Heckel, Brian v. 3M Company et al

Filing 339

ORDER denying 328 Motion for Reconsideration; granting in part and denying in part 336 Motion to Strike. Signed by District Judge William M. Conley on 5/5/2016. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KATHY BOYER, Individually and as Special
Administrator on behalf of the Estate of Milton Boyer,
Plaintiff,
v.

OPINION AND ORDER
14-cv-286-wmc

WEYERHAEUSER COMPANY,
Defendant.
---------------------------------------------------------------------------------------------------------------------------BRIAN HECKEL, Individually and as Special
Administrator on behalf of the Estate of Sharon Heckel,

Plaintiff,
v.
CBS CORP., GENERAL ELECTRIC CO.,
METROPOLITAN LIFE INSURANCE
COMPANY, and WEYERHAEUSER COMPANY,

13-cv-459-wmc

Defendants.
----------------------------------------------------------------------------------------------------------------------------DIANNE JACOBS, Individually and as Special
Administrator on behalf of the Estate of Rita Treutel,
Plaintiff,
v.
RAPID AMERICAN CORPORATION, and
WEYERHAEUSER COMPANY,

12-cv-899-wmc

Defendants,
RAPID AMERICAN CORPORATION,
Cross-claimant,
v.
WEYERHAEUSER COMPANY,
Cross-defendant.
----------------------------------------------------------------------------------------------------------------------------

KATRINA MASEPHOL, Individually and as Special
Administrator on behalf of the Estate of Richard Masephol,

v.

Plaintiff,

WEYERHAEUSER COMPANY, and METROPOLITAN
LIFE INSURANCE COMPANY,

14-cv-186-wmc

Defendants.
---------------------------------------------------------------------------------------------------------------------------VIRGINIA PRUST, Individually and as Special
Administrator on behalf of the Estate of Valmore Prust,

v.

Plaintiff,

WEYERHAEUSER COMPANY, and METROPOLITAN
LIFE INSURANCE COMPANY,

14-cv-143-wmc

Defendants.
---------------------------------------------------------------------------------------------------------------------------JANICE SEEHAFER, Individually and as Special
Administrator on behalf of the Estate of Roger Seehafer,

v.

Plaintiff,
14-cv-161-wmc

WEYERHAEUSER COMPANY,

Defendant.
---------------------------------------------------------------------------------------------------------------------------THERESA SYDOW, Individually and as Special
Administrator on behalf of the Estate of Wesley Sydow,
Plaintiff,
v.

14-cv-219-wmc

WEYERHAEUSER COMPANY, and METROPOLITAN
LIFE INSURANCE COMPANY,
Defendants

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In each of the above-captioned cases, plaintiffs filed a “motion for reconsideration
and clarification regarding February 19, 2016, decision and, alternatively, for leave to
amend complaints.” (See, e.g., Boyer, No. 14-cv-286 (dkt. #470).) While not all of the
bases apply to each of the cases, plaintiffs as a group seek reconsideration of one or more
of the following rulings: (1) the court’s grant of summary judgment based in part on
defendant Weyerhaeuser’s Daubert motion as to plaintiffs Jacobs, Masephol and
Seehafer; (2) “extending” the exclusivity provision of the Wisconsin’s Workers
Compensation Act to an employee’s take-home asbestos exposure; and (3) the court’s
grant of summary judgment in Weyerhaeuser’s favor on plaintiffs’ private nuisance
claims.

The court will address each argument in turn, rejecting all as grounds for

reconsideration. 1

OPINION
I. Standard
Given plaintiffs counsel’s proclivity for seeking reconsideration, the standard is a
familiar one in these cases. The Federal Rules of Civil Procedure do not contemplate a
“motion for reconsideration,” but do allow for a motion to alter or amend the judgment
Also before the court are defendant Weyerhaeuser’s motions to strike the reply briefs plaintiffs
filed in support of their motions for reconsideration. (See, e.g., Boyer, ‘286 dkt. #493.)
Weyerhaeuser contends that the replies: (1) were unauthorized and, therefore, improper; and (2)
also that they raise arguments for the first time. Given the confusion as to whether a reply was
authorized by the court, plaintiffs should have moved for leave to reply given the uncertainty.
Still, the court will not strike plaintiffs’ replies on that basis alone. Defendant is, however, correct
that the replies raise new arguments, including a new argument concerning the statute of
limitations with respect to a private nuisance claim. Accordingly, the court strikes the portions of
the replies raising new arguments. Otherwise, the court will deny defendants’ motions to strike
and has considered plaintiffs’ proper arguments replying to defendant’s opposition.
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pursuant to Federal Rule of Civil Procedure 59(e) if “filed no later than 28 days after
entry of the judgment.” In five of the above cases, judgment has been entered, and
plaintiffs filed their motions for reconsideration within 30 days of entry of judgment in
each of those cases. In Boyer and Sydow, the two remaining cases proceeding to trial on
plaintiff’s respective public nuisance claim against Weyerhaeuser, the court will also
apply the standard of Rule 59(e), consistent with the parties’ approach. (See Pl.’s Mot.
(‘286 dkt. #470) 5 (citing Rule 59(e) for all seven cases); Def.’s Opp’n (‘286 dkt. #477)
6-7 (describing standard under Rule 59(e)).)
The decision to grant or deny Rule 59(e) relief is entrusted to the district court’s
sound judgment. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.
1995). “To prevail on a motion for reconsideration under [Rule 59(e)], the movant must
present either newly discovered evidence or establish a manifest error of law or fact.” Oto
v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation omitted). “A ‘manifest
error’ is not demonstrated by the disappointment of the losing party. It is the ‘wholesale
disregard, misapplication, or failure to recognize controlling precedent.’” Id. (citation
omitted).
Consistent with this standard, Rule 59(e) is not meant to allow the parties
“merely to relitigate old matters.” Diebitz v. Arreola, 834 F. Supp. 298, 302 (E.D. Wis.
1993). In particular, Rule 59(e) may be used neither to raise novel legal theories that
should have been presented earlier, Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d
746, 749 (7th Cir. 1995), nor to “provide a vehicle for a party to undo its own
procedural failures,” Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th
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Cir. 2000) (citation omitted). See also Popovits v. Circuit City Stores, Inc., 185 F.3d 726,
729 (7th Cir. 1999) (Rule 59(e) “does not allow a party to introduce new evidence or
advance arguments that could or should have been presented to the district court prior to
the judgment.”) (quotation marks and citation omitted).

Indeed, plaintiffs’ counsel’s

repeated filing of motions for reconsideration in an attempt to paper over prior
inadequate responses demonstrates the very reason for this standard.

II. Bases for Reconsideration
A. Grant of Summary Judgment to Weyerhaeuser in Jacobs, Masephol and
Seehafer
Plaintiffs seek reconsideration of the court’s granting of summary judgment with
respect to plaintiffs Jacobs/Treutel, Masephol and Seehafer.

For Jacobs/Treutel and

Masephol, plaintiff contends that the court erred in its treatment of evidence of those
plaintiffs’ exposure to asbestos based on family members bringing asbestos home on their
work clothing. The court credited both Jacobs/Treutel’s evidence of her husband working
at the plant and her daughter working in the mineral core area, as well as Masephol’s
evidence of his father working at the plant. Nevertheless, the court found the evidence
insufficient for experts to testify reliably that the exposure from family members
constituted a substantial contributing factor either because of limited concentration (i.e.,
the family member did not work in the department handling asbestos core) or length (i.e.,
a family member worked in the plant for only a matter of months). (See 2/19/16 Op. &
Order (dkt. #464) 16-17, 22, 47-50.)

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Plaintiff Seehafer also challenges the court’s conclusion that his alleged
community exposure from delivering milk to a dairy located one or two blocks from the
plant, seven days a week, from 1955 until 1967, formed an insufficient basis from which
plaintiffs’ experts could testify reliably that this alleged exposure substantially
contributed to his mesothelioma diagnosis.

(See id. 47, 49.)

Plaintiffs’ own expert

recognized that there were no studies confirming increased incidence of asbestos-related
diseases.

(Id. at 47.)

More specifically, studies suggest some statistically significant,

measurable impact on risk of mesothelioma for individuals residing within the 1.25 mile
zone of risk for a substantial period of time, while the court has been made aware of no
valid study suggesting a measurable increased risk for regularly driving through such a
zone. Absent any supporting epidemiological studies, plaintiffs’ experts lacked a reliable
foundation from which they could conclude that Seehafer’s activities within the zone of
risk would expose him to sufficient asbestos emissions to constitute a substantial
contributing factor to his mesothelioma diagnosis, even if they may have a sufficient basis
to opine that it was a contributing factor. For the same reasons explained in the court’s
summary judgment opinion, plaintiffs’ motion effectively ignores the standard for
demonstrating that the non-occupational exposure was a substantial contributing factor,
rather than simply a factor. (Id. at 50-52.) The court finds no error in its treatment of
the record at summary judgment or in its application of the law, including the standards
for expert testimony under Rule 702 and Daubert.
As part of their motions, plaintiffs also challenge the court’s treatment of
“substantial contributing factor.”

Specifically, plaintiffs take issue with the court’s
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reliance on the Seventh Circuit’s opinion in Tragarz v. Keene Corp., 980 F.2d 411 (7th
Cir. 1992), a case discussing the causation requirement in asbestos cases, albeit applying
Illinois law, and in particular the court’s consideration of “the frequency, regularity, and
proximity of exposure” in determining whether the causation requirement is met.
(2/19/16 Op. & Order (dkt. #464) 42-44.)

In their motions for reconsideration,

plaintiffs direct the court to Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, ¶ 18, 263
Wis. 2d 294, 661 N.W.2d 491, arguing that the court rejected this test.
While the court in Zielinski “declined to adopt a bright-line rule regarding
causation for fear of over-simplifying such a complex issue,” the court nonetheless noted
that “the bright-line tests [are] useful in establishing important factors to be considered.”
Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, ¶ 18, 263 Wis. 2d 294, 661 N.W.2d
491. Moreover, the court simply considered those factors in determining whether there
was sufficient evidence of significant exposure to support an expert opinion that nonoccupational exposures substantially contributed to plaintiffs’ injuries. The court sees no
error, manifest or otherwise, in this approach.

B. Workers’ Compensation Exclusivity Provision
Plaintiffs’ next argument is confusing, to say the least. At the motion to dismiss
stage, the court held any claim premised on exposure to asbestos fibers arising out of
employment, including exposure to asbestos from fibers that remained on the plaintiff’s
clothing after leaving the plant, was barred by Wisconsin’s Workers Compensation Act’s
exclusivity provision set forth at, Wis. Stat. § 102.03(2). (See 8/12/14 Op. & Order (dkt.
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#93) 5-13; see also 11/4/14 Op. & Order (dkt. #116) 5-6 (rejecting motion for
reconsideration).)

Plaintiffs effectively ignored this ruling at summary judgment,

submitting evidence of this so-called “take-home” exposure. In its summary judgment
decision, the court only considered exposure based on other family members taking home
asbestos fibers on their clothing, noting its prior decision at the motion to dismiss stage.
(2/19/16 Op. & Order (dkt. #464) 26 n.12.) Now, plaintiffs argue that the court erred
in failing to “make findings about victim transport evidence discussed in the expert
reports.” (Pl.’s Mot. (dkt. #470) 19.)
Plaintiffs are correct that the court ignored this evidence. The court’s treatment of
it, however, was proper, because that evidence concerned occupational exposure, and
therefore could not, as a matter of law, support their nuisance claims based on nonoccupational exposure.

To the extent plaintiffs are challenging the court’s legal

determination, plaintiffs already filed a motion for reconsideration, which was rejected.
Their most recent motion, coming some 21 months after this court’s original holding, is
simply untimely. Even if that ship had not already sailed, the court sees no merit in the
challenge for reasons already thrice explained.

C. Private Nuisance Claim
The court granted summary judgment to defendant on plaintiffs’ private nuisance
claim, finding that plaintiffs failed to respond to defendant’s argument that such a claim
required a current property right or possessory interest. (2/19/16 Op. & Order (dkt.

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#363) 58-59.) In failing to respond, plaintiffs waived any opposition. (Id. (citing Bonte
v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010).)
In their motion for reconsideration, plaintiffs argue that by merely citing the
Restatement (Second) of Torts § 821 and a lone case, Milwaukee Metro. Sewage Dist. v.
City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, they somehow
responded to this argument. Not so. Plaintiffs utterly failed to develop any response to
defendant’s argument for summary judgment on their private nuisance claims.

Even

now, with the benefit of plaintiffs’ motion to reconsider, the court is hard-pressed to see
how these two citations oppose or undermine defendant’s argument.
Neither the Restatement nor the case cited state that a possessory interest need
not be current. Absent such a statement, the court finds no basis for concluding that the
summary judgment opinion disregarded or misapplied controlling precedent. See Oto v.
Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (“A ‘manifest error’ is not
demonstrated by the disappointment of the losing party. It is the ‘wholesale disregard,
misapplication, or failure to recognize controlling precedent.’” (citation omitted)).
In addition to arguing that they did not waive their opposition, plaintiffs also now
direct the court to a case that purportedly undermines the requirement for a current
possessory interest. (Pl.’s Mot. (dkt. #470) 22 (citing Northridge Co. v. W.R. Grace & Co.,
205 Wis. 2d 267, 556 N.W.2d 345 (Ct. App. 1996)).)

Putting aside the issue of

plaintiffs’ failure to explain what prevented them from bringing this case to the court’s
attention on a timely basis at summary judgment, the case actually concerns whether a
defendant must have a current possessory interest in the source of the nuisance for a
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plaintiff to bring such a claim, which for obvious reasons is an entirely different question.
Once again, because reconsideration is only warranted where the court disregards,
misapplies or otherwise fails to recognize controlling precedent, Oto, 224 F.3d at 606,
plaintiffs have wholly failed to meet their burden.
In the alternative, plaintiffs seek to amend their complaints to add a negligence
claim instead of a nuisance claim.

As defendant explains in great detail, plaintiffs

originally filed negligence claims but, for whatever reason, abandoned those claims in
favor of nuisance claims. (Def.’s Opp’n (dkt. #477) 18 & n.13.) Rule 59(e) does not
“provide a vehicle for a party to undo its own procedural failures.” Bordelon v. Chi. Sch.
Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000) (citation omitted).
Moreover, in five of the above-cited cases, judgment has been entered. “It is wellsettled that after a final judgment, a plaintiff may amend a complaint under Rule 15(a)
only with leave of court after a motion under Rule 59(e) and 60(b) has been made and
the judgment has been set aside or vacated.” Figgie Int’l, Inc. v. Miller, 966 F.2d 1178,
1179 (7th Cir. 1992).

In light of the court’s rejection of all of plaintiffs’ bases for

reconsideration, there is no reason for the court to set aside the judgment and allow
plaintiffs to start fresh with a new claim.
As for plaintiffs Boyer and Sydow, they fail to offer any reason for their delay in
seeking leave to amend, other than the statement that they did not know they would
need to pursue a negligence claim until their private nuisance claims were dismissed.
That is not how litigation works. Discovery is closed; summary judgment has already
been determined; and the trial in Boyer is less than one week away, with the trial in
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Sydow commencing the following month. It is simply too late and too prejudicial to
allow these plaintiffs to add a new claim, especially one which plaintiffs previously
asserted but then abandoned.

ORDER
IT IS ORDERED that:
1) Plaintiffs’ motions for reconsideration (Boyer, ‘286 dkt. #470; Heckel, ‘459 dkt.
#328; Jacobs, ‘899 dkt. #284; Masephol, ‘186 dkt. #534; Prust, ‘143 dkt. #376;
Seehafer, ‘161 dkt. #354; and Sydow, ‘219 dkt. #491) are DENIED.
2) Defendant Weyerhaeuser’s motions to strike plaintiffs’ briefs in reply (Boyer,
‘286 dkt. #493; Heckel, ‘459 dkt. #336; Jacobs, ‘899 dkt. #292; Masephol, ‘186
dkt. #542; Prust, ‘143 dkt. #384; Seehafer, ‘161 dkt. #362; and Sydow, ‘219
dkt. #500) are GRANTED IN PART AND DENIED IN PART.
Entered this 5th day of May, 2016.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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