Floyd grants Morgan's request for new trial against DuPont

By Marilyn Tennissen | May 29, 2008

Judge Donald Floyd

Although attorneys for DuPont convinced a Jefferson County jury that the company was not responsible for a former employee's mesothelioma, the case is back to square one with Judge Donald Floyd's decision to order a new trial.

On May 28, Floyd granted plaintiff's attorney Glen Morgan's motion for new trial in the case of Caryl Richardson et al vs. DuPont. The two-paragraph order contained no reason for Floyd's decision, and stated only that the motion was granted.

The Record left a message with Floyd on May 29, which was returned by his court coordinator Kerrie Purgahn. Purgahn said Floyd told her he was unable to comment on an ongoing case.

At a hearing on May 16, Morgan contended that the jury verdict was completely contradictory to the preponderance of the evidence. He also alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.

The verdict came after a six week trial that concluded March 25 in Floyd's court. The plaintiffs claimed that a former DuPont employee, Willis Whisnant Jr., contracted mesothelioma and died because of his exposure to asbestos at the Sabine River Works.

However the jury found that there was no negligence on the part of DuPont and awarded the plaintiff nothing.

"This is a very unfortunate decision," DuPont's attorney M.C. Carrington said on May 29. "We believed that there was no basis whatsoever for a new trial, but evidently Judge Floyd disagreed. I am sorry that the jury's decision was not respected, they gave six weeks of their lives to reach the verdict. And it is unfortunate for taxpayers too, to spend the money on a six week trial and then have the plaintiff say 'we don't like it, do it over."

At the hearing, Morgan argued that during the trial there had been indisputable evidence that DuPont knew of the hazards of asbestos for decades, but failed to provide a reasonably safe place to work or properly warn workers of the danger. DuPont did not offer any evidence to the contrary, Morgan said.

Morgan also tried to make a connection between the Southeast Texas Record's coverage of the Whisnant trial, DuPont and the U.S. Chamber of Commerce. The Southeast Texas Record is owned by the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

He told Judge Floyd that the Chamber's goal was to have the Record influence juries by writing stories favorable to the defense and then making the paper available free of charge right outside the courthouse.

Because the verdict did not match the evidence, the jury may have been affected by an outside influence, like the Southeast Texas Record.

Carrington said Morgan's request for a new trial was like kids asking for a "do over."

At the hearing Carrington argued that Morgan presented no legal reasons that justified a new trial.

In a new trial, Carrington said the evidence would be exactly the same.

Carrington said that in 26 years practicing law, he had never seen a motion for a new trial as unusual as Morgan's, which contained no procedural complaints or case law.

He also said that Morgan had no evidence that the Southeast Texas Record had influenced the jury and that his allegations were only based on conjecture.

The plaintiffs' argument for a new trial, Carrington said, is based on Morgan's belief that if the jury didn't believe him "then something cannot be right, that there's no way he could lose."

He added that there was "no way" the verdict would get reversed if the case were to be reviewed by an appeals court.

"The plaintiff is just arbitrarily asking the court to set aside because it didn't go their way," Carrington told Floyd.

John Browning, a defense attorney from Gordon & Reese in Dallas who was not connected to the DuPont trial, said it was not that unusual for a trial judge not to elaborate on his reasons for granting a new trial.

"I have seen it several times," Browning said. "It is usually a safer route for the judge not to go into his reasons. A judge's silence leaves it up to the appellate court."

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