United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge.
The above-listed eight cases all involve nuisance claims brought by or on behalf of the estates of now deceased, former workers of defendant Weyerhaeuser Company and their spouses for asbestos-related injuries based on alleged, non-occupational exposure. In each case, defendant Weyerhaeuser has moved to strike plaintiffs’ experts and for summary judgment, arguing that plaintiffs are unable to prove injuries beyond those resulting from asbestos exposure on the job, for which they, their estates and spouses may only recover under worker’s compensation laws. While the motions for summary judgment raise other bases for dismissal of plaintiffs’ claims, most of the issues raised in the summary judgment motions overlap with those raised in defendant’s Daubert motion, which challenges the admissibility of expert testimony that non-occupational exposures constituted a substantial contributing factor in the plaintiffs’ respective development of asbestos-related diseases.
For the reasons that follow, the court will grant defendant’s Daubert and summary judgment motions with respect to plaintiffs Masephol, Prust, Seehafer, Heckel and Treutel, based on their failure to offer reliable evidence of significant, non-occupational exposure to asbestos. The court will, however, deny the same motions with respect to plaintiffs Boyer, Pecher and Sydow, finding that the latter three plaintiffs have produced sufficient evidence for a reasonable jury to find: (1) they not only worked, but lived for at least one year within a 1.25 mile radius of the plant that scientific studies suggest may meaningfully increase their risk of development mesothelioma; and (2) a qualified expert can testify reliably that this exposure constituted a significant, non-occupational asbestos exposure, which in turn substantially contributed to their respective mesothelioma diagnoses. The court will also grant defendant’s motion for summary judgment on plaintiff’s private nuisance claims, finding: (1) plaintiffs failed to put forth any evidence of a possessory interest; and (2) the discovery rule under Wis.Stat. § 893.52 does not apply. In all other respects, defendant’s motions will be denied.
Before turning to defendant’s motions for summary judgment and exclusion of experts, the court will first address a number of evidentiary and discovery-related challenges.
A. D.B. Allen’s Document and Deposition
In responding to defendant’s motion for summary judgment, plaintiffs rely extensively on a 32-page document titled “Marshfield: An Environmental History, ” purportedly authored by D. B. Allen, dated August 1975. (Herrick Decl., Ex. 1 (dkt. #360-1).) Plaintiffs represent that this document was produced by Weyerhaeuser in 2003, as part of a separate asbestos lawsuit in which Weyerhaeuser was also a named defendant. The document consists of a chronology of entries concerning dust handling, complaints about emissions from community members, and various measurements of emissions, among other related topics and spans the time period from 1959 to July 10, 1975.
Defendant Weyerhaeuser seeks to strike this document from the record, asserting that it was not authenticated and does not fall under any of the exceptions to the rule of hearsay. (Def.’s Mot. to Strike Pls.’ Evidence as Inadmissible Hearsay (‘286 dkt. #399) 2.) Weyerhaeuser further contends that the document contains multiple layers of hearsay, since it “appears to include statements from other documents about statements purportedly made by members of the Marshfield community.” (Id.)
Plaintiffs not only oppose defendant’s motion, but filed their own motions concerning Allen and this document. First, plaintiffs contend that the document was properly authenticated by defendant in failing to respond to plaintiffs’ request to admit. (Pls.’ Resp. (‘286 dkt. #419); Pls.’ Mot. to Deem Responses Admitted (‘286 dkt. #420).) Specifically, plaintiffs contend that Weyerhaeuser failed to respond timely to plaintiffs’ requests for admission that certain documents produced by Weyerhaeuser, including the D. B. Allen chronology, “was a true and correct copy of the original so as to dispense with any foundational authentication requirements of the Federal Rules of Evidence.” (Pls.’ Resp. (‘286 dkt. #419) 2 (quoting Pls.’ Requests for Admission (‘286 dkt. #420-3) 3, 39).)
In fairness, plaintiffs concede that defendant Weyerhaeuser did respond to plaintiffs’ requests for admission, denying the authenticity of certain documents, including the D. B. Allen document. (Def.’s Resp. to Pls.’ Requests for Admission (‘286 dkt. #420-4) 6.) Plaintiffs nevertheless contend that the response was untimely by one day. Plaintiffs’ motion depends at the outset on plaintiffs’ serving the requests for admission on July 29, 2015, while at least one of the certificates of service lists July 30, 2015, as the actual service date. While plaintiffs offer compelling evidence that the requests for admission were actually served on the 29th, defendant could reasonably have relied on the latter date in serving its responses in light of the acknowledged discrepancy on the certificate of service. Accordingly, the court will deny plaintiffs’ motion to deem requests for admission admitted.
In the alternative, plaintiffs contend that the document may be properly authenticated as an ancient document. Federal Rule of Evidence 901(b)(8) provides:
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.
While the court is sympathetic to plaintiffs’ predicament, there is no way for plaintiffs to demonstrate that the document “was in a place where, if authentic, it would likely be, ” having received the document from a prior lawsuit some 12 years ago, without any information as to where the document was stored before Weyerhaeuser’s purported production of it. As such, plaintiffs cannot authenticate the document for purposes of summary judgment -- even putting aside the hearsay issue. Still, plaintiffs may be able to introduce the document at trial.
In yet another related motion, plaintiffs seek an order permitting them to depose David B. Allen, a retired employee of Weyerhaeuser, whose last known position was assistant director of the Environmental Resources Group. (Pls.’ Mot. to Take Deposition of David B. Allen (‘286 dkt. #417).) Plaintiffs explain that they learned the identify of D. B. Allen more than two years before the close of discovery, but did not learn of his whereabouts until September 10, 2015, after the close of discovery, despite their earlier efforts to do so. Plaintiffs contend that the delay in their receipt of his location constitutes good cause under Rule 16 to permit plaintiffs to depose Allen after the close of discovery.
In response, defendant points to its July 2015 answer to plaintiffs’ interrogatory requesting contact information for certain former employees, including Allen, which stated that it would not provide information absent an authorization from the individual. Of course, defendant’s response presents a classic chicken and egg conundrum: how could plaintiffs obtain Allen’s authorization to disclose his contact information without the requested contact information? While plaintiffs perhaps could have, indeed should have, been more diligent in pressing for Allen’s contact information, the court finds defendant’s response constitutes good cause for extending the deadline for plaintiffs to depose Allen, though the deposition will be limited to questions concerning the 1975 D.B. Allen document.
Finally, as for Weyerhaeuser’s contention that the document should be excluded as hearsay, the court will reserve on that ruling pending Allen’s deposition and any testimony on his part, which may after all demonstrate that the document falls within an exception to the hearsay rule, e.g., as an opposing party’s statement, Fed.R.Evid. 801(d)(2), or as a business record, Fed.R.Evid. 803(6).
B. Plaintiffs’ Reliance on Depositions From Other Cases
In addition to seeking to strike the Allen document, Weyerhaeuser objects to plaintiffs’ reliance on depositions from other cases, including at least one where Weyerhaeuser was not a defendant or otherwise involved in the case or deposition. (Def.’s Mot. to Strike Inadmissible Hearsay (‘286 dkt. #399).) Specifically, Weyerhaeuser objects to plaintiffs’ reliance on the depositions of Elwood Schiller, Larry Rogers, Verna Fohrman, and Jerry Saindon, all but one of whom have since passed away and, therefore, are no longer available for live testimony or another deposition. Weyerhaeuser also represents that it was not present at the depositions of Schiller and Rogers, and that it was not a party in the action for which Schiller was deposed.
As an initial matter, while Weyerhaeuser lumps Saindon into its motion to strike, neither of the reasons offered for doing so -- that Weyerhaeuser was not present at the deposition or that the deponent is no longer available -- apply to Jerry Saindon. (Pls.’ Resp. (‘286 dkt. #419) 7-8.) Absent some reason for striking his deposition testimony, Weyerhaeuser’s motion is denied with respect to Saindon.
As for the other three individuals, there is no dispute that all three deponents are deceased and, therefore, unavailable under Rule 804. The rule provides in pertinent part that:
(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had--or in a civil case, whose predecessor in interest had--an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Fed. R. Evid. 804(b).
Since Weyerhaeuser was represented by counsel at the deposition of Verna Fohrman, with similar motive to develop the record, Rule 804(b) plainly applies to the admissibility of her deposition testimony in this action. Further, Weyerhaeuser was a defendant in the Rogers action and provided notice of Larry Rogers deposition, but chose not to appear. As such, Weyerhaeuser had the “opportunity” and apparently the same motive to cross-examine him in 2001 while still available, but chose to pass on that opportunity. The court, therefore, concludes that Rogers’ deposition testimony is also admissible here.
The admissibility of Schiller’s testimony presents a closer question. Weyerhaeuser was neither a defendant in that action, nor present at his deposition. Nor is there any suggestion that it was provided an opportunity to examine him, but chose not to do so. Plaintiffs direct the court to a District of Massachusetts opinion in which the court allowed deposition testimony of a deceased co-worker in an asbestos action even though the defendant was not a participant in the prior action and was not present at the co-worker’s deposition, reasoning that “the use of asbestos products on the site was thoroughly examined” by the nineteen lawyers who deposed that one witness. Barraford v. T&N Ltd., 988 F.Supp.2d 81, 85 (D. Mass. 2013).
While the Barraford court’s logic and sense of fairness is sound, the holding itself ignores the express requirement in Rule 804 that the party against whom the deposition is being offered is the same party, or a predecessor in interest to the party in a civil context, that was involved in the earlier deposition. See generally 5 Mark S. Brodin et al., Weinstein’s Fed. Evidence § 804.04[a] (2d ed. 2015). Moreover, this is a requirement that the Seventh Circuit at least has applied in a straightforward fashion. See United States v. Sklena, 692 F.3d 725, 730-31 (7th Cir. 2012) (“[I]n order for Rule 804(b)(1)’s exception to apply, the hearsay testimony at issue must meet the criteria spelled out in the rule. That is, the party against whom the evidence is being offered must have been involved in the earlier ‘trial, hearing, or lawful deposition, ’ and that party must have had an opportunity as well as a similar motive to develop the testimony at the prior proceeding.”). Accordingly, the court will exclude Schiller’s deposition as inadmissible hearsay.
C. Weyerhaeuser’s Motion for Protective Order concerning Ehlke Deposition
Finally, the court must address Weyerhaeuser’s motion for a protective order up front, which seeks to prohibit plaintiffs’ deposition of Douglas B. Ehlke, Weyerhaeuser’s former in-house counsel, on the basis that “any information Plaintiffs seek from Mr. Ehlke is protected by the attorney-client privilege and/or attorney work product doctrine.” (Def.’s Mot. (‘286 dkt. #309); Def.’s Br. (‘286 dkt. #310) 2.) As plaintiffs point out in their response, Weyerhaeuser relies in its motion on an Eighth Circuit case focused on protecting trial counsel from discovery, not in-house counsel at issue here. (Pls.’ Resp. (‘286 dkt. #386) 3-4.) Instead, plaintiffs represent that they will not ask Ehlke about any legal advice he rendered to the company, but rather the deposition will focus on his “knowledge of the documents and personnel involved with the asbestos matters during his tenure.” (Id. at 2.)
Weyerhaeuser has failed to raise any basis -- and the court can find none -- for prohibiting plaintiffs from taking Ehlke’s deposition. Perhaps the deposition will touch on information for which privilege is properly invoked, perhaps not, but plaintiffs suggest other topics which appear to fall outside the scope of any privilege, at least as it concerns his personal knowledge or knowledge obtained in a setting outside the scope of rending legal advice or where that privilege was waived (e.g., shareholder or other public meetings, court, SEC or other governmental submissions, or other discussions at which third-parties were present). The court will, therefore, deny Weyerhaeuser’s motion for protective order, and allow plaintiffs to depose him on non-privileged matters.
D. Challenge to Anderson’s Apportionment Opinion
Finally, defendant brings a motion to strike Anderson’s “causation ‘calculation’ or ‘risk assessment’ theory and opinion” disclosed for the first time during the second day of his deposition. (Def.’s Mot. to Strike Testimony of Dr. Henry A. Anderson (‘286 dkt. #302).) The only written evidence of this opinion is Anderson’s handwritten calculations on each plaintiff’s exposure summary, which was not even provided to defendant’s counsel until the conclusion of the second day of the deposition. More importantly, Anderson did not disclose this theory in his final expert reports, as required by the court’s preliminary pretrial conference orders. Moreover, as far as the court can discern, plaintiffs never sought to supplement Anderson’s report with this new opinion.
Perhaps recognizing their tenuous position, plaintiffs’ response to this motion is limited to a footnote in their brief in opposition to defendant’s Daubert motion. In that footnote, plaintiffs argue that the opinions are not new, but rather “Dr. Anderson merely clarified and made more specific his earlier answers when probed.” (Pls.’ Opp’n (‘286 dkt. #359) 60 n.48.) Not true. Anderson testified at his deposition that he was “subsequently asked” by plaintiffs’ law firm to “see if I could [apportion cause] using my epidemiological approach.” (6/2/15 Anderson Depo. (‘286 dkt. #239) 337.)
As noted, plaintiffs were required to disclose this additional opinion timely. While it is not clear why plaintiffs could not have requested this analysis as part of Anderson’s original report, the court would have entertained a motion to supplement this opinion had plaintiffs sought leave, but they failed to do. As such, the court agrees with defendant that plaintiffs have failed to demonstrate that the disclosure of a new opinion during Anderson’s deposition was either substantially justified or harmless under Federal Rule of Civil Procedure 37(c)(1). Accordingly, the court will not allow plaintiffs to offer this new theory or opinion at trial and will strike the portion of Anderson’s deposition testimony articulating this new opinion.
A. Overview of Weyerhaeuser Plant and Use of Asbestos
Plaintiff Weyerhaeuser acquired a door plant located in Marshfield, Wisconsin, from Roddis in August 1960 and sold the facility in 2000. The Marshfield plant manufactured wood products with multiple operations and divisions on site, including a dry kiln, particleboard plant, molded products plant, warehouse, a door factor building (referred to as the door mill), and a mineral core plant. Weyerhaeuser manufactured a door core containing asbestos in the mineral core plant, which opened in 1968, although Weyerhaeuser had used asbestos to manufacture doors before 1968. Weyerhaeuser stopped using asbestos in June 1978.
B. Facts Specific to Each Worker’s Diagnosis and Overall Exposure to Asbestos
i. Milton Boyer
Milton Boyer was diagnosed with mesothelioma on March 13, 2014, and passed away on August 31, 2015. He was employed by Weyerhaeuser at the Marshfield plant from 1973 to 1983. During that time, his job duties involved work in the core mill area of the door plant, including spending time sweeping the mineral core area, dumping the sweeper and operating a power jimmy operator in the core mill. Boyer also assisted in cleaning the mineral core forming pans on one occasion, helping to pound the dust out of the pans. Boyer testified that his “biggest dose” of asbestos came from sweeping the mineral core department. (Def.’s PFOFs (‘286 dkt. #223) ¶ 35 (quoting Boyer 6/16/14 Depo. (‘286 dkt. #71) 56).)
Boyer lived outside Marshfield his entire life, except for approximately four years between 1975 to 1979 when he lived at 302 West Blodgett Street and 605 East Vine Street in Marshfield. (From Google Maps, it appears that the West Blodgett apartment is located about 1.07 miles from the plant and the East Vine residence is approximately 0.6 mile from the plant.) Boyer testified at his deposition that he noticed his car frequently had dust on it during this period. He described the dust as similar to what was in the mineral core, although he also stated that it was “probably . . . all concrete dust” from the concrete plant in Marshfield. (Def.’s Reply to Def.’s PFOFs (‘286 dkt. #383) ¶ 37 (quoting Boyer 6/18/14 Depo. (‘286 dkt. #72) 76).)
Both of Boyer’s parents worked in the Weyerhaeuser plant as well, and he lived with his parents until 1972. While there is conflicting evidence in the record, Boyer contends that his father drove a garbage truck for the plant. Boyer also believed that his father worked in the mineral core area, but did not have personal knowledge of this. For purposes of summary judgment, the court assumes that Boyer’s father drove the garbage or dump truck, which involved contact with the mineral core part of the plant. Boyer’s mother, however, worked solely in door inspection in the veneer department and did not work in the mineral core department.
Boyer reports that his father’s clothing was always dusty or dirty after work, and Boyer remembers hugging his father after he returned from work. Boyer also testified that his father’s car was a “dusty mess” and that he never cleaned it. (Boyer 6/16/14 Depo. (‘286 dkt. #71) 20; Boyer 6/18/14 Depo. (‘286 dkt. #72) 14-15.) In addition, Boyer helped his mother with the laundry beginning at age six or seven and until he was 12 or 13, which involved shaking dust and debris off of his father’s work clothes.
Finally, in 1966 and 1967, Boyer attended Marshfield Junior High School, which was located less than a mile from the plant. During that time, he played football after school on a field located directly across the street from Weyerhaeuser.
ii. Richard Masephol
Richard Masephol was diagnosed with mesothelioma on January 9, 2014. He passed away on May 3, 2015. Masephol was employed by Weyerhaeuser at the Marshfield facility from 1973 to 2014. From approximately 1974 to 1979, Masephol worked in the core mill operating saws for tonguing and grooving the mineral cores. His work required him to touch and move mineral cores. During that time, Masephol was personally monitored for asbestos exposure.
Masephol lived in Chili or Spencer, Wisconsin his entire life and attended grade school and high school in Granton, Wisconsin. Chili is approximately 10 miles from Marshfield, and Granton is approximately 20-25 minutes from Marshfield. Plaintiff represents that he attended a tech school in Marshfield for welding in 1974, but the record fails to disclose the location of that school. Before 1979, Masephol also testified that other than for work, he was within a mile of the plant approximately one or two times per week (for example, to go to the hardware store or the labor temple).
Masephol also claims he was exposed to asbestos by his father, who worked at the plant between 1948 and 1982. Masephol lived with his parents until 1984. Masephol acknowledged that he never knew about his father working in or being assigned to the area around the mineral core plant, but he also testified that his father worked in door inspection and drove a jimmy in the general factory. For at least one summer, he also worked for buildings and grounds on the roof. In those jobs -- particularly, in maintenance -- Masephol’s father may have been exposed to asbestos.
Masephol testified at his deposition that as he was growing up, his father would throw his work clothes on the floor after returning from work and that he only changed his work clothes once or twice a week. Masephol was also in close proximity to his mother when she would do the laundry, including his father’s work clothes. Finally, Masephol testified that he rode with his father to work for a couple of months and that his car was always dusty.
iii. Urban Pecher
On November 27, 2013, Urban Pecher was diagnosed post-mortem with peritoneal mesothelioma. Pecher was employed by Weyerhaeuser at the Marshfield facility from 1953 to 2000. Pecher’s duties included working in the detail department and hauling waste materials to the landfill. In his role in the detail department, Pecher worked on fire-rated doors, including doors with mineral core, and cut into the fire door cores for windows and other openings. Like Masephol, Pecher also was part of the asbestos surveillance program.
In 1961, Pecher and his wife moved to the 200 block of South Maple Street in Marshfield, located approximately 0.6 mile from the plant, and lived there for approximately five months. In 1969, Pecher moved to 402 North Peach Avenue, which is located approximately 0.51 mile from the plant, and lived at that residence for at least ten more years. While living at both of these residences, Pecher would walk or ride his bike to work.
In addition, Urban Pecher’s wife, Janet, testified that the laundry hung outside, the windshield of their vehicle and their window sills were at times covered with off-white dust that she believed was from the Marshfield plant, in part because it was the same color as the dust that came home on her husband’s clothing after work, though she admitted that she did not know the make-up or content of the dust she saw around her home.
iv. Valmore Prust
Valmore Prust was diagnosed with an asbestos-related lung disease in February 2009 and ultimately was diagnosed with lung cancer on January 7, 2010. Prust passed away on May 17, 2011. He was employed by Weyerhaeuser at the Marshfield plant from 1958 to 1979, and was exposed to asbestos through his employment. Prust also smoked one pack of cigarettes per day for more than 45 years, quitting in 2000.
From approximately 1955 until 1960, Prust lived at 811 East Fifth Street, located approximately 0.18 mile from the Weyerhaeuser plant. In 1963, the Prusts moved to 1518 South Locust Avenue, which plaintiffs represent is approximately 1.2 miles from the Weyerhaeuser plant, although Google Maps suggests it would be more like 1.4 miles. Prust also claims exposure through his wife’s work at Weyerhaeuser, though plaintiff acknowledges that Virginia Prust worked exclusively in the veneer department, where asbestos was not used. Still, plaintiffs contend that elevators were used to move dusty loads of veneer and other materials between the veneer department and other floors, including the mineral core area.
Prust also was a member of Immanuel Lutheran Church, located less than one mile from the Weyerhaeuser plant. Prust also claims exposure from his frequent visits to Miller’s QuickLunch, located approximately 0.13 miles from the Weyerhaeuser plant at 208 S. Palmetto, and Pete’s Bar located at 400 N. Central Ave., approximately 0.82 miles from the plant.
v. Roger Seehafer
Roger Seehafer was diagnosed with mesothelioma on November 8, 2013, and died February 23, 2015. Seehafer was employed by Weyerhaeuser at the Marshfield plant from 1955 to 1999. During his employment, Seehafer worked in door inspection, which typically involved his inspecting 100 to 200 doors each day. Some of those doors contained mineral core. At some point, Seehafer also worked in the detail department, which involved cutting and drilling holes into doors with a mineral core, as well as in the “mortising” department, which also involved cutting into door cores.
Seehafer lived outside of Marshfield in the towns of Spencer and McMillian until 1998, except for a few months in 1966 when he lived at his brother’s house at an unknown address in Marshfield. Seehafer also claims exposure to asbestos from 1955 to 1967 while delivering milk to a creamery across the street from the Marshfield facility. Finally, Seehafer claims exposure in 1965, from stopping by his ex-wife’s house, located on Arnold Street (less than a mile from the plant), for ten to fifteen minutes at a time to pick up his children about once a week.
vi. Wesley Sydow
Wesley Sydow was diagnosed with mesothelioma on February 24, 2014, and passed away on March 29, 2015. He was employed by Weyerhaeuser at the Marshfield plant from 1947 to 1990, holding several assignments including chief inspector, quality control manager, general fabrication supervisor, fabrication superintendent, and claims manager. Sydow testified that he was in the mineral core area at least on a daily basis.
From age eight to the present, Sydow has lived at various locations around Marshfield, including from 1957 to 1967, a house located at 800 South Palmetto Avenue, approximately 0.5 mile from the plant, and from 1967 to at least the time of his deposition, at 1800 South Cedar Street, approximately 1.1 mile from the plant. Despite their proximity to the plant, none of Sydow’s houses were tested for asbestos. When living at the South Cedar Street ...