Kilty v. Weyerhaeuser Co.

• Decision Date: 08 June 2018
• Docket Number: 16–cv–515–wmc,16–cv–726–wmc
• Citation: 317 F.Supp.3d 1027
• Parties: 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, Plaintiffs, v. WEYERHAEUSER COMPANY, 3M Company, and Metropolitan Life Insurance Company, Defendants. Scott Spatz, individually and as Special Administrator of the Estate of Herbert Spatz, Plaintiff, v. Weyerhaeuser Company, 3M Company, and Metropolitan Life Insurance Company, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

317 F.Supp.3d 1027

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, Plaintiffs,

v.WEYERHAEUSER COMPANY, 3M Company, and Metropolitan Life Insurance Company, Defendants.

Scott Spatz, individually and as Special Administrator of the Estate of Herbert Spatz, Plaintiff,

v.Weyerhaeuser Company, 3M Company, and Metropolitan Life Insurance Company, Defendants.

16–cv–515–wmc

16–cv–726–wmc

United States District Court, W.D. Wisconsin.

Signed June 8, 2018

Robert G. McCoy, Daniel Benjamin Hausman, Cascino Vaughan Law Offices, Ltd., Chicago, IL, John Eugene Herrick, Meredith Kay Clark, Motley Rice LLC, Mount Pleasant, SC, Nathan David Finch, Motley Rice LLC, Washington, DC, for Plaintiff.

Tanya D. Ellis, Charles M. McGuffey, Joshua J. Metcalf, Ruth Maron, Thomas Benton York, Walter G. Watkins, III, Forman Watkins & Krutz, LLP, Jackson, MS, Mark S. DesRochers, DesRochers Law Offices, LLC, Appleton, WI, Edward J. McCambridge, Jason Patrick Eckerly, Grace Ellen Mangieri, Nathan Joseph Law, Patrick Francis Sullivan, III, Segal McCambridge Singer & Mahoney, Ltd., Chicago, IL, Jennifer Budner, Segal McCambridge Singer & Mahoney, New York, NY, Bradley R. Bultman, Larson King LLP, Saint Paul, MN, Linda Lee Kuuleilani Farm, Honolulu, HI, for Defendant.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge

Plaintiffs, the estates and family members of two former employees of defendant Weyerhaeuser Company, assert negligence claims against Weyerhaeuser based on non-occupational community and household exposure to asbestos fibers emitted from a Weyerhaeuser manufacturing facility. These two cases are the second wave of asbestos-related 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-899-WMC, 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

PRELIMINARY ISSUES

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 deposition.

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.) Weyerhaeuser's counsel reminded plaintiffs of Judge Crocker's order and preserved its objections. (Id. at 160–61, 192.)

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. In his 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...