connally ended March 13, with Jefferson County jurors awarding Pool $300 in past medical expenses and $1,210.80 in property damage, although jurors found Connally to be only 30 percent responsible for causing the automobile collision.

Court documents show Pool sued Connally and another individual by the name of Don Jorgensen in August 2006, claiming both defendants caused a car wreck on Interstate 10 nearly five years ago.

According to Pool's suit, on Aug. 31, 2004, she was traveling on I-10 when a traffic jam forced her to come to a complete stop on the freeway.

"Connally was traveling behind plaintiff's vehicle and failed to stop within a safe distance," the suit states, adding that Jorgensen, who was traveling behind Connally, rear-ended him and forced his vehicle to strike Pool's.

Rather than defend himself in court, Jorgensen opted to settle on Jan. 29, court papers say.

During Connally's trial, jurors found that Jorgensen was 70 percent liable for causing the collision, but still decided to award damages to Pool. Connally was represented by Mark Lambert, attorney for the Benckenstein, Norwell and Nathan law firm in Beaumont.

Motions in limine prohibited the defense from telling jurors that Pool received insurance proceeds and money from other avenues, such as her employer, Social Security, Welfare and the Veterans Administration.

In May, the Record reported that a new trial was granted to a man who was injured when he fell from a scaffold. A Jefferson County jury found that plaintiff James Levine was 49 percent responsible for stepping through a hole in a scaffold, but ordered United Scaffold to pay him $178,000 in medical expenses.

Levine's attorney requested a new trial because the jury's award of "zero damages" for the Levines' non-economic damages was "manifestly unjust" because the plaintiffs proved United Scaffold was also negligent.

United Scaffold appealed to the Ninth District, but was denied on April 19 when justices found that the company did not prove that Judge Floyd had acted outside his discretion.

In February and March of 2008, Judge Floyd presided over a DuPont asbestos trial, which centered on deceased plaintiff Willis Whisnant Jr., a former B.F. Shaw pipe-fitter. His family claimed his death was caused by workplace exposure to asbestos.

After jurors found no negligence on the part of DuPont, plaintiffs' attorney Glen 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.

Floyd granted a new trial on May 28, 2008, without explaining his decision. DuPont sought a writ of mandamus to have Floyd enforce the jury verdict, but was rejected by the Ninth District. Justices said the discretion of the trial court could not be controlled by mandamus.

A new trial was set to begin in April, but is on hold while DuPont appeals to the Texas Supreme Court.

Pool vs. Connally, Jefferson County Case No. E177-616

Editor Marilyn Tennissen contributed to this story.

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