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USCA1 Opinion

November 18, 1993


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1186
NEW HAMPSHIRE-VERMONT HEALTH SERVICE CORPORATION
d/b/a
BLUE CROSS AND BLUE SHIELD OF NEW HAMPSHIRE,
Plaintiff, Appellee,
v.
UNITED STATES MINERAL PRODUCTS COMPANY,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.

_____________
____________________

John T. Broderick, Jr. with whom Mark W. Dean and Broderick


_______________________
_____________
_________
Dean, P.A. were on brief for appellant.
__________
Daniel A. Speights with whom Speights and Runyan, Michael
____________________
_____________________ ________
Hall, and Nixon, Hall and Hess were on brief for appellee.
____
____________________
____________________
____________________

ALDRICH,

Senior Circuit Judge.


_____________________

Defendant United

States Mineral Products Co. in 1968-69 supplied plaintiff New


Hampshire-Vermont Health Service Corp., d/b/a Blue
Blue

Shield of New

product known

Hampshire, with a

as CAFCO.

This

Cross and

spray-on fireproofing

was applied

to some

of the

steel beams and elsewhere in a six story building in Concord,


New Hampshire, that
CAFCO

contains asbestos,

atmospheric
that

plaintiff was erecting for

any

pollution

and

when not

reconstruction

and

while

that

disturbed,
even

does

its offices.
not

cause

plaintiff found

building

maintenance

activities would result


considered

various

in its doing so.

choices with

In 1987 plaintiff

respect

to the

building:

renovate, to meet its growing operational requirements; sell,


and move to a more modern building; or do nothing.

Even this

last raised

problems.

future, if

not immediate,

Before deciding, having

fire code

spent some $330,000 in

testing, and

in attempting asbestos solutions, plaintiff brought suit.

At

the time of trial it still had made no final decision.


After a 13
the jury

day trial and 12 hours

found for plaintiff in the

plaintiff's

motion,

the

court set

of deliberation

amount of $532,000.
the

ordered a new trial, confined to damages.

verdict

On

aside and

The second verdict

was for $3,924,937, from which the court ordered a remittitur

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of $886,872,1

which plaintiff accepted.

complaining that
that

if a

there should

new trial

was

Defendant appeals,

have been

proper, it

no new

should have

trial, but
included

liability.

We affirm.
With respect

court

wrote a

to granting a

thoughtful opinion,

Its main concern was the


its

special

instructions
sought, and
concept

reasons,
on the

new trial
giving

at all

several reasons.

inadequacy of the verdict.


a

sua
___

measure

of

excepted to its

that if defendant

liability),

plaintiff

replacement

irrespective

culpa,
_____

was

too

damages.

One of

abbreviated

Plaintiff

refusal, a spelling out


was liable (negligence

was

entitled

of

what

ultimately adopted, or even if

to

the

future

remedial

it did nothing.

had

of the

or strict
costs

of

procedure

it

For this

it

quite properly cited Wentworth Bus Lines, Inc. v. Sanborn, 99


_________________________
_______
N.H. 5, 104 A.2d 392 (1954).
this special situation,

where, even at trial,

made no final decision, it


confusion

We agree with the court that in

from the jurors'

plaintiff had

was important to remove doubts or


minds that might

tend to reduce

the damages.
Second, the court agreed
had been

error in

expert Roger Morse.

respect to

with plaintiff that there

the testimony

of defendant's

Plaintiff's expert, one

Halliwell, had

____________________
1. The second jury had been allowed to include an item for
which the court later concluded defendant was not chargeable.
-3-

given

seven figure

estimates of

the

cost of

removal, and

defendant sought to rebut this with Morse's proposed figure - $600,000

- $700,000.

lack of prior notice.


956

F.2d 354

objection,
his

(1st

Plaintiff

objected, properly,

Freund v. Fleetwood Enterprises, Inc.,


______
___________________________
Cir. 1992).

the court said that

factual assumptions as

However,

over plaintiff's

Morse could testify that, on

to the amount

of CAFCO present,

Halliwell's figures would be "substantially" affected.


improved on

this:

for

he

testified that his estimate

Morse

would be

"substantially, substantially affected."


Defendant says, correctly to a point, that since in
Morse's

already

expressed

material

in

building than

obvious,

and

the

added

opinion

nothing,

there

Halliwell
for

Morse

was no

prejudice.

The

much

assumed,
to

estimate of the removal cost would be less.


says, there

was

only regard

effect of

as a theatrical

the specifics

difficulty was

his

Hence, defendant

difficulty is

attempt to

that the court

it was

say that

witness's generality was open-ended, particularly so


we can

less

that the
in what

produce the

had excluded.

The

compounded by plaintiff's inability to cross-

examine without burning

its fingers.

The court could

well

find,

in

light

"substantially,

of

the

verdict,

substantially

figure even smaller than the

that

affected"

the
as

jury

took

warranting

excluded specifics.

No one had

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given a dollar figure

that low.

The court was entitled

to

feel that the jury had been misled, and plaintiff prejudiced.
There were some other possible grounds for granting
a new trial on damages, but we need go no further.

The court

acted well within its discretion.


Neither
second

complaint,

liability (and
new trial.
on

need we go far with respect to defendant's


failure

to

include

the

issue

of

all other issues, whatever that means) in the

This was advanced only

motion

carefully

the

for reconsideration.

answered.

damages and liability

Defendant

as a last minute thought


It

was, nevertheless,

repeatedly

tells

us that

were "inextricably interwoven."

Phav
____

v. Trueblood, Inc., 915 F.2d 764, 766 (1st Cir. 1990).


_______________

If it

had argued
defendant
contend.

this in terms

compromise verdict

might conceivably have had a point.


We can think

liability

and

except to

dwell on

problem.

of its being a

As

of no other possible intermingling of

damages;

none

It did not so

nor

has

defendant suggested

plaintiff's differing
of

these

solutions

solutions of
raised

questions of damage, the court acted appropriately.


Affirmed.
________

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any,
its

separate

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