(dissenting).
I respectfully dissent from the majority decision against Keene Corporation.
The issues are fair trial and substantial justice. This defendant received neither.
Plaintiff, at age sixty-two, has worked continuously since 1953 doing heavy construction work. He worked throughout the trial of his own case except for minimal necessary time out to testify. He claims he was injured by Keene sometime before 1965 by working near a product manufactured by a Keene predecessor. The product called Monoblock contained no more than two percent asbestos and was malleable enough to be cut with a knife, which eliminated most dust emissions. Plaintiff’s exposure to this product was approximately two weeks over thirty years ago and one week twenty-five years ago.
Plaintiff does not have cancer and has not claimed his exposure to Monoblock causes him an increased risk of cancer. He did not even testify that he has a fear of cancer, that he had read information connecting asbestos and cancer, or that any doctor had advised him of any risks of cancer. He was advised that he had asthma and pleural plaques, neither of which ever prevented his full time employment. To compensate plaintiff for these injuries, the jury awarded damages of $1,282,500 against Johns-Manville Corporation and $142,500 against Keene. Additionally, the jury decided that a punitive award of damages of $5,000,000 against Keene was appropriate.
How did this spectacular verdict occur? The answer is that the lawsuit was tried as a “dread specter of cancer” case. Evidence of asbestos being linked to cancer and Johns-Manville’s knowledge of its hazard to health was poured into the case by plaintiff. Although not relevant to prove Keene had any knowledge of asbestos dan*258gers so as to trigger a duty to warn plaintiff at the time of plaintiffs exposure, Keene was blanketed by this snowstorm of evidence. Guilt by association became the prevailing wind.
Anticipating this, Keene sought at the outset to distance itself from Johns-Man-ville, the industry leader in culpability. It moved for a separate trial and a motion in limine regarding punitive damages. The trial court in an effort to achieve judicial economy denied the motions. What transpired thereafter showed the jury’s inabili-. ty to separate the evidence directed at each defendant and to fairly try the case.
A week and a half of prejudicial cancer evidence was inserted by plaintiff using claims of conspiracy and fraud by Johns-Manville as a vehicle. Plaintiff then withdrew those claims, leaving it to the court to instruct that all of this evidence was to be considered only against Johns-Manville and solely on the issue of failure to warn. Even on this issue, the evidence showed no clear connection between asbestos and lung problems prior to 1965, when Keene sold its products that are claimed to have injured plaintiff. The jury’s response was a $5,000,000 punitive award against Keene, having been instructed that a bankruptcy court order prevented it from awarding punitive damages against Johns-Manville.
Fair trial was clouded from the beginning by plaintiff’s counsel announcing after trial commenced, the night before plaintiff’s expert witness was scheduled to testify, that plaintiff was more injured than he thought. ' Keene was told that it faced a claim of asbestosis rather than pleural plaques, a lesser malady. The case had been on file since October 1988. Even if this late-night switch was unintended and fortuitous, the resulting trial by ambush is no longer favored in law and prejudiced defendants.
Plaintiff also sought and received from the jury a $600,000 award based on a new theory of tort liability. The jury heard all about and agreed that defendants were liable for plaintiff’s “lost opportunity to live.” Although the trial court set this award aside, and the majority rejects this theory, the compounding effect of this additional improper evidence could hardly be erased from the jury’s considerations.
We have long recognized that when a party has not received a fair and impartial trial, the trial court has inherent power to set aside the verdict. Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535 (1940); Bletzer v. Wilson, 224 Iowa 884, 276 N.W. 836 (1937). This is also true when substantial justice has not been effectuated. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632 (Iowa 1969). Another trial may be granted, even in the absence of reversible error, in the interest of justice although plaintiff was not entitled to a directed verdict. Comer v. Burns, 255 Iowa 251, 122 N.W.2d 305 (1963).
The trial court and majority have tried to salvage a fair result from the contagion prevailing in this case. For Keene Corporation it cannot be done. The wisdom of our court in 1855 should be followed. Jourdan v. Reed, 1 Iowa 135, 138, 1 Clarke 135, 138-39 (1855). It states:
Where the mind is brought irresistibly to the conclusion, that the verdict was not the result of a free, sound and unbiased exercise, of judgment, on the testimony submitted, and that manifest injustice will result, if judgment is rendered upon such verdict, it would be the right and duty of the court below, to grant a new trial; and where such a case is made clearly apparent to this court, a new trial will be awarded though refused by the district court.
I would grant a new trial for Keene Corporation.
SCHULTZ, J., joins this dissent.