Patricia Carroll et al v. Abb, Inc. et al

Brief in Support of 228 Motion for Summary Judgment

W.D. Wis.January 12, 2017

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN PATRICIA CARROLL, Individually and as Personal Representative of the ESTATE OF RONALD KENNETH CARROLL, deceased, Plaintiff, v. ABB, INC. (sued individually and as successor- in-interest to ELSAG BAILEY, INC. successor- by-merger to BAILEY CONTROLS COMPANY), et al., Defendants. Case No. 15-cv-373-wmc Defendant Crane Co.’s Brief in Support of Motion for Summary Judgment Josh Johanningmeier Grace Kim GODFREY & KAHN, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Phone: 608-257-3911 Fax: 608-257-0609 jjohanningmeier@gklaw.com gkim@gklaw.com Attorneys for Defendant Crane Co. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 1 of 20 i Table of Contents Table of Authorities ........................................................................................................................ ii I. Introduction ..........................................................................................................................1 II. Factual Background .............................................................................................................1 A. Ronald Carroll’s Service in the U.S. Navy ..............................................................2 B. Ronald Carroll’s Employment with Wisconsin Power & Light ..............................2 1. Ronald Carroll’s Work at Wisconsin Power & Light ..................................3 2. Deposition Testimony Regarding Crane Co. Products. ...............................4 a. Deposition Testimony of Ronald Carroll’s Family Members ..........................................................................................4 b. Deposition Testimony of Ronald Carroll’s Co-Workers .................4 III. Argument .............................................................................................................................6 A. Summary Judgment Standard and Application of Wisconsin Law .........................6 B. Plaintiff’s Claims .....................................................................................................7 1. Crane Co. Is Entitled to Summary Judgment on All Product Liability Claims, Whether Based In Negligence Or Strict Liability, Because Plaintiff Has Failed To Produce Any Evidence That Crane Co. Products Caused Ronald Carroll’s Injury..............................................7 a. Plaintiff must produce evidence that Crane Co.’s products were a “substantial factor” in causing Ronald Carroll’s alleged injuries. ................................................................................7 b. Plaintiff has adduced no evidence that Ronald Carroll was exposed to any asbestos-containing product manufactured or supplied by Crane Co., much less that such products were a “substantial cause” of his injuries. .......................................8 2. Crane Co. Is Not Legally Responsible For Asbestos-Containing Products It Neither Manufactured Nor Supplied. ........................................9 C. Plaintiff’s Conspiracy Claim is Unsupported by the Evidence .............................14 D. Plaintiff’s Punitive Damages Claim Is Improper And Unsupported By The Evidence. ................................................................................................................15 IV. Conclusion .........................................................................................................................16 Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 2 of 20 ii Table of Authorities Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .................................................................................................................... 6 Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, 318 Wis. 2d 622, 768 N.W.2d 568 ...................................................................... 11 Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008) ...................................................................................................... 12 Brown v. Maxey, 124 Wis. 2d 426, 369 N.W.2d 677 (1985) ................................................................................ 15 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................... 6 Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791 (E.D. Pa. 2012) ........................................................................................ 12 Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967) .................................................................................... 11 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ...................................................................................................................... 6 In re Garlock Sealing Techs., LLC, No. 10-31607 (Bankr. W.D.N.C filed June 5, 2010) .................................................................. 5 Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005) .................................................................................................... 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................... 6 Mills v. First Fed. Sav. & Loan Ass’n, 83 F.3d 833 (7th Cir. 1996) ........................................................................................................ 6 Morden v. Cont’l AG, 2000 WI 51, 235 Wis. 2d 325, 611 N.W.2d 659 ........................................................................ 7 Moss v. Trane U.S., Inc., No. 13-cv-42, 2016 WL 916435 (W.D. Wis. Mar. 10, 2016) ...................................... 10, 11, 12 O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012) .................................................................................................... 12, 13 Schaffner v. Aesys Techs., LLC, Nos. 1901 and 1902 EDA 2008, 2010 WL 605275 (Pa. Super. Ct. Jan. 21, 2010) .................. 12 Singer v. Pneumo Abex, LLC, 339 Wis. 2d 490, 809 N.W.2d 900 (Ct. App. 2012) ............................................................... 8, 9 Taylor v. Elliott Turbomachinery Co., 90 Cal. Rptr. 3d 414 (Ct. App. 2009) ....................................................................................... 12 Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 3 of 20 iii Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523 .............................................................. 14, 15 Walton v. The William Powell Co., 108 Cal. Rptr. 3d 412 (Ct. App. 2010) ..................................................................................... 12 Westlund v. Werner Co., 971 F. Supp. 1277 (W.D. Wis. 1997) ......................................................................................... 6 Whiting v. CBS Corp., 982 N.E.2d 1224 (Mass. App. Ct. 2013) .................................................................................. 12 Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, 263 Wis. 2d 294, 661 N.W.2d 491 ............................................................ 7, 8 Statutes 28 U.S.C. § 1332 ............................................................................................................................. 6 Wis. Stat. § 895.043 ...................................................................................................................... 15 Other Authorities Restatement (Second) of Torts § 402A (Am. Law Inst. 1965) ...................................................... 11 Rules Fed. R. Civ. P. 56 ............................................................................................................................ 6 Fed. R. Civ. P. 56(e) ....................................................................................................................... 6 Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 4 of 20 1 I. Introduction Defendant Crane Co. is entitled to summary judgment on all counts pleaded in Plaintiff Patricia Carroll’s First Amended Complaint. After sufficient time for discovery, Plaintiff cannot establish that Ronald Carroll was ever exposed to an asbestos-containing product manufactured, sold, supplied, or installed by Crane Co. Thus, Plaintiff cannot prove that Crane Co. products were a substantial cause of Mr. Carroll’s injuries. Moreover, even assuming Plaintiff could point to evidence that Mr. Carroll was exposed to asbestos products made by third parties and used in conjunction with Crane Co. products, such evidence is insufficient as a matter of law to hold Crane Co. liable. In addition, Plaintiff has failed to adduce any evidence supporting her conspiracy and punitive damages claims. Because there is no genuine issue of material fact, this Court should grant Crane Co.’s Motion for Summary Judgment in its entirety. II. Factual Background The parties and deposition witnesses are identified in Defendant’s Proposed Findings of Fact (“DPFOF”), along with facts establishing this Court’s jurisdiction. Ronald Carroll was diagnosed with mesothelioma on April 17, 2015. DPFOF ¶ 7. After his diagnosis, he and his wife, Patricia Carroll, filed their Complaint in this Court on June 22, 2015. DPFOF ¶ 13. Mr. Carroll passed away on July 23, 2015, and Patricia Carroll filed her First Amended Complaint on December 1, 2015. DPFOF ¶¶ 18, 14. Crane Co. is and has been a manufacturer and seller of certain types of industrial equipment, including principally valves. Crane Co. did not manufacture gaskets, packing, or any asbestos-containing components that may have been encapsulated within its valves, but purchased them from other companies. DPFOF ¶ 10. Plaintiff’s First Amended Complaint alleges that Mr. Carroll was exposed to asbestos- containing products and/or machinery requiring or calling for the use of asbestos and/or Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 5 of 20 2 asbestos-containing products while serving in the U.S. Navy and working at various job sites in Wisconsin. DPFOF ¶ 16. A. Ronald Carroll’s Service in the U.S. Navy Mr. Carroll served in the U.S. Navy from 1956 to 1959 as a boiler tender helper and boiler tender. DPFOF ¶ 17. He completed his basic training and attended boiler technician school at Great Lakes Naval Training Center in Great Lakes, Illinois. DPFOF ¶¶ 21-22. Upon completion of his training, Mr. Carroll was transferred to Norfolk Naval Shipyard where he boarded the USS Canberra. DPFOF ¶ 23. Plaintiff alleges that while Mr. Carroll served in the U.S. Navy, he worked with or around numerous products, including gaskets, packing, and valves, which she alleges may have contained asbestos. DPFOF ¶ 18. However, none of Plaintiff’s witnesses provided any testimony as to the work Mr. Carroll may have performed or what products he may have worked with, asbestos-containing or otherwise, during his time in the U.S. Navy. DPFOF ¶ 25. B. Ronald Carroll’s Employment with Wisconsin Power & Light Mr. Carroll worked for Wisconsin Power & Light (“WP&L”) from 1959 to 1974. DPFOF ¶ 26. He was first hired as a plant helper, was promoted to auxiliary equipment operator and then boiler operator. DPFOF ¶ 32. During his WP&L employment, he worked at only two facilities: (1) Blackhawk Plant, which was located in downtown Beloit, Wisconsin, and (2) Rock River Generating Station, located just outside Beloit, Wisconsin. DPFOF ¶ 27. As a boiler operator, Mr. Carroll was primarily responsible for operating, maintaining and cleaning the boilers. DPFOF ¶ 33. There were two Babcock and Wilcox boilers at each facility. DPFOF ¶ 30. The two boilers at Rock River were designated Unit #1 and Unit #2 and the two boilers at Blackhawk were Unit #3 and Unit #4. DPFOF ¶ 31. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 6 of 20 3 A boiler operator’s responsibilities changed depending on the shift. DPFOF ¶ 34. WP&L had three 8-hour shifts: day shift (7:00 a.m. to 3:00 p.m.); evening shift (3:00 p.m. to 11:00 p.m.); and graveyard shift (11:00 p.m. to 7:00 a.m.). DPFOF ¶ 35. Mr. Carroll rotated through all three shifts equally seven days at a time. DPFOF ¶ 36. At any time the plant was in operation, which covered the hours of the day shift and part of the evening shift, the boiler operators were responsible for keeping the boilers running. DPFOF ¶ 37. It was usually only during the graveyard shift when boiler operators cleaned and performed repair work on equipment. DPFOF ¶ 38. 1. Ronald Carroll’s Work at Wisconsin Power & Light While working at WP&L, Mr. Carroll worked with numerous products and equipment, including insulation, pumps, boilers, steam traps, air compressors, drum and feed lines, steam pipes, turbines, packing, gaskets, and valves. Plaintiff claims that this work exposed Mr. Carroll to asbestos from a host of sources for which Crane Co. is not legally responsible. See generally DPFOF ¶¶ 39-73. With respect to products Plaintiff associates with Crane Co., Mr. Carroll performed gasket work on various types of equipment at WP&L, including valves, steam traps, drum and feed lines, boilers, pumps, turbines, and compressors1. DPFOF ¶ 57. Mr. Carroll also worked with packing, which he typically used in valves and pumps. DPFOF ¶¶ 56, 58-59. Although Mr. Carroll would perform gasket and packing work during overhauls and graveyard shifts, he 1 Plaintiff named Crane Co. as a defendant in this case on its own behalf, and also alleged Crane Co. is the successor-in-interest to Chapman Valve Company, Jenkins Valves, Inc., and The Swartwout Company. (Pl. First Am. Compl. ¶ 9, Dkt. 104.) Crane Co. is not successor-in-interest for any of these entities. (DPFOF ¶¶ 11-12; Ans. ¶ 9.) As it relates to the evidence in this case, The Swartwout Company, which is merely a division of Crane Co., has never been mentioned by any witness. Plaintiff’s counsel asked one witness if he recalled “Jenkins or Chapman” valves, to which the witness said, “yes.” (Deposition of Dale Herman Tr. 90:02-3, Dkt. 225.) That is the sum total of Plaintiff’s evidence regarding these two entities. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 7 of 20 4 would generally not be performing this type of work during regular operations while the boiler was running. DPFOF ¶ 55. 2. Deposition Testimony Regarding Crane Co. Products. a. Deposition Testimony of Ronald Carroll’s Family Members Three of Mr. Carroll’s family members have testified in depositions: his widow, Patricia Carroll; his daughter, Dawn Anderson; and his son, Brian Carroll. DPFOF ¶ 74. None of these witnesses were familiar with Crane Co. and they testified that they had no knowledge of Mr. Carroll ever working with or around any Crane Co. product. DPFOF ¶¶ 75-77. b. Deposition Testimony of Ronald Carroll’s Co-Workers Three of Mr. Carroll’s co-workers from WP&L were deposed in this case: Dale Herman; Robert Rygh; and Gene Samuelson. DPFOF ¶ 78. While these men generally associated “Crane” with valves, gaskets and packing, none of them could provide any testimony describing the work Mr. Carroll may have performed on a Crane Co. product or how often he may have done this work.2 Moreover, the witnesses did not offer any descriptive detail as to any of Crane Co.’s valves, gaskets or packing. As a matter of fact, with respect to valves, all three witnesses testified that they did not have a recollection of ever seeing Mr. Carroll work with a Crane Co. valve. DPFOF ¶¶ 80, 100, 109. Mr. Herman initially testified that that he recalled working on a Crane Co. valve himself, but later admitted, “I don’t really remember the valve....” DPFOF ¶ 79. Mr. Herman did, however, believe that the valves had a steel body but could not provide any other description. DPFOF ¶¶ 81-86. There is no evidence that Mr. Carroll ever worked with the original 2 Plaintiff may attempt to implicate a product called “Cranite.” At all three co-worker depositions, Plaintiff’s counsel attempted to feed that name to each witness. DPFOF ¶¶ 96, 103, 118. However, when specifically questioned about “Cranite,” none of the witnesses were familiar with “Cranite” and had no knowledge that Mr. Carroll ever worked with a product by that name. Id. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 8 of 20 5 components (such as gaskets and packing) of a Crane Co. valve, and none of the witnesses could provide any testimony as to the maintenance history of the valves that may have been present or whether Crane Co. ever specified the use of asbestos in any of its products. There were various brands of gaskets and packing but Mr. Herman and Mr. Rygh testified that Garlock was the predominant brand for both products at Blackhawk and Rock River.3 DPFOF ¶ 98. Moreover, although Mr. Samuelson recalled “Crane” brand gaskets and packing, he would not have been referring to a product manufactured by Crane Co. As discussed above, Crane Co. is and was a manufacturer of industrial equipment, primarily valves. DPFOF ¶ 10. While a similarly-named entity was a major manufacturer of gaskets and packing, Crane Co. never manufactured gaskets or packing. Id. Indeed, Mr. Samuelson admitted that, although he was familiar with the name “Crane”, he did not know whether his recollection of that name was associated with “Crane Co.” or with a similarly-named defendant in this action.4 DPFOF ¶¶ 115-116. Mr. Carroll did identify a gasket manufacturer he claimed to remember working with at WP&L—but it was not a “Crane” gasket; one of his exposure affidavits specifically identified Armstrong gaskets. DPFOF ¶¶ 69-70. According to Mr. Carroll, he “removed and replaced Armstrong gaskets from equipment and valves” at both of the WP&L plants where he worked. Id. 3 Garlock is now a bankrupt entity. See In re Garlock Sealing Techs., LLC, No. 10-31607 (Bankr. W.D.N.C filed June 5, 2010). A bankruptcy trust will be available to the Plaintiff for any alleged exposures to Garlock’s asbestos- containing products. 4 John Crane, formerly known as Crane Packing Co., and Crane Co. are unrelated entities. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 9 of 20 6 III. Argument A. Summary Judgment Standard and Application of Wisconsin Law Summary judgment is proper when the documentary evidence filed with the motion shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56. A principal purpose of the “summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. An issue is “genuine” only if there is a sufficient evidentiary basis upon which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A factual dispute is “material” only if it might affect the outcome of the suit under governing law. Id. at 248; Celotex, 477 U.S. at 323. Once the moving party has properly supported its motion for summary judgment, the non-moving party may not rest upon mere allegations or denials contained in the non-moving party’s pleadings, but must set forth specific facts showing a genuine issue for trial, using proper evidentiary material. Fed. R. Civ. P. 56(e). To avoid summary judgment, the non-moving party must do more than simply show that there is some metaphysical doubt as to the material facts. Mills v. First Fed. Sav. & Loan Ass’n, 83 F.3d 833, 840 (7th Cir. 1996) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Because this Court’s jurisdiction is based on the diversity of the parties under 28 U.S.C. § 1332, the substantive law of Wisconsin applies to Plaintiff’s claims. See Westlund v. Werner Co., 971 F. Supp. 1277, 1280 (W.D. Wis. 1997) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 10 of 20 7 B. Plaintiff’s Claims Plaintiff’s First Amended Complaint asserts five claims against Crane Co.: strict liability, negligence, negligence per se, conspiracy, and punitive damages. Plaintiff’s claims are based on the allegation that the Defendants, including Crane Co., produced, designed, sold, and/or otherwise put into the stream of commerce asbestos and/or asbestos-containing products, which the Defendants knew or should have known were harmful to Mr. Carroll. DPFOF ¶ 15. Crane Co. is entitled to summary judgment on all counts as Plaintiff cannot establish that Mr. Carroll was ever exposed to an asbestos-containing product manufactured, sold, supplied, or installed by Crane Co. Thus, Plaintiff cannot establish that Crane Co. products were a substantial cause of Mr. Carroll’s injuries. 1. Crane Co. Is Entitled to Summary Judgment on All Product Liability Claims, Whether Based In Negligence Or Strict Liability, Because Plaintiff Has Failed To Produce Any Evidence That Crane Co. Products Caused Ronald Carroll’s Injury. Plaintiff’s product liability claims fail because she has insufficient evidence to establish causation under Wisconsin law. Mr. Carroll’s work experience in the Navy cannot form the basis for any claims against Crane Co. because there is no admissible evidence that he was exposed to any Crane Co. product, much less any asbestos-containing Crane Co. product, during the term of his enlistment. Plaintiff’s proffered evidence of exposure during Mr. Carroll’s employment with WP&L is also insufficient to prove causation. a. Plaintiff must produce evidence that Crane Co.’s products were a “substantial factor” in causing Ronald Carroll’s alleged injuries. An essential element of both negligence and strict liability claims is proof that the alleged defect in the defendant’s product was a cause of the plaintiff’s injury or damages. Morden v. Cont’l AG, 2000 WI 51, ¶ 45, 235 Wis. 2d 325, 611 N.W.2d 659 (negligence); Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, ¶ 8, 263 Wis. 2d 294, 661 N.W.2d 491 (strict products Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 11 of 20 8 liability). Under Wisconsin law, to prove causation, a plaintiff needs to show that the defendant’s action was a “substantial factor” in causing the plaintiff’s injury. Zielinski, 263 Wis. 2d 294, ¶ 16. To be a “substantial factor” requires “that the defendant’s conduct ha[ve] such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense.” Id. (citation and quotation omitted). “A mere possibility of ... causation is not enough; and when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” Id. (citation and quotation omitted); see also Singer v. Pneumo Abex, LLC, 339 Wis. 2d 490, ¶ 18, 809 N.W.2d 900 (Ct. App. 2012) (unpublished) (holding that an asbestos defendant was entitled to summary judgment where the court “would have to pile inference upon inference in order to conclude” that the plaintiff was exposed to asbestos from defendant’s products). b. Plaintiff has adduced no evidence that Ronald Carroll was exposed to any asbestos-containing product manufactured or supplied by Crane Co., much less that such products were a “substantial cause” of his injuries. Crane Co. is entitled to summary judgment because Plaintiff has not adduced admissible evidence to support the claim that Mr. Carroll was exposed to any asbestos-containing product manufactured or supplied by Crane Co., and thus, there is no basis to find that Crane Co.’s products were a substantial factor leading to Mr. Carroll’s disease. i. Plaintiff has no evidence against Crane Co. regarding Ronald Carroll’s alleged exposure to asbestos during his Navy service. Plaintiff alleges that while Mr. Carroll served in the U.S. Navy, he worked with or around numerous products, including gaskets, packing, and valves, which she alleges may have contained asbestos. DPFOF ¶ 18. However, none of Plaintiff’s witnesses provided any Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 12 of 20 9 testimony as to the work Mr. Carroll may have performed or what products he may have worked with, asbestos-containing or otherwise, during his time in the U.S. Navy. DPFOF ¶ 25. ii. Plaintiff has insufficient evidence of Ronald Carroll’s exposure to Crane Co. products at WP&L to avoid summary judgment. There is insufficient evidence that Mr. Carroll ever worked with Crane Co. valves at either WP&L facility to avoid summary judgment. All three of his WP&L co-workers testified that they did not have a specific recollection of seeing Mr. Carroll work with Crane Co. valves. None of Plaintiff’s witnesses offered any testimony regarding any work Mr. Carroll may have performed on a Crane Co. product or how often it occurred. While Mr. Carroll’s co-workers generally recalled the “Crane” name and associated it with gaskets, packing and valves, none of the witnesses offered any description of what a Crane Co. gasket, packing or valve looked like. Thus, in order to show that Mr. Carroll was exposed to asbestos from Crane Co. products, Plaintiff would need to “pile inference upon inference,” Singer, ¶ 18—an inference that Mr. Carroll even worked with a Crane Co. product; an inference that those products contained asbestos; and an inference that he inhaled asbestos fibers due to his work with those products. In fact, “inference” is too generous a word in this case; it would be pure speculation to draw such conclusions, as there is no evidence from which an inference can proceed. 2. Crane Co. Is Not Legally Responsible For Asbestos-Containing Products It Neither Manufactured Nor Supplied. Crane Co. anticipates that Plaintiff may argue that Crane Co. is liable for asbestos- containing equipment or components manufactured by others but used in connection with Crane Co. valves—specifically, replacement gaskets and packing. Such an argument would be unavailing, for three reasons. First, as demonstrated above, there is no evidence that Mr. Carroll even worked with Crane Co. valves as all of his co-workers testified that they did not have a Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 13 of 20 10 recollection of him performing such work. Second, there is no evidence that Mr. Carroll was exposed to any asbestos-containing products used in connection with Crane Co. equipment. Third, even if Plaintiff had some shred of evidence that Mr. Carroll worked with Crane Co. valves, there is no evidence that the gaskets and packing Mr. Carroll removed from the valves contained asbestos or that those gaskets or packing were originally supplied with the valves or otherwise supplied by Crane Co. In short, there is no evidence that Mr. Carroll worked with the original components of Crane Co. valves or that he even worked with Crane Co. valves at all. Furthermore, even assuming Plaintiff could offer evidence that Mr. Carroll worked on a Crane Co. valve, there is no evidence that the gaskets and packing he encountered were originally supplied by Crane Co. That distinction is critical in establishing liability—or lack thereof—for such work. Plaintiff may argue that Crane Co. is liable for asbestos-containing products manufactured or sold by other entities and used in conjunction with Crane Co. products, but such an argument is contrary to Wisconsin law and to the majority view nationwide. That very principle was applied in this Court, less than a year ago, by the Honorable Barbara B. Crabb, in Moss v. Trane U.S., Inc., where she correctly concluded that to hold a defendant liable for third-party products because it “could foresee the possibility that such products might be used in connection with its own products would amount to an unprecedented expansion of Wisconsin law governing the duty of care manufacturers owe to consumers.” Moss v. Trane U.S., Inc., No. 13-cv-42, 2016 WL 916435, at *1 (W.D. Wis. Mar. 10, 2016) (emphasis added). In Moss, Judge Crabb addressed the plaintiff’s two claims of strict liability and negligence. She held that both of plaintiff’s claims failed as a matter of law because Wisconsin Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 14 of 20 11 courts have consistently recognized that the duty to warn is limited to the risks associated with the defendant’s own products. Further, Judge Crabb held that this duty does not extend to products of third parties, regardless of the foreseeability of using the third-party’s products. Under strict liability, Judge Crabb turned to Restatement (Second) of Torts § 402A (Am. Law Inst. 1965), which Wisconsin adopted in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967). Under § 402A and Dippel, a defendant can be strictly liable only for the defects associated with its own manufactured product. As such, Judge Crabb held that the plaintiff’s strict liability failed as a matter of law. 2016 WL 916435, at *6. As for negligence, Judge Crabb considered the rulings from Wisconsin courts that held that a defendant has a duty to exercise reasonable care when the defendant’s conduct creates a risk of physical harm. Id. at *3, citing Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ¶ 17, 318 Wis. 2d 622, 768 N.W.2d 568. In analyzing the relationship between foreseeability and duty of care, as discussed by the Wisconsin Supreme Court in Behrendt, Judge Crabb looked to Section 7, Comments i and j of the Restatement (Third) of Torts. The comments explicitly reject the proposition that a defendant’s duty of care is tied to whether the plaintiff’s alleged harm is foreseeable. Id. at *4. Following the holding in Behrendt, Judge Crabb ultimately concluded in Moss that the plaintiff was “wrong to contend that [defendant]’s duty of care arose from the fact that it was foreseeable that [plaintiff] might handle asbestos [component parts] while working on [defendant]’s [product].” Id. Judge Crabb underscored Wisconsin courts’ consistent recognition that the duty to warn is limited to the defendant’s own product, not the component parts made by third parties, even if the use of those component parts is foreseeable. Id. Judge Crabb, agreeing with the defendant in Moss, held “that under the so-called ‘bare metals defense,’ it cannot be Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 15 of 20 12 held liable for injuries that were caused by products [the defendant] did not manufacture, distribute or specify be used.” Id. at *1. Judge Crabb’s ruling is in line with the majority view in this country—that a manufacturer of industrial equipment cannot be liable under either negligence or strict product liability theories with respect to third-parties’ asbestos-containing materials that are used with the manufacturer’s equipment post-sale. See, e.g., O’Neil v. Crane Co., 266 P.3d 987, 995 (Cal. 2012) (holding that Crane Co. was not liable under strict liability or negligence theories for alleged harm caused by asbestos gaskets and packing used in conjunction with Crane Co. valves); Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 495-96 (6th Cir. 2005) (holding that a manufacturer is responsible only for its own products and not for products that may be attached or connected to the manufacturer’s product); Braaten v. Saberhagen Holdings, 198 P.3d 493, 498-99 (Wash. 2008); Taylor v. Elliott Turbomachinery Co., 90 Cal. Rptr. 3d 414 (Ct. App. 2009); Walton v. The William Powell Co., 108 Cal. Rptr. 3d 412 (Ct. App. 2010); Whiting v. CBS Corp., 982 N.E.2d 1224 (Mass. App. Ct. 2013) (unpublished); Schaffner v. Aesys Techs., LLC, Nos. 1901 and 1902 EDA 2008, 2010 WL 605275 (Pa. Super. Ct. Jan. 21, 2010) (non- precedential decision); Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). The O’Neil decision from the California Supreme Court is particularly instructive, as it involved claims of asbestos exposure similar to those made by Plaintiff in this case. In O’Neil, a former Navy sailor brought negligence and strict liability claims against Crane Co. (along with other equipment manufacturers) based on alleged exposure to asbestos-containing gaskets and packing used with Crane Co.’s valves aboard an aircraft carrier. There was no evidence that the sailor had been exposed to any of the asbestos-containing materials originally supplied with the valves (he served twenty years after the ship was built); nor was there evidence that Crane Co. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 16 of 20 13 had manufactured or supplied any of the replacement asbestos materials to which the sailor was allegedly exposed. Moreover, the Navy had specified the use of asbestos gaskets and packing for its heat-resistant and fire-resistant qualities; there was no evidence that the Crane Co. valves inherently required asbestos gaskets or packing to function properly. Nevertheless, the plaintiffs argued that Crane Co. should be liable, because it was foreseeable that its valves would be used in conjunction with asbestos-containing gaskets or packing. The California Supreme Court rejected the plaintiffs’ argument in all respects. As to the plaintiffs’ strict liability claim, the court noted that such claims have “always been premised on harm caused by deficiencies in the defendant’s own product” and that the valves’ “mere compatibility for use with [asbestos-containing] components is not enough to render them defective.” O’Neil, 266 P.3d at 995-96. The court held that strict liability principles impose no “duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together.” Id. at 1004. The O’Neil court reached similar conclusions with respect to the plaintiffs’ negligence claims, finding that Crane Co. owed no duty of care to the sailor. Among other reasons, the court noted that “[t]he connection between [Crane Co.’s] conduct and O’Neil’s injury is extremely remote because defendants did not manufacture, sell, or supply any asbestos product that may have caused his mesothelioma.” Id. at 1007. The court concluded that “expansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm.” Id. So it is here. Even if Plaintiff’s evidence that Mr. Carroll worked with Crane Co. valves is accepted, Plaintiff has adduced no evidence that he worked with the gaskets or packing originally supplied with the valves by Crane Co. None of Mr. Carroll’s co-workers knew the Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 17 of 20 14 maintenance history of any of the valves. DPFOF ¶ 88. With these facts, Plaintiff (like the plaintiffs in O’Neil) would have to rely on the theory that Crane Co. is liable because it should have foreseen that its valves might be used in conjunction with asbestos-containing gaskets and packing manufactured and supplied by others. But as Moss and O’Neil demonstrate, that is not a valid basis for liability under either strict liability or negligence theories. Crane Co. simply is not responsible for dangers posed by other manufacturers’ products that happen to be used with Crane Co. products post-sale. Accordingly, Crane Co. is not liable to Plaintiff for any injury caused by products that were manufactured or supplied by third parties and merely used in conjunction with Crane Co. products. C. Plaintiff’s Conspiracy Claim is Unsupported by the Evidence In addition to product liability claims, Plaintiff also alleges a wide-ranging conspiracy by Crane Co. and other defendants. The crux of the conspiracy allegations is that the Defendants “knowingly agreed, contrived, combined, confederated and conspired among themselves ... to cause Decedent Ronald Kenneth Carroll’s injuries” by, among other things, “willfully misrepresenting and suppressing the truth as to the risks and dangers associated with the use of and exposure to Defendants’ asbestos-containing products and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products.” Simply put, Plaintiff has no evidence whatsoever in support of these allegations, and therefore the conspiracy claim must be dismissed. Civil conspiracy in Wisconsin requires a showing of three elements: “(1) The formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting from such act or acts.” Thomas v. Mallett, 2005 WI 129, ¶ 168, 285 Wis. 2d 236, 701 N.W.2d 523 (citation and quotation omitted). “At a minimum, to show a conspiracy Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 18 of 20 15 there must be facts that show some agreement, explicit or otherwise, between the alleged conspirators on the common end sought and some cooperation toward the attainment of that end.” Id. (citation and quotation omitted). In Thomas, the court upheld summary judgment on the plaintiffs’ conspiracy claim against lead paint manufacturers, because the plaintiffs did “not explain when any agreement was reached to commit tortious acts, who was involved in this agreement, and when the other parties entered into this agreement.” Id. ¶ 171. Similarly, in the instant case, Plaintiff cannot muster any evidence regarding any of the three elements of conspiracy. There is no evidence regarding where or when the alleged conspiracy was formed, or among which parties; no evidence regarding the agreement or the common end sought; and no evidence as to how the conspiracy was a substantial cause of Mr. Carroll’s injury. Crane Co. is therefore entitled to summary judgment on Plaintiff’s conspiracy claim. D. Plaintiff’s Punitive Damages Claim Is Improper And Unsupported By The Evidence. To the extent Plaintiff’s First Amended Complaint includes a separate cause of action for “punitive damages;” this claim must also be dismissed. As a threshold matter, punitive damages are a remedy, not a claim, requiring dismissal of this cause of action. See Brown v. Maxey, 124 Wis. 2d 426, 431, 369 N.W.2d 677 (1985) (“We stress that punitive damages are in the nature of a remedy and should not be confused with the concept of a cause of action.”). Next, the burden faced by Plaintiff to justify an award of punitive damages under Wisconsin law and within the bounds of the United States and Wisconsin Constitutions is a heavy one, rarely met by any litigant. Plaintiff would need to prove that Crane Co. acted maliciously toward Mr. Carroll and with an intentional disregard of his rights. See Wis. Stat. § 895.043 (2015-16). In this case, without sufficient evidence to even establish liability under negligence or strict liability theories Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 19 of 20 16 against Crane Co., and having offered no evidence to support a request for punitive damages, Plaintiff’s “punitive damages” cause of action must be dismissed and any request for punitive damages in this case foreclosed. IV. Conclusion For all the foregoing reasons, Defendant Crane Co. respectfully submits that Plaintiff’s claims present no genuine issue of material fact and that Crane Co. is entitled to summary judgment as a matter of law. Dated: January 12, 2017 Respectfully submitted, s/ Josh Johanningmeier Josh Johanningmeier Grace E. Kim GODFREY & KAHN, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Phone: 608-257-3911 Fax: 608-257-0609 jjohanningmeier@gklaw.com gkim@gklaw.com Attorneys for Defendant, Crane Co. Case: 3:15-cv-00373-wmc Document #: 231 Filed: 01/12/17 Page 20 of 20