By DAVID YATES
When lawyers for Reaud Morgan & Quinn failed to secure the billion dollar verdict they sought against DuPont in 2008, they accused The Southeast Texas Record of influencing the jury and a Beaumont judge subsequently wiped the decision, setting the asbestos lawsuit on a path of appeal.
Seven years later, the Ninth Court of Appeals ordered Judge Donald Floyd, 172nd District Court, to enter a final judgment in favor of DuPont, which he did on April 30, court records show.
On May 29, the RM&Q law firm filed another motion for new trial, once again blaming The Record for the defeat.
“When one considers the overwhelming evidence of DuPont’s negligence … it becomes clear that someone or something outside the courtroom must have influenced the jury’s verdict,” the firm’s motion states. “In this case, that outside influence was almost certainly The Southeast Texas Record.”
The case stems from a 2007 lawsuit brought by Caryl Richardson, who, on behalf of her deceased father and refinery worker, Willis Whisnant Jr., sued DuPont in Jefferson County.
The plaintiffs were seeking more than a billion dollars in damages, claiming Whisnant was negligently exposed to asbestos-containing materials while working for DuPont, which led to his death.
Nonetheless, a jury found no negligence on the part of the chemical company in 2008.
Court records show that Whisnant, a former subcontractor for DuPont from 1966 to 1975, was in his late 70s when he died from cancer that the plaintiffs allege was caused by asbestos exposure.
Whisnant’s treating physician had diagnosed him with lung cancer and his official death certificate attributed his death to lung cancer probably caused by smoking, court papers say.
Following the no negligence verdict, plaintiff’s attorney Glen Morgan, a RM&Q managing partner, filed a motion for a new trial, arguing the evidence did not support the jury’s verdict.
He further accused The Record of influencing the jury by reporting on the trial.
Floyd granted the motion in a May 28, 2008, order, but offered no explanation for his decision.
DuPont appealed, and the case circulated through the appellate courts before the Texas Supreme Court in 2009 ordered Floyd to disclose his reasons for granting the new trial, court records show.
After a long series of continuances, on Sept. 10 Floyd once again issued an order granting Morgan’s motion for a new trial, finding that the jury’s answer of “no” as to the question of DuPont’s alleged negligence is against the “great weight and preponderance of the evidence.”
Unlike his previous one-page order, Floyd’s second order, which was submitted by RM&Q, went on for six-pages and cites the testimony of the plaintiffs’ experts and Whisnant’s co-workers as the reasons behind his decision.
DuPont appealed in October, asserting Floyd’s order did not “pass muster,” court papers say.
“The trial court granted a new trial on grounds that the jury’s verdict against Plaintiffs was contrary to the great weight and preponderance of the evidence, adopting verbatim an order prepared by Plaintiffs’ counsel that ignored the evidence supporting the verdict and, further, wrongly stated that DuPont produced no such evidence,” stated DuPont’s petition for writ of mandamus.
The Ninth Court found that the record does not support Floyd’s rationale for ordering a new trial, according to the court’s April 23 opinion.
In its most recent motion for a new trial, the RM&Q law firm argues that because The Record is owned by the U.S. Chamber of Commerce, the business federation attempted to influence jurors through the “newspaper’s biased reporting” during the 2008 trial.
The motion specifically points to a March 13, 2008, Record article entitled: “Debate over evidence escalates in DuPont asbestos trial.”
RM&Q argues the article references evidence that Floyd did not allow the jury to hear.
The article states: “DuPont’s attorneys wanted to enter B.F. Shaw employee records that they believe show that (Whisnant) spent most of his time at DuPont Sabine Works isolated away from asbestos. B.F. Shaw closed in 1988 and the company’s records were warehoused in Alabama. However after DuPont was finally able to recover the records, Floyd did not allow them to be entered as evidence.”
The motion contends the article “crossed the line.”
“It is bad enough that the Southeast Texas Record published an article that described the excluded evidence in a manner that was favorable to DuPont and made it available for free at the courthouse and online during the trial,” the motion states, adding that the alleged B.F. Shaw employment records in question actually show that Whisnant spent a portion of his time in the field.”
Although the motion offers no evidence to support the claim, RM&Q maintains that it “is very possible that one or more of the jurors in this case read this article and learned of information properly excluded from evidence by this honorable court.”
RM&Q theorizes that the foreman of the jury, Jerry Plaia, may have read the article because he is married to the executive director of the Port Neches Chamber of Commerce.
“If one or more of the jurors was made aware of the content of these articles, this would certainly have benefitted DuPont and may very well explain why the jury reached a verdict that was contrary to the overwhelming weight and preponderance of the evidence,” the motion states.
Campaign finance records show the RMQ law firm and its attorneys are top contributors to Floyd’s re-election campaigns.
DuPont is represented in part by MehaffyWeber attorneys Sandra Clark and M.C. Carrington.
Trial case No. E159-183Q
Appeals case No. January 31, 2010465-CV