DuPont asbestos trial still slated for April despite motion to remove

David Yates Jan. 20, 2010, 8:34am


Although the retrial of an asbestos suit looms only three months away, Judge Donald Floyd has still not made a ruling on DuPont's unopposed motion to remove the case from the April trial docket.

Over the past two years, the Record has reported on the case of Caryl Richardson vs. DuPont de Nemours on behalf of deceased worker Willis Whisnant Jr.

DuPont won a jury verdict in early 2008, However, Judge Floyd, Jefferson County 172nd District Court, tossed out the jury's decision and subsequently granted Richardson's motion for a new trial without any explanation for the ruling.

After two appeals and numerous hearings, in July the Texas Supreme Court ordered Judge Floyd to disclose his reasons for granting the new trial.

But before Judge Floyd could craft a new order, DuPont asked him to set aside his ruling. In a motion filed July 8, DuPont argued that the Texas Ninth District Court of Appeals should get a crack at examining the plaintiff's complaints before Judge Floyd expanded upon his original March 2008 ruling.

Ultimately, the judge has yet to rule on DuPont's motion or give a reason on why he ordered a new trial, leaving the case on his trial docket for April.

On Dec. 9, DuPont filed an unopposed motion to remove the case from the docket but more than a month later, the trial remains slated for spring 2010.

In its motion, DuPont asks Floyd to remove the case because the parties "should not be put to the expenditure of time, effort and resources necessary to prepare for an April trial date while the Court has the new-trial issues under consideration."

"The Court ultimately may conclude that the order granting a new trial should be set aside and the Final Judgment reinstated," the motion states. "On the other hand, if the Court concludes that a new trial still should be granted, then the Court will need to provide an opinion that complies with the Supreme Court's mandamus decision.

"Any such opinion would be subject to potential mandamus review in the (Ninth) Court of Appeals and potentially the Texas Supreme Court."

Case background

In a 2008 wrongful death trial, jurors found that DuPont 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.

Morgan also accused the Record of jury tampering and of being agents of DuPont.

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.

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 the 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 stated.

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, court papers say.

DuPont is represented in part by Mehaffy Weber attorney Sandra Clark.

Morgan is a partner in the Reaud, Morgan Quinn law firm.

Another of Floyd's cases, Levine vs. United Scaffolding et al (Supreme Court Case No. 09-0403),has the state Supreme Court asking the judge the same question. Floyd granted a new trial at the plaintiffs' request, stating his reason as "in the interest of justice."

On Jan. 15, the court ruled that was not a sufficient explanation and asked the judge to provide more information behind his reason.

Caryl Richardson et al vs. DuPont de Nemours, Jefferson County Case No. E179-183.

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