Globig v. Johns-Manville Sales Co.

• Decision Date: 18 March 1980
• Docket Number: 77-C-492,78-C-44,77-C-491,77-C-446,79-C-117,77-C-52,78-C-131 and 78-C-544.,78-C-43
• Citation: 486 F. Supp. 735
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: William GLOBIG and Kathrine A. Globig, Plaintiffs, v. JOHNS-MANVILLE SALES COMPANY, a Foreign Corporation, Owens-Corning Fiberglass Corporation, a Foreign Corporation, Keene Corporation, a Foreign Corporation and Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. EAGLE-PICHER INDUSTRIES, INC., a Foreign Corporation, Third-Party Plaintiff, v. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS UNION and Asbestos Workers Union, Local 19, Third-Party Defendants. Charlotte E. NEUBAUER, personally and personal representative of the Estate of Clifford S. Neubauer, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Transcontinental Insurance Co., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Joy SKROFONICK, Personally and as Personal Representative of the Estate of Clifford E. Mason, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORPORATION, Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Walter J. PRESECHNIK, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Aetna Casualty & Surety Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Clarence O. REIMER and Mary M. Reimer, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., A Foreign Corporation, et al., Third-Party Defendants. Darwin Frank WITKOWSKI, Sr., and Eleanore Witkowski, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Clarence P. LILLGE and Hertha E. Lillge, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Keene Corporation, a Foreign Corporation, Baldwin-Ehret-Hill, Incorporated, a Foreign Corporation, and Gale Corporation, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Erich E. ECKOLDT and Mamie Eckoldt, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants. Robert J. GAYNOR and Lavellette Gaynor, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Keene Corporation, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Defendant and Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

486 F. Supp. 735

William GLOBIG and Kathrine A. Globig, Plaintiffs, v. JOHNS-MANVILLE SALES COMPANY, a Foreign Corporation, Owens-Corning Fiberglass Corporation, a Foreign Corporation, Keene Corporation, a Foreign Corporation and Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. EAGLE-PICHER INDUSTRIES, INC., a Foreign Corporation, Third-Party Plaintiff, v. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS UNION and Asbestos Workers Union, Local 19, Third-Party Defendants.

Charlotte E. NEUBAUER, personally and personal representative of the Estate of Clifford S. Neubauer, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Transcontinental Insurance Co., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

Joy SKROFONICK, Personally and as Personal Representative of the Estate of Clifford E. Mason, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORPORATION, Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

Walter J. PRESECHNIK, Plaintiff, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, and Aetna Casualty & Surety Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

Clarence O. REIMER and Mary M. Reimer, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Eagle-Picher Industries, Inc., a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., A Foreign Corporation, et al., Third-Party Defendants.

Darwin Frank WITKOWSKI, Sr., and Eleanore Witkowski, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

Clarence P. LILLGE and Hertha E. Lillge, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Keene Corporation, a Foreign Corporation, Baldwin-Ehret-Hill, Incorporated, a Foreign Corporation, and Gale Corporation, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

Erich E. ECKOLDT and Mamie Eckoldt, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al.,

Third-Party Defendants.

Robert J. GAYNOR and Lavellette Gaynor, Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, a Foreign Corporation, Johns-Manville Sales Company, a Foreign Corporation, Keene Corporation, a Foreign Corporation, Defendants, v. OWENS-CORNING FIBERGLASS CORP., Defendant and Third-Party Plaintiff, v. PITTSBURG CORNING CORP., a Foreign Corporation, et al., Third-Party Defendants.

79-C-117, 77-C-52, 77-C-446, 77-C-491, 77-C-492, 78-C-43, 78-C-44, 78-C-131 and 78-C-544.

United States District Court, E. D. Wisconsin.

March 18, 1980.

Albert J. Goldberg, Milwaukee, Wis., for all plaintiffs.

Kurt H. Frauen and Mark Young, Milwaukee, Wis., for Owens-Corning Fiberglass Corp.

Donald H. Carlson, Milwaukee, Wis., for Johns-Manville Sales Co.

Jeffrey A. Schmeckpeper, Milwaukee, Wis., for Eagle-Picher Industries, Inc.

Peter S. Nelson, Appleton, Wis., for Armstrong Cork Co.

William C. Gleisner, III, Menomonee Falls, Wis., for Intern. Ass'n of Heat and Frost Insulators and Asbestos Workers Union and Asbestos Workers Union, Local 19.

DECISION AND ORDER

REYNOLDS, Chief Judge.

These consolidated products liability cases are before the court on several related pretrial motions. In order to put the motions in context, it is necessary to briefly summarize the present status of the cases.

The complaints in all nine actions are substantially similar. Plaintiffs were all at one time employed in occupations which involved the daily use of asbestos fiber products. As a result of their exposure to asbestos fiber, plaintiffs claim to have suffered various types of lung ailments, some of which have proved fatal.

Defendants are all manufacturers of asbestos fiber products. Liability is predicated upon theories of negligence and strict liability. The Owens-Corning Fiberglass Corporation ("Owens-Corning") is a defendant in each of the nine cases and in each case has filed third-party complaints against twenty-one other manufacturers of asbestos fiber products. In addition, in Civil Action No. 79-C-117, defendant Eagle-Picher Industries, Inc. ("Eagle-Picher"), has filed a third-party complaint against the International Association of Heat and Frost Insulators and Asbestos Workers Union and Asbestos Workers Union 19 ("the Unions").

On December 10, 1979, this Court granted the motion of the third-party defendant asbestos manufacturers to dismiss the third-party complaints filed by Owens-Corning for failure to state a claim upon which relief could be granted. Leave was granted to file amended third-party complaints, and such complaints have now been filed. The third-party defendants named in the amended third-party complaints have again moved for dismissal. Also pending is the Unions' motion to dismiss the third-party complaints filed by Eagle-Picher. Finally, plaintiffs in all of the actions have moved to amend the original complaints in order to state a claim for punitive damages.

I. Motion to Dismiss the Owens-Corning Third-Party Complaints

This Court originally dismissed the third-party complaints filed by Owens-Corning for its failure to make allegations which, if taken as true, would establish liability on the part of the third-party defendants. In particular, the Court was troubled by the form of the allegations against the third-party defendants. The original third-party complaint alleged that plaintiffs had stated a cause of action against all manufacturers of asbestos fiber products when in fact plaintiffs had limited their allegations to the named defendants. It was the failure of Owens-Corning to itself allege liability on the part of the third-party defendants which led to the dismissal of the third-party complaints.

Owens-Corning has now filed amended third-party complaints which correct the prior pleading deficiencies by containing direct allegations against the third-party defendants. Third-party defendants have again moved to dismiss the third-party complaints, this time on the basis of the hypothetical form of pleading utilized by Owens-Corning as well as on the substantive ground that no right of contribution exists for injuries which are the result of allegedly successive torts.

Having reviewed the form of the amended third-party complaints, I am of the opinion that they now conform to the federal standards of pleading. Owens-Corning has alleged, in substance, that the plaintiffs were exposed to the products of the third-party defendants, that these products were substantially similar to those manufactured by Owens-Corning, and that if Owens-Corning is found liable for plaintiffs' injuries, then the third-party defendants are liable as well. There is no merit to third-party defendants' argument that this proposition lacks a "logical premise." Owens-Corning has alleged a shared defect and common exposure. These premises, which at this stage in the proceedings must be taken as true, provide a perfectly logical basis for the conclusion that the parties are jointly liable.

The fact that Owens-Corning has utilized a hypothetical form of pleading is of no significance. Naturally, Owens-Corning contests the allegation that it was negligent or that it produced an unreasonably dangerous product. It is, however, free to argue in the alternative that if it is adjudged liable for plaintiffs' injuries, the other manufacturers of asbestos fiber products to which the plaintiffs were exposed are liable as well. While arguably these two positions are inconsistent (and I do not think that in fact they are), Rule 8(e)(2) of the Federal Rules of Civil Procedure permits inconsistent or hypothetical pleadings.

The main purpose of the modern rules of pleading is to put the adversary party on notice of the claims against him. Roberts v. Acres, 495 F.2d 57 (7th Cir.1974). The amended third-party complaints filed by Owens-Corning state the nature of the claim against the third-party defendants. Accordingly, the third-party complaints are not subject to attack as to the adequacy of the form of the allegations contained therein.

Third-party defendants also argue that the third-party complaints merely allege the existence of successive or sequential torts which do not give rise to a right of contribution on the part of the third-party plaintiffs. Third-party defendants argue that in Wisconsin "successive tort-feasors whose negligence did not combine concurrently but sequentially in time to cause injury" are not liable to one another for contribution and thus are not properly joinable as third-party defendants. Butzow v. Wausau Memorial Hospital, 51 Wis.2d 281, 285, 187 N.W.2d 349 (1971); see also, Voight v. Aetna Casualty & Surety Co., 80 Wis.2d 376, 259 N.W.2d 85 (1977). The third-party defendants correctly state the general rule,...