Dispute over Media Coverage effect on mesothelioma trial

In February and March of 2008, presiding judge Donald Floyd heard the case of Willis Whisnant Jr. et al vs. DuPont in Jefferson County, Texas' 172nd District Court.

At that time, plaintiffs argued that Whisnant had contracted mesothelioma, and died, because of asbestos exposure at DuPont's Sabine River Works, about 20 miles east of Beaumont, Texas. Whisnant, a former B.F. Shaw pipefitter, worked at DuPont in 1966 as an independent contractor.

The trial was covered by the Southeast Texas Record, an online newspaper that covers Texas' legal system for the public. DuPont won the case, even though plaintiff's attorney Glen Morgan highlighted incontestable evidence that DuPont knew the hazards of asbestos for decades but did nothing to insure worker or workplace safety.

In April of that year, Morgan submitted a motion for a new trial, asserting that the jury's verdict was in direct contravention to the preponderance of evidence presented, and insisting that trial coverage by the Southeast Texas Record had prejudiced the jury's decision. Taking the charge one step further, Morgan tried to forge a connection between DuPont, the Record and its owner, The U.S. Chamber of Commerce.

Reportedly Morgan convinced Judge Floyd that the Chamber's ultimate goal was to use the Record to suborn juries by writing stories favorable to business and then making the paper available, for free, right outside the courthouse.

DuPont attorney M.C. Carrington objected, calling Morgan's request unwarranted and adding that Morgan had presented no valid, legal reason for a new trial.

Judge Floyd nonetheless granted Morgan's motion on May 28, 2008, and a new trial was scheduled for February 9, 2009. However, before a jury could be deposed, the trial was rescheduled for April.

DuPont's counsel has since asked the Ninth District Court of Appeals (Texas) for a writ of mandamus. This writ is, in essence, an order for a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. In this case, the writ is a direct challenge to the new trial. According to DuPont counsel, the court did not state the reason for granting a new trial and did not substantively demonstrate that newspaper reports had altered the verdict, or that jurors had access to, or availed themselves of, said newspaper.

"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." DuPont's writ alleges.

Beaumont justices denied DuPont's appeal on July 24, ruling that the court has full discretion in granting a new trial, and that such discretion cannot be controlled or guided by mandamus.

Writing in Law and Human Behavior, a bimonthly multi-disciplinary scientific journal, J. K. Robbennolt and C.A. Studebaker report that the media's potential to "act as a powerful influence on the civil litigation system" is greater than suspected. Media, they note, can affect the decision making process both in individual cases and across the broader spectrum of civil law in general, distorting perceptions both inside and outside the legal system. This puts the role of the Fourth Estate (informing the public) in direct contravention to the law's need to keep jurors from being unduly influenced by media reporting.
Whether Whisnant's surviving family gets a fair trial the second time around or not, there is no doubt that America's corporations will attempt to externalize costs, particularly the delayed costs of asbestos illnesses like mesothelioma, as long and as far as possible, leaving most of the burden on American taxpayers, who fund public health programs in the absence of insurance or findings of culpability.

Each year between 2,500 and 4,000 U.S. citizens are diagnosed with mesothelioma and asbestos-related diseases. More than 1.5 million asbestos-related injury claims have been filed to date. Experts predict the economic burden for asbestos-related illnesses like mesothelioma will top $200 billion over the next 40 years in the U.S. alone. The Whisnant case is only the tip of an iceberg that may swamp the U.S. medical system even before the last case reaches critical mass, since mesothelioma often doesn't present until the fifth decade after exposure.

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