Masephol, Richard v. 3M Company et al
Filing
107
ORDER granting 104 Motion for Leave to File Reply Brief; granting 106 Motion for Leave to File Reply Brief; granting in part and denying in part 90 Motion for Reconsideration; denying 91 Motion for Reconsideration. Owens-Illinois Inc. termina ted as defendant in this action. Plaintiffs' proposed second amended complaint is deemed the operative pleading. Defendants' answer is due within 21 days, except as expressly excused in this opinion and order. Signed by District Judge William M. Conley on 11/4/2014. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MILTON BOYER and KATHY BOYER,
Plaintiffs,
OPINION AND ORDER
v.
14-cv-286-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, OWEN-ILLINOIS, CO.,
Defendants.
---------------------------------------------------------------------------------------------------------------------------RICHARD MASEPHOL,
Plaintiffs,
v.
14-cv-186-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
---------------------------------------------------------------------------------------------------------------------------JANET PECHER, Individually and as Special
Administrator on behalf of the Estate of Urban Pecher,
Plaintiffs,
v.
14-cv-147-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
---------------------------------------------------------------------------------------------------------------------------VIRGINIA PRUST, Individually and as Special
Administrator on behalf of the Estate of Valmore Prust,
Plaintiff,
v.
14-cv-143-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
---------------------------------------------------------------------------------------------------------------------------ROGER SEEHAFER and JANICE SEEHAFER,
Plaintiffs,
v.
14-cv-161-wmc
WEYERHAEUSER COMPANY and
OWENS-ILLINOIS INC.,
Defendants.
---------------------------------------------------------------------------------------------------------------------------WESLEY F. SYDOW and THERESA SYDOW,
Plaintiffs,
v.
14-cv-219-wmc
WEYERHAEUSER COMPANY, 3M COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, and OWENS-ILLINOIS INC.,
Defendants.
In opinions dated August 22, 2014, this court granted motions to dismiss filed by
defendants Weyerhaeuser Company and Owens-Illinois Inc. in the above-captioned
cases, all of which arise out of plaintiffs’ alleged injuries from asbestos exposure. In that
2
opinion, the court (1) dismissed all claims against Weyerhauser Company, finding them
barred by the exclusive remedy provision of the Wisconsin Workers Compensation Act,
Wis. Stat. § 103.03(2); and (2) dismissed all claims based on plaintiffs’ patent licensing
theory against Owens-Illinois Inc., finding them meritless as a matter of law. The court
further found that any proposed amendment of plaintiff’s claims against Weyerhaeuser
and Owens-Illinois based on the patent licensing theory would be futile, but allowed
plaintiffs to re-plead in good faith any claims against Owens-Illinois premised on its sale
of asbestos door cores to which the individual plaintiffs were exposed. (8/22/14 Opinion
& Order (‘286 dkt. #94).)
Plaintiffs move for reconsideration of this opinion and order. These motions will
be denied because they either (1) rehash arguments that were previously raised and
rejected in their original oppositions to defendants’ motions to dismiss, or (2) raise new
arguments that could have been asserted in their oppositions and have since been waived,
but, even if considered, do not warrant reconsideration.1
In addition to these motions for reconsideration, each plaintiff has filed proposed
second amended complaints, containing additional allegations about (1) community
exposure relevant to plaintiffs’ claims against Weyerhaeuser; and (2) their respective
dates of employment with Weyerhaeuser and/or Roddis (the company which previously
operated the factory where plaintiffs worked) as compared to the dates of OwensIllinois’s sale of fire-proof door cores. In light of these new allegations, the court will
The one caveat to that denial is that the court will treat plaintiffs’ motions for leave to
amend discussed below as extensions of their motions for reconsideration to the extent
necessary to or implicit in plaintiffs’ request for relief.
1
3
grant the motions for leave to amend to: (1) all plaintiffs to proceed on nuisance claims
against Weyerhaeuser limited to the alleged community exposure to asbestos that is
demonstrably separate and distinct from their exposures during the course of their
employment; and (2) plaintiffs Prust and Seehafer to proceed on strict liability and
negligence claims against Owens-Illinois limited to its sale of the asbestos door cores
under the brand name “Kaylo” to plaintiffs’ employer during the 1940s and 1950s.2
OPINION
I. Motions for Reconsideration
Disposition of a motion for reconsideration is entrusted to the district court’s
discretion. Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th
Cir. 1996) (citing Billups v. Methodist Hosp., 922 F.3d 1300, 1305 (7th Cir. 1991)). To
prevail on a motion to alter or amend under Rule 59(e), the movant must present 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).3 “A ‘manifest error’ is not demonstrated by the
disappointment of the losing party. It is the ‘whole sale disregard, misapplication, or
failure to recognize controlling precedent.’” Id. (quoting Sedrak v. Callahan, 987 F. Supp.
2
Owens-Illinois did not move to dismiss Pecher and Sydow’s complaints, and therefore
the court did not dismiss any claims against Owens-Illinois in those actions. Despite this,
these plaintiffs still filed motions for reconsideration. Since there is nothing to
reconsider, the court will deny those motions as moot.
3
Consistent with the parties, the court considers plaintiffs’ motions under Rule 59(e),
without expressing an opinion as to its applicability. (See Boyer Br. on Weyerhaeuser
Claims (‘286 dkt. #100) 1 n.1; Weyerhaeuser Opp’n (‘286 dkt. #113) 1; Owens-Illinois
Opp’n (‘286 dkt. #103) 1-2.)
4
1063, 1069 (N.D. Ill. 1997)).
Accordingly, “[r]econsideration is not an appropriate
forum for rehashing previously rejected arguments or arguing matters that could have
been heard during the pendency of the previous motion.”
Caisse Nationale de Credit
Agricole, 90 F.3d at 1270. Plaintiffs’ motions for reconsideration fall well short of this
admittedly high bar.
A. Dismissal of Claims against Weyerhaeuser
Plaintiffs posit several arguments in support of their motion for reconsideration of
the court’s dismissal of claims against Weyerhaeuser, most of which the court rejects out
of hand.
First, plaintiffs argue that the court erred in failing to recognize that
Weyerhaeuser’s reliance on Wisconsin Workers Compensation Act’s exclusive remedy
provision is preempted by the Federal Clean Air Act and EPA regulations. (Boyd Br. on
Weyerhaeuser Claims (‘286 dkt. #100) 3 (discussing Bell v. Cheswick Generating Station,
734 F.3d 188 (3d Cir. 2013)).) There are at least two problems with this argument. As
an initial matter, plaintiffs failed to raise the argument in response to Weyerhaeuser’s
motions to dismiss, and there is no reason why it could not have been raised at that time.
LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir. 1995) (“[A]
motion to alter or amend a judgment is not appropriately used to advance arguments or
theories that could and should have been made before the district court rendered a
judgment.”)). An even larger problem, were this court inclined to consider the merits of
the argument, is that it is nonsensical.
Here, plaintiffs are seeking to assert state tort claims against Weyerhaeuser, not a
Federal Clean Act claim or some other federal environmental claim. As such, whether a
5
federal statutory claim preempts a state tort claim has no import whatsoever on state
claims for exposure caused by asbestos fibers remaining on work clothing outside of
plaintiffs’ place of employment. The court, therefore, affirms its holding that any tort
claim premised on exposure to asbestos fibers arising out of employment are barred by
the exclusive remedy provision of Wisconsin’s Workers Compensation Act, Wis. Stat. §
103.03(2).
Second, plaintiffs contend that the court erred because “[h]arm caused by
exposures to asbestos in violation of DNR regulations against visible emissions cannot be
precluded by WCA exclusivity.” (Boyd Br. on Weyerhaeuser Claims (‘286 dkt. #100)
5.) This argument fails as well. Like plaintiff’s federal preemption argument, plaintiffs
could have made this argument in opposition to defendant’s motions to dismiss and
failed to do so for no good reason.
Moreover, plaintiffs fail to develop or offer any
support for the proposition that a regulation defining hazardous substances upends the
well-defined, exclusive remedy provision of the Wisconsin Workers Compensation Act.
Finally, to the extent that plaintiffs now seek to establish liability based on community
exposure to asbestos, something entirely separate from plaintiffs’ original claim of
exposure during the course of their employment, the court addresses that request below
as part of plaintiffs’ motions for leave to proceed on a second amended complaint.
Third, plaintiffs argue that the court failed to construe allegations contained in
their first amended complaint in the light most favorable to plaintiffs and, in any event,
that they should be granted leave to amend that complaint.
In their first amended
complaints, plaintiffs alleged this notion of “community” exposure to asbestos in a vague,
6
conclusory manner. Accordingly, the court found these allegations failed to meet the
requirements of Federal Rule of Civil Procedure 8. (8/22/14 Opinion & Order (‘286 dkt.
#94) 12 n.4.) The court finds no error in this determination, although it is willing to
revisit the statement that plaintiff could not “unring” that bell based on new allegations
about community exposure.
Specifically, in the proposed second amended complaints, each plaintiff essentially
alleges with sufficient detail that they experienced measurably, causally distinct exposure
to asbestos from their jobs based on Weyerhaeuser’s release of asbestos fibers into the
community via ambient air, in landfills, etc. (See, e.g., Boyer Proposed Am. Compl. (‘286
dkt. #99-2) ¶ 23.) While the court is highly skeptical that plaintiffs will ultimately be
able to untangle their multiple exposures to asbestos on the job from community
exposures in a manner that would permit a reasonable jury to award separate damages for
community exposure, the court nonetheless finds that plaintiffs’ allegations meet the
minimum requirements of Rule 8 and will allow them to pursue nuisance claims against
Weyerhaeuser based solely on plaintiffs’ exposure to asbestos not arising from their
employment. In all other respects, plaintiffs’ motions for reconsideration of the court’s
decision on Weyerhaeuser’s motions to dismiss are denied.
B. Dismissal of Claims against Owens-Illinois
Plaintiffs’ motion for reconsideration of this court’s finding that any claim
premised on Owens-Illinois’ licensing of a patent merely rehashes arguments already
made in opposition to Owens-Illinois’ motions to dismiss and fails as a matter of law.
7
Having already addressed and rejected these arguments, the court sees no basis for doing
so again.
In fairness, plaintiffs do cite to a new case for support, albeit one that was issued
prior to plaintiffs’ filing of their oppositions to Owens-Illinois’ motions to dismiss. See
Quirin v. Lorillard Tobacco Co., 13 C 2633, 2014 WL 585090 (N.D. Ill. Feb. 14, 2014).
But to the extent Quirin is on point at all -- notably, it does not concern the liability of a
patent licensor -- it is consistent with the court’s original opinion and order. In that case,
the district court held that a duty to warn “attaches only when the manufacturer
incorporated the asbestos-containing material into its product.” Id. at *8. Here, too, the
court allowed an opening for negligence and strict liability claims based on OwensIllinois’ manufacturing and sale of the Kaylo asbestos door core to Roddis, plaintiffs’
employer and Weyerhaeuser’s predecessor.
In the proposed second amended complaints, plaintiffs now allege that “O-I
designed, manufactured, and sold Kaylo core to Roddis [Weyerhaeuser’s predecessor]
during the late 1940s into the late 1950s.” (Pecher Proposed 2nd Am. Compl. (‘147 dkt.
#69-2) ¶ 66.)4
Plaintiffs Pecher, Prust, Seehafer and Sydow each commenced
employment at Roddis in the 1950s. (See Pecher Proposed 2nd Am. Compl. (‘147 dkt.
#69-2) ¶ 23 (1953 to 2000); Prust Proposed 2nd Am. Compl. (‘143 dkt. #64-2) ¶ 23
4
Curiously, Boyer’s proposed amended complaint alleges that O-I sold the Kaylo core to
Roddis “during the late 1940s into the early 1950s.” (Boyer Proposed 2nd Am. Compl.
(‘286 dkt. #99-2) ¶ 75 (emphasis added).) While it is not clear why this complaint
alleges that O-I ceased selling its door core in the early 1950s, rather than the late 1950s,
the distinction is not material to Boyer’s claim since his employment with Weyerhaeuser
/ Roddis did not begin until the 1970s.
8
(1958 or 1959 to 1978); Seehafer Proposed 2nd Am. Compl. (‘161 dkt. #80-2) ¶ 31
(March 1955 to May 1955 and 1963 to 1999); Sydow Proposed 2nd Am. Compl. (‘219
dkt. #81-2) ¶ 23 (1947 to 1951 and 1953 to 1990).) In contrast, plaintiffs Boyer and
Masephol did not commence their employment until the 1970s, well after Owens-Illinois
stopped selling its Kaylo door cores to Roddis and/or Weyerhaeuser.
(See Boyer
Proposed 2nd Am. Compl. (‘286 dkt. #99-2) ¶¶ 67 (1973 to 1983); Masephol Proposed
2nd Am. Compl. (‘186 dkt. #91-2) ¶ 19 (1973 to 1979).)5
Based on these facts, therefore, the court will allow Prust and Seehafer to proceed
on strict liability and negligence claims against Owens-Illinois based on plaintiffs’
exposure to Owens-Illinois’s Kaylo door cores.6 In all other respects, plaintiffs’ motions
for reconsideration of the court’s decision on Owens-Illinois’s motions to dismiss are
denied.
5
Indeed, by the time Boyer and Masephol began their employment, Owens-Illinois was
no longer licensing the patent for producing fire-proof doors. (See Boyer Proposed 2nd
Am. Compl. (‘286 dkt. #99-2) ¶ 79 (licensing ended in 1969)).)
6
Owens-Illinois argues that the dangers of asbestos were not known until at least the
1960s, after it ceased selling the Kaylo door cores to Roddis, and therefore the dangers
were not foreseeable at the time Owens-Illinois sold Kaylo door cores to Roddis. (OwensIllinois’ Opp’n (‘286 dkt. #103) 6-13.) Recognizing that this argument extends beyond
the contours of the pleading stage, Owens-Illinois suggests that the court convert
plaintiffs’ motion to a motion for summary judgment.
(Id. at 4-5 n.1.) The court
declines this invitation and will take up whether the risk was foreseeable, and any other
defenses, at a later stage.
9
ORDER
IT IS ORDERED that:
1) plaintiffs’ motions for leave to file reply briefs (‘286 dkt. ##114, 115; ‘186
dkt. ##104, 106; ‘147 dkt. #75; ‘143 dkt. ##78, 79; ‘161 dkt. #95, 96; 219
dkt. #94) are GRANTED;
2) plaintiffs’ motions for reconsideration based on this court’s decisions granting
defendant Weyehaeuser’s motions to dismiss (‘286 dkt. #99; ‘186 dkt. #90;
‘147 dkt. #69; ‘143 dkt. #64; ‘161 dkt. #80; ‘219 dkt. #81) are GRANTED
IN PART AND DENIED IN PART as set forth above;
3) plaintiffs Pecher’s and Sydow’s motions for reconsideration based on this
court’s decisions granting defendant Owens-Illinois’ motions to dismiss (‘147
dkt. #70; ‘219 dkt. #82) are DENIED AS MOOT;
4) plaintiffs Prust’s and Seehafer’s motions for reconsideration based on this
court’s decisions granting defendant Owens-Illinois’ motions to dismiss (‘143
dkt. #65; ‘161 dkt. #81) are GRANTED IN PART AND DENIED IN PART
as set forth above;
5) plaintiffs Boyer’s and Masephol’s motions for reconsideration based on this
court’s decision granting defendant Owens-Illinois’ motions to dismiss (‘286
dkt. #100; ‘186 dkt. #91) are DENIED and the clerk of court is directed to
terminate Owens-Illinois as a defendant in those two actions; and
6) plaintiffs’ proposed second amended complaints filed in each of the abovelisted actions are now deemed the operative pleadings and defendants’
respective answers to those complaints are due on or before 21 days, except as
expressly excused in this opinion and order.
Entered this 4th day of November, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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