In a consolidated matter, three of the plaintiffs, Diane Jacobs, Katrina Masephol, and Janice Seehar (the Weyerhaeuser plaintiffs), filed claims against various defendants after developing mesothelioma. Each had worked for Weyerhaeuser for years in close contact with asbestos. As such, in order to get around Wisconsin’s Workers Compensation Act, Wis. Stat. § 102.03(2), which provides the “exclusive remedy against the employer” for work-related injuries, the plaintiffs argued that their asbestos-related injuries were not caused on the job, but at home and in the community, and style these as public and private nuisance claims.
The plaintiffs presented expert witnesses in support of this theory but the district judge rejected this testimony finding that plaintiffs failed to demonstrate that the expert testimony would be reliable. The judge reasoned that none of these three plaintiffs lived close enough to the Weyerhaeuser plant long enough for the experts to opine that non-occupational exposure contributed significantly to their injuries. With respect to other plaintiffs in this consolidation, the judge actually found the plaintiffs’ expert witness testimony admissible because these plaintiffs lived closer to the plant. The court further acknowledged that a small exposure might contribute to developing mesothelioma. However, the testimony of the plaintiffs’ experts regarding the Weyerhaeuser plaintiffs could not support the legal finding of proximate cause for such non-occupational exposure. The plaintiffs appealed this decision.
On appeal, the United States Court of Appeals, Seventh Circuit noted that it was obvious that the district court was concerned that the expert testimony proffered by the plaintiffs’ counsel was an attempt to avoid the exclusive remedy provisions of Wisconsin law, offering jurors a way to award damages under a cause of action that should otherwise be foreclosed. However, they still managed to allow expert testimony into the other plaintiffs cases because they lived closer to the factory. The court continued that this admission under Rule 702 seems overly deferential to a highly dubious theory of harm, but neither this nor the exclusion of the same testimony with respect to the three plaintiffs on appeal could be considered an abuse of discretion. [Citation Omitted]. Therefore, absent this novel claim of non-occupational exposure, the three Weyerhaeuser plaintiffs had “failed to put forth sufficient evidence for a reasonable jury to conclude that non-occupational asbestos exposure was a substantial contributor to their respective injuries.” Accordingly, the district court properly dismissed the public and private nuisance claims