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

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 …

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Federal Court Applies Bare Metals Defense in Finding Boiler Manufacturer Not Liable for Asbestos Supplied by Third Parties

After the plaintiff’s husband died from lung cancer, the plaintiff filed a lawsuit alleging strict liability and negligence due to asbestos exposure from his work insulating and maintaining boilers. It was transferred to the Pennsylvania MDL, then remanded back to Wisconsin federal court. Defendant Trane U.S., Inc. then moved for summary judgment, arguing: (1) it did not assume the liabilities of American Standard, and (2) American Standard did not manufacture, distribute or specify the asbestos materials that caused decedent’s injuries. The court granted the motion …

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Mixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims

In this decision, there were eight separate actions against Weyerhaeuser Company involving private and public nuisance claims brought by, or on the behalf of, former employees of Weyerhaeuser for asbestos-related injuries based on non-occupational exposure. Weyerhaeuser used asbestos in its mineral core plant to manufacture a door core. The plaintiffs non-occupational exposure claims were based on their living, or being, in close proximity to the plant. Weyerhaeuser “moved to strike plaintiffs’ experts and for summary judgment, arguing that plaintiffs are unable to prove injuries beyond …

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In Case Where Steamfitter Worked on its Premises, Owner Denied Summary Judgment Based on the Wisconsin Safe Place to Work Statute

In yet another follow-up decision in the Ahnert case out of Wisconsin federal court, Pabst Brewing Company moved for summary judgment. As previously reported, Foster Wheeler was granted summary judgment, but insulation contractor, Sprinkmann Sons Corp. was denied summary judgment based on the Wisconsin statute of repose. The decedent was a union Steamfitter from 1955 to 1992 and claimed exposure to asbestos while working on Pabst’s premises. In its motion, Pabst argued that there was no evidence that decedent was exposed to asbestos from …

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Work Performed by Insulation Contractor was Maintenance, Not Improvement, to Real Property; Wisconsin Statue of Repose Did Not Bar Asbestos Claims

In a follow-up decision from yesterday’s report regarding the summary judgment granted to Foster Wheeler, Sprinkmann Sons Corporation also moved for summary judgment.  The Wisconsin federal court denied this motion.

The decedent was a steamfitter; two co-workers testified regarding their work with the decedent at various industrial facilities. They overhauled turbines and tanks, and removed/installed insulation. Sprinkmann was an insulation contractor for at least two of these facilities and moved for summary judgment based on: (1) no evidence Decedent was exposed to Sprinkmann asbestos-containing products; …

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Wisconsin Federal Court Applies Statue of Repose in Granting Summary Judgment to Foster Wheeler after Multiple Lawsuits Filed by Same Plaintiff

The plaintiff was a steamfitter who filed a lawsuit against Foster Wheeler and others due to asbestosis developed after alleged  asbestos exposure. After this case was transferred to MDL 875, the plaintiff was diagnosed with mesothelioma and filed a second suit, again naming Foster Wheeler. After the plaintiff died, his wife dismissed the second lawsuit; three years later she sought to amend the MDL case to include the mesothelioma diagnosis, which the MDL denied due to time. Meanwhile, the plaintiff filed a third lawsuit in …

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Statute of Repose Doesn’t Apply in Reversal of Summary Judgment as Evidence Regarding Work Deemed Insufficient to Show an Improvement to Property

In this case, the plaintiff, Sandra Brezonick, alleged that the decedent, John Brezonick, was exposed to asbestos at various sites while working as a steamfitter in the Milwaukee area between 1966 and 2000. The plaintiff’s complaint alleged product liability, negligence and safe place statute claims under Wis. Stat. § 101.11 against numerous defendants.  The defendants included property owners Pabst Brewing Company, Miller Brewing Company and Wisconsin Electric Power Company (WEPCO) — where asbestos was allegedly used — and insulation contractor Sprinkmann Sons Corporation, which allegedly …

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Plaintiff Allowed to Substitute and Limitedly Amend Complaint, Several Cases Consolidated Against 3M Among Court Rulings on Daubert Hearings and Expert Preclusion

In these federal court cases there were several motions brought forward, including a motion by the plaintiff to substitute the estate and file a third amended complaint following the death of the decedent, defendant 3M’s motion to preclude the plaintiff’s expert Dr. Arnold Brody, and defendant Weyerhaeuser’s Daubert motion regarding the plaintiff’s experts Frank M. Mark, III, and Drs. Henry A. Anderson and Jerrold L. Abraham.

Regarding the plaintiff’s motion for substitution and to amend the complaint, the court held: “The court will grant the …

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Plaintiff Widow Allowed to Proceed on Claims Even Though Not Timely Substituted as Special Administrator of Husband’s Estate

The decedent died of mesothelioma and the plaintiff, his widow, proceeded on the claims that had been filed prior to his death; the plaintiff did not substitute herself as special administrator of his estate. Defendant Owens-Illinois filed a notice of death pursuant to federal rules, then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 25(a)(2), requiring timely substitution of a proper party. Defendants 3M and Weyerhaeuser filed motions to join. The plaintiff then dismissed Owens-Illinois, and 3M and Weyerhaeuser filed no …

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Distinction Between Gloves and Mittens Crucial In Granting Defendant’s Summary Judgment

Plaintiff Janice Herr alleged that Richard Herr died of mesothelioma due to his use of Airco-distributed, asbestos-containing gloves/mittens. Herr was a sculptor and art instructor who used insulated mittens to handle heated molds. He also used raw asbestos to make molds for his sculptures. Airco never manufactured insulated gloves or mittens, but distributed welding gloves and mittens with its logo. This case was remanded for further proceedings by the MDL 875 Court, after the MDL denied the summary judgment filed by Airco, the sole remaining …

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