Private meeting on new DuPont trial held in judge's chambers

David Yates Jul. 15, 2009, 11:42am

Shrouded from public eyes, attorneys for DuPont and from the Reaud, Morgan & Quinn law firm huddled inside Judge Donald Floyd's chambers and conducted a private meeting Wednesday morning.

The parties were scheduled for a public hearing on July 15 to address an ongoing controversy over the judge's decision to grant a defeated plaintiff a new trial in a wrongful death case against the chemical company.

DuPont wants Floyd to set aside his ruling for a new trial and let a Jefferson County jury verdict in their favor stand, or, at the very least grant a continuance and reset the trial date from September to April 2010.

Although the judge's docket indicated a courtroom hearing, the parties met instead in the judge's private chambers.

When the Southeast Texas Record staff inquired about the hearing, Floyd's court coordinator said the attorneys were "just meeting" and wanted their discussion "off the record."

Shortly after the meeting, Floyd granted DuPont's request for continuance.

Case background

The behind-closed-doors activity centers on a wrongful death case against DuPont that has already had one jury trial, been to an appeals court and was the subject of recent a state Supreme Court decision.

In 2008, Jefferson County jurors found that DuPont de Nemours did not maliciously and knowingly expose former employee Willis Whisnant Jr. to asbestos, which led to his death from mesothelioma.

Floyd signed the final order on April 17, 2008.

Shortly after the verdict, however, plaintiff's attorney Glen Morgan, a partner in Beaumont's Reaud, Morgan & Quinn, filed a motion for a new trial, arguing the jury's verdict was not supported by the evidence.

He also alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.

Floyd granted the Morgan's motion on May 28, 2008, but the judge offered no explanation for the basis of his decision to set aside the jury verdict.

A trial court's decision to grant a new trial in a civil case is not typically reviewable on appeal, so DuPont's attorneys sought mandamus relief from the Texas Ninth Court of Appeals. The DuPont legal team includes Sandra Clark of Mehaffy Weber in Beaumont.

The appeals court denied the company's motion.

"The discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus," the appeals court opined on July 24, 2008.

Under Texas procedural codes, mandamus is only available when the trial court has committed a clear abuse of discretion for which there is no adequate remedy on appeal.

Still not deterred, DuPont petitioned the Texas Supreme Court for a writ of mandamus, 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.

The Texas Supreme Court agreed, and in a 4-3 decision issued July 3, granted conditional mandamus relief to DuPont, directing Floyd to lay out his reasons for disregarding the jury's verdict before determining whether he abused his discretion.

After the high court's mandate, DuPont filed a motion on July 9 asking the Floyd to set aside his ruling.

"(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."

The second part of DuPont's motion, which asked Floyd to reset the trial date from September 2009 to "no earlier than January 2010," was granted.

Floyd's court coordinator did not know when or if Floyd intended to comply with the Texas Supreme Court mandate.

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