Boyer, Milton et al v. Weyerhaeuser Company et al
Filing
94
OPINION AND ORDER denying as moot 52 Motion for Relief Under Wis. Stat. § 802.025; granting 86 Motion to Dismiss; granting 8 Motion to Dismiss. Weyerhaeuser is dismissed from this action. Plaintiff may have until September 22, 2014, to file an amended complaint alleging specific facts necessary to state a claim for strict liability against Owens-Illinois. Signed by District Judge William M. Conley on 8/22/14. (jat)
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, and OWENS-ILLINOIS INC.,
Defendants.
Plaintiffs Milton and Kathy Boyer bring claims against defendants arising out of
Milton’s exposure to asbestos and a related disease, malignant mesothelioma. Before the
court are two motions to dismiss.
In the first motion, defendant Weyerhaeuser
Company, the former owner of a door manufacturing plant where Milton Boyer worked
and asbestos fireproofing products were produced, moves to dismiss the claims brought
against it as barred by Wisconsin’s Workers’ Compensation Act. (Dkt. #8.) In the
second motion, defendant Owens-Illinois Company seeks dismissal of product liability
claims premised solely on its licensing of a patent claiming a fireproof door. (Dkt. #86.)
For the reasons that follow, the court will grant both motions and dismiss Weyerhaeuser
and Owens-Illinois as defendants.1
1
Owens-Illinois also filed a motion to order plaintiffs’ compliance with Wis. Stat. §
802.025, a new state statute requiring disclosure of asbestos trust claims, among other
provisions. (Dkt. #52.) Because the court grants Owens-Illinois’ motion to dismiss, it
need not reach the merits of this motion, and accordingly, will deny it as moot.
ALLEGATIONS OF FACT2
A. The Parties
Plaintiff Milton Boyer previously was employed at a door manufacturing plant in
Marshfield, Wisconsin, where asbestos fireproofing products were manufactured and
products containing asbestos were used in the manufacturing process. Plaintiff Kathy
Boyer is his wife.
Defendant Weyerhaeuser Company is the former owner of the Marshfield plant.
Weyerhaeuser is legally responsible for the conduct of Roddis Plywood Corporation, the
former (former) owner and operator of the Marshfield plant. Defendant 3M designed,
manufactured and sold masks for personal breathing protection in occupational settings,
including the 3M 8710 mask.
Defendant Metropolitan Life Insurance Company
allegedly conspired to conceal information about the health hazards of asbestos from
both individual end-users and industry. Finally, defendant Owens-Illinois sold licenses
for a patent to manufacture fireproof doors, which in practice incorporated asbestoscontaining cores. Owens-Illinois also manufactured, sold and designed asbestos products,
including a fireproof door core under the brand name “Kaylo.”
B. Exposure to Airborne Asbestos Fibers
Plaintiffs allege that Milton Boyer “inhaled airborne asbestos fibers released
during operations at the Marshfield plant as a result of the following:”
2
The court assumes the following facts as alleged, viewed in a light most favorable and
conceding all reasonable inferences to plaintiffs. See Adkins v. VIM Recycling, Inc., 644
F.3d 483, 493 (7th Cir. 2011).
2
a. his employment at the Marshfield plant beginning in or
around 1973;
b. asbestos fibers contaminating the home, auto, lunchroom,
and other locations where non-work related activities were
performed;
c. asbestos fibers released from the Marshfield plant
operations, which contaminated the surrounding community;
[and]
d. transport of asbestos fibers from the Marshfield plant to
other locations.
(1st Am. Compl. (dkt. #69) ¶ 14.) Plaintiffs allege that as a result of these exposures,
Milton Boyer “suffered from the asbestos related disease malignant mesothelioma.” (Id.
at ¶ 16.)
In pleading negligent and intentional nuisance claims against defendant
Weyerhaeuser in particular, plaintiffs further allege that:
Weyerhaeuser, during operations to manufacture fire doors at
the Marshfield plant beginning on the 1950s, caused asbestos
fibers to be released and contaminate the air in various
settings in which no work related activities were being
conducted or the plaintiff was not engaged in worked related
activities, including without limitation:
a. the community surrounding the plant;
b. homes and vehicles;
c. landfills; and
d. activities on the premises which were not work related.
(Id. at ¶ 43.) Plaintiffs also allege that “the operations of Weyerhaeuser’s Marshfield
plant caused dangerous asbestos fibers to be transported to areas more distant through
various means, including without limitation:”
3
a. worker clothing, personal effects, hair and skin which had
been contaminated by asbestos fibers at the plant; and
b. collecting, removing, hauling, and dumping asbestos waste
materials.
(Id. at ¶ 44.)
JURISDICTION
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332.
Plaintiffs Milton and Kathy Boyer are citizens of Wisconsin. (1st Am. Compl. (dkt.
#69) ¶ 1.)
Defendant Weyerhaeuser Company is incorporated in the state of
Washington, with its principal place of business in Washington. (Id., Ex. A (dkt. #691).) Defendant 3M Company is incorporated in the state of Delaware, with its principal
place of business in Minnesota. (Id.) Defendant Metropolitan Life Insurance Company
is incorporated in the state of Delaware, with its principal place of business in New York.
(Id.) Finally, defendant Owens-Illinois, Inc. is incorporated in the state of Delaware, with
its principal place of business in Ohio. (Id.) In light of the extent of plaintiff Milton
Boyer’s injuries, the amount in controversy also exceeds $75,000.
On the face of the amended complaint, plaintiffs purport to name three other,
unnamed insurance companies as defendants. The law is clear, however, that “because
the existence of diversity jurisdiction cannot be determined without knowledge of every
defendant’s place of
citizenship, ‘John Doe’ defendants are not permitted in
federal diversity suits.” Howell by Goerdt v. Tribune Entm’t Co., 106 F.3d 215, 218 (7th
Cir. 1997). The court, therefore, will dismiss these unnamed defendants. See id. Should
4
plaintiffs learn the name of these insurance companies in a timely fashion and wish to
add them as defendants -- assuming their addition would not destroy complete diversity
-- plaintiffs may seek leave from the court to amend their complaint.
OPINION
I. Weyerhaeuser’s Motion to Dismiss
Weyerhaeuser posits two bases for dismissing plaintiffs’ complaint.
First,
Weyerhaeuser contends that plaintiff’s claims of negligent and intentional nuisance -- the
sole claims alleged against Weyerhaeuser3 -- are barred by the exclusivity provision of
Wisconsin’s Workers’ Compensation Act (“WCA”), Wis. Stat. § 103.03(2).
Second,
defendant contends that plaintiffs’ allegations fail to meet the requirement of Federal
Rule of Civil Procedure 8. Because the court finds that plaintiffs’ claims are barred by
the WCA, the court need not reach the second basis for dismissal.
A. Overview of Wisconsin’s Workers Compensation Act
Wisconsin Statute § 102.03(1) defines employer liability where the following
applicable “conditions” occur:
(a) Where the employee sustains an injury.
(b) Where, at the time of the injury, both the employer and
employee are subject to the provisions of this chapter.
3
Plaintiffs also seek punitive damages (Count VIII) against all defendants, but those
damages are not available absent liability for an underlying tort. See, e.g., Capital Times
Co. v. Doyle, 2011 WI App 137, ¶ 7, 337 Wis. 2d 544, 807 N.W.2d 666 (explaining that
under Wisconsin law, punitive damages are only available based on proof of underlying
cause of action and actual damages).
5
(c)1. Where, at the time of the injury, the employee is
performing service growing out of and incidental to his or her
employment.
2. Any employee going to and from his or her employment in
the ordinary and usual way, while on the premises of the
employer, or while in the immediate vicinity of those
premises if the injury results from an occurrence on the
premises; . . .
...
(e) Where the accident or disease causing injury arises out of
the employee’s employment.
...
Subsection (2) of the same statute provides that “Where such conditions exist the right
to the recovery of compensation under this chapter shall be the exclusive remedy against
the employer, any other employee of the same employer and the worker's compensation
insurance carrier.” Wis. Stat. § 102.03(2) (emphasis added).
Because it was the parties’ focus in briefing Weyerhaeuser’s motion to dismiss, the
court will also focus on the requirements that (1) “the employee is performing service
growing out of and incidental to his or her employment” under § 102.03(1)(c)1; and (2)
“the accident or disease causing injury arises out of the employee’s employment,” §
102.03(1)(e). See Johnson v. Hondo, Inc., 125 F.3d 408, 418 (7th Cir. 1997) (“In order for
employer liability under the Worker’s Compensation Act to be triggered, the injured
employee at the time of injury had to have been ‘performing service growing out of and
incidental to his or her employment’ and ‘the accident or disease causing injury [must
have arisen] out of the employment.’”) (citing Weiss v. City of Milwaukee, 208 Wis. 2d 95,
105 559 N.W.2d 588, 591 (1997)).
6
B. Analysis
Anticipating plaintiffs’ response, defendant’s opening brief focused on the “dual
persona” exception to the WCA exclusivity provision. (Def.’s Opening Br. (dkt. #9) 7-1
(discussing Henning v. Gen. Motors Assembly, 419 N.W.2d 551, 552 (Wis. 1988)).) In
their opposition brief, however, plaintiffs contend that the WCA does not govern
plaintiffs’ injuries because the injury was not sustained while plaintiff was “performing
service growing out of and incidental to his or her employment” and because “[p]laintiff’s
community exposures and take-home exposures do not as a matter of law . . . arise from
the ‘course of employment.’” (Pls.’ Opp’n (dkt. #85) 3.)
With respect to whether Boyer’s injury was sustained while he was performing
service growing out of and incidental to his employment, this requirement is easily met
by the facts as plead. As the Wisconsin Supreme Court explained in Weiss, 208 Wis. 2d
at 105, 559 N.W.2d at 591:
[P]erforming service growing out of and incidental to his or
her employment is used interchangeably with the phrase
course of employment. Both phrases refer to the time, place,
and circumstances under which the injury occurred.
An injury is said to arise in the course of the employment
when it takes place within the period of the employment, at a
place where the employee reasonably may be, and while he
[or she] is fulfilling his [or her] duties or engaged in doing
something incidental thereto.
(internal citations and quotation marks omitted; alterations in original); see also Goranson
v. Dep’t of Industry, Labor & Human Relations, 94 Wis. 2d 537, 548, 289 N.W.2d 270,
276 (1980) (“The phrase . . . ‘course of employment’ refers to the time, place and
circumstances of the accident in relation to the employment.”).
7
Here, the alleged cause of injury is exposure to asbestos fibers. Plaintiffs assert in
their opposition brief that the alleged “exposures occurred during plaintiff’s activities
outside the workplace” (Pls.’ Opp’n (dkt. #85) 3), but the allegations in the complaint -at least some of them -- directly contradict that assertion (see, e.g., 1st Am. Compl. (dkt.
#69) ¶ 14 (“Plaintiff inhaled airborne asbestos fibers released during operations at the
Marshfield plant as a result of
. . . his employment at the Marshfield in or around
1973.”).) Although plaintiffs also allege that Boyer was exposed to asbestos through
“asbestos fibers contaminating the home, auto, lunchroom and other locations,” the facts
as alleged lead to the inescapable conclusion that this exposure was due in substantial
part to Boyer’s actions at work (e.g., cutting asbestos, cleaning up asbestos fibers, etc.),
which he then transported in his hair, skin and clothing to other parts of the plant, areas
immediately surrounding work, his car, home and other places where he regularly spent
time.
The requirement that the injury must arise out of the employment is also easily
met. To arise out of employment, the injury need not be “caused by the employment,”
although plaintiff’s allegations arguably meet that higher burden. Rather, “an accident
arises out of employment when by reason of employment the employee is present at a
place where he is injured through the agency of a third person, an outside force, or the
conditions of the location constituting a zone of special danger.” Cutler-Hammer, Inc. v.
Indus. Comm’n, 5 Wis. 2d 247, 254, 92 N.W.2d 824, 828 (1958); see also Weiss, 208 Wis.
2d at 107, 559 N.W.2d at 593 (“The ‘arising out of’ language of § 102.03(1)(e) refers to
8
the causal origin of an employee’s injury.”) (citing Goranson, 94 Wis. 2d at 549, 289
N.W.2d at 276). So, too, here.
Admittedly, sometimes the “arises out of” requirement may diverge from the
“performing services” requirement. See, e.g., Goranson, 94 Wis. 2d at 550, 56, 289
N.W.2d at 276-77, 79 (holding that driver was in course of employment at time of injury
but the accident did not arise out of his employment because “the injuring force was
purely personal to him”). Here, however, the injury -- exposure to asbestos fibers -- arose
out of Boyer’s employment because of certain “conditions of the location constituting a
zone of special danger.” As explained above, while exposure may have extended beyond
the workplace due to fibers on clothing, in cars, at home and elsewhere, the injury still
“arose out of his employment.” Indeed, although not the focus of the parties, another
provision of the Workers’ Compensation Act expressly states as much: “Any accident or
disease arising out of a hazard of such service shall be deemed to arise out of the
employee’s employment.” Wis. Stat. § 102.03(1)(f); see also Consol. Papers, Inc. v. Dep’t of
Indus., Labor & Human Relations, 76 Wis. 2d 210, 223, 251 N.W.2d 69, 76 (1977)
(recognizing that “occupational diseases” arise out of employment).
Still, to avoid this seemingly inevitable holding, plaintiffs attempt to draw an
analogy to situations where an employee is injured while laundering his uniform at home
or in an accident commuting from his home to his place of employment. (Pls.’ Opp’n
(dkt. #85) 11.) However, the injured individuals in those situations were not performing
employment services by doing laundry at home or even driving to work. See, e.g., McRae
v. Porta Painting, Inc., 2009 WI App 89, ¶ 9, 320 Wis. 2d 178, 769 N.W.2d 74 (“[T]he
9
typical employee going to or from work is not covered until he or she reaches the
employer's premises. An employee going to work is ordinarily in the prosecution of his or
her own business, not performing services incidental to employment.”) (internal citations
and quotation marks omitted); Gibbs Steel Co. v. Indus. Comm’n, 243 Wis. 375, 379, 10
N.W.2d 130, 131 (1943) (rejecting workers’ compensation claim where injury was
sustained slipping on a bath mat because sleeping and bathing are “requirements of
ordinary life and not of any particular employment”).
This court’s finding that the alleged injury occurred while plaintiff was performing
service of employment and arose out of that employment appears consistent with all case
law examining this issue, at least as identified by the parties. For example, in Silkwood v.
Kerr-McFee Corp., 667 F.2d 908 (10th Cir. 1981), rev’d on other grounds, 464 U.S. 238
(1984), the Tenth Circuit reversed the district court’s denial of defendant’s motion for
judgment notwithstanding the verdict, finding that Oklahoma’s Workers’ Compensation
Act provided the exclusive remedy for injuries caused by exposure to radiation from
plutonium found at plaintiff’s apartment, where plaintiff was an employee of a nuclear
fuel processing plant operated by defendants.
In so holding, the court reviewed the
evidence of plaintiff’s exposure to plutonium and found that “all the plutonium found in
her body came from her working with and around plutonium.” Id. at 918. The fact that
her apartment -- and in particular, her bathroom, kitchen and bedroom -- was
contaminated, did not alter the court’s finding that the injury occurred in the course of
her employment, finding “a logical nexus between Silkwood’s injury and her work.” Id.
at 919.
10
Similarly, in two state court cases involving tort claims premised on injury to
employees caused by asbestos fibers remaining on clothing outside of the place of
employment, courts rejected these claims as barred by workers’ compensation laws. See
Acevedo v. Consolidated Edison Co. of N.Y., 189 A.D.2d 497, 499 (N.Y. App. Div. 1993)
(affirming trial court’s exclusion of tort claims premised on employee’s exposure to
asbestos fibers remaining on clothing after they had returned home because “any damage
resulting from such harm will clearly have arisen out of plaintiffs’ employment and is
governed exclusively by the Workers’ Compensation Law”); Swanson v. Simpson Timer Co.,
No. B244266, 2013 WL 5469261, at *8 (Cal. Ct. App. Oct. 2, 2013) (unpublished)
(finding so-called “secondary asbestos exposure” claim barred by the workers’
compensation act because:
(1) the injury “is derivative as it is depending upon the
compensable injury arising from and in the course of and scope of Swanson’s
employment;” and (2) “Swanson’s secondary self-exposure from the asbestos fibers and
dust on his works clothes would not have occurred if he were not exposed to asbestos in
the course and scope of his employment”).
Plaintiffs’ attempt to distinguish these cases is entirely unpersuasive.
While
different states’ workers’ compensation laws govern, the substantive provisions are similar
to those in Wis. Stat. § 102.03, and similarly limit remedies to those available under the
respective workers’ compensation laws. See, e.g., Silkwood, 667 F.2d at 916 (describing
“arising out of and in the court of employment” and “exclusive” liability provisions in
Okla. Stat. Ann. tit. 85); Acevedo, 189 A.D.2d at 500 (describing Section 11 of New
York’s Wisconsin Compensation Law as providing the “sole and exclusive remedy [of]
11
any accidental injury arising out of and in the course of employment”); Swanson, 2013
WL 549261, at *8 (describing California’s workers compensation act as covering injuries
“arising out of and in the course of the employment” and limiting recovery to that
system).
Finally, plaintiffs persist in arguing that inhalation of fibers did not occur until
“after fibers are transported off the premises . . . during non-employment activities such
as laundering clothes, other household activities, in areas contaminated by asbestos
fibers, or riding in the car.” (Pls.’ Opp’n (dkt. #10-11).) This theory of liability is
implausible given plaintiffs’ allegation that Milton Boyer was exposed to asbestos during
his employment. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual
allegations must be enough to raise a right to relief above the speculative level on the
assumption that all of the complaint's allegations are true.”).4
Because there is no way for plaintiffs to “unring” this bell by amendment, the
court will grant Weyerhaeuser’s motion to dismiss plaintiffs’ causes of actions asserted
against it, and will dismiss Weyerhaeuser from this action with prejudice.
See, e.g.,
Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008) (“A plaintiff pleads himself
out of court when it would be necessary to contradict the complaint in order to prevail
To the extent plaintiffs rely on general allegations of asbestos exposure from landfills or
in the air within the larger community -- in other words, exposure entirely unrelated to
his employment -- plaintiffs’ allegations do not meet the plausibility requirements of Rule
8. For example, the complaint contains no allegations that Boyer lived near the plant or
its transportation routes, close to a landfill containing asbestos or ambient air with high
asbestos content. Moreover, the theory that Milton Boyer’s injury was caused by
asbestos fibers entirely unrelated to his employment is not plausible, given plaintiffs’
allegation that he was exposed to asbestos through and as a direct byproduct of his
employment. See Bell Atl., 550 U.S. at 555.
4
12
on the merits.”); Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (“A complaint can
also allege too much; a plaintiff may unwittingly plead himself out of court by alleging
facts that preclude recovery.”); see also Rohler v. TRW, Inc., 576 F.2d 1260, 1266 (7th Cir.
1978) (explaining that permission to amend may be refused if it is “apparent on the fact
of [plaintiff’s] initial complaint” that “plaintiff cannot state a claim upon which relief can
be granted”).
II. Owens-Illinois’ Motion to Dismiss
Defendant Owens-Illinois moves to dismiss plaintiffs’ claims for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). While plaintiffs generally allege
product liability claims against Owens-Illinois sounding in negligence and strict liability
(1st Am. Compl. (dkt. #69) Counts I and II), the foundation for both claims is OwensIllinois’ role as licensor of a fireproof door patent. (Id.) Consistent with governing case
law, therefore, Owens-Illinois attached Patent No. 2,593,050 to its motion to dismiss,
which claims a fireproof door or panel comprising, in part, “a core of inorganic, rigid, fireproof, light weight material of a substantially uniform apparent density and consistency
throughout . . . .” (O-I’s Mot. to Dismiss, Ex. A (dkt. #86-1) 4:35-38.)5 The patent
claims do not require asbestos as the core, though asbestos is mentioned in the
specification.
5
“Documents attached to a motion to dismiss are considered part of the pleadings if they
are referred to in the plaintiff’s complaint and are central to his claim.” Menominee Indian
Tribe of Wis. v. Thompson, 161 F. 3d 449, 456 (7th Cir. 1998) (internal citation and
quotation marks omitted). Here, plaintiffs refer to a patent and the patent is central to
plaintiffs’ product liability claims asserted against Owens-Illinois.
13
A. Negligence
A negligence products liability claim requires proof of four elements: “(1) a duty
of care on the part of the defendant; (2) a breach of that duty; (3) a causal connection
between the conduct and the injury; and (4) an actual loss or damage as a result of the
injury.” Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 55, 245 Wis. 2d 772, 629
N.W.2d 727 (quoting Morden v. Cont’l AG, 2000 WI 51, ¶ 45, 235 Wis. 2d 325, 611
N.W.2d 659)). The first element is “the obligation of due care to refrain from any act
which will cause foreseeable harm to others.” Id. Whether there is a duty of care is a
question of law for the court. Strasser v. Transtech Mobile Fleet Serv., Inc., 236 Wis.2d 435,
459, 613 N.W.2d 142, 154 (2000) (“[T]he existence of a duty presents a question of
law.”).
Accordingly, plaintiffs’ negligence claim turns on whether the licensing of a
patent which claims a fireproof door and specifies use of asbestos at its core “foreseeably
creates an unreasonable risk to others.” Bittner v. Am. Honda Motor Co., Inc., 194 Wis. 2d
122, 148, 533 N.W.2d 476, 486. As a matter of law, the court concludes that plaintiffs
cannot state a negligence claim based only on a party’s licensing of a technology, even if
used by the licensee to create a product containing asbestos.
This conclusion is consistent with a line of cases rejecting similar product liability
claims premised on the licensing of a patent alone. See, e.g., In re Celotex Corp., 487 F.3d
1320, 1338 (11th Cir. 2007) (rejecting products liability claim based on defendant being
nothing “more than a mere licensor” of a patent concerning “a variety of formulation of
insulation, some that do not contain asbestos and some that do”); Smith v. Wyeth, Inc.,
657 F.3d 420, 424 (6th Cir. 2011) (holding, consistent with its view of the majority of
14
courts addressing this issue, that “manufacturer of a name-brand drug has no duty to
patients who ingested only a generic version of the drug manufactured by the namebrand drug company's competitors”).
In response, plaintiffs cite to Dolin v. SmithKline Beecham Corp., No. 12 C 6403,
2014 WL 804458, at *5 (N.D. Ill. Feb. 28, 2014), for support. While the district court
rejected the majority review in that case, denying summary judgment to defendant
despite being the licensor of a patent, it did so based on the defendant’s role in drafting
the design and language of the warning label. As such, the defendant’s conduct extended
beyond mere licensing of a patent. Plaintiffs would also make much of the fact that
Wisconsin courts adopted the minority opinion in Palsgraf v. Long Island R.R. Co., 162
N.E. 99, 103 (N.Y. 1928), including that “[e]veryone owes to the world at large the duty
of refraining from those acts that may unreasonably threaten the safety of others.”
Hornback v. Archdiocese of Milwaukee, 2008 WI 98, ¶ 22, 313 Wis. 2d 294, 752 N.W.2d
862. In contrast, the majority view limited the duty to the “particular victim,” whose
risk is foreseeable. Id. Whatever the import of that distinction generally, however, it is
immaterial to plaintiffs’ claim here.
Whether owed to others at large or particular
victims, the duty still turns on the foreseeability of risk, and courts have repeatedly
dismissed negligence claims because the injury was not foreseeable to a defendant who
played no role in the manufacturing, marketing or use of the product. See, e.g., Geboy v.
TRL, Inc., 159 F.3d 993, 1000 (7th Cir. 1998) (rejecting negligence claim brought under
Wisconsin law against a “party who is in the chain of distribution, but have never
assembled, inspected nor used the product”); Rolph v. EBI Cos., 159 Wis. 2d 518, 53615
37464 N.W.2d 667, 674 (rejecting negligence claim against reconditioner for failing to
correct design defects created by manufacturers); Pelnar v. Rosen Sys., Inc., 964 F. Supp.
1277, 1284 (E.D. Wis. 1997) (rejecting negligence claim on public policy grounds
asserted against an auction company).
B. Strict Liability
Plaintiffs’ strict liability claim against Owens-Illinois is similarly flawed.
To
impose strict liability under Wisconsin law, the defendant must be “engaged in the
business” of selling the alleged defective product. Geboy v. TRL, Inc., 159 F.3d 993, 999
(7th Cir. 1998); see also St. Clare Hosp. of Monroe, Wis. v. Schmidt, Garden, Erickson, Inc.,
148 Wis. 2d 750, 757, 437 N.W.2d 228, 231 (Ct. App. 1989) (strict liability “is
imposed only on manufacturers, distributors and sellers -- those who place or maintain
the product in the stream of commerce”). In Geboy, the Seventh Circuit rejected a strict
liability claim against the broker of used products, explaining that “[t]he application of
strict liability in tort is premised on certain public policy considerations which assumes
that the manufacturer/seller is in the paramount position to distribute the costs of the
risks created by the defective product he is selling.” Id.; see also Green v. Smith & Nephew
AHP, Inc., 2001 WI 109, ¶ 56, 245 Wis. 2d 772, 629 N.W.2d 727 (the focus of a strict
liability claim, in contrast to a negligence claim, is “not on the defendant’s conduct, but
on the nature of the defendant’s product”).
As alleged, Owens-Illinois is not a “seller” and there is no “product” sold by
Owens-Illinois. While plaintiffs also allege that Owens-Illinois “manufactured, sold, and
16
designed asbestos products, including without limitation fire door cores,” referred to by
the brand name “Kaylo” (1st Am. Compl. (dkt. #69) ¶ 6), plaintiffs fail to allege that
Boyer’s former employer purchased or otherwise used Owens-Illinois’ Kaylo door cores in
manufacturing its fireproof doors. Absent such an allegation,6 plaintiffs do not state a
viable strict liability claim premised on the manufacturing and selling of Kaylo door cores
against Owens-Illinois under Wisconsin law. However, on the unlikely chance plaintiffs
can allege that Owens-Illinois sold Kaylo door cores to Boyer’s former employer for use
during his employ, the court will grant plaintiffs 30 days to file an amended complaint.
ORDER
IT IS ORDERED that:
1) defendant Weyerhaeuser Company’s motion to dismiss (dkt. #8) is
GRANTED. Count III and IV of plaintiffs’ first amended complaint are
dismissed with prejudice and defendant Weyerhaeuser is dismissed from this
action;
2) defendant Owens-Illinois Inc.’s motion to dismiss (dkt. #86) is GRANTED.
Counts I and II of plaintiffs’ first amended complaint premised on OwensIllinois’s role as a licensor are dismissed with prejudice;
3) plaintiff may have until September 22, 2014, to file an amended complaint
alleging specific facts necessary to state a claim for strict liability against
Owens-Illinois, provided they can do so in good faith; and
6
While outside the purview of a motion to dismiss, Owens-Illinois represents that it was
out of the business of manufacturing door cores more than a decade before Boyer’s
exposure to asbestos alleged in this action. (Owens-Illinois’s Reply (dkt. #93) 2.) As a
result, it appears that plaintiffs cannot in good faith make such an allegation.
17
4) defendant Owens-Illinois’s motion for relief under Wis. Stat. § 802.025 (dkt.
#52) is DENIED AS MOOT.
Entered this 22nd day of August, 2014.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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