United States District Court, E.D. Wisconsin
BEVERLY AHNERT Individually and as Executrix of the Estate of Daniel Ahnert, Deceased, Plaintiff,
EMPLOYERS INSURANCE COMPANY OF WAUSAU, PABST BREWING COMPANY, SPRINKMANN SONS CORPORATION, WISCONSIN ELECTRIC POWER COMPANY, Defendants.
ORDER DENYING WISCONSIN ELECTRIC POWER COMPANY’S MOTION FOR SUMMARY JUDGMENT (DOC. 123)
C.N. CLEVERT, JR. U.S. DISTRICT JUDGE
The December 30, 2013, complaint in this action alleges that “from approximately 1955 to 1980" the decedent Daniel Ahnert was “exposed to asbestos products and inhaled airborne asbestos fibers released while using or working in proximity to others using or removing such products.” (Doc. 1, ¶ 21.) Ahnert died in 2011 from mesothelioma. His wife, Beverly Ahnert (hereinafter “plaintiff”), sued Wisconsin Electric Power Company (WEPCO), as a premise owner, asserting negligence and punitive damages claims. Notably, this is the third time that plaintiff has sued WEPCO based on Daniel Ahnert’s alleged exposure to asbestos-containing products at a WEPCO facility. The first case remains pending in the Eastern District of Wisconsin; the second, which was filed in Milwaukee County Circuit Court, was dismissed without prejudice. Over time, plaintiff’s theories of exposure to asbestos have evolved from an exposure in the 1980s at a WEPCO facility to multiple additional exposures in the 1960s at the Oak Creek and Port Washington Power Plants.
Ruling on the pending motion requires discussion of prior litigation because the allegations involve the same actors, and overlapping claims of exposures, and injury. Daniel Ahnert first filed suit in the Eastern District of Wisconsin on February 25, 2010, naming WEPCO and seventeen other defendants on claims that he “inhaled airborne asbestos fibers" resulting in "asbestos disease and injury." (Case No. 10-C-156, Doc. 1.) That case was transferred to MDL-875 in the Eastern District of Pennsylvania.
On January 10, 2011, Ahnert filed a second suit in Milwaukee County Circuit Court based on a new mesothelioma diagnosis, again naming WEPCO as a defendant. Daniel Ahnert et al. v. Allied Insulation Supply Co., Inc., et al., Case No. 2011CV551. Ahnert died on July 7, 2011, and his wife, Beverly Ahnert, was appointed executrix of the estate. Beverly Ahnert decided to dismiss the Milwaukee County Circuit Court case on December 20, 2011; however, she waited until May 2, 2014, to file a motion for leave to amend her MDL complaint to add the mesothelioma claim. The MDL court denied her request on May 22, 2014, on the ground that she had waited three years to move to amend the complaint and did so after discovery had closed and summary judgment motions were briefed. (Case No. 10-CV-67443 (E.D. Pa.), Doc. 406.) In ruling on WEPCO’s summary judgment motion on August 4, 2014, Judge Eduardo C. Robreno of the MDL decided to remand the negligence and construction statute of repose issues arising under Wisconsin law. With respect to the punitive damages claim, Judge Robreno determined that the issue must be resolved at a future date with regard to the entire MDL-875 action and, therefore, severed any claim from the case that was returned to the Eastern District of Wisconsin. (Case No. 10-CV-67443 (E.D. Pa.), Doc. 412.) The case was returned to this district on September 8, 2014, where it is pending before Judge Pamela Pepper with similar summary judgment motions filed by Sprinkmann Sons, Pabst Brewing, WEPCO, and Foster Wheeler.
Meanwhile, on December 30, 2013, plaintiff filed her third lawsuit in this district, naming many of the same defendants. Again she contends that Daniel Ahnert "suffered from asbestos related diseases . . . including without limitation asbestosis." However, plaintiff now includes the malignant mesothelioma diagnosis from January 4, 2011. (Doc. 1 at 23.)
On November 9, 2015, this court heard oral argument on the six summary judgment motions pending before this court. The parties were advised to respond candidly and completely about arguments that were made before the various courts and the dates on which discovery was requested and/or responses filed. Much of the five-hour hearing focused on evidence that plaintiff first produced in opposition to summary judgment and/or after discovery closed. The court excluded the June 17, 2015, declaration of Jon Shorougian, and ordered plaintiff to disclose all social security records. In turn, plaintiff agreed to redact the name of Foster Wheeler from the records disclosed after the discovery period, and stipulated to the dismissal of L&S insulation Company Inc. and Building Services Industrial Supply, Inc. The court continued the hearing on December 10, 2015. The court has since granted Foster Wheeler’s summary judgment motion.
For the reasons set forth below, WEPCO’s summary judgment motion will be denied and the parties will proceed to trial.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). "[A] factual dispute is ‘genuine' only if a reasonable jury could find for either party." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). The court ruling on the motion construes all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
FINDINGS OF FACT
Daniel Ahnert worked as a pipefitter or steamfitter from 1955 through 1992 out of Milwaukee Union Local 601. (Pl.’s Ex. 1; Rhoades Aff., Ex. B at 10-11.) Dr. Stephen Haber diagnosed Ahnert with asbestos-related pleural disease and attributed this condition to each of Ahnert’s exposures to asbestos. (Pl.’s Ex. 2 at 6.) Ahnert was diagnosed with malignant mesothelioma in late December of 2010 or January 4, 2011. (Pl.’s Ex. 2 at 6; Compl. ¶ 23.) After Ahnert passed away on July 7, 2011, his wife, Beverly Ahnert, was the duly appointed executrix of his estate. (Compl. ¶ 2.) Daniel Ahnert’s death certificate lists malignant mesothelioma as the cause of his death. (Pl.’s Ex. 3.)
In her complaint, plaintiff alleges that WEPCO "is the owner or operator, or is responsible for the conduct of a previous owner or operator of premises where asbestos products were used." (Compl. ¶ 16). She further contends that Ahnert, from approximately 1955 to 1980, was exposed to and inhaled airborne asbestos fibers released while using or working in proximity to others using or removing such products and suffered from asbestos related diseases, including without limitation malignant mesothelioma diagnosed on January 4, 2011, and non-malignant asbestos conditions, including without limitation asbestosis. (Compl. ¶¶ 21, 23). According to plaintiff, the exposures occurred at three WEPCO facilities-Oak Creek, Port Washington, and Lakeside. (Compl. ¶¶ 47-62 and Pl.’s Ex. B.)
Charles Lewitzke worked with Ahnert on an outage at Oak Creek Power House between 1968 and 1969 for at least four months. (Pl.’s Ex. 4 at 11-14.) After the Oak Creek outage, Lewitzke was trained to identify insulation that contained asbestos. He relied on his training in assessing whether the insulation he remembered at Oak Creek contained asbestos. (Pl.’s Ex. 4 at 35-36.) According to Lewitzke, Ahnert’s duties on the Oak Creek outage included covering pipes and some of the duties were performed on the turbine floor. (Pl.’s Ex. 4 at 15.) Ahnert stood approximately 20 feet from workers who were removing and installing insulation. (Pl.’s Ex. 4 at 17-18.) However, Lewitzke could not recall the brand names of insulation products. (Rhoades Aff., Ex. E at 64, 68-90.)
The Oak Creek outage was an overhaul of a General Electric fossil fuel turbine, which required removal and reinstallation of insulation, including asbestos blankets, asbestos sheets, and asbestos pipecovering. (Pl.’s Ex. 4 at 14, 17-18, 20.) Insulation packages at the Oak Creek outage were labeled with the word “asbestos” and the foreman and other workers used the word “asbestos” to describe the insulation. (Pl.’s Ex. 4 at 19-21.) The Oak Creek outage including all insulation work, was conducted in a manner common for similar work during this period of time. (Pl.’s Ex. 4 at 19-23.) Insulation work created large quantities of dust for the entirety of the Oak Creek outage. (Pl.’s Ex. 4 at 17-19; Pl.’s Ex. 5, ¶ 11.) There were no safety procedures, such as masks or instruction, to protect workers on the turbine job from the dangers of inhaling asbestos. (Pl.’s Ex. 4 at 19, 21-22.) Indeed, during the turbine outages, WEPCO, through its maintenance supervisors and engineers, was responsible for overseeing the removal and installation of insulation. (Pl.’s Ex. 5, ¶ 8.)
In addition, Lewitzke worked with Ahnert at the Port Washington Power House, a WEPCO facility, on a turbine outage that lasted six-to-eight months between 1964 and 1965. (Pl.’s Ex. 4 at 24, 27-28, 31.) The purpose of the Port Washington outage was to remove a damaged spindle fiber and replace it upon repair. (Pl.’s Ex. 4 at 27.) On the Port Washington outage, many types of insulation, including asbestos sheets, asbestos cement, and pipe covering, were removed and reinstalled. (Pl.’s Ex. 4 at 28-29, 33-35.) Labels of some insulation packages at the Port Washington outage included the word “asbestos.” (Pl.’s Ex. 4 at 35.) The removal and reinstallation of turbine insulation on the Port Washington outage produced large quantities of dust. (Pl.’s Ex. 4 at 32; Ex. 5, ¶ 1.) On the Port Washington outage, there were no safety precautions in place, such as wearing masks, to protect workers from the dangers of inhaling asbestos fibers. (Pl.’s Ex. 4 at 32-33, 36.) WEPCO, through its maintenance supervisors and engineers, took responsibility for removing and installing insulation on turbine outages, including the Port Washington outage. (Pl.’s Ex. 5, ¶ 8.)
Before OSHA regulations were enacted in 1972, insulation installed on boilers, turbines, and other equipment contained 10-15% asbestos. (Pl.’s Ex. 7 at 15-17; Pl.’s Ex. 6 at 5141-5162.) Between the 1940s and 1980s, gaskets installed in industrial settings contained 50-80% asbestos. (Pl.’s Ex. 7 at 21-22.) Sheet packing contained 30-50% asbestos. (Pl.’s Ex. 7 at 25.) Rope yarn packings contained 75-100% asbestos. (Pl.’s Ex.7 at 25.) Before the 1972 OSHA regulations, insulation materials on high-heat sections of turbine always contained asbestos. (Pl.’s Ex. 5 at 3, 5, 7; Pl.’s Ex. ...