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[NOT FOR PUBLICATION]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
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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.
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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
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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.
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NH VT Health Service v. US Mineral
Combined Opinion