The plaintiff sued the defendant, Owens-Illinois, for injuries caused to the decedent by asbestos exposure, which proceeded in multidistrict litigation for many years and was transferred back to the District Court of Wisconsin in 2014. A settlement agreement had apparently been reached, which the plaintiff’s estate representative claimed was not authorized. After the district court refused to enforce the settlement, Owens-Corning moved to dismiss the case on three grounds: the plaintiff lacked standing as the estate representative; the plaintiff’s action is moot because she failed to meet a variety of state law requirements for bringing the claims; and a settlement of a prior wrongful death lawsuit bars this claim on issue preclusion grounds.
On the standing issue, the court held that Owens-Illinois waived the right to raise the standing issue: “The question whether an individual is the real party in interest under Fed. R. Civ. P. 17 is not jurisdictional, PNC Bank, N.A. v. Spencer, 763 F.3d 650, 654 (7th Cir. 2014), which means the issue can be waived.” Similarly, the court held that the mootness arguments and judicial estoppel arguments can and were waived: “Because issues of judicial estoppel can be waived, In re Brand Name Prescription Drugs Antitrust Litigation, 186 F.3d 781, 790 (7th Cir. 1999), defendant cannot raise an argument that it could have raised when the estate was allegedly closed nine years ago.” Lastly, on the issue preclusion issue, the court also rejected Owens-Illinois’ issue preclusion argument: “I decline to apply issue preclusion because defendant has not shown that the question whether its products harmed plaintiff was ‘actually litigated and determined by a valid and final judgment.’ In addition, defendant does not discuss any of the factors for determining the question of ‘fundamental fairness,’ so defendant has forfeited that issue as well.”