Herr et al v. Linde Inc

Filing 45

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 10/9/2015 GRANTING 22 Defendant's MOTION for Summary Judgment. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANICE J. HERR, individually and as
Special Administrator on behalf of
THE ESTATE OF RICHARD J. HERR,
Deceased,
Plaintiff,
-vs-

Case No. 10-C-1114

LINDE LLC, f/k/a the BOC Group, Inc.
and/or Airco, Inc., et al.,
Defendants.
DECISION AND ORDER
This case was remanded for further proceedings by the MDL 875
Court, United States Judicial Panel on Multidistrict Litigation, In re:
Asbestos Products Liability Litigation (No. VI). The sole remaining
defendant, Linde LLC, formerly known as the BOC Group, Inc. and/or
Airco, Inc. (hereinafter “Airco”), moves for summary judgment.
The plaintiff, Janice Herr, individually and on behalf of the Estate of
Richard Herr, moved to strike Airco’s motion for summary judgment as
untimely pursuant to the scheduling order established by the MDL court.
The Court denied this motion because it wanted to “address the merits of
the defendant’s arguments instead of conducting a trial that is potentially

unnecessary.” ECF No. 35. District courts have wide latitude in managing
their dockets, including the power to consider an untimely motion for
summary judgment. See, e.g., Jones v. Coleman Co., Inc., 39 F.3d 749, 753
(7th Cir. 1994).
The Court also recognizes that the MDL court denied Airco’s
summary judgment motion. For the reasons that follow, the Court
disagrees and finds that Airco is entitled to summary judgment. The MDL
court’s holding to the contrary is not preclusive. See Whitford v. Boglino, 63
F.3d 527, 530 (7th Cir. 1995) (“the denial of summary judgment has no res
judicata effect, and the district court may, in its discretion, allow a party to
renew a previously denied summary judgment motion or file successive
motions, particularly if good reasons exist”).
Finally, the Court directed the parties to address Airco’s citizenship.
The Court is now satisfied that it has jurisdiction because the parties are
completely diverse. See ECF No. 40.
I.

Background
The plaintiff alleges that Herr contracted mesothelioma through the

use of Airco-distributed, asbestos-containing insulated gloves/mittens. The
distinction between gloves and mittens is crucial for purposes of this
motion. To avoid confusion, the Court will refer to the items at issue as
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gloves in a generic sense, unless otherwise noted. Herr, who worked as a
sculptor and an art instructor, used insulated gloves to handle heated
molds. Herr was diagnosed with mesothelioma in March of 2008 and died
on September 12, 2009.
From 1970-76, Herr worked as a visiting artist at the Prairie School
in Racine, Wisconsin. Herr constructed investments, which are similar to
molds, for his sculptures. He would mix a combination of 60% plaster, 40%
silica sand, 15-20% asbestos, and water to make the investment. Herr
would reach into fifty (50) pound bags of raw asbestos with his bare hands
and mix it into the other dry materials. Herr’s face was in close proximity
to the raw asbestos, which created dusty conditions in his environment.
The asbestos was thrown into the investment mix, which also created dust.
Herr used 10 to 12 handfuls of raw asbestos per day. When the bags were
empty, he would turn them upside down and shake them out, also creating
dust. Herr believed that he went through an average of two 50-pound bags
of raw asbestos a month.
Herr not only made investments for his own artwork, but he also
assisted students with theirs, and was in the area when they would make
their own investments. After the investments dried, Herr would clean them
by knocking off the asbestos material with tools, which also created dust in
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the air. There was no ventilation over the area where Herr made the
investments.
Herr used insulated gloves when he poured molten aluminum into
the investment to create metal sculptures. On some days, asbestos gloves
were used to handle as many as 30 to 40 different pieces of work. Herr
would slap the gloves together every time he wore them to remove
accumulated dust.
David Drewek, head of the art department at the Prairie School
from 1964-2001, handled the purchasing of supplies requested by visiting
artists such as Herr. The gloves at issue were always purchased through
M&F Distributing Co. M&F was party to a separate suit brought by Herr
in state court in 2008. That matter settled with respect to certain
defendants, including M&F. Airco was not a party to that lawsuit.
Drewek and Herr went to M&F together at least 4-6 times a year to
pick out supplies. Drewek never saw catalogs or brochures at M&F and did
not know the brand of gloves being purchased. The gloves were white and
had no labels. About four pairs of asbestos gloves were ordered every year
because they “wore out” and holes would develop.
II.

Analysis
Summary judgment should be granted if “the movant shows that
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there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The plain
language of the rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court
accepts as true the evidence of the nonmovant and draws all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986).
A.

Causation

Causation is a required element for both of plaintiff’s claims.
Schreiner v. Wieser Concrete Prods., Inc., 720 N.W.2d 525, 528 (Wis. 2006)
(negligence); Westphal v. E.I. du Pont de Nemours & Co., 531 N.W.2d 386,
391 (Wis. 1995) (strict liability). Therefore, to survive summary judgment,
Herr’s estate must create an issue of fact as to whether Herr inhaled
asbestos from Airco’s gloves/mittens. “A plaintiff does not meet this burden
simply by establishing that he inhaled asbestos dust; rather, he must
produce evidence tending to show that he inhaled asbestos produced by the
defendant’s product.” Harris v. Owens-Corning Fiberglass Corp., 102 F.3d
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1429, 1432 (7th Cir. 1996) (emphasis in original).
It is undisputed Airco never manufactured insulated gloves or
mittens. Defendant’s Proposed Findings of Fact, ¶ 59. Instead, Airco
primarily produced industrial gases, and was also a manufacturer of
welding consumables, such as welding rods. Id.
At various times during the period 1960 to 1980, Airco purchased
personal protective equipment in the form of welding gloves and mittens
from companies that manufactured them. Airco arranged for its logo to be
placed on these items for resale. However, the gloves that Herr used were
white and unlabeled. Plaintiff’s Proposed Findings of Fact, ¶ 21;
Defendant’s Proposed Findings of Fact, ¶¶ 45-46.
In fact, Airco’s corporate witness, Patricia Fleming, baldly states
that Airco did not sell white asbestos mittens during the 1960 to 1980 time
period. DPFF, ¶ 62. Instead, Airco sold only three types of mittens, as
opposed to five-finger gloves. The first type of mitten was a one-finger
mitten (the index finger was separate from the other three fingers) made of
green leather and not asbestos. The second type of mitten was also a onefinger mitten and was made from high-grade, heat-resistant leather tanned
green in color. This second mitten was also not made of asbestos. The third
type of mitten – also a one-finger mitten – was made of green leather with
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an aluminized asbestos backing. This green leather, one-fingered,
aluminized asbestos-backed mitten came with and without a wool lining.
Id., ¶ 63.
In response, the plaintiff points to the 1965 M&F sales catalog,
which contains descriptions of Airco brand asbestos gloves and other gloves
that do not contain asbestos.1 One type of glove in the 1965 catalog is
described as “Airco Asbestos gloves. Having exceptional wearing qualities,
Airco Asbestos gloves are made of the best commercial, closely woven cloth,
containing not less than 79% asbestos. … Stock No. 1305-0100 …” These
gloves are white and have five fingers. ECF No. 37-9, at 3. The same
description is included in Airco’s catalog. ECF No. 37-20
The problem with this argument is that there is no evidence
connecting Herr to the use of white, five-fingered, asbestos-containing
gloves, as opposed to hand-protecting gloves with a hole only for the
thumb, generally known as mittens. At his deposition, Drewek testified
that the “asbestos gloves” looked like “giant mittens. No fingers, just
thumbs and the mitten part, and they went from your fingertips maybe
halfway up your forearm.” ECF No. 25-10, at 13 (emphasis added). Drewek

M&F’s corporate witness, Charles Gray, was unable to locate any subsequent
catalogs until an edition published in 1987.
1

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was questioned further about “another pair” that was used “when things
that weren’t very hot, but that were fingered gloves.” Id. Drewek clarified
that the fingered gloves were “just regular leather work gloves,” not
“asbestos gloves.” Id. at 15 (discussing Exhibit 3, ECF No. 25-11 at 2).
Even if the Court concluded – very generously – that there was an
issue of fact pertaining to the distinction between mittens and gloves, it
bears repeating that Airco’s gloves were labeled, but the gloves that Herr
used were unlabeled. This evidence is undisputed and confirmed in the
record presented to the Court. Therefore, the plaintiff cannot meet her
burden of proof as to causation, and Airco is entitled to summary judgment.
B.

Pierringer release

In the 2008 action, Richard and Janice Herr alleged that M&F, just
like Airco, should be liable for supplying asbestos-containing gloves for use
by Herr at the Prairie School. The Herrs executed the following release
with respect to M&F and its insurers:
In accepting said sum, Plaintiffs, Richard J. Herr and Janice
A. Herr, along with their agents, attorneys, employees,
partners, successors, and assigns (individually and collectively
the ‘Releasing Parties’) do hereby release and discharge that
fraction, portion or percentage of the total cause of action or
claim for damages Plaintiffs … have or may hereafter possess
against all parties responsible for its damages which shall by
trial or other disposition be determined to be the sum of the
fractions, portions or percentages of cause and negligence for
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which the Parties herein release are to be found liable as the
consequence of the above incident.
This is known as a Pierringer release, which “operates to impute to
the settling plaintiff whatever liability in contribution the settling
defendant may have to nonsettling defendants and to bar subsequent
contribution actions the nonsettling defendants might assert against the
settling defendants.” Fleming v. Threshermen’s Mut. Ins. Co., 388 N.W.2d
908, 911 (Wis. 1986) (discussing Pierringer v. Hoger, 124 N.W.2d 106 (Wis.
1963)). In this context, a Pierringer release extinguishes “all responsibility
for placing the defective product in the stream of commerce.” St. Clare
Hosp. of Monroe, Wis. v. Schmidt, Garden, Erickson, Inc., 437 N.W.2d 228,
232 (Wis. Ct. App. 1989). Thus, Airco is entitled to summary judgment on
the strict liability claim for the alternative reason that it was released
pursuant to the M&F settlement. See id. at 232-33 (“Unlike the negligent
tortfeasor whose liability is based on his or her acts (or failure to act), the
liability of strictly liable tortfeasors arises not from any conduct on their
part, but from the nature or condition of a product. As a result, where a
settling plaintiff assumes the strictly liable tortfeasor’s share of
responsibility for the damages, leaving only ordinarily negligent tortfeasors
as defendants, the plaintiff has assumed all of the liability attributable to

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the product”).
III.

Conclusion
Airco is entitled to summary judgment because the plaintiff did not

create an issue of fact as to whether Richard Herr was exposed to asbestoscontaining gloves distributed by Airco. Alternatively, Airco is entitled to
summary judgment on the strict liability claim because the claim was
released in the M&F litigation. Therefore, the defendant’s motion for
summary judgment [ECF No. 22] is GRANTED. The Clerk of Court is
directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of October, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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