DAVID'S VS. FLEMING TRIAL POSTPONED

JANIN FRIEND

CLEBURNE, Texas (FNS) -- The trial to determine whether Fleming Cos. overcharged and defrauded its customer David's Supermarkets was postponed last week for four months beyond its scheduled date.

Texas Senior District Judge C.W. Duncan rescheduled the trial here from Jan. 13 to May 12 after tossing out damage models that were linchpins in the case.

The delay was granted after David's Supermarkets, Grandview, Texas, requested a delay to give top Texas economist Ray Perryman sufficient time to prepare a new model for damages in the case focusing on alleged grocery overcharges during David's three-year contract with Oklahoma City-based Fleming.

David's attorney Bill Sims said a new damage model will be ready in about 30 days and he had asked for a trial postponement of two months until March. However, when Fleming requested a six-month delay to get more time to review the model, the judge split the difference and assigned a May date, he said.

Sims said David's will prepare a new model that avoids some of Fleming's objections and does not expect the change to affect the outcome of the case. Earlier this year, David's won a $211 million verdict against Fleming, but that judgment was thrown out when Fleming questioned the impartiality of the presiding judge, who had past financial ties with David Waldrip, owner of David's Supermarkets.

"We view this as a bump in the road," Sims said. "I am not the least bit concerned by it."

The judge's order to bar the Perryman damage models from the second trial could help Fleming reduce the actual damage award, which amounted to about $53 million in the original verdict. That award was combined with $100 million in punitive damages and attorneys fees to add up to $211 million.