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Kinseth v. Weil-McLain

Supreme Court of Iowa

June 1, 2018

SHARI KINSETH and RICKY KINSETH, Coexecutors of the Estate of Larry Kinseth, Deceased, and SHARI KINSETH, Individually, Appellees,
v.
WEIL-McLAIN, Appellant, and STATE OF IOWA ex rel. CIVIL REPARATIONS TRUST FUND, Intervenor-Appellee.

         On review from the Iowa Court of Appeals.

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

         Estate that prevailed at trial seeks further review of a court of appeals decision ordering a new trial based on attorney misconduct during closing arguments.

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

          Misty A. Farris, Lisa W. Shirley, David C. Greenstone, Jay E. Stuemke, and Kevin W. Paul of Simon Greenstone Panatier Bartlett, PC, Dallas, Texas; and James H. Cook of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellees.

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

          CADY, Chief Justice.

         In this case, we are called upon to review numerous issues that arose during litigation between the estate of Larry Kinseth, who passed away from mesothelioma, and Weil-McLain, a boiler manufacturer whose products exposed Kinseth to asbestos. After several pretrial rulings and a nearly four-week trial, the jury awarded the estate $4 million in compensatory damages and $2.5 million in punitive damages. Weil-McLain subsequently filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The district court denied both motions and Weil-McLain appealed. We transferred the case to the court of appeals, and the court reversed. For the reasons set forth below, we remand the case for a new trial.

         I. Factual Background and Proceedings.

         Larry Kinseth was born in 1939 in Belmond, Iowa. He was the youngest of eight children, and his oldest brother, Kenny, served in World War II. In 1953, when Kinseth was fourteen years old, he began working for Kenny's business, Kinseth Plumbing and Heating. During the school year, he worked ten hours every Saturday, and during the summers, he worked sixty-hour weeks. Kinseth helped the various crews install boilers, chimneys, and hot air furnaces. In 1957, Kinseth graduated from high school and began working for Kinseth Plumbing and Heating full time. He joined the installation crew, which primarily installed commercial and residential boilers and furnaces.

         Kinseth Plumbing and Heating sold and installed boilers that were manufactured by a number of different companies, including Weil-McLain. Weil-McLain manufactured both residential and commercial boilers that were delivered either in sections that required assembly (section boilers) or in preassembled packages. Kinseth Plumbing and Heating frequently ordered section boilers and assembled the pieces on site. In his years installing boilers, Kinseth personally installed many Weil-McLain section boilers.

         Weil-McLain provided an instruction manual for installing its section boilers. The manual instructed service workers to join the pieces of the boiler together with "asbestos rope" to create a seal. Asbestos rope was typically eighty percent chrysotile asbestos. Almost always, the rope needed to be sized and cut, which released asbestos dust into the air. Kinseth and his installation crew followed the instructions and consequently inhaled asbestos dust each time they installed a Weil-McLain section boiler. Kinseth did not wear a protective mask when working with asbestos rope, and the manual did not indicate that working with the rope carried any medical risks. Additionally, some Weil-McLain section boilers instructed installers to use asbestos cement as a sealant. Although Weil-McLain did not itself manufacture the asbestos cement, it repackaged purchased asbestos cement into smaller, unlabeled containers and provided the cement with its section boilers.

         Installing Weil-McLain boilers was not Kinseth's only exposure to asbestos throughout his career. Often, before Kinseth and his crew could install a new fixture, they would first remove the old fixture. The removal phase was "dusty as hell, " resulting in Kinseth inhaling a significant amount of asbestos fibers. Kinseth also inhaled asbestos while installing boilers that were manufactured by other companies, including Peerless, Burnham, Crane, American Standard/Trane, Cleaver-Brooks, and Kewanee. Additionally, Kinseth worked with asbestos-containing cement and joint compound. Kinseth also installed hot air furnaces that contained asbestos. During installations, Kinseth frequently cut gaskets, which released asbestos dusts, as well as refurbished valves that contained asbestos in their stem packing.

         Kinseth worked full time on the installation crew and thus inhaled enormous amounts of asbestos until 1963. He then began performing more sales and bookkeeping work, although he continued to assist with installations in the field. In 1966, Kinseth and a friend purchased the business from Kenny. In 1972, Kinseth transitioned to working primarily in the storefront, although he continued to perform occasional hands-on work in the field until he retired from the family business in 1987.

         Throughout his life, Kinseth was a healthy and active person. He and his wife, Shari, frequently entered couples golf tournaments. He liked to run and bike, and he never smoked. Kinseth had three children, Rick, Loreen, and Kim, and several grandchildren. He and Shari took many trips together and loved attending their grandchildren's baseball games.

         In October 2007, Kinseth developed significant shortness of breath. His doctor ordered an x-ray, which revealed fluid in his lungs. Kinseth was admitted to the hospital and doctors drained 2000 milliliters, or two quarts, of fluid from his lungs. Later in October, Kinseth was again admitted to the hospital, and doctors performed a thoracotomy, in which they opened Kinseth's chest and removed a mass. The mass was biopsied and sent to the Mayo Clinic in Rochester, Minnesota, for analysis. The biopsy confirmed Kinseth had mesothelioma.

         Mesothelioma is a type of cancer that attacks the lining of the lung. It is caused by inhaling asbestos, and there is a significant latency period between exposure and disease development. Many individuals are not diagnosed with mesothelioma until decades after their exposure.

         There is no cure for mesothelioma. Patients faced with the diagnosis instead receive palliative treatments, such as chemotherapy, radiation, and surgery, which seek to slow the disease and relieve pain.

         After Kinseth's initial diagnosis, a doctor at the Mayo Clinic informed him he had six to twelve months to live. The months following his diagnosis were trying for Kinseth and his family. He traveled to Rochester to receive chemotherapy. He traveled three times to Los Angeles to receive care and surgeries at the University of California, Los Angeles hospitals. Before one surgery in Los Angeles, Kinseth pulled his son Rick aside and gave him a piece of paper with all of his bank account numbers, lawyers' phone numbers, and other important information. Kinseth told Rick it was all the information he needed to take care of Shari if the surgery did not go well. Doctors at the UCLA hospital performed a pleurectomy with decortication surgery, which lasted over six hours, and removed a five and a half pound tumor. Kinseth recovered in the hospital for nine days, but stayed in Los Angeles for another two and a half months in order to receive twenty-five rounds of radiation. While receiving treatment in Los Angeles, Kinseth missed his brother Roger's funeral. In the months after his surgery, Kinseth relied on medications to manage his severe pain. He was unable to sleep for more than an hour or so at a time, as the pressure on his scar would rouse him awake.

         In the final weeks of his life, Kinseth's three children alternated staying the night to help Shari care for him. A hospice nurse also visited to assist with his medications. Kinseth had limited mobility and stayed in a hospital bed in his living room. On January 5, 2009-fifteen months after his diagnosis-Kinseth passed away.

         While receiving treatment, Kinseth and Shari filed suit on January 7, 2008, against forty-two companies that manufactured, sold, or distributed asbestos-containing materials. Kinseth brought claims of negligence, products liability, breach of warranty, and loss of consortium. Anticipating that Kinseth's health may decline before the case went to trial, counsel preserved his testimony through six days of videotaped depositions. Following his death, Shari and Rick continued the litigation as coexecutors of his estate.[1]

         In a ninety-eight page summary judgment ruling, the district court clarified the applicability of Iowa's statute of repose to Kinseth's claims. Although Kinseth brought his claims within the limitations period for exposure to harmful materials, Iowa's statute of repose extinguishes causes of action "arising out of the unsafe or defective conditions of an improvement to real property" after fifteen years.[2] Iowa Code § 614.1(11) (2007). The court found that, once a fixture had been installed, it constituted an improvement to real property. Accordingly, any exposure to asbestos while removing boilers or other fixtures arose out of an improvement to real property and was barred by the statute of repose. However, any exposure to asbestos while installing boilers or other fixtures was not barred by the statute of repose.[3] Following the summary judgment ruling and several settlements, the number of defendants was reduced from forty-two to just one: Weil-McLain.

         In anticipation of trial, Weil-McLain filed an extensive motion in limine. After a contested hearing, the district court ordered, in relevant part, that plaintiff's counsel shall not (1) mention prior jury trial verdicts or other lawsuits; (2) reference or comment on 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; (3) reference any other lawsuit in which this defendant may have been involved or is involved; (4) make any references, statements, or arguments that the jury should attempt to send defendant a message; and (5) make any reference to the wealth, power, corporate size or assets of Weil-McLain that would suggest to the jury that the jury ought to compare the relative wealth of the plaintiffs and defendant in answering the jury questions.

         Additionally, Weil-McLain sought to include a number of responsible third parties on the special allocation-of-fault verdict form. Because Kinseth was exposed to asbestos while working with many different products, which were manufactured by many different companies, the district court ultimately permitted twelve other sources of exposure to be submitted to the jury. However, the district court concluded there was insufficient evidence to include McDonnell & Miller valves, Peerless pumps, Bell & Gossett pumps, Hoffman steam traps, and DAP caulk on the allocation-of-fault form.

         The case proceeded to trial. After nearly four weeks of testimony, plaintiff's counsel presented her closing argument. Defense counsel raised five objections during the closing, alleging plaintiff's counsel repeatedly violated the in-limine order. After rebuttal by plaintiff's counsel in closing argument, wherein defense counsel again objected to in-limine violations, the court declined to read the jury instructions and instead adjourned for the day. The next morning, defense counsel immediately moved for a mistrial, arguing repeated in-limine violations by plaintiff's counsel were prejudicial. The district court denied the motion.

         The jury returned a verdict awarding Kinseth $4 million in compensatory damages. The jury concluded Weil-McLain was twenty-five percent at fault for Kinseth's harm and further concluded that punitive damages were warranted. Both parties then offered closing arguments on the amount of punitive damages. Following the second closing arguments, defense counsel again moved for a mistrial based on alleged in-limine violations by plaintiff's counsel during her second closing. The court denied the motion, and the jury ordered Weil-McLain to pay $2.5 million in punitive damages. Because the jury concluded Weil-McLain's conduct was not directed specifically at Kinseth, his estate was awarded twenty-five percent of the punitive damages award, and the Iowa Civil Reparations Trust Fund was awarded the remainder.[4]

         Weil-McLain subsequently filed a motion for a new trial and a motion for judgment notwithstanding the verdict. Weil-McLain argued, inter alia, that (1) the district court erroneously instructed the jury by failing to include several manufacturers on the allocation-of-fault special verdict form, (2) plaintiff's counsel's numerous in-limine violations during closing arguments warrant a new trial, (3) evidence relating to OSHA violations and conduct barred by the statute of repose were improperly admitted, and (4) there was insufficient evidence to award punitive damages under the standard announced in Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 256 (Iowa 1993). Kinseth also filed a contingent motion for new trial, objecting to the inclusion of two bankrupt entities on the allocation-of-fault verdict form.

         The district court denied Weil-McLain's posttrial motions. It concluded, in relevant part, that (1) the identified manufacturers were properly excluded, as there was insufficient evidence to support a comparative fault instruction; (2) Weil-McLain waived any objection to counsel's statements during closing arguments by failing to make contemporaneous objections, and in any event, counsel's statements did not warrant a new trial; (3) OSHA evidence was properly admitted for causation purposes and the jury was properly instructed on how to allocate damages under the statute of repose; (4) the punitive damages award was supported by substantial evidence and consistent with the standard announced in Beeman, 496 N.W.2d at 255; and (5) bankrupt entities were properly included on the allocation-of-fault verdict form.

         Weil-McLain appealed the district court's posttrial order and we transferred the case to the court of appeals. Kinseth cross-appealed, alleging Weil-McLain was estopped from challenging the compensatory damages judgment, defense counsel failed to make a timely motion for mistrial following closing arguments, and the district court erred in allowing the jury to apportion fault to bankrupt entities.

         The court of appeals reversed, finding that defense counsel's mistrial motion was timely, plaintiff counsel's closing arguments were sufficiently inflammatory to warrant a new trial, and the district court erroneously excluded McDonnell & Miller valves from the special verdict form. Because the court was remanding the case for a new trial, it also reached the evidentiary issues that were likely to arise on remand. The court concluded that OSHA evidence was properly considered, the jury was properly instructed on the proper use of evidence barred by the statute of repose, and the district court did not err in including two bankrupt entities on the allocation-of-fault form. The court, however, did not reach the issue of whether punitive damages were appropriate.

         We granted Kinseth's application for further review.

         II. Standard of Review.

         We review determinations of timeliness for correction of errors at law. Iowa R. App. P. 6.907. We review a district court's denial of a mistrial for an abuse of discretion. State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017). Judicial estoppel is an "equitable doctrine invoked by a court at its discretion, " and we therefore review questions of judicial estoppel for an abuse of discretion. Tyson Foods, Inc. v. Hedlund, 740 N.W.2d 192, 195 (Iowa 2007) (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 1815 (2001)). Challenges to jury instructions are reviewed for correction of errors at law. Alcala v. Marriott Int'l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). We review evidentiary rulings for abuse of discretion. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa 2017).

         III. Analysis.

         A number of issues have been properly raised for our review: (1) whether defense counsel's objections and motion for mistrial were timely, (2) whether plaintiff's counsel's statements during closing arguments warrant a new trial, (3) whether the doctrine of judicial estoppel bars Weil-McLain from appealing the compensatory damages award, (4) whether McDonnell & Miller valves were erroneously excluded from the allocation-of-fault special verdict form, (5) whether two bankrupt entities were erroneously included on the allocation-of-fault form, (6) whether evidence relating to Weil-McLain's OSHA violation was erroneously admitted, (7) whether the jury was erroneously permitted to hear evidence of conduct rendered noncompensable by the statute of repose, and (8) whether punitive damages were appropriately awarded under the standard announced in Beeman, 496 N.W.2d at 255-56. We address each of these issues as necessary.

         A. Closing Arguments.

         1. Timeliness of closing argument objections and mistrial motion.

         We first consider whether defense counsel failed to make timely objections to plaintiff's counsel's closing argument, as well as whether Weil-McLain's mistrial motion was timely.

         On the morning of April 24, 2014, plaintiff's counsel presented her closing argument to the jury. Defense counsel objected to five statements, three of which were sustained. Following a noon recess and defense counsel's argument, plaintiff's counsel presented her rebuttal closing. Defense counsel objected to two statements, both of which were sustained. Immediately following plaintiff's rebuttal, the judge stated, "[I]t's 4:30, it's been a long day" and informed the jury he would not read the jury instructions at this time. Instead, the court would adjourn and resume proceedings the following morning at 9 a.m.

         The next morning, at 9:02 a.m., defense counsel moved for a mistrial based on statements made by plaintiff's counsel during her closing arguments. Defense counsel maintained that plaintiff's counsel made roughly a dozen improper statements that were sufficiently prejudicial to warrant a mistrial. Defense counsel contended, among other things, that plaintiff's counsel improperly called into question the statute of repose, argued for an amount of compensatory damages that would "send a message" to Weil-McLain, and repeatedly referenced the amount of money Weil-McLain had spent on defending this and other cases. The district court overruled the motion for mistrial, concluding that "aside from the brake line issue, I was not given the opportunity to pass on these things during closing argument by way of a timely objection, so I'm overruling the defendant's motion for mistrial on each and every respect."

         In its posttrial motion, Weil-McLain renewed its argument for a new trial based on plaintiff counsel's closing argument. The district court again reiterated that defense counsel should have made contemporaneous objections during closing argument by plaintiff's counsel, rather than wait until the arguments were complete. Nevertheless, the court proceeded to the merits and, based on a review of the "voluminous record, " found that counsel's remarks did not prejudice Weil-McLain.

         "When an improper remark is made by counsel in the course of jury argument, it is the duty of the party aggrieved to timely voice objection." Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970). Timely objections give "the trial court an opportunity to admonish counsel or instruct the jury as it may see fit." Id. Indeed, we require prompt objection to discourage the wait-and-see approach, in which aggrieved parties refrain from objecting to remarks in a jury argument until after the verdict has been rendered. Id.

         However, a party does not necessarily waive an objection to a remark made in a closing argument if the party fails to make a contemporaneous objection. Id. In Andrews, we highlighted the sound reasoning of the Nebraska Supreme Court, which explained,

It could well be that any one improper statement would not constitute prejudicial error, while the cumulative effect of several would give rise to a claim of prejudice. Continued objections by counsel to prejudicial statements of opposing counsel in his argument to the jury could place the former in a less favorable position with the jury, and thus impose an unfortunate consequence upon his client which was actually caused by the wrongful conduct of opposing counsel. This he is not required to do. Attorneys engaged in the trial of cases to a jury know or ought to know the purposes of arguments to juries. When they depart from the legitimate purpose of properly presenting the evidence and the conclusions to be drawn therefrom, they must assume the responsibility for such improper conduct. They are in no position to demand that opposing counsel shall jeopardize his position with the jury by constant objections to their improper conduct.

Id. at 402 (quoting Sandomierski v. Fixemer, 81 N.W.2d 142, 145 (Neb. 1957)); see also State v. Romeo, 542 N.W.2d 543, 552 n.5 (Iowa 1996) ("It is not always essential that opposing counsel interrupt closing argument with an objection . . . ."). Thus, our rule instructs that "[w]here the closing arguments are reported, " a party's "objection to the remarks of counsel during final jury argument urged at the close of the argument in motion for mistrial made before submission to the jury is timely." Andrews, 178 N.W.2d at 401-02. The district court therefore erred in requiring defense counsel to make numerous, contemporaneous objections during closing arguments.

         Kinseth seizes upon the phrase "at the close of the argument" and asks that we require parties to move immediately for mistrial once the final jury argument has finished. Kinseth argues that defense counsel should have moved for a mistrial before or after the noon recess and, instead, waited almost a full day to make the motion, which diminished the curative abilities of the district court.

         We require counsel to move for a mistrial before the case is submitted to the jury to ensure that the court has ample opportunity to "admonish counsel or instruct the jury" before deliberations begin. Id. at 401. Here, the court had the same opportunity at 9:02 a.m. as it did at 4:30 p.m. the day before to weigh the prejudicial nature of the statements and determine how best to proceed. Because defense counsel's motion for mistrial was made before the case was submitted to ...


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