Pecher v. Owens-Ill., Inc.

• Decision Date: 16 February 2017
• Docket Number: 16-2378,16-2379 & 16-2380,Nos. 16-1799,16-2376,16-2377,s. 16-1799
• Citation: 859 F.3d 396
• Parties: Janet PECHER, Individually and as Special Administrator for the Estate of Urban Pecher, Deceased, et al., Plaintiffs–Appellants, v. OWENS–ILLINOIS, INC., et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

859 F.3d 396

Janet PECHER, Individually and as Special Administrator for the Estate of Urban Pecher, Deceased, et al., Plaintiffs–Appellants,

v.OWENS–ILLINOIS, INC., et al., Defendants–Appellees.

Nos. 16-1799

16-2376

16-2377

16-2378

16-2379 & 16-2380

United States Court of Appeals, Seventh Circuit.

February 16, 2017

Decided June 6, 2017

Robert G. McCoy, Attorney, Cascino Vaughan Law Offices, Chicago, IL, for Plaintiffs–Appellants.

Edward Casmere, Robert H. Riley, Brian O'Connor Watson, Matthew J. Fischer, Joshua Douglas Lee, Attorneys, Riley Safer Holmes & Cancila LLP, Edward J. McCambridge, Attorney, Segal, McCambridge, Singer & Mahoney, Ltd, Chicago, IL, Joshua Metcalf, Daniel J. Mulholland, Tanya Dearman Ellis, Charles Mitchell McGuffey, Attorneys, Forman Watkins & Krutz, LLP, Jackson, MS, Smitha Chintamaneni, Attorney, Von Briesen & Roper, S.C., Milwaukee, WI, for Defendants–Appellees.

Mark R. Feldmann, Menn Law Firm, Appleton, WI, for Defendant.

Before Flaum, Manion, and Kanne, Circuit Judges.

Manion, Circuit Judge.

The six cases consolidated on appeal all involve claims related to asbestos exposure over thirty years ago at a single Marshfield, Wisconsin plant which produced fire doors.¹ While complex on the surface, and involving bulky appendices and appeals of separate orders, the thrust of the appeal is quite simple: the claims at issue are covered by the exclusive remedy provisions of Wisconsin's Worker's Compensation Act, Wis. Stat. § 102.03(2). Plaintiffs attempt to get around this bar by recharacterizing their injuries as occurring off the job. These arguments are unavailing. In addition, the claims against Owen-Illinois claims are frivolous. As a result, we affirm the multiple rulings of the district court dismissing the claims against both defendants on appeal and denying reconsideration.

I. Background

In April 1952, the United States Patent and Trademark Office issued Patent No. 2,593,050 for a "Composite Fire Door," assigned to defendant Owens-Illinois. The useful innovation was a fire door that was up-to-code and easy to produce. The patent claims themselves never specifically mention the use of asbestos, but instead describe a fire door with a "core of inorganic, rigid, fire-proof, light weight material of a substantially uniform apparent density and consistency throughout." Later versions of the patent contemplate this core material being "conventional solid, foam, or honey-combed construction and the like, comprising magnesium oxychloride foam cement, expanded polyurethane, mineral wool mats or gypsum or hardboard honeycomb or egg-crate construction or boards of asbestos bound with cement ." While included as examples, these are not elements of the patented subject matter.

In 1956, Owens-Illinois entered into a licensing agreement with Roddis Plywood, set to expire on termination of the patent in 1969. In 1960, Weyerhaeuser Company purchased Roddis Plywood. From some time in the 1950s all the way until 1978, the Marshfield, Wisconsin plant at issue produced at least some fire doors that used asbestos as its thermal insulator. By June 1978, however, the Marshfield plant had ceased using asbestos.

The six plaintiffs on appeal were all employees of that Marshfield plant. All six plaintiffs (or the decedents they represent) developed mesothelioma as a result of asbestos exposure, and on appeal all six raise claims against Owens-Illinois under a theory of negligence arising out of patent design. Three of the six plaintiffs (the "Weyerhaeuser plaintiffs")—Diane Jacobs, Katrina Masephol, and Janice Seehafer—raise claims against Weyerhaeuser Company related to household or community exposure to asbestos.

The initial case involved numerous defendants, and one by one they have dropped out as the case has developed. The two remaining defendants are Weyerhaeuser Company and Owens-Illinois. Claims against Weyerhaeuser by Jacobs, Masephol, and Seehafer were dismissed in an order of February 19, 2016, and a motion for reconsideration was denied on May 5, 2016. These three, represented by the same lawyers, filed a notice of appeal on Monday, June 6, 2016, regarding numerous dismissal orders or orders denying the reconsideration of the dismissal orders. These cases were consolidated with the claims against Owens-Illinois on appeal.

Claims against Owens-Illinois, based upon the licensing of a patent, by plaintiffs Masephol, Boyer, and Seehafer were dismissed in an August 22, 2014, order. Perhaps in light of that order, the remaining three plaintiffs agreed to dismiss similar claims against Owens-Illinois in a stipulation accepted by the court on June 16, 2015, styling the dismissal as "involuntary." Five of the six plaintiffs filed their notice of appeal with respect to claims against Owens-Illinois on June 6, 2016 (three of them appealing claims against Weyerhaeuser in the same order). One plaintiff, Janet Pecher, filed her notice of appeal on April 11, 2016, apparently relating back to a standard order of dismissal accepting a settlement from Weyerhaeuser on March 11, 2016.

Needless to say, the posture of this kitchen-sink consolidated appeal is irregular. Nevertheless, the gravamen of the case can be split into two parts: the claims against Weyerhaeuser Company, and the claims against Owens-Illinois. Upon full review, it is clear that all of the orders dismissing the claims against both defendants were proper, and the various appealed orders of the district court are affirmed.

II. Analysis

A. Claims Against Weyerhaeuser Company

Three plaintiffs appeal the dismissal of their claims against Weyerhaeuser Company related to their claims for community and household exposure to asbestos. Each of the Weyerhaeuser plaintiffs worked at Weyerhaeuser for years in close contact with asbestos. Therefore, on the surface at least, it appears their claims should be limited to the procedures set out in Wisconsin's Worker's Compensation Act, which provides the "exclusive remedy against the employer" for work-related injuries. Yet plaintiffs contend that their asbestos-related injuries were not caused on the job, but at home and in the community, and style these as public and private nuisance claims. For example, one plaintiff, Roger Seehafer, worked for 44 years at the plant cutting and drilling asbestos mineral cores. When he developed mesothelioma years later, plaintiffs' counsel attributes this not to his work in the plant, but to the ambient asbestos in the surrounding community, a public nuisance that significantly contributed to his mesothelioma as he went about his side job hauling milk to and from a dairy a few blocks away. He also relies on ambient exposure related to his one month living in the same city as the plant.

Plaintiffs presented expert witnesses in support of this theory. With respect to the three of the plaintiffs on appeal adverse only to Owens-Illinois (Kathy Boyer, Janet Pecher, and Robert Sydow), the district judge admitted the expert testimony under Fed. R. Evid. 702. But the district judge rejected that expert testimony in the cases of the three Weyerhaeuser plaintiffs who appeal this ruling—Masephol, Seehafer, and Jacobs. The district court reasoned that these plaintiffs failed to demonstrate that the expert testimony would be reliable in their cases. This was because none of the three plaintiffs demonstrated that they lived close enough to the Marshfield plant long enough for the experts to opine that non-occupational exposure contributed significantly to their injuries. The district court, reasonably, noted that a small exposure might "contribute" to contracting mesothelioma. But the testimony of the experts themselves could not support the legal finding of proximate causation for such non-occupational exposure in the cases of Masephol, Seehafer, and Jacobs. However, the court noted that the testimony of the experts might support a finding of proximate causation in the cases of Boyer, Pecher, and Sydow. The court specified it could not "ignore the real possibility that any trier of fact might be unable to balance defendant's right to exclude liability or damages for occupational exposures under compensation laws against the understandable, if unduly prejudicial, sympathy that would be engendered at trial in light of the inexorable pain and death that results from this disease."

One need not read between the lines to note that the district court was concerned that the expert testimony proffered by plaintiffs' counsel was an attempt to avoid the exclusive remedy provisions of Wisconsin law, offering jurors a way to award damages under a cause of action that should otherwise be foreclosed. Indeed, the court noted that "it may well be the outcome of any trial" that the jury finds that all of the plaintiffs' injuries were solely caused by occupational exposure. Even with this in mind, the district court still managed to allow the expert testimony into the Boyer, Pecher, and Sydow cases, because each of these plaintiffs lived closer to the factory. 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. C.W. v. Textron, Inc. , 807 F.3d 827 (7th Cir. 2015). the district court noted in the same order, absent this novel claim of non-occupational exposure, the three Weyerhaeuser plaintiffs (Jacobs, Masephol, and Seehafer) had "failed to put forth sufficient evidence for a reasonable jury to conclude that non-occupational asbestos exposure was a substantial contributor to their respective injuries." Accordingly, the district court properly dismissed the public and private nuisance claims.

Quite apart from the problems of causality, however, the private nuisance claims fail for a second reason noted by the district court: the plaintiffs failed to provide any individual proof of a current possessory interest in land tainted by asbestos. Plaintif...