Retrial of man’s scaffold injury continued

David Yates Oct. 23, 2013, 4:18pm

United Scaffolding will have to wait a few more months before attempting to convince a jury -- for the second time -- that plaintiff James Levine was the one at fault when he fell from a scaffold and injured himself.

The retrial of Levine vs. United Scaffolding was set to begin Oct. 21.

However, the parties failed to select a jury, forcing the case to be continued until sometime in February, according to a courthouse official. 

Last November, Judge Donald Floyd, Jefferson County 172nd District Court, granted Levine a new trial against United Scaffolding, signing off on his second amended order granting motion for new trial, court records say.

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.

However, 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.

However, that would not be the last time the Supreme Court made a ruling on the case.

On Aug. 31, 2012, for the second time, the high court directed Judge Floyd to definitively state his reasons for disregarding the jury verdict and granting Levine a new trial.

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.

Plaintiff’s counsel then submitted the second amended order for Judge Floyd approval.

The three-page order stated that the jury’s answer was against the great weight and preponderance of the evidence.

Beaumont attorney Chris Portner of Portner Bond is among counsel representing the plaintiff.

Trial case No. E177-607

Texas Supreme Court case No. 10-0526

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