Continuance granted, DuPont retrial put on hold while SC examines asbestos case

Last month, the Southeast Texas Record reported that DuPont petitioned the Supreme Court of Texas to enforce a civil jury verdict in the chemical company's favor after being shut down by a district court and an appeals court.

The retrial of Willis Whisnant Jr. et al vs. DuPont was first set to begin on Feb. 9 but was reset and slated for April. Now, the new trial has been put on hold indefinitely while the Supreme Court examines the case.

DuPont filed a motion for continuance on Feb. 18, asking 172nd District Judge Donald Floyd � the trial court judge who overturned the jury verdict and granted the plaintiff a new trial � to indefinitely approve its motion while the Supreme Court evaluated the case.

On March 12, an order approving the chemical giant's motion was filed in Jefferson County District Court.

Case history

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 - without giving a reason - 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.

Case No. E159-183-Q