Texas SC orders Floyd to give reasons for new DuPont trial

Marilyn Tennissen Jul. 4, 2009, 8:13am

The Texas Supreme Court has ordered Jefferson County Judge Donald Floyd to give the reasons behind his decision to grant the plaintiff a new wrongul death trial against DuPont.

In a 2008 trial, jurors found DuPont de Nemours was not responsible for the wrongful death from mesothelioma of former employee Willis Whisnant Jr.

Shortly after the verdict, Floyd granted the plaintiff's motion for a new trial but offered no explanation for the basis of his decision.

In a 4-3 decision issued July 3, justices granted conditional mandamus relief directing the trial court to set out its reasons for disregarding the jury's verdict.

The court did not, however, make a decision regarding DuPont's claim that the judge abused his discretion by granting the new trial motion "in any event."

"Accordingly, we deny, without prejudice, any relief beyond directing the trial court to specify its reasons for granting the new trial," wrote Justice Phil Johnson.

Johnson was joined by Justices Nathan Hecht, Dale Wainwright, Scott Brister and Don Willett.

The justices based their decision on In re Columbia Medical Center of Las Colinas, Johnson wrote.

In In re Columbia, the state Supreme Court decided that the trial court acted arbitrarily and abused its discretion by not specifically and in a reasonable manner setting out the reasons it disregarded a jury verdict and granted a new trial.

Justice Harriet O'Neill filed a dissenting opinion in which Chief Justice Wallace Jefferson and Justices David Medina and Paul Green joined.

Case Background

In March 2008, after a six week trial in Floyd's 172nd District Court, jurors found in favor of the defendant DuPont. The family of former DuPont employee Whisnant developed mesothelioma and died because of his exposure to asbestos at DuPont's Sabine River Works.

Jefferson County jurors found no negligence on the part of the chemical company and awarded nothing to Whisnant's family.

Shortly after the trial concluded however, plaintiff's attorney Glen Morgan, of Beaumont's Reaud Morgan & Quinn law firm, contended that the jury verdict was completely contradictory to the preponderance of the evidence. He also alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.

Floyd set aside the jury verdict and granted Morgan's motion for a new trial on May 28, 2008.

DuPont's attorneys appealed the Floyd's decision, and on July 24, 2008, the Texas Ninth District Court of Appeals denied the company's writ of mandamus, opining that "the discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus."

Not deterred by the two defeats, DuPont filed a petition for writ of mandamus in Texas' Supreme Court, contending that "no legitimate policy exempts trial judges from giving a legal reason for granting a new trial."

"Requiring trial judges to state a reason for a new trial is the only way to satisfy this Court's 139-year-old admonition that new trials cannot be granted on 'the arbitrary will and pleasure of the judge presiding," DuPont's brief to the court states.

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