Caccavale v. Raymark Industries, Inc.

533 N.E.2d 1345 8 UCC Rep.Serv.2d 374, Prod.Liab.Rep. (CCH) P 12,108 (Cite as: 404 Mass. 93, 533 N.E.2d 1345)

Supreme Judicial Court of Massachusetts, Middlesex.

Rita A. CACCAVALE [FN1] et al. FN1. Individually and as administratrix of the estate of Joseph N. Caccavale.

v.

RAYMARK INDUSTRIES, INC.

Argued Oct. 6, 1988.

Decided Feb. 13, 1989.

Widow brought action against manufacturer of asbestos products to recover damages arising from wrongful death of husband. The Superior Court Department, Thomas R. Morse, Jr., J., by jury verdict, awarded widow $170,000. After retrial on damages issue, the Superior Court Department, James P. Lynch, Jr., J., by jury verdict, awarded widow $637,999.90. Appeals were taken. The Supreme Judicial Court, Middlesex, Hennessey, C.J., held that: (1) retrial on damages issue was nullity; (2) verdict finding manufacturer negligent, but not in breach of warranty, was inconsistent as matter of law; and (3) manufacturer made its position sufficiently clear at trial to have preserved its rights on appeal.

Reversed and remanded.

**1345 *93 Richard L. Neumeier (Thomas P. O'Reilly, Leonard F. Zandrow, Jr., & Janet L. Maloof, Boston, with him) for defendants.

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