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 this court, naming both asbestosis and mesothelioma. After this case was filed, the MDL transferred the original case back to Wisconsin. Foster Wheeler filed a motion for summary judgment in the original case, which the court granted.
The plaintiff argued exposure to asbestos from a Foster Wheeler boiler present at the Oak Creek Unit 5 power plant and installed by Foster Wheeler in 1958. Enormous quantities of asbestos insulation was used on this unit. A co-worker testified that he worked with the plaintiff on this unit for six months in the 1980s.
Foster Wheeler argued that the Wisconsin Worker’s Compensation Act was the plaintiff’s exclusive remedy. Although the plaintiff’s co-worker stated that Foster Wheeler was his employer, the plaintiff argued that Babcock & Wilcox was the decedent’s employer at the time of exposure. Instead, the court applied the Wisconsin statue of repose in holding that the plaintiff’s claims were barred because she had ten years from the date of installation to bring suit, and the boiler was a continuous improvement to real property.
The court stated: “The Wisconsin Supreme Court has explained that the statue of repose protects ‘all who are involved in the actual improvement of real property to the extent they participated in improving the property.’… On the other hand, the statute excludes material producers from protection when liability is based on the defective design or manufacture, which occurs prior to any involvement with the improvement… The statute protects those companies like Foster Wheeler who provided the specifications for the installation and actually installed the new equipment. Because Foster Wheeler was not the manufacturer or producer of any asbestos products, the statute applies.”
It is noteworthy that at the outset of its opinion, the court discussed the fact that much of plaintiff’s evidence surfaced for the first time through its opposition to Foster Wheeler’s motion. In an attempt to create a genuine issue of material fact, the plaintiff filed a declaration contradicting the same witness’s prior deposition testimony, which the court excluded as a sham. The plaintiff also produced “new” social security records that were never previously produced. The plaintiff conceded at oral argument that she knew of documents contradicting the dates of alleged exposure.