U.S. District Court Denies Plaintiffs’ Motion for Reconsideration on Grant of Summary Judgment as to Daubert Challenge, Worker’s Compensation Exclusivity, and Public Nuisance Claim U.S. District Court for the Western District of Wisconsin, May 5, 2016

The plaintiffs brought a motion for reconsideration for the court’s decision to grant partial summary judgment as to the defendant Weyerhauser’s motion as to its Daubert challenge, The plaintiffs’ claims for Worker’s Compensation Exclusivity and public nuisance claim.

The court stated that Rule 56 does not provide for a motion for reconsideration but permits a motion to alter judgment. However, the standard requires the movant to show a “manifest error” in judgment or that newly discovered evidence is available. The court noted that the rule is not meant to allow parties to re-litigate matters. Instead, the rule is designed to prevent a flurry of motions similar to ones that the plaintiffs’ counsel had filed.

As for the Daubert challenge, the plaintiffs argued that the court erred in its view of the evidence as to certain the plaintiffs’ exposure to asbestos as a result of take home exposure from family members’ work clothes. One specific plaintiff challenged the court’s finding that his delivery of milk to a dairy near the plant at issue for seven days a week for twelve years was insufficient for the plaintiffs’ experts to opine that his exposure was substantial contributing factor in the development of his alleged disease. The court noted that the plaintiffs’ experts lacked epidemiological studies and therefore had no foundation for the plaintiffs’ experts to testify that his deliveries would have exposed him to levels sufficient to rise to substantial contributing factor. Additionally, the court found that the plaintiffs did not address substantial contributing factor but rather relied on the plaintiff’s alleged exposures as a “factor.” Finally, the plaintiffs contended that the court erred in its interpretation of substantial contributing factor. Relying on the Zelinski case, the court found no error.

The court then reviewed the plaintiffs’ argument that summary judgment should not have been granted as to the Worker’s Compensation Exclusivity Provision. The plaintiffs argued that the court should not have limited its review to the  exposures of the actual worker who was alleged to have brought asbestos home on his clothes but rather should have extended its review to the family members too. At best, the court found the plaintiffs’ contentions confusing and declined to extend the review to the family members as it found that the provision was limited to occupational exposure only.

Finally, the court reviewed the plaintiffs’ argument that summary judgment should not have been granted on their public nuisance claim against Weyerhauser. The court quickly dispensed of the argument and found that the plaintiffs failed to preserve that issue because they had not responded to the defendant’s contention that required  Weyerhauser to have a possessory interest or property right for the nuisance claim to apply. The plaintiffs solely relied on the Restatement of Torts and one case cited in their motion. The court was not persuaded.

The court denied the plaintiffs’ motion as to all three issues.

Read the full decision here.


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