13-704-cv
McCormick v. Cleaver Brooks Co.

                 UNITED STATES COURT OF APPEALS
                     FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
LOCAL RULE 32.1.1.   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").      A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 10th day of April, two thousand fourteen.

PRESENT:   PIERRE N. LEVAL,
           DENNY CHIN,
           SUSAN L. CARNEY,
                     Circuit Judges.

- - - - - - - - - - - - - - - - - - - - - -x

KELLY MCCORMICK, Individually and
as Administratrix of the Estate of
KIT L. MCCORMICK,
                    Plaintiff-Appellee,

                       -v-                                13-704

CLEAVER BROOKS CO., INC.,                *
                    Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - -x

FOR PLAINTIFF-APPELLEE:           KYLE A. SHAMBERG (Samuel M.
                                  Meirowitz, on the brief), Weitz &
                                  Luxenberg, P.C., New York, New
                                  York.

FOR DEFENDANT-APPELLANT:          SUZANNE M. HALBARDIER (David
                                  Schultz, on the brief), Barry,
                                  McTiernan & Moore, LLC, New York,
                                  New York.


*
           The Clerk of the Court is directed to amend the official caption
     to conform to the above.
            Appeal from the United States District Court for the

Eastern District of New York (Weinstein, J.).
            UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment and order of the district court are

AFFIRMED.

            Defendant-appellant Cleaver Brooks Company, Inc.

("Cleaver Brooks") appeals from the judgment entered June 12,

2013, awarding plaintiff-appellee Kelly McCormick ("plaintiff")

$980,000 and the district court's order rendered from the bench

on February 22, 2013, denying its motion for judgment

notwithstanding the verdict, or, in the alternative, a new trial.

The district court calculated the $980,000 amount based on the

jury's determination that Cleaver Brooks was responsible for 60%

of the damages.    We assume the parties' familiarity with the

facts, procedural history, and issues on appeal.

            Cleaver Brooks advances four arguments on appeal:    (1)

judgment as a matter of law was warranted because plaintiff did

not prove causation; (2) alternatively, the district court should
have granted its motion for a new trial because the jury's

verdict was against the weight of the evidence; (3) the district

court's supplemental jury instruction on the "continuing duty to

warn" was improper; and (4) the district court's damages

calculation conflicted with Kansas law.    After discussing the

standards of review, we address each argument in turn.

            We review the district court's denial of a motion for

judgment as a matter of law de novo, see Highland Capital Mgmt.
LP v. Schneider, 607 F.3d 322, 326 (2d Cir. 2010), and the denial

                                  2
of a motion for a new trial for abuse of discretion, see United

States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009).    We review

jury instructions de novo, "reversing only where, viewing the

charge as a whole, there was a prejudicial error."    United States

v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) (internal

quotation marks omitted).   Finally, whether the district court

correctly applied the law in calculating damages is a question of

law that we review de novo.   Lauder v. First Unum Life Ins. Co.,

284 F.3d 375, 379 (2d Cir. 2002).    The parties agree that the

substantive law of Kansas applies.

           First, Cleaver Brooks contends that plaintiff failed to

prove that Cleaver Brooks products caused her husband Kit L.

McCormick ("McCormick") to contract his injuries.    We disagree.

McCormick's co-worker, Darryl Schlabach, testified that McCormick

worked on Cleaver Brooks boilers from 1974 through the early

1990s, and that McCormick was exposed to asbestos through that

work.   Schlabach further testified that McCormick removed

asbestos from buildings containing Cleaver Brooks boilers between

1987 and the 1990s.   Documentary evidence detailing the asbestos

in Cleaver Brooks boilers corroborated Schlabach's testimony.

The jury therefore had ample evidence from which to find exposure

and causation.   See Kreppein v. Celotex Corp., 969 F.2d 1424,
1426 (2d Cir. 1992) (jury's finding of causation supported by

testimony from co-workers and other record evidence).

           Cleaver Brooks's argument that plaintiff's expert,

James Strauchen, was improperly permitted to respond to

hypothetical questions about the cause of McCormick's asbestos


                                3
exposure is also meritless.   The hypothetical questions at issue

were based upon evidence adduced at trial.   It is well within the

district court's discretion to permit expert testimony to proceed

in this fashion.   See Werth v. Makita Elec. Works, Ltd., 950 F.2d

643, 648 (10th Cir. 1991) (hypothetical questions are proper

basis for expert testimony); Vt. Food Indus., Inc. v. Ralston

Purina Co., 514 F.2d 456, 463 (2d Cir. 1975) ("In asking a

hypothetical question, the examiner may seek the witness's

opinion on any combination of facts within the tendency of the

evidence." (internal quotation marks omitted)).    We therefore

reject Cleaver Brooks's argument that the testimony from Dr.

Strauchen and Schlabach, coupled with documentary evidence, did

not support a finding of causation.

           Third, Cleaver Brooks argues that the jury's verdict

was flawed because it apportioned 60% fault to Cleaver Brooks and

no fault to the Navy or to four other manufacturers, whose

boilers McCormick also worked on while at McConnell Air Force

Base.   But the jury allocated 30% liability to McConnell Air

Force Base and 10% to another manufacturer, Johns-Manville,

indicating that it did consider apportionment.    The jury's

findings are also supported by the fact that Cleaver Brooks did

not introduce any evidence of negligence on the part of the other

four manufacturers or detail McCormick's alleged exposure in his

Navy work.   Thus, it was permissible for the jury not to

attribute fault to the other manufacturers or to the Navy.

           Fourth, Cleaver Brooks appeals the district court's

supplemental jury charge on Kansas's continuing duty to warn on


                                 4
two grounds:    (1) that it introduced an issue not addressed

during trial, and (2) that the supplemental charge conflicted

with Kansas law on the issue of a continuing duty to warn.       We do

not reach the second question because Cleaver Brooks never argued

during trial that the language of the supplemental charge was

inconsistent with Kansas law.     Indeed, immediately after giving

the supplemental charge, the district court held a sidebar to

solicit objections.    Defense counsel stated, "Fine, your Honor,

thank you."    (App. 597).   Accordingly, the issue was not

preserved.

           We therefore review only the district court's decision

to issue a supplemental charge.     We reject Cleaver Brooks's

argument that a manufacturer's post-sale duty to warn was

"uncontemplated" at trial.      Plaintiff devoted much of her case to

the "ongoing communications over the course of many years between

Cleaver-Brooks and McConnell Air Force Base," particularly after

1974.   (Appellant's Br. 31).    Schlabach's testimony about

McCormick's exposure addressed the period from 1974-2005,

plaintiff's expert Barry Castleman testified about articles

published in the 1970s linking asbestos and cancer, and

documentary evidence about Cleaver Brooks communications with

McConnell Air Force Base extended well into the 1970s.

Accordingly, Cleaver Brooks's argument that it was prejudiced

because the supplemental instruction raised an issue that had not

been litigated fails.

           Finally, we agree with the district court's

interpretation of Kansas law in its damages calculation.       Cleaver


                                   5
Brooks argues that Kansas law required the district court to

"setoff" the award by the settlements plaintiff reached with

other parties before trial.   This is incorrect.   Under Kansas

law, a plaintiff's settlement with an entity that could be held

proportionately liable at trial does not affect the plaintiff's

right to recover from any other entity.    Geier v. Wikel, 603 P.2d

1028, 1030-31 (Kan. App. 1979) ("[S]ince a given defendant in a

[comparative negligence action] can be held liable in any event

only for that percentage of injury attributable to his fault, a

release of that defendant cannot inure to the benefit of

potential co-defendants."); accord Glenn v. Fleming, 240 Kan.
724, 732 (1987).   Moreover, the district court made the

appropriate deductions based upon the jury's apportionment of

fault.   Cleaver Brooks's objection to the district court's

damages computation is therefore meritless.

           We have considered appellant's remaining arguments and

conclude they are without merit.     For the foregoing reasons, we
AFFIRM the judgment of the district court.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




                                 6
