Lorbiecki v. Pabst Brewing Co.

• Docket Number: 2022AP723
• Decision Date: 07 May 2024
• Citation: 412 Wis. 2d 641,8 N.W.3d 821
• Parties: Carol Lorbiecki, Plaintiff-Respondent-Cross-Appellant, Estate of Gerald E. Lorbiecki, Plaintiff, v. Pabst Brewing Company, Defendant-Appellant-Cross-Respondent, Ingersoll Rand Company, Molson Coors Brewing Company, Sears, Roebuck and Co., General Electric Company and Cleaver-Brooks Inc., Defendants.
• Court: Wisconsin Court of Appeals

412 Wis. 2d 641

8 N.W.3d 821

Carol Lorbiecki, Plaintiff-Respondent-Cross-Appellant,

Estate of Gerald E. Lorbiecki, Plaintiff,

v.Pabst Brewing Company, Defendant-Appellant-Cross-Respondent,Ingersoll Rand Company, Molson Coors Brewing Company, Sears, Roebuck and Co., General Electric Company and Cleaver-Brooks Inc., Defendants.

Court of Appeals

No. 2022AP723. Submitted on briefs January 10, 2O23.Øral argument January 10, 2024.—Decided May 7, 2024.

2024 WI App 33

(Also reported in 8 N.W.3d 821.)

APPEAL and CROSS-APPEAL from a judgment of the circuit court for Milwaukee County: CHRISTOPHER R. FOLEY, Judge.Affirmed in part; reversed in part and cause remanded with directions.

On behalf of the defendant-appellant-crossrespondent, the cause was submitted on the brief of David J. Turek of Gass Tarek LLC, Milwaukee

On behalf of the respondent and cross-appellant, the cause was submitted on the brief of Lynn Laufenburgand Melissa J. Probst of Gingras, Thomsen & Wachs, LLP, Milwaukee, and Lisa W. Shirley(pro hac vice) and Jonathan Holder(pro hac vice) of Dean Omar Branham Shirley, LLP, Dallas, TX.

Before White, C.J., Donald, P.J., and Geenen, J.

¶ 1.WHITE, C.J. Pabst Brewing Company(Pabst) appeals from the judgment entered upon a jury's verdict finding it in violation of the safe place statute and liable for approximately $6.9 million in compensatory and punitive damages for the injury and death of Gerald Lorbiecki from mesothelioma resulting from asbestos exposure.Pabst argues multiple issues with the trial including sufficiency of the evidence, jury instructions, evidentiary admissions, allowing the jury to consider punitive damages, imputing a subcontractor's liability to Pabst, and denying judgment notwithstanding the verdict (JNOV) on grounds that the claim was not legally sufficient.We conclude that Pabst's arguments fail.

¶ 2.Carol Lorbiecki, individually and as the personal representative for the Estate of Gerald E. Lorbiecki(hereinafter, Lorbiecki), cross-appeals the judgment, arguing that the circuit court failed to properly apply the punitive damages statute, Wis. Stat. § 895.043(2021-22),¹ in the calculation of the judgment.We conclude that the punitive damages statute requires doubling the total compensatory damages recovered by Lorbiecki, not doubling only Pabst's apportionment of the compensatory damages.Therefore, we grant Lorbiecki's cross-appeal in part, reverse the judgment in part and remand to the circuit court with directions to enter judgment for punitive damages consistent with this opinion.

BACKGROUND

¶ 3.Gerald worked as a pipefitter from the mid 1970s until the early 2000s at multiple worksites in Wisconsin, including Pabst, where he was exposed to asbestos-containing materials at the worksites.Gerald was diagnosed with mesothelioma in 2017 and died in January 2018, after initiating this action against multiple defendants for negligence and violations of the safe place statute relating to his asbestos exposure.²

¶ 4.The case proceeded to a jury trial in September and October 2021.At trial, Lorbiecki presented Larry Schroeder, a steamfitter in the same union who worked with Gerald in a similar role at Pabst.³Lorbiecki also presented two expert witnesses: Dr. Arnold Brody, a cell biologist and experimental pathologist, and Dr. Edwin Holstein, a doctor specializing in preventative medicine and occupational medicine, with a concentration on asbestos.The jury also heard from Carol, Gerald's wife, and Scott, his son.Lorbiecki called John Kimes, the corporate representative for Pabst in its current ownership group, which was not the owner of Pabst at the time of Gerald's work there.The jury also was shown a video deposition of Jack Wetzel, a delivery driver for Sprinkmann Sons who delivered insulation materials to Pabst.Pabst then read in the depositions of Ralph Van Beck, a vice president at Sprinkmann, and another deposition of Wetzel.Pabst also called Dr. Kimberly Hoppe-Parr, a certified industrial hygienist, as an expert witness.

¶ 5.The jury found that Pabst's "negligence in violating the [s]afe [p]lace [s]tatute" was a "cause of [Gerald's] mesothelioma."The jury also found four other companies liable for Gerald's injury.Three of these companies were defendants that had been dismissed by stipulation.⁴The final company, Sprinkmann, was a subcontractor at Pabst and not a named defendant; the jury was asked whether Sprinkmann was negligent with respect to Gerald's health and safety.The jury apportioned liability as follows: Pabstat 22%, Sprinkmannat 20%, Wisconsin Electric Power Company (WEPCO)at 22%, Butters-Fetting Company, Inc.at 18%, andGrunau Companyat 18%.

¶ 6.The jury determined that Gerald's damages would be fairly compensated at $195,163.55 for past medical, hospital, and funeral expenses, $5 million for pain and suffering prior to death, and $1.35 million for Carol's loss of society and companionship.The jury then determined that Pabst intentionally disregarded Gerald's rights and awarded $20 million in punitive damages specifically against Pabst.

¶ 7.Lorbiecki and Pabst filed post-trial motions.The circuit court granted Lorbiecki's motion to impute Sprinkmann's 20% liability under the verdict to Pabst because Pabst had a non-delegable duty under the safe place statute to ensure its contractors did not negligently cause an unsafe condition on the premises.This resulted in the court finding that Pabst was liable for 42% of the compensatory damages.

¶ 8.Pabst argued that the circuit court should set aside the verdict because it was premised on an erroneous spoliation instruction, improperly admitted evidence, and insufficient proof on elements of a safe place statute violation.Pabst further argued that punitive damages should be denied.While the court declined to set aside the verdict, it granted Pabst's post-trial motion to reduce the damages in two ways.First, it applied the statutory cap on loss of society and companionship damages under Wis. Stat. § 895.04(4) and reduced that award to $350,000.Second, the court reduced the punitive damages award."Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater."Wis. Stat. § 895.043(6).The circuit court concluded that the punitive damages should be calculated as twice Pabst's apportionment of the compensatory damages.

¶ 9.The circuit court calculated compensatory damages as follows: $195,163.55 for medical and funeral expenses, $5 million for pre-death pain and suffering, and $350,000 for Carol's loss of society and companionship, which totaled $5,545,163.55.The court then allocated 42% of the liability to Pabst, equaling $2,328,968.69 in compensatory damages owed by Pabst.To calculate the punitive damages, the court doubled the compensatory damages allocated to Pabst, which equaled $4,657,937.38.The court entered a judgment of $6,986,906.07 against Pabst.

¶ 10.Pabst now appeals and Lorbiecki cross appeals.Additional facts are discussed below.

DISCUSSION

¶ 11.Pabst makes five arguments on appeal, challenging the sufficiency of the evidence of an unsafe condition, errors in evidentiary rulings and jury instructions, the circuit court's decision to allow the jury to consider punitive damages, the court's decision to impute Sprinkmann's liability to Pabst, and the court's denial of Pabst's post-trial motion for JNOV.In the cross-appeal, Lorbiecki asserts that the circuit court erroneously interpreted the punitive damages statute and should have doubled the jury's award of compensatory damages.We address each claim below.

I. Pabst's claims on appeal

A.Sufficiency of the evidence of an unsafe condition

[1]

¶ 12.We begin with Pabst's argument that there was insufficient evidence that an unsafe condition at Pabst's premises caused Gerald's injuries.Pabst asserts that the jury had to resort to speculation and conjecture to reach its verdict because there was no credible evidence to support the verdict.

[2, 3]

¶ 13."Our review of a jury's verdict is narrow."Morden v. Continental AG,2000 WI 51, ¶ 38, 235 Wis. 2d 325, 611 N.W.2d 659.We view"the evidence in the light most favorable to a jury's verdict and must sustain the verdict if there is any credible evidence in the record to support it, regardless of whether there is evidence to support a different verdict."Hoffmann v. Wisconsin Elec. Power Co.,2003 WI 64, ¶ 9, 262 Wis. 2d 264, 664 N.W.2d 55. [4, 5]

¶ 14.Wisconsin's safe place statute, Wis. Stat. § 101.11,⁵ is a negligence statute that provides that an employer or property owner has a heightened, nondelegable duty to "repair or maintain the premises in as safe a condition as the nature of the premises reasonably permits."McGuire v. Stein's Gift & Garden Ctr., Inc.,178 Wis. 2d 379, 398, 504 N.W.2d 385(Ct. App.1993);Dykstra v. Arthur G. McKee & Co.,100 Wis. 2d 120, 130-31, 301 N.W.2d 201(1981).The safe place statute"provides a higher duty than the duty of ordinary care regarding certain acts by employers and owners of places of employment or public buildings."Mair v. Trollhaugen Ski Resort,2006 WI 61, ¶ 20, 291 Wis. 2d 132, 715 N.W.2d 598."[T]he statute imposes three duties on employers and owners of places of employment or public buildings: the duty to construct, to repair, and to maintain a safe place of employment or public building."Barry v. Employees Mut. Cas. Co.,2001 WI 101, ¶ 20, 245 Wis. 2d 560, 630 N.W.2d 517.

[6]

¶ 15.To succeed on a safe place statute claim, Lorbiecki had to show (1) there was an unsafe condition on Pabst's premises; (2) the unsafe condition caused Gerald's injury; and (3) Pabst had either actual or constructive notice of the unsafe condition before Gerald's injury.Correa v. Woodman's Food Mkt.,2020 WI 43, ¶ 12, 391 Wis. 2d 651, 943 N.W.2d 535.This court has previously held that airborne asbestos exposure as a result of repair or...