Inexplicably shut down by a district court and an appeals court, DuPont has turned to a higher power in hopes the Supreme Court of Texas will enforce a civil jury verdict in the chemical company's favor.
In the meantime, however, DuPont is asking 172nd District Judge Donald Floyd Ã¯Â¿Â½ the man who overturned the verdict by granting the plaintiff a new trial Ã¯Â¿Â½ to indefinitely approve its motion for continuance while the Supreme Court evaluates the case.
Earlier this month, the Record reported that the retrial of Willis Whisnant Jr. et al vs. DuPont was set to begin on Feb. 9 but was reset and slated for April.
If DuPont's motion, which was filed Feb. 18, is approved, the trial will be put on hold until Texas' highest justices author an opinion.
Last year, attorneys for DuPont convinced a Jefferson County jury that the company was not responsible for former contractor Whisnant's mesothelioma. A few months later, Judge Floyd Ã¯Â¿Â½ without giving a reason Ã¯Â¿Â½ granted the plaintiff's motion for a new trial and set the date for Feb. 9.
The only insight into the judge's decision is the plaintiff's motion for a new trial and subsequent hearing, in which plaintiff's attorney Glen Morgan argued the jury verdict was completely contradictory to the preponderance of the evidence, and that Record trial coverage was an "improper communication to the jury," court papers say.
DuPont attorneys appealed the judge's ruling, and on July 24 the Texas Ninth District Court of Appeals denied the company's writ of mandamus, opining that "the discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus."
Not deterred by the two defeats, DuPont filed a petition for writ of mandamus in Texas' Supreme Court, contending that "no legitimate policy exempts trial judges from giving a legal reason for granting a new trial," according to a relator's reply brief on the merits, adding that minimal due process requires that a trial court state the reason a new trial is granted.
The brief also ask justices to consider if "the mere presence of newspaper accounts of a trial is a 'communication to the jury' that justifies a new trial."
"Requiring trial judges to state a reason for a new trial is the only way to satisfy this Court's 139-year-old admonition that new trials cannot be granted on 'the arbitrary will and pleasure of the judge presiding," the brief states.
The trial of Whisnant et al vs. DuPont was held in late February and March of 2008.
The plaintiffs claimed that Whisnant contracted mesothelioma and died because of his exposure to asbestos at DuPont's Sabine River Works. Whisnant was a former B.F. Shaw pipe fitter who worked at DuPont back in 1966 as an independent contractor.
Jurors found no negligence on the part of DuPont and awarded nothing to Whisnant's family.
During the trial, Morgan argued that 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.
A month following the verdict, Morgan submitted a motion for a new trial, contending that the jury verdict was completely contradictory to the preponderance of the evidence.
Without giving a reason for his decision, Judge Floyd granted Morgan's motion May 28, 2008. Morgan asked Floyd's court coordinator to schedule the new trial for February.
When Morgan argued for a new trial, he alleged that coverage of the trial by the Southeast Texas Record may have influenced the jury's decision.
He 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.
Morgan 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.
At the hearing DuPont's attorney M.C. Carrington argued that Morgan presented no legal reasons that justified a new trial.
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."
After Floyd agreed to the new trial anyway, DuPont's counsel asked the Ninth District of Appeals for a writ of mandamus, arguing that harmless newspaper reports are not improper communications to a jury, nor should a judge grant a new trial on the "speculative inference that jurors read news articles about the case during the trial."
"The trial court did not state a reason for granting a new trial," DuPont's writ argued. "Because a new trial in a jury-tried case erodes the right to trial by jury, minimal due process requires that a trial court state the reason a new trial is granted."
Case No. E159-183-Q