Mixed Rulings on Daubert Challenges and Motions for Summary Judgment by Employer on Employees’ Non-Occupational Asbestos Exposure Claims U.S. District Court for the Western District of Wisconsin, February 19, 2016

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 those resulting from asbestos exposure on the job, for which they, their estates and spouses may only recover under worker’s compensation laws.”

In a mixed ruling, the court held: “For the reasons that follow, the court will grant defendant’s Daubert and summary judgment motions with respect to plaintiffs Masephol, Prust, Seehafer, Heckel and Treutel, based on their failure to offer reliable evidence of significant, non-occupational exposure to asbestos. The court will, however, deny the same motions with respect to plaintiffs Boyer, Pecher and Sydow, finding that the latter three plaintiffs have produced sufficient evidence for a reasonable jury to find: (1) they not only worked, but lived for at least one year within a 1.25 mile radius of the plant that scientific studies suggest may meaningfully increase their risk of development mesothelioma; and (2) a qualified expert can testify reliably that this exposure constituted a significant, non-occupational asbestos exposure, which in turn substantially contributed to their respective mesothelioma diagnoses. The court will also grant defendant’s motion for summary judgment on plaintiff’s private nuisance claims, finding: (1) plaintiffs failed to put forth any evidence of a possessory interest; and (2) the discovery rule under Wis. Stat. § 893.52 does not apply. In all other respects, defendant’s motions will be denied.” Plaintiffs Boyer, Pecher and Sydow were allowed to proceed to trial on the public nuisance claims.

Read the full decision here.

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