Calling a Do-Over after Asbestos Verdict Is Rare but It Happened

Gavel

Few courtroom scenes are as dramatic as delivery of the jury’s verdict. Both sides eagerly await this moment. After weeks of silently listening to testimony, the jury finally delivers its decision.

The moment is so intense that it inspired the title of one of Hollywood’s most respected legal dramas, “The Verdict.” The movie is about Frank Galvin, a Boston lawyer played by Paul Newman. Galvin is on a losing streak when he takes on a medical malpractice case.

After one of the best closing arguments in film history, the camera cuts to the bailiff ushering the jury into the courtroom. In a few seconds, the jury ends a nasty battle with the hospital in the plaintiff’s favor.

Galvin and his client’s family quietly rejoice. The foreman asks the judge if there’s any limit on how much they can award the plaintiff.

(Hollywood often takes liberties when it portrays the legal process. By no means do I suggest that portrayal in “The Verdict” is 100-percent realistic or accurate.

And although Paul Newman earned an Oscar nomination for the role, Frank Galvin isn’t exactly a model lawyer. But the closing trial scene is still a favorite. Newman artfully depicted the anticipation of the moment.)

But imagine an alternate ending . . . The hospital discovers that the judge’s parents filed a similar malpractice suit against the hospital twenty years ago. Defense attorneys file papers asking the state Supreme Court to remove the judge.

The reason? The trial judge’s bias. The court tosses out the verdict and orders a new trial with a different judge. The young client lies in a coma as our leading man soberly returns to his office to prepare for a “do-over.”

Mississippi Man Awaits a Do-Over in Real Life

In May 2011, a Mississippi jury awarded Thomas Brown $322 million ($300 million in punitive damages and $22 million in compensatory damages). In the 1970s, he worked on oil rigs mixing drilling mud as a teenager. Today, he suffers from asbestosis caused by the asbestos dust he allegedly inhaled at work.

The verdict for Brown was reportedly the largest award to a single plaintiff in U.S. history and close to Defendant Union Carbide’s 2010 income. But weeks later, defendants in the case challenged the verdict on grounds of judicial bias and prejudice. According to papers filed by Union Carbide, there are several similarities between Brown and the judge’s father:

  • Both men have suffered from asbestosis for about 20 years.
  • Both men have claims related to the same companies. The judge’s father has settled claims against Defendant Union Carbide and filed a claim with the bankruptcy trust for Johns-Manville, the asbestos supplier for Defendant Chevron Phillips Chemical. He has also settled other asbestos claims and had more litigation pending at the time of Mr. Brown’s verdict.
  • Both men have filed asbestos lawsuits in Mississippi.
  • Both men have alleged injuries due to fear of developing asbestos lung cancers in the future.

Just as judges excuse potential jurors whose experiences may lead to bias, they are also expected to recuse themselves if they have potential biases. The defendants argued that the judge should have been removed from the case because of bias. In support, they combed the trial record for instances where the judge’s rulings disfavored them and suggested that the reason was bias. The defendants pushed for a new trial.

The Mississippi Supreme Court agreed that a reasonable person would doubt the judge’s impartiality. It ordered the judge to step down from the case. Last week, a new judge vacated the verdict and the former judge’s rulings. In other words, the court threw out everything and ordered a new trial.

Courts Order New Trials in Unusual Circumstances

Courts grant new trials only in special circumstances. Each jurisdiction follows its own rules for granting a new trial. But courts usually grant the request only if letting the verdict stand would constitute an extreme injustice (e.g., a fair trial was denied). Depending on the court, possible reasons may include:

  • Bias or Prejudice
  • Trial error (e.g., a mistake in the jury instructions);
  • Juror Misconduct (e.g., an outside influence on the jury or jurors considered information outside of the trial evidence);
  • Grossly excessive verdict;
  • Inadequate verdict (e.g., jury awards nominal damages, but the evidence supports substantial damages); or
  • Newly discovered evidence (e.g., the party requesting a new trial could not have reasonably discovered material evidence).

In rare cases where the request is granted, the court may order a new trial on some of all of the issues.

It is important to have a qualified mesothelioma attorney to present your case. If a defendant moves to vacate the verdict, your attorney can work to limit the issues in a new trial. They may be able to keep some favorable rulings in place. Also, a strong case the first time around may encourage the defendant to agree to a substantial settlement next time.

You also have the right to request a new trial if you receive an unfavorable decision. A qualified mesothelioma attorney can identify any trial errors or circumstances that warrant a new trial.


Karen Marshall has more than 17 years of legal experience and is an attorney with The Peterson Firm. She has been contributing to The Mesothelioma Center since 2011 and writes about asbestos-related legal issues and blogs for Asbestos.com.

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