SHARI KINSETH and RICKY KINSETH, Coexecutors of the Estate of Larry Kinseth, Deceased, and SHARI KINSETH, Individually, Appellees,
WEIL-McLAIN, Appellant, and STATE OF IOWA ex rel. CIVIL REPARATIONS TRUST FUND, Intervenor-Appellee.
review from the Iowa Court of Appeals.
from the Iowa District Court for Wright County, Stephen P.
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
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.
J. Miller, Attorney General, and Richard E. Mull, Assistant
Attorney General, for intervenor-appellee.
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
Factual Background and Proceedings.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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. Following the
summary judgment ruling and several settlements, the number
of defendants was reduced from forty-two to just one:
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.
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.
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.
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
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.
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.
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.
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.
granted Kinseth's application for further review.
Standard of Review.
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).
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.
Timeliness of closing argument objections and mistrial
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
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
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
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
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.
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
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.
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.
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 ...