Ninth Court to examine judge’s order granting a new asbestos trial against DuPont

A few weeks from now, the Texas Ninth Court of Appeals will once again examine a Beaumont judge’s decision to throw out a jury verdict in favor of of DuPont De Nemours following a billion-dollar asbestos trial.

Since 2007, the Southeast Texas Record has reported on the asbestos litigation 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, defeating a group of plaintiffs that sought as much as $4.1 billion in damages, court records show.

Following the no negligence verdict, plaintiff’s attorney Glen Morgan, of the Beaumont law firm Reaud, Morgan & Quinn, filed a motion for a new trial, arguing the evidence did not support the jury’s verdict.

He also accused the Southeast Texas Record of jury tampering and of being agents of DuPont, court papers say.

Judge Donald Floyd, 172^nd District Court, 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 Judge 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 most recent order goes on for six-pages and cites the testimony of the plaintiffs’ experts and Whisnant’s co-workers as the reasons behind his decision.

A month later, DuPont appealed, asserting Floyd’s order does 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,” states DuPont’s petition for writ of mandamus.

“As this petition will demonstrate, the trial court misapplied Texas law which: (one) limits the discretion of trial courts to reasons that are legally valid when nullifying jury verdicts and granting new trials, (two) prohibits courts from granting new trials on great-weight grounds based solely on evidence supporting one side, and (three) prohibits courts from nullifying jury verdicts on greatweight grounds when the record shows that the jury resolved conflicting evidence and credibility issues.”

Ninth Court justices will hear oral arguments on Jan. 22.

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 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.

Floyd's relationship with Reaud Morgan & Quinn extends past the courtroom.

Morgan and his firm (RMQ) were one of Floyd’s top financial supporters in his 2013-2014 campaign for re-election, which the judge narrowly won on Nov. 4.

Campaign finance records show RMQ donated $15,000 to Floyd on Nov. 26, 2013. A few weeks earlier, Reaud & Associates donated $15,000 on Nov. 4, 2013.

Furthermore, Floyd’s unspecific orders granting new trials to plaintiffs have been a matter for review for the Supreme Court in the past.

As previously reported, On Aug. 31, 2012, the high court granted, in part, United Scaffolding’s petition for writ of mandamus, which argued 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, simply stating that it was “in the interests of justice and fairness.”

DuPont is represented in part by MehaffyWeber attorney Sandra Clark and M.C. Carrington.

Trial case No. E159-183Q

Appeals case No. 09-14-00465-CV