Spychalla v. Boeing Aerospace Operations Inc, et al
Filing
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ORDER denying 160 Motion for Reconsideration ; denying 161 Motion ; denying 168 Motion for Reconsideration ; denying 174 Motion for Reconsideration. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHIRLEY D SPYCHALLA,
Plaintiff,
v.
Case No. 11-CV-497
BOEING AEROSPACE OPERATIONS INC et al.,
Defendants.
ORDER DENYING MOTIONS FOR RECONSIDERATION
Defendants The Boeing Company (erroneously named “Boeing Aerospace Operations Inc.”
in the complaint) and Cessna Aircraft Company have filed motions for reconsideration of this court’s
June 3, 2015 decision and order denying their motions for summary judgment and disposing of a
number of other pre-trial motions. Boeing also requests certification of an interlocutory appeal on
the issue of whether the “bare metal defense” is consistent with Wisconsin law. Plaintiff responded
to these motions late. The motions were filed under Civil L.R. 7(h), but rather than respond in the
required 10 days, Plaintiffs merely filed an “objection” stating that the defendants failed to show
good cause to expedite the motions. (ECF No. 170.) No such showing is required. In any event,
the defendants’ motions will be denied.
Boeing’s first argument for reconsideration is that it did not, contrary to what the court wrote
in the summary judgment decision, install any “original” asbestos-containing component parts in the
airplanes Plaintiff’s deceased husband worked with. All three defendants had argued that they should
not be liable under the “bare metal defense” when Mr. Spychalla had not come into contact with any
parts that they actually manufactured or sold. But I reasoned that it would make little sense to
preclude liability for the design of an unreasonably dangerous product simply because the original
asbestos parts placed in the product by its manufacturer had subsequently been swapped out with
asbestos replacement parts of the same kind. Boeing now reminds the court that before Mr.
Spychalla ever came into contact with them, Boeing’s planes had been sold to the military and then
converted for civilian use by third parties. So Boeing argues it did not really install “original”
component parts on the civilian aircraft, the third parties did. (ECF No. 160 ¶ 8.) But the facts
before the court support the inference, as Boeing seems to acknowledge, that it designed the planes
in the first place to have asbestos component parts. (See id. ¶ 8 n.1.) Whether Boeing is liable for
that design would appear to depend on its “government contractor defense,” which is the subject of
a separate motion for summary judgment that is still pending. (Id.) (“To the extent any asbestoscontaining components were originally installed on the C-47 and C-53 military aircraft, those
components were specified and required by the United States Government. As such, Boeing
incorporates by reference its [government contractor motion].”).
Boeing’s other argument and Cessna’s sole argument relate to the fact that the court
considered evidence in the record that Plaintiff did not present in proper summary judgment format.
Plaintiff initially failed to respond to the defendants’ proposed findings of fact, or provide her
own—she simply submitted an opposition brief, which included citations to the declarations of her
expert witness, Rodney Doss. Plaintiff belatedly sought leave to file proper responses and statements
of fact. The defendants opposed Plaintiff’s request for leave, arguing that the local rules should be
strictly enforced and that the defendants’ findings of fact should be deemed true. Given that the
court went ahead and considered Doss’s opinions, Boeing and Cessna now argue it was improper
to forgive Plaintiff’s procedural violation without providing her opponents the opportunity to
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substantively respond.
I decline to reconsider on this basis for two reasons. First, as I explained in the summary
judgment decision, the defendants failed to establish that they were entitled to judgment as a matter
of law even if their findings of fact were deemed true. (See ECF No. 157 at 5) (“[I]t does not follow
from Defendants’ findings of fact that they are entitled to judgment as a matter of law under the
‘bare metal defense’ . . . . This is because none of the defendants have submitted a bona fide
proposed finding of fact showing that they did not specify that asbestos-containing replacement parts
should be used in their products.” (emphasis in original)). Second, even if the defendants were
provided an opportunity to respond, all that would result is that Doss’s opinions would be “disputed”
for purposes of summary judgment.
Boeing’s request for an interlocutory appeal will be denied for a similar reason. Boeing seeks
to appeal on the issue of whether the “bare metal defense” is consistent with Wisconsin law. But as
explained above and in the summary judgment decision, even if the Wisconsin Supreme Court would
recognize the defense, the defendants failed to establish the defense—as described by the leading
courts that have recognized it—applies in this case. For these reasons, the motions (ECF Nos. 160,
161, 168 & 174) are DENIED.
SO ORDERED this 8th
day of July, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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