Kappel, Michael et al v. Weyerhauser Company et al

Filing 45

OPINION AND ORDER accepting 44 -3 proposed Amended Complaint; granting 21 Motion to Dismiss as to plaintiffs' nuisance claims but denying in all other respects; denying as moot 34 Motion to Strike. Signed by District Judge William M. Conley on 4/17/2018. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL D. KAPPEL and MARINA P.
KAPPEL,

v.

Plaintiffs,

WEYERHAEUSER COMPANY,
METROPOLITAN LIFE INSURANCE
COMPANY, UNKNOWN INSURERS
OF RODDIS PLYWOOD, and UNKNOWN
INSURERS OF WEYERHAEUSER COMPANY,

OPINION AND ORDER
17-cv-519-wmc

Defendants.
Plaintiffs assert various claims against defendant Weyerhaeuser Company and its
insurer Metropolitan Life Insurance Company based on Weyerhaeuser’s alleged emissions
of asbestos into the Marshfield, Wisconsin, community. Before the court is a proposed
amended complaint by plaintiffs, containing additional allegations of Michael D. Kappel’s
alleged asbestos-related injury and substituting plaintiffs given Kappel’s death. (Dkt. #443.) Also before the court is defendant Weyerhaeuser’s motion to dismiss. (Dkt. #21.)
The court will accept plaintiffs’ proposed amended complaint and will evaluate defendant’s
motion to dismiss in light of that pleading. As for the motion to dismiss, the court will
dismiss the nuisance claims for the reasons provided in a companion opinion and order
issued today in two related cases; however, the court will deny the motion in all other
respects, allowing plaintiffs to proceed on their common law negligence claim.

BACKGROUND
This case is one of a second wave of asbestos-related claims concerning community

or environmental exposure caused by defendant Weyerhaeuser Company’s alleged
emission of asbestos fibers. Unlike the others cases, however, plaintiff Michael D. Kappel,
now deceased, did not work at Weyerhaeuser during the period of time its predecessor
used asbestos in the manufacturing of fireproof doors. As such, his alleged exposure to
asbestos is solely based on emissions into the community. In his original complaint, Kappel
alleges that he suffers from “asbestos related disease,” but does not specify the nature of
that injury or the onset date. (Compl. (dkt. #1) ¶ 12.) Defendant Weyerhaeuser moved
to dismiss, raising several arguments, including that the plaintiffs failed to allege with
sufficient specificity the claimed injury and the date of diagnosis. (Weyerhaeuser’s Br.
(dkt. #22) 7-8.)
While this motion was pending, Kappel sadly passed away. Plaintiffs then sought
a stay, “pending the outcome of analysis of autopsy tissue by plaintiffs’ pathology expert
which is necessary to conclusively determine the correct diagnosis (mesothelioma v.
adenocarcinoma or other lung cancer).” (Pls.’ Mot. to Stay (dkt. #38) 1.) Defendants did
not oppose the stay (dkt. ##38-1, 38-2), and the court granted it (dkt. #39).
Subsequently, the court extended the stay to provide additional time for the expert to
finalize the results. (Dkt. #41.) After the extended date had lapsed, the court ordered
plaintiffs to show cause why this case should not be dismissed for failing to allege Kappel’s
injury with sufficient specificity. (3/16/18 Order (dkt. #43).) In response, plaintiffs filed
a proposed amended complaint, which alleges the Kappel suffered from adenocarcinoma,
and also substitutes as plaintiff Stacy Kappel, individually and as special administrator of

2

the Estate of Michael Kappel. 1

OPINION
As an initial matter, the court accepts plaintiffs’ proposed amended complaint in
response to this court’s order to show cause, and it will evaluate defendant Weyerhaeuser’s
motion to dismiss in light of that pleading’s allegations. The court also notes that a number
of Weyerhaeuser’s grounds for dismissal were raised in two other related asbestos cases,
Kilty v. Weyerhaeuser, No. 16-cv-515 (W.D. Wis. July 20, 2016), and Spatz v. Weyerhaeuser,
No. 16-cv-726 (W.D. Wis. Nov. 3, 2016). The court issued an opinion in those cases,
which it adopts here. In brief, the court will grant defendant’s motion to dismiss negligent
nuisance and intentional nuisance claims as time-barred, leaving plaintiffs’ common law
negligence claim to proceed. The court will also deny defendants’ motion to dismiss the
punitive damages claim. 2
Specific to this case, defendant asserts two additional grounds for dismissal. First,
defendant argues that plaintiff failed to allege Kappel’s employment or employment-related
exposures, presumably to avoid defendant’s argument that his claims are barred by the
exclusivity provision in Wisconsin’s Workers’ Compensation Act. (Def.’s Br. (dkt. #22)
6.)

Because plaintiffs’ negligence claim rests solely on community or environmental

exposure to asbestos, plaintiffs need not allege Kappel’s employment history with

The proposed amended complaint keeps Marina Kappel as a plaintiff and also adds Tammy
Prindel, a “lineal heir” of the decedent.

1

Defendant also purported to challenge plaintiffs’ reliance on standards promulgated pursuant to
the Clean Air Act. Unlike other cases, however, neither plaintiffs’ original complaint, nor the
proposed amended complaint, however, contain such references.
2

3

Weyerhaeuser. For the reasons explained in the court’s opinion and order in the Kilty/Spatz
cases, the WCA does not bar claims based on environmental or community exposure.
Moreover, unlike the other plaintiffs in related Weyerhaeuser asbestos cases, as plaintiffs
explain in their opposition brief, it appears Kappel did not work at Weyerhaeuser during
the period of time asbestos was used. (Pls.’ Opp’n (dkt. #28) 2 n.4 (explaining that Kappel
testified at his deposition that he began working at the Marshfield plant in May 1979 and
that Weyerhaeuser asserted in other asbestos cases that they stopped using asbestos in
June 1978).)
Second, as described above, defendant seeks dismissal of plaintiffs’ claim based on
the failure to allege the specific diagnosis and date of diagnosis. The amended complaint,
however, corrects this defect, alleging his diagnosis of adenocarcinoma of the lung and his
date of death. (Am. Compl. (dkt. #44-3) ¶ 18.) In support of its motion to dismiss,
Weyerhaeuser represents that “[i]n other cases, the Court determined that the plaintiffs
could meet the special injury requirement when they claimed an injury of mesothelioma.”
(Def.’s Br. (dkt. #22) 7 (citing Boyer v. Weyerhaeuser Co., 2015 WL 3485262, at *3 (W.D.
Wis. 2015)).) In Boyer, the court made no such finding. The first wave of Weyerhaeuser
asbestos cases had a mix of mesothelioma and lung cancer (more generally) diagnoses.
While none of the non-mesothelioma cases survived summary judgment, the court did not
dismiss those cases on the pleadings. The court similarly declines to dismiss plaintiffs’

4

claim, especially given the apparent lack of workplace exposures. 3

ORDER
IT IS ORDERED that:
1) Plaintiffs’ proposed amended complaint (dkt. #44-3) is ACCEPTED. The clerk
of court is directed to amend the caption on the docket to reflect the substituted
and additional plaintiffs. Defendants have until May 8, 2018, to answer.
2) Defendant Weyerhaeuser’s motion to dismiss (dkt. #21) is GRANTED as to
plaintiffs’ nuisance claims but DENIED in all other respects.
3) Plaintiffs’ motion to strike (dkt. #34) is DENIED AS MOOT.
4) The clerk’s office is directed to schedule a conference with Magistrate Judge
Crocker to reset deadlines and a trial date.
Entered this 17th day of April, 2018.
BY THE COURT:

/s/
__________________________________
WILLIAM M. CONLEY
District Judge

Plaintiffs also filed a motion to strike extrinsic evidence filed in support of defendants’ motion to
dismiss, namely pages from Kappel’s medical record and an administrative order entered in an MDL
asbestos case. In light of the pathology results and plaintiffs’ proposed amended complaint, this
motion will be deemed moot.
3

5