A trial judge overrules a jury verdict in favor of the defendant in a personal injury action, and grants a new trial. The defendant brings a mandamus action in Beaumont's Ninth Court of Appeals to overrule the new trial order.
A trial judge has discretion to grant a new trial and can only be overruled if that judge abuses that discretion. However a new trial can only be granted if the reasons for the new trial are supported by the record.
A writ of mandamus is an extraordinary writ. It cannot issue if the aggrieved party has a remedy by way of appeal. By such a writ a court can force a government official to discharge a duty the official clearly has. The official can be the judge of an inferior court. The writ is not supposed to issue unless the official's duty is clear; you can't mandamus someone for a legitimate judgment call of the officer's discretion.
So the appeals court has to walk a tightrope-- it should disapprove only those new trial orders which are clearly unsupported by the record, but otherwise it should let them stand.
Willis Whisnant, Jr. was diagnosed with lung cancer in 1997. In 1998 he sued a contractor of a former employer, E.I. duPont de Nemours and Co., for injuries arising from exposure to asbestos. Whisnant died in 1999 before trial-- cause of death: lung cancer. Whisnant had smoked for 40 years. Around 2007, his experts testified that Whisnant had really died of mesothelioma-- an illness released to asbestos exposure. In December 2007, Whisnant's petition was amended to allege that he had died of mesothelioma, not lung cancer. Whisnant's case came to trial in March 2008 and went on for five weeks, at the end of which, the jury failed to find that duPont's negligence was a proximate cause of Whisnant's injuries. The trial court signed a take-nothing judgment April 17, 2008, then granted a motion for new trial without giving a reason. The Texas Supreme Court took the case up on mandamus and ordered the trial court to specify why it ignored the jury's verdict and granted the motion for new trial. On remand, the trial court signed another take-nothing judgment on April 15, 2014, and then granted another motion for new trial stating that the jury’s failure to find
liability as to duPont was against the great weight and preponderance of the evidence.
DuPont applies for mandamus that the trial court abused its discretion in granting the motion for new trial and, per curiam, Chief Justice Steve McKeithen and Justices Charles Kreger and Leanne Johnson grant it conditionally. A conditional grant of a writ of mandamus means that the appeals court will not insult the trial court by formally forcing it to do the will of the court of appeals, but instead will monitor the trial court to see that it follows the appeals court's opinion. They will only actually issue the writ if the trial judge fails to take the hint that the opinion gives.
In re E.I. duPont de Nemours and Co., No. 09-14-00465-CV, (Tex. App.--Beaumont, April 23, 2015) (orig. proceeding)