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Kinseth v. Weil-McLain Co.

Court of Appeals of Iowa

April 19, 2017

SHARI KINSETH and RICKY KINSETH, Co-executors of the Estate of Larry Kinseth, Deceased, and SHARI KINSETH, Individually, Plaintiffs-Appellees/Cross-Appellants,
WEIL-McLAIN COMPANY, Defendant-Appellant/Cross-Appellee, and STATE OF IOWA, ex. rel. CIVIL REPARATIONS TRUST FUND, Intervenor.

          Appeal from the Iowa District Court for Wright County, Stephen P. Carroll, Judge.

         Defendant appeals the jury's award of damages and punitive damages to plaintiffs on theories of negligence, product liability, and breach of implied warranty of merchantability, and plaintiffs cross-appeal. REVERSED AND REMANDED FOR NEW TRIAL ON THE APPEAL, AFFIRMED ON THE CROSS-APPEAL.

          Richard C. Godfrey, Scott W. Fowkes, Howard M. Kaplan, and Ryan J. Moorman of Kirkland & Ellis L.L.P., Chicago, Illinois;, William R. Hughes Jr. and Robert M. Livingston of Stuart Tinley Law Firm, L.L.P., Council Bluffs; and Edward J. McCambridge and Jason P. Eckerly of Segal McCambridge Singer & Mahoney, Ltd., Chicago, Illinois; for defendant-appellant/cross-appellee.

          Misty Farris and Lisa W. Shirley of Simon Greenstone Panatier Barlett, P.C., Dallas, Texas, and James H. Cook of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for plaintiffs-appellees/cross-appellants.

          Thomas J. Miller, Attorney General, and Richard E. Mull, Assistant Attorney General, for intervenor.

          Heard by Mullins, P.J., and Bower and McDonald, JJ.

          BOWER, Judge.

         Weil-McLain Company appeals the jury's award of damages and punitive damages to plaintiffs on theories of negligence, product liability, and breach of implied warranty of merchantability arising from the death of Larry Kinseth as a result of exposure to asbestos, and plaintiffs cross-appeal. We find the district court abused its discretion in denying Weil-McLain's motions for mistrial due to statements of plaintiffs' counsel during closing arguments, in violation of the court's motion in limine order. We affirm the district court's rulings on the admissibility of evidence. We conclude the district court erred by not including McDonnell & Miller valves on the special verdict form, but otherwise affirm the court's determination of which entities should be included in the special verdict form for the allocation of fault. Due to our decision reversing and remanding for a new trial, we make no ruling on the award of punitive damages. We reverse and remand for new trial on the appeal and affirm on the cross-appeal.

         I. Background Facts & Proceedings

         Kinseth worked in the heating and plumbing industry beginning in 1957. As part of his work, he tore out old boilers and installed new boilers, both in residential and commercial applications. At the time Kinseth was working in the heating and plumbing industry, boiler manufacturers sealed their products with asbestos as it was a fire retardant, and Kinseth was exposed to asbestos dust. Some of the boilers Kinseth installed were manufactured by Weil-McLain.

         Kinseth developed mesothelioma, a type of cancer caused by exposure to asbestos. On January 7, 2008, Kinseth and his wife, Shari Kinseth, filed suit against forty-two companies he claimed were involved in his exposure to asbestos, including Weil-McLain, on theories of negligence, product liability, and breach of an implied warranty of merchantability. Due to Kinseth's poor health, his testimony was preserved in an extensive videotaped deposition. Kinseth died in 2009, and his wife and son continued the action as co-executors of his estate.[1]

         The district court determined Kinseth's claims arising from tearing out old boilers were barred by the Iowa statute of repose, Iowa Code section 614.1(11) (2007). The court determined, "once the boiler was installed, complete with the asbestos rope sealing, it became an improvement to real estate within the meaning of the Iowa statute of repose."[2] On the other hand, the court concluded Kinseth's exposure to asbestos before and during the installation process was not barred by the statute of repose. Based on this reasoning, the court granted partial summary judgment to Weil-McLain. Several defendants were removed from the case through summary judgment, and others settled with Kinseth; eventually, only Weil-McLain remained as a defendant.

         Prior to trial, Weil-McLain filed a motion in limine. The district court ruled Kinseth could not refer to the amount of money Weil-McLain spent on its defense or make any argument about the need for the jury to send the defendant a message through its verdict. Weil-McLain received a citation in 1974 from the Occupational Safety and Health Administration (OSHA) for asbestos exposure at its manufacturing plant in Indiana. After the citation, Weil-McLain began attaching a warning to its asbestos-containing products. The district court determined the OSHA citation was not relevant on the issue of causation but was relevant to punitive damages on the issue of the company's failure to warn prior to the citation and plaintiffs' expert could discuss it as "reliance" material.

         The case proceeded to a jury trial. Plaintiffs claimed Kinseth had been exposed to asbestos rope and asbestos cement used in installing Weil-McLain boilers and dust arising from these products caused him to contract mesothelioma. Plaintiffs claimed Weil-McLain should have provided a warning that exposure to asbestos was dangerous. Weil-McLain claimed the evidence showed Kinseth only installed Weil-McLain boilers using asbestos rope, which contained chrysotile asbestos, and this type of asbestos did not cause mesothelioma. The company also claimed Kinseth was exposed to asbestos dust from the products of several other manufacturers and the other manufacturers did not provide warnings during the time period in question.

         After closing arguments, Weil-McLain filed a motion for a mistrial, claiming counsel for Kinseth violated the court's rulings on the motion in limine in statements to the jury. The court denied the motion. After arguments on punitive damages, Weil-McLain filed a new motion for mistrial, and this motion was also denied by the court.

         The jury returned a verdict awarding Kinseth $4 million in compensatory damages. Weil-McLain was found to be twenty-five percent at fault.[3] Additionally, Kinseth's wife was awarded $1 million for loss of consortium, and Weil-McLain was ordered to pay her $250, 000. The jury also found Weil-McLain should pay $2.5 million in punitive damages. Kinseth's estate was awarded twenty-five percent of this amount, $625, 000, and the remainder, $1, 875, 000, is to be paid to the Iowa Civil Reparations Trust Fund.

         Weil-McLain filed motions for a new trial and for judgment notwithstanding the verdict. Kinseth also filed a contingent motion for new trial. The district court issued a combined ruling on these post-trial motions, finding: (1) the jury instructions were not improper; (2) there was not substantial evidence in the record to show Kinseth was exposed to asbestos from products manufactured by Peerless Pump Co., McDonnell & Miller, Bell & Gossett, Hoffman, and DAP, Inc., and the court did not submit these companies for consideration of fault; (3) the jury properly considered the fault of two bankrupt companies, Hercules, Inc. and Johns-Manville Corp.; (4) there was not sufficient evidence to submit a jury instruction on the comparative fault of Kinseth; (5) the award for medical expenses should be reduced from $500, 000 to $131, 233, based on the parties' stipulation;[4] (6) Weil-McLain was not entitled to pro tanto credit for plaintiffs' settlements with other companies; (7) due to the statute of repose, although Kinseth could not be compensated for exposure during tear outs of boilers, this did not preclude the jury from hearing evidence of such exposure; (8) the award of punitive damages was not excessive; (9) there was evidence to support punitive damages because Weil-McLain delayed issuing warnings and it did not test its products for asbestos exposure; and (10) remarks by plaintiffs' counsel during closing arguments did not affect the outcome of the case.

          Weil-McLain has appealed, claiming the district court should have granted its motions for mistrial due to the statements of plaintiffs' counsel during closing arguments, the court abused its discretion in admitting certain evidence, the jury should have considered the fault of three additional entities, and punitive damages were improper. Kinseth has cross-appealed, claiming the court should not have permitted the jury to apportion fault to two bankrupt entities.

         II. Motions for Mistrial

         Weil-McLain claims the district court should have granted its motions for mistrial because counsel for plaintiffs repeatedly violated the court's rulings during closing arguments.

         "The primary purpose of a motion in limine is to avoid disclosing to the jury prejudicial matters which may compel declaring a mistrial." Heldenbrand v. Exec. Council of Iowa, 218 N.W.2d 628, 636 (Iowa 1974) (citation omitted). Where there has been a violation of a motion in limine, a motion for mistrial may be granted. See Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). A party seeking a mistrial must show the opposing counsel's conduct was prejudicial. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992). "'[U]nless it appears probable a different result would have been reached but for claimed misconduct of counsel for the prevailing party, ' we are not warranted in granting a new trial." Id. (citation omitted).

         A district court has broad discretion in ruling on a motion for mistrial. Fry v. Blauvelt, 818 N.W.2d 123, 132 (Iowa 2012). "Such discretion is a recognition of the trial court's better position to appraise the situation in the context of the full trial." Id. (citation omitted). We review a district court's ruling on a motion for mistrial for an abuse of discretion. Crookham v. Riley, 584 N.W.2d 258, 268 (Iowa 1998).

         A. Statements During Closing Arguments

         1. Prior to trial, Weil-McLain filed a motion in limine seeking to prohibit plaintiffs from mentioning "the amount of money or time spent by the Defendant in the defense of this matter, including attorney time and expenses and expert witness time and expenses." At the hearing on the motion in limine, as to the amount of money or time spent by Weil-McLain on defense, counsel for plaintiffs stated:

I think what they are trying to prohibit here is talking about how much money they spent on their lawyers or preparing for trial and not trying to talk about how much their experts are paid or how much time their corporate representative spent in preparation. If that's all they mean, it's agreed.

         The district court granted the motion in limine.

         During closing arguments, counsel for plaintiffs stated: (1) "they had a very neat expensive graphic"; (2) "Here I cannot imagine being in your situation where you had experts on both sides that make obscene money. The money in this litigation to me is amazing, so who do you believe?"; (3) "You don't have to believe experts that are paid a lot of money, you can see it"; (4) "because even from their bought and paid-for science . . . they would have been violating OSHA"; (5) "you heard that there are 50 scientists that have published over 1, 000 articles, they disagreed with what their paid expert says"; (6) "they paid a company tens of thousands of dollars to create a graphic to show you that"; (7) "35 percent of [the fourteen million she was asking in compensatory damages] is 4.9 million. That's half of what Mr. Rasmuson [defense expert] has made in two-and-a-half years as a 43 year old man. Half"; (8) "Then explain to me why you spent half a million dollars for the test if it was as simple as people cutting rope a couple of times?"; and (9) on punitive damages, "What I suggest is anything that's in that one-to-three ratio of 4 million to 20 million is the right number. It is certainly within the realms of what they have paid in this litigation."[5] Additionally, she reviewed her arguments by stating:

You heard Mr. Rasmuson made $9 to $10 million in less than two-and-a-half years. You heard Weil-McLain spent half a million dollars on the study that could have been done as easily as the two minutes we saw on this floor. We heard that to show us how a boiler is installed, an issue that's not even disputed, they hire DecisionQuest and spend tens of thousands of dollars for it. We've heard in this industry that $30 million went not to people suffering from mesothelioma, but to create literature to say brakes are safe.[6]

         We conclude counsel for plaintiffs repeatedly violated the district court's ruling prohibiting the parties from mentioning the amount of money Weil-McLain was spending in defense in this litigation.

         2. In a related subject, the motion in limine also sought to prohibit "[a]ny reference to the wealth, power, corporate size or assets of Weil-McLain which would suggest to the jury that the jury ought to compare the relative wealth of the Plaintiffs and Defendant in answering the jury questions." On statements about the wealth and assets of Weil-McLain, plaintiffs' counsel stated:

I absolutely agree with the concept. I'm concerned with the lack of specificity in what that means. . . . Where I think they have a problem is if you're trying to suggest because they have wealth, because they have power and this was a little family, think about the imbalance. I agree that's not appropriate. But there are scenarios where the assets or abilities of the corporation are just relevant to other issues, and I just wanted to be clear I'm going to go into those. Otherwise we have an agreement.

         The district court granted Weil-McLain's motion in limine on this ground.

         During closing arguments, counsel for plaintiffs stated, "you are trying to figure out how to make a company value pain and suffering of another human being. A company that values money maybe differently than people do in Wright County." She also stated, "as you consider the damages in this case, you are speaking from people in this community to make sure that the people who are hurt in this community are heard from a company that values things differently than I think most of us do." Counsel for plaintiffs compared the wealth of the company with the plaintiffs' situation, stating:

And I want to acknowledge $100, 000 would make this family rich. I mean's there's no question about that, that is an insane amount of money to most people. The numbers we talk about here of $30 million for brake stuff and $10 million are insane amounts of money for real people.

         We determine plaintiffs' counsel's statements violated the district court's ruling on the motion in limine. Additionally, the statements as to the amount of money spent on the defense of the case also violate this ruling as statements about the large amounts ...

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