Shari Kinseth and Ricky Kinseth, Coexecutors of the Estate of Larry Kinseth, and Shari Kinseth Individually v. Weil-McLain and State of Iowa ex rel. Civil Reparations Trust Fund

IN THE SUPREME COURT OF IOWA
No. 15–0943

Filed June 1, 2018

SHARI KINSETH and RICKY KINSETH, Coexecutors of the Estate of
Larry Kinseth, Deceased, and SHARI KINSETH, Individually,

Appellees,

vs.

WEIL-McLAIN,

Appellant,

and

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

On review from the Iowa Court of Appeals.

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

Carroll, Judge.

Estate that prevailed at trial seeks further review of a court of

appeals decision ordering a new trial based on attorney misconduct

during closing arguments. DECISION OF COURT OF APPEALS

AFFIRMED IN PART AND REVERSED IN PART; DISTRICT COURT

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED FOR NEW TRIAL WITH INSTRUCTIONS.

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
 2

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.
 3

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
 4

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
 5

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.
 6

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.
 7

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

1For clarity, we will continue to refer to the plaintiffs collectively as “Kinseth.”
2The legislature has since narrowed the recovery period to ten years. See Iowa
Code § 614.1(11)(a)(2) (2018).
3Kinseth does not appeal this ruling.
 8

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 matter,

including attorney time and expenses and expert witness time and

expenses; (3) reference any other lawsuit in which this defendant may

have been involved or is involved; (4) make any references, statements, or

arguments that the jury should attempt to send defendant a message;

and (5) make any reference to the wealth, power, corporate size or assets

of Weil-McLain that would suggest to the jury that the jury ought to

compare the relative wealth of the plaintiffs and defendant in answering

the jury questions.

Additionally, Weil-McLain sought to include a number of

responsible third parties on the special allocation-of-fault verdict form.

Because Kinseth was exposed to asbestos while working with many

different products, which were manufactured by many different

companies, the district court ultimately permitted twelve other sources of

exposure to be submitted to the jury. However, the district court

concluded there was insufficient evidence to include McDonnell & Miller

valves, Peerless pumps, Bell & Gossett pumps, Hoffman steam traps,

and DAP caulk on the allocation-of-fault form.

The case proceeded to trial. After nearly four weeks of testimony,

plaintiff’s counsel presented her closing argument. Defense counsel

raised five objections during the closing, alleging plaintiff’s counsel

repeatedly violated the in-limine order. After rebuttal by plaintiff’s

counsel in closing argument, wherein defense counsel again objected to

in-limine violations, the court declined to read the jury instructions and

instead adjourned for the day. The next morning, defense counsel

immediately moved for a mistrial, arguing repeated in-limine violations
 9

by plaintiff’s counsel were prejudicial. The district court denied the

motion.

The jury returned a verdict awarding Kinseth $4 million in

compensatory damages. The jury concluded Weil-McLain was twenty-

five percent at fault for Kinseth’s harm and further concluded that

punitive damages were warranted. Both parties then offered closing

arguments on the amount of punitive damages. Following the second

closing arguments, defense counsel again moved for a mistrial based on

alleged in-limine violations by plaintiff’s counsel during her second

closing. The court denied the motion, and the jury ordered Weil-McLain

to pay $2.5 million in punitive damages. Because the jury concluded

Weil-McLain’s conduct was not directed specifically at Kinseth, his estate

was awarded twenty-five percent of the punitive damages award, and the

Iowa Civil Reparations Trust Fund was awarded the remainder. 4

Weil-McLain subsequently filed a motion for a new trial and a

motion for judgment notwithstanding the verdict. Weil-McLain argued,

inter alia, that (1) the district court erroneously instructed the jury by

failing to include several manufacturers on the allocation-of-fault special

verdict form, (2) plaintiff’s counsel’s numerous in-limine violations during
closing arguments warrant a new trial, (3) evidence relating to OSHA

violations and conduct barred by the statute of repose were improperly

admitted, and (4) there was insufficient evidence to award punitive

damages under the standard announced in Beeman v. Manville Corp.

Asbestos Disease Compensation Fund, 496 N.W.2d 247, 256 (Iowa 1993).

Kinseth also filed a contingent motion for new trial, objecting to the

inclusion of two bankrupt entities on the allocation-of-fault verdict form.

4Following this award, the Iowa Civil Reparations Trust Fund intervened as a
party.
 10

The district court denied Weil-McLain’s posttrial motions. It

concluded, in relevant part, that (1) the identified manufacturers were

properly excluded, as there was insufficient evidence to support a

comparative fault instruction; (2) Weil-McLain waived any objection to

counsel’s statements during closing arguments by failing to make

contemporaneous objections, and in any event, counsel’s statements did

not warrant a new trial; (3) OSHA evidence was properly admitted for

causation purposes and the jury was properly instructed on how to

allocate damages under the statute of repose; (4) the punitive damages

award was supported by substantial evidence and consistent with the

standard announced in Beeman, 496 N.W.2d at 255; and (5) bankrupt

entities were properly included on the allocation-of-fault verdict form.

Weil-McLain appealed the district court’s posttrial order and we

transferred the case to the court of appeals. Kinseth cross-appealed,

alleging Weil-McLain was estopped from challenging the compensatory

damages judgment, defense counsel failed to make a timely motion for

mistrial following closing arguments, and the district court erred in

allowing the jury to apportion fault to bankrupt entities.

The court of appeals reversed, finding that defense counsel’s

mistrial motion was timely, plaintiff counsel’s closing arguments were

sufficiently inflammatory to warrant a new trial, and the district court

erroneously excluded McDonnell & Miller valves from the special verdict

form. Because the court was remanding the case for a new trial, it also

reached the evidentiary issues that were likely to arise on remand. The

court concluded that OSHA evidence was properly considered, the jury

was properly instructed on the proper use of evidence barred by the

statute of repose, and the district court did not err in including two
 11

bankrupt entities on the allocation-of-fault form. The court, however, did

not reach the issue of whether punitive damages were appropriate.

We granted Kinseth’s application for further review.

II. Standard of Review.

We review determinations of timeliness for correction of errors at

law. Iowa R. App. P. 6.907. We review a district court’s denial of a

mistrial for an abuse of discretion. State v. Plain, 898 N.W.2d 801, 811

(Iowa 2017). Judicial estoppel is an “equitable doctrine invoked by a

court at its discretion,” and we therefore review questions of judicial

estoppel for an abuse of discretion. Tyson Foods, Inc. v. Hedlund, 740

N.W.2d 192, 195 (Iowa 2007) (quoting New Hampshire v. Maine, 532 U.S.

742, 750, 121 S. Ct. 1808, 1815 (2001)). Challenges to jury instructions

are reviewed for correction of errors at law. Alcala v. Marriott Int’l, Inc.,

880 N.W.2d 699, 707 (Iowa 2016). We review evidentiary rulings for

abuse of discretion. Stender v. Blessum, 897 N.W.2d 491, 501 (Iowa

2017).

III. Analysis.

A number of issues have been properly raised for our review:

(1) whether defense counsel’s objections and motion for mistrial were

timely, (2) whether plaintiff’s counsel’s statements during closing

arguments warrant a new trial, (3) whether the doctrine of judicial

estoppel bars Weil-McLain from appealing the compensatory damages

award, (4) whether McDonnell & Miller valves were erroneously excluded

from the allocation-of-fault special verdict form, (5) whether two

bankrupt entities were erroneously included on the allocation-of-fault

form, (6) whether evidence relating to Weil-McLain’s OSHA violation was

erroneously admitted, (7) whether the jury was erroneously permitted to

hear evidence of conduct rendered noncompensable by the statute of
 12

repose, and (8) whether punitive damages were appropriately awarded

under the standard announced in Beeman, 496 N.W.2d at 255–56. We

address each of these issues as necessary.

A. Closing Arguments.

1. Timeliness of closing argument objections and mistrial motion.

We first consider whether defense counsel failed to make timely

objections to plaintiff’s counsel’s closing argument, as well as whether

Weil-McLain’s mistrial motion was timely.

On the morning of April 24, 2014, plaintiff’s counsel presented her

closing argument to the jury. Defense counsel objected to five

statements, three of which were sustained. Following a noon recess and

defense counsel’s argument, plaintiff’s counsel presented her rebuttal

closing. Defense counsel objected to two statements, both of which were

sustained. Immediately following plaintiff’s rebuttal, the judge stated,

“[I]t’s 4:30, it’s been a long day” and informed the jury he would not read

the jury instructions at this time. Instead, the court would adjourn and

resume proceedings the following morning at 9 a.m.

The next morning, at 9:02 a.m., defense counsel moved for a

mistrial based on statements made by plaintiff’s counsel during her

closing arguments. Defense counsel maintained that plaintiff’s counsel

made roughly a dozen improper statements that were sufficiently

prejudicial to warrant a mistrial. Defense counsel contended, among

other things, that plaintiff’s counsel improperly called into question the

statute of repose, argued for an amount of compensatory damages that

would “send a message” to Weil-McLain, and repeatedly referenced the

amount of money Weil-McLain had spent on defending this and other

cases. The district court overruled the motion for mistrial, concluding

that “aside from the brake line issue, I was not given the opportunity to
 13

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.”

In its posttrial motion, Weil-McLain renewed its argument for a

new trial based on plaintiff counsel’s closing argument. The district

court again reiterated that defense counsel should have made

contemporaneous objections during closing argument by plaintiff’s

counsel, rather than wait until the arguments were complete.

Nevertheless, the court proceeded to the merits and, based on a review of

the “voluminous record,” found that counsel’s remarks did not prejudice

Weil-McLain.

“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.” Andrews v. Struble, 178 N.W.2d 391, 401 (Iowa 1970).

Timely objections give “the trial court an opportunity to admonish

counsel or instruct the jury as it may see fit.” Id. Indeed, we require

prompt objection to discourage the wait-and-see approach, in which

aggrieved parties refrain from objecting to remarks in a jury argument

until after the verdict has been rendered. Id.

However, a party does not necessarily waive an objection to a

remark made in a closing argument if the party fails to make a

contemporaneous objection. Id. In Andrews, we highlighted the sound

reasoning of the Nebraska Supreme Court, which explained,

It could well be that any one improper statement would not
constitute prejudicial error, while the cumulative effect of
several would give rise to a claim of prejudice. Continued
objections by counsel to prejudicial statements of opposing
counsel in his argument to the jury could place the former in
a less favorable position with the jury, and thus impose an
unfortunate consequence upon his client which was actually
caused by the wrongful conduct of opposing counsel. This
 14
he is not required to do. Attorneys engaged in the trial of
cases to a jury know or ought to know the purposes of
arguments to juries. When they depart from the legitimate
purpose of properly presenting the evidence and the
conclusions to be drawn therefrom, they must assume the
responsibility for such improper conduct. They are in no
position to demand that opposing counsel shall jeopardize
his position with the jury by constant objections to their
improper conduct.

Id. at 402 (quoting Sandomierski v. Fixemer, 81 N.W.2d 142, 145 (Neb.

1957)); see also 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 . . . .”). Thus, our rule instructs that “[w]here the

closing arguments are reported,” a party’s “objection to the remarks of

counsel during final jury argument urged at the close of the argument in

motion for mistrial made before submission to the jury is timely.”

Andrews, 178 N.W.2d at 401–02. The district court therefore erred in

requiring defense counsel to make numerous, contemporaneous

objections during closing arguments.

Kinseth seizes upon the phrase “at the close of the argument” and

asks that we require parties to move immediately for mistrial once the

final jury argument has finished. Kinseth argues that defense counsel

should have moved for a mistrial before or after the noon recess and,

instead, waited almost a full day to make the motion, which diminished

the curative abilities of the district court.

We require counsel to move for a mistrial before the case is

submitted to the jury to ensure that the court has ample opportunity to

“admonish counsel or instruct the jury” before deliberations begin. Id. at

401. Here, the court had the same opportunity at 9:02 a.m. as it did at

4:30 p.m. the day before to weigh the prejudicial nature of the

statements and determine how best to proceed. Because defense

counsel’s motion for mistrial was made before the case was submitted to
 15

the jury, and the court had time to weigh the motion and instruct the

jury if necessary, the motion for mistrial was timely.

2. Attorney misconduct. We next consider whether the district

court erred in denying Weil-McLain’s motion for a new trial based on

alleged violations by plaintiff’s counsel of the in-limine order.

To warrant a new trial based on attorney misconduct, the

complained of misconduct “must have been prejudicial to the interest of

the complaining party.” Mays v. C. Mac Chambers Co., 490 N.W.2d 800,

803 (Iowa 1992). “[U]nless a different result would have been probable in

the absence of misconduct, a new trial is not warranted.” Loehr v.

Mettille, 806 N.W.2d 270, 277 (Iowa 2011). Accordingly, we begin by

assessing whether plaintiff’s counsel indeed violated the court’s in-limine

order during her closing argument, and if so, we then consider whether

the violations were so prejudicial that the outcome of the trial would

likely have been different but for the misconduct.

a. Purported misconduct.

i. Referencing the amount of money spent defending the suit. The

in-limine order barred plaintiff’s counsel from referencing “the amount of

money or time spent by the defendant in the defense of this matter,

including attorney time and expenses and witness time and expenses.”

Weil-McLain identified eleven statements that allegedly violate this

limitation:

(1) “[T]hey had a very neat expensive graphic . . . .”
(2) “Weil-McLain’s own studies, if you buy their bought-for
studies . . . .”
(3) “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?”
(4) “You don’t have to believe experts that are paid a lot of
money, you can see [that the fibers get into the lungs].”
 16
(5) “[B]ecause even from [their] bought and paid-for science
. . . they would have been violating OSHA.”
(6) “[Y]ou heard that there are 50 scientists that have
published over 1,000 articles, they disagreed with what
[Weil-McLain’s] paid expert says . . . .”
(7) “[T]hey paid a company tens of thousands of dollars to
create graphics to show you that.”
(8) “35 percent of [the fourteen million requested in
compensatory damages] is 4.9 million. That’s half of what
[defense expert] Mr. Rasmuson has made in two-and-a-half
years as a 43-year-old man. Half.”
(9) “It’s a simple test. 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, why wasn’t that done and
those straightforward results given to us.”
(10) “You heard Mr. Rasmuson made $9 to 10 million in less
than two-and-a-half years. You heard that 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 to not people suffering from
mesothelioma, but to create literature to say brakes are
safe.”
(11) “What I suggest [for punitive damages] 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 been paid in this litigation.”

The identified statements fall within three categories: (1) questioning the

reliability of self-funded studies, (2) questioning the credibility of an

expert who is handsomely paid, and (3) directly commenting on the

amount of money that the opposing party spent defending the action.

With respect to questioning the reliability of self-funded studies, in

toxic tort cases, “expert medical and toxicological testimony is

unquestionably required to assist the jury” in determining general and

specific causation. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 688

(Iowa 2010). “Where each side has adequate financial resources, the jury

will be treated to a procession of persons with impeccable credentials
 17

and persuasive testimony.” Carl B. Rubin & Laura Rigenbach, The Use

of Court Experts in Asbestos Litigation, 137 F.R.D. 35, 35 (1991). The

jury inevitably faces a crossroads when “these experts, all armed with

such qualifications, ... reach diametrically opposite viewpoints

depending upon which side they testify for.” Id. The jury, as the arbiter

of credibility, is left to decide which expert was more persuasive.

In order to prevail in the “battle of the experts,” casting doubt upon

the credibility of the opposing expert is critical. “[G]enerally ‘the factual

basis of an expert opinion goes to the credibility of the testimony . . . .”

Ranes, 778 N.W.2d at 693 (quoting Hose v. Chi. Nw. Transp. Co., 70 F.3d

968, 974 (8th Cir. 1995)). Accordingly, when an expert witness has

formed an opinion in favor of the defendant, based on a study

commissioned by the defendant, plaintiff’s counsel must be permitted to

contest the objectivity of the expert’s testimony.

Here, Weil-McLain’s expert, Mr. Rasmuson, testified on cross-

examination that the exposure simulation studies that he used to

evaluate the exposure from asbestos rope and cement were sponsored by

Weil-McLain. He also testified that when giving his opinion about the

hazards of asbestos rope, he only considered studies paid for by Weil-

McLain. Further, the other defense expert, Dr. Smith, testified on cross-

examination that when evaluating Kinseth’s levels of asbestos exposure

from Weil-McLain boilers, he only spoke to the jury about studies that

were funded by Weil-McLain.

Plaintiff’s counsel did not violate the in-limine order when she

reminded the jury that Weil-McLain’s witnesses formed their opinions by

solely looking at studies that were sponsored by Weil-McLain. In this

instance, “bought and paid for” does not refer to the amount of money

Weil-McLain spent defending this suit. Rather, the phrase reminds the
 18

jury that it should be considering the reliability of the defendant’s expert

witnesses. Because this case involved a battle of the experts, and

plaintiff is entitled to attack the objectivity of the factual bases

underlying an expert’s testimony, these comments did not violate the

in-limine order.

Second, with respect to questioning the credibility of an expert who

is handsomely paid, counsel is permitted to highlight the fact that an

expert is paid during closing arguments.

Evidence that a witness is receiving payment for his
testimony, while it may be entirely proper, such as an expert
hired to testify regarding an issue in the lawsuit, is relevant
and admissible to show potential bias towards the party
paying his fee. In closing argument the point can be made
that the more favorable the paid expert’s testimony is, the
more likely he will be hired in the future.

8 Tom Riley & Peter C. Riley, Iowa Practice SeriesTM: Civil Litigation

Handbook § 38.13, at 438 (2017). Plaintiff’s counsel therefore did not

violate any rule by referring to defense experts as “paid experts.” The

issue becomes more complicated, however, when counsel references an

expert’s fee in a manner that simultaneously alerts the jury to the large

sums of money typically involved in asbestos litigation.

On cross-examination, Mr. Rasmuson testified that between 2012

and 2014, his company billed approximately nine or ten million dollars

for drafting reports for asbestos-related litigation. He also testified that

approximately eighty-five percent of his company’s litigation work is

asbestos-related. During her closing argument, plaintiff’s counsel stated

that the experts on “both sides” made “obscene money,” and informed

the jury they did not need “experts that are paid a lot of money” to

conclude that asbestos fibers enter the lungs. On balance, these

statements do not cross the line between impeachment and misconduct.
 19

The jury already knew that the expert had received nearly ten million

dollars in three years to assist companies in asbestos litigation. Again,

counsel is permitted to question the credibility of an expert who is

repeatedly paid to testify in defense of asbestos manufacturers.

However, plaintiff’s counsel then framed Kinseth’s requested

compensatory damages amount as “half of what Mr. Rasmuson has

made in two-and-a-half years as a 43-year-old man. Half.” This

statement goes well beyond impeachment and instead communicates to

the jury that the requested award is reasonable because there are large

sums of money involved in asbestos litigation. Thus, this statement was

improper and violated the in-limine order.

Finally, plaintiff’s counsel plainly violated the in limine order when

she expressly referenced the amount of money Weil-McLain spent

defending this suit. Plaintiff’s counsel repeatedly emphasized the

“expensive graphics” that Weil-McLain used, commented on the

“amazing” amount of “money in this litigation,” informed the jury that

Weil-McLain “spent half a million dollars” on a “simple test,” told the jury

that Weil-McLain “spen[t] tens of thousands of dollars” on a “study that

could have been done as easily as the two minutes we saw on the floor,”

and perhaps most jarringly, stated that a punitive damages award

between $4 million and $20 million “is certainly within the realms of

what [Weil-McLain] ha[s] paid in 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. Counsel therefore violated the

in-limine order prohibiting any reference to the amount the defendant

spent defending this action.

ii. Referencing corporate wealth, power, or assets. The in-limine

order proscribed “any reference to the wealth, power, corporate size or
 20

assets of Weil-McLain which would suggest to the jury that the jury

ought to compare the relative wealth of the plaintiffs and defendants in

answering the jury questions.” Defendant takes issue with the following

three statements by plaintiff’s counsel:

(1) “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.”
(2) “[A]s you consider the damages in this case, you are
speaking from people from 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.”
(3) “And I want to acknowledge $100,000 would make this
family rich. I mean 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. That is not
why we’re here. That is not what that is about.”

While “earning power is important to be shown and proper to be

argued in connection with the claim of damages,” it is nevertheless

improper for a jury to consider relative wealth “in the process of

determining which, if either, party is entitled to recover.” Burke v. Reiter,

241 Iowa 807, 815, 42 N.W.2d 907, 912 (1950). “By the same token any

comparison of respective earning powers or financial or economic

conditions is entirely improper.” Id. at 815–16, 42 N.W.2d at 912.

Because “[t]he temptation to resort to such comparison is strong,” the

district court must use its “discretion to determine whether proper

bounds have been overstepped and, if so, whether serious prejudice has

resulted.” Id. at 816, 42 N.W.2d at 912.

Through her statements, counsel sought to impress upon the jury

that it should assign a damages amount that would be significant to a

corporation, as opposed to an average person. Indeed, since Weil-McLain
 21

is a corporation with the sole purpose of generating a profit, the jury

should award a sum that hits Weil-McLain where it hurts. While counsel

did not insinuate that Weil-McLain should be held liable because it is a

corporation that can afford it, her statements nevertheless invoked a

direct comparison between the relative wealth of the defendants and

ordinary people like the Kinseths. Thus, counsel violated the in-limine

order.

iii. Sending a message. The in-limine order further prevented

counsel from making “[a]ny references, statements, or arguments that

the jury should attempt to send defendant a message.” During the first

closing argument, when discussing the appropriate compensatory

damages for pain and suffering, plaintiff’s counsel made the following

statement:

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. That’s why we’re here.

It is facially improper to suggest that a jury use a compensatory

damages award, which is designed to recompense the plaintiff for actual

harms suffered, to punish the defendant. Thus, counsel violated the

in-limine order by urging the jury to use its compensatory damages

award to “send a message” to Weil-McLain.

iv. Referencing prior lawsuits. The in-limine order barred

plaintiff’s counsel from referencing “any other lawsuit in which the

defendant may have been involved or is involved.” Weil-McLain alleges

plaintiff’s counsel violated this directive when she made the following

statement during her punitive damages closing argument.

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
 22
company actually takes the stand and said that having thirty
years of lawsuits they claim they have been heard.

Kinseth defends this statement on the ground that Weil-McLain’s
corporate representative, Paul Schuelke, testified during trial that the

company first became involved in asbestos litigation in the 1980s.

Kinseth therefore maintains it was permissible to remind the jury of

Schuelke’s testimony. On our review of the argument, we find counsel

went far beyond reminding the jury of Schuelke’s testimony. Instead,

counsel sought to use the fact that Weil-McLain has been previously

sued for asbestos exposure to support her request for a large punitive

damages award in this case. Thus, counsel’s reference to prior lawsuits

violated the in-limine order.

v. Calling the statute of repose into question. Finally, Weil-McLain

objects to characterization of the statute of repose made by plaintiff’s

counsel during closing arguments:

(1) “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’s 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 like it applies to
all the other companies here, it really changed the nature of
this case. You heard a lot about exposures, repairing valves
and pumps, none of that can be considered.”
(2) “[A]nd so the effect of this rule, a rule I candidly don’t
understand, is not only do you not get to consider tear out of
Weil-McLain boilers that happened many, many, many
times, but you don’t get to consider the fault of Taco where
the actual exposures occurred. That is the effect of this bar
after 15 years of exposure. And that’s why I believe that for
this company, the answer to proximate cause is no.”

Weil-McLain argues these statements amount to instructing the jury to

nullify the statute of repose and consider Kinseth’s exposure during the

removal process when calculating damages.
 23

Instructing a jury on nullification is prohibited in Iowa. State v.

Willis, 218 N.W.2d 921, 925 (Iowa 1974). “It is one thing to recognize

jurors have the power not to do their duty and quite another to tell them

they have a right not to do their duty.” Id. at 924. Considering the

identified statements in the context of counsel’s argument, we do not

believe counsel instructed the jury to nullify the statute of repose. In her

opening statements, counsel walked the jury through the statute and

expressly instructed them that any exposure during the removal process

could not be considered when allocating fault. While examining

witnesses, counsel clarified whether her questions related to the

installation or removal process. Throughout the trial, counsel carefully

abided by the statute of repose and took care to make the jury aware of

what it may and may not consider when apportioning fault and damages.

Thus, while it was improper to cast doubt on the public policy motivating

the statute of repose, counsel’s statements did not amount to

nullification.

b. Prejudice. A new trial should not be ordered unless the

attorney’s misconduct, viewed cumulatively, is prejudicial to the

complaining party and a different result would have likely occurred but

for the misconduct. Baysinger v. Haney, 261 Iowa 577, 582, 155 N.W.2d

496, 499 (1968). Importantly, one or more violations of an in-limine

order would not be per se grounds for a mistrial. See Mays, 490 N.W.2d

802–03 (finding the district court did not abuse its discretion in denying

a motion for new trial despite multiple in-limine violations).

When attorneys approach the jury box to present their closing

arguments, they carry with them an immense responsibility. Evidence

has been received, witnesses have been heard, and counsel may now

speak directly to the jury and tell the story of the case, from beginning to
 24

end, largely free from interruption. Juries, of course, are instructed to

decide the case on the evidence presented and not upon statements

made during closing arguments. We presume juries follow this

instruction and do not consider closing statements to be evidence.

Yet, juries are often tasked with deciding questions of fact and law

that involve innately vague and difficult considerations. For example,

juries often consider and valuate how much pain and suffering a plaintiff

has experienced. When making challenging decisions about potentially

nebulous concepts, juries will inevitably take cues from attorneys during

their respective closing arguments. In such instances, 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.

Relatedly, attorneys may occasionally make one or more isolated

missteps during closing arguments and thereby violate a pretrial order.

It is a wholly distinct act of misconduct, however, to develop and present

a theme for closing arguments that is premised upon improper jury

considerations.

Based on our review of the entire content of the closing arguments,

we believe the statements made by plaintiff’s counsel fall into the latter

category. The inescapable theme of counsel’s closing argument is that

Weil-McLain has chosen to spend exorbitant sums of money defending

asbestos actions instead of compensating innocent victims, and this case

is an opportunity to tell them what you, the jury, think of that choice.

Given counsel’s repeated, deliberate references to Weil-McLain’s

expenditures defending this suit and others, and instructions to use this
 25

case to send a message about such expenditures, we must conclude that

counsel’s rhetoric prejudiced the defendant, and a new trial is warranted.

Because we find the case must be remanded for a new trial, we will

consider any remaining issues that may arise again on retrial.

B. Allocation of Fault.

1. Judicial estoppel. Following the jury’s verdict awarding

$4 million in compensatory damages and concluding punitive damages

were justified, plaintiff and defense counsels presented closing

arguments on the appropriate amount of punitive damages. During

defense counsel’s argument, he stated to the jury,

This isn’t a big company, counsel’s asked for a lot of money
from a company that’s relatively small to punish them. . . .
[B]ut I think you’ve already sent your message here and . . .
the amount that you put on that line really doesn’t relate to
any damages. If you put zero, it’s still the same message, if
you put one dollar, it’s still the same message. If you put
$100 it’s still the same message. The people at Weil-McLain
understand what you said here. They’ve been — they’ve
been — they’re going to compensate these folks based on
what you said and the conduct is already over . . . . You’ve
sent your message as far as the money.

(Emphasis added.)

After the jury returned the punitive damages verdict, Weil-McLain

moved for a new trial on several grounds, including the erroneous

exclusion of certain responsible third parties on the allocation-of-fault

special verdict form. In response, Kinseth argued that Weil-McLain is

estopped from challenging the compensatory damages verdict, as its

statement that it is “going to compensate these folks based on what you

said” committed the company to paying the full compensatory damages

judgment. Although the district court did not expressly rule on the

estoppel issue, it impliedly rejected the argument by reaching the

question of whether certain companies were erroneously excluded from
 26

the special verdict form. On appeal, the court of appeals held that

judicial estoppel was inapplicable in this case, as the doctrine only

applies to statements made in successive proceedings.

It is a “well-settled principle” that a “party who has, with

knowledge of the facts, assumed a particular position in judicial

proceedings is estopped to assume a position inconsistent therewith to

the prejudice of the adverse party.” Snouffer & Ford v. City of Tipton, 150

Iowa 73, 84–85, 129 N.W. 345, 350 (1911). The doctrine aims “to protect

the integrity of the judicial process by preventing intentional

inconsistency.” Vennerberg Farms, Inc. v. IGF Ins., 405 N.W.2d 810, 814

(Iowa 1987). Further, it “addresses the incongruity of allowing a party to

assert a position in one tribunal and the opposite in another, thereby

creating the perception that at least one court has been misled.” Id.

We have previously clarified that “[j]udicial estoppel also applies

when inconsistent positions otherwise meeting the requirements of this

doctrine are taken in the same proceeding.” Duder v. Shanks, 689

N.W.2d 214, 221 (Iowa 2004); see also State v. Duncan, 710 N.W.2d 34,

43–45 (Iowa 2006) (finding a criminal defendant was judicially estopped

from arguing on appeal that admitting evidence of prior domestic abuse

was prejudicial when the defendant affirmatively relied on such evidence

at trial to support his theory of self-defense). Yet, a central tenet of the

doctrine is “the successful assertion of the inconsistent position in a

prior action.” Vennerberg, 405 N.W.2d at 814. Judicial acceptance

exists when “the position asserted by a party was material to the holding

in the prior litigation.” Tyson, 740 N.W.2d at 198. Without judicial

acceptance of the inconsistent position, judicial estoppel is inapplicable,

as there is “no risk of inconsistent, misleading results.” Vennerberg, 405

N.W.2d at 814.
 27

Here, there was no judicial acceptance of defense counsel’s

statement to the jury that Weil-McLain is “going to compensate these

folks based on what [the jury] said.” It was not material to any ruling,

and at the time it was made, the jury had already returned its

compensatory damages amount and decided punitive damages were

justified. Thus, applying estoppel in this circumstance “does not

advance the policy goal of avoiding inconsistent, misleading results.”

Tyson, 740 N.W.2d at 198.

2. Comparative fault instruction for responsible third parties.

Because Weil-McLain is not estopped from challenging the compensatory

damages judgment, we proceed to consider whether McDonnell & Miller

valves were erroneously excluded from the allocation-of-fault special

verdict form.

Iowa’s comparative fault statute permits juries to attribute fault to

parties other than the defendant, including “third-party defendants and

persons who have been released pursuant to section 668.7.” Iowa Code

§ 668.3(2) (2007). However, courts may only submit an issue to the jury

if the issue is supported by substantial evidence. Mitchell v.

Cedar Rapids Cmty. Sch. Dist., 832 N.W.2d 689, 703 (Iowa 2013).

Substantial evidence exists when “a reasonable person would find [the

evidence] adequate to reach a conclusion.” Greenwood v. Mitchell, 621

N.W.2d 200, 204 (Iowa 2001) (quoting Bredberg v. Pepsico, Inc., 551

N.W.2d 321, 326 (Iowa 1996)). It requires more than mere speculation.

Id. When weighing the sufficiency of evidence, we must “we give the

evidence ‘the most favorable construction possible in favor of the party

urging submission.’ ” Id. at 205 (quoting Hoekstra v. Farm Bureau Mut.

Ins., 382 N.W.2d 100, 108 (Iowa 1986)).
 28

In order for a jury to allocate fault against a party, the plaintiff

must have a “viable claim against that party.” Spaur v. Owens-Corning

Fiberglass Corp., 510 N.W.2d 854, 863 (Iowa 1994). In the context of

asbestos litigation, viable claims are often constrained by two important

considerations: proximate causation and statutes of repose.

A party’s conduct is the proximate cause of a plaintiff’s injury

“when it is a substantial factor in producing damage and when the

damage would not have happened except for the conduct.” Id. at 858

(quoting 1 Iowa Civil Jury Instructions 700.3 (1991)). In asbestos cases,

proximate causation requires showing more than the sheer possibility of

exposure, but rather proof that the plaintiff “inhaled asbestos fibers as a

result of being exposed to an asbestos-containing product manufactured

and/or sold by [a defendant].” Id. at 862. However, we have clarified

that “a reasonable inference of exposure to a defendant’s asbestos-

containing product, coupled with expert testimony regarding asbestos

fiber drift and the cumulative effects of exposure to asbestos, is enough

to prove proximate cause.” Beeman, 496 N.W.2d at 254. “Proof of

proximate cause in asbestos litigation is often limited to circumstantial

evidence.” Huber v. Watson, 568 N.W.2d 787, 790 (Iowa 1997).

Iowa’s statute of repose extinguishes liability for asbestos exposure

stemming from “unsafe or defective condition[s] of an improvement to

real property” after fifteen years. Iowa Code § 614.1(11). Here, the

district court concluded Kinseth does not have a viable claim against

manufacturers whose products exposed him to asbestos during the

removal process, as boiler tear-outs constitute an improvement to real

property. Further, the court found that once a component part, such as

a valve, becomes part of an improvement to real property, it does not lose

its status as an improvement once it is detached and refurbished. Any
 29

exposure to asbestos during the refurbishment process is therefore not

compensable under the statute of repose and cannot give rise to a viable

claim.

Accordingly, substantial evidence must exist in the record that

demonstrates (1) Kinseth inhaled asbestos fibers as a result of working

with a McDonnell & Miller valve, and (2) the exposure occurred while

installing, not removing or refurbishing, fixtures or other component

parts.

During his career, Kinseth sometimes worked with valves

manufactured by McDonnell & Miller. Kinseth’s testimony reveals two

ways in which he was exposed to asbestos while working with the valves:

refurbishing an old valve and cutting gaskets to place on the flanges of a

new valve. When refurbishing a recycled valve, Kinseth used steel

brushes or putty knives to remove the gasket, causing the gasket to

powder and release asbestos dust into the air. Kinseth frequently

refurbished McDonnell & Miller valves, and thus frequently inhaled

asbestos. Any exposure to asbestos during the refurbishment process,

however, is not compensable under the statute of repose and thus

cannot be grounds to include the McDonnell & Miller as a responsible

third party.

When working with new McDonnell & Miller valves, Kinseth

testified the valves did not always come with gaskets on the flanges, and

Kinseth would sometimes need to place a gasket on the flanges. The

gaskets he used were either precut gaskets that were purchased along

with the new valve, or separately purchased gaskets that needed to be

sized and cut to fit the flange. Kinseth sometimes worked with gaskets

that were purchased from McDonnell & Miller, although the company

purchased gaskets from other manufacturers as well. Attaching a precut
 30

gasket did not cause asbestos exposure, as the process did not invade

the gasketing material. However, cutting a gasket to fit the flange caused

the gasket to powder, which released asbestos dust into the air. Thus, it

was not McDonnell & Miller’s valves that exposed Kinseth to asbestos,

but rather cutting separately purchased gaskets to place on the flanges

of the valve that caused asbestos exposure.

In Weil-McLain’s motion to include responsible third parties on the

verdict form, it specified between the manufacturer and type of product

that exposed Kinseth to asbestos. Accordingly, we are not deciding

whether any product manufactured by McDonnell & Miller exposed

Kinseth to asbestos, but whether McDonnell & Miller’s valves exposed

Kinseth to asbestos. Based on our review of the record, the district court

properly excluded the valves from the allocation-of-fault verdict form, as

Weil-McLain failed to adduce substantial evidence that McDonnell &

Miller valves exposed Kinseth to asbestos.

3. Allocating fault to bankrupt entities. During trial, Kinseth

objected to including two bankrupt entities, Hercules and Johns-

Manville, on the allocation-of-fault verdict form, as the estate could not

meaningfully recover from the entities. The district court denied the

motion and the jury allocated ten percent fault, or $400,000 in damages,

to Hercules and fifteen percent fault, or $600,000 in damages, to Johns-

Manville. Kinseth had previously settled with both companies and,

through the bankruptcy trust system, received $4690 from Hercules and

$26,250 from Johns-Manville. Kinseth maintains the substantial

disparity in assigned fault and recoverable damages is fundamentally

unfair and contrary to the policy of chapter 668.

Kinseth primarily relies on Spaur, 510 N.W.2d 854, for the

proposition that fault should not be allocated to bankrupt entities. In
 31

Spaur, a defendant manufacturer objected to excluding Manville Trust

from the allocation-of-fault verdict form. Id. at 862. At the time,

Manville Trust was subject to a permanent injunction that “preclude[d]

any litigation against Manville Trust as well as Manville Trust’s

participation in any way in any litigation.” Id. at 863. The court

determined that Manville Trust was not a “released party,” as the

plaintiffs did not “avail themselves of the procedure by which they could

settle with Manville Trust in order to receive compensation.” Id. Indeed,

plaintiffs had not received any compensation from the Trust in exchange

for a release. Id.

“In general, the purpose of section 668.3 is to make defendants

pay in proportion to their fault.” Godbersen v. Miller, 439 N.W.2d 206,

208 (Iowa 1989). Here, unlike in Spaur, the estate “avail[ed] [itself] of the

procedure by which [it] could settle” with the parties and thereby

received compensation from both entities in exchange for a release from

liability. Spaur, 510 N.W.2d at 863. Accordingly, both Hercules and

Johns-Manville are “released parties” as contemplated by section 668.3

and are properly subject to inclusion on the allocation-of-fault form.

C. Admissibility of Evidence.

1. OSHA evidence. We next consider whether the district court

erroneously admitted evidence relating to Weil-McLain’s OSHA violations.

In 1974, two years after OSHA promulgated asbestos regulations, OSHA

cited Weil-McLain for a number of violations in its plant. One such

citation was for failing to place warning labels on its asbestos products,

including asbestos rope and cement. Indeed, despite having knowledge

of the hazardous health risks of asbestos, Weil-McLain only began

placing warnings on its asbestos products after the company was cited

by OSHA.
 32

In its motion in limine, Weil-McLain sought to wholesale prohibit

any use of Weil-McLain’s OSHA violations at trial, alleging that Kinseth

stopped installing boilers in 1972, and thus any actions after 1972 are

immaterial to this case. Further, Weil-McLain argues that even if

Kinseth continued to work beyond 1972, the OSHA citation does not

speak to the reasons behind the company’s failure to warn and thus is

not relevant to punitive damages. The district court denied the motion,

finding the citation for failing to place warnings on asbestos products

was relevant to Kinseth’s punitive damages claim. The court informed

the parties it would “tightly circumscribe” the use of the evidence and

prevent any discussion of the violations beyond failure to warn.

Kinseth testified that, while he primarily worked in the office in

1972, and indeed had completed the vast majority of his installation

work by 1972, he occasionally performed “hands-on” work in the field in

a supervisory capacity until he retired in 1987. Thus, Weil-McLain’s

actions, or lack of actions, in 1974 are relevant to Kinseth’s case.

Moreover, evidence is relevant if it “has any tendency to make a fact more

or less probable than it would be without the evidence” and “[t]he fact is

of consequence in determining the action.” Iowa R. Evid. 5.401.

Evidence that Weil-McLain did not place warnings on its asbestos

products until OSHA issued a citation, despite having knowledge of

asbestos’ risks, clearly has a tendency to make it more or less probable

that Weil-McLain acted with a “willful and wanton disregard for the

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

evidence is relevant, the district court did not abuse its discretion in

denying the motion in limine.

During trial, the district court determined additional evidence

about Weil-McLain’s other OSHA citations could be admitted. The court
 33

explained that during defense counsel’s examination of its own witness,

Mr. Schuelke, counsel asked about the nature of the OSHA violations,

and thus “kicked open the door” on the issue. Although Weil-McLain

similarly challenges this decision on appeal, we decline to reach the

issue, as it is uncertain whether the situation will again arise on retrial.

2. Statute-of-repose evidence. Prior to trial, the district court

determined that any exposure to asbestos arising from the removal

process was noncompensable under the statute of repose. Weil-McLain

contends the jury was erroneously permitted to hear evidence of

Kinseth’s exposure to asbestos while removing Weil-McLain’s boilers,

despite such exposure being noncompensable and therefore irrelevant.

The district court declined categorically to exclude this evidence

because it determined that it was important for the jury to understand

Kinseth’s total exposure to asbestos, from all manufacturers, in order to

determine causation. Indeed, the court found that in order for the jury

to determine which manufacturers contributed to Kinseth’s

mesothelioma, and to what degree, the jury must be permitted to

consider activities that were not compensable but nevertheless

contributed to the Kinseth’s cancer.

We agree that evidence of exposure during the removal process,

while noncompensable, was nevertheless relevant to the question of

causation. Further, we presume juries follow the court’s instructions.

State v. Proctor, 585 N.W.2d 841, 845 (Iowa 1998). Thus, the district

court did not abuse its discretion in permitting the jury to hear evidence

of Kinseth’s exposure during the removal process and instructing the

jury on the proper use of such evidence.

D. Punitive Damages. Finally, Weil-McLain alleges that Kinseth

introduced insufficient evidence to submit the issue of punitive damages
 34

to the jury. Specifically, Weil-McLain asserts that in order for punitive

damages to be warranted, Kinseth must prove that Weil-McLain’s

conduct deviated from that of others in its industry. Weil-McLain’s

assertion rests on its interpretation of Beeman, 496 N.W.2d at 255–56,

which we will now clarify for retrial.

In Beeman, a plumber, Joseph Beeman, contracted pleural plaques

and asbestosis from working closely with asbestos-containing materials

throughout his career. Id. at 249–50. Beeman sued Johns-Manville

Corporation (JM), Keene Corporation (Keene), and other companies that

manufactured asbestos-containing products. Id. at 250. Following a

number of settlements, Beeman proceeded to trial against JM and Keene.

Id. At trial, the jury heard evidence that some studies in the 1920s and

1930s linked asbestos with health problems and that “JM itself financed

asbestos hazards studies in the 1940s and 1950s.” Id. Yet, we found “it

was not until 1965, when the Selikoff study was published, that a clear

connection between exposure to asbestos by end-users, such as Beeman,

and lung problems was established.” Id. Thus, the evidence at trial

showed that one defendant, JM, had specific knowledge of the dangers of

asbestos well before 1965, while the other defendant, Keene, only had

general industry knowledge beginning in 1965. Id.

At the close of trial, the district court submitted a punitive damage

claim against Keene, but not JM, as JM was subject to a federal

bankruptcy court reorganization plan that precluded punitive damages.

Id. at 250, 255 n.3. The jury awarded Beeman $1.175 million in actual

damages, as well as assessed $5 million in punitive damages against

Keene. Id. at 250. JM and Keene both filed posttrial motions for a new

trial and judgment notwithstanding the verdict. Id. The district set aside

the punitive damages award and Beeman appealed. Id.
 35

On our review, we explained “[p]unitive damages are not

compensatory; they are for punishment and deterrence.” Id. at 255. To

receive punitive damages, a plaintiff must demonstrate “by a

preponderance of clear, convincing, and satisfactory evidence that the

defendant’s conduct amounted to a willful and wanton disregard for the

rights or safety of another.” Id.

We determined Beeman offered insufficient evidence to support a

claim for punitive damages against Keene. Id. We noted, “Keene and its

predecessors manufactured and distributed asbestos-containing thermal

insulation materials for many years. Many other companies performed

similar services. Asbestos was recognized as the best insulating material

available, because of its heat resistance and practical indestructibility.”

Id. At the same time, reports of the hazards of asbestos continued to

appear in scientific literature. Id. We found “reports regarding dangers

of asbestos to insulators and bystanders, such as Beeman, were

ambiguous before 1965.” Id. at 255–56.

Importantly, we emphasized the difference between general

industry knowledge and actual conduct. Id. at 256. We explained,

Even though reasonable jurors could find that the
manufacturers had enough knowledge to trigger a duty to
warn of the potential hazards of their products, and that
such failure amounted to negligence, the real issue here is
conduct. For punitive damages, a defendant’s conduct must
be more egregious than mere negligence; it must amount to
a willful and wanton disregard for the public’s rights or
safety established by a preponderance of clear, convincing,
and satisfactory evidence.

Id. Accordingly, we clarified “punitive damages may not be assessed

against Keene based on the general knowledge of the asbestos industry.

Instead, there must be clear, convincing, and satisfactory evidence that

sets Keene’s conduct apart from that of other asbestos manufacturers.”
 36

Id. Because Beeman failed to show that Keene, specifically, willfully and

wantonly disregard the rights and safety of the public, punitive damages

were inappropriate. Id.

Here, Weil-McLain seizes upon the phrase “sets Keene’s conduct

apart from that of other asbestos manufacturers” and maintains that, in

order to receive punitive damages, Kinseth must show that Weil-McLain’s

conduct—failure to warn—deviated from its peers. However, this reading

of Beeman ignores the distinction between defendants with specific

knowledge of potential harms and defendants merely charged with

general industry knowledge.

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. 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. Rather, the willfulness

and wantonness of its failure to act will be considered in light of its

specific knowledge, as well as other contextual evidence. The defendant’s

conduct must still be “more than merely objectionable” and “more

egregious than mere negligence.” Id. at 255–56.

IV. Conclusion.

Because statements made by plaintiff’s counsel during closing

arguments were prejudicial, we remand the case for a new trial. On

remand, McDonnell & Miller valves shall not be included on the special

allocation-of-fault verdict form, both Hercules and Johns-Manville shall

be included on the verdict form, evidence of the OSHA citation for failing

to warn is admissible, evidence relating to conduct rendered
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noncompensable by the statute of repose is admissible if a proper

limiting instruction is provided, and the court shall consider the punitive

damages issue in light of our clarification of Beeman.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

REVERSED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN

PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL WITH

INSTRUCTIONS.