David Yates Sep. 4, 2012, 9:18am

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

On Aug. 31, the Supreme Court of Texas granted, in part, United Scaffolding’s petition for writ of mandamus, which argued Judge Floyd’s amended order for granting a new trial was still too vague.

In December 2008, 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, 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 or pain. Nor did the jury award any damages to his wife, Lisa, who sought money for loss of consortium, court records show.

At the plaintiffs’ request, Floyd granted the Levines a new trial, stating that it was “in the interests of justice and fairness.”

The order was appealed all the way to the Texas Supreme Court, where 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,” court papers say.

Court records show that following the Supreme Court’s ruling, Judge Floyd amended his order to say:

• The jury’s answer to question number three is against the great weight and preponderance of the evidence; and/or

• The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant was a proximate cause of injury in the past to Plaintiff, James Levine; and/or

• The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages; and/or

• In the interest of justice and fairness.

Once again, United Scaffold appealed the amended order all the way to the Supreme Court.

“In this order, the use of and/or leaves open the possibility that ‘in the interest of justice and fairness’ is the sole rationale. Because that is never an independently sufficient reason for granting a new trial, the amended order violated the first prong of the test we announce above,” states the Supreme Court’s Aug. 31 opinion.

“Therefore, we conditionally grant the writ of mandamus in part and instruct the trial court to vacate its amended order. The trial court should issue a new order that resolves the ambiguity discussed above and elaborate, with reference to the evidence adduced at trial, how the jury’s answers are contrary to the great weight and preponderance of the evidence.”

The high court’s ruling will also impact another case in which Floyd granted the plaintiffs a new trial without stating his reasons.

Since 2007, the Southeast Texas Record has reported on the asbestos litigation against DuPont filed by plaintiff Caryl Richardson on behalf of her deceased father and refinery worker, Willis Whisnant Jr.

DuPont won a jury verdict in early 2008. However, Judge Floyd tossed out the jury’s decision and granted plaintiff’s attorney Glen Morgan’s motion for a new trial without any explanation for the ruling.

Court records show DuPont filed an unopposed motion for continuance on July 5, asking Judge Floyd to continue the case because the Supreme Court is considering a critical issue related to his order in granting a new trial.

DuPont’s motion states that the Supreme Court’s ruling in the case In re United Scaffolding will have relevance to the order in its case.

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

Plaintiff’s attorney Timothy Ferguson represents the couple

Trial case No. E177-607

Supreme Court case No. 10-0526

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