Appellate court tells Floyd to enter DuPont judgment

Jefferson County District Judge Donald Floyd tried again to award a new trial to an asbestos plaintiff, and again he failed.

On April 23, Ninth District appellate judges in Beaumont directed Floyd to enter judgment on a jury verdict in favor of chemical manufacturer DuPont.

Floyd held trial for the estate of Willis Whisnant in 2008, and ordered a new trial after jurors cleared DuPont.

In 2009, the Supreme Court of Texas ruled that Floyd could not order a new trial unless he explained his reasons.

It took Floyd five years to craft an explanation, and the one he crafted didn’t fly.

“We conclude that the record does not support the trial court’s rationale for ordering a new trial,” Ninth District judges wrote. “We are confident that the trial court will vacate its order granting Whisnant’s motion for new trial and enter judgment on the jury’s verdict.”

According to DuPont lawyers, Floyd didn’t write the new trial order but simply signed one that Whisnant’s lawyers wrote.

Whisnant filed an asbestos suit in 1998, and died a year later.

His death certificate listed lung cancer as his cause of death. He had smoked cigarettes for 40 years.

In 2007, lawyers at Reaud, Morgan & Quinn engaged experts who concluded that Whisnant died of mesothelioma.

The trial lasted a month, and ended with a verdict that DuPont’s negligence was not a proximate cause of injury.

Plaintiff lawyer Glen Morgan moved for a new trial, and Floyd granted it.

DuPont petitioned the Ninth District for relief, and Ninth District judges denied it. DuPont petitioned the Supreme Court for relief, and the Justices decided to review the case along with another like it.

The Justices split on the two cases, with five requiring an explanation for a new trial and four deferring to a trial judge’s discretion.

Last July, Morgan sent DuPont a proposed order granting a new trial.

In August, Floyd denied the new trial motion he had granted in 2008.

He signed final judgment in DuPont’s favor.

On Sept. 4, Morgan filed a motion identical to the one Floyd had just denied. On Sept. 10, Floyd held a hearing and granted the motion.

He signed an order finding that the verdict went against the great weight and preponderance of the evidence.

DuPont petitioned the Ninth District for relief, which it obtained rather quickly.

Chief Justice Steve McKeithen and Justices Charles Kreger and Leanne Johnson heard oral argument on Jan. 22, and issued a decision in three months.

They held that a defense verdict “does not have to be supported by a preponderance of the evidence or even affirmative evidence, because to require such would incorrectly shift the burden of proof.”

They wrote that witnesses Carl Gantt and Bobby Shugart had active asbestos suits with the same lawyers as Whisnant.

“In weighing the credibility of the witnesses, the jury could have considered it to be important that neither Gantt nor Shugart was completely disinterested,” they wrote.

They said jurors could have believed that DuPont’s witnesses provided a more accurate depiction of working conditions on its premises. They also said jurors could have concluded that Whisnant failed to establish that DuPont knew of the danger asbestos posed to contract employees like him.

They wrote that jurors could have believed that DuPont took safety measures, and could have disregarded testimony that it didn’t enforce the measures.

They said pathologist Samuel Hammar admitted that without diagnostic tools, he could not differentiate between lung cancer and mesothelioma.

They wrote that jurors could have believed that prior exposure at other facilities caused Whisnant’s disease, if any.

Sandra Clark of Beaumont led DuPont’s legal team.