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Boyer v. Weyerhaeuser Co.

United States District Court, W.D. Wisconsin

May 5, 2016

KATHY BOYER, Individually and as Special Administrator on behalf of the Estate of Milton Boyer, Plaintiff,
v.
WEYERHAEUSER COMPANY, Defendant. BRIAN HECKEL, Individually and as Special Administrator on behalf of the Estate of Sharon Heckel, Plaintiff,
v.
CBS CORP., GENERAL ELECTRIC CO., METROPOLITAN LIFE INSURANCE COMPANY, and WEYERHAEUSER COMPANY, Defendants. DIANNE JACOBS, Individually and as Special Administrator on behalf of the Estate of Rita Treutel, Plaintiff,
v.
RAPID AMERICAN CORPORATION, and WEYERHAEUSER COMPANY, Defendants, RAPID AMERICAN CORPORATION, Cross-claimant,
v.
WEYERHAEUSER COMPANY, Cross-defendant. KATRINA MASEPHOL, Individually and as Special Administrator on behalf of the Estate of Richard Masephol, Plaintiff,
v.
WEYERHAEUSER COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants. VIRGINIA PRUST, Individually and as Special Administrator on behalf of the Estate of Valmore Prust, Plaintiff,
v.
WEYERHAEUSER COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants. JANICE SEEHAFER, Individually and as Special Administrator on behalf of the Estate of Roger Seehafer, Plaintiff,
v.
WEYERHAEUSER COMPANY, Defendant. THERESA SYDOW, Individually and as Special Administrator on behalf of the Estate of Wesley Sydow, Plaintiff,
v.
WEYERHAEUSER COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants

OPINION AND ORDER

WILLIAM M. CONLEY District Judge.

In each of the above-captioned cases, plaintiffs filed a “motion for reconsideration and clarification regarding February 19, 2016, decision and, alternatively, for leave to amend complaints.” (See, e.g., Boyer, No. 14-cv-286 (dkt. #470).) While not all of the bases apply to each of the cases, plaintiffs as a group seek reconsideration of one or more of the following rulings: (1) the court’s grant of summary judgment based in part on defendant Weyerhaeuser’s Daubert motion as to plaintiffs Jacobs, Masephol and Seehafer; (2) “extending” the exclusivity provision of the Wisconsin’s Workers Compensation Act to an employee’s take-home asbestos exposure; and (3) the court’s grant of summary judgment in Weyerhaeuser’s favor on plaintiffs’ private nuisance claims. The court will address each argument in turn, rejecting all as grounds for reconsideration.[1]

OPINION

I. Standard

Given plaintiffs counsel’s proclivity for seeking reconsideration, the standard is a familiar one in these cases. The Federal Rules of Civil Procedure do not contemplate a “motion for reconsideration, ” but do allow for a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) if “filed no later than 28 days after entry of the judgment.” In five of the above cases, judgment has been entered, and plaintiffs filed their motions for reconsideration within 30 days of entry of judgment in each of those cases. In Boyer and Sydow, the two remaining cases proceeding to trial on plaintiff’s respective public nuisance claim against Weyerhaeuser, the court will also apply the standard of Rule 59(e), consistent with the parties’ approach. (See Pl.’s Mot. (‘286 dkt. #470) 5 (citing Rule 59(e) for all seven cases); Def.’s Opp’n (‘286 dkt. #477) 6-7 (describing standard under Rule 59(e)).)

The decision to grant or deny Rule 59(e) relief is entrusted to the district court’s sound judgment. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995). “To prevail on a motion for reconsideration under [Rule 59(e)], the movant must present either newly discovered evidence or establish a manifest error of law or fact.” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). “A ‘manifest error’ is not demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize controlling precedent.’” Id. (citation omitted).

Consistent with this standard, Rule 59(e) is not meant to allow the parties “merely to relitigate old matters.” Diebitz v. Arreola, 834 F.Supp. 298, 302 (E.D. Wis. 1993). In particular, Rule 59(e) may be used neither to raise novel legal theories that should have been presented earlier, Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995), nor to “provide a vehicle for a party to undo its own procedural failures, ” Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000) (citation omitted). See also Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 729 (7th Cir. 1999) (Rule 59(e) “does not allow a party to introduce new evidence or advance arguments that could or should have been presented to the district court prior to the judgment.”) (quotation marks and citation omitted). Indeed, plaintiffs’ counsel’s repeated filing of motions for reconsideration in an attempt to paper over prior inadequate responses demonstrates the very reason for this standard.

II. Bases for Reconsideration

A. Grant of Summary Judgment to Weyerhaeuser in Jacobs, Masephol and Seehafer

Plaintiffs seek reconsideration of the court’s granting of summary judgment with respect to plaintiffs Jacobs/Treutel, Masephol and Seehafer. For Jacobs/Treutel and Masephol, plaintiff contends that the court erred in its treatment of evidence of those plaintiffs’ exposure to asbestos based on family members bringing asbestos home on their work clothing. The court credited both Jacobs/Treutel’s evidence of her husband working at the plant and her daughter working in the mineral core area, as well as Masephol’s evidence of his father working at the plant. Nevertheless, the court found the evidence insufficient for experts to testify reliably that the exposure from family members constituted a substantial contributing factor either because of limited concentration (i.e., the family member did not work in the department handling asbestos core) or length (i.e., a family member worked in the plant for only a matter of months). (See 2/19/16 Op. & Order (dkt. #464) 16-17, 22, 47-50.)

Plaintiff Seehafer also challenges the court’s conclusion that his alleged community exposure from delivering milk to a dairy located one or two blocks from the plant, seven days a week, from 1955 until 1967, formed an insufficient basis from which plaintiffs’ experts could testify reliably that this alleged exposure substantially contributed to his mesothelioma diagnosis. (See Id. 47, 49.) Plaintiffs’ own expert recognized that there were no studies confirming increased incidence of asbestos-related diseases. (Id. at 47.) More specifically, studies suggest some statistically significant, measurable impact on risk of mesothelioma for individuals residing within the 1.25 mile zone of risk for a substantial period of time, while the court has been made aware of no valid study suggesting a measurable increased risk for regularly driving through such a zone. Absent any supporting epidemiological studies, plaintiffs’ experts lacked a reliable foundation from which they could conclude that Seehafer’s activities within the zone of risk would expose him to sufficient asbestos emissions to constitute a substantial contributing factor to his mesothelioma diagnosis, even if they may have a sufficient basis to opine that it was a contributing factor. For the same reasons explained in the court’s summary judgment opinion, plaintiffs’ motion effectively ignores the standard for demonstrating that the non-occupational exposure was a substantial contributing factor, rather than simply a factor. (Id. at 50-52.) The court finds no error in its treatment of the record at summary judgment or in its application of the law, including the standards for expert testimony under Rule 702 and Daubert.

As part of their motions, plaintiffs also challenge the court’s treatment of “substantial contributing factor.” Specifically, plaintiffs take issue with the court’s reliance on the Seventh Circuit’s opinion in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), a case discussing the causation requirement in asbestos cases, albeit applying Illinois law, and in particular the court’s consideration of “the frequency, regularity, and proximity of exposure” in determining whether the causation requirement is met. (2/19/16 Op. & Order (dkt. #464) 42-44.) In their motions for reconsideration, plaintiffs direct the court to Zielinski v. A.P. Green Indus., Inc., 2003 WI.App. 85, ¶ 18, 263 Wis.2d 294, 661 N.W.2d 491, arguing that the court rejected this test.

While the court in Zielinski “declined to adopt a bright-line rule regarding causation for fear of over-simplifying such a complex issue, ” the court nonetheless noted that “the bright-line tests [are] useful in establishing important factors to be considered.” Zielinski v. A.P. Green Indus., Inc., 2003 WI.App. 85, ¶ 18, 263 Wis.2d 294, 661 N.W.2d 491. Moreover, the court simply considered those factors in determining whether there was sufficient evidence of significant exposure to support an expert opinion that ...


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