NH VT Health Service v. US Mineral ( 1993 )

USCA1 Opinion

        November 18, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1186

                   NEW HAMPSHIRE-VERMONT HEALTH SERVICE CORPORATION
                                        d/b/a
                     BLUE CROSS AND BLUE SHIELD OF NEW HAMPSHIRE,

                                 Plaintiff, Appellee,

                                          v.

                       UNITED STATES MINERAL PRODUCTS COMPANY,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                    [Hon. Martin F. Loughlin, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before

                               Torruella, Circuit Judge,
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                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Selya, Circuit Judge.
                                         _____________

                                 ____________________


            John T. Broderick,  Jr. with  whom Mark  W. Dean  and Broderick  &
            _______________________            _____________      ____________
        Dean, P.A. were on brief for appellant.
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            Daniel  A.  Speights with  whom Speights  and  Runyan, Michael  P.
            ____________________            _____________________  ___________
        Hall, and Nixon, Hall and Hess were on brief for appellee.
        ____      ____________________
                                 ____________________


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                      ALDRICH,  Senior Circuit  Judge.   Defendant United
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            States Mineral Products Co. in 1968-69 supplied plaintiff New

            Hampshire-Vermont Health Service Corp., d/b/a Blue  Cross and

            Blue  Shield of New  Hampshire, with a  spray-on fireproofing

            product known  as CAFCO.   This  was applied  to some  of the

            steel beams and elsewhere in a six story building in Concord,

            New Hampshire, that  plaintiff was erecting for  its offices.

            CAFCO  contains asbestos,  and  while  that  does  not  cause

            atmospheric  pollution  when not  disturbed,  plaintiff found

            that  any   reconstruction  and  even   building  maintenance

            activities would result  in its doing so.   In 1987 plaintiff

            considered  various  choices with  respect  to the  building:

            renovate, to meet its growing operational requirements; sell,

            and move to a more modern building; or do nothing.  Even this

            last raised  future, if  not immediate,  fire code  problems.

            Before deciding, having  spent some $330,000 in  testing, and

            in attempting asbestos solutions, plaintiff brought suit.  At

            the time of trial it still had made no final decision.

                      After a 13  day trial and 12 hours  of deliberation

            the jury  found for plaintiff in the  amount of $532,000.  On

            plaintiff's  motion,  the  court set  the  verdict  aside and

            ordered a new trial, confined to damages.  The second verdict

            was for $3,924,937, from which the court ordered a remittitur







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            of $886,872,1  which plaintiff accepted.   Defendant appeals,

            complaining that  there should  have been  no new  trial, but

            that  if a  new trial  was  proper, it  should have  included

            liability.  We affirm.

                      With respect  to granting a  new trial  at all  the

            court  wrote a  thoughtful opinion,  giving  several reasons.

            Its main concern was the  inadequacy of the verdict.   One of

            its  special  reasons,  a  sua  culpa,  was  too  abbreviated
                                       ___  _____

            instructions  on the  measure  of  damages.    Plaintiff  had

            sought, and  excepted to its  refusal, a spelling out  of the

            concept  that if defendant  was liable (negligence  or strict

            liability),   plaintiff  was  entitled  to  future  costs  of

            replacement  irrespective  of   what  remedial  procedure  it

            ultimately adopted, or even if  it did nothing.  For this  it

            quite properly cited Wentworth Bus Lines, Inc. v. Sanborn, 99
                                 _________________________    _______

            N.H. 5, 104 A.2d 392 (1954).  We agree with the court that in

            this special situation,  where, even at trial,  plaintiff had

            made no final decision, it  was important to remove doubts or

            confusion  from the jurors'  minds that might  tend to reduce

            the damages.

                      Second, the court agreed  with plaintiff that there

            had been  error in  respect to  the testimony  of defendant's

            expert Roger Morse.   Plaintiff's expert, one  Halliwell, had


                                
            ____________________

            1.  The second jury  had been allowed to include  an item for
            which the court later concluded defendant was not chargeable.

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            given  seven figure  estimates of  the  cost of  removal, and

            defendant sought to rebut this with Morse's proposed figure -

            - $600,000  - $700,000.   Plaintiff  objected, properly,  for

            lack of prior notice.  Freund v. Fleetwood Enterprises, Inc.,
                                   ______    ___________________________

            956  F.2d 354  (1st  Cir. 1992).   However,  over plaintiff's

            objection,  the court said that  Morse could testify that, on

            his  factual assumptions as  to the amount  of CAFCO present,

            Halliwell's figures would be "substantially" affected.  Morse

            improved on  this:  he  testified that his estimate  would be

            "substantially, substantially affected."

                      Defendant says, correctly to a point, that since in

            Morse's   already  expressed  opinion  there  was  much  less

            material  in  the  building than  Halliwell  assumed,  it was

            obvious,  and  added  nothing,  for  Morse  to  say that  his

            estimate of the removal cost would be less.  Hence, defendant

            says, there  was no  prejudice.  The  difficulty is  that the

            witness's generality was open-ended, particularly so  in what

            we can  only regard  as a theatrical  attempt to  produce the

            effect of  the specifics  that the court  had excluded.   The

            difficulty was  compounded by plaintiff's inability to cross-

            examine without burning  its fingers.   The court could  well

            find,  in   light  of  the   verdict,  that  the   jury  took

            "substantially,  substantially  affected"   as  warranting  a

            figure even smaller than the  excluded specifics.  No one had





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            given a dollar figure  that low.   The court was entitled  to

            feel that the jury had been misled, and plaintiff prejudiced.

                      There were some other possible grounds for granting

            a new trial on damages, but we need go no further.  The court

            acted well within its discretion.

                      Neither  need we go far with respect to defendant's

            second  complaint,  the  failure  to  include  the  issue  of

            liability (and  all other issues, whatever that means) in the

            new trial.   This was advanced only  as a last minute thought

            on  a  motion  for reconsideration.    It  was, nevertheless,

            carefully  answered.    Defendant  repeatedly  tells  us that

            damages and liability  were "inextricably interwoven."   Phav
                                                                     ____

            v. Trueblood, Inc., 915 F.2d 764, 766 (1st Cir. 1990).  If it
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            had argued  this in terms  of its being a  compromise verdict

            defendant  might conceivably have had a point.  It did not so

            contend.  We can think  of no other possible intermingling of

            liability  and  damages;  nor  has  defendant suggested  any,

            except to  dwell on  plaintiff's differing  solutions of  its

            problem.     As  none  of  these  solutions  raised  separate

            questions of damage, the court acted appropriately.

                      Affirmed.
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