The plaintiff’s decedent, Willis Whisnant, Jr., worked as a pipefitter at various plants from 1947 through 1986. He worked off and on at DuPont from 1966 through 1975, where he was allegedly exposed to airborne asbestos fibers. The decedent, who had a 40-year smoking history, was diagnosed with lung cancer in 1997. He commenced his personal injury action in 1998 and died, prior to trial, in 1999. Nine years after the original suit was commenced, the plaintiff’s attorneys engaged additional experts who opined that decedent’s death was due to mesothelioma rather than lung cancer, which was listed on his death certificate. In 2008, a jury found DuPont to be not negligent and the trial court signed a “take-nothing judgment.” The trial court subsequently granted the plaintiff’s motion for a new trial and set aside the judgment. The Texas Supreme Court granted DuPont’s mandamus relief and ordered the trial court to specify why it disregarded the jury verdict and ordered a new trial. After the case was remanded, the trial court signed another take-nothing judgment and again granted the plaintiff’s motion for a new trial, stating that the jury’s failure to find liability against DuPont was against the weight and preponderance of the evidence.
DuPont again sought mandamus relief, as it could not appeal the trial court’s granting of a new trial. The Texas Court of Appeals allowed the mandamus review and stated: “The long-established precedents in Texas demonstrate respect for jury verdicts. The significant discretion of a trial court to grant a new trial should not, and does not, permit a trial judge to substitute his or her own views for that of the jury without a valid basis.” (Citations omitted.) DuPont raised multiple issues in its mandamus petition, including the arguments that the jury reasonably could have concluded that the employer’s witnesses were more credible than the claimants’ witnesses regarding the extent and known dangers of asbestos exposure in the workplace and the measures taken to reduce it; that the decedent died from lung cancer caused by smoking and not from mesothelioma caused by asbestos exposure; or that prior asbestos exposure at other facilities caused the decedent to develop an asbestos-related disease. The Court of Appeals agreed with DuPont and found there to be adequate evidence upon which the jury made its finding.
As stated by the Court of Appeals: “The jury could have given more weight to the witnesses who testified that DuPont maintained effective dust-control processes than to the witnesses who claimed that the pipefitters worked in extremely dusty conditions. Similarly, the jury could have rejected the opinion testimony of Whisnant’s experts and believed that the original diagnosis of lung cancer due to smoking was correct. The jury could have decided that the conditions on DuPont’s premises did not result in an exposure to asbestos that caused Willis Whisnant’s cancer. We conclude based upon a review of the record, given the presence of conflicting evidence, that the jury’s finding of ‘No’ in response to Question 2 and failure to find that ‘the negligence’ of DuPont ‘proximately caused the injury in question,’ is not clearly against the great weight and preponderance of the evidence making it clearly wrong and unjust. The trial court abused its discretion by granting a new trial for a reason that is not supported by the record.” (Citation omitted.)
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