Kinseth v. Weil-McLain

• Decision Date: 01 June 2018
• Docket Number: No. 15-0943,15-0943
• Parties: Shari KINSETH and Ricky Kinseth, Coexecutors of the Estate of Larry Kinseth, Deceased, and Shari Kinseth, Individually, Appellees, v. WEIL-MCLAIN, Appellant, and State of Iowa ex rel. Civil Reparations Trust Fund, Intervenor-Appellee.
• Court: Iowa Supreme Court

913 N.W.2d 55

Shari KINSETH and Ricky Kinseth, Coexecutors of the Estate of Larry Kinseth, Deceased, and Shari Kinseth, Individually, Appellees,

v. WEIL-MCLAIN, Appellant,andState of Iowa ex rel. Civil Reparations Trust Fund, Intervenor-Appellee.

No. 15-0943

Supreme Court of Iowa.

Filed June 1, 2018

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 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.

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 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 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. 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.

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 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...