Calewarts v. CR Meyer & Sons Co.
| Decision Date | 17 March 2015 |
| Docket Number | No. 2014AP531.,2014AP531. |
| Citation | 862 N.W.2d 902 (Table),363 Wis.2d 654 |
| Parties | June CALEWARTS, Individually and as Special Administrator for the Estate of Robert J. Calewarts, Plaintiff–Appellant, v. CR MEYER & SONS COMPANY, Colonial Heights Packaging, Inc., International Paper Co. and Thilmany, LLC, Defendants–Respondents, Metropolitan Life Insurance Company and Philip Morris USA, Inc., Defendants. |
| Court | Wisconsin Court of Appeals |
This case is before us for the second time. In a previous opinion, we reversed a summary judgment dismissing June Calewarts' claims against CR Meyer & Sons Company, Colonial Heights Packaging, Inc., International Paper Co., and Thilmany, LLC. On remand, the circuit court granted various motions in limine filed by the defendants. As a result of those rulings, the parties stipulated that Calewarts could not succeed on any of her claims, and the circuit court entered a judgment of dismissal.
¶ 2 On appeal, Calewarts argues the circuit court erred by granting twelve of the defendants' motions in limine. We agree with Calewarts that the court erred by granting some of these motions, but we reject her arguments regarding others. We therefore reverse the judgment dismissing Calewarts' claims and remand with directions.
¶ 3 June Calewarts' husband, Robert, was employed by Milprint from 1950 until 1991.1 Milprint produced and printed candy wrappers, snack bags, and cheese pouches. Robert operated printing presses on the fourth floor of Milprint's De Pere, Wisconsin facility from 1950 until the early 1970s. He then worked as an oiler for several years, working on every floor of the facility. He returned to press work by 1975. He worked in the molding department, also on the fourth floor, from 1980 to 1985. Finally, he worked in the cheese department on the second floor of the De Pere facility until 1990, at which point Milprint's operations were transferred to a new facility.
¶ 4 The printing presses at the De Pere facility were partially steam powered. On the fourth floor, a trunk feed and return line ran the length of the floor, approximately 250 to 300 feet, and individual steam lines ran from the trunk line to the presses. There were similar steam pipes on the other three floors of the De Pere facility. Throughout the facility, the steam pipes were covered with white insulation.
¶ 5 In November 2008, Robert died of malignant pleural mesothelioma. Calewarts filed the instant lawsuit in July 2009, alleging Robert's death was caused by asbestos exposure at the De Pere facility. As relevant to this appeal, Calewarts asserted a negligence claim against CR Meyer for installing, repairing, and removing asbestos steam pipe insulation at the De Pere facility. Calewarts also asserted claims against Colonial Heights and International Paper/Thilmany,2 based on their status as nonemployer owners and/or lessors of the building that housed Milprint's operations. Calewarts sought punitive damages against all defendants.
¶ 6 CR Meyer, Colonial Heights, and International Paper moved for summary judgment. In opposition to the defendants' summary judgment motions, Calewarts relied on the deposition testimony of four of Robert's coworkers: Bernard Jones, Mark Motiff, Dennis O'Connor, and Kenneth Willems.
¶ 7 Jones testified he began working in the bag department on the third floor of the De Pere facility on October 20, 1947. At that time, Milprint was just beginning operations at the De Pere facility. Jones was present at the facility during the initial installation of the bag machines, which lasted until either 1949 or 1950. He testified the workers who installed the machines had baseball caps, coveralls, and trucks that said “CR Meyer.” The same workers also installed the steam lines connected to the machines, including the insulation. Jones testified CR Meyer was also responsible for installing the steam pipes and insulation on the other floors of the De Pere facility. He described the insulation as white, smooth, and chalky. He testified the workers who installed the insulation “told us they were putting in asbestos .”
¶ 8 Motiff testified he worked at Milprint from 1974 until 2006. He described the insulation surrounding the steam pipes at the De Pere facility as hard, white, and “plaster-like.” He further testified the steam pipes would “invariably” leak after the presses were shut down each weekend and restarted on Monday. Repairs required tearing or knocking off insulation around the site of the leak. Scheduled valve maintenance required similar removal of insulation.
¶ 9 After insulation was removed, Motiff testified it was swept up and placed in a “broke box.” Jones described a broke box as an open trash cart approximately three feet wide, six feet long, and four feet deep. Another of Robert's coworkers, Willems, testified the broke boxes remained in the De Pere facility until they were full.3
¶ 10 Willems further testified he saw workers with CR Meyer's name on their uniforms repairing steam pipes at the De Pere facility. Given the frequency of repairs to the steam pipes, Willems was “certain” Calewarts would have operated presses in close proximity to areas where pipes were being repaired. Motiff similarly testified CR Meyer employees repaired the steam pipes on the fourth floor at least “once every couple of months[.]” Jones also recalled that CR Meyer returned to the De Pere facility “for some smaller jobs” after installing the presses and steam pipes. Although Jones could not recall whether those jobs involved asbestos, he testified they “could have.”
¶ 11 Motiff and Willems testified the same type of insulation surrounding the steam pipes at the De Pere facility was also on the press ovens and would routinely fall off of the ovens when their doors were slammed shut. Willems also testified insulation was frequently knocked off the ovens by employees or fell off due to vibrations from the equipment running. Willems testified he knew the insulation was asbestos because he “worked with [the presses]” and was “looking at them all the time.” Willems further stated dust was “always a problem” at the De Pere facility, and large blowers for drying the ink on the fourth floor presses blew “everything else around, too.”
¶ 12 A fourth coworker, O'Connor, testified he worked at the De Pere facility from 1966 until 1990. O'Connor confirmed there was a “white-ish,” “plaster-type” insulation surrounding the steam pipes at the De Pere facility that produced “a lot of powder” when broken. He testified there was a “rumor” around the facility that the insulation contained asbestos. Robert's coworkers also testified Milprint employees were not advised to wear any special equipment to protect them from asbestos exposure, and no safety warnings or instructions about asbestos were given until sometime after 1985.
¶ 13 In opposition to the defendants' summary judgment motions, Calewarts also submitted evidence that the Occupational Safety and Health Administration (OSHA) cited CR Meyer in 1990 for improperly removing asbestos from the De Pere facility. The OSHA investigation showed that a CR Meyer employee cut down a ten- to fifteen-foot section of insulated pipe in the coater room on the first floor of the De Pere facility on April 23, 1990, and dragged it through the facility without using proper protective measures. Samples of insulation taken during the OSHA investigation were found to contain asbestos.
¶ 14 The circuit court granted CR Meyer, Colonial Heights, and International Paper summary judgment. Calewarts appealed, and we reversed, concluding there were disputed issues of material fact. See Calewarts v. CR Meyer & Sons Co., No.2011AP1414, unpublished slip op. ¶ 1 (WI App July 3, 2012).4 We remanded to the circuit court for further proceedings on Calewarts' claims. Id.
¶ 15 On remand, the circuit court scheduled a trial to begin on December 10, 2013. Before trial, CR Meyer, Colonial Heights, and International Paper filed over forty motions in limine. A hearing on the motions was held on October 25, 2013. During the hearing, the parties agreed the court could resolve the motions on the briefs.
¶ 16 On November 22, 2013, the court issued a two-page, written decision granting all but two of the defendants' motions in limine. The court did not explain its reasoning, but merely stated whether each motion was granted or denied. The parties subsequently stipulated that, due to the court's rulings on some of the motions, Calewarts would be unable to succeed on any of her claims at trial. Accordingly, the court entered a judgment dismissing all of Calewarts' claims. Calewarts now appeals.
¶ 17 On appeal, Calewarts argues the circuit court erred by granting twelve of the defendants' motions in limine, which she characterizes as “dispositive.”6 However, in addition to arguing that the circuit court improperly denied these motions on the merits, Calewarts also argues: (1) the court's decision violated the law of the case doctrine; and (2) the defendants forfeited7 their right to challenge the admissibility of Calewarts' proffered evidence by failing to do so on summary judgment. We begin by addressing Calewarts' law of the case and forfeiture arguments. We then address the individual motions in limine on their merits.
¶ 18 “[A] decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.” Univest Corp. v. General Split Corp., 148 Wis.2d 29, 38, 435 N.W.2d 234 (1989). Whether a decision establishes the law of the case on a particular point is a question of law that we review independently. State v. Stuart, 2003 WI 73, ¶ 20, 262 Wis.2d 620, 664 N.W.2d 82.
¶ 19 In our previous decision, we relied on certain evidence that Calewarts submitted in opposition to summary judgment in order to conclude there were genuine issues of material fact requiring a trial. Calewarts notes that,...
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