Kilty, Pamela et al v. Weyerhaeuser Company et al
ORDER granting 171 Motion for Summary Judgment; granting in part and denying in part 242 Rule 72 Objections to the Magistrate Judge's Order of 3/7/2018; denying as moot 251 Motion in Limine; granting in part and denying in part 256 Motio n to Strike; denying as moot 284 Motion to Stay; denying as moot 288 Motion for Leave to File Reply; denying as moot 289 Motion to Join. Upon resolution of plaintiffs' remaining claims against defendant 3M Company, the clerk is directed to enter judgment in favor of defendant Weyerhaeuser Company. Signed by District Judge William M. Conley on 6/8/2018. (arw)
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,
OPINION AND ORDER
WEYERHAEUSER COMPANY, 3M COMPANY,
and METROPOLITAN LIFE INSURANCE
----------------------------------------------------------------------------------------------------------------------------SCOTT SPATZ, individually and as
Special Administrator of the Estate of
WEYERHAEUSER COMPANY, 3M COMPANY,
and METROPOLITAN LIFE INSURANCE
Plaintiffs, the estates and family members of two former employees of defendant
Weyerhaeuser Company, assert negligence claims against Weyerhaeuser based on nonoccupational community and household exposure to asbestos fibers emitted from a
Weyerhaeuser manufacturing facility. These two cases are the second wave of asbestosrelated claims asserted against Weyerhaeuser in this court. Pending among other matters
are Weyerhaeuser’s motions for summary judgment and related motions, challenging
plaintiffs’ evidence of causation, particularly their experts’ testimony. In the first wave of
cases, the court considered virtually the same challenges and established a framework for
considering the reliability of expert testimony, the causation requirement and the necessary
evidence to survive summary judgment. See Boyer v. Weyerhaeuser Co., No. 12-CV-899WMC, 2016 WL 705233, at *1 (W.D. Wis. Feb. 19, 2016). The Seventh Circuit Court
of Appeals reviewed and affirmed that decision, albeit criticizing treatment of plaintiff
experts’ opinion testimony as too “deferential.” Pecher v. Owens-Illinois, Inc., 859 F.3d 396,
400 (7th Cir. 2017) (“This admission under Rule 702 seems overly deferential to a highly
dubious theory of harm, but neither this nor the exclusion of the same testimony with
respect to the three plaintiffs on appeal could be considered an abuse of discretion.”).
With this case law in mind, the court will grant both of defendant’s summary
judgment motions here, finding that even under its more generous view of the admissibility
of expert testimony, plaintiffs have failed to offer sufficient evidence for a reasonable jury
to find that their non-occupational exposure to asbestos constituted a substantial
contributing factor to plaintiffs’ mesothelioma diagnoses. As such, the court will direct
entry of judgment in defendant Weyerhaeuser’s favor. 1
Having granted Weyerhaeuser judgment, its motion to stay proceedings pending an interlocutory
appeal of the court’s decision denying Weyerhaeuser’s motion to dismiss plaintiffs’ claim as barred
by the exclusivity provision of Wisconsin’s Workers Compensation Act is moot, as it its related
motion to file a reply brief in support of the stay and defendant 3M’s motion to join Weyerhaeuser’s
motion to stay. (‘515 dkt. ##284, 288, 289; ‘726 dkt. ##235, 239, 240.)
Before turning to the merits of Weyerhaeuser’s motions for summary judgment, the
court must first take up a number of preliminary matters.
A. Appeal of Judge Crocker’s Discovery Order
First, plaintiffs appeal from a discovery order by Magistrate Judge Crocker, which
(1) denied their motion for leave to depose two witnesses, Richard Luther and Charles
Reno, after the close of discovery, and (2) shifted defendant’s costs in opposing that motion
to plaintiffs as a sanction pursuant to Federal Rule of Civil Procedure 37(a)(5)(B). (3/7/18
Order (‘515 dkt. #199; ‘726 dkt. #151); 3/22/18 Order (‘515 dkt. #249; ‘726 dkt. #204);
Pls.’ Rule 72 Objs. (‘515 dkt. #242; ‘726 dkt. #200).) In their respective Rule 26(a)(1)
disclosures, served on October 31, 2017, plaintiffs disclosed as a category of witnesses
“Weyerhaeuser Site Workers,” indicating they may have discovery information on a variety
of topics. (Kilty’s Rule 26(a)(1) Disclosures (‘515 dkt. #59) ¶ A.7; Spatz’s Rule 26(a)(1)
Disclosures (‘726 dkt. #48) ¶ A.7.) At the time, plaintiffs also attached as Exhibit A a list
of 118 such witnesses, including Luther and Reno. (Id. at Ex. A.)
Defendants did not object to this initial disclosure, but as far as the court can discern
from the parties’ submissions, that was in reliance on plaintiffs’ counsel following the usual
practice in other asbestos cases of winnowing down similar lists by noticing certain
witnesses for deposition. However, on December 21, 2017, counsel for Weyerhaeuser
docketed a letter to Judge Crocker apprising him of a discovery dispute concerning
plaintiffs’ counsel’s unwillingness to name site workers that they intended to notice for
depositions. At its crux, counsel for Weyerhaeuser complained that plaintiffs were insisting
that defendants provide possible dates for depositions before plaintiffs would designate
approximately 15 Site Workers for depositions. 2 In response to counsel’s letter, Judge
Crocker first reprimanded Weyerhaeuser’s counsel for submitting a letter, rather than a
motion, but nonetheless entered an order on December 22, 2017, advising “if a party has
specific witnesses in mind to depose but fails or refuses promptly to identify those witnesses
to opposing counsel as required under Rule 26(a)(1)(A)(i) or in response to opposing
counsel’s request, then that party has violated the preliminary pretrial conference order
and is subject to sanctions under Rule 37(b).” (12/22/17 Order (dkt. #77).) Despite this
admonition, plaintiffs still failed to provide defendants with names of site workers for
In January, Weyerhaeuser provided dates for early February, affirmatively noticing
itself five site workers for depositions, with 3M adding six more. On February 6, 2018,
during one of those depositions, plaintiffs’ counsel indicated that “there are additional
depositions that are going to have to be scheduled in Marshfield . . . . I have co-workers
that I need to call.”
(Koepke Depo. (dkt. #148) 160-61.)
reminded plaintiffs of Judge Crocker’s order and preserved its objections. (Id. at 160-61,
Plaintiffs concede as much in their appeal to this court, representing that “[t]he practice usually
followed in the Marshfield cases is to agree to dates for coworker depositions in advance . . . [and
o]nce dates are agreed upon, the persons to be deposed are determined and notices issued.” (Pls.’
Rule 72 Objs. (dkt. #242) 5.) Unless otherwise noted, all references to the docket are to Case No.
On February 16, 2018, the deadline for the parties to file summary judgment
motions, plaintiffs first noticed Luther’s deposition for February 28, 2018, which was the
date for the close of discovery in this case. On February 22, 2018, plaintiffs’ counsel
informed defendants that it also intended to depose Charles Reno that same day. Plaintiffs
represent that health issues with both deponents, however, prevented either depositions
from actually going forward on February 28. As a result, plaintiffs filed a motion for leave
to take the depositions of both after the close of discovery. In their motion, they argued
that since both were properly disclosed in their October 31, 2017, Rule 26 initial
disclosures, albeit as one of 181 site workers, and that their February 16, 2018, notice of
Luther and February 22, 2018, email regarding Reno were timely, they did not violate the
court’s December 22, 2017, order, particularly since both were identified as soon as
plaintiffs had a “specific witness in mind to depose.” (Pls.’ Mot. (dkt. #192) 6-7.)
On March 7, Judge Crocker denied plaintiffs’ motion, concluding that “[p]laintiffs
did not properly disclose the identities of these two witnesses to defendant in a fair, timely
or useable fashion, [and] then plaintiffs waited until the last minute to attempt to squeeze
in these depositions. This violates the preliminary pretrial conference order in each case
and violates this court’s December 22, 2017 text-only order.” (3/7/18 Order (dkt. #199).)
The court also sanctioned plaintiffs pursuant to Rule 37, directing defendants to submit
their itemized statements of fees and costs, subsequently concluding that the requested
amounts were reasonable and plaintiffs’ motions were not substantially justified. Judge
Crocker stayed the actual payment of those costs until after this court ruled on the present
Rule 72 objections. (Id.; 3/22/18 Order (dkt. #249).)
This court will now affirm Judge Crocker’s order denying plaintiffs’ motion for leave
to take depositions after the close of discovery, but will vacate the part of his order
sanctioning plaintiffs, finding that plaintiffs did not clearly disobey the letter of the court’s
preliminary pretrial conference order nor Judge Crocker’s December 22, 2017, order.
While the court finds that Luther and Reno were included in plaintiffs’ initial disclosures,
plaintiffs broad categories of discovery topics for which these 181 site workers may have
information is unworkable. However, defendants did not object to this initial disclosure.
Instead, defendants focused their efforts on pushing for a narrowed list of site workers to
be deposed; and when plaintiffs failed to identify any site workers in a timely fashion,
defendant brought their concerns to Judge Crocker in a December 21 letter.
December 22 order, Judge Crocker then expressly instructed plaintiffs to identify promptly
witnesses for depositions once they had “specific witnesses in mind to depose.”
For whatever reason, whether gamesmanship as defendants contend or simple
inattention, plaintiffs gambled on delaying until the last minute, naming two witnesses
near the close of discovery, and leaving no wiggle room to ensure that the depositions
would be completed before the end of discovery. This gamble did not pay off. Plaintiffs
were warned, told to act diligently, and as is typical for plaintiffs’ counsel in these cases,
failed to do so. Judge Crocker rightly chose not to bail plaintiffs’ counsel out and neither
will this court if for no other reason than to deter such gamesmanship or lack of diligence
in the future.
Still, the question remains whether plaintiffs’ failure to act sooner violated a prior
order of this court and warranted a sanction under Federal Rule of Civil Procedure
37(b)(2)(A). Certainly, plaintiffs flouted the spirit of Judge Crocker’s December 22nd order
if not the letter, but the express language of the order required plaintiffs to disclose specific
witness when they had them “in mind to depose.” (3/7/18 Order (dkt. #199).) This order
is sufficiently ambiguous to foreclose a finding that plaintiffs disobeyed a court order.
Instead, the appropriate “sanction” is to deny plaintiffs’ request to extend the discovery
deadline with respect to these two late-noticed depositions.
This leaves one final issue unanswered. Weyerhaeuser construes Judge Crocker’s
March 7, 2018, order denying plaintiffs leave to depose Luther and Reno as excluding them
as witnesses, and thus urges the court to strike their declarations submitted in opposition
to summary judgment. (See Weyerhaeuser’s Mot. to Strike (dkt. #256) 5-15.) Since the
March 7 order does not expressly address this issue and defendants themselves did not
object to plaintiffs’ Rule 26(a)(3) disclosure of 181 site workers, and instead simply
challenged plaintiffs’ failure to identify timely witnesses for depositions, striking Luther’s
and Reno’s declarations all together, much less their testimony at trial (were they able to
be subpoenaed or willing to appear voluntarily) seems overly harsh, unless there were
evidence that plaintiffs have actually had them “in mind to depose” or to call at trial well
before they were named. For reasons explained more fully below, however, the court need
not pursue such evidence, since the declarations do not substantially aid plaintiffs’ ability
to demonstrate a causal link between plaintiffs’ alleged non-occupational exposure to
asbestos and their respective mesothelioma diagnoses. As such, while the court considered
the declarations, they ultimately do not preclude summary judgment in defendant’s favor,
mooting any need to exclude their testimony.
B. Weyerhaeuser’s Motion to Exclude Evidence
Weyerhaeuser next seeks to strike the deposition of Elwood Schiller, which was
taken in another proceeding in which Weyerhaeuser was not a party.
As the court
explained in the Boyer summary judgment opinion, the Schiller deposition does not fit
within the contours of Federal Rule of Evidence 804(b) and therefore constitutes hearsay.
Boyer, 2016 WL 705233, at *4. The court sees no reason to reconsider this ruling on the
facts here, and therefore will exclude the Schiller deposition as inadmissible hearsay.
Defendant Weyerhaeuser also seeks to exclude two affidavits executed by plaintiffs’
expert, Dr. Henry Anderson, in 2010 and 2011 in what defendant describes as “other,
unrelated cases.” (Def.’s Mot. to Strike (dkt. #256) 3.) These affidavits were filed in the
first wave of Weyerhaeuser asbestos cases, and cited by Anderson in the reports specific to
these two cases. (See Pl.’s Opp’n (dkt. #275) 3.) The court sees no basis to strike them
from consideration on summary judgment and will not do so.
D.B. Allen Memo
Finally, touching on another familiar topic, Weyerhaeuser seeks to exclude the “D.
B. Allen memorandum.” The court will deny this motion, for the reasons described in
earlier opinions, finding that plaintiffs’ laid a sufficient foundation to authenticate Allen’s
memorandum through his deposition testimony. (See Pls.’ Opp’n (dkt. #275) 33-34.) The
court, however, will limit Allen’s use of the memorandum, disregarding as hearsay the truth
of any statements as to what members of the community reported.
UNDISPUTED FACTS 3
Plaintiff Weyerhaeuser acquired a manufacturing facility located in Marshfield,
Wisconsin, from Roddis in 1960 and sold it in 2000. 4
The Marshfield facility
manufactured wood products with multiple operations and divisions on site, including a
dry kiln, particleboard plant, molded products plant, warehouse, a door factory mill, and a
mineral core plant. Beginning in 1968, Weyerhaeuser manufactured a door “core” that
contained asbestos in the mineral core plant, which was a stand-alone building in the
Marshfield facility. By 1971, production in the mineral core plant was at full capacity,
producing approximately 5500 cores per week, all containing asbestos. Weyerhaeuser
stopped using asbestos in June 1978.
Before 1968, Weyerhaeuser also used asbestos products, but had not manufactured
or otherwise used it in a raw form in its products until then. Asbestos cores used in the
manufacture of fireproof doors were purchased before 1968 from outside vendors. For
example, from 1954 to 1956, Weyerhaeuser manufactured a fireproof door using an
(Def.’s PFOFs (dkt. #258) ¶ 28.)
Beginning in 1959 and
continuing to 1972, Weyerhaeuser also manufactured a fireproof door with a preformed,
asbestos-containing core called “Kaylo.”
For the purposes of deciding the present motion, unless otherwise noted, the court finds the
following facts undisputed and material.
For ease of reference, the court also uses “Weyerhaeuser” to refer to the entity that historically
operated and manufactured products containing asbestos at the Marshfield plant.
As for the layout of the site, the door factory mill or plant, was a multistory building
that contained various operations. In the basement was a veneer dry clipping area; the first
floor included the veneer mill on the south end and the core mill was on the north end,
which is where the doors were first assembled. Before 1968, when the asbestos cores began
to be manufactured onsite, all processing of the third-party purchased cores occurred in
the core mill at the south end, including sawing, grooving and sanding. On the second
floor of the door mill was the glue room, saw and sand area, and door inspection site. On
the third floor, the veneer “flitches” were spliced. There was no cutting or sanding of the
asbestos mineral core on either the second or third floors. Finally, although the parties do
not identify its location, the plant also contained a detail department, which machined the
windows, hinges, locks and other openings and added moldings.
Elvira Kilty worked at the Weyerhaeuser plant between 1955 and 1995. Kilty was
diagnosed with mesothelioma on July 16, 2015, and died on September 1, 2015. Plaintiffs
are decedent’s living children, and their claims arise from decedent’s mesothelioma
diagnosis and death. Because they would otherwise be barred by Wisconsin Workers
Compensation law, plaintiffs’ negligence claim is premised on household and community
exposure. Plaintiffs’ household exposure claim is based on Kilty’s exposure to the work
clothes of her four sons, all of whom also worked at the Weyerhaeuser plant. 5 In particular,
while her children were still living at home, Kilty washed their dirty work clothes.
Kilty’s son Gary, now deceased, started working at the plant after graduation from
high school in May or June of 1966. He married on August 27, 1966, and moved out of
the family home at or around that time. As such, he lived at home for approximately three
months while working at Weyerhaeuser. None of Gary’s brothers had personal knowledge
of his work there, although another employee, William Haeni, testified that Gary worked
in the detail department installing molding. On the other hand, Charles Reno provided a
declaration averring that Gary Kilty worked in the maintenance department, and during
that time, his clothing and person would come into contact with the mineral core dust. 6
Kilty’s son William worked at the Weyerhaeuser facility on two occasions: (1) after
graduating from high school in May 1967 until 1969, when he entered the military; and
(2) from May to August 1971. Because William married straight out of high school in
May 1967 and moved out of the family home at that time, none of his work at the
Marshfield facility appears to have overlapped with his time residing in the family home.
William also testified that he did not work with asbestos mineral core during his
employment. Instead, he worked with wood, and his clothing was dusty from wood dust.
In their response to defendant’s proposed findings of facts, plaintiffs assert state that Kilty was
exposed to asbestos “in family member vehicles, at the residences of the children of Elvira Kilty,
and other settings where the children or their clothing were with Elvira Kilty.” (Pls.’ Resp. to Def.’s
PFOFs (‘515 dkt. #210) ¶ 23.) Plaintiffs, however, cite no support for this statement. As such, the
court has not considered it.
Haeni did not know the exact dates of Gary’s assignment to the detail department, nor was Reno
able to provide dates for Kilty’s work in the maintenance department.
Kilty’s son Dave worked nights at the Marshfield plant for two to three months in
1969 while still in high school and living at home. During that time, however, Dave did
not work in the mineral core area; rather, he worked in the shipping department, loading
finished doors and materials into boxcars. During his deposition, Dave testified that the
dust in the shipping department came from sawing wood.
Finally, Kilty’s son James worked at the plant from between June 3 and August 5,
1977. While in high school and living at home, James testified that he worked exclusively
with wood and did not work with asbestos. James worked on the chop line cutting chunks
of solid wood for the wood core door and in the kiln drying area if help was needed.
As for Kilty’s community exposure, this claim is based on her residing at 703 South
Peach Street in Marshfield from 1955 to 1962, which is located approximately 0.5 miles
from the Weyerhaeuser facility. 7 Other than from 1955 to 1962, however, Kilty lived
outside of the City of Marshfield, and as described above, the mineral core plant did not
open until 1968, six years after Kilty moved out of her South Peach Street residence.
Moreover, plaintiffs offer no evidence of the presence of asbestos fibers at Kilty’s residence,
instead directing the court to representations by other residents in homes in similar
proximity to the plant of off-white dust covering laundry, windows and window sills. (Pls.’
Add’l PFOFs (dkt. #209) ¶¶ 87-93.) In response, defendant points out: (1) the lack of
evidence that this dust was mineral core dust, rather than some other light-colored dust
This court previously determined that a 1.25-mile range of asbestos manufacturing could result in
a significant exposure in light of studies of community exposure to asbestos fibers. See Boyer, 2016
WL 705233, at *19 (describing “zone of risk”).
(e.g., from wood or a nearby cement company); and (2) some witnesses testified that the
dust was sometimes black. (Def.’s Resp. to Pl.’s PFOFs (dkt. #259) ¶¶ 87-93.)
In contrast, Kilty was unquestionably exposed to asbestos during her employment
at the Marshfield plant.
Indeed, during her employment, Kilty worked directly with
asbestos-containing door cores and was part of Weyerhaeuser’s asbestos medical
surveillance program. 8
As a result, plaintiff’s experts acknowledged that Kilty’s
occupational exposure was substantially more than her non-occupational exposure and
would have been sufficient to account for her mesothelioma diagnosis. (Def.’s PFOFs (dkt.
#173) ¶¶ 48-50.)
Herbert Spatz worked at Weyerhaeuser beginning in 1962 until his requirement in
2001, including 11 years in the mineral core mill. Spatz was diagnosed with mesothelioma
on October 28, 2015, and died on January 5, 2016. Plaintiff Scott Spatz is Herbert’s
nephew, who asserts survival and wrongful death claims.
Herbert Spatz’s assertion of non-occupational exposure is limited to asbestos fibers
from his father Joey Spatz’s work clothes. 9 Between 1942 to 1958, Herbert Spatz lived
with his family, including his father Joey Spatz, in a railroad boxcar, consisting of a
bedroom and kitchen, with no bathroom or running water.
His father worked at
Weyerhaeuser as a utility person in the 1950s until at least “two years after mineral core
While the parties do not provide specifics as to Weyerhaeuser’s medical surveillance program, it
appears, at a minimum, to have involved annual medical check-ups, including a chest x-ray.
(Pamela Kilty Depo. (dkt. #112) 58.)
Unlike Kilty, Spatz does not assert a community exposure claim.
door production began.” (Pl.’s Add’l PFOFs (‘726 dkt. #158) ¶ 118.) In his declaration,
Richard Luther averred that he “saw Joey Spatz cleaning up the debris and dust from the
core mill areas where the door production, including mineral core doors, occurred. I also
saw him in other places in the core mill department.” (Luther Decl. (dkt. #230) ¶ 13.)
Herbert’s sister and Joey’s daughter, Caroline, testified that Joey wore his work clothes
home from work, and those clothes were laundered by hand inside the home on a
washboard, though Herbert did not launder his father’s clothes.
As with Kilty, Spatz was occupationally exposed to asbestos during his employment
at the Marshfield plant, and there is no dispute that this exposure substantially contributed
to his mesothelioma diagnosis.
C. Evidence of Asbestos Emissions
Within the plant, plaintiffs contend that asbestos was not contained within the core
mill area, but spread to other parts of the plant through open stairways and elevator shaft
openings. (Pls.’ Add’l PFOFs (dkt. #209) ¶¶ 16-20.) Although defendant challenges the
timing, extent of contamination, and whether the dust (or at least all of the dust) was
actually asbestos dust, former employees testified that the asbestos core materials were
present on employees’ clothing and machines extending beyond the core mill area.
Principally relying on the D.B. Allen memo discussed above, as well as accounts
from employees, plaintiffs put forth evidence, of asbestos dust being released from the
plant into the parking lot and on yards surrounding the plant, as well as into the
community. Specifically, former employees testified that the baghouses the plant used to
collect dust, including mineral core dust, frequently became plugged, resulting in dust
“shoot[ing] up like a geyser.” (Id. at ¶¶ 55-66.) In response, defendant points out that
testimony of baghouses routinely becoming clogged and asbestos fibers being emitted into
the community concern observations from the 1970s, post-dating the relevant community
exposure period here. (See, e.g., Def.’s Resp. to Pls.’ Add’l PFOFs (dkt. #259) ¶ 57.)
Plaintiffs point to disposal of asbestos dust in landfills and ponds as another avenue for
community exposure. However, plaintiffs’ evidence of community exposure from disposal
of asbestos dusts in landfills is also limited to the early 1970s. (See, e.g., Pls.’ Add’l PFOFs
(dkt. #209) ¶ 71 (citing letter dated May 18, 1973); Def.’s Resp. to Pls.’ Add’l PFOFs
(dkt. #259) ¶ 70 (noting that one employee (Gennett) did not start driving waste trucks
until 1973 and that another employee (Reno) testified that he drove the truck after
Gennett started hauling waste).)
In addition to challenging plaintiffs’ evidence as to timing, defendant points out
that there were other sources of dust in the community. Almost every Weyerhaeuser
department had machinery that generated waste or dust -- in particular, a large quantity of
wood dust. Moreover, dust came from smokestacks from boilers that burned materials
including coal, and the baghouses collected dust from the particleboard plant and from the
finishing plant. There were also dirt and gravel roads around the plant, along with a cement
plant in Marshfield that generated dust, which defendant represents is similar in color to
mineral core dust containing asbestos.
In an earlier opinion and order on similar community and household asbestos
exposure claims asserted against defendant Weyerhaeuser, this court: (1) considered a
Daubert challenge to the same experts on which plaintiffs rely here; (2) set forth the law
governing plaintiffs’ claims, including their obligation to prove causation; and (3) evaluated
the plaintiffs’ evidence, including the expert testimony, in light of that legal standard. See
Boyer v. Weyerhaeuser Co., No. 12-CV-899-WMC, 2016 WL 705233 (W.D. Wis. Feb. 19,
2016), aff’d Pecher v. Owens-Illinois, Inc., 859 F.3d 396 (7th Cir. 2017). As was true in the
first wave of asbestos cases, the plaintiffs’ claims here rise or fall depending on their ability
to marshal sufficient evidence that non-occupational asbestos exposure was a substantial
contributing factor to their mesothelioma diagnoses for a reasonable jury to find the
causation element satisfied. In these cases, however, plaintiffs’ evidence falls short.
As set forth in great detail in the Boyer summary judgment opinion, to prove
causation, plaintiffs “need not demonstrate non-occupational exposures were the sole cause,
the main cause, or even the most likely cause of their disease.” 2016 WL 705233 at *17.
Rather, plaintiffs must demonstrate that the non-occupational exposures were “a
substantial factor” in producing their respective asbestos-related injuries.
Id.; see also
In its opinion and order on Weyerhaeuser’s motion to dismiss, issued after Weyerhaeuser’s filing
of its motion for summary judgment, the court rejected Weyerhaeuser’s argument that plaintiffs’
claims are barred by Wisconsin’s Workers Compensation Act’s exclusivity provision, while agreeing
that plaintiffs’ nuisance claims are barred by the applicable statute of limitations, granting that
aspect of the motion. (4/17/18 Op. & Order (dkt. #279).) As such, the court will not revisit either
Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2001 WI App 148, ¶ 59, 246 Wis. 2d
933, 632 N.W.2d 59.
A “substantial factor” or “substantial contributing factor” means something more
than a possible cause. As the Sixth Circuit explained in Lindstrom v. A-C Prod. Liab. Trust,
424 F.3d 488 (6th Cir. 2005), “where a plaintiff relies on proof of exposure to establish
that a product was a substantial factor in causing injury, the plaintiff must show a high
enough level of exposure that an inference that the asbestos was a substantial factor in the
injury is more than conjectural.” Id. at 492
In Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), the Seventh Circuit
emphasized this is not a comparative test, explaining 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. at 424; see also
Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 433 (7th Cir. 2013) (“[T]o show that a
toxin is ‘a cause’ or ‘a substantial factor,’ [plaintiff] was not required to demonstrate that
benzene exposure was the sole cause of his disease, so long as he showed that benzene
contributed substantially to the disease’s development or significantly increased his risk of
developing AML.”). Accordingly, the court is to consider “the frequency, regularity, and
proximity of exposure in determining whether the injured party’s exposure to defendants’
asbestos products was a substantial factor in causing the alleged injury.” Tragarz, 980 F.2d
Despite the issue of causation being a centerpiece of defendant’s motion for
summary judgment and plaintiffs having the burden of proof, they spend a little more than
a page in each of their opposition briefs responding to this argument, the bulk of which
amounts to broad, general references to their experts’ testimony. Moreover, plaintiffs
utterly fail to engage with defendant’s specific arguments challenging plaintiffs’ proof of
non-occupational exposure in these two cases, which is reflected in the dearth of facts
supporting a finding of non-occupational exposure set forth above. As a result, defendant
argues in its reply brief that this court should find waiver. While perhaps warranted, the
court nonetheless has reviewed the expert reports and considered whether plaintiffs’
evidence provides a reasonable basis for their experts’ conclusions. It does not. 11
I. Kilty’s Evidence of Causation
As detailed above, Kilty claims household exposure based on her sons’ work at
Weyerhaeuser and their living at home for various periods of time during their
employment, during which she would have laundered their clothing. Ignoring that at least
one of the boys was not even living at home, and two others were there for a few months,
three of Kilty’s four sons did not even work in the mineral core mill, and there is no
evidence that they were exposed occupationally to asbestos directly as part of this work.
In fairness, there appears to be some contradictory information in this regard as to Gary’s
Instead of filing a separate Daubert motion with its motion for summary judgment, defendant
challenges the expert testimony in the motions themselves, making that testimony subject to the
same analysis as the court’s prior opinion and order in Boyer. The defendant did subsequently file
a motion in limine to exclude plaintiffs’ expert testimony at trial. Given its characterization as a
motion in limine, and in light of the fact that the motion was filed after the summary judgment
deadline, however, the court set briefing consistently, which means that those Daubert motions are
not yet under advisement and, for the reasons that follow, are now moot.
son Gary, who is now deceased. One former Weyerhaeuser worker placed him in the detail
department, installing molding, while another employee averred that Gary worked in the
maintenance department and during that time would have come into contact with mineral
core dust. Neither former employee, however, provides dates for Kilty’s work in those
departments, which is critical since Gary only lived at home for a brief period of
approximately three months while working at Weyerhaeuser, and his employment with
Weyerhaeuser extended well beyond that period. 12
Moreover, plaintiffs provide no
evidence that even Gary spent a significant portion of his time in the maintenance
department working in areas that would have exposed him directly to asbestos fibers, nor
that Gary’s work in the detail department, installing molding, exposed him to asbestos
Absent such evidence, the court finds that plaintiffs lack sufficient evidence for an
expert to rely on a family member’s occupational exposure to opine reliably that Kilty
suffered a history of significant household exposure. See Boyer, 2016 WL 705233, at *2021 (discussing plaintiff Masephol’s evidence and specifically rejecting a household exposure
claim based on father’s work in the maintenance department “without any direct evidence
that his father worked in the mineral core department”, and plaintiff Jacobs’ lack of
evidence of the length of exposure from her daughter’s brief work in the mineral core mill).
Plaintiffs’ expert Frank Parker erroneously relied on Gary living in the family home for two years
while employed at Weyerhaeuser, providing another basis for rejecting plaintiffs’ expert testimony
and, in turn, their evidence of causation. (See Parker Rept. (dkt. #182) 6.)
Kilty also pursues a community exposure claim based on having lived at a house
within 1.25 miles of the plant, which this court found in Boyer was sufficient to survive
summary judgment if residing within 1.25 miles of the plant for at least one year. See id.
at *21. 13 In the three claims that survived summary judgment in Boyer, however, the
plaintiffs resided in homes after 1968, when Weyerhaeuser opened the mineral core mill
and was manufacturing raw asbestos and door cores containing asbestos on site. Here,
however, Kilty only lived within 1.25 mile radius before 1968, from 1955 to 1962. In their
brief in support, defendant describes in great detail the significance of this date range,
specifically pointing to: (1) Frank Parker’s admissions that he did not know production
levels or the amount of asbestos used at the plant before 1960; (2) anecdotal evidence from
other co-workers about asbestos emissions into the community that largely post-dated the
opening of the mineral core mill in 1968; and (3) Dr. Anderson’s admissions as plaintiffs’
expert that he was unaware of any studies of community exposure involving plants that
did not use raw asbestos fibers. (See Def.’s Opening Br. (dkt. #172) 35-36; Def.’s Reply
(dkt. #257) 9-10; Def.’s PFOFs (dkt. #173) ¶¶ 100, 109, 129.)
Tellingly, plaintiffs did not even allude to this argument in their opposition brief,
much less direct the court to evidence or develop an argument supporting their experts’
testimony of a community exposure claim predating 1968.
Because plaintiffs’ sparse
evidence is woefully insufficient to support an expert opinion that Kilty’s claimed
In reviewing the expert reports, it appears that they rely on the same studies, which supported
the court’s prior determination of a 1.25 mile “zone of risk” radius. See Boyer, 2016 WL 705233,
at *19 (describing “zone of risk”).
community exposure was a substantial contributing factor to her mesothelioma diagnosis,
the court will grant defendant’s motion for summary judgment on Kilty’s negligence claim,
finding insufficient evidence to support the opinions of experts Parker and Anderson of a
significant, non-occupational exposure, a necessary predicate to a reasonable jury finding
this exposure was a substantial contributing factor to plaintiffs’ contacting mesothelioma.
II. Spatz’s Evidence of Causation
Spatz’s evidence of a household exposure as a substantial contributing factor to his
mesothelioma diagnosis suffers from the same defect at Kilty’s. As an initial matter, there
is no evidence that his father, Joey Spatz, was sufficiently exposed to asbestos to act as a
predicate for a significant household exposure for Herbert Spatz. See Boyer, 2016 WL
705233, at *21 (discussing similar problems in plaintiffs Jacobs’ and Masephol’s evidence).
While plaintiff offers vague statements from a former employee, Richard Luther, that he
saw Joey, a “utility” employee, working in the mineral core area, there is no reference to
the length of that assignment. Moreover, that assignment was during a period of time, the
mid 1950s, when Weyerhaeuser’s use of asbestos cores in door production was in its early
stages, before Weyerhaeuser began working with raw asbestos to produce its own door
cores. Plaintiff admits that his expert Frank Parker has no data on the production levels of
the Marshfield plant during this time nor on the extent asbestos door cores were being
used. (Pl.’s Resp. to Def.’s PFOFs (‘726 dkt. #211) ¶¶ 71-73.) Finally, Joey’s alleged
exposure occurred well before the opening of the mineral core mill and Weyerhaeuser’s
manufacturing of the asbestos door cores onsite.
Even assuming Joey was exposed to asbestos in the workplace, plaintiff offers no
evidence that Herbert was sufficiently exposed by his father’s work clothes in his home to
form a reliable basis for an expert to opine, or for a reasonable jury to conclude, that this
exposure was a substantial contributing factor to his mesothelioma diagnosis. Notably, for
example, Herbert was not the one who laundered his father’s clothing, which some
academic studies at least suggest as a vehicle for exposing household members to asbestos.
See Boyer, 2016 WL 705233, at *13 (describing Parker’s reliance on studies, including those
of “housewives developing asbestos-related diseases from handling clothing and other items
that has asbestos fibers on it”). Here, too, plaintiff offers no response to defendant’s
argument in its opening brief that plaintiff lacks evidence of household exposure -- even
assuming his father suffered significant occupational exposures -- to support a causation
finding. In response to defendant’s proposed findings of facts, plaintiff simply admits that
Herbert did not handle his father’s laundry, but states, with no support, “laundry is not the
only form of household exposure.” (Pl.’s Resp. to Def.’s PFOFs (‘726 dkt. #211) ¶ 52.)
While this is undoubtedly true, since it is scientifically possible that even a scintilla of
exposure to asbestos fibers may cause mesothelioma, this mere possibility is not enough to
prove causation. See Boyer, 2016 WL 705233, at *22 (“This is not to say that the science
precludes the experts’ opinion that even a small, single exposure may ‘contribute’ to the
contracting of mesothelioma, only that the science does not support a legal finding that
only small and occasional, non-occupational exposure would substantially contribute to
Plaintiff’s experts’ opinions are similarly unsupported. Dr. Anderson and Frank
Parker were provided unsupported hypotheticals, including that they should assume that
Joey worked in the core mill for three months in 1954. Plaintiff admits this, but responds,
“Dr. Anderson’s opinions at trial will be based on the evidence presented at that time, and
the hypotheticals are only for demonstrative purposes.” (See, e.g., Pl.’s Resp. to Def.’s
PFOFs (‘726 dkt. #211) ¶ 59 (discussing Anderson’s testimony; see id., at ¶ 70 (discussing
Parker’s testimony).) That is not how summary judgment works. Defendant having
thrown down the gauntlet as to a lack of proof of causation, plaintiff cannot wait until the
record is developed at trial to provide grounded, reliable expert opinions. As the Seventh
Circuit observed almost twenty years ago, and this court has oft repeated since, “summary
judgment is ‘not a dress rehearsal or practice run,’ but the ‘put up or shut up moment’ in
which a proponent of facts must show what evidence it has to convince a trier of fact to
accept its version of events.” Nichols v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 509 F.
Supp. 2d 752, 760 (W.D. Wis. 2007) (quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497,
504 (7th Cir. 1999)). 14
As such, the court will grant defendant’s motion for summary judgment on Spatz’s
negligence claim, finding insufficient evidence to support plaintiff’s experts Parker and
Anderson’s assumption of a significant non-occupational exposure as a necessary predicate
Even putting aside this burden, plaintiffs’ argument that it can wait until trial to show its hand
flies in the face of the requirements under Federal Rule of Civil Procedure 26(a)(2).
to their opinion that plaintiff’s household asbestos exposure was a substantial contributing
factor to his diagnosis of mesothelioma. 15
IT IS ORDERED that:
1) Defendant Weyerhaeuser Company’s motions for summary judgment (‘515 dkt.
#171; ‘726 dkt. 125) are GRANTED.
2) Plaintiffs’ Rule 72 objections to the Magistrate Judge’s Order of March 7, 2018
(‘515 dkt. #242; ‘726 dkt. #200) are GRANTED IN PART AND DENIED IN
PART as described above.
3) Defendant Weyerhaeuser Company’s motions in limine to exclude plaintiffs’
expert witnesses (‘515 dkt. #251; ‘726 dkt. #198) are DENIED AS MOOT.
4) Defendant Weyerhaeuser Company’s motions to strike plaintiffs’ improper
summary judgment evidence (‘515 dkt. #256; ‘726 dkt. #209) are GRANTED
IN PART AND DENIED IN PART as described above.
5) Defendant Weyerhaeuser’s motion for stay (‘515 dkt. #284; ‘726 dkt. #235),
Weyerhaeuser’s motion to file reply in support of motion to stay (‘515 dkt.
#289; ‘726 dkt. #239) and defendant 3M Company’s motion to join in motion
to stay (‘515 dkt. #289; ‘726 dkt. #240) are all DENIED AS MOOT.
In light of the court’s decision to grant summary judgment to defendant Weyerhaeuser based on
the lack of reliable evidence of causation, the court need not consider its argument that the risk of
non-occupational exposure was not known at the time of decedents’ alleged community exposure
or the lack of availability of punitive damages if plaintiffs could prove liability. One final note
regarding the practice of counsel for plaintiffs to file Rule 59 motions for reconsideration when the
outcome of an opinion is unfavorable to their clients. Before reflexively doing so here, plaintiffs’
counsel should review the standard for such a motion. Notably, it does not cover arguments a party
simply failed to make in their initial briefing.
6) Upon resolution of plaintiffs’ remaining claims against defendant 3M Company,
the clerk of court is directed to enter judgment in defendant Weyerhaeuser’s
favor in both of the above-captioned cases.
Entered this 8th day of June, 2018.
BY THE COURT:
WILLIAM M. CONLEY
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