Opposition Brief — Keene Corp. v. Lindsay

IN THI

SUPREME COURT OF THE UNITED STATES

THE HONORABLI

BRIEF IN OPPOSITION

FOR RESPONDENTS

BENJAMIN AND NEOMA WILLIAMS, ET AI

MPHREY, WILLIA

QUESTIONS PRESENTED

Whether or not the Texas Supreme Court decided a

federal question in a way that conflicts with the decision

of another state court of last resort or of a United States

Court of Appeals, so as to invoke the jurisdiction of this

Court.

Whether or not the Texas Supreme Court erred in

dismissing Petitioner’s Motion for Leave to file a Petition

for Writ of Mandamus against the Honorable Tony

Lindsay.

Whether or not the Texas Supreme Court decision rests

upon independent and adequate state grounds that do not

warrant review by this Court.

ii

PARTIES TO THE PROCEEDING

In addition to Petitioner, Keene Corporation, and

Respondent, the Honorable Tony Lindsay, real parties in

interest to the proceeding include the twenty-two Plaintiffs

alleging asbestos-related lung diseases and __ injuries

consolidated in Judge Tony Lindsay’s 280th Judicial District

Court in Harris County, Texas for trial on the merits.

Plaintiffs’ Counsel include John Eddie Williams and Melinda

Louise Wesner of Umphrey, Williams & Bailey, 8441 Gulf

Freeway, Suite 600, Houston, Texas 77017 and the attorneys

of the law firm of Ness, Motley, Loadholt, Richardson &

Poole, 151 Meeting Street, Suite 600, Charleston, South

Carolina 29402.

The reai parties in interest, Plaintiffs from Judge

Lindsay’s District Court, who were consolidated for the

asbestos trial, include the following persons:

Jimmie R. Blevins

Sandra E. Blevins

814 Anson Circle

Pasadena, Texas 77503

Lynn Lankford Crow

JoAnn Morris Crow

2109 18th Street

Galena Park, Texas 77547

Joe M. Knowles

Virginia M. Knowles

9602 Point Barrow

Baytown, Texas 77520

il

John Lejsal

Beatrice Lejsal

Route 4, Box 4418

4602 Brookside Road

Pearland, Texas 77581

Lee Roy Michaels, Jr

Patsy Ruth Michaels

3220 Longwood Drive

Pasadena, Texas 77503

Marion Edward Platt

Addie Murriel Platt

10851 Shadowwood Circle

Whitehouse, Texas 75791-9314

John Bain Stevens

3321 Redfield Drive

Pasadena, Texas

Dorothy Tucker

92 Charlestown Drive

Splendora, Texas 77372

William L. Wheeler

Millie Sue Wheeler

3304 Burke #11

Pasadena, Texas 77504

Benjamin Collin Williams

Neoma Mackey Williams

1619 Blake

Pasadena, Texas 77502

Willard N. Williams

Georgia Williams

Route 1, Box 142

Montgomery, Texas 77356

Robert D. Scott

Willodene Scott

Route 3, P.O. Box 190

Prescott, Arkansas 71857

Anton F. Schisser

Frances Schisser

701 Pampa

Pasadena, Texas 77504

James L. Mouton

Dorothy Anne Mouton

5634 Turtle Creek

Houston, Texas 77017

Grady O. Morton

Audie M. Morton

3701 Washington

Pasadena, Texas

Louis W. Heller

Velma Heller

806 Aaron

Baytown, Texas 77520

James F. Grubbs

Hazel Florence Grubbs

238 Empress

Houston, Texas 77034

Charles Nolan Gregory

Margie A. Gregory

1716 Parkey Lane

Houston, Texas 77015

Wilborn Elbert Feigler

Edna Mae Feigler

4906 Gardenia

Pasadena, Texas 77505

Grant Davis, Sr

Iva M. Davis

1831 Demare Lane

Houston, Texas 77029

Urban N. Davis

Route 5, Box 5388

Pearland, Texas

John R. Creed

Leona Creed

5105 Oak Avenue

Pasadena, Texas 77503

Vi

TABLE OF CONTENTS

QUESTIONS PRESENTED .

PARTIES TO THE PROCEEDINGS

TABLE OF AUTHORITIES ......

STATEMENT OF THE CASE.....

REASONS FOR REFUSING THE P&TITION

Whether or not the Texas Supreme Court decided a

federal question in a way that conflicts with the

decision of another state court of last resort or of a

United States Court of Appeals, so as to invoke the

jurisdiction of this Court .........

Whether or not the Texas Supreme Court erred in

dismissing Petitioner's Motion for Leave to file a

Petition for Writ of Mandamus against the Honorable

Tony Lindsay ...........

Whether or not the Texas Supreme Court decision

rests upon independent and adequate state grounds

that do not warrant review by this Court .

CONCLUSION

Vil

TABLE OF AUTHORITIES

CASES Page

FEDERAL

Keene Corp, v, Abate, __Md. App

te |) ae area ar | 8

Murphy v. Hunt, 455 U.S. 478 (1982) 18

Quinn v, Aetna Life & Cas, Co,, 482 F.Supp. 22

E.D.N.Y. 1979) ... ay ee 13

Ouinn v. Aetna Life & Cas, Co,, 616 F.2d 38 (2d

i Me, eee ered 13

Rutledge v. The Liability Ins. Industry, 487 F

Suen. 5 CW.U GB. PPFD) «we wee es 13

Ruggieri v. Johns-Mansville Prods. Corp,, 503 F

Supp. 1036 (D.R.I. 1980) ..... 14

Weinstein v, Bradford, 423 U.S. 147, 149

by os) eee 18

STATE

General Land Office v. Oxy U.S.A., Inc., 789

S.W. 2d 569, 571 (Tex. 1990) .... 18

Jampole v. Touchy, 673 S.W.2d 569

yg St : Perr 12

Joachim v. Chambers, 815 S.W.2d 234

9 O&A eee 12

Kemner v. Monsanto Co,, N.E.2d 1327 (1986) 13

NYPIRG v. Insurance Information Institute,

531 N.Y.S.2d 1002 (Sup. Ct. 1988) . 14

Orsak v. A.C. & S., Inc., et al., Cause No. 8544379,

127th District Court of Harris County, Texas

(sume i. Teeee 6 ike se 4,5

State v. Cottman Transmission, 542 A.2d 859

(Spec. App. 1988) . 15

Vill

RULES

Tex. R. Civ. Evid. 409, 411, 503, 802, 805

Tex. R. Civ. P. 226a II(8)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

KEENE CORPORATION,

Petitioner,

V.

THE HONORABLE TONY LINDSAY,

Respondent

BRIEF IN OPPOSITION

FOR RESPONDENTS

BENJAMIN AND NEOMA WILLIAMS, ET AL.

To The Chief Justice and Associate Justices

Of the Supreme Court Of The United States:

Respondents, who are twenty-two Plaintiffs who were

consolidated for an asbestos trial in the Honorable Tony

Lindsay’s 280th Judicial District Court, and Plaintiffs’

Counsel, John Eddie Williams and Melinda Louise Wesner,

(hereinafter "Respondents"), respectfully oppose a writ of

certiorari to the Supreme Court of the State of Texas:

Nm

OPINIONS BELOW

This is an original mandamus action that was brought

by Keene Corporation seeking to compel the Court of

Appeals and Texas Supreme Court to grant a mandamus

against the Honorable Tony Lindsay, to mandate that the trial

judge vacate a trial court order.

On March 24, 1992, Judge Tony Lindsay signed an

order that Keene Corporation shall not place advertisements

regarding punitive damages and attorneys fees in reference

to asbestos litigation, in any newspaper published in Harris

County, Texas until the verdict of the jury was received by

the Court. The Order is set forth in the Appendix at p.1.

On March 26, 1992, Keene Corporation, filed a motion

for leave to file petition for writ of mandamus and

prohibition, in the First Court of Appeals of the State of

Texas. On April 1, 1992, Keene Corporation filed an

amended petition for writ of mandamus. On April 2, 1992,

in a per curiam opinion, the Fourteenth Court of Appeals of

the State of Texas, declined Keene’s request to order Judge

Lindsay to vacate her order, and overruled Keene’s motion

for leave to file a petition for writ of mandamus and writ of

prohibition. The opinions of the Fourteenth Court of

Appeals are reproduced in the Appendix at pp.2-5

On April 7, 1992, the jury concluded their

deliberations concerning the asbestos plaintiffs in Judge

Lindsay’s trial court and rendered a verdict.

Keene Corporation then sought issuance of a writ of

mandamus against the Honorable Tony Lindsay from the

Texas Supreme Court, alleging Judge Lindsay's decision was

arbitrary and unreasonable and that she clearly abused her

discretion as a trial court. On April 15, 1992, the Texas

Supreme Court dismissed as moot Keene’s motion for leave

to file petition for writ of mandamus. Reproduced in the

Appendix at pp.6-7. Thereafter, on May 20, 1992, the Texas

Supreme Court overruled Keene Corporation’s motion for

rehearing of its motion for leave to file petition for writ of

mandamus against Judge Lindsay. Reproduced in the

Appendix at pp.8-9

CONSTITUTIONAL PROVISION

Respondent does not believe that this case involves a

federal question or constitutional provision, rather it involves

independent State procedural and _ substantive issues.

However, should this Court determine the Texas Supreme

Court’s decision warrants invoking the jurisdiction of this

Court, then Respondents respectfully request this Court

consider the Seventh Constitutional Amendment that the right

of trial by jury shall be preserved, set forth in the Appendix

at p.10

4

STATEMENT OF THE CASE

Petitioner has failed to set forth a full statement of the

underlying facts that gave rise to this petition. Keene

Corporation was an asbestos defendant in a group of six (6)

asbestos-related lung disease cases that had been consolidated

for trial in Cause No. 85-44379, Orsak v. A C & S, Inc, et

al, in the 127th Judicial District Court, Harris County,

before Judge Sharolyn Wood. On March 5, 1992, during

jury deliberations and after the close of evidence, asbestos-

defendant Keene Corporation intentionally placed an

advertisement in the Houston Chronicle, reproduced in the

Appendix at p.11. Keene’s advertisement improperly

communicated with the jurors concerning specific questions

and issues that were involved in the pending trial and on

which the jury was actually deliberating at that very moment.

(i.e. punitive damages). Keene further communicated with

the jurors concerning issues that were not only inadmissible

during the trial of this case, but issues and matters that the

Court specifically informed the jurors not to consider. (i.e.

attorneys fees) Tex. R. Civ. P. 226a II(8). Although

Defendant Keene Corporation represented to the Court that

the appearance of this advertisement was a “mere

coincidence", on April 8, 1992, Judge Sharolyn Wood

ordered Keene Corporation to produce for the Courts’

inspection all documents and correspondence concerning

Keene’s advertising and particularly any tangible thing that

would show Keene's intent in placing the advertisement

during jury deliberations and whether it was a “mere

coincidence. * Judge Wood's April 8, 1992 order 1s

reproduced in Appendix at p.12.

Although Keene Corporation represented it would

comply with Judge Woods’ document production order,

Keene Corporation turned around and filed an appeal,

withdrawing its offer. See Appendix at pp.13-14.

Upon reading Keene’s quarter-page advertisement in

the newspaper and subsequent to oral hearings on the matter,

Judge Sharolyn Wood found the following:

If there were allowed to this court a more

sizeable fine that is more commensurate with the

harm and the injury done, I would have assessed

it. I have assessed the maximum fine as Is

appropriate under the laws of Texas for the

contempt -- criminal contempt that occurred In

the jury deliberation process in this case. That

to me is absolutely abhorrent of a free society

trying to have the kind of jury trial that we had

that a (sic) is free from secret evidence, because

as I made it very clear today, I see this as an

absolute attack on the integrity of trial by jury

and trial as we know it in this nation. I take it

most seriously.

The Honorable Sharolyn Wood, Judge presiding, on June 11,

1992, in Orsak v. AC & S, Inc, et al, Case No. 85-44379,

District Court of Harris County, Texas, 127th Judicial

District, imposing the maximum sentence permitted under

Texas Law for criminal contempt on Keene Corporation for

publishing an advertisement in the Houston Chronicle while

6

a jury was deliberating after a 30 day trial against Keene

Corporation. Excerpt of the proceedings is set forth in the

Appendix at pp.15-18.

Judge Wood found that the defendant, Keene

Corporation placed an advertisement concerning the merits

of the cause on the third day of jury deliberations and that

such conduct was an attempted communication in violation of

the rules prohibiting parties, their attorneys and others

interested in the merits of a case, from communicating with

jurors prior to their being excused from the case. See Order

of contempt in Appendix at pp.13-14.

To prevent any further jury tampering or improper

communications with the jurors, in the next upcoming trial

where Keene Corporation was a Defendant, Judge Tony

Lindsay entered the March 24, 1992 order of which Keene

Corporation now complains. Judge Lindsay’s March 24,

1992 order is reproduced in the Appendix at p.1.

Contrary to Petitioner’s assertions, Judge Tony

Lindsay's order set forth in very explicit and precise

language, the specific issues and facts that the Keene

Corporation was prohibited from communicating to the

Harris County jury until the jury returned its verdict (i.e.

punitive damages and attorneys fees).

Respondents submit that Keene Corporation has wholly

failed to sustain its burden of proving that Judge Tony

Lindsay's decision was arbitrary and unreasonable and that

Judge Lindsay abused her discretion. Respondents would

further show that the Texas Supreme Court did not err in

-

dismissing Keene’s request for mandamus against Judge

Lindsay, that this case is distinguishable from those relied

upon by Petitioner, that the Texas Supreme Court's decision

does not conflict with other court decisions so as to invoke

the jurisdiction of this Court, nor does a federal question

exist that would warrant United States Supreme Court

review.

REASONS FOR REFUSING THE PETITION

I.

The Texas Supreme Court did not decide a federal

question in a way that conflicts with the decision of

another state court of last resort or of a United States

Court of Appeals, so as toe invoke the jurisdiction of this

Court.

Petitioner's complaints do not invoke jurisdiction for

review on writ of certiorari for several reasons. First, based

upon the particular facts as presented in this case, the Texas

Supreme Court did not decide a federal question in a way

that conflicts with another state court of last resort or of a

United States court of appeals. Second, the Texas Supreme

Court did not err in refusing to grant Petitioner’s writ of

mandamus against Judge Lindsay. Third, the Texas Supreme

Court’s decision rests upon independent and adequate state

: 2 . : =

grounds that do not warrant review by this Court

8

A. Judge Lindsay’s Order and the Texas Supreme

Court’s denial of writ of mandamus is not in

conflict with the Maryland Opinion.

Petitioner alleges that Judge Lindsay's order and the

Texas Supreme Court’s denial of a writ of mandamus against

Judge Lindsay, stand in direct contrast to a recent decision

of the Maryland Court of Special Appeals. Keene Corp. v.

Abate, Md. App. __ (July 1, 1992). This is not true.

The sole issue before the Maryland Court was whether the

Circuit Court could enjoin Keene from advertising its views

on the societal impact of asbestos litigation in general. Not

only were the advertisements in question different from one

another, but most importantly, the orders of the lower courts

are readily distinguishable. The May 13, 1992, Circuit

Court of Baltimore City order enjoined Keene from

advertising regarding asbestos and/or asbestos litigation.

Judge Lindsay’s March 24, 1992 order however, was

narrowly tailored to restrict Keene’s communications with

prospective Harris County jurors as to a specific litigant

involved in her court and concerning specific issues upon

which the jurors would be deliberating. Pursuant to the

Plaintiff's pleadings on file before Judge Lindsay, and the

evidence to be presented at trial, Judge Lindsay’s jury would

be required to make a specific finding from the facts as to the

issue of punitive damages against litigant, Keene

Corporation. Judge Lindsay’s order was specifically

tailored to restrict Keene’s communications with prospective

Harris County jurors regarding only two issues: punitive

9

damages and attorney’s fees. The order was narrowly

tailored as to subject matter, scope, duration and location.

Keene’s previous attempted communications with

Harris County jurors clearly violated Texas Procedural and

Evidentiary Rules, which exclude evidence from trial

concerning collateral sources, insurance, the effect of the

jury’s answers, and attorneys fees. Tex. R. Civ. P.226a

(attorneys fees not admissible in this trial), Tex. R. Civ.

Evid. 411 (liability insurance not admissible in this trial).

Keene further attempted to communicate with Harris

County jurors concerning particular facts and issues that

Keene was not permitted to bring into evidence before the

jury in a Texas courtroom. Keene knowingly and

intentionally attempted communications with Harris County

jurors concerning particular issues Keene could not get into

evidence in a Texas courtroom, concerning legal fees,

bankruptcy, the effect of asbestos litigation on the nation’s

economy, and Keene’s losses from asbestos lawsuits. See

Keene Corporation advertisement reproduced in Appendix at

p.11. See also, Tex. R. Civ. Evid. 409, 411, 503, 802 and

805. Keene violated the Texas Rules of Civil Procedure and

Evidence, and went around the States’ procedural rules so as

to interfere with the administration of justice and

communicate "secret evidence" to Harris County jurors that

Keene knew full well it was not permitted to communicate to

the jury in a Texas courtroom. If parties to a lawsuit are

permitted to present evidence to a jury through newspapers,

then the rules of evidence should be abolished and our

history of attempting to preserve a fair trial should be overturned

10

Further, the particular issues Keene attempted to

communicate to Harris County jurors would have further

violated Plaintiffs’ Motion in Limine, which excluded such

evidence.

B. Keene’s Advertising Was False and Misleading

In addition, the particular statements that the Keene

Corporation attempted to communicate to Harris County

jurors were false and misleading. See Keene advertisement

in Appendix at p.11. Keene misleadingly implies that the

twelve co-defendants who have filed for “bankruptcy” have

done so because of asbestos jury verdicts. Keene fails to

state whether the alleged~"$500 million in court awards"

includes the fines for contempt against Keene or punitive

damages findings against Keene. Keene misleads prospective

jurors into believing that Keene compensates injured asbestos

victims. Keene misleads Harris County jurors into believing

that less than half of the alleged $500 million goes to the

"injured parties" and that "60 percent goes to lawyers".

Keene fails to point out that the majority appears to go to

Keene’s own lawyers. Keene further denies it did anything

"illegal," yet jurors have repeatedly judged Keene’s conduct

as deserving of punitive damages. Keene further

misrepresents that it "doesn’t mind paying injured parties"

when to this date, Keene still refuses to compensate injured

plaintiffs, refuses to negotiate reasonable settlements,

intentionally continues to clog. the trial dockets

unnecessarily, and illegally communicates with jurors.

1]

C. Keene Found in Contempt of Court - Jury

Tampering

Judge Lindsay narrowly tailored her order to restrict

Keene’s communications with Harris County jurors as to two

specific issues, so as to achieve the desired objective of

preventing Keene’s further violation of the Texas Rules of

Civil Procedure and Evidence, and to prevent Keene’s

further interference with fair and impartial jury

deliberations. This case is further distinguishable due to

other proceedings against Keene that were ongoing at this

time in the very same Courthouse.

A Texas District Court Judge made the judicial finding,

after briefing and oral argument, that Keene violated state

civil procedural laws. See Judge Sharolyn Wood’s findings,

Order of Contempt, App. pp.13-14 and transcript, App.

pp.15-18. Judge Sharolyn Wood of the 127th Judicial

District Court found that Keene was interfering with the

administration of justice and the state procedural laws

governing the jury deliberation process. Id. The District

Court further found that Keene’s actions were an attack on

the integrity of the jury trial and that Keene’s conduct was an

attempted violation of the States’ rules prohibiting parties

from communicating with jurors. Id.

Judge Sharolyn Wood further found that Keene caused

an advertisement to appear concerning the merits of the case,

after the close of evidence and during jury deliberations.

Judge Wood held Keene in contempt of court for violating

state laws prohibiting attempted communications with jurors,

12

«

and imposed the maximum permissible fine for interfering

with the administration of justice ana an abhorrent attack on

the integrity of trial by jury and jury tampering. Id.

Petitioner has failed to show that Judge Lirdsay’s

decision was arbitrary and unreasonable so as to amount to

a clear abuse of discretion to warrant a writ of mandamus.

Jampole v. Touchy, 673 S.W.2d 569 (Tex. 1984).

D. No conflict exists with other Court decisions so

as to invoke jurisdiction of this Court

The Texas Supreme Court did not decide a federal

question in a way that conflicts with other courts so as to

invoke the jurisdiction of this Court.

This is an original mandamus action which was sought

to compel the Texas Court of Appeals and Texas Supreme

Court, to issue a writ of mandamus against the Honorable

Tony Lindsay of the 280th Judicial District Court, ordering

the trial judge to vacate her order of March 24, 1992.

Petitioner chose to take this issue up On appeal in the form of

a writ of mandamus against Judge Tony Lindsay. As such,

Petitioner had the burden of proving that Judge Lindsay’s

decision was so arbitrary and unreasonable as to amount to

a clear abuse of discretion. Joachim vy. Chambers, 815

S.W.2d 234 (Tex. 1991). Petitioner has failed to show that

Judge Lindsay abused her discretion as a trial judge.

In addition to Petitioner failing to show a clear abuse

of discretion under these circumstances, the case law relied

13

upon by Petitioner in its attempts to invoke jurisdiction of

this Court, is not on point and readily distinguishable

Petitioner relies upon Quinn v, Aetna Life & Cas. Co,, 482

F. Supp. 22 (E.D.N.Y. 1979), aff'd per curiam, 616 F.2d 38

(2nd Cir. 1980), which was before the Court on Defendant's

Motion for Summary Judgment. The Court found that

although Plaintiff had sued Aetna Ins. Co. directly,

contending “sham defendants,” no cause of action existed

under New York law for the equitable remedy (injunction)

Plaintiff sought and Plaintiff's complaint was dismissed. The

Quinn case, supra, did not involve a narrowly tailored order

based upon state law, which restricted a contemptuous

litigant’s communications with jurors during the pendency of

an ongoing trial, but rather involved the abstention doctrine

and an overly broad injunction and complaint, for which no

cause of action nor remedy existed under state law.

Petitioner also relies on Rutledge v. Liability Ins.

Industry, 487 F. Supp. 5 (W.D. La. 1979) another motion

for summary judgment case where Plaintiff, an attorney,

brought suit against a class of insurance companies to enjoin

a general campaign concerning tort reform. Again, this was

a motion for summary judgment case that did not involve

improper communications about specific issues to jurors.

Kemner v. Monsanto Co,, 492 N.E.2d 1327 (1986)

was also an appeal, not a mandamus as in our case, that

involved a dismissal for lack of jurisdiction and forum non

convenience. In reaching its conclusion that the trial court's

order was overly broad because it prohibited “all mention”

of the case to the media, the Court held that atrial court can,

14

however, restrain parties from making extrajudicial

comments about pending civil litigation if the order is not

overly broad and the trial court establishes that the conduct

poses a reasonable likelihood of a threat to the fairness and

integrity of the trial, both of which were found by the Texas

District Court Judge(s) herein. Kemner at 1337, 1338.

The NYPIRG case relied upon by Petitioner is again

not on point. In NYPIRG v., Insurance Information Institute,

531 N.Y.S. 2d 1002 (Sup. Ct. 1988), Defendant brought a

motion to dismiss Plaintiffs deceptive practices and false

advertising suit for violation of state statutes based upon

Defendant’s "lawsuit crisis" advertising campaign. There

was no finding by the trial court of interference with the

administration of justice, an attack on the fairness and

integrity of the trial, a serious and imminent threat to the

litigant’s right to a fair jury trial, jury tampering, nor

contemptuous behavior, as lies in the case before this Court.

Further, NYPIRG did not involve a narrowly tailored order,

rather a DTPA claim against a general “tort reform"

campaign, which was clearly overly broad.

Of interest in the Ruggieri case, also relied upon by

Petitioner, the Defendant, Raybestos-Manhattan, was

requesting the Court enjoin Plaintiff attorney Ron Motley

from participating in any other asbestos litigation or making

any extrajudicial comments concerning any asbestos cases.

Ruggieri v. Johns-Mansville Prod. Corp., 503 F. Supp. 1036

(D.R.I. 1980). Needless to say, the Defendant’s requested

remedy was found to be too broad. The Court did state

however, that when the trial was reached at some time in the

15

future, the Court could then assess what, if anything, needed

to be done to assure a fair jury trial. Ruggieri at 1041.

Finally, in Vv man Transmission, 542 A.2d

859 (Spec. App. 1988), the trial court’s order that "there be

no communications with the press" was found to be too

sweeping. The Court however, recognized that the Attorney

General’s authority to protect and warn consumers did not

confer upon him the right to “try the case in the press.” Id.

at 865. The Court found the trial court properly concluded

the Attorney General’s comments and news releases would

seriously undermine the fair administration of justice. Id.

The Court therefore, tailored the trail court’s gag order so as

to prescribe only comments relative to the merits of the case.

Similarly, Judge Tony Lindsay narrowly tailored her order

SO aS to preserve the fair administration of justice, prevent

further contemptuous behavior by a litigant that was an

imminent threat to other litigants’ rights to a fair jury trial,

and to prohibit only advertisements during the pendency of

the trial as to two narrow issues: punitive damages and

attorneys fees.

Petitioner has wholly failed to sustain its burden of

proving abuse of discretion by Judge Tony Lindsay. To the

contrary, the lower courts’ found Keene’s actions interfered

with the fair administration of justice and was contemptuous

behavior by a litigant that posed a serious and imminent

threat to other litigants’ rights to a fair jury trial.

Accordingly, Judge Lindsay narrowly tailored an order to

restrict Keene’s communications with jurors in the pending

trial On two specific issues upon which the jurors would

16

either be deliberating or were impermissible as “secret

evidence. "

Petitioner has further failed to provide state or federal

decisions involving significantly similar factual situations

that are inconsistent with the particular facts before the Court

in this case. Petitioner has further failed to show how the

Texas Supreme Court’s refusal to grant Petitioner’s requested

writ of mandamus against Judge Lindsay was in error or how

the Texas Supreme Court’s refusal to grant a writ of

mandamus conflicts with another Court’s decision. Based

upon the particular facts of this case, there is no conflict

with another Court’s decision that would invoke the

jurisdiction of this Court concerning the Texas Appellate

Courts’ declining to grant Petitioner's request for a

mandamus against Judge Lindsay.

The Texas Supreme Court did not err in dismissing

Petitioner’s Motion for Leave to file a Petition for Writ of

Mandamus against the Honorable Tony Lindsay.

This case is moot. There is no actual case nor

controversy in existence to be reviewed by this Court. Judge

Lindsay’s March 24, 1992 order was only in effect from

March 24, 1992 until the jury ceased deliberations and

rendered a verdict, which occurred on April 7, 1992. On

March 27, 1992, the Fourteenth Court of Appeals declined

to order Judge Lindsay to vacate the order and overruled

Petitioner's motion for leave to file petition for writ of

17

mandamus and prohibition. Although the order was not yet

moot, on March 27, 1992, the Fourteenth Court of Appeals

clearly declined to issue a writ of mandamus against Judge

Lindsay to vacate her order or a writ of prohibition against

Plaintiffs’ Counsel prohibiting such future ofders in asbestos

litigation. After the jury returned its verdict and Judge

Lindsay’s order ceased to be in effect, there was no case nor

controversy for the Texas Supreme Court to address by way

of a Writ of Mandamus.

This case does not fall within the “capable-of-

repetition-yet-evading-review" exception to mootness. It is

shear speculation on the part of Petitioner to guess what

action, if any, may be taken by another trial judge during

future asbestos trials involving Keene Corporation. It would

be nothing more than supposition to surmise what Harris

County judges may or may not order in future asbestos cases.

Contrary tu Petitioner’s representations to this Court, the

vast majority of those asbestos cases set for trial involving

Keene Corporation and Plaintiffs’ Counsel, John Eddie

Williams, as set forth in Exhibit A to Petitioner’s Motion for

Rehearing have been settled or resolved. See Petitioner's

Appendix at pp. 27-33. Of those asbestos cases with trial

settings that are listed in Petitioner's Exhibit A, only the last

five groups remain, most of which have already been passed.

See Petitioner’s Appendix at pp. 32-33. There is no

evidence of record to even show that this issue will be

repeated in the future, that Keene will attempt to violate

Texas rules in the future to communicate with deliberating

jurors again, nor what action, if any, may be taken by a

18

District Court judge concerning Keene’s contemptuous

behavior.

As set forth by this Court in Murphy v. Hunt, 455

U.S. 478, 482-4 (1982) (per curiam), this Court has never

held that a mere physical or theoretical possibility was

sufficient to satisfy the test stated in Weinstein v. Bradford,

423 U.S. 147, 149 (1975) (per curiam). Murphy at 482. If

this were true, virtually any matter of short duration would

be reviewable by this Court. Id, Rather, there must be a

"reasonable expectation" or a "demonstrated probability” that

the same controversy will recur involving the same

complaining party. Murphy at 482, citing to Weinstein at

149. There is no comparable set of expectations in this case.

The case presented is now moot and was moot at the time of

the decision by the Texas Supreme Court.

III.

The Texas Supreme Court’s decision rests upon

independent and adequate state grounds that do not

warrant review by this Court.

The Texas Supreme Court has long recognized that

once an appeal is rendered moot, only two exceptions to the

mootness doctrine apply so as to confer upon the court

jurisdiction to decide the merits of the case. General Land

Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.

1990). As the Texas Supreme Court found in General Land

Office, similarly, the controversy before this Court is moot

19

and does not fall within the exception to normal principles of

mootness.

The Texas Supreme Court has not misapplied Texas

mootness law by finding this case moot. To the contrary, the

Texas Supreme Court accurately applied Texas case law in

refusing to grant Petitioner’s requested writ of mandamus

against Judge Lindsay. Petitioner has failed to show how

Judge Lindsay’s decision was capricious and arbitrary and a

clear abuse of her discretion as a trial judge, so as to warrant

a mandamus. Petitioner has further failed to show how this

case falls within the “capable-of-repetition-yet-evading-

review" exception to the normal principles of mootness so as

to warrant review by the Texas Supreme Court.

In addition, the Texas Supreme Court’s dismissal of

Petitioner’s motion for leave to file petition for writ of

mandamus against Judge Tony Lindsay rests on independent

and adequate state grounds not to warrant this Court’s

review. In this case, the issue of mootness itself is not a

question of federal law, but state substantive and/or

procedural law. Petitioner chose to take this issue before the

appellate courts in the form of a writ of mandamus and

prohibition. Contrary to Petitioner’s allegations, the issue of

mootness in this case does not constitute a federal question

warranting this Court’s own independent mootness analysis

under federal law. Rather, this is purely a matter of state

law, a requested mandamus and Petitioner’s burden therein.

A careful review of Texas case law, even that relied upon by

Petitioner, reveals that the Texas Supreme Court did not

ee eee

20

misapply its own procedural rules nor substantive case law

on the issue of mootness.

CONCLUSION

Contrary to Petitioner’s representations, this case does

not present a federal question concerning a litigant’s right to

comment on political issues during the pendency of the trial.

To the contrary, this case involves a narrowly tailored order

by a trial court judge seeking to enforce the rules preventing

communications by a party to jurors during a jury trial.

The Texas Supreme Court did not decide a federal

question in a way that conflicts with other court decisions.

The Texas Supreme Court did not err in dismissing

Petitioner’s motion for leave to file petition for writ of

mandamus against the Honorable Tony Lindsay. The Texas

Supreme Court’s decision clearly rests upon independent and

adequate state grounds that do not warrant review by this

Court. This case involves false and misleading advertising

by a contemptuous litigant, whose conduct violated the

State’s rules concerning jury tampering, interfered with the

administration of justice, was assessed the maximum

permissible fine, and now appeals to this Court attempting to

invoke jurisdiction under an alleged federal question conflict

with other court decisions, which simply does not exist.

21

—

For these reasons, Respondents respectfully request

that in its judicial discretion, this Court deny Petitioner’s

request for a review on writ of certiorari.

Respectfully submitted,

J

By: : / y*

JOHN EDDIE WIL

UMPHREY, WILLIAMS &

BAILEY

8441 Gulf Freeway, Suite 600

Houston, Texas 77017

(713) 649-6464

Attorneys for Respondents,

Benjamin and Neoma Williams, et al.

APPENDIX

TABLE OF CONTENTS

FOR APPENDIX

App.

Page

Judge Tony Lindsay Order

fe Oe eee eee es a A-|

Opinion of Texas Court of Appeals overruling

motion for leave to file writ of mandamus,

overruled, March 27, 1992 ............. A-2

Opinion of Texas Court of Appeals overruling

motion for leave to file writ of prohibition

overruled, March 27, 1992 ............. A3-4

Opinion of The Supreme Court of Texas dismissing

as moot motion for leave to file petition

for writ of mandamus, April 15, 1992 ..... A5-6

Opinion of The Supreme Court of Texas overruling

motion for rehearing of motion for leave to file

petition for writ of mandamus, May 20, 1992 . A7-8

U.S. Constitution, Amendment VII .......... A-9

Keene Corporation Advertisement........ .. Al0-11

Judge Sharolyn Wood Order of April 8, 1992 ... A-12

Judge Sharolyn Wood Order of June 1, 1992 .... A13-14

Transcript of contempt proceedings in 127th

District Court, Judge Sharolyn Wood A15-17

Al

NO. 84-69709

BENJAMIN C. WILLIAMS § IN THE

AND NEOMA WILLIAMS § DISTRICT COURT OF

§

V. § HARRIS COUNTY, TEXAS

§ 151ST [sic]

AC&S, INC. ET AL. § JUDICIAL DISTRICT

ORDER

BE IT REMEMBERED that on March 16, 1992 commenced

the consolidated trial in the 280th District court of the

above-named Plaintiffs against the Keene Corporation. From

this day until the verdict of the jury is received by this

Court, the Defendant Keene Corporation is prohibited from

advertising regarding punitive damages and attorney’s fees

in reference to asbestos litigation, in any newspapers which

are published in Harris County, Texas. Attached as Exhibit

"A" to this Order is a copy of an advertisement which the

Defendant Keene Corporation placed in the Houston

Chronicle, a Harris County Newspaper, on March 5, 1992.

On that same day in Harris County a jury was deliberating in

a trial in which the Defendant Keene Corporation was a

party. It is therefore,

ORDERED, ADJUDGED AND DECREED that Keene

Corporation shall not place advertisements regarding punitive

damages and attorney’s fees in reference to asbestos

litigation, in any newspaper published in Harris County,

Texas until the verdict of the jury in the above-referenced

cases is received by this Court. The ORDER of MARCH 16,

1992 prohibiting KEENE from advertising is WITHDRAWN.

SIGNED the 24th day of March, 1992.

/s/ ToNY LINDSAY

JUDGE PRESIDING

A2

(SEAL OF THE STATE OF TEXAS}

In The

Fourteenth Court of Appeals

NO. C14-92-00312-CV

KEENE CORPORATION, Relator

V.

THE HONORABLE TONY LINDSAY, JOHN EDDIE

WILLIAMS, THE ATTORNEYS OF THE LAW

FIRM OF UMPHREY, BURROW, WILLIAMS, AND

BAILEY and THE ATTORNEYS OF THE LAW FIRM OF

NESS, MOTLEY, LOADHOLT, RICHARDSON.

AND POOLE, Respondents

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

OPINION

On March 16, 1992, respondent, the Honorable Tony

Lindsay, ordered that relator is prohibited from advertising

regarding asbestos litigation in any and all newspapers that

are published in Harris County, Texas.

Relator asks that we order Judge Lindsay to vacate that

order. We decline to do so and overrule the motion for leave

to file petition for writ of mandamus.

PER CURIAM

Motion for leave to file Petition for Writ of Mandamus

Overruled March 27, 1992 and Opinion filed April 2, 1992.

Panel consists of Justices Junell, Robertson, and Draughn.

(Justice Robertson not participating).

Do not publish - TEx. R. App. P. 90.

A3

[SEAL OF THE STATE OF TEXAS]

In The

Fourteenth Court of Appeals

NO. C14-92-00309-CV

KEENE CORPORATION, Relator

V.

THE HONORABLE TONY LINDSAY, JOHN EDDIE

WILLIAMS, THE ATTORNEYS OF THE LAW

FIRM OF UMPHREY, BURROW, WILLIAMS, AND

BAILEY and THE ATTORNEYS OF THE LAW FIRM OF

NESS, MOTLEY, LOADHOLT, RICHARDSON,

AND POOLE, Respondents

ORIGINAL PROCEEDING

WRIT OF PROHIBITION

OPINION

On March 16, 1992, respondent, the Honorable Tony

Lindsay, ordered that relator is prohibited from advertising

regarding asbestos litigation in any and all newspapers that

are published in Harris County, Texas.

Relator, in cause no. C14-92-00312-CV, asks that we order

Judge Lindsay to vacate that order. In this action, relator

asks that we prohibit respondents, John Eddie Williams, the

attorneys of the law firm of Umphrey, Burrow, Williams,

and Bailey and the attorneys of the law firm of Ness, Motley,

Loadholt, Richardson, and Poole, from requesting such an

order in future asbestos litigation. Having overruled the

motion for leave to file writ of mandamus in cause no.

C14-92-00312-CV, we overrule the motion for leave to file

petition for writ of prohibition.

At

PER CURIAM

Motion for leave to file Petition for Writ of Prohibition

Overruled March 27, 1992 and Opinion filed April 2, 1992.

Panel consists of Justices Junell, Robertson, and Draughn.

(Justice Robertson not participating).

Do not publish - TEx. R. App. P. 90.

AS

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

April 15, 1992

Mr. James H. Powers

Roberts, Markel, Folger

& Powers

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, TX 77046

Mr. John E. Williams, Jr.

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite

600

Houston, TX 77017-5001

Ms. Melinda L. Wesner

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite

600

Houston, TX 77017-5001

RE: Case No. D-2264

Mr. Kenneth C. Baker

Roberts, Markel, Folger

& Powers

Weslayan Tower, Suite 1010

24 Greenway Piaza

Houston, TX 77046

Mr. R. Lyn Stevens

Weller, Wheelus & Green

550 Fannin Street

Sth Floor, Petroleum Tower

Beaumont, TX 77704

Style: KEENE CORPORATION

v. THE HONORABLE TONY LINDSAY, JUDGE

A6

Dear Counsel:

Today, the Supreme Court of Texas dismissed as moot

relator’s motion for leave to file petition for writ of

mandamus in the above styled case. (Chief Justice Phillips

not sitting.)

Sincerely,

John T. Adams, Clerk

by /s/ BLANCA E. MoRIN

Blanca Morin, Deputy

cc: Mr. Joe Cox

Honorable Tony Lindsay

THE SUPREME COURT OF TEXAS

P.O. Box 12248

Supreme Court Building

Austin, Texas 78711

John T. Adams, Clerk

May 20, 1992

Mr. James H. Powers

Roberts, Markel, Folger

& Powers

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, TX 77046

Mr. John E. Williams, Jr.

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite

600

Houston, TX 77017-5001

Ms. Melinda L. Wesner

Umphrey, Burrow, Williams

& Bailey

8441 Gulf Freeway, Suite

600

Houston, TX 77017-5001

RE: Case No. D-2264

Mr. Kenneth C. Baker

Roberts, Markel, Folger

& Powers

Weslayan Tower, Suite 1010

24 Greenway Plaza

Houston, TX 77046

Mr. R. Lyn Stevens

Weller, Wheelus & Green

550 Fannin Street

Sth Floor, Petroleum Tower

Beaumont, TX 77704

Style: KEENE CORPORATION

v. THE HONORABLE TONY LINDSAY, JUDGE

A8

Dear Counsel:

Today, the Supreme Court of Texas overruled relator’s

motion for rehearing of motion for leave to file petition for

writ of mandamus in the above referenced case.

Sincerely,

John T. Adams, Clerk

by /s/ COURTLAND CROCKER

Courtland Crocker, Deputy

cc: Mr. Joe Cox

Honorable Tony Lindsay

A9

UNITED STATES CONSTITUTION - AMENDMENT VII

In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by jury, shall be otherwise re-

examined in any Court of the United States, than according

to the rules of the common law.

Al0

Legal fees

Up, up and away

GLENN W. BAILEY, chairman and president of Keene

Corp., isn’t the most objective observer of the asbestos

lawsuits his company has endured.

But since the company will be shelling out $500 million in

legal fees, Bailey does offer a unique insight into America’s

court system.

In case you missed Bailey’s letter to the editor, here is a

synopsis. In 1968, Keene bought a small maker of acoustical

ceilings, ventilation systems and insulation products for $8

million. Some of that insulation included asbestos. The

company ceased production in 1972.

Keene’s losses didn’t end there. They had just begun.

Asbestos led to lawsuits and a whopping $500 million in

court awards and legal fees. So far, 12 co-defendants have

been bankrupted.

Bailey says he doesn’t mind paying injured parties, but the

punitive damages and legal fees are absurd. Less than half

the $500 million will actually go to anyone injured by

asbestos. The rest--60 percent--goes to lawyers

"A criminal can be punished Only once, while a

manufacturer might be punished thousands of times for a

Single act--even though, as in our case. we did nothing that

was illegal," Bailey wrote.

That’s not justice. It’s abuse.

Not only does injustice harm the nation’s soul. but its

economy as well. Vice President Dan Quayle’s Council on

Competitiveness found that litigation is now a $300 billion

drag on the economy.

All

That’s what happens when you have 70 percent of the

lawyers in the world.

The above editorial appeared on December 31, 1991]

in West Virginia’s Charleston Daily Mail

and is reprinted with its permission.

"We are encouraged

that the facts are getting through

concerning a serious problem

that affects all Americans.”

For further information write to

Keene Corporation

200 Park Avenue, New York, NY 10166