
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        November 18, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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,                                          _____________                            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.        __________            Daniel  A.  Speights with  whom Speights  and  Runyan, Michael  P.            ____________________            _____________________  ___________        Hall, and Nixon, Hall and Hess were on brief for appellee.        ____      ____________________                                 ____________________                                 ____________________                      ALDRICH,  Senior Circuit  Judge.   Defendant United                                _____________________            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                                         -2-            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.                                         -3-            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                                         -4-            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               _______________            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.                      ________                                         -5-
