Kilty, Pamela et al v. Weyerhaeuser Company et al

Filing 279

OPINION AND ORDER granting in part and denying in part 42 Weyerhaeuser Company's Motion to Dismiss. Signed by District Judge William M. Conley on 4/17/18. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PAMELA KILTY, individually and as
Special Administrator of the Estate of
Elvira Kilty, PAUL J. KILTY, DAVID
L. KILTY, WILLIAM J. KILTY and
JAMES S. KILTY,
Plaintiffs,

OPINION AND ORDER

v.

16-cv-515-wmc

WEYERHAEUSER COMPANY, 3M COMPANY,
and METROPOLITAN LIFE INSURANCE
COMPANY,
Defendants.
----------------------------------------------------------------------------------------------------------------------------SCOTT SPATZ, individually and as
Special Administrator of the Estate of
Herbert Spatz,

v.

Plaintiff,

WEYERHAEUSER COMPANY, 3M COMPANY,
and METROPOLITAN LIFE INSURANCE
COMPANY,

16-cv-726-wmc

Defendants.
These are the two most recent cases asserting asbestos-related claims against
defendant Weyerhaeuser Company, among other defendants. Elvira Kilty and Herbert
Spatz, both deceased, are former Weyerhaeuser employees.

In an end around the

Wisconsin Worker’s Compensation Act’s exclusivity provision, their estates and respective
family members assert claims against Weyerhaeuser based on non-workplace exposure – socalled “community exposure” to asbestos. Weyerhaeuser nevertheless moves to dismiss

those claims based on a variety of arguments, the most significant of which is that the
community exposure claims are still barred by the exclusivity provision. Among other
defenses, Weyerhaeuser argues that plaintiffs’ nuisance claims are barred by the applicable
statute of limitations. (Weyerhaeuser’s Mot. (‘515 dkt. #42; ‘726 dkt. #31).)1
For the reasons that follow, the court will: (1) deny defendant’s motion to dismiss
under the exclusivity provision of the Workers’ Compensation Act; (2) grant the motion
as to plaintiffs’ nuisance claims; (3) grant defendant’s unopposed motion to bar plaintiff
from relying on the federal regulatory scheme to prove negligent conduct; (4) deny the
motion seeking to exclude plaintiffs’ claim for punitive damages; and (5) deny defendant’s
argument that plaintiffs’ claims are barred by public policy.

ALLEGATIONS OF FACT
Both of plaintiffs’ respective complaints allege claims against defendant
Weyerhaeuser based on asbestos fibers transported or emitted outside of the plant, either
by “a. worker clothing, personal effects, hair, and skin [that] had become contaminated by
asbestos fibers at the plant; and b. collecting, removing, hauling, and dumping asbestos
dust and waste materials.” (Am. Compl. (dkt. #39) ¶ 27.)2 Based on these emissions into

1

Unless otherwise noted, all references to the docket are to Case No. 16-cv-515.

The court understands that plaintiffs’ claims only involve exposure to asbestos fibers brought by
others into homes shared by the plaintiffs, not by plaintiffs themselves. The court already explained
how the former would be barred by Wisconsin’s Workers’ Compensation Act’s exclusivity
provision. See Boyer v. Weyerhaeuser Co., 39 F. Supp. 3d 1036, 1042 (W.D. Wis. 2014), on
reconsideration in part (Nov. 4, 2014), aff’d sub nom. Pecher v. Owens-Illinois, Inc., 859 F.3d 396 (7th
Cir. 2017) (“[W]hile 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.’”).
2

2

the community and plaintiffs’ alleged exposure to these emissions, plaintiffs bring claims
for common law negligence (Count I), negligent nuisance (Count II), and intentional
nuisance (Count III) against defendant Weyerhaeuser.

OPINION
I. Worker’s Compensation Act’s Exclusivity Provision
This court has previously addressed whether claims like plaintiffs are barred by the
WCA’s exclusivity provision. In Boyer v. Weyerhaeuser Co., 39 F. Supp. 3d 1036, 1042
(W.D. Wis. 2014), on reconsideration in part (Nov. 4, 2014), aff’d sub nom. Pecher v. OwensIllinois, Inc., 859 F.3d 396 (7th Cir. 2017), the court held that exposure to asbestos arising
out of employment -- including exposure outside of the workplace to fibers a worker carried
home from the place of employment -- were barred by the WCA’s exclusivity provision
because the exposure still “arose out of” employment.” On a motion for reconsideration,
however, the court allowed plaintiffs to pursue a claim based on allegations that they
“experienced measurably, causally distinct exposure to asbestos other than from their jobs
based on Weyerhaeuser’s release of asbestos fibers into the community via ambient air, in
landfills, etc.” Boyer v. Weyerhaeuser, No. 14-cv-286, slip op., at *7 (W.D. Wis. Nov. 4,
2014) (dkt. #116).

In so ruling, the court expressed skepticism that plaintiffs “will

ultimately be able to untangle their multiple exposures to asbestos on the job from other
community exposures in a manner that would permit a reasonable jury to award separate
damages for community exposure,” but allowed plaintiffs to pursue nuisance claims against
Weyerhaeuser “based solely on plaintiffs’ exposure to asbestos not arising from their

3

employment.” Id.
In its pending motion to dismiss in the above captioned cases, defendant
Weyerhaeuser effectively seeks reconsideration of this court’s holding in Boyer based on
two arguments: (1) the Seventh Circuit’s consideration of an appeal brought by some
plaintiffs involving the court’s treatment of expert testimony on causation and
Weyerhaeuser’s motion for summary judgment, among other issues, in Pecher v. OwensIllinois, Inc., 859 F.3d 396 (7th Cir. 2017); and (2) the persuasiveness of two decisions by
other state courts involving asbestos exposure, which were not previously brought to this
court’s attention, in Melendrez v. Ameron Int’l Corp., 240 Cal. App. 4th 632 (Cal. Ct. App.
2015), and Campbell v. Lockheed Shipbuilding Corp., 61 P.3d 1160, 1161 (Wash. Ct. App.
2002).
In its opening brief, Weyerhaeuser argues that “[t]he Seventh Circuit has already
stated that identical, asbestos-related mesothelioma claims are covered by the WCA and
subject to its exclusivity provision.” (Weyerhaeuser’s Opening Br. (dkt. #43) 3.) In its
reply, Weyerhaeuser was compelled to acknowledge that the Seventh Circuit did not reach
this issue on appeal (Weyerhaeuser’s Reply (dkt. #55) 6), and instead now argues that
court “indicate[d]” the claims should be barred by the WCA’s exclusivity provision (id. at
7-8). Even that characterization is a reach. In the introductory paragraph of the Seventh
Circuit’s decision, the court stated that “the claims at issue are covered by the exclusive
remedy provisions of the Wisconsin Worker’s Compensation Act,” and that “[p]laintiffs[’]
attempt to get around this bar by recharacterizing their injuries as occurring off the job” is
“unavailing.” Pecher, 859 F.3d at 398. Nothing in that statement, nor in the Seventh

4

Circuit’s general “affirm[ance of] the multiple rulings of the district court dismissing the
claims against both defendants on appeal and denying reconsideration,” suggested that
court was taking a harder line on “community effects” evidence than did this court. To the
contrary, if the Seventh Circuit had held that this court’s line-drawing -- delineating the
boundaries of a community exposure claim -- was in error, the court need not have reached
the question of causation at all, much less make it the focus of the appellate decision. As
such, while the Seventh Circuit was certainly skeptical of the plaintiffs’ ability to
demonstrate causation -- a skepticism it shared with this court -- the Seventh Circuit did
not hold explicitly or implicitly that community exposure claims were barred by the WCA’s
exclusivity provision.
As for defendant’s citations to two out-of-state decisions in support of its argument
that the “claims against Weyerhaeuser based on the same WCA-covered injury should be
dismissed” (Weyerhaeuser’s Opening Br. (dkt. #43) 1-2), neither Melendrez nor Campbell
require this court to reconsider its earlier ruling on community exposure, because each is
materially distinguishable from the present case. In Melendrez, the plaintiff was exposed to
asbestos during the course of his employment with Ameron International Corporation.
Melendrez, 240 Cal. App. 4th at 635. Ameron allowed its employees to take home reject
Bondstrand pipe if they had a signed permission slip from their supervisor. Id. at 636.
Melendrez took pipe home each day that he could, and he used the pipe to make flower
pots and part of a patio.

Id.

Melendrez’s employment ended in 1985, and he was

diagnosed with mesothelioma caused by asbestos exposure in 2010 and he died in 2011.
Id. Plaintiffs sued Ameron for wrongful death, and Ameron moved for summary judgment,

5

arguing that California’s Workers’ Compensation Act barred the claim. Id. at 637. The
trial court granted Ameron’s motion for summary judgment, which the California Court of
Appeals affirmed. Id. That court held that although a triable issue of fact existed regarding
whether Melendrez’s home exposure arose out of the course of employment, it was
undisputed that the exposure Melendrez sustained during his employment substantially
contributed to his mesothelioma. Id. Under the so-called “contributing cause standard,”
therefore,

Melendrez’s

mesothelioma

was

covered

under

California’s

Workers’

Compensation Act. Id.
As already explained in prior opinions, if plaintiffs were alleging claims based on
exposure to asbestos fibers carried home from the plant (for example, on their clothing),
those claims would have been barred by the Worker’s Compensation Act because the
exposure would still arise out of the employment, regardless of the fact that the exposure
actually occurred at home. See supra n.2. In light of the facts at issue in Melendrez,
therefore, this court would have agreed that his claim was barred, albeit for a different
reason. Regardless, Melendrez is materially distinguishable from the present case because
California’s causation standard is different than the causation standard articulated by the
Seventh Circuit in considering asbestos claims under Indiana law and applied by this court
in its past asbestos cases. Melendrez applies the contributing cause standard to hold that
because the plaintiff’s employment substantially contributed to his mesothelioma,
plaintiff’s tort claim was barred by California’s Workers’ Compensation Act.

Under

Melendrez then, if a plaintiff’s employment is a “substantial contributing factor” to his or
her injury, that plaintiff’s injury is barred by California’s Workers’ Compensation Act, and

6

no other causes are to be considered.
The Seventh Circuit interprets the “substantial contributing cause standard”
differently. In Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), the Seventh Circuit
rejected the idea that “the so-called substantial factor test is a comparative test in which
the jury assess[es] all contributing causes and determines which ones are substantial.”
Tragarz, 980 F.2d at 424. Instead, the Seventh Circuit stated that:
courts in applying the substantial factor test do not seem
concerned with which of the many contributing causes are most
substantial. Rather, they seem concerned with whether each
contributing cause, standing alone, is a substantial factor in
causing the alleged injury.
Id. (emphasis added). Applying the Seventh Circuit’s interpretation, at the pleading stage,
plaintiffs do not need to allege that the deceased’s non-occupational exposure was more
substantial than the deceased’s occupational exposure. Rather, plaintiffs must allege that
the former factor, on its own, substantially contributed to their injury. While plaintiffs
will carry the significant burden of proving that non-occupational, community exposure,
on its own, were a substantial contributing factor to the deceased’s mesothelioma at
summary judgment, the Wisconsin Workers’ Compensation Act does not preclude
plaintiffs from bringing such a claim altogether.
Campbell can also be distinguished from the present case. In that case, Patrick
Campbell worked on Lockheed’s premises while he was a Lockheed employee. Campbell,
61 P.3d at 1161. He also worked on Lockheed’s premises while he was employed by some
of Lockheed’s subcontractors. Id. In 2001, Campbell was diagnosed with mesothelioma
and sought to bring a tort claim against Lockheed for the asbestos exposure he sustained

7

while working for subcontractors on Lockheed’s premises, alleging that the Longshore
Harbor Workers’ Compensation Act (“Longshore Act”) did not bar his tort claim because
Lockheed was not his employer at the time of the injury. Id. at 1162-63. The Washington
Court of Appeals held that Campbell could not bring a tort claim against Lockheed because
the Longshore Act limited its liability and provided the exclusive remedy for his injury. Id.
at 1164. The court reasoned that because both Lockheed and its subcontractors employed
Campbell for part of the time he was exposed to asbestos, they all constituted “employers”
under the Longshore Act, and all of them were exclusively liable for Campbell’s injury
under that Act. Id. at 1163.
Again, the present case does not call for the same outcome. Unlike the deceased in
the present case, Campbell sustained all of his asbestos exposure on Lockheed’s premises;
Campbell did not allege any community or other non-occupational exposure. Second,
Campbell principally addresses how far liability spreads for asbestos exposure when
someone variously worked as a defendant’s employee and for independent contractors on
that same defendant’s property, an issue that is not even before this court.
In short, neither Melendrez and Campbell offer a reason for this court to reconsider
its position on community exposure. While the court remains skeptical that plaintiffs will
be able to prove the causal link, or that a reasonable jury could allocate separate damages
to that community exposure, that skepticism alone is an insufficient basis to dismiss
plaintiffs’ complaints, and defendant’s motion to dismiss under the WCA’s exclusivity
provision is DENIED.

8

II. Statute of Limitations Defense
Next, defendant seeks dismissal of plaintiffs’ respective nuisance claims on the basis
that they are barred by the applicable statute of limitations. In response, plaintiffs clarify
that they are only pursuing public nuisance claims. In the previous Weyerhaeuser asbestos
cases, the plaintiffs pursued private nuisance claims, and the court determined that those
claims were barred by the statute of limitations, which the Seventh Circuit affirmed in
Pecher. See Boyer, No. 12-CV-899-WMC, 2016 WL 705233, at *25; Pecher, 859 F.3d at
400.
Weyerhaeuser contends, however, that the public nuisance claims are also barred
by the statute of limitations, since those claims similarly involve a claimed injury -- the
public right to clean air -- which on the face of plaintiffs’ complaints ended when
Weyerhaeuser ceased use of asbestos in 1979. (Weyerhaeuser’s Reply (dkt. #55) 18-19;
Am. Compl. (dkt. #39) ¶ 12 (alleging that Weyerhaeuser’s predecessor used asbestos in
the manufacturing of fireproof doors from 1955 to 1979).) Plaintiffs’ sole response to this
argument is to recycle arguments relying on private nuisance cases that have already been
rejected by this court. (Pls.’ Opp’n (dkt. #49) 18-19.) In particular, as the court previously
explained, the situation at issue in the stray voltage cases cited by plaintiffs, Allen v.
Wisconsin Public Service Corporation, 2005 WI App 40, ¶ 8, 279 Wis. 2d 488, 694 N.W.2d
420), and Gumz v. Northern States Power Company, 2006 WI App 165, ¶ 3, 295 Wis. 2d
600, 721 N.W.2d 515, involve cases where the injury was known, but the source of the
injury was not. See Boyer, 2016 WL 705233, at *26 (“While the court agrees the discovery
rule is available for private nuisance claims, it would only apply when the plaintiff is aware

9

of an injury, but does not know its cause. In the stray voltage context, for example, the
plaintiff farmers knew that their cows were suffering; they simply did not know the source
of their injury.”). Here, however, the claimed injury -- mesothelioma -- did not arise until
decades after the alleged nuisance, further proving that a nuisance claim, whether private
or public, intentional or negligent, is ill-fitted to the facts at issue in these cases. See id.
(“[D]efendant’s statute of limitations defense highlights again the ill fit of this claim to
plaintiff's injuries: the claimed injury is not the enjoyment of plaintiff's land.”)
While plaintiffs failed to develop any other argument, the court considered whether
plaintiffs’ claims could be viewed as a continuing nuisance, relieving plaintiffs of the sixyear statute of limitations under Wis. Stat. § 893.52 for damage to property or the likely
more appropriate, three-year statute of limitations under Wis. Stat. § 893.54 and § 893.57
for intentional and negligent tort claims. See generally Sunnyside Feed Co. v. City of Portage,
222 Wis. 2d 461, 469, 588 N.W.2d 278, 282 (Wis. Ct. App. 1998) (describing difference
between permanent and continuing nuisance). The alleged air quality issue, however, still
ended with Weyerhaeuser ceasing use of asbestos in 1979 or shortly thereafter, rendering
meaningless whether the admissions during the course of Weyerhaeuser’s use of asbestos
could be viewed as a continuing nuisance. Moreover, even if the asbestos exposure itself
could be deemed an injury, a continuing injury “does not extend the period of limitations.”
Stockbridge-Munsee Cmty. v. Wisconsin, No. 17-CV-249-JDP, 2017 WL 4857646, at *4
(W.D. Wis. Oct. 25, 2017) (quoting Turley v. Rednour, 729 F.3d 645, 654 (7th Cir. 2013)).
Accordingly, plaintiffs’ nuisance claims are DISMISSED.

10

III. Applicability of Clean Air Act Standards
The court previously considered a similar challenge in Boyer, concluding that the
plaintiffs could not “rely on NESHAP or other regulatory standards under the CAA to
prove negligent conduct under either a private or public nuisance claim” because it “would
upend the federal statutory scheme.” Boyer v. Weyerhaeuser Co., No. 14-CV-143-WMC,
2015 WL 3485262, at *2 (W.D. Wis. June 2, 2015), reconsideration denied, No. 14-CV-143WMC, 2015 WL 12912320 (W.D. Wis. July 21, 2015), aff’d sub nom. Pecher v. OwensIllinois, Inc., 859 F.3d 396 (7th Cir. 2017). Conceding this point in their opposition,
plaintiffs state that the reference to this statutory scheme at paragraph 49(o) in the
amended complaint was an oversight. (Pls.’ Opp’n (dkt. #49) 21.) As such, this portion
of defendant’s motion is GRANTED as unopposed.

IV. Availability of Punitive Damages
Weyerhaeuser also seeks dismissal of plaintiffs’ claim to punitive damages on the
basis that their pleadings do not meet the requirement of Federal Rule of Civil Procedure
8.

Under Wisconsin law, punitive damages are available if plaintiffs can prove an

intentional disregard of their rights. See Wis. Stat. § 895.043(3). Whether or not it can
be proved, plaintiffs here have sufficiently alleged that defendant acted in intentional
disregard of their rights in releasing asbestos fibers into the air. (See, e.g., Am. Compl. (dkt.
#39) ¶¶ 31-36 (alleging that Weyerhaeuser knew of emissions and knew that exposure to
asbestos emissions caused disease and death).) This is all that is needed to meet the
requirements of Rule 8. Accordingly, this portion of the motion will be DENIED.

11

V. Public Policy Concerns
Finally, Weyerhaeuser seeks dismissal of the remaining negligence claim on public
policy grounds. The court previously rejected this same argument and will do so again
here.
While this argument may have merit, the court declines to
consider it on the pleadings alone, finding that the court will
benefit from a more robust record in weighing the public policy
factors. Also, the court is concerned about judicial efficiency,
since there will be no need to consider public policy if there is
no finding of negligence. See Alvarado v. Sersch, 2003 WI 55, ¶
18, 262 Wis.2d 74, 662 N.W.2d 350 (“In most cases, the
better practice is to submit the case to the jury before
determining whether the public policy considerations preclude
liability.”).
Boyer, 2015 WL 3485262, at *4. As such, this part of the motion is also DENIED.

ORDER
IT IS ORDERED that defendant Weyerhaeuser Company’s motion to dismiss (‘515
dkt. #42; ‘726 dkt. #31) is GRANTED IN PART AND DENIED IN PART consistent
with the above opinion.
Entered this 17th day of April, 2018.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

12