Plaintiff Survives Motion to Dismiss Upon Adding Additional Allegations in Amended Complaint U.S. District Court for the Western District of Wisconsin, April 17, 2018
WISCONSIN — The plaintiff filed suit against Weyerhauser and its insurer for alleged emissions of asbestos into the Marshfield, Wisconsin community. Plaintiff Michael Kappel moved to add additional allegations to his complaint. Weyerhauser moved to dismiss. The plaintiffs were substituted upon Mr. Kappel’s passing.
Weyerhauser sought dismissal on two separate grounds. First, the defendant argued the plaintiffs did not allege Mr. Kappel’s exposure from work at Weyerhauser in an effort to circumvent the exclusivity rules in the local worker’s compensation statute. The court disagreed as the complaint alleged exposure from “community or environmental” exposure only. Relying on its previous decisions in the Kilty/Spatz cases, the court noted the plaintiffs were not required to allege exposure from employment. Moreover, Mr. Kappel did not work at Weyerhauser during the time of the alleged environmental exposure according to the court. Finally, the defendant took the position that dismissal was appropriate since the plaintiff had not alleged a specific disease or date of diagnosis. The court was not persuaded by this argument as the plaintiff’s amended complaint corrected those two issues. The court granted dismissal of the nuisance claims. However, the motion to dismiss as to negligence was ultimately denied.