Shari Kinseth and Ricky Kinseth, Coexecutors of the Estate of Larry Kinseth, and Shari Kinseth Individually v. Weil-McLain and State of Iowa ex rel. Civil Reparations Trust Fund , 913 N.W.2d 55 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 15–0943
Filed June 1, 2018
SHARI KINSETH and RICKY KINSETH, Coexecutors of the Estate of
Larry Kinseth, Deceased, and SHARI KINSETH, Individually,
Appellees,
vs.
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. DECISION OF COURT OF APPEALS
AFFIRMED IN PART AND REVERSED IN PART; DISTRICT COURT
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR NEW TRIAL WITH INSTRUCTIONS.
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
2
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.
3
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
4
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
5
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.
6
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.
7
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
1For clarity, we will continue to refer to the plaintiffs collectively as “Kinseth.”
2The legislature has since narrowed the recovery period to ten years. See Iowa
Code § 614.1(11)(a)(2) (2018).
3Kinseth does not appeal this ruling.
8
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
9
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.
4Following this award, the Iowa Civil Reparations Trust Fund intervened as a
party.
10
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
11
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
12
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
13
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
14
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
15
the jury, and the court had time to weigh the motion and instruct the
jury if necessary, the motion for mistrial was timely.
2. Attorney misconduct. We next consider whether the district
court erred in denying Weil-McLain’s motion for a new trial based on
alleged violations by plaintiff’s counsel of the in-limine order.
To warrant a new trial based on attorney misconduct, the
complained of misconduct “must have been prejudicial to the interest of
the complaining party.” Mays v. C. Mac Chambers Co., 490 N.W.2d 800,
803 (Iowa 1992). “[U]nless a different result would have been probable in
the absence of misconduct, a new trial is not warranted.” Loehr v.
Mettille, 806 N.W.2d 270, 277 (Iowa 2011). Accordingly, we begin by
assessing whether plaintiff’s counsel indeed violated the court’s in-limine
order during her closing argument, and if so, we then consider whether
the violations were so prejudicial that the outcome of the trial would
likely have been different but for the misconduct.
a. Purported misconduct.
i. Referencing the amount of money spent defending the suit. The
in-limine order barred plaintiff’s counsel from referencing “the amount of
money or time spent by the defendant in the defense of this matter,
including attorney time and expenses and witness time and expenses.”
Weil-McLain identified eleven statements that allegedly violate this
limitation:
(1) “[T]hey had a very neat expensive graphic . . . .”
(2) “Weil-McLain’s own studies, if you buy their bought-for
studies . . . .”
(3) “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?”
(4) “You don’t have to believe experts that are paid a lot of
money, you can see [that the fibers get into the lungs].”
16
(5) “[B]ecause even from [their] bought and paid-for science
. . . they would have been violating OSHA.”
(6) “[Y]ou heard that there are 50 scientists that have
published over 1,000 articles, they disagreed with what
[Weil-McLain’s] paid expert says . . . .”
(7) “[T]hey paid a company tens of thousands of dollars to
create graphics to show you that.”
(8) “35 percent of [the fourteen million requested in
compensatory damages] is 4.9 million. That’s half of what
[defense expert] Mr. Rasmuson has made in two-and-a-half
years as a 43-year-old man. Half.”
(9) “It’s a simple test. 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, why wasn’t that done and
those straightforward results given to us.”
(10) “You heard Mr. Rasmuson made $9 to 10 million in less
than two-and-a-half years. You heard that 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 to not people suffering from
mesothelioma, but to create literature to say brakes are
safe.”
(11) “What I suggest [for punitive damages] 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 been paid in this litigation.”
The identified statements fall within three categories: (1) questioning the
reliability of self-funded studies, (2) questioning the credibility of an
expert who is handsomely paid, and (3) directly commenting on the
amount of money that the opposing party spent defending the action.
With respect to questioning the reliability of self-funded studies, in
toxic tort cases, “expert medical and toxicological testimony is
unquestionably required to assist the jury” in determining general and
specific causation. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 688
(Iowa 2010). “Where each side has adequate financial resources, the jury
will be treated to a procession of persons with impeccable credentials
17
and persuasive testimony.” Carl B. Rubin & Laura Rigenbach, The Use
of Court Experts in Asbestos Litigation, 137 F.R.D. 35, 35 (1991). The
jury inevitably faces a crossroads when “these experts, all armed with
such qualifications, ... reach diametrically opposite viewpoints
depending upon which side they testify for.” Id. The jury, as the arbiter
of credibility, is left to decide which expert was more persuasive.
In order to prevail in the “battle of the experts,” casting doubt upon
the credibility of the opposing expert is critical. “[G]enerally ‘the factual
basis of an expert opinion goes to the credibility of the testimony . . . .”
Ranes, 778 N.W.2d at 693 (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d
968, 974 (8th Cir. 1995)). Accordingly, when an expert witness has
formed an opinion in favor of the defendant, based on a study
commissioned by the defendant, plaintiff’s counsel must be permitted to
contest the objectivity of the expert’s testimony.
Here, Weil-McLain’s expert, Mr. Rasmuson, testified on cross-
examination that the exposure simulation studies that he used to
evaluate the exposure from asbestos rope and cement were sponsored by
Weil-McLain. He also testified that when giving his opinion about the
hazards of asbestos rope, he only considered studies paid for by Weil-
McLain. Further, the other defense expert, Dr. Smith, testified on cross-
examination that when evaluating Kinseth’s levels of asbestos exposure
from Weil-McLain boilers, he only spoke to the jury about studies that
were funded by Weil-McLain.
Plaintiff’s counsel did not violate the in-limine order when she
reminded the jury that Weil-McLain’s witnesses formed their opinions by
solely looking at studies that were sponsored by Weil-McLain. In this
instance, “bought and paid for” does not refer to the amount of money
Weil-McLain spent defending this suit. Rather, the phrase reminds the
18
jury that it should be considering the reliability of the defendant’s expert
witnesses. Because this case involved a battle of the experts, and
plaintiff is entitled to attack the objectivity of the factual bases
underlying an expert’s testimony, these comments did not violate the
in-limine order.
Second, with respect to questioning the credibility of an expert who
is handsomely paid, counsel is permitted to highlight the fact that an
expert is paid during closing arguments.
Evidence that a witness is receiving payment for his
testimony, while it may be entirely proper, such as an expert
hired to testify regarding an issue in the lawsuit, is relevant
and admissible to show potential bias towards the party
paying his fee. In closing argument the point can be made
that the more favorable the paid expert’s testimony is, the
more likely he will be hired in the future.
8 Tom Riley & Peter C. Riley, Iowa Practice SeriesTM: Civil Litigation
Handbook § 38.13, at 438 (2017). Plaintiff’s counsel therefore did not
violate any rule by referring to defense experts as “paid experts.” The
issue becomes more complicated, however, when counsel references an
expert’s fee in a manner that simultaneously alerts the jury to the large
sums of money typically involved in asbestos litigation.
On cross-examination, Mr. Rasmuson testified that between 2012
and 2014, his company billed approximately nine or ten million dollars
for drafting reports for asbestos-related litigation. He also testified that
approximately eighty-five percent of his company’s litigation work is
asbestos-related. During her closing argument, plaintiff’s counsel stated
that the experts on “both sides” made “obscene money,” and informed
the jury they did not need “experts that are paid a lot of money” to
conclude that asbestos fibers enter the lungs. On balance, these
statements do not cross the line between impeachment and misconduct.
19
The jury already knew that the expert had received nearly ten million
dollars in three years to assist companies in asbestos litigation. Again,
counsel is permitted to question the credibility of an expert who is
repeatedly paid to testify in defense of asbestos manufacturers.
However, plaintiff’s counsel then framed Kinseth’s requested
compensatory damages amount as “half of what Mr. Rasmuson has
made in two-and-a-half years as a 43-year-old man. Half.” This
statement goes well beyond impeachment and instead communicates to
the jury that the requested award is reasonable because there are large
sums of money involved in asbestos litigation. Thus, this statement was
improper and violated the in-limine order.
Finally, plaintiff’s counsel plainly violated the in limine order when
she expressly referenced the amount of money Weil-McLain spent
defending this suit. Plaintiff’s counsel repeatedly emphasized the
“expensive graphics” that Weil-McLain used, commented on the
“amazing” amount of “money in this litigation,” informed the jury that
Weil-McLain “spent half a million dollars” on a “simple test,” told the jury
that Weil-McLain “spen[t] tens of thousands of dollars” on a “study that
could have been done as easily as the two minutes we saw on the floor,”
and perhaps most jarringly, stated that a punitive damages award
between $4 million and $20 million “is certainly within the realms of
what [Weil-McLain] ha[s] paid in this litigation.” The sole purpose of
these statements is to alert the jury that Weil-McLain has deep pockets
and can afford a substantial award. Counsel therefore violated the
in-limine order prohibiting any reference to the amount the defendant
spent defending this action.
ii. Referencing corporate wealth, power, or assets. The in-limine
order proscribed “any reference to the wealth, power, corporate size or
20
assets of Weil-McLain which would suggest to the jury that the jury
ought to compare the relative wealth of the plaintiffs and defendants in
answering the jury questions.” Defendant takes issue with the following
three statements by plaintiff’s counsel:
(1) “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.”
(2) “[A]s you consider the damages in this case, you are
speaking from people from 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.”
(3) “And I want to acknowledge $100,000 would make this
family rich. I mean 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. That is not
why we’re here. That is not what that is about.”
While “earning power is important to be shown and proper to be
argued in connection with the claim of damages,” it is nevertheless
improper for a jury to consider relative wealth “in the process of
determining which, if either, party is entitled to recover.” Burke v. Reiter,
241 Iowa 807, 815, 42 N.W.2d 907, 912 (1950). “By the same token any
comparison of respective earning powers or financial or economic
conditions is entirely improper.” Id. at 815–16, 42 N.W.2d at 912.
Because “[t]he temptation to resort to such comparison is strong,” the
district court must use its “discretion to determine whether proper
bounds have been overstepped and, if so, whether serious prejudice has
resulted.” Id. at 816, 42 N.W.2d at 912.
Through her statements, counsel sought to impress upon the jury
that it should assign a damages amount that would be significant to a
corporation, as opposed to an average person. Indeed, since Weil-McLain
21
is a corporation with the sole purpose of generating a profit, the jury
should award a sum that hits Weil-McLain where it hurts. While counsel
did not insinuate that Weil-McLain should be held liable because it is a
corporation that can afford it, her statements nevertheless invoked a
direct comparison between the relative wealth of the defendants and
ordinary people like the Kinseths. Thus, counsel violated the in-limine
order.
iii. Sending a message. The in-limine order further prevented
counsel from making “[a]ny references, statements, or arguments that
the jury should attempt to send defendant a message.” During the first
closing argument, when discussing the appropriate compensatory
damages for pain and suffering, plaintiff’s counsel made the following
statement:
It is not about what the family needs, it is about sending a
message to a company who you’ve evaluated how they spend
some of their money, you’ve evaluated some of their actions
with studies, what message they need in order to value this
appropriately. That’s why we’re here.
It is facially improper to suggest that a jury use a compensatory
damages award, which is designed to recompense the plaintiff for actual
harms suffered, to punish the defendant. Thus, counsel violated the
in-limine order by urging the jury to use its compensatory damages
award to “send a message” to Weil-McLain.
iv. Referencing prior lawsuits. The in-limine order barred
plaintiff’s counsel from referencing “any other lawsuit in which the
defendant may have been involved or is involved.” Weil-McLain alleges
plaintiff’s counsel violated this directive when she made the following
statement during her punitive damages closing argument.
The last thing and this is the one that they said is we have
hurt you, they have their lawyer say it. No one at the
22
company actually takes the stand and said that having thirty
years of lawsuits they claim they have been heard.
Kinseth defends this statement on the ground that Weil-McLain’s
corporate representative, Paul Schuelke, testified during trial that the
company first became involved in asbestos litigation in the 1980s.
Kinseth therefore maintains it was permissible to remind the jury of
Schuelke’s testimony. On our review of the argument, we find counsel
went far beyond reminding the jury of Schuelke’s testimony. Instead,
counsel sought to use the fact that Weil-McLain has been previously
sued for asbestos exposure to support her request for a large punitive
damages award in this case. Thus, counsel’s reference to prior lawsuits
violated the in-limine order.
v. Calling the statute of repose into question. Finally, Weil-McLain
objects to characterization of the statute of repose made by plaintiff’s
counsel during closing arguments:
(1) “I want to talk about the importance of the statute of
repose. All of that work tearing out insulation to Weil-
McLain boilers cannot be considered. Can’t. It’s a rule, it
says in every meso[thelioma] case functionally, because you
don’t find out you’re sick until 15 years later you just can’t
do anything to it and it applies to Weil just like it applies to
all the other companies here, it really changed the nature of
this case. You heard a lot about exposures, repairing valves
and pumps, none of that can be considered.”
(2) “[A]nd so the effect of this rule, a rule I candidly don’t
understand, is not only do you not get to consider tear out of
Weil-McLain boilers that happened many, many, many
times, but you don’t get to consider the fault of Taco where
the actual exposures occurred. That is the effect of this bar
after 15 years of exposure. And that’s why I believe that for
this company, the answer to proximate cause is no.”
Weil-McLain argues these statements amount to instructing the jury to
nullify the statute of repose and consider Kinseth’s exposure during the
removal process when calculating damages.
23
Instructing a jury on nullification is prohibited in Iowa. State v.
Willis, 218 N.W.2d 921, 925 (Iowa 1974). “It is one thing to recognize
jurors have the power not to do their duty and quite another to tell them
they have a right not to do their duty.” Id. at 924. Considering the
identified statements in the context of counsel’s argument, we do not
believe counsel instructed the jury to nullify the statute of repose. In her
opening statements, counsel walked the jury through the statute and
expressly instructed them that any exposure during the removal process
could not be considered when allocating fault. While examining
witnesses, counsel clarified whether her questions related to the
installation or removal process. Throughout the trial, counsel carefully
abided by the statute of repose and took care to make the jury aware of
what it may and may not consider when apportioning fault and damages.
Thus, while it was improper to cast doubt on the public policy motivating
the statute of repose, counsel’s statements did not amount to
nullification.
b. Prejudice. A new trial should not be ordered unless the
attorney’s misconduct, viewed cumulatively, is prejudicial to the
complaining party and a different result would have likely occurred but
for the misconduct. Baysinger v. Haney, 261 Iowa 577, 582, 155 N.W.2d
496, 499 (1968). Importantly, one or more violations of an in-limine
order would not be per se grounds for a mistrial. See Mays, 490 N.W.2d
802–03 (finding the district court did not abuse its discretion in denying
a motion for new trial despite multiple in-limine violations).
When attorneys approach the jury box to present their closing
arguments, they carry with them an immense responsibility. Evidence
has been received, witnesses have been heard, and counsel may now
speak directly to the jury and tell the story of the case, from beginning to
24
end, largely free from interruption. Juries, of course, are instructed to
decide the case on the evidence presented and not upon statements
made during closing arguments. We presume juries follow this
instruction and do not consider closing statements to be evidence.
Yet, juries are often tasked with deciding questions of fact and law
that involve innately vague and difficult considerations. For example,
juries often consider and valuate how much pain and suffering a plaintiff
has experienced. When making challenging decisions about potentially
nebulous concepts, juries will inevitably take cues from attorneys during
their respective closing arguments. In such instances, we observe a
heightened sensitivity to inflammatory rhetoric and improper statements,
which may impress upon the jury that it can look beyond the facts and
law to resolve the case. Attorneys have a duty to refrain from crossing
the admittedly hazy line between zealous advocacy and misconduct.
Relatedly, attorneys may occasionally make one or more isolated
missteps during closing arguments and thereby violate a pretrial order.
It is a wholly distinct act of misconduct, however, to develop and present
a theme for closing arguments that is premised upon improper jury
considerations.
Based on our review of the entire content of the closing arguments,
we believe the statements made by plaintiff’s counsel fall into the latter
category. The inescapable theme of counsel’s closing argument is that
Weil-McLain has chosen to spend exorbitant sums of money defending
asbestos actions instead of compensating innocent victims, and this case
is an opportunity to tell them what you, the jury, think of that choice.
Given counsel’s repeated, deliberate references to Weil-McLain’s
expenditures defending this suit and others, and instructions to use this
25
case to send a message about such expenditures, we must conclude that
counsel’s rhetoric prejudiced the defendant, and a new trial is warranted.
Because we find the case must be remanded for a new trial, we will
consider any remaining issues that may arise again on retrial.
B. Allocation of Fault.
1. Judicial estoppel. Following the jury’s verdict awarding
$4 million in compensatory damages and concluding punitive damages
were justified, plaintiff and defense counsels presented closing
arguments on the appropriate amount of punitive damages. During
defense counsel’s argument, he stated to the jury,
This isn’t a big company, counsel’s asked for a lot of money
from a company that’s relatively small to punish them. . . .
[B]ut I think you’ve already sent your message here and . . .
the amount that you put on that line really doesn’t relate to
any damages. If you put zero, it’s still the same message, if
you put one dollar, it’s still the same message. If you put
$100 it’s still the same message. The people at Weil-McLain
understand what you said here. They’ve been — they’ve
been — they’re going to compensate these folks based on
what you said and the conduct is already over . . . . You’ve
sent your message as far as the money.
(Emphasis added.)
After the jury returned the punitive damages verdict, Weil-McLain
moved for a new trial on several grounds, including the erroneous
exclusion of certain responsible third parties on the allocation-of-fault
special verdict form. In response, Kinseth argued that Weil-McLain is
estopped from challenging the compensatory damages verdict, as its
statement that it is “going to compensate these folks based on what you
said” committed the company to paying the full compensatory damages
judgment. Although the district court did not expressly rule on the
estoppel issue, it impliedly rejected the argument by reaching the
question of whether certain companies were erroneously excluded from
26
the special verdict form. On appeal, the court of appeals held that
judicial estoppel was inapplicable in this case, as the doctrine only
applies to statements made in successive proceedings.
It is a “well-settled principle” that a “party who has, with
knowledge of the facts, assumed a particular position in judicial
proceedings is estopped to assume a position inconsistent therewith to
the prejudice of the adverse party.” Snouffer & Ford v. City of Tipton, 150
Iowa 73, 84–85, 129 N.W. 345, 350 (1911). The doctrine aims “to protect
the integrity of the judicial process by preventing intentional
inconsistency.” Vennerberg Farms, Inc. v. IGF Ins., 405 N.W.2d 810, 814
(Iowa 1987). Further, it “addresses the incongruity of allowing a party to
assert a position in one tribunal and the opposite in another, thereby
creating the perception that at least one court has been misled.” Id.
We have previously clarified that “[j]udicial estoppel also applies
when inconsistent positions otherwise meeting the requirements of this
doctrine are taken in the same proceeding.” Duder v. Shanks, 689
N.W.2d 214, 221 (Iowa 2004); see also State v. Duncan, 710 N.W.2d 34,
43–45 (Iowa 2006) (finding a criminal defendant was judicially estopped
from arguing on appeal that admitting evidence of prior domestic abuse
was prejudicial when the defendant affirmatively relied on such evidence
at trial to support his theory of self-defense). Yet, a central tenet of the
doctrine is “the successful assertion of the inconsistent position in a
prior action.” Vennerberg, 405 N.W.2d at 814. Judicial acceptance
exists when “the position asserted by a party was material to the holding
in the prior litigation.” Tyson, 740 N.W.2d at 198. Without judicial
acceptance of the inconsistent position, judicial estoppel is inapplicable,
as there is “no risk of inconsistent, misleading results.” Vennerberg, 405
N.W.2d at 814.
27
Here, there was no judicial acceptance of defense counsel’s
statement to the jury that Weil-McLain is “going to compensate these
folks based on what [the jury] said.” It was not material to any ruling,
and at the time it was made, the jury had already returned its
compensatory damages amount and decided punitive damages were
justified. Thus, applying estoppel in this circumstance “does not
advance the policy goal of avoiding inconsistent, misleading results.”
Tyson, 740 N.W.2d at 198.
2. Comparative fault instruction for responsible third parties.
Because Weil-McLain is not estopped from challenging the compensatory
damages judgment, we proceed to consider whether McDonnell & Miller
valves were erroneously excluded from the allocation-of-fault special
verdict form.
Iowa’s comparative fault statute permits juries to attribute fault to
parties other than the defendant, including “third-party defendants and
persons who have been released pursuant to section 668.7.” Iowa Code
§ 668.3(2) (2007). However, courts may only submit an issue to the jury
if the issue is supported by substantial evidence. Mitchell v.
Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013).
Substantial evidence exists when “a reasonable person would find [the
evidence] adequate to reach a conclusion.” Greenwood v. Mitchell, 621
N.W.2d 200, 204 (Iowa 2001) (quoting Bredberg v. Pepsico, Inc., 551
N.W.2d 321, 326 (Iowa 1996)). It requires more than mere speculation.
Id. When weighing the sufficiency of evidence, we must “we give the
evidence ‘the most favorable construction possible in favor of the party
urging submission.’ ” Id. at 205 (quoting Hoekstra v. Farm Bureau Mut.
Ins., 382 N.W.2d 100, 108 (Iowa 1986)).
28
In order for a jury to allocate fault against a party, the plaintiff
must have a “viable claim against that party.” Spaur v. Owens-Corning
Fiberglass Corp., 510 N.W.2d 854, 863 (Iowa 1994). In the context of
asbestos litigation, viable claims are often constrained by two important
considerations: proximate causation and statutes of repose.
A party’s conduct is the proximate cause of a plaintiff’s injury
“when it is a substantial factor in producing damage and when the
damage would not have happened except for the conduct.” Id. at 858
(quoting 1 Iowa Civil Jury Instructions 700.3 (1991)). In asbestos cases,
proximate causation requires showing more than the sheer possibility of
exposure, but rather proof that the plaintiff “inhaled asbestos fibers as a
result of being exposed to an asbestos-containing product manufactured
and/or sold by [a defendant].” Id. at 862. However, we have clarified
that “a reasonable inference of exposure to a defendant’s asbestos-
containing product, coupled with expert testimony regarding asbestos
fiber drift and the cumulative effects of exposure to asbestos, is enough
to prove proximate cause.” Beeman, 496 N.W.2d at 254. “Proof of
proximate cause in asbestos litigation is often limited to circumstantial
evidence.” Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997).
Iowa’s statute of repose extinguishes liability for asbestos exposure
stemming from “unsafe or defective condition[s] of an improvement to
real property” after fifteen years. Iowa Code § 614.1(11). Here, the
district court concluded Kinseth does not have a viable claim against
manufacturers whose products exposed him to asbestos during the
removal process, as boiler tear-outs constitute an improvement to real
property. Further, the court found that once a component part, such as
a valve, becomes part of an improvement to real property, it does not lose
its status as an improvement once it is detached and refurbished. Any
29
exposure to asbestos during the refurbishment process is therefore not
compensable under the statute of repose and cannot give rise to a viable
claim.
Accordingly, substantial evidence must exist in the record that
demonstrates (1) Kinseth inhaled asbestos fibers as a result of working
with a McDonnell & Miller valve, and (2) the exposure occurred while
installing, not removing or refurbishing, fixtures or other component
parts.
During his career, Kinseth sometimes worked with valves
manufactured by McDonnell & Miller. Kinseth’s testimony reveals two
ways in which he was exposed to asbestos while working with the valves:
refurbishing an old valve and cutting gaskets to place on the flanges of a
new valve. When refurbishing a recycled valve, Kinseth used steel
brushes or putty knives to remove the gasket, causing the gasket to
powder and release asbestos dust into the air. Kinseth frequently
refurbished McDonnell & Miller valves, and thus frequently inhaled
asbestos. Any exposure to asbestos during the refurbishment process,
however, is not compensable under the statute of repose and thus
cannot be grounds to include the McDonnell & Miller as a responsible
third party.
When working with new McDonnell & Miller valves, Kinseth
testified the valves did not always come with gaskets on the flanges, and
Kinseth would sometimes need to place a gasket on the flanges. The
gaskets he used were either precut gaskets that were purchased along
with the new valve, or separately purchased gaskets that needed to be
sized and cut to fit the flange. Kinseth sometimes worked with gaskets
that were purchased from McDonnell & Miller, although the company
purchased gaskets from other manufacturers as well. Attaching a precut
30
gasket did not cause asbestos exposure, as the process did not invade
the gasketing material. However, cutting a gasket to fit the flange caused
the gasket to powder, which released asbestos dust into the air. Thus, it
was not McDonnell & Miller’s valves that exposed Kinseth to asbestos,
but rather cutting separately purchased gaskets to place on the flanges
of the valve that caused asbestos exposure.
In Weil-McLain’s motion to include responsible third parties on the
verdict form, it specified between the manufacturer and type of product
that exposed Kinseth to asbestos. Accordingly, we are not deciding
whether any product manufactured by McDonnell & Miller exposed
Kinseth to asbestos, but whether McDonnell & Miller’s valves exposed
Kinseth to asbestos. Based on our review of the record, the district court
properly excluded the valves from the allocation-of-fault verdict form, as
Weil-McLain failed to adduce substantial evidence that McDonnell &
Miller valves exposed Kinseth to asbestos.
3. Allocating fault to bankrupt entities. During trial, Kinseth
objected to including two bankrupt entities, Hercules and Johns-
Manville, on the allocation-of-fault verdict form, as the estate could not
meaningfully recover from the entities. The district court denied the
motion and the jury allocated ten percent fault, or $400,000 in damages,
to Hercules and fifteen percent fault, or $600,000 in damages, to Johns-
Manville. Kinseth had previously settled with both companies and,
through the bankruptcy trust system, received $4690 from Hercules and
$26,250 from Johns-Manville. Kinseth maintains the substantial
disparity in assigned fault and recoverable damages is fundamentally
unfair and contrary to the policy of chapter 668.
Kinseth primarily relies on Spaur, 510 N.W.2d 854, for the
proposition that fault should not be allocated to bankrupt entities. In
31
Spaur, a defendant manufacturer objected to excluding Manville Trust
from the allocation-of-fault verdict form. Id. at 862. At the time,
Manville Trust was subject to a permanent injunction that “preclude[d]
any litigation against Manville Trust as well as Manville Trust’s
participation in any way in any litigation.” Id. at 863. The court
determined that Manville Trust was not a “released party,” as the
plaintiffs did not “avail themselves of the procedure by which they could
settle with Manville Trust in order to receive compensation.” Id. Indeed,
plaintiffs had not received any compensation from the Trust in exchange
for a release. Id.
“In general, the purpose of section 668.3 is to make defendants
pay in proportion to their fault.” Godbersen v. Miller, 439 N.W.2d 206,
208 (Iowa 1989). Here, unlike in Spaur, the estate “avail[ed] [itself] of the
procedure by which [it] could settle” with the parties and thereby
received compensation from both entities in exchange for a release from
liability. Spaur, 510 N.W.2d at 863. Accordingly, both Hercules and
Johns-Manville are “released parties” as contemplated by section 668.3
and are properly subject to inclusion on the allocation-of-fault form.
C. Admissibility of Evidence.
1. OSHA evidence. We next consider whether the district court
erroneously admitted evidence relating to Weil-McLain’s OSHA violations.
In 1974, two years after OSHA promulgated asbestos regulations, OSHA
cited Weil-McLain for a number of violations in its plant. One such
citation was for failing to place warning labels on its asbestos products,
including asbestos rope and cement. Indeed, despite having knowledge
of the hazardous health risks of asbestos, Weil-McLain only began
placing warnings on its asbestos products after the company was cited
by OSHA.
32
In its motion in limine, Weil-McLain sought to wholesale prohibit
any use of Weil-McLain’s OSHA violations at trial, alleging that Kinseth
stopped installing boilers in 1972, and thus any actions after 1972 are
immaterial to this case. Further, Weil-McLain argues that even if
Kinseth continued to work beyond 1972, the OSHA citation does not
speak to the reasons behind the company’s failure to warn and thus is
not relevant to punitive damages. The district court denied the motion,
finding the citation for failing to place warnings on asbestos products
was relevant to Kinseth’s punitive damages claim. The court informed
the parties it would “tightly circumscribe” the use of the evidence and
prevent any discussion of the violations beyond failure to warn.
Kinseth testified that, while he primarily worked in the office in
1972, and indeed had completed the vast majority of his installation
work by 1972, he occasionally performed “hands-on” work in the field in
a supervisory capacity until he retired in 1987. Thus, Weil-McLain’s
actions, or lack of actions, in 1974 are relevant to Kinseth’s case.
Moreover, evidence is relevant if it “has any tendency to make a fact more
or less probable than it would be without the evidence” and “[t]he fact is
of consequence in determining the action.” Iowa R. Evid. 5.401.
Evidence that Weil-McLain did not place warnings on its asbestos
products until OSHA issued a citation, despite having knowledge of
asbestos’ risks, clearly has a tendency to make it more or less probable
that Weil-McLain acted with a “willful and wanton disregard for the
rights or safety of another.” Iowa Code § 668A.1(1)(a). Because the
evidence is relevant, the district court did not abuse its discretion in
denying the motion in limine.
During trial, the district court determined additional evidence
about Weil-McLain’s other OSHA citations could be admitted. The court
33
explained that during defense counsel’s examination of its own witness,
Mr. Schuelke, counsel asked about the nature of the OSHA violations,
and thus “kicked open the door” on the issue. Although Weil-McLain
similarly challenges this decision on appeal, we decline to reach the
issue, as it is uncertain whether the situation will again arise on retrial.
2. Statute-of-repose evidence. Prior to trial, the district court
determined that any exposure to asbestos arising from the removal
process was noncompensable under the statute of repose. Weil-McLain
contends the jury was erroneously permitted to hear evidence of
Kinseth’s exposure to asbestos while removing Weil-McLain’s boilers,
despite such exposure being noncompensable and therefore irrelevant.
The district court declined categorically to exclude this evidence
because it determined that it was important for the jury to understand
Kinseth’s total exposure to asbestos, from all manufacturers, in order to
determine causation. Indeed, the court found that in order for the jury
to determine which manufacturers contributed to Kinseth’s
mesothelioma, and to what degree, the jury must be permitted to
consider activities that were not compensable but nevertheless
contributed to the Kinseth’s cancer.
We agree that evidence of exposure during the removal process,
while noncompensable, was nevertheless relevant to the question of
causation. Further, we presume juries follow the court’s instructions.
State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). Thus, the district
court did not abuse its discretion in permitting the jury to hear evidence
of Kinseth’s exposure during the removal process and instructing the
jury on the proper use of such evidence.
D. Punitive Damages. Finally, Weil-McLain alleges that Kinseth
introduced insufficient evidence to submit the issue of punitive damages
34
to the jury. Specifically, Weil-McLain asserts that in order for punitive
damages to be warranted, Kinseth must prove that Weil-McLain’s
conduct deviated from that of others in its industry. Weil-McLain’s
assertion rests on its interpretation of Beeman, 496 N.W.2d at 255–56,
which we will now clarify for retrial.
In Beeman, a plumber, Joseph Beeman, contracted pleural plaques
and asbestosis from working closely with asbestos-containing materials
throughout his career. Id. at 249–50. Beeman sued Johns-Manville
Corporation (JM), Keene Corporation (Keene), and other companies that
manufactured asbestos-containing products. Id. at 250. Following a
number of settlements, Beeman proceeded to trial against JM and Keene.
Id. At trial, the jury heard evidence that some studies in the 1920s and
1930s linked asbestos with health problems and that “JM itself financed
asbestos hazards studies in the 1940s and 1950s.” Id. Yet, we found “it
was not until 1965, when the Selikoff study was published, that a clear
connection between exposure to asbestos by end-users, such as Beeman,
and lung problems was established.” Id. Thus, the evidence at trial
showed that one defendant, JM, had specific knowledge of the dangers of
asbestos well before 1965, while the other defendant, Keene, only had
general industry knowledge beginning in 1965. Id.
At the close of trial, the district court submitted a punitive damage
claim against Keene, but not JM, as JM was subject to a federal
bankruptcy court reorganization plan that precluded punitive damages.
Id. at 250, 255 n.3. The jury awarded Beeman $1.175 million in actual
damages, as well as assessed $5 million in punitive damages against
Keene. Id. at 250. JM and Keene both filed posttrial motions for a new
trial and judgment notwithstanding the verdict. Id. The district set aside
the punitive damages award and Beeman appealed. Id.
35
On our review, we explained “[p]unitive damages are not
compensatory; they are for punishment and deterrence.” Id. at 255. To
receive punitive damages, a plaintiff must demonstrate “by a
preponderance of clear, convincing, and satisfactory evidence that the
defendant’s conduct amounted to a willful and wanton disregard for the
rights or safety of another.” Id.
We determined Beeman offered insufficient evidence to support a
claim for punitive damages against Keene. Id. We noted, “Keene and its
predecessors manufactured and distributed asbestos-containing thermal
insulation materials for many years. Many other companies performed
similar services. Asbestos was recognized as the best insulating material
available, because of its heat resistance and practical indestructibility.”
Id. At the same time, reports of the hazards of asbestos continued to
appear in scientific literature. Id. We found “reports regarding dangers
of asbestos to insulators and bystanders, such as Beeman, were
ambiguous before 1965.” Id. at 255–56.
Importantly, we emphasized the difference between general
industry knowledge and actual conduct. Id. at 256. We explained,
Even though reasonable jurors could find that the
manufacturers had enough knowledge to trigger a duty to
warn of the potential hazards of their products, and that
such failure amounted to negligence, the real issue here is
conduct. For punitive damages, a defendant’s conduct must
be more egregious than mere negligence; it must amount to
a willful and wanton disregard for the public’s rights or
safety established by a preponderance of clear, convincing,
and satisfactory evidence.
Id. Accordingly, we clarified “punitive damages may not be assessed
against Keene based on the general knowledge of the asbestos industry.
Instead, there must be clear, convincing, and satisfactory evidence that
sets Keene’s conduct apart from that of other asbestos manufacturers.”
36
Id. Because Beeman failed to show that Keene, specifically, willfully and
wantonly disregard the rights and safety of the public, punitive damages
were inappropriate. Id.
Here, Weil-McLain seizes upon the phrase “sets Keene’s conduct
apart from that of other asbestos manufacturers” and maintains that, in
order to receive punitive damages, Kinseth must show that Weil-McLain’s
conduct—failure to warn—deviated from its peers. However, this reading
of Beeman ignores the distinction between defendants with specific
knowledge of potential harms and defendants merely charged with
general industry knowledge.
Beeman instructs that if a defendant lacked specific knowledge of a
potential harm and its conduct did not set it apart from others with the
same general knowledge, any failure to warn was no more than
negligence. However, if a defendant had specific knowledge of the
potential harms of asbestos and failed to act, it will not be shielded from
punitive damages simply because its peers, who may or may not have
had specific knowledge, similarly failed to act. Rather, the willfulness
and wantonness of its failure to act will be considered in light of its
specific knowledge, as well as other contextual evidence. The defendant’s
conduct must still be “more than merely objectionable” and “more
egregious than mere negligence.” Id. at 255–56.
IV. Conclusion.
Because statements made by plaintiff’s counsel during closing
arguments were prejudicial, we remand the case for a new trial. On
remand, McDonnell & Miller valves shall not be included on the special
allocation-of-fault verdict form, both Hercules and Johns-Manville shall
be included on the verdict form, evidence of the OSHA citation for failing
to warn is admissible, evidence relating to conduct rendered
37
noncompensable by the statute of repose is admissible if a proper
limiting instruction is provided, and the court shall consider the punitive
damages issue in light of our clarification of Beeman.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
REVERSED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN
PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL WITH
INSTRUCTIONS.