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FILED: NEW YORK COUNTY CLERK 12/14/2016 04:03 PM
`FILED‘ NEW Y°RK COUNTY CLERK 122016 04:03 P
`NYSCEF DOC. NO. 425
`NYSCEF DOC. NO. 425
`
`190034/2015
`INDEX NO. 190034/2015
`INDEX NO.
`R~C«IV~D NYSCEF:
`12/14/2016
`RECEIVED NYSCEF: 12/14/2016
`
`Case: 13-704 Document: 138-1
`
`Pagezl
`
`04/10/2014
`
`1198782
`
`6
`
`13-704-cv
`Mccormick V. Cleaver Brooke Co.
`
`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
`
`SUMMARY ORDER
`
`CITATION TU
`BY SUMMRRY manna Do NOT HAVE PRECEDENT]hL EFFECT.
`RULINGS
`hFTER JANUhRY 1. 200? 13 PERMITTED AND 13
`SU.l-"nM.?Ll1‘.{ ORDER 1-‘IL1-".D ON OR
`It
`GOVEHNED BY FEDERAL RULE or A?PELLhTE PROCEDURE 32.1 AND THIS couRT's
`LOCAL RULE 32.1.1.
`WHEN CITING h SUMHARY onumu [N A DOCUMENT FILED
`wrwn THIS couaw,
`A ran?! MUST CITE EITHER THE FEDERAL npvtnnzx on an
`ELECTRONIC DRTABASE
`{WITH THE NOThTION Hsummnuv
`oeumnny.
`A pairs
`CITIHG TO A SUMMhRY ORDER MUST senvw h cup! or
`IT on AN! pan?! no?
`REPRESENTED BY COUNSEL.
`the United States Court of Appeals
`2 a stated term of
`for the Second Circuit, held at the Thurgood Marshall United
`States Courthouse, 40 Foley Square,
`in the City of New York, on
`the 10“ day of April,
`two thousand fourteen.
`
`PRESENT:
`
`PIERRE N. LEVAL,
`DENNY CHIN,
`SUSAN L. CARNEY,
`Circuit Jqgggg.
`
`_-—..--—-—-—----—----—-X,
`
`KELLY MCCORMICK, Individually and
`as Adminietratrix of the Estate of
`KIT L. MCCORMICK,
`P l -11)! n '7 l
`I‘_:'t__—‘.5y_13;_-_;_;._1_»__:_-‘:_ ,
`
`—v—
`
`13-704
`
`CLEAVER BROOKS CO.,
`
`INC.,
`Defwndn.'
`
`
`.
`
`I
`
`_______--..--
`FOR PLAINTIFF~APPELLEE:
`
`FOR DEFENDANT-APPELLANT:
`
`-—-.————-x
`KYLE A. SHAMBERG [Samuel M.
`Meirowitz, LH_;gg bring), Weitz &
`Luxenberg, P.C., New York, New
`York.
`
`SUZANNE M. HALBARDIER (David
`Schultz, g§_Lflg_Lyiefi), Barry,
`McTiernan & Moore, LLC, New York,
`New York.
`
`:.___?_*_
`'
`The Clerk of the Court
`to conform to the above.
`
`is directed to amend the official caption
`
`lof9
`
`

`

`Case::L3-704 Document: 138-1
`
`Page:2
`
`04/10/2014
`
`1198782
`
`8
`
`Appeal
`
`from the United States District Court for the
`
`Eastern District of New York (Weinstein, Q‘).
`UPON DUE CONSIDERATION,
`IT IS ORDERED, ADJUDGED, AND
`
`AFFIRMED.
`
`Defendant—appel1ant 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
`a new trial.
`notwithstanding the verdict, or,
`in the alternative,
`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.
`(1)
`Cleaver Brooks advances four arguments on appeal:
`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
`
`'
`"'
`T-'.v_:'1\.’.‘
`.
`judgment as a matter Of
`law s1_e_n_o_!9_.
`s_e_e
`Schneider, 607 F.3d 322, 326 (2d Cir. 2010), and the denial
`Ln v.
`
`2of9
`
`

`

`Casetla-704
`
`Documentlsad.
`
`Page:3
`
`04/10/2014
`
`1198782
`
`6
`
`of a motion for a new trial for abuse of discretion, see United
`states v. ggggi, 583 F.3d 108, 125 (2d Cir. 2009). We review
`jury instructions d§_nQMQ, "reversing only where, viewing the
`charge as a whole,
`there was a prejudicial error." Ugigeg ggages
`v. _§QL§§Qflg, 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 gig novo. 2" '-J.
`i3‘*.'_:'i‘._-_T_1._I1w.I:‘.L'-.
`L..1'.t'r-_\
`1'.nr.—'.
`f._"_:1_.,,
`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.
`in Cleaver Brooks boilers corroborated Schlabach's testimony.
`The jury therefore had ample evidence from which to find exposure
`959 F.2d 1424,
`1_r_~.','_.—x-.1
`.“_.:3}- f‘.
`_
`and causation.
`See fi;£g;e;g;- c;;__,i
`1426 (2d Cir. 1992)
`(jury's finding of causation supported by
`testimony from co—workers and other record evidence).
`Cleaver Brooke's argument that plaintiff's expert,
`James strauchen, was improperly permitted to respond to
`hypothetical questions about
`the cause of McCormick‘s asbestos
`
`3
`
`80f9
`
`

`

`Case: 13-704 Document: 138-1
`
`Page:4
`
`04/10/2014
`
`1198782
`
`6
`
`distrio
`
`The hypothetical questions at issue
`exposure is also meritless.
`t trial.
`It is well within the
`were based upon evidence adduced a
`t court's discretion to permit expert testimony to proceed
`.F1:ci., 950 F.2d
`
`See werrh v. Hflkltg_g§QC. uggks
`
`in this fashion.
`643, 648 (10th Cir. 1991)
`
`(hypothetical questions are proper
`F‘-For":
`I3:vi11_;=:
`._,
`'l'_r1t:
`.
`R:11__-*.-.-__-.':-:1
`
`basis for expert testimony); Vt.
`("In asking a
`Purina ;n., 514 F.2d 456, 463 (2d Cir. 1975)
`hypothetical question,
`the examiner may seek the witness's
`opinion on any combination of facts within the tendency of the
`arks omitted)).
`We
`therefore
`evidence." (internal quotation m
`leaver Brooks's argument that the testimony from Dr.
`coupled with documentary evidence, did
`
`reject C
`
`Strauchen and Schlabach,
`not support a finding of causation.
`Third, Cleaver Brooks argues that the
`portioned 60% fault to Cleaver Brooks and
`er manufacturers, whose
`
`jury's verdict
`
`was flawed because it ap
`no fault to the Navy or to four oth
`ormick also worked on while at McConnell Air Force
`ocated 30% liability to McConnell Air
`Base. But the jury all
`orce Base and 10% to another manufacturer, Johns—Manville,
`g that it did consider apportionment.
`The jury's
`orted by the fact that Cleaver Brooks did
`
`boilers McC
`
`F
`
`indicatin
`
`findings are also supp
`
`urers or detail Mccormickls alleged exposure in his
`four manufact
`Thus, it was permissible for the jury not to
`turers or to the Navy.
`
`Navy work.
`attribute fault to the other manufac
`Fourth, Cleaver Brooks appeals the distr
`e on Kansas's continuing duty to warn on
`
`ict court's
`
`supplemental jury charg
`
`4of9
`
`

`

`Case: 13704
`
`Document: 138-1
`
`Page:5
`
`04/10/2014
`
`1198782
`
`5
`
`two grounds:
`
`(1)
`
`that it introduced an issue not addressed
`that the supplemental charge conflicted
`We do
`
`during trial, and (2)
`with Kansas law on the issue of a continuing duty to warn.
`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 district court held a sidebar to
`
`the supplemental charge,
`Defense counsel stated, "Fine, your Honor,
`
`solicit objections.
`
`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
`tions over the course of many years between
`orce Base," particularly after
`
`the “ongoing communica
`Cleaver—Brooks and Mcconnell Air F
`1974,
`schlabach's testimony about
`
`McCormick's exposure a
`plaintiff's expert Barry Castleman
`
`published in
`
`documentary evidence abo
`onnell 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
`s law in its damages calculation. Cleaver
`
`interpretation of Kansa
`
`5of9
`
`

`

`Case: 13-704 Document: 138-1
`
`Page: 6
`
`04/10/2014
`
`1198782
`
`6
`
`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
`
`‘.-‘.-'.§I.'-_*1'1.=.l‘ '-'.‘I:.1ZL?:1, 503 P.2d
`
`right to recover from any other entity.
`1028, 1030-31 (Kan. App. 1979)
`(“[S]ince a given defendant in a
`[comparative negligence action] can be held liable in any event
`at percentage of injury attributable to his fault, a
`only for th
`release of that defendant cannot inure to the benefit of
`
`accord uirnn 9.
`filgmind, 240 Kan.
`
`potential co—defendants.“);
`the district court made the
`724, 732 (1987). Moreover,
`tions based upon the jury's apportionment of
`
`appropriate deduc
`
`fault. Cleaver Brooks
`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
`4_;1'\r.'_grr.L,x‘
`'; /'
`-'"“'\‘-.1"
`‘
`
`\
`
`CL1'.i'E-.1.-La.‘Liigini':~"J4—L[-‘L':w
`
`flqy9’i
`
`6of9
`
`

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