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Kilty v. Weyerhaeuser Co.

United States District Court, W.D. Wisconsin

April 17, 2018

PAMELA KILTY, individually and as Special Administrator of the Estate of Elvira Kilty, PAUL J. KILTY, DAVID L. KILTY, WILLIAM J. KILTY and JAMES S. KILTY, Plaintiffs,
v.
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants. SCOTT SPATZ, individually and as Special Administrator of the Estate of Herbert Spatz, Plaintiff,
v.
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         These are the two most recent cases asserting asbestos-related claims against defendant Weyerhaeuser Company, among other defendants. Elvira Kilty and Herbert Spatz, both deceased, are former Weyerhaeuser employees. In an end around the Wisconsin Worker's Compensation Act's exclusivity provision, their estates and respective family members assert claims against Weyerhaeuser based on non-workplace exposure - so-called “community exposure” to asbestos. Weyerhaeuser nevertheless moves to dismiss those claims based on a variety of arguments, the most significant of which is that the community exposure claims are still barred by the exclusivity provision. Among other defenses, Weyerhaeuser argues that plaintiffs' nuisance claims are barred by the applicable statute of limitations. (Weyerhaeuser's Mot. (‘515 dkt. #42; ‘726 dkt. #31).)[1]

         For the reasons that follow, the court will: (1) deny defendant's motion to dismiss under the exclusivity provision of the Workers' Compensation Act; (2) grant the motion as to plaintiffs' nuisance claims; (3) grant defendant's unopposed motion to bar plaintiff from relying on the federal regulatory scheme to prove negligent conduct; (4) deny the motion seeking to exclude plaintiffs' claim for punitive damages; and (5) deny defendant's argument that plaintiffs' claims are barred by public policy.

         ALLEGATIONS OF FACT

         Both of plaintiffs' respective complaints allege claims against defendant Weyerhaeuser based on asbestos fibers transported or emitted outside of the plant, either by “a. worker clothing, personal effects, hair, and skin [that] had become contaminated by asbestos fibers at the plant; and b. collecting, removing, hauling, and dumping asbestos dust and waste materials.” (Am. Compl. (dkt. #39) ¶ 27.)[2] Based on these emissions into the community and plaintiffs' alleged exposure to these emissions, plaintiffs bring claims for common law negligence (Count I), negligent nuisance (Count II), and intentional nuisance (Count III) against defendant Weyerhaeuser.

         OPINION

         I. Worker's Compensation Act's Exclusivity Provision

         This court has previously addressed whether claims like plaintiffs are barred by the WCA's exclusivity provision. In Boyer v. Weyerhaeuser Co., 39 F.Supp.3d 1036, 1042 (W.D. Wis. 2014), on reconsideration in part (Nov. 4, 2014), aff'd sub nom. Pecher v. Owens-Illinois, Inc., 859 F.3d 396 (7th Cir. 2017), the court held that exposure to asbestos arising out of employment -- including exposure outside of the workplace to fibers a worker carried home from the place of employment -- were barred by the WCA's exclusivity provision because the exposure still “arose out of” employment.” On a motion for reconsideration, however, the court allowed plaintiffs to pursue a claim based on allegations that they “experienced measurably, causally distinct exposure to asbestos other than from their jobs based on Weyerhaeuser's release of asbestos fibers into the community via ambient air, in landfills, etc.” Boyer v. Weyerhaeuser, No. 14-cv-286, slip op., at *7 (W.D. Wis. Nov. 4, 2014) (dkt. #116). In so ruling, the court expressed skepticism that plaintiffs “will ultimately be able to untangle their multiple exposures to asbestos on the job from other community exposures in a manner that would permit a reasonable jury to award separate damages for community exposure, ” but allowed plaintiffs to pursue nuisance claims against Weyerhaeuser “based solely on plaintiffs' exposure to asbestos not arising from their employment.” Id.

         In its pending motion to dismiss in the above captioned cases, defendant Weyerhaeuser effectively seeks reconsideration of this court's holding in Boyer based on two arguments: (1) the Seventh Circuit's consideration of an appeal brought by some plaintiffs involving the court's treatment of expert testimony on causation and Weyerhaeuser's motion for summary judgment, among other issues, in Pecher v. Owens-Illinois, Inc., 859 F.3d 396 (7th Cir. 2017); and (2) the persuasiveness of two decisions by other state courts involving asbestos exposure, which were not previously brought to this court's attention, in Melendrez v. Ameron Int'l Corp., 240 Cal.App.4th 632 (Cal.Ct.App. 2015), and Campbell v. Lockheed Shipbuilding Corp., 61 P.3d 1160, 1161 (Wash.Ct.App. 2002).

         In its opening brief, Weyerhaeuser argues that “[t]he Seventh Circuit has already stated that identical, asbestos-related mesothelioma claims are covered by the WCA and subject to its exclusivity provision.” (Weyerhaeuser's Opening Br. (dkt. #43) 3.) In its reply, Weyerhaeuser was compelled to acknowledge that the Seventh Circuit did not reach this issue on appeal (Weyerhaeuser's Reply (dkt. #55) 6), and instead now argues that court “indicate[d]” the claims should be barred by the WCA's exclusivity provision (id. at 7-8). Even that characterization is a reach. In the introductory paragraph of the Seventh Circuit's decision, the court stated that “the claims at issue are covered by the exclusive remedy provisions of the Wisconsin Worker's Compensation Act, ” and that “[p]laintiffs['] attempt to get around this bar by recharacterizing their injuries as occurring off the job” is “unavailing.” Pecher, 859 F.3d at 398. Nothing in that statement, nor in the Seventh Circuit's general “affirm[ance of] the multiple rulings of the district court dismissing the claims against both defendants on appeal and denying reconsideration, ” suggested that court was taking a harder line on “community effects” evidence than did this court. To the contrary, if the Seventh Circuit had held that this court's line-drawing -- delineating the boundaries of a community exposure claim -- was in error, the court need not have reached the question of causation at all, much less make it the focus of the appellate decision. As such, while the Seventh Circuit was certainly skeptical of the plaintiffs' ability to demonstrate causation -- a skepticism it shared with this court -- the Seventh Circuit did not hold explicitly or implicitly that community exposure claims were barred by the WCA's exclusivity provision.

         As for defendant's citations to two out-of-state decisions in support of its argument that the “claims against Weyerhaeuser based on the same WCA-covered injury should be dismissed” (Weyerhaeuser's Opening Br. (dkt. #43) 1-2), neither Melendrez nor Campbell require this court to reconsider its earlier ruling on community exposure, because each is materially distinguishable from the present case. In Melendrez, the plaintiff was exposed to asbestos during the course of his employment with Ameron International Corporation. Melendrez, 240 Cal.App.4th at 635. Ameron allowed its employees to take home reject Bondstrand pipe if they had a signed permission slip from their supervisor. Id. at 636. Melendrez took pipe home each day that he could, and he used the pipe to make flower pots and part of a patio. Id. Melendrez's employment ended in 1985, and he was diagnosed with mesothelioma caused by asbestos exposure in 2010 and he died in 2011. Id. Plaintiffs sued Ameron for wrongful death, and Ameron moved for summary judgment, arguing that California's Workers' Compensation Act barred the claim. Id. at 637. The trial court granted Ameron's motion for summary judgment, which the California Court of Appeals affirmed. Id. That court held that although a triable issue of fact existed regarding whether Melendrez's home exposure arose out of the course of employment, it was undisputed that the exposure Melendrez sustained during his employment substantially contributed to his mesothelioma. Id. Under the so-called “contributing cause standard, ” therefore, Melendrez's mesothelioma was covered under California's Workers' Compensation Act. Id.

         As already explained in prior opinions, if plaintiffs were alleging claims based on exposure to asbestos fibers carried home from the plant (for example, on their clothing), those claims would have been barred by the Worker's Compensation Act because the exposure would still arise out of the employment, regardless of the fact that the exposure actually occurred at home. See supra n.2. In light of the facts at issue in Melendrez, therefore, this court would have agreed that his claim was barred, albeit for a different reason. Regardless, Melendrez is materially distinguishable from the present case because California's causation standard is different than the causation standard articulated by the Seventh Circuit in considering asbestos claims under Indiana law and applied by this court in its past asbestos cases. Melendrez applies the contributing cause standard to hold that because the plaintiff's employment substantially contributed to his mesothelioma, plaintiff's tort claim was barred by California's Workers' Compensation Act. Under Melendrez then, if a plaintiff's employment is a “substantial contributing factor” to his or her injury, that plaintiff's injury is barred by California's Workers' Compensation Act, and no other causes are to be considered.

         The Seventh Circuit interprets the “substantial contributing cause standard” differently. In Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), the Seventh Circuit rejected the idea that “the so-called substantial factor test is a comparative test in which the jury assess[es] all contributing causes and determines which ones are substantial.” Tragarz, 980 F.2d at 424. Instead, the Seventh Circuit stated that:

courts in applying the substantial factor test do not seem concerned with which of the many contributing causes are most substantial. Rather, they seem concerned with whether each contributing cause, standing alone, is ...

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