Heather Isringhausen Gvillo Apr. 22, 2014, 3:05pm

NEW YORK (Legal Newsline) - The U.S. Court of Appeals for the Second Circuit has upheld a jury's $980,000 verdict in an asbestos lawsuit, affirming the jury's liability apportionment based on the defendant's failure to provide proper evidence against other entities.

A jury in U.S. District Court for the Eastern District of New York entered a verdict on June 12 awarding plaintiff Kelly McCormick $980,000.

In response, defendant Cleaver Brooks Company filed a motion for judgment notwithstanding the verdict or, in the alternative a new trial, which was denied by Judge Jack Weinstein.

According to the April 10 order, Kelly McCormick alleged her late husband Kit McCormick was exposed to asbestos through his work with boilers while serving at McConnell Air Force Base. She claims he worked with Cleaver Brooks boilers from 1974 through the early 1990s.

In its verdict, the jury determined that Cleaver Brooks was 60 percent liable. It also apportioned no fault to the Navy or to four other boiler manufacturers whose boilers on which McCormick also worked while at McConnell Air Force Base.

The district court calculated the verdict amount based on the jury's apportioned liability, procedural history and issues on appeal, the order states.

In its appeal, Cleaver Brooks focused on four arguments:

-Judgment was warranted because McCormick failed to prove causation;

-Alternatively, the district court should have granted Cleaver Brooks' motion for a new trial because the jury's verdict did not line up with the weight of the evidence;

-The district court's supplemental jury instruction regarding the 'continuing duty to warn' was improper; and

-The district court's damages calculation conflicted with Kansas law.

Cleaver Brooks claims McCormick failed to prove that its products caused her husband's injuries. However, the appeals court disagreed.

Kit McCormick's co-worker, Darryl Schlabach, testified during trial that the decedent was exposed to asbestos while working with Cleaver Brooks boilers for more than 16 years.

Schlabach added that the decedent removed asbestos from buildings containing Cleaver Brooks' boilers between 1987 and 1990.

The appeals court held that Schlabach's testimony provided the jury with enough evidence to find exposure and causation.

In its appeal, Cleaver Brooks also had issues with plaintiff expert James Strauchen arguing he was improperly permitted to respond to hypothetical questions regarding causation.

The appeals court responded by stating that the hypothetical questions were properly based upon case evidence, and that the district court did not err when allowing it.

Therefore, the court dismissed the idea that both testimonies failed to support causation.

Cleaver Brooks also asserted the jury's apportionment was flawed because it did not allocate any fault to the U.S. Navy or four other boiler manufacturers whose products on which the decedent allegedly worked while at McConnell Air Force Base.

The appeals court disagreed, noting that the jury did apportion 30 percent liability to McConnell Air Force Base and 10 percent liability to manufacturer Johns-Manville, which indicated that the jury did take apportionment into consideration when reaching a verdict.

Further, Cleaver Brooks failed to present any evidence of negligence against the four other manufacturers or present details of the decedent's alleged asbestos exposure relating to his Navy work, which would keep the jury from finding fault from the Navy or other manufacturers, the court ruled.

Lastly, Cleaver Brooks took issue with the district court's application of Kansas Law, which the appeals court ultimately ruled to be meritless.

Cleaver Brooks appealed the district court's supplemental jury charge on Kansas' continuing duty to warn, arguing that it introduced an issue not addressed during trial and that the supplemental charge conflicted with Kansas law on the issue of a continuing duty to warn.

Addressing the district court's decision to issue a supplemental charge, the appeals court rejected the Cleaver Brooks' argument that the manufacturer's post-sale duty to warn was "uncontemplated" at trial.

The appeals court points out that McCormick focused heavily on the "ongoing communications over the course of many years between Cleaver Brooks and McConnell Air Force Base" in her case, especially the time he was exposed to asbestos after 1974.

Further, plaintiff witnesses testified about the decedent's asbestos exposure and the timeline following when the defendants knew or should have known of the links between asbestos and cancer

"Accordingly, Cleaver Brooks' argument that it was prejudiced because the supplemental instruction raised an issue that had not been litigated fails," the order states.

Agreeing with the district court's interpretation of Kansas law and its damages calculation, the appeals court also wrote that Cleaver Brooks' arguments that Kansas law required the district court to "setoff" the award by the settlements McCormick reached with other parties before trial were incorrect.

According to Kansas law, a plaintiff's settlement with a defendant that could be proportionately liable at trial does not affect the plaintiff's right to recover from other defendants.

Also, the district court made the appropriate deductions based on the jury's liability apportionments, meaning Cleaver Brooks' objection that the district court's calculated damages were without merit, the court ruled.

The appeals court didn't address Cleaver Brook's concern regarding conflicts with Kansas law because the court said the company failed to address alleged inconsistencies with the supplemental charge during trial.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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