United States District Court, E.D. Wisconsin
MEMORANDUM OF LAW SUPPORTING THE COURT'S DENIAL
OF WISCONSIN ELECTRIC POWER COMPANY'S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 52)
PAMELA PEPPER United States District Judge.
Daniel and Beverly Ahnert filed this asbestosis case on
February 25, 201. Dkt. No. 1. The complaint alleged that
plaintiff Daniel Ahnert had been exposed to asbestos, which
had caused his medical condition. On May 4, 2010, the United
States Judicial Panel on Multidistrict Litigation transferred
the case to the federal court for the Eastern District of
Pennsylvania, where Judge Eduardo C. Robreno was presiding
over multidistrict litigation (“MDL”) involving
thousands of asbestosis cases. Dkt. No. 28.
two and a half years later, Beverly Ahnert-individually, and
as the executrix of the estate of Daniel Ahnert (who since
had passed away)-filed a new case in the Eastern District of
Wisconsin. Ahnert v. Employers Ins. Co. of Wausau, et
al., Case No. 13-cv-1456-cnc (E.D. Wis.) (“the
2013 case”) alleged that on July 7, 2011, Daniel Ahnert
had passed away as a result of asbestos-related diseases.
This case was assigned to Judge Charles N. Clevert; it was
not transferred to an MDL court.
September 8, 2014-while the 2013 case was pending before
Judge Clevert-the MDL court remanded this case back to the
Eastern District of Wisconsin. Dkt. No. 34. In his suggestion
of remand order, Judge Robreno stated that he had denied the
summary judgment motions filed by defendants Pabst Brewing
Company and Wisconsin Electric Power Company; he had granted
in part and denied in part defendant Sprinkmann Sons
Corporation's motion for summary judgment. Dkt. No. 34-1
at 6-7. Judge Robreno found that the case was ready for trial
(subject to any trial-related motions in limine and
Daubert motions). Dkt. No. 34-1 at 7. He severed
“[a]ny demand for punitive damages, ” and the MDL
court retained “claims for punitive or exemplary
damages.” Id. In a footnote, Judge Robreno
noted that he was severing the issue of punitive damages with
regard to all of the cases in the MDL proceeding.
Id. at 8, n.1.
months later, Beverly Ahnert moved to consolidate this case
with the 2013 case. Dkt. No. 35. This court deferred ruling
on that motion until Judge Clevert could decide the
outstanding motions for summary judgment in the 2013 case.
Dkt. No. 44. The court also ordered that defendants Pabst and
Sprinkmann could “update” their summary judgment
motions (the ones upon which Judge Robreno had ruled) on two
discrete issues that Judge Robreno did not address: the
Wisconsin Construction Statute of Repose (“CSOR”)
and the Safe Place Act. Id.
court issued a second, text-only order, extending the
deadline for Sprinkmann and Pabst to file their updates on
these issues. Meanwhile, Wisconsin Electric-whom the court
had not given permission to update its summary
judgment motion-filed a summary judgment motion. Dkt. No. 52.
In its brief, Wisconsin Electric asked for summary judgment
based on the Safe Place Statute and the CSOR. With regard to
the Safe Place Statute, Wisocnsin Electric argued that
plaintiff Daniel Ahnert had been employed by an independent
contractor while working on its premises. It asserted that
because Wisconsin law provides that a principal employer is
not liable in tort for injuries sustained by the employee of
an independent contractor, and because neither of the two
exceptions to that rule applied, Wisconsin Electric was not
liable to the plaintiffs for his injuries. With regard to the
CSOR, it argued that the work done by Ahnert and others
constituted an improvement to the property, and not
maintenance. Finally, it argued that the plaintiffs were not
entitled to punitive damages. Dkt. No. 53.
the court's instructions, Sprinkmann (dkt. no. 55) and
Pabst (dkt. no. 58) filed new summary judgment
motions (although Pabst captioned its motion as an amended
January 6, 2016, Judge Clevert denied Employers' and
Sprinkmann's motion for summary judgment in the 2013
case. Ahnert v. Employers Insurance of Wausau, Case
No. 13-cv-1456-cnc at Dkt. No. 199. The next day, he denied
Pabst's motion for summary judgment. Id. at Dkt.
No. 200. A couple of weeks later, he denied Wisconsin
Electric's motion for summary judgment. Id. at
Dkt. No. 201. The plaintiffs then filed another motion in
this court, asking the court to consolidate the two cases.
Dkt. No. 89.
March 31, 2017,  this court denied the defendants'
pending summary judgment motions, and granted the
plaintiffs' second motion to consolidate the two cases.
Dkt. No. 101.
the fact that the court did not authorize Wisconsin Electric
to update its summary judgment motion on the Safe Place and
CSOR issues, the court has considered the defendant's
arguments on those issues. The court finds that genuine
issues of material fact preclude summary judgment on the
issue question of whether the Safe Place Statute and the CSOR
bar the plaintiffs' claims, and will deny the
defendant's motion for summary judgment on those issues.
The court will not address the defendant's arguments on
the issue of punitive damages, because Judge Robreno retained
all punitive damages issues for decision by the MDL court.
SUMMARY JUDGMENT STANDARD
requires that a moving party identify each claim or defense
on which the party seeks summary judgment. Fed.R.Civ.P.
56(a). If the moving party can show there is no genuine issue
of material fact and an entitlement to judgment as a matter
law, the court should grant the motion. Id. However,
to prove there are no genuine, factual disputes, the moving
party must support the motion with citations to the record,
such as “depositions, documents . . . affidavits or
declarations, stipulations.” Fed.R.Civ.P. 56(c)(1)(A).
The moving party may show “that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). In
ruling, the court may consider the other materials in the
record and not judgment just those cited by the parties.
FINDINGS OF FACT
Beverly Ahnert resides in White Settlement Texas, where she
lived with Daniel Ahnert prior to his death on July 7, 2011.
Dkt. No. 1 at ¶1; Dkt. No. 53-7. The complaint contains
allegations that Daniel Ahnert was exposed to and inhaled
airborne asbestos fibers released while he was using or
removing such products, or was working in proximity to others
using or removing such products. Dkt. No. 1 at ¶25. Dr.
Stephen Haber determined that Daniel Ahnert developed
asbestos-related pleural disease from his occupational
exposure to asbestos. Dr. Haber further opined, based on
Ahnert's work history, that the cumulative asbestos
exposure contributed to his disease. Case No. 10-cv-67443
(E.D. Pa.), Dkt. No. 396-4.
plaintiffs allege that Wisconsin Electric is the “owner
or operator of premises where asbestos products were
used.” Dkt. No. 1 at ¶15. There are three
Wisconsin Electric facilities relevant to this case: the Oak
Creek Power Plant, Port Washington and Lakeside. Id.
at ¶¶48-57, Ex. B.
MDL litigation before Judge Robreno, the plaintiffs produced
Wisconsin Electric's 1958 contracts with the companies it
hired to install insulation materials for Unit 5 in the Oak
Creek Power Plant. Case No. 10-67443 (E.D. Pa.), Dkt. No.
396-18, 19 and 20. Wisconsin Electric provided insulation
requirements to bidders, and the products contained asbestos.
Id. at 396-13 at 5154, 396-18-20. Its contract with
Sprinkmann (one of the companies retained to provide and
install insulation) provided specifications for materials
containing asbestos. Id. at 396-17, 37 at ¶
52138. Asbestos was used throughout the boiler. Id.
at 396-16, 18-20.
1980s, Daniel Ahnert and other co-workers began to work on
the burner deck of Unit 5 at the Oak Creek Power Plant. Jon
Shorougian-who, like Ahnert, had been a member of Local
601-testified that Ahnert was his partner for six months, and
that the work involved overtime hours (shifts longer than
eight hours). Case No. 10-156, Dkt. No. 64-5 at 6, 20. The
insulation removal was done in part by Sprinkmann, but
Wisconsin Electric told Shorougian and Ahnert that they, too,
were safe to remove the insulation. Id. at 9, 11,
12, 18, 49, 50. The insulation removal made the surrounding
environment “always really dusty.” Id.
to Shorougian, he and Ahnert were “replacing some of
the old coal-fired pieces with natural gas-fired pieces,
which involved a lot of cutting, grinding, [and]
welding.” Id. at 7. Coal was the main process
of burning fuel, even after the additional of gas nozzles to
the burner deck. Id. at 14. The replacement process
involved tearing off casing to reveal insulation that went
from the floor up to the burner deck, twenty-five to thirty
feet up. Id. at 8, 10, 11. Behind the boiler jacket
was a fibrous insulation material, both hard and soft.
Id. at 9. The brick insulation underneath the boiler
was soft and crumbly. Id. at 10.
testified that Wisconsin Electric initially told him and
Ahnert that the insulation was not asbestos, so they
continued to strip the boiler down to the fibrous material
like insulation. Id. at 9. But, as the facility
became “really dusty, ” the workers began to
worry, and they “took a sample and gave it to one of
[the] union representatives and asked him to have it tested
… and found out it was positive.” Id.
at 12. Both Shorougian and Ahnert still were on the job when
the results came back. Id. at 50.
were approximately sixteen gaskets inside the boiler that
Shorougian and Ahnert were removing. Id. at 14, 15
and 74. The gaskets were eight by eight inches, and took
about an hour each to remove. Id. at 74. Shorougian
and Ahnert's noses were about six to eight inches away
from this work, and they breathed the gasket dust.
Id. at 75. The gaskets were removed and a scraper or
power grinder with a wire wheel was used to clean up the
faces of the gaskets. Id. at 15, 74. Shorougian and
Ahnert also removed the metal cover on the burner deck, which
disturbed insulation material. Id. at 76. Dust would
be kicked up, and would float around the areas where they
were working. Id. Finally, there were bricks and
insulation between the floors, that the workers believed
contained asbestos. Id. at 47.
Sprinkmann employees on site worked to install and remove the
insulation. Id. at 16-17, 89-90. Dust was in the
air, but Wisconsin Electric assured the workers that there
were no hazardous materials. Id. at 18. The foreman
of Foster Wheeler (a company which manufactured and sold
insulation products) worked with a Wisconsin Electric engineer.
Id. at 34-35. The Wisconsin Electric ...