United States District Court, W.D. Wisconsin
JANE MOSS, individually and as Special Administrator of the Estate of Harry M. Moss, Plaintiff,
TRANE U.S., INC., Defendant.
OPINION AND ORDER
BARBARA B. CRABB, District Judge
Plaintiff Jane Moss filed this civil action on behalf of her deceased husband, Harry M. Moss, who died in 2013 from lung cancer. Plaintiff contends that her husband’s cancer was caused by his exposure to asbestos-containing materials used to insulate and maintain boilers. Soon after the case was filed, it was transferred to the Eastern District of Pennsylvania for consolidated pretrial proceedings as part of multidistrict litigation. Now that the case has been remanded, defendant Trane U.S., Inc. has moved for summary judgment on two grounds. First, defendant argues that it did not assume the liabilities at issue when it purchased American Standard (a company that manufactured some of the boilers on which Moss worked). Second, defendant argues that it cannot be held liable because American Standard did not manufacture, distribute or specify the use of the asbestos-containing materials that caused plaintiff’s injuries.
I am granting defendant’s motion for summary judgment on the second of these two grounds. Although I will not revisit Judge Eduardo Robreno’s finding that defendant Trane assumed American Standard’s liabilities, I agree with defendant that under the so-called “bare metals defense, ” it cannot be held liable for injuries that were caused by products American Standard did not manufacture, distribute or specify be used. To hold defendant liable for American Standard’s failure to warn about the risks associated with third-party products based simply on the fact that American Standard could foresee the possibility that such products might be used in connection with its own products would amount to an unprecedented expansion of Wisconsin law governing the duty of care manufacturers owe to consumers.
From the parties’ summary judgment materials and the record, I find that the following facts are material and not subject to genuine dispute.
Harry Moss worked with various boilers in Wisconsin from approximately 1951 to 1968. His work brought him frequently into contact with asbestos-containing materials, such as asbestos-containing insulation, firebrick (a type of refractory material used to line boilers), gaskets and rope packing. On January 18, 2010, Moss learned he had lung cancer and asbestosis. He died less than a month later, on February 14, 2010. Plaintiff filed strict liability and negligence claims against thirteen companies, including defendant Trane U.S., Inc., as successor to American Standard, Inc.
American Standard previously manufactured and distributed various models of boilers under the brand name “Kewanee.” For the most part, Kewanee boilers were sold as “bare metal” products, that is, at the time of their sale, they were not insulated or lined with any asbestos-containing materials. All decisions regarding whether and how to insulate the boilers, whether to incorporate asbestos-containing refractory materials and whether to replace any of the boiler’s components, were the responsibility of the person or entity purchasing, installing and maintaining the boilers. American Standard did not require, specify or recommend the use of asbestos-containing materials; and American Standard’s Kewanee boilers were not designed specifically for asbestos-containing materials. Although some Kewanee boilers did contain certain original asbestos-containing components, such as gaskets and rope packing, these components would wear out and need to be replaced within one to two years.
Moss occasionally worked on Kewanee boilers, and as a result, was exposed to insulation and refractory materials that contained asbestos. Moss was also exposed to replacement gaskets for various boilers (including, potentially, Kewanee boilers) that may have contained asbestos. However, there is no evidence that any of these asbestos-containing materials were manufactured, distributed or specified by American Standard. Invariably, the gaskets, insulation and refractory materials Moss installed or removed from Kewanee boilers were manufactured, distributed and purchased by third-parties.
A. Trane’s Liability for American Standard’s Alleged Negligence
A threshold issue is defendant’s argument that it cannot be held liable for any claims related to Moss’s exposure to asbestos because these liabilities were transferred to another company, Oakfabco, Inc., in 1970 when Oakfabco bought American Standard’s Kewanee Boiler Division. According to defendant, as a result of this sale, American Standard had divested itself of the liabilities at issue before defendant and American Standard merged in 1984.
I am rejecting defendant’s argument that American Standard had divested itself of all liability associated with Kewanee’s boilers before defendant’s merger with American Standard for the same reasons that Judge Robreno cited when he rejected this argument during the consolidated pretrial proceedings. In his order denying defendant’s motion for summary judgment, and then again in his order denying defendant’s motion for reconsideration, Judge Robreno found that the 1970 Purchase Agreement, which defendant contends transferred American Standard’s liabilities to Oakfabco, “does not preclude American Standard’s (and now, by way of merger, Defendant Trane’s) liability for asbestos claims arising in connection with Kewanee boilers.” Order Denying Mot. Summ. J., 13-cv-60004-ER, dkt. #117 at 6. Judge Robreno concluded that the 1970 Purchase Agreement transferred only liabilities that were “existing and outstanding as of [January 29, 1970]” and that the claims in this case did not accrue until after that date. Id. at 7. Defendant has not shown that Judge Robreno’s ruling on this issue was clearly erroneous. Motorola Mobility, Inc. v. AU Optronics Corporation, No. 09-C-6610, 2014 WL 258154, at **4-5 (N.D. Ill. Jan. 23, 2014) (applying “clear error” standard to motion asking transferor court to re-visit issues on remand that were decided by MDL court). Accordingly, defendant’s motion for summary judgment on this issue is denied again. Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202 n.5 (7th Cir. 1996) (“It would vitiate much of the purpose of consolidating litigation if, after remand, parties could simply re-visit the transferee court’s pre-trial rulings[.]”).
Plaintiff’s complaint sets forth both strict liability and negligence claims against defendant Trane as successor to American Standard. Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), I am required to apply Wisconsin state law when it comes to substantive matters governing these claims and federal law to any procedural issues. When applying state substantive law I must construe the law as enacted by Wisconsin’s legislature and declared by Wisconsin’s supreme court. Home Valu, Inc. v. Pep-Boys-Manny, Moe and Jack of Delaware, Inc., 213 F.3d 960, 963 (7th Cir. 2000). If the Wisconsin supreme court has not addressed a substantive issue in dispute, I must attempt to predict how it would decide the issue. Rodman Industries, Inc. v. G & S Mill, Inc., 145 F.3d 940, 942-43 (7th Cir. 1998). In attempting to discern how such an issue would be decided by the Wisconsin supreme court, “federal courts treat decisions by intermediate appellate courts as authoritative, unless . . . a split among those courts makes such ...