Ahnert v. Brand Insulations Inc. et al
Filing
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DECISION AND ORDER Granting Plaintiff's Motion for Leave to File a Surreply 108 , Granting Defendant CBS Corporation's Motion for Judgment on the Pleadings 87 , and Granting Defendant General Electric Company's Motion for Judgment on the Pleadings 101 . Further ordering that CBS Corporation and General Electric are dismissed. (cc: all counsel) ((cef), C. N. Clevert, Jr.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BEVERLY AHNERT
Individually and as Executrix of the
Estate of Daniel Ahnert, Deceased,
Plaintiff,
v.
Case No. 13-C-1456
BRAND INSULATION INC.,
BUILDING SERVICES INDUSTRIAL SUPPLY INC.,
CBS CORPORATION,
EMPLOYERS INSURANCE COMPANY OF WAUSAU,
FOSTER WHEELER LLC,
GENERAL ELECTRIC COMPANY,
L & S INSULATION COMPANY INC.,
PABST BREWING COMPANY,
SPRINKMANN SONS CORPORATION,
WISCONSIN ELECTRIC POWER COMPANY,
MERCO-THERMOTEC INC.,
Defendants.
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO FILE A SURREPLY (DOC. 108), GRANTING DEFENDANT CBS
CORPORATION’S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 87),
AND GRANTING DEFENDANT GENERAL ELECTRIC COMPANY’S MOTION
FOR JUDGMENT ON THE PLEADINGS (DOC. 101)
On November 26, 2014, CBS Corporation filed a motion for judgment on the
pleadings arguing that plaintiff’s claims are barred on the ground of claim preclusion and
res judicata. General Electric filed a similar motion on December 22, 2014. Both parties
cite the court’s August 29, 2014, findings of fact and conclusions of law respecting
defendant Owens-Illinois’s motion to dismiss. Briefly, plaintiff Beverly Ahnert and her
husband sued these defendants in 2010 alleging that Daniel Ahnert developed asbestiosis
from exposure to the defendants’ asbestos containing products. After Daniel Ahnert was
diagnosed and died from mesothelioma, Beverly Ahnert did not oppose the movant’s
respective motions for summary judgment and stipulated to their dismissal. Hence, CBS
and General Electric were dismissed from the earlier action with prejudice. It follows
Beverly Ahnert’s attempt to sue these same defendants again must fail inasmuch as the
pending claims are barred by the doctrine of claim preclusion.
In 2010, plaintiff, Beverly Ahnert, and her husband, Daniel Ahnert, filed a lawsuit
(the "2010 lawsuit") in the Eastern District of Wisconsin, and that case was transferred to
the MDL in the Eastern District of Pennsylvania. The complaint alleged that Daniel Ahnert
was exposed to asbestos manufactured by various defendants, including General Electric
and Westinghouse Electric Corporation for whom CBS Corporation (“CBS”) was
responsible. (ECF 14-1, Ex. A, Pl’s Compl. in the 2010 Lawsuit.) Specifically, the Ahnerts
alleged that: (1) Ahnert was diagnosed with a non-malignant asbestos-related disease
called asbestosis; (2) Ahnert was exposed to asbestos from General Electric and CBS
products; (3) all alleged exposures to asbestos that Ahnert received contributed to his
asbestosis; and (4) the alleged exposure to asbestos from these defendants was a cause
of Ahnert's asbestosis. (ECF 66 at 2, Pls.' Compl. at ¶¶ 25, 27, 30, ECF No. 14-1 at Ex.
A; Pl.'s Resp. Br. at 1, ECF No. 37; Pl.'s Suppl. Br. at 1, ECF No. 58.)
On January 4, 2011, while the 2010 lawsuit was pending, Ahnert was diagnosed
with a type of cancer called mesothelioma. (Pl.'s Compl. at ¶ 23, ECF No. 1; Pl.'s Resp.
Br. at 1, ECF No. 37; Pl.'s Suppl. Br. at 1, ECF No. 58; Hr'g Tr. 29:4-20, ECF No. 59.) Six
days later, on January 10, 2011, Beverly and Daniel Ahnert filed a separate lawsuit (the
"2011 lawsuit") in the Milwaukee County Circuit Court alleging that the mesothelioma was
caused by exposure to asbestos and that all exposures to asbestos that Daniel received
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contributed to and caused the disease. (Pls.' Compl. at ¶¶ 25, 27, 30, ECF No. 14-1 at Ex.
C; Pl.'s Resp. Br. at 1, ECF No. 37; Hr'g 64:8-12, ECF No. 60.)
In March of 2011, Beverly and Daniel Ahnert supplemented their discovery
responses in the 2010 lawsuit to disclose Ahnert's mesothelioma diagnosis. (Pl.'s Suppl.
Br. at 1-2, ECF No. 58; Hr'g Tr. 65:1-14, ECF No. 60.) Beverly Ahnert also made
disclosures of the mesothelioma diagnosis in June and August of 2012. (Pl.'s Suppl. Br.
at 2 n.1, ECF No. 58.) Discovery was conducted and certain expert reports were prepared
in the 2010 lawsuit based on the diagnosis of mesothelioma. (Id.; Hr'g 60:5-8, ECF No.
60.) Daniel Ahnert died on July 7, 2011. (Pl.'s Compl. at ¶ 2, ECF No. 1; Pl.'s Resp. Br.
at 1, ECF No. 37.)
In September 2012, Beverly Ahnert was substituted in the 2010 lawsuit as the
plaintiff on behalf of the estate of Daniel Ahnert, and the complaint in the 2010 lawsuit was
amended with the court's leave. (Order at 1, ECF No. 14-1 at Ex. D.) Beverly Ahnert
intended to proceed on the mesothelioma allegations in the 2010 lawsuit but did not amend
her complaint because she did not believe it was necessary. (See Hr'g Tr. 35:14-21, ECF
No. 59; Hr'g Tr. 65:1-14, 68:12-69:3, ECF No. 60.)
GE and CBS timely filed their motions for summary judgment in the 2010 lawsuit
arguing, among other things, that there was no evidence that Daniel Ahnert was exposed
to asbestos from their products. (ECF 87, Ex. D; ECF 80, Ex. 4.) Beverly Ahnert did not
respond to the motion for summary judgment, and the judge entered the following order
with respect CBS:
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Plaintiff, Daniel Ahnert, through his attorneys, and Defendant CBS
Corporation, a Delaware Corporation, f/k/a/ Viacom, Inc., successor by
merger to CBS Corporation, a Pennsylvania corporation, f/k/a Westinghouse
Electric Corporation (hereinafter “CBS/Westinghouse”), through its attorneys,
hereby stipulate and agree that defendant CBS/Westinghouse’s Motion for
Summary Judgment is unopposed by Plaintiff, that an Order granting that
Motion for Summary Judgment may be entered, and that CBS/Westinghouse
may be dismissed from this action with prejudice, and without costs to any
party.
(ECF 87, Ex. A.) A similar order was entered for General Electric; however, a footnote in
the December 18, 2012, order explained as follows:
The basis for Defendants’ motions is that there is no genuine dispute as
to the material fact of whether Plaintiffs’ asbestos-related injuries were
caused by products manufactured, supplied, or distributed by these
Defendants. See Fed. R. Civ. P. 56(a). Based on the uncontested evidence
presented by Defendants, the Court concludes that these Defendants are
entitled to judgment as a matter of law.
(ECF 80-1, emphasis added.)
Notwithstanding the above language, Beverly Ahnert filed a second lawsuit on
December 30, 2013, against General Electric and CBS alleging that: (1) Daniel Ahnert
suffered from asbestos-related diseases including, without limitation, malignant
mesothelioma diagnosed on January 4, 2011, and non-malignant asbestos conditions
including, without limitation, asbestosis; (2) he was exposed to asbestos from the
defendants’ products; and (3) all exposure to asbestos that he received contributed to and
caused his asbestos-related conditions. (Pl.'s Compl. at ¶¶ 21, 23, 25, ECF No. 1.) Ahnert
returned to the Eastern District of Pennsylvania and attempted to amend her complaint on
May 2, 2014, to include an asbestiosis claim. That motion was denied.
The doctrine of res judicata, or claim preclusion, bars claims that were asserted or
could have been asserted in a prior action. Palka v. City of Chicago, 662 F.3d 428, 437
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(7th Cir. 2011). The doctrine requires a party to join in a single lawsuit all legal and
remedial theories that concern the same nucleus of operative facts. See Ross v. Bd. of
Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007). It "protects [litigants]
from the expense and vexation attending multiple lawsuits, conserves judicial resources,
and fosters reliance on judicial action by minimizing the possibility of inconsistent
decisions." Montana v. United States, 440 U.S. 147, 153–54, 99 S. Ct. 970, 59 L. Ed.2d
210 (1979).
Wisconsin law requires the presence of three elements to apply claim preclusion:
(1) an "identity between the parties or their privies in the prior and present suits;" (2) that
the "prior litigation resulted in a final judgment on the merits by a court with jurisdiction;"
and (3) an "identity of the causes of action in the two suits." Sopha v. Owens–Corning
Fiberglass Corp., 230 Wis.2d 212, 601 N.W.2d 627, 637 (Wis.1999). The burden to prove
these elements listed above is upon the party asserting that claim preclusion applies.
Pasko v. City of Milwaukee, 252 Wis. 2d 1, 643 N.W.2d 72, 78 (Wis. 2002). In addition to
these elements, claim preclusion may operate to bar a litigant from asserting claims in a
subsequent action that the defendant failed to assert in the previous action. See A.B.C.G.
Enterprises, Inc. v. First Bank Southwest, 184 Wis.2d 465, 515 N.W.2d 904 (Wis.1994).
There is no dispute that the claims at issue involve the same parties. Beverly
Ahnert was the plaintiff in the Eastern District of Pennsylvania and filed the complaint in
this court. Next, the order dismissing the defendants with prejudice in the Eastern District
of Pennsylvania is a final judgment on the merits. The 2010 lawsuit contends that (1)
Daniel Ahnert was diagnosed with an asbestos-related injury; (2) he was exposed to
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asbestos from a product for which defendants were responsible; and (3) the exposure to
asbestos from the product was a cause of Daniel Ahnert's disease. Further, the 2010
lawsuit alleged state law claims of products liability negligence, and products liability
unreasonably dangerous product claims.
In this 2013 lawsuit, the complaint asserts that (1) Daniel Ahnert suffered from
asbestos-related diseases including, without limitation, malignant mesothelioma diagnosed
on January 4, 2011, and non malignant asbestos conditions including, without limitation,
asbestosis; (2) he was exposed to asbestos from General Electric and CBS products; and
(3) exposure to asbestos these products was a cause of his asbestos-related conditions.
Specifically, the pending complaint alleges that the "asbestos disease process and injury
began before April, 1994," and that "all exposures to asbestos that decedent received
contributed to and caused the decedent's asbestos related conditions."
(Doc. 1 at
¶¶ 23-25.) Ultimately, Beverly Ahnert alleges the same products liability - negligence and
unreasonably dangerous products claims as she did in the first lawsuit.
After reviewing the records from the prior litigation, including the reasons underlying
the dismissal of defendant Owens-Illinois, as well as the arguments respecting the pending
motions, the court is satisfied that Beverly Ahnert had an adequate opportunity for a full
and fair adjudication in the 2010 lawsuit. General Electric and CBS filed summary
judgment motions in the MDL on the ground that Beverly Ahnert lacked sufficient evidence
that their products caused Daniel Ahnert’s asbestos-related injury. The judge granted the
motions as unopposed.
In so ruling, this court has carefully considered the arguments of Beverly Ahnert
that, under Wisconsin law, a final judgment on a non-malignant claim for exposure to
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asbestos does not bar a later malignant claim. In Sopha, 230 Wis. 2d at 233, the plaintiff
filed a non-malignant claim for asbestosis in 1987 and that case resolved by final
judgment. Ten years later the same individual was diagnosed with mesothelioma and filed
a new case. The Wisconsin Supreme Court refused to bar the second case finding that
the diagnosis of a malignant asbestos-related condition creates a new cause of action and
the statute of limitations governing the malignant asbestos-related condition begins when
the plaintiff discovers the malignant condition. Id., 230 Wis. 2d at 244.
In deciding Sopha, the Wisconsin Supreme Court weighed the single cause of
action rule, the discovery rule, and a third rule that declares that recovery for damages may
be had for "reasonably certain injurious consequences of the tortfeasor's negligent
conduct, not just merely possible injurious consequences." Id., 230 Wis. 2d at 226. The
court observed that these three rules are not ironclad and that the question of what
constitutes a cause of action and the concept of a statute of limitation is basically a
question of public policy. Id., 230 Wis. 2d at 227. Recognizing that the objectives of the
single cause of action rule are finality and judicial economy, the Wisconsin Supreme Court
reasoned that allowing a separate cause of action for an asbestos-related malignancy if
and when it occurs promotes judicial economy. Id., 230 Wis. 2d at 229.
The Wisconsin Supreme Court invoked public policy similarly when deciding that the
mesothelioma claim was a special circumstance in which claim preclusion should not
apply. Id., 230 Wis. 2d at 237. Citing Seventh Circuit authority, it acknowledged that there
are rare – but admitted exceptions – to res judicata that override the policy reasons for
ensuring the finality of judgments. Id., 230 Wis. 2d at 236 (citing Patzer v. Board of
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Regents, 763 F.2d 851, 856 (7th Cir. 1985)). Indeed, if applied in Sopha, claim preclusion
would force claimants to choose between pursuing damages related to the non-malignant
asbestos-related injuries or waiting for malignant injuries that may never occur. Id., 230
Wis. 2d at 237. At the same time, the Wisconsin Supreme Court acknowledged "the
important values inherent in the doctrine of claim preclusion" and carefully carved out a
narrow exception to that doctrine. Id.
The difference between this case and Sopha is that Beverly Ahnert knew her
husband had been diagnosed with mesothelioma before she filed the stipulation of
dismissal in the Eastern District of Pennsylvania. Unlike the Sopha diagnosis ten years
after the dismissal on the merits, Beverly Ahnert could have amended her complaint at any
time to allege these facts. To date, she has brought one state court and two federal
lawsuits based on Daniel Ahnert’s asbestos exposure.
Beverly Ahnert attempts to circumvent the prior dismissals by arguing that she has
new evidence from the deposition of Charles Lewitzke, whom she deposed after these
defendants were dismissed in Pennsylvania. According to Ahnert, Lewitzke testified that
these defendants had personnel on the jobsite. Nevertheless, the existence of this
testimony does not create an exception for preclusion. Ahnert does not explain why no
such testimony was available to her prior to the dismissal in Pennsylvania and the court
is unaware of any authority that would allow a plaintiff to relitigate every time she located
more evidence.
In the final analysis, the underlying policies weigh in favor of preclusion. The
purpose of claim preclusion "provides an effective and useful means to ‘relieve parties of
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the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing
inconsistent decisions, encourage reliance on adjudication.'" Id., 230 Wis. 2d at 235
(quoting Allen v. McCurry, 449 U.S. 90 (1980)). The single cause of action rule seeks to
deter multiple lawsuits out of the same incident, and neither the discovery or accrual rules
create an exceptional circumstance in this case.
Beverly Ahnert knew of Daniel’s mesothelioma diagnosis on January 4, 2011, and
Daniel died on July 7, 2012. CBS and General Electric filed their summary judgment
motions their summary judgment motions on October 8, 2012. The unopposed motions
were granted in December of 2012. Beverly Ahnert could have asserted the malignancy
claims in the Pennsylvania action before the court ruled that there was “no genuine issue
of material fact of whether plaintiffs’ asbestos-related injuries were caused by products
manufactured, supplied, or distributed by these defendants.” Indeed, she amended the
complaint to add her name as a plaintiff but chose not to add the mesothelioma claim until
after discovery had closed and summary judgment motions were being decided. Beverly
Ahnert was aware of her husband’s diagnosis, disclosed the diagnosis and provided
reports, but chose not to oppose summary judgment. That she now has the deposition
testimony of Charles Lewitzke implicating General Electric and CBS and supporting her
claims does not revive her claims. Unlike criminal law where a defendant can continue to
assert actual innocence, a civil litigant is not allowed to bring a new case every time she
uncovers additional evidence. Neither CBS nor General Electric should be forced to
defend yet another action. Now, therefore,
IT IS ORDERED that plaintiff’s motion for leave to file a surreply is granted.
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IT IS FURTHER ORDERED that defendant CBS Corporation’s motion for judgment
on the pleadings is granted. (Doc. 87)
IT IS FURTHER ORDERED that defendant General Electric’s motion for judgment
on the pleadings is granted. (Doc. 101).
IT IS FURTHER ORDERED that CBS Corporation and General Electric are
dismissed.
Dated at Milwaukee, Wisconsin, this 3rd day of February, 2015.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE
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