Iowa Supreme Court: Plaintiff’s attorney crossed a line, so the defendant gets a new trial

by Rox Laird | June 7, 2018

The Iowa Supreme Court sent an asbestos case back for a new trial because the plaintiff’s attorney prejudiced the defendant in closing arguments. And the Court clarified its previous ruling on punitive damages in such cases.

The decision in Kinseth v. Weil-McLain handed down June 1 was written by Chief Justice Mark Cady and joined by all members of the Court.

A Wright County jury awarded the estate of Larry Kinseth $4 million in compensatory damages and $2.5 million in punitive damages against boiler manufacturer Weil-McLain. Kinseth worked for more than three decades assembling and installing boilers and in the process inhaled asbestos dust and fibers from products used to seal boiler components. He died in 2009 of a type of lung cancer caused by inhaling asbestos.

The trial judge ordered plaintiff’s counsel at the outset not to make certain prejudicial statements to the jurors, including how much the defendant spent on lawyers and expert witnesses, Weil-McLain’s wealth or power relative to the plaintiff, and that the jury should “send defendant a message” in its verdict. The defendant, in seeking a new trial, said Kinseth’s attorney violated that order in her closing argument, but the judge ruled Weil-McLain waived the objection by making it too late in the process.

The Supreme Court disagreed, saying that failing to make a contemporaneous objection does not necessarily waive the objection, and in this case the mistrial motion was timely because it was made before the case was submitted to the jury.

Some of the objections to plaintiff counsel’s statements were warranted, some were not, the Court held. It was fair, for example, to attack the credibility of defense witnesses informed by studies sponsored by Weil-McLain, whereas counsel crossed the line by comparing the requested compensatory damages to the amount of money made by a defendant’s expert witness.

Plaintiff’s counsel clearly went too far, “perhaps most jarringly” the Court said, in stating that a punitive damages award between $4 million and $20 million is within the realm of what Weil-McLain spent on 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,” Cady wrote.

“When attorneys approach the jury box to present their closing arguments, they carry with them an immense responsibility,” Cady wrote, and “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.”

The Court held that plaintiff’s counsel prejudiced the defendant with the theme that Weil-McLain spent exorbitant sums defending against asbestos suits rather than on victims, which the jury could address in its verdict.

On the question of punitive damages, Weil-McLain asserted that it did not deviate from industry standards in its conduct regarding asbestos, citing the 1993 Iowa Supreme Court ruling in Beeman v. Manville Corp. Asbestos Fund. Based on that decision, Weil-McLain argued, Kinseth must show that the company deviated from its peers.

But the Court said that argument ignores a distinction made in Beeman between defendants with specific knowledge of asbestos harms and defendants with only general industry knowledge of those harms.

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,” Cady wrote. “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.”

Thus, the Court directed the trial court on remand to consider punitive damages in light of this clarification of Beeman. The Court also ruled on a number of other issues that may arise on remand, including allocation of fault and admissibility of evidence.


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