Community Exposure Claims by Former Employees Not Barred by Wisconsin Workers’ Compensation Act U.S. District Court for the Western District of Wisconsin, April 17, 2018

WISCONSIN — Two deceased Weyerhauser employees brought claims against their former employer for common law negligence, negligent nuisance, and intentional nuisance. In an effort to avoid the exclusivity provisions of Wisconsin’s Workers’ Compensation Act (WCA), both plaintiffs alleged that the defendant Weyerhauser’s activities exposed them to asbestos in the community, not during the course of their employment with the defendant, causing their mesothelioma. Weyerhauser challenged the pleadings on several bases, and the court granted and denied their motion in part.

The court denied Weyerhauser’s motion to dismiss based on exclusivity of the WCA. Weyerhauser argued that the plaintiffs’ exposure to asbestos still arose out of their employment, and that prior authority supported the bar of these types of community claims. The court was unpersuaded, finding that prior decisions both within and outside the jurisdiction were not binding and inapplicable. The court expressed skepticism that plaintiffs could “prove {a} causal link, or that a reasonable jury could allocate separate damages to that community exposure,” but concluded that community claims were permissible under the WCA.

The court dismissed the plaintiffs’ public nuisance claims after Weyerhauser’s statute of limitations challenge. The court noted that any concerns that the public had regarding rights to clean air ended when Weyerhauser ceased using asbestos in 1979. And, “the claimed injury – mesothelioma—did not arise until decades after the alleged nuisance, further proving that a nuisance claim…is ill-fitted to the facts at issue in these cases.” The court also granted Weyerhauser’s unopposed motion to bar plaintiff from relying on the Clean Air Act to prove negligent conduct. It denied Weyerhauser’s motion to dismiss punitive damages, finding that plaintiffs sufficiently alleged that Weyerhauser acted with intentional disregard in allegedly emitting asbestos into the ambient community air. Finally, the court stated that the exposition of facts in the litigation would create a better record for it to evaluate public policy arguments, and denied Weyerhauser’s motion to dismiss negligence claims on public policy grounds.

Read the full decision here.

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