DuPont asking Floyd to set aside new trial decision

David Yates Jul. 14, 2009, 7:47am

Last week, the Texas Supreme Court ordered Jefferson County District County Judge Donald Floyd to disclose his reasoning behind granting a defeated plaintiff a new trial against DuPont. Now DuPont is asking the local judge to set aside his ruling.

DuPont filed the motion July 8, arguing that the Texas Ninth District Court of Appeals should get a crack at examining plaintiff Caryl Richardson's complaints before Judge Floyd expands upon his original March 2008 ruling.

In a 2008 wrongful death trial, jurors found that DuPont de Nemours did not maliciously and knowingly inflict the late Willis Whisnant Jr. with an asbestos illness. Whisnant, a former subcontractor for DuPont, died from mesothelioma in his late 70s. A final judgment was signed by Judge Floyd on April 17, 2008.

Shortly after the verdict, plaintiff's attorney Glen Morgan's filed a motion for a new trial, arguing the jury's verdict was not supported by the evidence. Floyd granted the motion in a May 28, 2008, order, but offered no explanation for the basis of his decision to allow a new trial.

In a 4-3 decision issued July 3, Texas Supreme Court justices granted conditional mandamus relief to DuPont, directing Floyd to set out his reasons for disregarding the jury's verdict.

The high court did not, however, make a decision regarding DuPont's claim that the judge abused his discretion by granting the new trial motion. Justices want to examine Floyd's reasons before determining if he abused his discretion.

In the meantime, DuPont will ask Judge Floyd to set aside his order granting the plaintiffs' motion for a new trial and to also reinstate the final judgment at a hearing on July 15.

"(Doing so) would allow Plaintiffs to take their complaints about the jury verdict to the court of appeals via ordinary appeal," DuPont's motion states.

"The court of appeals can then conduct the detailed review and analysis of the record that otherwise will need to be performed by this court to comply with the Texas Supreme Court's July 3, 2009, mandamus ruling."

Alternatively, DuPont is also asking Judge Floyd to reset the trial date, from September 2009 to "no earlier than January 2010."
DuPont is represented in part by Mehaffy Weber attorney Sandra Clark.

The Whisnant family is represented by attorney Glen Morgan, a partner in the Reaud, Morgan Quinn law firm.

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 claimed he 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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