Anderson v. Proctor & Gamble Paper Prods. Co.

• Decision Date: 15 February 2013
• Docket Number: Case No. 11–C–0061.
• Citation: 924 F.Supp.2d 996
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Beverly ANDERSON Individually and as Special Administrator of the Estate of Lloyd Anderson, Deceased, Plaintiff, v. The PROCTOR & GAMBLE PAPER PRODUCTS COMPANY, Defendant.

924 F.Supp.2d 996

Beverly ANDERSON Individually and as Special Administrator of the Estate of Lloyd Anderson, Deceased, Plaintiff,

v.The PROCTOR & GAMBLE PAPER PRODUCTS COMPANY, Defendant.

Case No. 11–C–0061.

United States District Court, E.D. Wisconsin.

Feb. 15, 2013.

Michael P. Cascino, Robert G. McCoy, Cascino Vaughan Law Offices Ltd., Chicago, IL, for Plaintiff.

John P. Arranz, Margaret O. Byrne, Swanson Martin & Bell, Chicago, IL, for Defendants.

DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT

WILLIAM C. GRIESBACH, Chief Judge.

Plaintiff Beverly Anderson is the administrator of the estate of her husband, Lloyd Anderson, who worked as a union electrician at various facilities in and around Green Bay, Wisconsin for more than 40 years until his retirement in 1992. Plaintiff alleges her husband became ill as a result of occupational asbestos exposure, and she brought claims against various defendants, including a negligence claim against Defendant The Procter & Gamble Paper Products Company (P & GPPC), the owner of the Charmin paper mill where Lloyd Anderson worked as a contract electrician for a number of years. Plaintiff's action was consolidated with numerous cases into the MDL 875 Asbestos litigation, presided over by U.S. District Judge Eduardo C. Robreno in the Eastern District of Pennsylvania. P & GPPC moved for summary judgment, arguing that it is entitled to judgment in its favor because (1) it cannot be liable for harm to an employee of an independent contractor who is working on its premises, and (2) plaintiff's claims are barred by the Wisconsin statute of repose. After briefing was complete, Judge Robreno concluded that P & GPPC's motion raised unique issues under Wisconsin law and remanded the case. This Court previously granted the plaintiff's motion to file an amended response to P & GPPC's amended summary judgment motion, and P & GPPC subsequently filed an amended reply. The briefing is now complete, and for the reasons that follow, P & GPPC's motion will be denied.

BACKGROUND¹

Lloyd Anderson worked as a union electrician with the International Brotherhood of Electrical Workers Local 158 in Green Bay, Wisconsin. Anderson began working as an apprentice from approximately 1948, and 1952 until his retirement in 1992, Anderson worked as a journeyman electrician and foreman for numerous electrical contractors at a variety of locations, including P & GPPC's Charmin Paper Mill in Green Bay. He estimated that approximately 50 percent of his career was spent working at the Charmin mill between 1955 and 1979, including a period of 10 years of steady work at the mill.

Plaintiff's claim against P & GPPC is based on its status as a nonemployer owner of the mill where Anderson performed electrical work on the mill's machinery, including “speeding up” paper machines, wiring new machines, maintaining and blowing out switchgear and motors, or performing general electrical work in the warehouse. He also worked with maintenance personnel employed by P & GPPC to repair paper machines after they broke down. In addition, Anderson worked on a large expansion in the 1970s to put in two new paper machines in the Charmin mill. Generally, the crews Anderson was on spent half of their time on new construction and renovation and half of their time remodeling and updating work.

Plaintiff alleges that at P & GPPC, Anderson was exposed to asbestos in a number of ways. Plaintiff contends that the mill contained thousands of feet of insulated electrical, steam, and water pipes, all of which contained asbestos in a variety of forms. The plant was organized so that “all of the process infrastructure” was suspended under the ceilings in layers containing “racks and racks upon racks upon racks of process piping, electrical piping, steam piping, cable trays, electrical facility.” (LaHaye Dep., Ex. 4 at 137, ECF No. 76.) Plaintiff alleges the electricians regularly had to cut through the insulation in order to get to the electrical wiring. Likewise, plaintiff contends the maintenance and blow-out of switchgear caused significant asbestos exposure. In addition, because the electricians worked on “maintenance days” when the machines were shut down, Anderson often worked in close proximity to pipefitters, pipe insulators, and other P & GPPC employees who were replacing steam pipe insulation, performing repairs, or cleaning up insulation and debris simultaneously. Plaintiff alleges that removing or cutting the insulation created a “plume of cloud dust” due to the brittle nature of the insulation and working in the dusty conditions created by the removal and replacement of the insulation was a “normal, everyday process” for the electricians when assigned to the mill. (Comins Dep., Ex. 3 at 78, ECF No. 76.)

Generally, Anderson's work was not directed by P & GPPC. Instead, daily instruction and oversight of the electricians came from the electrical contractors. But while Anderson furnished his own hand tools, in general, P & GPPC furnished all materials for the electrical work, including asbestos-containing micarta, and Anderson worked on P & GPPC's machinery. P & GPPC also controlled the scheduling of insulation teardown and switchgear maintenance. Plaintiff contends that P & GPPC employed inspectors who would check that repairs were completed correctly. These inspectors included P & GPPC's project engineers, who directed “prestart” inspections. Plaintiff also alleges that P & GPPC provided checklists directing the maintenance work. She asserts that Anderson never received warnings from P & GPPC about the dangers of asbestos, or even that the pipe insulation contained asbestos at all.

Anderson was diagnosed with non-small cell lung cancer in July 2009. He died on November 28, 2011. Plaintiff has submitted expert opinions that Anderson's lung cancer, asbestosis, and pulmonary fibrosis were caused by occupational exposure to asbestos.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Where factual disputes do exist, the non-movant's version of events is accepted as true at this stage of the proceedings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The mere existence of some factual dispute does not defeat a summary judgment motion; however, there must be a genuine issue of material fact for the cause of action to survive. Id. at 247–48, 106 S.Ct. 2505. “Material” means that the factual dispute must be outcome-determinative under governing law. Contreras v. City of Chicago, 119 F.3d 1286, 1291 (7th Cir.1997). Failure to support any essential element of a claim renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A “genuine” issue of material fact requires specific and sufficient evidence that, if believed by a jury, would actually support a verdict in the nonmovant's favor. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

ANALYSIS

A. Duty of a Premises Owner to an Employee of Independent Contractor

P & GPPC first argues that it cannot be liable for harm to an employee of an independent contractor performing work on its premises. Generally, a principal employer is only liable in tort for injuries sustained by an independent contractor's employee while he is performing the contracted work if (1) the owner commits an affirmative act of negligence, or (2) the employee was injured while engaged in an extrahazardous activity. Tatera v. FMC Corp., 2010 WI 90, ¶ 2, 328 Wis.2d 320, 786 N.W.2d 810;Wagner v. Continental Casualty Co., 143 Wis.2d 379, 400–01, 421 N.W.2d 835, 838 (1988). In Tatera, the plaintiff brought a products liability action after her husband died of mesothelioma caused by exposure to asbestos in friction disk components of electric brake systems manufactured by the defendant. Tatera, 2010 WI 90, ¶ 5. The defendant was not plaintiff's employer; rather, defendant contracted out its machining work to plaintiff's employer. Id. The court held that the defendant's alleged negligent conduct—supplying component parts containing asbestos to contract machiners—did not constitute an affirmative act of negligence because failure to warn of or investigate asbestos hazards constituted passive misconduct. Id. ¶¶ 29–31. Likewise, working with asbestos products, while an inherently dangerous activity, is nevertheless not an extrahazardous activity because protective measures can be taken to avoid inhalation of asbestos dust. Id. ¶ 36.

P & GPPC argues that based on Tatera, it owed no duty to Anderson unless plaintiff can prove that P & GPPC committed an affirmative act of negligence, or unless Anderson was injured while engaging in an ultrahazardous activity, neither of which applies here. Plaintiff responds that Tatera is inapposite because the standard of care created by the Wisconsin Safe Place Statute, Wis. Stat. § 101.11 applies here. The safe place statute creates a non-delegable statutory duty for premises owners that creates legal obligations distinct from those arising under common law. The safe place statute provides that:

Every employer ... shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every...