United States District Court, E.D. Wisconsin
BEVERLY AHNERT, Individually and as Executrix of the Estate of Daniel Ahnert, Deceased. Plaintiffs,
EMPLOYERS INSURANCE COMPANY OF WAUSAU, SPRINKMANN SONS CORPORATION, WISCONSIN ELECTRIC POWER COMPANY, AND PABST BREWING COMPANY, Defendants. BEVERLY AHNERT, Individually and as Executrix of the Estate of Daniel Ahnert, Deceased. Plaintiffs,
EMPLOYERS INSURANCE COMPANY OF WAUSAU, PABST BREWING COMPANY, SPRINKMANN SONS CORPORATION, AND WISCONSIN ELECTRICT POWER COMPANY, Defendants.
DENYING MOTIONS FOR SUMMARY JUDGMENT FILED BY EMPLOYERS
INSURANCE COMPANY OF WAUSAU, WISCONSIN ELECTRIC POWER
COMPANY, AND PABST BREWING COMPANY (DKT. NOS. 52, 55, AND
58), GRANTING PLAINTIFFS' SECOND MOTION TO CONSOLIDATE
CASES 10-CV-1056 AND 13-1456 (DKT. NO. 89), GRANTING
PLAINTIFF'S MOTION FOR ORDER ON SCHEDULING DATES (DKT.
NO. 100), AND SETTING STATUS CONFERENCE
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
case comes to the court in an interesting procedural posture.
Plaintiff Beverly Ahnert has filed two cases in this
district, arising out of her husband's alleged exposure
to asbestos. Beverly and Daniel Ahnert filed this case after
Daniel Ahnert was diagnosed with non-malignant asbestosis,
and the case was transferred to Multidistrict Litigation
(MDL) 875 in the Eastern District of Pennsylvania for
discovery. Dkt. No. 1, 28. After Daniel Ahnert died of
mesothelioma, Beverly Ahnert filed the second case against
many of the same defendants, adding a wrongful death cause of
action. Case No. 13-cv-1456-cnc. That case has remained in
this district, but is assigned to a different judge.
Consequently, the same parties have conducted discovery and
filed summary judgment motions in as many as three courts
regarding the same alleged exposure. Notably, the MDL court
denied summary judgment motions filed by defendants
Sprinkmann Sons Corporation (“Sprinkmann”), Pabst
Brewing Company (“Pabst”), and Wisconsin Electric
Power Company (“Wisconsin Electric”) on the issue
of causation, but it severed the punitive and compensatory
damages claims before transferring the case back to this
court. Similarly, Judge Charles N. Clevert, Jr. denied the
summary judgment motions filed by these same defendants in
this district. Case No. 13-cv-1456-CNC.
stage, Sprinkmann, Pabst and Wisconsin Electric have moved
for summary judgment in this court, and those motions remain
pending. In addition, Beverly Ahnert has asked this court to
set dates, and has renewed her request to consolidate the two
cases. The court will deny the summary judgment motions,
consolidate the cases and set a status conference to discuss
all future proceedings.
Defendants' Motions for Summary Judgment (Dkt. Nos. 52,
August 4, 2014, the Eastern District of Pennsylvania court
denied summary judgment motions filed by Sprinkmann, Pabst,
and Wisconsin Electric, after finding that causation was an
issue for the jury. Dkt. Nos. 67-3, 67-4, 67-5. With respect
to Sprinkmann, the court denied summary judgment on the
ground that “a reasonable jury could conclude from the
evidence that Decedent was exposed to respirable asbestos
from insulation disturbed by Sprinkmann employees during
maintenance work such that it was a ‘substantial
factor' in the development of his illness.” Dkt.
67-3. At the same time, the court granted Sprinkmann's
motion with respect to exposure at “about six Milwaukee
Public Schools during the period 1958 to 1966.”
Id. The court denied both Pabst and Wisconsin
Electric's summary judgment motions on the issue of
causation. Dkts. 67-4 and 67-5. The MDL court then remanded
with instructions for this court to address the Wisconsin
construction statute of repose and the Safe Place Act. The
court severed the questions of punitive and compensatory
damages and retained those issues in the Eastern District of
received the order of the transferee court, this court
instructed Beverly Ahnert, Sprinkmann and Pabst to file
simultaneous motions for summary judgment only on the issues
of the statute of repose and the Safe Place Act. Dkt. No. 44.
The court later granted an extension of time for Sprinkmann
and Pabst to update their motions for summary judgment on
those same two issues.
the court's instructions, Wisconsin Electric, Sprinkmann
and Pabst filed motions for summary judgment, not only on the
issues the court identified, but on causation and punitive
damages. Dkt. Nos. 52, 55, and 58. Beverly Ahnert filed a
supplemental response with exhibits, but chose to follow the
briefing format used in the Eastern District of Pennsylvania,
rather than the Civil Local Rules of this district.
See Civil L.R. 56(b)(2)(B)(E.D. Wis.).
court has determined that genuine issues of material fact
preclude the grant of summary judgment as to the remaining
defendants. The court will issue separate orders, explaining
its reasons for its conclusions.
Plaintiffs' Second Motion to Consolidate Cases
November 28, 2014, Beverly Ahnert moved to consolidate the
two cases pending in this district: this case, and
13-cv-1456-CNC. Dkt. No. 35. During the April 6, 2015,
hearing on that motion, the court noted the different
procedural postures of the cases, the additional defendants
named in 13-cv-1456-CNC and the additional cause of action in
13-cv-1456-CNC (wrongful death). Dkt. No. 44. On September 3,
2015, this court denied the consolidation motion without
prejudice, noting the “veritable avalanche of
pleadings” filed in Case No. 13-cv-1456-CNC since
April. Dkt. No. 79. The court permitted the parties to renew
the motion “at such time as it appears that the cases
are more congruent in terms of readiness for trial.”
Id. On February 23, 2016, the plaintiffs filed a
second motion to consolidate cases, and attached Judge
Clevert's orders denying summary judgment. Dkt. No. 89.
Sprinkmann, Employers Insurance of Wausau and Wisconsin
Electric filed a joint brief in opposition to plaintiffs'
motion to consolidate, citing the pending summary judgment
motions and asking that if the court denied those motions, it
give them time to address the potential conflicting scope of
admissible evidence in the two cases. Dkt. No. 91.
the Federal Rule of Civil Procedure Rule 42(a), if multiple
actions “before the court involve a common question of
law or fact, the court may: join for hearing or trial any or
all matters at issue in the actions; (2) consolidate the
actions; or (3) issue any other orders to avoid unnecessary
cost or delay.” In deciding whether to consolidate
cases, courts exercise broad discretion, and the rule was
designed to encourage consolidation where possible.
United States v. Knauer, 149 F.2d 519, 520 (7th Cir.
1945). The Seventh Circuit prefers to avoid unnecessary
duplication of efforts in related cases and promote judicial
economy and efficiency. See Equal Employment Opportunity
Comm.'n v. G-K-G, Inc., 39 F.3d 740, 745 (7th
Cir.1994). Courts should not consolidate cases if
consolidation would lead to confusion or prejudice.
Knauer, 149 F.2d at 520.
appears that the two cases involve a common core of factual
questions and legal issues. Fact witnesses and experts will
testify regarding exposure and medical causation, and their
testimony likely is relevant to both cases. The summary
judgment submissions indicate that the factual questions will
involve similar witnesses and exhibits. The parties will need
to address the issues created by the scope of discovery in
the MDL versus the wrongful death case. In the absence of
consolidation, there is a risk that two judges would preside
over two trials with inconsistent rulings or ...