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Suoja v. Owens-Illinois, Inc.

United States District Court, W.D. Wisconsin

September 30, 2016

GARY SUOJA, Individually and as Special Administrator of the Estate of OSWALD SUOJA, Deceased, Plaintiff,
v.
OWENS-ILLINOIS, INC., Defendant.

          OPINION AND ORDER

          STEPHEN L. CROCKER Magistrate Judge

         On December 29, 1996, Oswald “Ozzie” Suoja died from mesothelioma, a form of cancer closely associated with asbestos exposure. There is no dispute that exposure to asbestos caused Suoja's illness: he had a 40-year career as a union asbestos worker during which he worked with numerous asbestos-containing products. In 1999, Suoja's wife filed this lawsuit against defendant Owens-Illinois, Inc. on her own and Suoja's behalf. (She later was replaced as plaintiff by their son Gary, who is administrator of Suoja's estate). The lawsuit asserts causes of action for negligence and strict liability based on the fact that from January 1948 and April 30, 1958, Owens-Illinois manufactured and sold an asbestos-containing pipe insulation called “Kaylo.” Plaintiff alleges that Suoja was exposed to asbestos dust from this particular product while doing pipe insulation and repair at the Badger Ordnance Works in Sauk County, Wisconsin, that this exposure was a substantial cause of his mesothelioma, and that defendant is either strictly liable or negligent for including asbestos in its insulation product and/or failing to warn Suoja that working around dust from Kaylo would expose him to an unreasonable risk of harm.

         Plaintiff's suit was originally assigned to District Judge Barbara Crabb. In September 1999, the Judicial Panel on Multidistrict Litigation ordered the case transferred to the Eastern District of Pennsylvania for pretrial proceedings, where it remained until it was remanded back to Judge Crabb in January 2014. Dkts. 3, 11. After a number of unsuccessful motions by defendant to dismiss the case, see dkts. 67, 114, the parties withdrew their jury demands and consented to magistrate judge jurisdiction over a bench trial. Dkt. 134. I held a bench trial on November 30 to December 2, 2015, allowing the parties virtually free rein to present evidence with the understanding that they would be able to raise evidentiary objections in post-trial briefs. Following the trial, the parties submitted post-trial briefs, including numerous evidentiary objections, and responses. See Dkts. 201, 205, 209. The case now is before the court for findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

         After examining the entire record, considering the arguments of counsel, and determining the credibility of the witnesses, I find that plaintiff has failed to meet his burden of showing by the greater weight of the credible evidence that Suoja was exposed to Kaylo at Badger Ordnance. Further, even if Suoja might have been exposed to Kaylo at Badger Ordnance, plaintiff has not met his burden of showing that any such exposure was a substantial cause of Suoja's mesothelioma. Having failed to prove key elements of his claims of strict liability and negligence, plaintiff cannot prevail. Therefore, I am entering judgment for defendant and dismissing plaintiff's case.

         The court's findings of fact and conclusions of law with respect to these two elements of plaintiff's claims are set forth below:

         I. FINDINGS OF FACT[1]

         A. The Parties

         Plaintiff Gary Suoja (“plaintiff”) is a resident of the state of Washington. He is the son of Oswald “Ozzie” Suoja (“Suoja”) who died on December 29, 1996. Suoja was a resident of Douglas County, Wisconsin at the time of his death. Suoja was an asbestos insulation worker from about 1943 until his retirement in 1984. On January 28, 1944, Suoja became a card-carrying member of the International Association of Heat and Frost Insulators and Asbestos Workers Union. In bankruptcy trust submissions and discovery responses from a prior state court lawsuit, Suoja's estate admitted that he sustained asbestos exposure from a long list of products and job sites. Dkt. 205, Def.'s. PPFF 62-64.[2]

         Defendant Owens-Illinois is incorporated in Delaware with its principal place of business in Ohio. Owens-Illinois is and has always been a glass manufacturing company. One of the raw materials in the manufacture of glass is silica. In the1940s, Owens-Illinois developed a thermal insulation product composed of lime, silica, diatomaceous earth, clay and approximately 13 to 25 percent asbestos. Between January 1948[3] and April 30, 1958, Owens-Illinois commercially manufactured and sold this asbestos thermal insulation product, which was called “Kaylo.” Kaylo was a pre-cast, rigid, hydrous calcium-silicate insulation, referred to generically as a “calsil” product, used to insulate at temperatures above 600º F. Owens-Illinois Kaylo was hard, cementitious, and insoluble in water. Owens-Illinois stopped manufacturing and selling Kaylo on April 30, 1958, when it sold the Kaylo Division to a separate company, Owens Corning Fiberglas. Between May 1, 1958 and 1972, Owens Corning Fiberglas produced its own “Kaylo” asbestos thermal insulation product.

         B. Badger Ordnance Works

         Plaintiff alleges that Suoja was exposed to Owens-Illinois Kaylo while removing or installing pipe insulation at Badger Ordnance Works. Badger Ordnance Works, later known as Badger Army Ammunitions Plant, was a government-owned, contractor-operated ammunition plant built during World War II by the United States Army Corps of Engineers. It is located on more than 7, 500 acres in Sauk County, Wisconsin, just north of Madison. Construction of the plant began in 1942 and continued until August 13, 1945. Upon completion in 1945, the plant had a large on-site steam power plant that provided heat and some power through a network of approximately 200 miles of elevated steam lines to more than 1, 400 buildings.[4]

         At trial, defendant presented the testimony of expert witness Peter Neushul, Ph.D., a historian who specializes in the history of 20th century United States technology and science. Defendant retained Dr. Neushul to examine the history of Badger Ordnance Works, including its construction. Dr. Neushul's examination of primary historical documents uncovered construction records showing that Asbestos & Magnesia Materials Company (“A&M”) was awarded contracts to insulate the outside steam lines during initial construction at Badger Ordnance Works. A&M was a contractor and distributor of Johns-Manville asbestos insulation, which was an 85% magnesia asbestos insulation product. Photographic evidence introduced at trial shows asbestos workers at Badger Ordnance in 1944 installing Johns Manville 85% magnesia asbestos insulation and a storage room filled with JM insulation in 1944.[5] On the photographs, the Johns Manville insulation is bright white in appearance. Def. Ex. 1868, at 1-3; Ex. 1868, at 1-3.

         Dr. Neushul testified about differences between 85 percent magnesia asbestos products- like the insulation that Johns-Manville installed during the initial construction of Badger Ordnance-with calcium silicate (“calsil”) asbestos products-like Kaylo. Dkt. 195, at 108-110. According to Dr. Neushul, calsil products were developed later but both types of insulation continued to be sold and used at the same time. Calsil products were tactilely harder and were insoluble in water, and therefore much more resistant to weathering than water-soluble 85 percent magnesia asbestos products.

         There is no documentary evidence in the record-no photographs, no records, nothing-that shows or even suggests that any Owens-Illinois Kaylo insulation was installed at Badger Ordnance during the initial construction from 1942 to 1945, or that any Kaylo was sold to any contractors who performed work at Badger during that time period.

         At the end of WWII, Badger Ordnance was mothballed until 1954-1955, when new facilities for the manufacture of ball powder propellant were constructed as a result of the Korean War. Additional steam lines might have been installed at that time, but it is unclear how many. Sales invoices dated May-July 1954 show shipments of 5, 247 linear feet of Owens-Illinois Kaylo to Sprinkmann Sons Corporation, an insulation contractor from Milwaukee that worked at Badger Ordnance during that time.[6] (Although Suoja had worked at Sprinkmann Sons from 1943-1951, he was not working there in 1954.) There is no objective evidence showing where at Badger Ordnance any of this Kaylo was used, who installed it, how long it remained in place, or when-if ever-it was removed or by whom.

         Badger Ordnance was mothballed again from 1958 to 1965. Production resumed in 1966 for the Vietnam War but stopped completely by January 1975.

         C. Suoja's Employment

         Suoja's Social Security records show the following periods and places of employment:

• 1943-1951 Sprinkmann Sons, Milwaukee, WI
• 1954-1968 McDermaid Roofing & Insulating, Rockford, IL
• 1968-1977 L&S Insulation Co., Milwaukee, WI

         D. Product Identification Evidence

         At trial, plaintiff presented the deposition testimony of two insulators, Lawrence Zimmer and George Schlub[7], who testified that they worked with Suoja at Badger Ordnance removing deteriorated Kaylo insulation from overhead steam lines. Zimmer, who testified on February 2 and February 3, 2012, said that he worked as a helper-apprentice for L&S Insulation at Badger Ordnance about 53 years earlier, in late 1958; while there, he was in the presence of other insulators who were removing Kaylo insulation that had been in place for “over a year.” Zimmer said he knew it was Kaylo because it was “smooth and white.” Dkt. 155, at 25-27. With respect to Suoja, Zimmer offered the following testimony:

Q: [Did you work with] a fellow by the name of Oswald Suoja?
A: Yes.
Q: Was he also an insulator like yourself?
A: Yes.
Q: Was he out at Badger Ordinance?
A: Yes.
Q: Was he there in the ‘50s like ...

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