Kilty, Pamela et al v. Weyerhaeuser Company et al

Brief in Opposition

W.D. Wis.October 25, 2016

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN PAMELA KILTY, Individually and as Special Administrator of the Estate of Elvira Kilty, PAUL KILTY, DAVID L. KILTY, WILLIAM J. KILTY, and JAMES S. KILTY Plaintiffs, v. WEYERHAEUSER COMPANY, et al., Defendants. Case No. 16-CV-515 PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT WEYERHAEUSER COMPANY’S MOTION TO DISMISS PLAINTIFFS’ CLAIMS John E. Herrick Nathan D. Finch Meredith K. Clark MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Phone: (843) 216-9000 Facsimile: (843) 216-9450 and Robert G. McCoy Daniel B. Hausman CASCINO VAUGHAN LAW OFFICES, LTD. 220 S. Ashland Avenue Chicago, IL 60607 Phone: (312) 944-0600 Facsimile: (312) 944-1870 Counsel for Plaintiffs Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 1 of 28 i TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 LEGAL STANDARD ..................................................................................................................... 2 ARGUMENT .................................................................................................................................. 2 I. Plaintiffs’ claims against Weyerhaeuser are not barred by the exclusivity provision of the Wisconsin Worker’s Compensation Act. ..................................... 2 A. Plaintiffs’ claims against Weyerhaeuser are outside the parameters of the Wisconsin Workers’ Compensation Act. .............................................. 3 B. The California and Washington case law set forth by Weyerhaeuser is dissimilar to the facts of this matter. ........................................................... 7 C. Dual Persona Exception .............................................................................. 9 II. Plaintiffs’ claims are not founded upon the Clean Air Act, rather they utilize the standards set forth by the Clean Air Act to demonstrate Weyerhaeuser’s negligence. ............................................................................................................ 11 A. Plaintiffs’ Claims against Weyerhaeuser are for negligence, not CAA Violations. ................................................................................................. 12 B. The CAA does not preempt Plaintiffs’ claims. ......................................... 12 III. Public policy does not favor dismissal of Plaintiffs’ claims. ................................ 13 IV. Plaintiffs’ Complaint properly alleges claims for which relief may be granted. .. 15 A. Plaintiffs provide sufficient facts that are more than mere conclusions in order for Weyerhaeuser to develop a defense. ...................................... 15 B. The right to bring a private nuisance claim in the state of Wisconsin does not require a “current possessory interest.” ...................................... 16 C. Punitive Damages should not be dismissed. ............................................. 18 V. Plaintiffs’ private nuisance claims are not barred by the statute of limitations. ... 20 CONCLUSION ............................................................................................................................. 21 CERTIFICATE OF SERVICE ..................................................................................................... 23 Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 2 of 28 ii TABLE OF AUTHORITIES Cases Allen v. Public Service Corp., 279 Wis. 2d 488, 694 N.W.2d 420, (Wis. Ct. App. 2006) .......................................... 20, 21 Alvarado v. Sersch, 262 Wis. 2d 74 (2003) ...................................................................................................... 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................................ 2 Boyer v. Weyerhaeuser Company, et al., 39 F. Supp. 3d 1036 (W.D.Wis. 2014) ............................................................................... 4 Boyer v. Weyerhaeuser Company, et al., No. 14-cv-286, 2015 WL 3485262 (W.D.Wis. June 2, 2015) .......................................... 12 Brynwood Land Co. B. Industrial Commission, 243 Wis. 380 (Wis.1943) .................................................................................................... 5 Butler v. Advanced Drainage Sys., 294 Wis. 2d 397, 412 (2006) ............................................................................................ 13 Calewarts v. CR Meyer & Sons Co., 363 Wis. 2d 654, 862 N.W.2d 902 (2015) ........................................................................ 19 Campbell v. Lockheed Shipbuilding Corp., 115 Wash. App. 8, 61 P.3d 1160 (Wash. Ct. App. 2002) ................................................... 9 Dixson v. Wis. Health Organization Ins. Corp., 237 Wis. 2d 149 (2000) .................................................................................................... 12 Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir. 1990) ............................................................................................ 2 Gumz v. Northern States Power Co., 295 Wis. 2d 600, 721 N.W.2d 515 (Wis. Ct. App. 2006) ................................................. 21 Henning v. Gen. Motors Assembly Div., 143 Wis. 2d 1 (1988) ........................................................................................................ 11 Krause v. Western Casualty & Surety Co., 3 Wis. 2d 61 (Wis.1958) ..................................................................................................... 7 McMillan v. Collection Professionals, Inc., 455 F.3d 754 (7th Cir. 2006) .............................................................................................. 2 Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 3 of 28 iii Melendrez v. Ameron Int’l. Corp., 240 Cal. App. 4th 632 (Cal. Ct. App. 2015) ....................................................................... 8 Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis. 2d 635 (2005) .................................................................................................... 17 Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173 (1980) ........................................................................................................ 7 Northridge Company v. W.R. Grace & Company, 205 Wis. 2d 267 (Wis. Ct. App. 1996) ............................................................................. 18 Pennoyer v. Allen, 56 Wis. 502 (1883) ........................................................................................................... 18 Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 254 Wis. 2d 77 (2002) ........................................................................................................ 9 Schweiner v. Hartford Accident & Indem. Co., 120 Wis. 2d 344 (Ct. App. 1984) ...................................................................................... 10 Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212 (Wis. 1999) .............................................................................................. 17 State Y.M.C.A. v. Industrial Commission, 235 Wis. 161 (Wis.1940) .................................................................................................... 5 Thomas ex rel. Gramling v. Mallett, 285 Wis. 2d 236 (2005) .................................................................................................... 14 U.S. v. O’Malley, 739 F.3d 1001 (7th Cir. 2014) .......................................................................................... 12 Weiss v. City of Milwaukee, 208 Wis. 2d 95 (1997) ........................................................................................................ 5 Statutes 42 U.S.C. §7604............................................................................................................................ 13 42 U.S.C. §7661............................................................................................................................ 13 Wis. Stat. § 893.52 .................................................................................................................. 20, 21 Wis. Stat. § 895.043(3) ................................................................................................................. 19 Wis. Stat. §102.03 ..................................................................................................................... 9, 10 Wis. Stat. 809.23(3) ...................................................................................................................... 19 Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 4 of 28 iv Other Authorities Restatement (Second) of Torts § 821D ......................................................................................... 17 Wis-JI-Civil 1922.......................................................................................................................... 18 Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 5 of 28 1 Now Comes Plaintiffs, by and through their undersigned counsel of record, and hereby oppose Defendant Weyerhaeuser Company (“Weyerhaeuser” or “Defendant”)’s Motion to Dismiss Plaintiffs’ Claims. Defendant’s motion should be denied for the reasons stated herein. INTRODUCTION Many, if not all, of the arguments presented in Weyerhaeuser’s motion to dismiss have previously been submitted to this Court and fully briefed by the parties in eight nearly identical cases (“the Marshfield cases”) arising out of factual situations alike to the facts of the instant matter. For this reason and for the sake of brevity, Plaintiffs incorporate, as if fully set forth herein, the following documents from Boyer v. Weyerhaeuser Company, et al., No. 3:14-cv-00286-slc, filed in the U.S. District Court for the Western District of Wisconsin:  Response to Weyerhaeuser Co.’s Motion to Dismiss (Doc. #85);  Motion to Reconsider and/or for Leave to File an Amended Complaint (Doc. # 100);  Response to Weyerhaeuser Co.’s Motion to Dismiss (Doc. #127);  Opinion and Order granting in part and denying in part Motion to Dismiss dated 6/2/2015 (Doc. #174);  Motion for Reconsideration or Clarification of June 2, 2015 Order (Doc. #194);  Plaintiffs’ Reply Brief in Support of Motion for Reconsideration or Clarification of June 2, 2015 Order (Doc. #199);  Plaintiffs’ Response in Opposition to Defendant Weyerhaeuser Company’s Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. #364); and  Opinion and Order dated 2/19/2016 (Doc. #464). Indeed, the only argument presented by Weyerhaeuser that appears to be entirely novel is what Weyerhaeuser referred to as its “single, indivisible injury” argument. Def. Br. at p. 10-16. As more fully discussed infra at section I.B., this argument is improper for a Rule 12(b)(6) motion to dismiss. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 6 of 28 2 Additionally, most of the issues raised by Weyerhaeuser in its motion to dismiss are currently before the Seventh Circuit Court of Appeals and briefing has not been completed.1 In responding to the current motion to dismiss, Plaintiffs also incorporate the briefing filed and to be filed in the Court of Appeals. Plaintiffs reserve the right to supplement the arguments contained herein after the Seventh Circuit issues its ruling. LEGAL STANDARD The purpose of a motion to dismiss is not to rule on a complaint’s merits, but rather to test the sufficiency of the complaint’s allegations. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In analyzing Weyerhaeuser’s motion to dismiss, the Court must accept all well- pleaded allegations as true, and view those allegations in the light most favorable to Plaintiffs, drawing all reasonable inferences in Plaintiffs’ favor. McMillan v. Collection Professionals, Inc., 455 F.3d 754, 758 (7th Cir. 2006). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ... a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do ... Factual allegations must raise a right to relief above the speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (Internal citations omitted). As will be demonstrated below, the complaint filed in this matter fully complies with these standards. ARGUMENT I. Plaintiffs’ claims against Weyerhaeuser are not barred by the exclusivity provision of the Wisconsin Worker’s Compensation Act. 1 Weyerhaeuser has also filed a motion to stay the proceedings in this action (Doc. #18) until after the appeal in the Seventh Circuit has reached a conclusion. Plaintiffs are subsequently filing a response to Weyerhaeuser’s Motion to Stay, requesting that this Court permit fact discovery to continue. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 7 of 28 3 Weyerhaeuser argues that because Plaintiffs have alleged claims against other defendants based on Elvira Kilty (“Ms. Kilty” or “Decedant”)’s exposure to asbestos while employed by Weyerhaeuser, Plaintiffs should be barred from bringing claims against Weyerhaeuser based on Ms. Kilty’s separate and distinct community exposures that were not a result of her “‘performing service growing out of and incidental to decedent’s employment’ for Roddis or Weyerhaeuser within the meaning of Wis Stat. §102.03(c).” Compl. at ¶39. As shown below, Plaintiffs’ common law negligence, negligent nuisance, and intentional nuisance claims brought against Weyerhaeuser are not barred by the exclusivity provision of the Wisconsin Workers’ Compensation Act (“WCA”). A. Plaintiffs’ claims against Weyerhaeuser are outside the parameters of the Wisconsin Workers’ Compensation Act. As pled, Plaintiffs’ claims against Weyerhaeuser are based on conduct or activities that do not fall under the WCA. The exposures alleged as the basis for causation include those “transported and emitted to areas outside the plant by: a. worker clothing, personal effects, hair, and skin which had become contaminated by asbestos fibers at the plant; and b. collecting, removing, hauling, and dumping asbestos dust and waste materials.” Compl. at ¶36. The complaint also alleges the “plant emissions and transport of asbestos fibers as described above caused contamination of housing, vehicles, community businesses, and other places outside the plant frequented by decedent.” Id. at ¶37 (emphasis added). Furthermore, the complaint specifically alleges that the inhalation of asbestos fibers by Decedent occurred “when activities were being performed by decedent or other persons, including without limitation other household members or guests, that were not part of ‘performing service growing out of and incidental to decedent’s employment’ for Roddis or Weyerhaeuser within the meaning of Wis Stat. §102.03(c).” Id. at ¶39. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 8 of 28 4 In past rulings this Court made legal findings against other plaintiffs on the statutory issue of whether the Wis Stat. 102.03(c) requirement was met for fibers transported outside the workplace by the victim. Plaintiffs, on behalf of Ms. Kilty, now plead, as to fibers transported by her, the statutory requirement as a fact which should be presumed as correct at the stage of a Rule 12(b) motion. Compl. at ¶39. The Court should allow the discovery to proceed on evidentiary issues such as whether Weyerhaeuser had plant rules or procedures about showering or changing contaminated clothing before leaving the workplace or the procedures for laundering such clothing at home. These are examples of some disputed facts relevant to the statutory requirement. In the other Marshfield cases, this Court permitted the plaintiffs “to proceed on nuisance clams against Weyerhaeuser limited to the alleged community [and household] exposure to asbestos that is demonstrably separate and distinct from their exposures during the course of their employment.” Boyer v. Weyerhaeuser Company, et al., 39 F. Supp. 3d 1036, 1047 (W.D. Wis. 2014). The community and household exposures alleged in the prior Marshfield cases are identical to those alleged here and are separate and distinct from any exposure due to employment. For example, assume a Marshfield resident is operating a saw which cuts into the asbestos core and releases fibers. One scenario is that the resident inhales the fibers inside the plant, the WCA applies. A second scenario is the fibers are absorbed into the dust collection system and a malfunction of the baghouse system causes the fibers to be emitted into the community air. If the fibers are blown into the resident’s house and inhaled by the resident while watching television, the WCA does not provide a remedy. A third scenario is the fibers contaminate the resident’s clothing in his work station at the Marshfield plant. The resident then wears his work clothes home, and the fibers are rubbed off on his car seat. The resident then goes on a vacation to Florida and reentrains the fibers into the air of the car and he and his family inhale the fibers in Florida. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 9 of 28 5 The WCA does not extend to provide a remedy for the Florida vacation. Finally, a fourth scenario is the fibers contaminate the resident’s clothing in his work station at the Marshfield plant. The resident then wears his work clothes home and places his clothing in the clothing hamper. A family member empties the clothing hamper, shaking each article as it is added to the washing machine, and reentrains the fibers into the air of the home. The resident and his family inhale the fibers while enjoying a family dinner. The WCA does not provide a remedy. The point of these scenarios is the single fact of the fibers being released in the workplace does not determine whether the WCA remedy applies. Wisconsin courts hold the WCA does not apply if the injury occurs when the employee is not acting as an employee. See State Y.M.C.A. v. Industrial Commission, 235 Wis. 161, 161 (Wis.1940); see also Brynwood Land Co. B. Industrial Commission, 243 Wis. 380 (Wis.1943). For the WCA exclusivity to bar a claim: “Not only is it necessary that the employee at the time of the accident be performing services growing out of and incidental to his employment but the accident causing the injury must arise out of the employment.” Cutler-Hammer, Inc v. Industrial Commission, 5 Wis. 2d 247, 250 (Wis.1958). “Where there is no evidence that at the time the injury was received the claimant was engaged in any work for his employer, a finding is not warranted that the injury arose out of and in the course of his employment.” State Y.M.C.A., 235 Wis. 161 at 165-166. The controlling statutory language – “performing service growing out of and incidental to his or her employment” – is interchangeable with the phrase “course of employment.” Weiss v. City of Milwaukee, 208 Wis. 2d 95, 104 (1997). An injury occurs in the course of employment when “it takes place within the period of the employment, at a place where the employee Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 10 of 28 6 reasonably may be, and while he [or she] is fulfilling his [or her] duties or engaged in doing something incidental thereto.” Id. at 104. Construing the pleadings most favorably to Plaintiffs, household (including vehicle and other non-workplace settings) exposures cannot be determined as a matter of law at the motion to dismiss stage to arise from the “course of employment.” The inhalation of the fibers occurred during conduct or activities that take place in household settings outside the workplace, which do not involve performance of employment duties. Moreover, the complaint specifically alleges that the inhalation of asbestos fibers by Decedent occurred “when activities were being performed by decedent or other persons, including without limitation other household members or guests, that were not part of ‘performing service growing out of and incidental to decedent’s employment’ for Roddis or Weyerhaeuser within the meaning of Wis Stat. §102.03(c).” Id. at ¶39. When the pleaded allegations are accepted as true and viewed in the light most favorable to Plaintiffs, the complaint sufficiently meets the standards of Rule 12(b)(6). Whether the exposures were occupational or not becomes a factual determination. Household exposures do not occur on the employer’s premises. Fibers may be transported home by the plaintiff or the plaintiff’s family member on clothes, hair, personal effects, or in cars. The mere act of fibers attaching in the workplace to the person or property of the plaintiff or the plaintiff’s family member is not an injury. The injury (exposure) does not occur until the fibers are inhaled. As stated in the pleadings, inhalation takes place after fibers are transported off the premises. Inhalation occurs during non-employment activities such as laundering clothes, riding in a car, playing with children, cleaning the house, or other household activities in areas contaminated by asbestos fibers. An employee wearing home or laundering contaminated work clothes or riding in their personal vehicle cannot be deemed as a matter of law to be “performing Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 11 of 28 7 services” for the employer. If so, the WCA remedy would be available when an employee slams her hand in the washing machine or slips on the soapy laundry room floor and breaks a bone or has an accident driving to and from work. Without considering evidence such as whether Decedent’s clothing was supplied by the employer or that Decedent’s employer had safety protocols for dealing with contaminated clothing and vehicles outside of the workplace, this Court cannot resolve Weyerhaeuser’s liability for fibers transported outside the work place on the victim’s clothing as a matter of law. Extending WCA liability to activities performed in the home is inconsistent with existing Wisconsin case law that activities much closer in time and space to the employer’s premises and working hours are not barred. See, e.g., Krause v. Western Casualty & Surety Co., 3 Wis. 2d 61, 68 (Wis.1958) (“The general rule, therefore, is that an employee going to or from work is not in the course of his employment while off the premises of the employer.”). Upon leaving the employer’s premises and during non-working hours, the WCA remedy has rarely, if ever, been recognized as applicable in the Wisconsin courts. Creating piecemeal exceptions to established law does far more to upset the “balance [of competing social interests] achieved by the worker’s compensation law” than permitting this suit would. Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 180 (1980). B. The California and Washington case law set forth by Weyerhaeuser is dissimilar to the facts of this matter. In past rulings, this Court allowed claims for fibers transported home on the clothes of other family members or through community exposures to go forward. Boyer, 2016 WL 705233, at *20-21, 25. Weyerhaeuser now makes a new argument in Kilty that such claims are barred because the disease mesothelioma is a “single, indivisible injury” that is subsumed by the workplace exposures. Compl. at p. 10-11. Weyerhaeuser’s argument is improper for a motion to Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 12 of 28 8 dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The medical evidence is an issue of fact that must be developed before a ruling may be issued on this topic. The complaint does not state mesothelioma is a “single, indivisible injury” as Weyerhaeuser asks this Court to find. Weyerhaeuser cites to two cases on this theory based on the state laws of California and Washington in an attempt to rewrite Wisconsin law and establish disputed scientific claims as a matter of law. Moreover, California and Washington case law is not controlling authority as to medical science or Wisconsin case law. These cases can each be distinguished because the various non-Wisconsin workers compensation statutes do not require, as does Wisconsin’s WCA 102.03(c)(1), that the employee must be performing service growing out of and incidental to employment at the time of injury. First, Weyerhaeuser cites Melendrez v. Ameron Int’l. Corp., 240 Cal. App. 4th 632 (Cal. Ct. App. 2015), for the proposition that this Court should determine that Plaintiffs’ claims are within the parameters of the WCA Exclusivity Provision. Def. Br. at p. 11-14. Plaintiffs acknowledge there is a slight similarity between Melendrez and the instant matter; yet, Melendrez is distinguishable enough that this Court should not find the California Court of Appeals decision persuasive. In Melendrez, the non-occupational exposures for which the decedent’s survivors brought claims against his employer Ameron International Corp. (“Ameron”), chiefly that Lario Melendrex was “permitted to take [asbestos-containing] waste or scrap pipe home” for home projects. Melendrez, 240 Cal. App. 4th at 636 (emphasis added). “The plant where Melendrez worked allowed employees to take home reject Bondstrand pipe if they received a permission slip signed by a supervisor.” Id. (emphasis added). Thus, in addition to the differences in statutory language, Melandrez’ involved employer practices that affected the exposures outside the Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 13 of 28 9 workplace, specifically the requirement to get approval from a supervisor before taking the asbestos-containing product from the plant. The same factual investigation about the employer rules and procedures must be conducted in the Kilty case and cannot be resolved on the pleadings. Weyerhaeuser next points to a Washington appellate court case in which the plaintiff was alleging claims against Lockheed Shipbuilding Corp. for his asbestos exposure while working as a sub-contractor, where the plaintiff also worked directly for Lockheed and previously agreed to a settlement under the Longshore and Harbor Workers’ Compensation Act for the same injury. Campbell v. Lockheed Shipbuilding Corp., 115 Wash. App. 8, 9, 61 P.3d 1160, 1161 (Wash. Ct. App. 2002). Campbell is distinguishable from the facts of the matter at issue here because all of the exposures (fiber inhalation) from which the plaintiff claimed his injury arose occurred on the employer’s premises. Id. at 9. Here, Plaintiffs claims against Weyerhaeuser arise from exposures that did not occur on Weyerhaeuser’s premises. Moreover, nuisance allegations, specifically, involve interference with the right to enjoy “the use of land or of a public place.” Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 254 Wis. 2d 77, 102 (2002). Thus, Plaintiffs should not be penalized from bringing claims against Weyerhaeuser for fibers inhaled outside the workplace that other Marshfield residents would be permitted to bring but for the Decedent’s employment with Weyerhaeuser. C. Dual Persona Exception Weyerhaeuser argues plaintiffs must plead a “dual persona” theory to avoid the WCA exclusivity bar. Dual Persona only applies after the Court finds that a plaintiff’s injury is alleged to arise from services which fall within the scope of the exclusive remedy provision of Wis. Stat. §102.03(2). As discussed above, the exclusivity provision is only triggered when “the employee is performing service growing out of and incidental to his or her employment” at the time of injury, and “[w]here the accident or disease causing injury arises out of the employee's employment.” Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 14 of 28 10 Wis. Stat. §102.03(1). Plaintiff does not concede the statutory requirement is met and has no reason to plead “dual persona.” The case law cited by Weyerhaeuser concerning the dual persona doctrine has no application to injuries which arise from conduct outside the course of one’s employment. The claims here are based on conduct outside the employment relationship and so dual persona need not be alleged. Only after finding the conduct or activities involving the employment relationship fall within the scope of the WCA does the dual persona doctrine come into play as an issue which the court needs to consider. The cases Weyerhaeuser cites in support of the dual persona argument can be distinguished from the evidence in the present case. Defendant’s cases all involve claims arising from conduct occurring while the plaintiffs were acting in the course of their employment. In Schweiner v. Hartford Accident & Indem. Co., 120 Wis. 2d 344 (Ct. App. 1984), the plaintiff “during the course of his employment, . . . sustained injuries when a molding machine malfunctioned.” Id. at 346. The cause of the Schweiner plaintiff’s injuries was an allegedly faulty electrical switch installed on the molding machine that the plaintiff used in the course of his employment. The company that installed the switch eventually merged with the plaintiff’s employer. The dual persona issue came into play with regard to the question of whether the obligations and liabilities of the company that installed the switch survived the merger. See id. at 352-54. Because the injury in Schweiner occurred in the defendant’s plant while the plaintiff was providing services incidental to his employment, the case does not support Weyerhaeuser’s argument that plaintiffs must prove a dual persona when the claim is not based on the employment relationship. Similarly, Henning v. Gen. Motors Assembly Div., 143 Wis. 2d 1 (1988) is not relevant to determining whether an employee is able to sue an employer for injuries sustained outside of the Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 15 of 28 11 employment arrangement. There, the plaintiff was injured during the course of his employment as a sanitation worker. The fact that the injury occurred while the plaintiff was performing employment related services for his employer means that the court did not reach the issue of whether the employer could be liable for injuries sustained outside of that relationship. Moreover, even if this Court determines that the dual persona exception is at play in this matter based on the facts, Plaintiffs have sufficiently plead such exception. The difference between dual persona and dual capacity is a fine line. Defendant correctly points out that Plaintiffs alleged facts against Weyerhaeuser as the owner/operator of the Weyerhaeuser plant. Def. Br. at p. 18. However, any claim by Decedent against Weyerhaeuser for her occupational injury under the WCA would involve Weyerhaeuser as an employer. Weyerhaeuser as an owner/operator owed a separate duty to the general public of Marshfield, Wisconsin than it did to Decedent in its employer/employee relationship. The line should not be blurred only based on the fact that Decedent was also a member of the general public of Marshfield. II. Plaintiffs’ claims are not founded upon the Clean Air Act, rather they utilize the standards set forth by the Clean Air Act to demonstrate Weyerhaeuser’s negligence. Weyerhaeuser argues: 1) The Clean Air Act (“CAA”) does not permit Plaintiffs’ claims; and 2) the CAA preempts Plaintiffs’ claims. These arguments rely on two fallacies. First, Plaintiffs do not bring any claims under the CAA, but rather cites to the CAA as evidence of negligence. Second, the CAA by its own explicit provisions does not preempt Plaintiffs’ nuisance claims. In fact, this Court correctly determined in the previous Marshfield cases that the plaintiffs’ claims were not preempted by the CAA. “Here, plaintiffs are seeking to assert state tort claims against Weyerhaeuser, not a Federal Clean Act [sic] claim or some other federal environmental claim.” Boyer, 39 F. Supp. 3d at 1048; see also Boyer v. Weyerhaeuser Company, et al., No. 14-cv-286, Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 16 of 28 12 2015 WL 3485262, at *2 (W.D. Wis. June 2, 2015) (“the court stops short of finding plaintiffs' nuisance claims preempted by the CAA altogether”). A. Plaintiffs’ Claims against Weyerhaeuser are for negligence, not CAA Violations. Weyerhaeuser misrepresents the nature of Plaintiffs’ claims. Plaintiffs’ allegations of nuisance are contained in paragraphs 47-66 of the complaint. Plaintiffs allege eighteen different grounds for the breach of the duty of care and negligence. Compl. at ¶58. The first fourteen grounds relate only to common law duties. Compl. at ¶58 (a)-(m), ¶58(r). The other grounds relate to various state and federal regulations. Compl. at ¶58 (n)-(q). Violation of the CAA is only one of the eighteen grounds. Compl. at ¶58(o). The references to the CAA in Plaintiffs’ pleading are to establish evidence of Weyerhaeuser’s negligence. Although Weyerhaeuser argues Plaintiffs have no federal civil remedy for personal injury damages under the CAA, violations can still be evidence of negligence.2 In Wisconsin, the standard of ordinary care can, under certain circumstances, be determined by government regulations. Dixson v. Wis. Health Organization Ins. Corp., 237 Wis. 2d 149, 164 (2000) (citing Restatement (Second) of Torts §286 (1965)). B. The CAA does not preempt Plaintiffs’ claims. Though Weyerhaeuser claims the CAA preempts Plaintiffs’ tort claims, the CAA has a savings clause that explicitly states the CAA does not preempt any state statutory or common law claims: “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief . . .” 42 U.S.C. §7604(e).3 2 Knowingly violating the CAA with asbestos emissions makes the violator subject to criminal liability. U.S. v. O’Malley, 739 F.3d 1001 (7th Cir. 2014). 3 This clause was noted in the 3rd Circuit=s opinion that held the CAA does not preempt state tort claims. Bell v. Cheswick Generating Station, 734 F.3d 188, 191 (3d Cir. 2013). Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 17 of 28 13 Here, plaintiffs are seeking “other relief” – damages for personal injuries sustained from Weyerhaeuser’s asbestos emissions based on state nuisance and negligence law. The cases Weyerhaeuser cites all pertain to state and private attempts to enforce emission standards, and are inapplicable to Plaintiffs’ personal injury claims. Contrary to Weyerhaeuser’s brief, Plaintiffs are also not bringing a citizen suit under the CAA, a suit which is only commenced “for a violation of (a) an emissions standard or limitation or (b) an order issued by the EPA or the state in regard to the standard or limitation.” 42 U.S.C. §7661a(c)(I). The purpose of the CAA is to enforce emission standards, and remedies are injunctive relief and civil penalties – not personal injury damages. III. Public policy does not favor dismissal of Plaintiffs’ claims. Weyerhaeuser argues that public policy favors dismissal of Plaintiffs’ claims. As cited by Weyerhaeuser, Wisconsin courts use six public policy factors: “(1) [the] injury is too remote from the negligence; . . . (2) the injury is wholly out of proportion to the culpability of the negligent tortfeasor; . . . (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; . . . (4) . . . allowance of recovery would place too unreasonable a burden on the negligent tortfeasor; . . . (5) [to allow recovery] would open the way for fraudulent claims; or (6) to allow recovery would enter a field that has no sensible or just stopping point.” Butler v. Advanced Drainage Sys., 294 Wis. 2d 397, 412 (2006) (citation omitted). Wisconsin public policy in this area is well-established by the statutes and regulations cited in Plaintiffs pleadings, including Wisconsin Department of Natural Resources (DNR) air quality standards. Compl. at ¶58(q). The standards prohibit visible emissions into the community air. The Complaint alleges that “visible emissions” occurred. Compl. at ¶45(m). Weyerhaeuser does not contend the DNR standards are legally inapplicable. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 18 of 28 14 In addition, Wisconsin courts normally defer taking up the issue of whether public policy justifies a non-liability finding until a full factual record has been developed and a jury has been allowed to make a negligence determination. See Thomas ex rel. Gramling v. Mallett, 285 Wis. 2d 236, 323 & n.54 (2005) (noting that “as with the constitutional arguments, [this court] expresses no opinion on the dissent’s analysis, except to acknowledge that this court retains the ability to limit liability based on public policy factors but rarely invokes this power before a finding of negligence has occurred.”). As the court stated in Alvarado v. Sersch, 262 Wis. 2d 74, 355 (2003): In most cases, the better practice is to submit the case to the jury before determining whether the public policy considerations preclude liability. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. This case should be submitted to a jury to decide the facts before public policy is considered. Weyerhaeuser only mentions one of the six public policy factors, claiming with little evidence or argument that there is no just and sensible stopping point. Contrary to Weyerhaeuser’s claim, an obvious just and sensible stopping point exists: Weyerhaeuser is alleged to be liable only to persons who are diagnosed with life-threatening asbestos-related disease. As with any other tort care, Weyerhaeuser’s liability is only claimed for negligence in causing asbestos-related disease. As for the other five factors, when the pleadings are construed in the light most favorable to Plaintiffs, each factor supports Plaintiffs’ claims. First, the injury is not at all remote from the conduct. Asbestos-related disease is a predictable consequence of releasing large quantities of asbestos into the community as set forth in allegations of the complaints made about scientific knowledge of asbestos-related disease caused by community exposure. Second, the injury is not out of proportion to the culpability: asbestos has long been known to cause malignant disease, the injuries the plaintiffs in this case possess. Third, it is not “highly extraordinary” that releasing Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 19 of 28 15 asbestos in proscribed quantities into the community would cause asbestos-related disease. The result was predictable. Fourth, it is not unreasonable to charge Weyerhaeuser for the damage Weyerhaeuser foreseeably caused by releasing asbestos into the community – this is a fundamental principle of Wisconsin negligence law. Fifth, fraudulent claims are not at risk, because plaintiffs will have to demonstrate some asbestos-related disease and that they resided in the community at the time of Weyerhaeuser’s emissions. IV. Plaintiffs’ Complaint properly alleges claims for which relief may be granted. A. Plaintiffs provide sufficient facts that are more than mere conclusions in order for Weyerhaeuser to develop a defense. Weyerhaeuser’s fourth argument is based on the sufficiency of detail in Plaintiffs’ factual allegations. Defendant claims that Plaintiffs did not allege “how, when, or where” contamination occurred; “how, when or where Decedent was exposed to this contamination; or how such contamination/exposure is unrelated to Decedent Elvira Kilty’s employment with Weyerhaeuser.” Def. Br. at p. 30. Contrary to Weyerhaeuser’s assertion, paragraphs 15, 48, and 49 of Plaintiffs’ complaint allege specific transactions and occurrences that released asbestos fibers into the community or contaminated Plaintiff’s household and other off-site locations: • “asbestos fibers transported outside the plant beginning in 1955 by employees or other persons on the plant premises which contaminated homes, autos, and other locations outside the plant which decedent breathed while residing in the Marshfield area since birth”; • “emissions of asbestos dust beginning in 1955 into the community air of Marshfield which decedent breathed while residing in the Marshfield area since birth”; • Transport to areas outside of the Marshfield plant by “worker clothing, personal effects, hair, and skin which had become contaminated by asbestos fibers at the plant”; and • “The plant emissions and transport of asbestos fibers as described above caused contamination of housing, vehicles, Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 20 of 28 16 community businesses, and other places outside the plant frequented by decedent.” Compl. at ¶¶15, 48-49. The Complaint further alleges these activities caused Decedent’s exposures. Paragraph 45 states, “The plant emissions and transport of asbestos fibers as described above caused contamination of the community housing, vehicles, community businesses, and other places outside the plant frequented by decedent.” Compl. at ¶37. The Complaint notifies Weyerhaeuser of the means by which asbestos fibers were released into the community by the Marshfield plant operations, fibers to which Decedent was exposed. More specificity as to which vehicles, community housing, or clothing items is the proper subject of discovery. Decedent may have been exposed to asbestos in her own car, or she may have been given a ride by another plant employee. Similarly, Decedent may have been exposed to asbestos not only from her own clothes, but also from the clothes of another employee riding in the same car as Decedent or from the contaminated clothes brought home by a family member. Plaintiffs’ Complaint apprises Weyerhaeuser of the various potential means by which the Marshfield plant caused Decedent to be exposed to asbestos outside of the course of employment. B. The right to bring a private nuisance claim in the state of Wisconsin does not require a “current possessory interest.” Whether or not Plaintiffs’ private nuisance claims are barred by the statute of limitations is dependent upon the point in time at which Plaintiffs’ private nuisance claims were discovered and accrued to become actionable. Weyerhaeuser’s argument is based on the unsubstantiated conclusion that victims of private nuisance who sustain physical injuries as a result of that nuisance have no right of action unless they remain on the toxic premises, i.e., maintain a “current possessory interest,” until their physical injuries from that exposure manifest themselves and are diagnosed. This construction of the law of nuisance is without legal support. Victims of a tortfeasor’s contamination Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 21 of 28 17 of the places where they live do not lose their legal rights simply because there is a latency period before their injuries manifest themselves and during that latency period they move to a new residence. Under Wisconsin law, claims for mesothelioma do not even accrue until the disease is diagnosed. Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212, 239 (Wis. 1999). The Restatement (Second) of Torts defines a private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts § 821D. The Supreme Court of Wisconsin follows the Restatement, holding that “an action to recover damages for a private nuisance may be brought by those who ‘have property rights and privileges in respect to the use and enjoyment of the land affected,’ including possessors of the land and owners of easements.” Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis. 2d 635, 658 (2005) (citing Restatement (Second) of Torts § 821 cmt. g.). The Supreme Court of Wisconsin has further held that enjoyment of land is substantially impaired and a nuisance occurs due to substances movable by air from one premise to another: The ownership of land carries with it the rightful use of the atmosphere while passing over it. . . . This being so, it follows that any business which necessarily and constantly impregnates large volumes of the atmosphere with disagreeable, unwholesome, or offensive matter, may become a nuisance to those occupying adjacent property, in case it is so near, and the atmosphere is contaminated to such an extent, as to substantially impair the comfort or enjoyment of such adjacent occupants. Pennoyer v. Allen, 56 Wis. 502, 502 (1883). For the Decedent, the community emissions and fibers transported from the plant into households interfere with a protected “interest in the private use and enjoyment.” The interference comes from the asbestos fiber contamination that results. This contamination causes fibers to be inhaled and bodily injury to begin while the victim is living in the household. See Wis-JI-Civil 1922. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 22 of 28 18 In Northridge Company v. W.R. Grace & Company, 205 Wis. 2d 267 (Wis. Ct. App. 1996), the Wisconsin Court of Appeals held contamination by the presence of asbestos materials in a structure is actionable as a private nuisance.4 The court in Northridge also recognized liability for private nuisance continued after a defendant landowner “has parted with the title and the possession” or a product manufacturer “relinquish[es] ownership or control over their polluting products.” Consistent with the defendant’s continuing liability for nuisance, a victim should be able to obtain compensation for injuries that do not manifest as diagnosable diseases until after the victim is no longer an occupant of the property. Mesothelioma is such a disease. Interjecting the word “current” as a requirement, which Plaintiffs contend is not proper, does not eliminate the jury issue. Whether a victim’s interest in “use and enjoyment” is interfered is determined in part by whether the victim is injured while occupying the property. The medical evidence will establish that victims of asbestos disease are injured soon after the inhalation of the fibers even though the clinical manifestation or diagnosis usually occurs decades later. Weyerhaeuser created a private nuisance in at least two significant ways. First, the emission of mineral core dust from the Marshfield plant found its way onto the property of nearby homes and businesses. Second, Weyerhaeuser employees were not required to wash or change their clothes prior to leaving the premises, with the exception of mineral core employees beginning in 1970. Employees would then bring home asbestos fibers on their clothing, exposing their children and spouses, particularly when the laundry was washed. C. Punitive Damages should not be dismissed. A plaintiff may recover punitive damages “if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of” the plaintiff's 4 The Court in Northridge noted the opinion included the continuing liability for “private nuisance.” 205Wis2d at 282, n8. Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 23 of 28 19 rights. Wis. Stat. § 895.043(3). The Wisconsin Supreme Court recently permitted a plaintiff to proceed on a punitive damages claim against a defendant where there was evidence that: [t]he asbestos-coated steam pipes were on all four floors at Milprint. The Milprint workers were not advised to wear protective gear and no safety warnings or instructions about asbestos were given until sometime after 1985. The asbestos was never encapsulated and remained a subject of union bargaining discussions until the plant closed. [Plaintiff’s] witnesses did not observe abatement work, involving the use of special protective measures, until 1989. Calewarts v. CR Meyer & Sons Co., 363 Wis. 2d 654, ¶73, 862 N.W.2d 902 (2015).5 Here, the evidence will demonstrate that Weyerhaeuser had notice of the emissions of asbestos-containing mineral core dust into the Marshfield community. Specifically, Weyerhaeuser was aware of the risks of exposure to younger persons living near, but not working in, the plant, the need for proper control of the factory effluents containing asbestos waste, and the need to protect the community air. Weyerhaeuser failed to act to prevent such emissions from contaminating the air in Marshfield. The evidence will also demonstrate that the risk associated with household exposures was foreseeable. Weyerhaeuser failed to warn its employees of the risk of household exposures. Additionally, Weyerhaeuser had knowledge that it was interfering with 5 Wisconsin Statute Section 809.23(3) states the following regarding the citation of unpublished opinions: (a) An unpublished opinion may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case, and except as provided in par. (b). (b) In addition to the purposes specified in par. (a), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s. 752.31 (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. Because an unpublished opinion cited for its persuasive value is not precedent, it is not binding on any court of this state. A court need not distinguish or otherwise discuss an unpublished opinion and a party has no duty to research or cite it. (c) A party citing an unpublished opinion shall file and serve a copy of the opinion with the brief or other paper in which the opinion is cited. Wis. Stat. 809.23(3). Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 24 of 28 20 the use and enjoyment of land or a common public right and continued to ignore this interference. Therefore, Weyerhaeuser acted with intentional disregard of the rights of Decedent and the public. V. Plaintiffs’ private nuisance claims are not barred by the statute of limitations. The Wisconsin Court of Appeals previously summarized the applicable law regarding the statute of limitations for negligence and nuisance claims in a case where a dairy farmer sued an electric utility company, claiming stray voltage injured his cattle. Allen v. Public Service Corp., 279 Wis. 2d 488, 495, 694 N.W.2d 420, 424 (Wis. Ct. App. 2006). The court stated: WISCONSIN STAT. § 893.52 provides a six-year limitations period for negligence and nuisance claims. The accrual of a stray voltage claim is governed by the discovery rule. Under that rule, a plaintiff's claim accrues when the plaintiff objectively knows, or with reasonable exercise of care should have known, the cause of the injury and the defendant's part in that cause. Furthermore, “[a] plaintiff can rely on the discovery rule only if he or she has exercised reasonable diligence.” Reasonable diligence means “such diligence as the great majority of persons would use in the same or similar circumstances” to discover the cause of the injury. Id. (citations and footnote omitted). In Allen, the trial court found that the distribution of electricity by the power company was a nuisance. Id. at 497, 694 N.W.2d at 425. The Court of Appeals affirmed the trial court’s conclusion that the dairy farmer took reasonable steps to determine the cause of the damages and that the farmer could not have objectively known the cause of the damage until after an isolator was installed and the cows’ health improved. Id. Moreover, the defendant in Allen “went to the farm three times and told Allen there was no problem.” Id. The court stated that “Allen cannot be faulted for accepting the results of [the defendant’s] testing . . .” Id. Similarly, in Gumz v. Northern States Power Co., 295 Wis. 2d 600, 721 N.W.2d 515 (Wis. Ct. App. 2006), the plaintiffs commenced an action against the power company for electric current, which caused their herd of cows to suffer from various “health issues, poor production, and deaths.” 295 Wis. 2d at 605, 721 N.W.2d at 517. The trial court in Gumz denied the defendant’s Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 25 of 28 21 motion for summary judgment based upon the six-year statute of limitations under Wis. Stat. § 893.52, and the jury found the defendant causally negligent for maintaining a nuisance. Id.at 606, 721 N.W.2d at 518. Similar to Allen and Gumz, the Plaintiffs did not have knowledge of Decedent’s asbestos- related injury until she was diagnosed with mesothelioma. Subsequently, Plaintiffs took reasonable steps to determine the exposure to asbestos emitted and transported from the Marshfield plant was the cause of Decedent’s injury. Further, the contamination of Decedent’s property would not have been discovered by the exercise of ordinary care. Thus, Plaintiffs’ private nuisance claims are not barred by the statute of limitations. CONCLUSION Plaintiffs’ have demonstrated: (1) the claims brought against Weyerhaeuser are not barred by the Exclusivity Provision of the Wisconsin Workers’ Compensation Act; (2) Plaintiffs’ claims are not founded upon the Clean Air Act; (3) public policy does not favor dismissal of Plaintiffs’ claims; (4) Plaintiffs’ Complaint properly alleges claims for which relief may be granted; and (5) Plaintiffs’ private nuisance claims are not barred by the statute of limitations. . WHEREFORE, for the reasons stated herein, Plaintiffs respectfully request that this Court deny Defendant Weyerhaeuser Company’s Motion to Dismiss in its entirety. This 25th day of October, 2016 Respectfully submitted, COUNSEL FOR PLAINTIFFS /s/ John E. Herrick John E. Herrick Nathan D. Finch Meredith K. Clark Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 26 of 28 22 MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Phone: (843) 216-9000 Facsimile: (843) 216-9450 jherrick@motleyrice.com nfinch@motleyrice.com mkclark@motleyrice.com and Robert G. McCoy Daniel B. Hausman CASCINO VAUGHAN LAW OFFICES, LTD. 220 S. Ashland Avenue Chicago, IL 60607 Phone: (312) 944-0600 Facsimile: (312) 944-1870 bmccoy@cvlo.com dhausman@cvlo.com Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 27 of 28 23 CERTIFICATE OF SERVICE I hereby certify that on October 25th, 2016, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to all counsel of record. /s/John E. Herrick John E. Herrick MOTLEY RICE LLC 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (843) 216-9000 Case: 3:16-cv-00515-wmc Document #: 32 Filed: 10/25/16 Page 28 of 28