Dissenting opinion issued: Justice says Floyd should 'clarify' reasons for granting new trial

David Yates Jun. 29, 2010, 5:52am


Justice David Gaultney issued a dissenting opinion Thursday, in a case that has already been before the Ninth Court of Appeals twice, which says Beaumont Judge Donald Floyd needs to further clarify his reasons for granting plaintiffs a new trial following an unfavorable jury ruling.

"In this case, the trial judge has not explained with specificity why the jury's past damage findings are against the great weight and preponderance of the evidence and the verdict unjust, nor why he has substituted his judgment of the facts and the credibility of the witnesses for that of the jury," Gaultney wrote. "The trial court has not complied with ... the Supreme Court's specific instructions in this case."

In December 2009, a Jefferson County jury found that plaintiff James Levine was 49 percent responsible for stepping through a hole in a scaffold and falling several feet.

Levine was awarded no damages for his alleged past and futuremental 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.

However, the jury did award Levine $178,000 for future medical expenses.

Arguing that the jury's verdict was contrary to "the overwhelming weight and preponderance" of the evidence, plaintiff's attorney Tim Ferguson of Beaumont filed a motion for a new trial on Jan. 16, 2009, seeking a money award for his clients' presumed pain and loss.

Two weeks later, Judge Floyd granted the motion, ordering a new trial "in the interest of justice and fairness," court papers show.

No other reason was given.

Defendant United Scaffolding, represented by Kathleen M. Kennedy of Mehaffy Weber in Beaumont, appealed the judge's ruling. On April 16, 2009, the Ninth Court of Appeals denied the company's writ of mandamus.

Refusing to give up, United Scaffolding filed their petition for writ of mandamus in the Texas Supreme Court, court papers show.

In January, Supreme Court justices directed Floyd to state his reasons for disregarding the jury verdict.

As instructed, Judge Floyd crafted a new order, this time ruling that "the great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages."

Contending that the amended order "suffers from the same lack of specificity that plagued the original order," United Scaffolding once again appealed Judge Floyd's ruling.

And once again, the Ninth Court denied the company's appeal on
June 24, opining that Judge Floyd's new order "is reasonably specific."

However, this time Justice Gaultney disagreed, writing in a dissenting opinion that Judge Floyd "has not complied with the Supreme Court's instructions," and United Scaffolding's writ "should issue to compel rendition of judgment on the jury verdict."

"If a trial court concludes that the jury verdict is clearly wrong, and the work of the jury must be undone to prevent an injustice, a reasoned explanation for that conclusion is required," Justice Gaultney opined.

This is not the first time justices have vigorously debated a vague new trial order issued by Judge Floyd.

In July 2009, the Supreme 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 an asbestos trial against DuPont (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, which Floyd granted without offering a rationale behind his reasoning.

Judge Floyd has yet to state why he granted the plaintiffs a new trial in the DuPont case.

Trial case No. E177-607
Appeals case No. 09-10-00172-CV

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