Jacobs, Dianne v. Owens-Illinois Inc. et al

Filing 111

ORDER granting in part and denying in part Defendant Weyerhaeuser Company's 45 Motion for Judgment on the Pleadings; granting Plaintiff Diane Jacobs' 52 Motion for Leave to File Second Amended Complaint. Signed by District Judge William M. Conley on 6/2/2015. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRIAN HECKEL, individually and
as special administrator for the purposes
of this lawsuit on behalf of Sharon Heckel,
Plaintiff,

OPINION AND ORDER

v.
13-cv-459-wmc
3M COMPANY, CBS CORP., GENERAL
ELECTRIC CO., METROPOLITAN LIFE
INSURANCE COMPANY, OWENS-ILLINOIS
INC., and WEYERHAEUSER COMPANY,
Defendants.
----------------------------------------------------------------------------------------------------------------------------DIANNE JACOBS, individually and
as special administrator for the purposes
of this lawsuit on behalf of Rita Treutel,
Plaintiff,
v.
12-cv-899-wmc
OWENS-ILLINOIS INC., RAPID AMERICAN
CORPORATION, and WEYERHAEUSER
COMPANY,
Defendants,
RAPID AMERICAN CORPORATION,
Cross-claimant,
v.
OWENS-ILLINOIS INC. and WEYERHAEUSER
In this opinion and order, the court takes up two related motions filed in the
above captioned asbestos cases.

First, defendant Weyerhaeuser Company moves for

judgment on the grounds that: (a) this court has dismissed similar claims premised solely

on workplace exposure and (b) the time -- as set in the MDL court -- for amending
complaints has passed, precluding plaintiffs from now claiming the kind of community
exposure on which other asbestos plaintiffs have been allowed to proceed. (‘459 dkt.
#37; ‘899 dkt. #45.) Second, and perhaps unsurprising, the two plaintiffs move for
leave to file second amended complaints, containing allegations of community exposure.
(‘459 dkt. #48; ‘899 dkt. #52.) For the reasons that follow, the court will grant in part
and deny in part Weyerhaeuser’s motion for judgment on the pleadings, as well as grant
plaintiffs’ motions for leave to amend their respective complaints.

BACKGROUND
In opinions and orders dated August 22, 2014, this court dismissed defendant
Weyerhaeuser Company as a defendant in several related asbestos cases, finding that the
claims brought against it were barred by Wisconsin’s Workers Compensation Act, Wis.
Stat. § 102.03(1). (See, e.g., Prust, No. 14-cv-143-wmc (dkt. #62).) On November 4,
2014, after the plaintiffs in these other asbestos cases filed motions for reconsideration
and proposed amended complaints alleging community (non-workplace) exposure to
asbestos, the court granted those plaintiffs’ motions for reconsideration, allowing them to
pursue nuisance claims based on community exposure. (Id. (dkt. #80).)
While the cases now back before this court were still pending in the MDL, that
court set a deadline for amending complaints of November 27, 2013, and a deadline for
the close of fact discovery of June 16, 2014. (Def.’s Mot. (‘459 dkt. #37, ‘899 dkt.
#45).)

Reiterating arguments made in its prior successful motions, Weyerhaeuser

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contends that plaintiffs’ respective claims against it in their first amended complaints are
barred by Wisconsin’s Worker’s Compensation Act, Wis. Stat. § 102.03(1). Plaintiffs in
this case also oppose that motion for the same reasons articulated in earlier briefs
opposing similar motions to dismiss.

OPINION
The court finds no basis for departing from its prior opinions and order dismissing
any claim against Weyerhaeuser premised on workplace exposure. Accordingly, the court
will grant that portion of Weyerhaeuer’s motion.
The more interesting issue is whether Heckel and Jacobs may pursue claims
against Weyerhaeuser based on community exposure. Weyerhaeuser contends that they
cannot because the time for amending complaints has lapsed. This court thoroughly
rejects any suggestion that this court lacks the authority to grant plaintiffs leave to
amend.

While Weyerhaeuser does not attach the MDL scheduling order, the court

assumes -- consistent with general practice -- that the date set for amending pleadings is
the date by which a party may amend without leave of court. After that date, a plaintiff
must seek leave to amend, which the plaintiffs now have done. Even if this were not the
intended import of the MDL court’s order, this court retains the power to grant leave to
amend as appropriate under Federal Rule of Civil Procedure 15(a)(2), which shall be
“freely give[n] leave when justice so requires.” Id.
Whether to grant or deny leave to amend rests within the discretion of the district
court, subject to the admonition that in “the absence of any apparent or declared reason

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. . . the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis, 371
U.S. 178, 182 (1962). Even so, courts should not automatically grant leave to amend:
“a court may deny a motion to amend because of ‘undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of
the amendment, futility of amendment, etc.’” Johnson v. Methodist Med. Ctr. of Ill., 10
F.3d 1300, 1303 (7th Cir. 1993) (quoting Foman, 371 U.S. at 182).
Here, plaintiffs arguably had no reason to seek amendment until after the court
had dismissed such claims in other asbestos cases, which happened almost one year after
the deadline for amending complaints, and even after the close of discovery, as set in the
MDL court. Certainly, plaintiffs could have filed amended complaints more promptly
once this court had issued its opinions and orders dismissing similar claims premised on
workplace exposure, but the court does not find that plaintiffs were dilatory in failing to
seek leave at that time, and Weyerhaeuser has not even attempted to show prejudice by
that delay.
At bottom, Weyerhaeuser’s only real argument opposing the court’s exercise of its
discretion to grant leave to amend is futility, based on plaintiff’s acknowledgement that
they had an employment relationship with Weyerhaeuser during which they were
exposed to asbestos.

As the court has already ruled elsewhere, however, whether an

independent claim against an employer may succeed with respect to an employee also
(and presumably much more intensely) exposed at work will turn on facts not yet before
the court. (Prust, No. 14-cv-143-wmc (dkt. #80) 7.)
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Accordingly, the court will grant plaintiffs’ respective motions for leave to amend
their complaints and will allow them to proceed on claims against Weyerhaueser
premised on community (non-workplace) exposure to asbestos. 1

ORDER
IT IS ORDERED that:
1) Defendant Weyerhaeuser Company’s motions for judgment on the pleadings
(‘459 dkt. #37; ‘899 dkt. #45) are GRANTED IN PART AND DENIED IN
PART. The motion is granted with respect to any claim based on workplace
exposure, but denied in all other respects.
2) Plaintiffs Brian Heckel and Diane Jacobs’ respective motions for leave to file
second amended complaints (‘459 dkt. #48; ‘899 dkt. #52) are GRANTED.
Entered this 2nd day of June, 2015.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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The court’s holding with respect to the scope of the nuisance claims asserted against
Weyerhaeuser in yet another opinion and order released today applies with equal force to
those claims asserted by Heckel and Jacobs. (See, e.g., Prust No. 14-cv-143-wmc (dkt.
#155).)
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