                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0943
                               Filed April 19, 2017


SHARI KINSETH and RICKY KINSETH,
Co-executors of the Estate of Larry
Kinseth, Deceased, and SHARI KINSETH,
Individually,
       Plaintiffs-Appellees/Cross-Appellants,

vs.

WEIL-McLAIN COMPANY,
     Defendant-Appellant/Cross-Appellee,

and

STATE OF IOWA, ex. rel. CIVIL
REPARATIONS TRUST FUND,
     Intervenor.
________________________________________________________________


      Appeal from the Iowa District Court for Wright County, Stephen P. Carroll,

Judge.



      Defendant appeals the jury’s award of damages and punitive damages to

plaintiffs on theories of negligence, product liability, and breach of implied

warranty of merchantability, and plaintiffs cross-appeal.     REVERSED AND

REMANDED FOR NEW TRIAL ON THE APPEAL, AFFIRMED ON THE

CROSS-APPEAL.



      Richard C. Godfrey, Scott W. Fowkes, Howard M. Kaplan, and Ryan J.

Moorman of Kirkland & Ellis L.L.P., Chicago, Illinois;, William R. Hughes Jr. and
                                         2


Robert M. Livingston of Stuart Tinley Law Firm, L.L.P., Council Bluffs; and

Edward J. McCambridge and Jason P. Eckerly of Segal McCambridge Singer &

Mahoney, Ltd., Chicago, Illinois; for defendant-appellant/cross-appellee.

       Misty Farris and Lisa W. Shirley of Simon Greenstone Panatier Barlett,

P.C., Dallas, Texas, and James H. Cook of Dutton, Braun, Staack & Hellman,

P.L.C., Waterloo, for plaintiffs-appellees/cross-appellants.

       Thomas J. Miller, Attorney General, and Richard E. Mull, Assistant

Attorney General, for intervenor.




       Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                        3


BOWER, Judge.

      Weil-McLain Company appeals the jury’s award of damages and punitive

damages to plaintiffs on theories of negligence, product liability, and breach of

implied warranty of merchantability arising from the death of Larry Kinseth as a

result of exposure to asbestos, and plaintiffs cross-appeal. We find the district

court abused its discretion in denying Weil-McLain’s motions for mistrial due to

statements of plaintiffs’ counsel during closing arguments, in violation of the

court’s motion in limine order.    We affirm the district court’s rulings on the

admissibility of evidence. We conclude the district court erred by not including

McDonnell & Miller valves on the special verdict form, but otherwise affirm the

court’s determination of which entities should be included in the special verdict

form for the allocation of fault. Due to our decision reversing and remanding for a

new trial, we make no ruling on the award of punitive damages. We reverse and

remand for new trial on the appeal and affirm on the cross-appeal.

      I.     Background Facts & Proceedings

      Kinseth worked in the heating and plumbing industry beginning in 1957.

As part of his work, he tore out old boilers and installed new boilers, both in

residential and commercial applications. At the time Kinseth was working in the

heating and plumbing industry, boiler manufacturers sealed their products with

asbestos as it was a fire retardant, and Kinseth was exposed to asbestos dust.

Some of the boilers Kinseth installed were manufactured by Weil-McLain.

      Kinseth developed mesothelioma, a type of cancer caused by exposure to

asbestos. On January 7, 2008, Kinseth and his wife, Shari Kinseth, filed suit

against forty-two companies he claimed were involved in his exposure to
                                             4


asbestos, including Weil-McLain, on theories of negligence, product liability, and

breach of an implied warranty of merchantability. Due to Kinseth’s poor health,

his testimony was preserved in an extensive videotaped deposition. Kinseth died

in 2009, and his wife and son continued the action as co-executors of his estate.1

       The district court determined Kinseth’s claims arising from tearing out old

boilers were barred by the Iowa statute of repose, Iowa Code section 614.1(11)

(2007). The court determined, “once the boiler was installed, complete with the

asbestos rope sealing, it became an improvement to real estate within the

meaning of the Iowa statute of repose.”2 On the other hand, the court concluded

Kinseth’s exposure to asbestos before and during the installation process was

not barred by the statute of repose. Based on this reasoning, the court granted

partial summary judgment to Weil-McLain. Several defendants were removed

from the case through summary judgment, and others settled with Kinseth;

eventually, only Weil-McLain remained as a defendant.

       Prior to trial, Weil-McLain filed a motion in limine. The district court ruled

Kinseth could not refer to the amount of money Weil-McLain spent on its defense

or make any argument about the need for the jury to send the defendant a

message through its verdict. Weil-McLain received a citation in 1974 from the

Occupational Safety and Health Administration (OSHA) for asbestos exposure at

its manufacturing plant in Indiana.           After the citation, Weil-McLain began

attaching a warning to its asbestos-containing products.                The district court

determined the OSHA citation was not relevant on the issue of causation but was

1
  Kinseth’s wife also continued her claim for loss of consortium. We will refer to plaintiffs
collectively as “Kinseth.”
2
  The parties have not appealed the district court’s ruling on this issue.
                                           5


relevant to punitive damages on the issue of the company’s failure to warn prior

to the citation and plaintiffs’ expert could discuss it as “reliance” material.

       The case proceeded to a jury trial. Plaintiffs claimed Kinseth had been

exposed to asbestos rope and asbestos cement used in installing Weil-McLain

boilers and dust arising from these products caused him to contract

mesothelioma. Plaintiffs claimed Weil-McLain should have provided a warning

that exposure to asbestos was dangerous. Weil-McLain claimed the evidence

showed Kinseth only installed Weil-McLain boilers using asbestos rope, which

contained chrysotile asbestos, and this type of asbestos did not cause

mesothelioma. The company also claimed Kinseth was exposed to asbestos

dust from the products of several other manufacturers and the other

manufacturers did not provide warnings during the time period in question.

       After closing arguments, Weil-McLain filed a motion for a mistrial, claiming

counsel for Kinseth violated the court’s rulings on the motion in limine in

statements to the jury. The court denied the motion. After arguments on punitive

damages, Weil-McLain filed a new motion for mistrial, and this motion was also

denied by the court.

       The jury returned a verdict awarding Kinseth $4 million in compensatory

damages.      Weil-McLain was found to be twenty-five percent at fault.3

Additionally, Kinseth’s wife was awarded $1 million for loss of consortium, and

Weil-McLain was ordered to pay her $250,000. The jury also found Weil-McLain

should pay $2.5 million in punitive damages.          Kinseth’s estate was awarded


3
  The judgment order states Weil-McLain was responsible to pay Kinseth’s estate
$875,000.
                                         6


twenty-five percent of this amount, $625,000, and the remainder, $1,875,000, is

to be paid to the Iowa Civil Reparations Trust Fund.

       Weil-McLain filed motions for a new trial and for judgment notwithstanding

the verdict. Kinseth also filed a contingent motion for new trial. The district court

issued a combined ruling on these post-trial motions, finding:          (1) the jury

instructions were not improper; (2) there was not substantial evidence in the

record to show Kinseth was exposed to asbestos from products manufactured by

Peerless Pump Co., McDonnell & Miller, Bell & Gossett, Hoffman, and DAP, Inc.,

and the court did not submit these companies for consideration of fault; (3) the

jury properly considered the fault of two bankrupt companies, Hercules, Inc. and

Johns-Manville Corp.; (4) there was not sufficient evidence to submit a jury

instruction on the comparative fault of Kinseth; (5) the award for medical

expenses should be reduced from $500,000 to $131,233, based on the parties’

stipulation;4 (6) Weil-McLain was not entitled to pro tanto credit for plaintiffs’

settlements with other companies; (7) due to the statute of repose, although

Kinseth could not be compensated for exposure during tear outs of boilers, this

did not preclude the jury from hearing evidence of such exposure; (8) the award

of punitive damages was not excessive; (9) there was evidence to support

punitive damages because Weil-McLain delayed issuing warnings and it did not

test its products for asbestos exposure; and (10) remarks by plaintiffs’ counsel

during closing arguments did not affect the outcome of the case.




4
  Based on the court’s ruling reducing the amount of the award for medical expenses,
the award for compensatory damages was reduced from $4 million to $3,631,233.
                                           7


       Weil-McLain has appealed, claiming the district court should have granted

its motions for mistrial due to the statements of plaintiffs’ counsel during closing

arguments, the court abused its discretion in admitting certain evidence, the jury

should have considered the fault of three additional entities, and punitive

damages were improper. Kinseth has cross-appealed, claiming the court should

not have permitted the jury to apportion fault to two bankrupt entities.

       II.     Motions for Mistrial

       Weil-McLain claims the district court should have granted its motions for

mistrial because counsel for plaintiffs repeatedly violated the court’s rulings

during closing arguments.

       “The primary purpose of a motion in limine is to avoid disclosing to the jury

prejudicial matters which may compel declaring a mistrial.” Heldenbrand v. Exec.

Council of Iowa, 218 N.W.2d 628, 636 (Iowa 1974) (citation omitted). Where

there has been a violation of a motion in limine, a motion for mistrial may be

granted. See Twyford v. Weber, 220 N.W.2d 919, 923 (Iowa 1974). A party

seeking a mistrial must show the opposing counsel’s conduct was prejudicial.

Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992). “‘[U]nless it

appears probable a different result would have been reached but for claimed

misconduct of counsel for the prevailing party,’ we are not warranted in granting

a new trial.” Id. (citation omitted).

       A district court has broad discretion in ruling on a motion for mistrial. Fry

v. Blauvelt, 818 N.W.2d 123, 132 (Iowa 2012). “Such discretion is a recognition

of the trial court’s better position to appraise the situation in the context of the full

trial.” Id. (citation omitted). We review a district court’s ruling on a motion for
                                           8

mistrial for an abuse of discretion. Crookham v. Riley, 584 N.W.2d 258, 268

(Iowa 1998).

       A.      Statements During Closing Arguments

       1.      Prior to trial, Weil-McLain filed a motion in limine seeking to prohibit

plaintiffs from mentioning “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.” At the hearing on the motion in limine, as to the

amount of money or time spent by Weil-McLain on defense, counsel for plaintiffs

stated:

       I think what they are trying to prohibit here is talking about how
       much money they spent on their lawyers or preparing for trial and
       not trying to talk about how much their experts are paid or how
       much time their corporate representative spent in preparation. If
       that’s all they mean, it’s agreed.

The district court granted the motion in limine.

       During closing arguments, counsel for plaintiffs stated: (1) “they had a

very neat expensive graphic”; (2) “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?”; (3) “You don’t have to

believe experts that are paid a lot of money, you can see it”; (4) “because even

from their bought and paid-for science . . . they would have been violating

OSHA”; (5) “you heard that there are 50 scientists that have published over 1,000

articles, they disagreed with what their paid expert says”; (6) “they paid a

company tens of thousands of dollars to create a graphic to show you that”; (7)

“35 percent of [the fourteen million she was asking in compensatory damages] is

4.9 million. That’s half of what Mr. Rasmuson [defense expert] has made in two-
                                              9


and-a-half years as a 43 year old man. Half”; (8) “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?”; and (9) on punitive damages, “What I suggest 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 paid in this litigation.”5 Additionally,

she reviewed her arguments by stating:

          You heard Mr. Rasmuson made $9 to $10 million in less than two-
          and-a-half years. You heard 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 not to people suffering
          from mesothelioma, but to create literature to say brakes are safe.[6]

          We conclude counsel for plaintiffs repeatedly violated the district court’s

ruling prohibiting the parties from mentioning the amount of money Weil-McLain

was spending in defense in this litigation.

          2.     In a related subject, the motion in limine also sought to prohibit

“[a]ny reference to the wealth, power, corporate size or assets of Weil-McLain

which would suggest to the jury that the jury ought to compare the relative wealth

of the Plaintiffs and Defendant in answering the jury questions.” On statements

about the wealth and assets of Weil-McLain, plaintiffs’ counsel stated:

          I absolutely agree with the concept. I’m concerned with the lack of
          specificity in what that means. . . . Where I think they have a
          problem is if you’re trying to suggest because they have wealth,
          because they have power and this was a little family, think about
          the imbalance. I agree that’s not appropriate. But there are
          scenarios where the assets or abilities of the corporation are just


5
    An objection to this statement was sustained.
6
    A relevancy objection to this last statement was sustained.
                                          10


       relevant to other issues, and I just wanted to be clear I’m going to
       go into those. Otherwise we have an agreement.

The district court granted Weil-McLain’s motion in limine on this ground.

       During closing arguments, counsel for plaintiffs stated, “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.” She also stated, “as you consider the damages in this case, you are

speaking from people in 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.” Counsel for plaintiffs compared the wealth of the

company with the plaintiffs’ situation, stating:

       And I want to acknowledge $100,000 would make this family rich. I
       mean’s 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.

       We determine plaintiffs’ counsel’s statements violated the district court’s

ruling on the motion in limine. Additionally, the statements as to the amount of

money spent on the defense of the case also violate this ruling as statements

about the large amounts spent by Weil-McLain on litigation highlight the

corporate wealth of the company.

       3.     The motion in limine requested a prohibition on statements making

“[a]ny references, statements or arguments that the jury should attempt to send

Defendant a message.”        At the hearing on the motion, counsel for plaintiffs

stated, “I never use the language sending defendant a message, so I largely

agree to this,” and “But I just want to be very clear that I will not—and I’ll state it
                                            11


on the record—state, ‘You need to send the defendants a message.’”                  The

district court granted the motion in limine prohibiting the parties from using

language about sending defendant a message.

         During closing arguments, plaintiffs’ counsel stated, “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.” The record shows counsel for plaintiffs again clearly violated the

district court’s ruling on the motion in limine.

         4.      The motion in limine sought to prohibit evidence of other lawsuits,

and counsel for plaintiffs agreed there should be no mention of any other

lawsuits. In closing arguments for punitive damages she stated, “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 company actually takes the stand and said that and having 30

years of lawsuits they claim they have been heard.”7

         We determine the motion in limine on this ground was violated as well.

         5.      In addition to the violations of the district court’s ruling on the

motion in limine, Weil-McLain claimed plaintiffs’ counsel improperly requested the

jury to disregard the statute of repose. During closing arguments, counsel for

plaintiffs stated:

                 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 is 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

7
    An objection by Weil-McLain to this statement was sustained.
                                          12


       like it applies to all the other companies here, it really changed the
       nature of this case.

Shortly thereafter she stated,

       [A]nd so the effect of this rule, a rule I candidly don’t understand, is
       not only do you not get to consider tearout of Weil-McLain boilers
       that happened many, many, many times, but you don’t get to
       consider the fault of [another manufacturer] and where the actual
       exposures occurred. That is the effect of this bar after 15 years of
       exposure.

       We determine plaintiffs’ counsel engaged in improper closing statements

by questioning the application of the statute of repose, which barred some of

plaintiffs’ claims. The court determines the law to be applied in a case and

informs the jurors through instructions. See State v. Willis, 218 N.W.2d 921, 924

(Iowa 1974). “It is the duty of the jury to follow the instructions of the court.” Hall

v. City of West Des Moines, 62 N.W.2d 734, 738 (Iowa 1954). Jury nullification,

or permitting the jury to determine the law and the facts, is not permitted under

Iowa law. State v. Hamann, 285 N.W.2d 180, 184 (Iowa 1979).

       6.     Weil-McLain claims counsel for plaintiffs improperly referenced an

OSHA citation the company received in 1974. Prior to trial, the district court

determined the OSHA citation was not relevant on the issue of causation, but

was relevant to the punitive damages claim and plaintiffs’ expert could discuss it

as “reliance” material.    The court, therefore, denied Weil-McLain’s motion in

limine to bar evidence of the OSHA citation but ruled evidence of the citation

would be tightly circumscribed. During the course of the trial, however, the court

determined Weil-McLain had opened the door to fuller use of the OSHA citation.

       On appeal, Weil-McLain’s complains about references to the OSHA

citation during closing arguments based on the court’s pre-trial ruling limiting the
                                        13


use of the evidence. Based on the court’s later ruling Weil-McLain had opened

the door to use of the evidence, we conclude counsel for plaintiffs did not violate

the court’s rulings by discussing the OSHA citation during closing arguments.

See State v. Parker, 747 N.W.2d 196, 206 (Iowa 2008) (noting a party may open

the door to otherwise inadmissible evidence by introducing evidence on the

subject).

       B.    Timeliness of Motions for Mistrial

       After closing rebuttal arguments by plaintiffs’ counsel on April 24, 2014,

the court noted it was 4:30 p.m. and stated proceedings would resume in the

morning at 9:00 a.m. When court resumed at 9:02 a.m. on April 25, 2014, Weil-

McLain made an oral motion for a mistrial based on improper arguments by

plaintiffs’ counsel during closing arguments. Weil-McLain raised several claims,

including that plaintiffs’ counsel (1) improperly argued the award of pain and

suffering should reflect Weil-McLain did not evaluate things enough, (2) stated

the jurors should send Weil-McLain a message, (3) argued corporations should

not spend millions of dollars to defend litigation, (4) improperly talked about the

money made by Weil-McLain’s expert witnesses, and (5) raised arguments

seeking damages based on sympathy, rather than the facts of the case. The

district court ruled, “aside from the brake line issue, I was not given the

opportunity to pass on these things during closing argument by way of a timely

objection, so I’m overruling the Defendant’s motion for mistrial on each and every

respect.”

       “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.”
                                          14

Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970). “[I]t is not timely to await

the result of the trial and then first complain by allegation in motion for new trial in

the event of an adverse verdict.” Id. A motion for mistrial based on remarks of

counsel during closing argument is timely if it is made before the case is

submitted to the jury. Id. at 402. An objection to opposing counsel’s statements

may be made for the first time in a motion for mistrial. Id.

       We conclude Weil-McLain’s motion for mistrial was timely. The motion

was made as soon as court resumed after the end of closing arguments and

before the case was submitted to the jury. We determine the district court should

have considered the motion on the merits, rather than finding it was untimely

because Weil-McLain did not raise objections during the arguments. See 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.”).

       After closing arguments on punitive damages, Weil-McLain against asked

for a mistrial, stating counsel for plaintiffs argued Weil-McLain had been engaged

in litigation for thirty years and improperly raised the issue of how much Weil-

McLain was spending defending this litigation and other cases. The district court

denied the renewed motion for mistrial. This motion was also timely.

       C.     Discussion

       The district court addressed Weil-McLain’s arguments concerning the

closing arguments in ruling on the post-trial motions. The court concluded, “On

this voluminous record, I cannot conclude that counsel’s remarks affected the

outcome of the case.” The court determined, “The instant case, however, is not
                                         15


one where I can conclude a manifest injustice or, if you will, a substantial

injustice, has occurred.”

       “Counsel is entitled to some latitude during closing argument in analyzing

the evidence admitted in the trial.” State v. Phillips, 226 N.W.2d 16, 19 (Iowa

1975). An attorney “may draw conclusions and argue all permissible inferences

which may reasonably flow from the record which do not misstate the facts.” Id.

Alternatively, an attorney has no right to create evidence nor to interject personal

beliefs. Id. “It is for the jury to determine the logic and weight of the conclusions

drawn.” Id.

       “When determining liability it is improper for the jury to consider the

relative wealth of the parties.” Rosenberger Enters., Inc. v. Ins. Serv. Corp., 541

N.W.2d 904, 907 (Iowa Ct. App. 1995).             The Iowa Supreme Court has

determined the discussion of the parties’ earning power or “any comparison of

respective earning powers or financial or economic conditions is entirely

improper” to the process of determining damages in a tort action.          Burke v.

Reiter, 42 N.W.2d 907, 912 (Iowa 1950). A discussion during closing argument

of the relative wealth of the parties may improperly influence jurors and in turn

result in the necessity of a new trial. Id.; Rosenberger Enters., 541 N.W.2d at

907.

       While any one improper statement might not constitute prejudicial error,

the cumulative effect of several improper statements may give rise to a claim of

prejudice. Andrews, 178 N.W.2d at 402. Counsel’s closing arguments should be

viewed in their entirety to determine whether they caused prejudice.

Rosenberger Enters., 541 N.W.2d at 909 (“When viewed in its entirety, we
                                         16


conclude the cumulative effect of Rosenberger's counsel's closing argument was

an impassioned and inflammatory speech that likely caused severe prejudice to

the defendant.”).

       In addition, “[w]hether the incident was isolated or one of many is also

relevant; prejudice results more readily from persistent efforts to place prejudicial

evidence before the jury.” State v. Greene, 592 N.W.2d 24, 32 (Iowa 1999). In

this regard, we consider whether statements during closing arguments were a

“slip of the tongue,” or whether an attorney should have been aware the

statements were improper.       See Andrews, 178 N.W.2d at 402 (“Attorneys

engaged in the trial of cases to a jury know or ought to know the purposes of

arguments to juries.”).

       In reviewing the closing arguments by plaintiffs’ counsel in this case, we

determine the district court abused its discretion in denying Weil-McLain’s motion

for mistrial. Plaintiff’s counsel persistently made statements referring to matters

that were barred by the court’s ruling on the motion in limine. In particular,

counsel referred several times to the amount of money Weil-McLain was

spending in defending the case and this in turn highlighted the corporate wealth

of Weil-McLain and compared it to the circumstances of plaintiffs. Counsel for

plaintiffs also improperly told the jury to send Weil-McLain a message and told

them Weil-McLain had been engaged in litigation for thirty years, also contrary to

the pre-trial rulings. This continuous disregard for the court’s rulings could not

have been “a slip of the tongue” and was not an isolated incident. In considering

the closing arguments in their entirety, we conclude it appears quite probable a
                                        17


different result would have been reached but for the misconduct of plaintiffs’

counsel, and therefore, Weil-McLain was prejudiced.

       We do not reverse this case without pause and great consideration. We

are keenly aware of the pressures on the trial court to bring cases, such as this,

to a conclusion after many days of trial and dozens of witnesses coupled with the

demands that continue to be placed on the dockets of trial judges. However, we

cannot allow the continued violation of a judge’s ruling to be so trampled upon

that the power and leadership of the trial is taken away. Rulings on motions in

limine, like all rulings, are binding upon the parties and should be readily

enforced by the courts.

       Based on the multitude of improper statements during closing arguments,

we determine the district court’s decision must be reversed and the case

remanded for a new trial.

       III.   Admissibility of Evidence

       “Because we reverse and remand this case for retrial, we will review other

evidentiary issues raised at trial that may arise on retrial.” State v. Nance, 533

N.W.2d 557, 561 (Iowa 1995).

       Weil-McLain claims the district court improperly permitted evidence of the

OSHA citation and Kinseth’s exposure to asbestos from removal of the boilers.

The district court denied the company’s arguments on these issues in its ruling

on the motion in limine. We review a district court’s ruling on the admissibility of

evidence for the abuse of discretion. Giza v. BNSF Ry. Co., 843 N.W.2d 713,

718 (Iowa 2014). “The grounds for a ruling are unreasonable or untenable when

they are based on an erroneous application of law.” Id. (citatation omitted).
                                         18


       A.     Weil-McLain claims the district court should have granted its motion

in limine to entirely exclude evidence of the OSHA citation. It states the 1974

citation was for asbestos exposure at its plant in Indiana and did not have any

relevance to Kinseth’s exposure to asbestos from installing Weil-McLain boilers.

The district court ruled the OSHA citation was not relevant to causation and was

inadmissible on this issue. The court found the OSHA citation was admissible,

however, on the issue of punitive damages and plaintiffs’ expert could discuss it

as “reliance” material. The court stated, “I think it’s got limited relevance, so

that’s why I say I wanted to have it tightly—tightly constrained.”

       The OSHA citation was relevant to the issue of punitive damages because

it showed Weil-McLain did not start putting warnings on its products until after it

received the citation. Weil-McLain states Kinseth stopped installing boilers in

1972 and moved to mainly supervisory work, so its actions in 1974 are not

relevant on the issue of punitive damages. The evidence shows Kinseth was

present occasionally when boilers were installed after 1972, as part of his

supervisory work, and so Weil-McLain’s actions in 1974 were relevant.

       Also, under Iowa Rules of Evidence 5.703 and 5.705, an expert may

testify concerning otherwise inadmissible evidence the expert relied upon if (1)

the information is of a type reasonably relied on by other experts in the field, and

(2) the expert’s reliance may be amply tested on cross-examination. Brunner v.

Brown, 480 N.W.2d 33, 35 (Iowa 1992).          Plaintiffs’ expert, Dr. Carl Brodkin,

testified one of his sources of information about the concentration of asbestos

fibers in the air while cutting asbestos rope was the OSHA testing at the Weil-
                                           19


McLain plant.      We conclude the district court did not abuse its discretion in

finding the OSHA citation had limited relevance.

          During the course of the trial, the district court found Weil-McLain “kicked

open the door” on the admissibility of the OSHA citation through the testimony of

Paul Schuelke, a mechanical engineer and the Director of Technical Services at

Weil-McLain, permitting plaintiffs to use the OSHA citation for other purposes.

Whether this same scenario occurs on remand will depend on the testimony

presented in the case, and therefore, further speculation on the admissibility of

the OSHA citation is unnecessary at this time.

          B.    Weil-McLain claims the district court should have granted its

objection to evidence Kinseth was exposed to asbestos while tearing out Weil-

McLain boilers because the evidence was irrelevant to the issue of liability due to

the operation of the statute of repose. The company also claimed the evidence

was more prejudicial than probative.

          Iowa’s statute of repose, section 614.1(11), “closes the door after fifteen

years on certain claims arising from improvements to real property.” Krull v.

Thermogas Co., 522 N.W.2d 607, 611 (Iowa 1994). The district court determined

Kinseth’s claims arising from tearing out old boilers were barred by the Iowa

statute of repose because once a boiler was installed, “it became an

improvement to real estate within the meaning of the Iowa statute of repose,” and

there was no evidence Kinseth tore out old boilers within fifteen years of filing the

action.

          The district court denied the objection, finding the evidence relating to the

exposure to asbestos while tearing out old boilers was relevant to Kinseth’s
                                       20


overall exposure to asbestos.    In order to limit the prejudicial nature of the

evidence, the court gave the jury an instruction specifying how the evidence

could be considered. The instruction provided:

              As I mentioned to you at the outset of the trial, it may be
      necessary for me, from time to time, to give you a limiting
      instruction. This is one of those times. As you may recall, a
      particular item of evidence may be received for one purpose, and
      not for any other purpose.
              Iowa has a statute called the statute of repose. Under that
      statute, any claims against a party based on an alleged defective
      condition of an improvement to real property are extinguished after
      15 years of the making of that improvement. Based on this statute,
      therefore, claims for dismantling (tear outs) of equipment and piping
      which have become improvements to real estate and refurbishment
      of steam valves and pumps, which at one time were part of an
      improvement to real estate, are not compensable. Therefore, you
      may not consider evidence of exposures to this category of
      evidence, tear outs of the improvements and refurbishment of
      valves and pumps, as evidence of fault or liability of any party. You
      may, however, consider the exposures to asbestos from tear outs
      of improvements to real estate and from refurbishment of valves
      and pumps as you consider the total exposure, if any, Mr. Kinseth
      had to asbestos.
              The exposures noted above, however, must be distinguished
      from any exposures to asbestos-containing material Mr. Kinseth
      might have sustained before or during the process of installation of
      real improvements to property. Exposures to asbestos experienced
      by Mr. Kinseth before and during the installation process are not
      barred by the statute of repose and you may consider such
      exposures in determining the fault, if any, and the extent of
      causation, if any, attributable to a party or released party.

      We find the district court did not abuse its discretion in determining the

evidence was relevant. In arguing plaintiffs should not be permitted to show

Kinseth was exposed to asbestos when tearing out old Weil-McLain boilers, Weil-

McLain stated it intended to present evidence Kinseth had been exposed to

asbestos when tearing out pipes and valves, which it claimed presented a

greater risk of exposure to asbestos. In addition, based on the instruction to the
                                           21


jury concerning the purposes for which the evidence could be considered, we

determine the evidence was not more prejudicial than probative. “Unless the

contrary is shown, a jury is presumed to follow the court’s instructions.”

Schwennen v. Abell, 471 N.W.2d 880, 887 (Iowa 1991).

         IV.    Allocation of Fault

         Another issue which may arise on remand is a determination of the

companies to be included on the special verdict form for the allocation of fault.

Under section 668.3, although Weil-McLain was the only defendant actively

defending the case, the jury was permitted to assign fault to companies who had

previously settled with Kinseth if there was substantial evidence supporting an

inference the company’s product contributed to Kinseth’s injuries.              The jury

assigned fault as follows:

                Weil-McLain                  25%
                Kenwanee                     10%
                Peerless (boilers)            7%
                American Standard/Trane       7%
                Burnham                       7%
                Crane                         7%
                Cleaver Brooks                7%
                Hercules                     10%
                JM (Johns-Manville)          15%
                GE                            2%
                Yarway                        0%
                Georgia-Pacific/Bestwall      3%
                Owens-Illinois                0%

         A.     Weil-McLain claims the district court should have submitted the

    issue of fault as to Peerless pumps, Bell & Gossett pumps, and McDonnell &

    Miller valves.8 Weil-McLain states there was substantial evidence in the record


8
  Plaintiffs claim Weil-McLain is barred by the doctrine of judicial estoppel from raising
this issue on appeal because it stated during the punitive damages phase of the trial it
                                         22


 to show Kinseth was exposed to products containing asbestos manufactured by

 these three companies. Our review on this issue is for the correction of errors

 at law. See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)

 (“[W]e review challenges to jury instructions for correction of errors at law.”

 (citation omitted)).

       For purposes of allocation of fault under chapter 668, a “party” includes a

 defendant who has been released pursuant to section 668.7.              Iowa Code

 § 668.2.   No fault may be allocated against a party, however, “unless the

 plaintiff has a viable claim against that party.”       Spaur v. Owens-Corning

 Fiberglass Corp., 510 N.W.2d 854, 863 (Iowa 1994). A plaintiff must be able to

 prove he “inhaled asbestos fibers as a result of being exposed to an asbestos-

 containing product manufactured and/or sold by [a defendant]; the mere

 possibility that plaintiff may have been exposed to [a defendant’s] product is not

 enough.” Id. at 862; see also Huber v. Watson, 568 N.W.2d 787, 790-91 (Iowa

 1997) (noting “[p]roof of proximate cause in asbestos litigation is often limited to

 circumstantial evidence”).

       The district court determined Kinseth did not have a viable claim in

 instances where the claim was barred by the statute of repose. The district

 court determined, “Weil-McLain failed to meet its burden of presenting

 substantial evidence that Kinseth had exposure to these products during



would pay plaintiffs’ compensatory damages. We determine the doctrine of judicial
estoppel is not applicable because this case does not involve successive proceedings.
See Wilson v. Liberty Mut. Grp., 666 N.W.2d 163, 166 (Iowa 2003) (“The doctrine
‘prohibits a party who has successfully and unequivocally asserted a position in one
proceeding from asserting an inconsistent position in a subsequent proceeding.’”
(citation omitted)).
                                       23


installation and that any exposure was a substantial factor in causing his

mesothelioma.”    The statute of repose applies to “an improvement to real

property,” and “[t]he key [is] the actual attachment of the product.” Tallman v.

W.R. Grace & Co., 558 N.W.2d 208, 209 (Iowa 1997) (citing Iowa Code §

614.1(11)).

     In his deposition, Kinseth testified he installed McDonnell & Miller valves,

which he stated contained asbestos packing around the stem and asbestos

gaskets in the body. Some of the valves did not come with pre-cut gaskets, and

Kinseth would cut an asbestos gasket to fit the valve. When cutting a new

gasket, asbestos dust was created. Additionally, Kinseth testified he installed

Bell & Gossett pumps, but there was no evidence of asbestos exposure from

the pumps.     There was no evidence of installation of Peerless pumps.

Furthermore, there was evidence Kinseth refurbished McDonnell & Miller

valves, Bell & Gossett pumps, and Peerless pumps.

     Kinseth’s testimony showed he installed valves manufactured by

McDonnell & Miller and pumps manufactured by Bell & Gossett. For the Bell &

Gossett pumps, however, there was no evidence of asbestos exposure during

installation. We determine the district court should have included McDonnell &

Miller in the list of companies on the special verdict form. We affirm the court’s

decision not to include Bell & Gossett and Peerless pumps because the only

evidence to support asbestos exposure from these products is due to

refurbishing, and there can be no recovery under the statute of repose, as the

products were permanent additions to real property.        See Buttz v. Owens-

Corning Fiberglas Corp., 557 N.W.2d 90, 91 (Iowa 1996).
                                           24


         Therefore, we reverse the district court’s decision not to include

    McDonnell & Miller valves on the special verdict form, but affirm as to Bell &

    Gossett and Peerless pumps.

         B.     In its cross-appeal, Kinseth claims the district court erred by

    allowing the jury to apportion fault to bankrupt entities Hercules and Johns-

    Manville. Under the jury’s verdict, plaintiffs state they should be able to receive

    $400,000 from Hercules and $600,000 from Johns-Manville,9 but through the

    bankruptcy trust system they will only be able to collect a small percentage of

    these amounts. Kinseth believes if Hercules and Johns-Manville had not been

    included on the special verdict form the jury may have allocated more fault to

    Weil-McLain.

         A similar issue was addressed in Spaur, 510 N.W.2d at 862-63. At that

    time Johns-Manville was in bankruptcy proceedings and the court noted the

    “settlement plan was not final.      No funds have been paid out or award

    calculated.” Spaur, 510 N.W.2d at 863. The court stated plaintiffs needed to

    avail themselves of the procedure to settle with the bankruptcy trust to receive

    compensation and this had not occurred. Id. Also, under a bankruptcy court

    order, plaintiffs had “no possibility of obtaining an enforceable judgment against

    Mansville Trust.” Id. Under these circumstances, the court determined the

    Mansville Trust was properly omitted from the special verdict form. Id.

         The circumstances in the present case are very different. Kinseth has

    settled with Hercules and Johns-Manville and received funds from them.


9
 Because the award for medical expenses has been reduced, the amounts would now
be an award of $363,123 from Hercules and $544,685 from Johns-Manville.
                                           25


 According to Kinseth’s appellate brief, plaintiffs received $4690 from Hercules

 and $26,250 from Johns-Manville. Thus, plaintiffs have availed themselves of

 the procedure to settle with the bankruptcy trusts for Hercules and Johns-

 Manville.    Also, this is not a situation where plaintiffs could not obtain an

 enforceable judgment against the bankrupt entities, as they have already

 received compensation from these companies. We determine the district court

 did not err by including Hercules and Johns-Manville on the special verdict form

 for the allocation of fault.

       V.     Punitive Damages

       Weil-McLain claims the district court improperly submitted the issue of

 punitive damages to the jury.10          It states plaintiffs did not present clear,

 convincing, and satisfactory evidence its conduct deviated from that of its

 industry peers. Weil-McLain claims its conduct was identical to the conduct of

 its peers. Our review on this issue is for the correction of errors at law. See

 Wolf v. Wolf, 690 N.W.2d 887, 893 (Iowa 2005).

       Punitive damages may be awarded if a plaintiff shows “by a

 preponderance of clear, convincing, and satisfactory evidence, the conduct of

 the defendant from which the claim arose constituted willful and wanton

 disregard for the rights or safety of another.”          Iowa Code § 668A.1(1)(a).

 Punitive damages are not compensatory in nature; their purpose is punishment



10
   Contrary to Kinseth’s assertion, we determine this issue has been preserved for our
review. It was raised in Weil-McLain’s motion for directed verdict and the motion for
judgment notwithstanding the verdict, and the district court ruled on the issue. See Bank
of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa 2014) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the district
court before we will decide them on appeal.” (citation omitted)).
                                        26

 and deterrence. Spaur, 510 N.W.2d at 865. “To receive punitive damages,

 plaintiff must offer evidence of defendant’s persistent course of conduct to show

 no care by defendant with disregard for the consequences.”           Beeman v.

 Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 255 (Iowa

 1993). Punitive damages are discretionary and are never awarded as a matter

 of right. Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 395

 (Iowa 2010).

      Within the context of section 668A.1, the phrase “willful and wanton”

means, “[t]he actor has intentionally done an act of unreasonable character in

disregard of a known or obvious risk that was so great as to make it highly

probable that harm would follow, and which thus is usually accompanied by a

conscious indifference to the consequences.” Id. at 396 (citation omitted).

      “[M]ere knowledge sufficient to initiate a duty to warn does not meet the

higher standard for punitive damages.” Lovick v. Wil-Rich, 588 N.W.2d 688, 699

(Iowa 1999). In Beeman, a case involving asbestos pipe insulation, our supreme

court found defendant Keene Corp. and other companies manufactured and

distributed asbestos-containing products for many years. 496 N.W.2d at 255.

Rather than assessing punitive damages “based on the general knowledge of the

asbestos industry,” the court concluded, “there must be clear, convincing, and

satisfactory evidence that sets Keene’s conduct apart from that of other asbestos

manufacturers.” Id. at 256.

      Because we have determined the case must be reversed and remanded

 for a new trial, it is unknown whether punitive damages will be awarded in the

 second trial.   For this reason, we make no ruling as to whether punitive
                                        27


 damages were appropriate under the law based on the evidence presented at

 the first trial.

        VI.     Conclusion

        Weil-McLain Company appeals the jury’s award of damages and punitive

damages to plaintiffs on theories of negligence, product liability, and breach of

implied warranty of merchantability arising from the death of Larry Kinseth due to

exposure to asbestos, and plaintiffs cross-appeal.     We find the district court

abused its discretion in denying Weil-McLain’s motions for mistrial due to

statements of plaintiffs’ counsel during closing arguments. We affirm the district

court’s rulings on the admissibility of evidence. We conclude the district court

erred by not including McDonnell & Miller valves on the special verdict form, but

otherwise affirm the court’s determination of which entities should be included in

the special verdict form for the allocation of fault. Due to our decision reversing

and remanded for a new trial, we make no ruling on the award of punitive

damages. We reverse and remand for new trial on the appeal and affirm on the

cross-appeal.

        REVERSED AND REMANDED FOR NEW TRIAL ON THE APPEAL,

AFFIRMED ON THE CROSS-APPEAL.
