13-704-cv
McCormick v. Cleaver Brooks Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 10th day of April, two thousand fourteen.
PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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KELLY MCCORMICK, Individually and
as Administratrix of the Estate of
KIT L. MCCORMICK,
Plaintiff-Appellee,
-v- 13-704
CLEAVER BROOKS CO., INC., *
Defendant-Appellant.
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FOR PLAINTIFF-APPELLEE: KYLE A. SHAMBERG (Samuel M.
Meirowitz, on the brief), Weitz &
Luxenberg, P.C., New York, New
York.
FOR DEFENDANT-APPELLANT: SUZANNE M. HALBARDIER (David
Schultz, on the brief), Barry,
McTiernan & Moore, LLC, New York,
New York.
*
The Clerk of the Court is directed to amend the official caption
to conform to the above.
Appeal from the United States District Court for the
Eastern District of New York (Weinstein, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are
AFFIRMED.
Defendant-appellant Cleaver Brooks Company, Inc.
("Cleaver Brooks") appeals from the judgment entered June 12,
2013, awarding plaintiff-appellee Kelly McCormick ("plaintiff")
$980,000 and the district court's order rendered from the bench
on February 22, 2013, denying its motion for judgment
notwithstanding the verdict, or, in the alternative, a new trial.
The district court calculated the $980,000 amount based on the
jury's determination that Cleaver Brooks was responsible for 60%
of the damages. We assume the parties' familiarity with the
facts, procedural history, and issues on appeal.
Cleaver Brooks advances four arguments on appeal: (1)
judgment as a matter of law was warranted because plaintiff did
not prove causation; (2) alternatively, the district court should
have granted its motion for a new trial because the jury's
verdict was against the weight of the evidence; (3) the district
court's supplemental jury instruction on the "continuing duty to
warn" was improper; and (4) the district court's damages
calculation conflicted with Kansas law. After discussing the
standards of review, we address each argument in turn.
We review the district court's denial of a motion for
judgment as a matter of law de novo, see Highland Capital Mgmt.
LP v. Schneider, 607 F.3d 322, 326 (2d Cir. 2010), and the denial
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of a motion for a new trial for abuse of discretion, see United
States v. Rigas, 583 F.3d 108, 125 (2d Cir. 2009). We review
jury instructions de novo, "reversing only where, viewing the
charge as a whole, there was a prejudicial error." United States
v. Quattrone, 441 F.3d 153, 177 (2d Cir. 2006) (internal
quotation marks omitted). Finally, whether the district court
correctly applied the law in calculating damages is a question of
law that we review de novo. Lauder v. First Unum Life Ins. Co.,
284 F.3d 375, 379 (2d Cir. 2002). The parties agree that the
substantive law of Kansas applies.
First, Cleaver Brooks contends that plaintiff failed to
prove that Cleaver Brooks products caused her husband Kit L.
McCormick ("McCormick") to contract his injuries. We disagree.
McCormick's co-worker, Darryl Schlabach, testified that McCormick
worked on Cleaver Brooks boilers from 1974 through the early
1990s, and that McCormick was exposed to asbestos through that
work. Schlabach further testified that McCormick removed
asbestos from buildings containing Cleaver Brooks boilers between
1987 and the 1990s. Documentary evidence detailing the asbestos
in Cleaver Brooks boilers corroborated Schlabach's testimony.
The jury therefore had ample evidence from which to find exposure
and causation. See Kreppein v. Celotex Corp., 969 F.2d 1424,
1426 (2d Cir. 1992) (jury's finding of causation supported by
testimony from co-workers and other record evidence).
Cleaver Brooks's argument that plaintiff's expert,
James Strauchen, was improperly permitted to respond to
hypothetical questions about the cause of McCormick's asbestos
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exposure is also meritless. The hypothetical questions at issue
were based upon evidence adduced at trial. It is well within the
district court's discretion to permit expert testimony to proceed
in this fashion. See Werth v. Makita Elec. Works, Ltd., 950 F.2d
643, 648 (10th Cir. 1991) (hypothetical questions are proper
basis for expert testimony); Vt. Food Indus., Inc. v. Ralston
Purina Co., 514 F.2d 456, 463 (2d Cir. 1975) ("In asking a
hypothetical question, the examiner may seek the witness's
opinion on any combination of facts within the tendency of the
evidence." (internal quotation marks omitted)). We therefore
reject Cleaver Brooks's argument that the testimony from Dr.
Strauchen and Schlabach, coupled with documentary evidence, did
not support a finding of causation.
Third, Cleaver Brooks argues that the jury's verdict
was flawed because it apportioned 60% fault to Cleaver Brooks and
no fault to the Navy or to four other manufacturers, whose
boilers McCormick also worked on while at McConnell Air Force
Base. But the jury allocated 30% liability to McConnell Air
Force Base and 10% to another manufacturer, Johns-Manville,
indicating that it did consider apportionment. The jury's
findings are also supported by the fact that Cleaver Brooks did
not introduce any evidence of negligence on the part of the other
four manufacturers or detail McCormick's alleged exposure in his
Navy work. Thus, it was permissible for the jury not to
attribute fault to the other manufacturers or to the Navy.
Fourth, Cleaver Brooks appeals the district court's
supplemental jury charge on Kansas's continuing duty to warn on
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two grounds: (1) that it introduced an issue not addressed
during trial, and (2) that the supplemental charge conflicted
with Kansas law on the issue of a continuing duty to warn. We do
not reach the second question because Cleaver Brooks never argued
during trial that the language of the supplemental charge was
inconsistent with Kansas law. Indeed, immediately after giving
the supplemental charge, the district court held a sidebar to
solicit objections. Defense counsel stated, "Fine, your Honor,
thank you." (App. 597). Accordingly, the issue was not
preserved.
We therefore review only the district court's decision
to issue a supplemental charge. We reject Cleaver Brooks's
argument that a manufacturer's post-sale duty to warn was
"uncontemplated" at trial. Plaintiff devoted much of her case to
the "ongoing communications over the course of many years between
Cleaver-Brooks and McConnell Air Force Base," particularly after
1974. (Appellant's Br. 31). Schlabach's testimony about
McCormick's exposure addressed the period from 1974-2005,
plaintiff's expert Barry Castleman testified about articles
published in the 1970s linking asbestos and cancer, and
documentary evidence about Cleaver Brooks communications with
McConnell Air Force Base extended well into the 1970s.
Accordingly, Cleaver Brooks's argument that it was prejudiced
because the supplemental instruction raised an issue that had not
been litigated fails.
Finally, we agree with the district court's
interpretation of Kansas law in its damages calculation. Cleaver
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Brooks argues that Kansas law required the district court to
"setoff" the award by the settlements plaintiff reached with
other parties before trial. This is incorrect. Under Kansas
law, a plaintiff's settlement with an entity that could be held
proportionately liable at trial does not affect the plaintiff's
right to recover from any other entity. Geier v. Wikel, 603 P.2d
1028, 1030-31 (Kan. App. 1979) ("[S]ince a given defendant in a
[comparative negligence action] can be held liable in any event
only for that percentage of injury attributable to his fault, a
release of that defendant cannot inure to the benefit of
potential co-defendants."); accord Glenn v. Fleming, 240 Kan.
724, 732 (1987). Moreover, the district court made the
appropriate deductions based upon the jury's apportionment of
fault. Cleaver Brooks's objection to the district court's
damages computation is therefore meritless.
We have considered appellant's remaining arguments and
conclude they are without merit. For the foregoing reasons, we
AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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