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Following charges that a plaintiff’s lawyer had improper contact with jurors during a trial and countercharges by the plaintiff’s attorney that the defense “fabricated” evidence supporting that claim, a Texas judge has set aside a jury verdict against E.I. du Pont de Nemours & Co. in a case involving the fungicide Benlate. In April, a Maverick County, Texas, jury awarded three plaintiff pecan growers $69 million, including $30 million in exemplary damages, on charges that Benlate had damaged their pecan orchards. The judgment was entered at $24.2 million, after the application of the Texas cap on punitives. Quirk Land and Cattle Co. v. E. I. du Pont de Nemours & Co., 97-04-14439-CV-A (Dist. Ct., Maverick Co.). DuPont filed a motion for a new trial, alleging, among other things, that Earl Herring of The Herring Law Firm in Eagle Pass, Texas, who represented only one of the plaintiffs, “purchased drinks for jurors and had a private conversation with a juror during trial” and that “The Herring Law Firm contacted a juror’s home during trial to encourage that juror to return to trial.” DuPont charged that the court had improperly admitted certain evidence and that the verdict was not supported by the evidence. On Sept. 20, Texas District Judge Amado J. Abascal III ordered a retrial, without commenting on the specifics of the DuPont motion. “We don’t know what the grounds were for the judge granting this mistrial,” said DuPont counsel Richard M. Simses of the Houston office of Abbott, Simses, Knister & Kuchler. But DuPont believes the charges against Herring were the strongest reasons to overturn the verdict, said DuPont attorney Larry Abbott of the New Orleans office of Abbott Simses. The DuPont motion led with the improper contact complaints, he said. One of the charges against the Herring firm, that a member of Herring’s staff had contacted the family of one of the jurors, is undisputed, Simses said. Herring had represented, in a criminal matter, a brother of one of the jurors. After a week’s recess, but while the trial was going on, a paralegal contacted the mother of this young man. The paralegal said this call was to check on the status of the client; the mother said the call was about the juror. But, said Herring, this call did not involve any action by him or any intention to improperly contact a juror. “I was out of town when this happened. I didn’t encourage or allow it, nor would I have.” Judge Abascal held a hearing during the trial and wound up sanctioning Herring’s firm $10,000. But the judge denied DuPont’s motion for mistrial. On April 19, after the jury returned its verdict for the plaintiff, Abbott said, “We had suspicions that it was a tainted verdict immediately. … They simply did not prove their case at all.” DuPont hired an investigator who began interviewing jurors. One juror then signed an affidavit claiming she had run into Herring at a nightclub during the trial. The affidavit, signed by juror Yvette Santos, says that Herring approached her and juror Griselda Cigarroa Davis. According to this affidavit, Herring allegedly spoke to Davis “about five minutes.” Then, Santos alleged, “As soon as he went back to his seat, his girlfriend brought me a drink. While Herring was there, I never saw Griselda pay for her drinks. Mr. Herring only approached us once.” “This never happened,” said Herring. In response to the DuPont motion for new trial, Herring said that “the juror recanted,” denying that any contact had taken place. Santos, in a new affidavit, claimed that she had been pressured by DuPont lawyers into signing the first affidavit and that a DuPont lawyer had “fabricated in her own words” the charges that Herring had contacted two jurors at the nightclub. Davis also signed an affidavit that she had never spoken to Herring during the trial and that “he has never bought anything for me anywhere.” DuPont also charged that “there are allegations that offers of money were made to buy jurors’ votes.” But the supporting materials in the motion include only repeated rumors, Herring said. He charged, “This is all a personal attack on Earl Herring.” Herring has moved for an expedited trial date.

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