In Re E.I. Dupont De Nemours and Company
463 S.W.3d 80
Tex. App.2015Background
- Willis N. Whisnant Jr., a pipefitter, worked intermittently at DuPont’s Sabine River Works in the 1960s–1970s; he had long-term asbestos exposure working at multiple sites and a 40-year smoking history.
- Whisnant was diagnosed with lung cancer in 1997 and died in 1999; years later his counsel secured expert opinions reclassifying the disease as mesothelioma and amended the pleadings.
- After a five-week trial in 2008 a jury answered “No” to whether DuPont’s negligence proximately caused Whisnant’s injury; the trial court entered a take-nothing judgment but then granted a new trial (without initially explaining reasons), prompting mandamus review by the Texas Supreme Court and remand.
- On remand the trial court again entered a take-nothing judgment, Whisnant again moved for a new trial, and the trial court granted it—stating the jury’s “No” answer was against the great weight and preponderance of the evidence and listing specific evidentiary findings.
- DuPont sought mandamus relief in the Ninth Court of Appeals arguing the new-trial order improperly substituted the judge’s view for the jury’s, ignored evidence supporting the verdict, and lacked a legally valid basis; the appellate court reviewed the record and conditionally granted mandamus, holding the trial court abused its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the trial court’s new-trial order sufficiently specific? | Whisnant: order gave understandable, reasonably specific reasons; detail not required. | DuPont: order parrots proposed form and lacks legal grounding for overturning verdict. | Court: order was sufficiently specific to permit review. |
| Did the record support a conclusion that the jury’s “No” finding was against the great weight and preponderance of the evidence? | Whisnant: overwhelming evidence (co‑workers’ testimony, industrial hygienist, corporate knowledge, physician opinions) supported liability. | DuPont: record contains substantial, creditable evidence supporting the jury (contradictory testimony, safety programs, credibility questions). | Court: record did not support setting aside the jury verdict; new trial was an abuse of discretion. |
| Was the mandamus record sufficient/authenticated for review? | Whisnant: complaint that daily transcripts/excerpts were not certified made the record insufficient. | DuPont: parties supplied the same documents considered by the trial court with affidavits certifying accuracy. | Court: record was sufficient and properly authenticated for merits review. |
| Appropriate remedy for erroneous new-trial order? | Whisnant: sought new trial be upheld. | DuPont: requested mandamus relief directing trial court to vacate new-trial order and render judgment on the jury verdict (or at least better explanation). | Court: conditionally granted mandamus and directed trial court to vacate its new-trial order and enter judgment on the jury’s verdict (writ to issue if it fails to do so). |
Key Cases Cited
- In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746 (Tex. 2013) (appellate courts must conduct merits-based review of new-trial orders and require trial courts to give reasonably specific, legally valid reasons)
- Herbert v. Herbert, 754 S.W.2d 141 (Tex. 1988) (respect for jury verdicts; trial courts should not substitute their judgment for the jury’s)
- In re Columbia Med. Ctr. of Los Colinas, 290 S.W.3d 204 (Tex. 2009) (trial-court discretion to grant new trial is significant but limited; must not replace jury factfinding without valid basis)
- In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex. 2012) (new-trial orders must reflect reasons derived from the particular facts and circumstances, not pro forma language)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standard for setting aside jury findings as against the great weight and preponderance of the evidence)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) (jury is sole judge of credibility; appellate courts must not substitute their judgment for the jury’s)
- McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986) (jury may resolve inconsistencies and weigh witness credibility)