Neubauer v. Owens-Corning Fiberglas

• Decision Date: 09 January 1981
• Docket Number: 78-C-44,Civ. A. No. 77-C-52,77-C-491,77-C-446,77-C-492,78-C-544,79-C-117 and 79-C-980.,78-C-131,78-C-43
• Citation: 504 F. Supp. 1210
• Parties: Charlotte E. NEUBAUER, personally and as personal representative of the Estate of Clifford S. Neubauer et al., Joy Skofronick, personally and as personal representative of the Estate of Clifford E. Mason, Walter J. Presechnik, Clarence O. Reimer and Mary M. Reimer, Darwin Frank Witkowski, Sr., and Eleanore Witkowski, Clarence P. Lillge and Hertha E. Lillge, Erich E. Eckoldt and Mamie Eckoldt, Robert J. Gaynor and Lavellette Gaynor, Plaintiffs, v. OWENS-CORNING FIBERGLAS CORPORATION, a foreign corporation et al., Defendants. William GLOBIG and Kathrine A. Globig, Robert A. Wetzel and Grace M. Wetzel, Plaintiffs, v. JOHNS-MANVILLE SALES COMPANY et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

504 F. Supp. 1210

Charlotte E. NEUBAUER, personally and as personal representative of the Estate of Clifford S. Neubauer et al., Joy Skofronick, personally and as personal representative of the Estate of Clifford E. Mason, Walter J. Presechnik, Clarence O. Reimer and Mary M. Reimer, Darwin Frank Witkowski, Sr., and Eleanore Witkowski, Clarence P. Lillge and Hertha E. Lillge, Erich E. Eckoldt and Mamie Eckoldt, Robert J. Gaynor and Lavellette Gaynor, Plaintiffs, v. OWENS-CORNING FIBERGLAS CORPORATION, a foreign corporation et al., Defendants.

William GLOBIG and Kathrine A. Globig, Robert A. Wetzel and Grace M. Wetzel, Plaintiffs, v. JOHNS-MANVILLE SALES COMPANY et al., Defendants.

Civ. A. Nos. 77-C-52, 77-C-446, 77-C-491, 77-C-492, 78-C-43, 78-C-44, 78-C-131, 78-C-544, 79-C-117 and 79-C-980.

United States District Court, E. D. Wisconsin.

January 9, 1981.

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

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

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

Robert E. Hankel, Racine, Wis., for Pittsburg Corning Corp.

Daniel J. Stangle and Donald Lieb, Milwaukee, Wis., for Keene Corp.

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

John D. Bird, Jr., Milwaukee, Wis., for Jim Walter Corp. and Celotex Corp.

Jack R. Wiedabach and Thomas N. Harrington, Milwaukee, Wis., for Fibreboard Corp.

Harney B. Stover, Jr. and James E. Culhane, Milwaukee, Wis., for GAF Corp.

Richard S. Gibbs and John R. Hoaglund, Jr., Milwaukee, Wis., for Owens-Illinois, Inc.

James P. O'Neill, Milwaukee, Wis., for Atlas Asbestos Co.

Ralph Wm. Bushnell and Bruce D. Huibregtse, Madison, Wis., for H. K. Porter Co., Inc. and Southern Asbestos Company.

Frank R. Terschan, and Dennis G. Frzezinski, Milwaukee, Wis., for Forty-Eight Insulations, Inc. and Nicolet Inc.

Arthur J. Vlasak, Milwaukee, Wis., for Forty-Eight Insulations, Inc.

Maurice J. McSweeney, Frederick C. Moore and James R. Clark, Foley & Lardner, Milwaukee, Wis., for National Gypsum Co.

Stanley F. Schellinger, James G. Doyle, and Robert R. Beltz, Milwaukee, Wis., for Standard Asbestos Manufacturing and Insulating Co.

Michael J. Pfau and Eric J. Van Vugt, Milwaukee, Wis., for Unarco Industries, Inc.

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

James P. Brennan, Milwaukee, Wis., for Raybestos Manhattan, Inc.

Hanlin J. Hayes, Tom E. Hayes and James Samuelsen, Milwaukee, Wis., Richard J. Kreul, Racine, Wis., for H. K. Porter Co., Inc. and Southern Asbestos Co.

DECISION AND ORDER

REYNOLDS, Chief Judge.

These actions are product liability suits brought for the recovery of damages for injuries allegedly sustained by the plaintiffs or their decedents as a result of the inhalation of asbestos dust. In the eight cases in which the male plaintiffs contracted asbestosis (C.A. Nos. 77-C-491, 77-C-492, 78-C-43, 78-C-44, 78-C-131, 78-C-544, 79-C-117, and 79-C-980), motions to dismiss and for summary judgment have been brought on behalf of all defendants and third-party defendants. In the two cases in which the decedents of the plaintiffs contracted mesothelioma (C.A. Nos. 77-C-52 and 77-C-446) motions to dismiss and for summary judgment have been brought only as to the claims for damages for medical costs and for pain and suffering but not as to the wrongful death claims.

The issue posed by the pending motions is the proper interpretation of the applicable state statute of limitations, formerly § 893.205(1), Wis.Stats., which provided that within three years of its accrual, "an action to recover damages for injuries to the person"^* must be brought. Former § 893.14, Wis.Stats. (revised and renumbered as § 893.04, Wis.Stats., by the laws of 1979, effective July 1, 1980), which was in effect at the time these actions were commenced, provided:

"The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued * * *."

The plaintiffs argue for an interpretation of § 893.205(1) which permits suit to be filed within three years after a plaintiff knew or should have known that he had a compensable injury contracted as a result of exposure to asbestos dust. The defendants and third-party defendants argue variously for a date of injury without regard to whether a plaintiff at the time of injury knew or had reason to know its cause or for a date of last exposure to asbestos-containing products manufactured by a particular defendant or third-party defendant.

The male plaintiffs and the decedents of the female plaintiffs in the Neubauer and Skofronick cases worked for many years with insulation products. The defendants and third-party defendants are all manufacturers of insulation products and at various times made their products with asbestos content. It is alleged that the plaintiffs and two decedents were exposed during their working years to asbestos-containing insulation products manufactured by some or all of the defendants and third-party defendants and as a result suffered compensable injuries.

The parties agree that asbestosis and mesothelioma are progressive diseases caused by prolonged exposure to asbestos dust. There appears to be no dispute that the plaintiffs and two decedents contracted one or the other of the two diseases as a result of exposure to asbestos dust. There also appears to be no dispute that a tendency toward pneumonia, shortness of breath, wheezing, pleural calcification, and pulmonary dysfunction may be symptomatic of asbestos-caused disease. Uncontradicted affidavits on file prepared by Dr. John Schluetter, an expert retained by the defendant Johns-Manville Sales Company, establish that asbestos-caused diseases tend to develop over time and, once contracted, may become progressively worse even after exposure to asbestos dust ceases because of the internal reaction to asbestos fibers lodged in the lungs. An uncontradicted affidavit on file prepared by Dr. Nathan Grossman, an expert retained by the plaintiffs, establishes that the reaction of persons exposed to asbestos dust is highly individual and that not all persons exposed contract a disabling injury. The parties do not agree on what symptoms each plaintiff exhibited at what time nor on the extent of disability suffered by each plaintiff nor on the time when each plaintiff may be said to have suffered a compensable injury. Conflicting affidavits have also been filed regarding each plaintiff's knowledge of his medical condition three years and one day before filing suit.

Because there are no Wisconsin court cases applying § 893.205(1), Wis.Stats., to a plaintiff with a progressive industrial disease, the plaintiffs have pointed out to the court cases of a similar nature which have arisen in other jurisdictions. Thus, in Karjala v. Johns-Manville Products Corporation, 523 F.2d 155 (8th Cir. 1975), an asbestosis case, the Court held that the applicable statute of limitations did not begin to run until damage sufficient to maintain a cause of action had occurred, the plaintiff's harm had become manifest, and he had reason to know the cause of his harm. See also Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076, 1102 (5th Cir. 1973), and Insurance Company of North America v. Forty-Eight Insulations, Inc., 451 F.Supp. 1230 (E.D.Mich.1978), both applying a discovery rule. The third-party defendant Owens-Illinois, Inc., on the other hand, points to several cases which hold that the statute of limitations commences to run on the date of plaintiff's last exposure to the disease-causing substance, that being the date on which the defendant's wrongful conduct ceases. See, e. g., Rowe v. Gatke Corporation, 126 F.2d 61 (7th Cir. 1942) (applying Indiana law in an asbestosis case and therefore holding that the statute of limitations runs two years "after the last day of the last exposure to the hazards of the disease"); Armour & Company, Inc. v. Mitchell, 262 F.2d 580 (6th Cir. 1958); Simmons v. Mutual Liability Insurance Co., 433 F.Supp. 747 (S.D.Ala.1976). However, "`Decisions of the courts of other states involving their statutes of limitations and prior decisions are of little value in cases arising in Wisconsin under Wisconsin law.'" Koschnik v. Smejkal, 96 Wis.2d 145, 153 n. 6, 291 N.W.2d 574 (1980), citing Reistad v. Manz, 11 Wis.2d 155, 158, 105 N.W.2d 324 (1960). Therefore, it is to the Wisconsin cases interpreting § 893.205(1), Wis.Stats., and the state statutes of limitations in general that this Court must look for guidance in these cases.

For the most part cases which have arisen under § 893.205(1), Wis.Stats., have been medical malpractice cases, and the Wisconsin Supreme Court has uniformly held that in those cases the statute of limitations begins to run on the date of injury which normally corresponds to the date of the negligent act without regard to the date on which the plaintiff discovered his injury and its cause. See, e. g., Rod v. Farrell, 96 Wis.2d 349, 291 N.W.2d 568 (1980) (holding that in the case of a man who had a congenital hernia repaired in 1955 and did not discover until 1975 when he had exploratory surgery to discover the cause of his wife's failure to become pregnant that during the hernia surgery a portion of his vasa had been removed and he was sterile, the three-year statute of limitations began to run from the date of the hernia surgery); Olson v. St. Croix Valley Memorial Hospital, Inc., 55 Wis.2d 628, 201 N.W.2d 63 (1972) (holding that plaintiff's cause of action accrued in 1962 when she was given a transfusion of the wrong type of blood which allegedly resulted in the birth of a stillborn child in 1969); McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787 (1966) (holding that plaintiff's cause of action accrued in 1956 when a hemostat was left in her abdomen during surgery and not in 1962 when the presence of the hemostat was discovered during routine x-rays). In...