Texas SC wants Judge Floyd's reasons for new trial in scaffold case

David Yates Jan. 20, 2010, 6:21am


For the second time in 12 months, Texas' highest court is directing Jefferson County 172nd District Court Judge Donald Floyd to state his reasons for disregarding a jury verdict and granting a plaintiff a new trial.

On Friday, Jan. 15, the Supreme Court of Texas granted, in part, United Scaffolding's petition for 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.

Floyd had written in his order that he granted the Levines' motion "in the interests of justice and fairness."

However, justices held in their opinion that granting a new trial "in the interests of justice and fairness" is not a "sufficiently specific reason," and a "relator challenging such an order does not have an adequate remedy by appeal."

"We conditionally grant, in part, United's petition for writ of mandamus," the court's per curiam opinion states. "We direct the trial court to specify its reasons for disregarding the jury verdict and ordering a new trial. We deny United's petition seeking mandamus directing the trial court to set aside its order granting a new trial. We are confident the trial court will comply."

As the Southeast Texas 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 for his injuries.

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' alleged pain and loss, plaintiff's attorney Timothy Ferguson filed a motion for a new trial on Jan. 16, 2009, arguing the "jury's verdict was contrary to the overwhelming weight and preponderance of the evidence."

After Floyd approved the motion on Jan. 30, 2009, United Scaffolding appealed, but was ultimately shot down by the Texas Ninth District Court of Appeals in Beaumont – forcing the company to petition the Supreme Court.

Not the first time

This is the second time in the last year the state Supreme Court has questioned Floyd for overturning a jury verdict.

In July 2009, the court ordered Floyd to give a reason why he abandoned the jury's findings in an asbestos trial against DuPont.

Throughout February and March 2008, Judge Floyd presided over a DuPont asbestos trial (Caryl Richardson et al vs. DuPont de Nemours, E179-183), which centered on deceased plaintiff Willis Whisnant Jr. 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.

When the jury found no negligence by DuPont, Glen Morgan, a partner at Beaumont's Reaud, Morgan & Quinn, filed a motion for a new trial.

At a hearing in May 2008, 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 Morgan's motion, but his two-paragraph order contained no reason for the decision.

Beaumont justices denied DuPont's appeal, ruling that "the discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus."

Floyd has yet to respond to the Supreme Court's order from July, and a new trial remains on the judge's docket for April.

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

Trial case No. E177-607
Supreme Court case No. 09-0403

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