Spatz, Scott v. Weyerhaeuser Company et al

Brief in Support of 14 Motion to Dismiss

W.D. Wis.January 3, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN SCOTT SPATZ AS SPECIAL ADMINISTRATOR OF THE ESTATE OF HERBERT SPATZ, PLAINTIFF, v. CASE NO.16-CV-726 WEYERHAEUSER COMPANY, ET AL. DEFENDANTS. WEYERHAEUSER COMPANY’S MEMORANDUM IN SUPPORT OF ITS MOTION TO TO DISMISS PLAINTIFF’S CLAIMS Joshua J. Metcalf Tanya D. Ellis Ruth Maron Mitch McGuffey FORMAN WATKINS & KRUTZ LLP 200 South Lamar Street City Centre Building, Suite 100 (39201) Post Office Box 22608 (39225-2608) Jackson, Mississippi Phone: (601) 960-8600 Facsimile: (601) 960-8613 Counsel for Weyerhaeuser Company Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 1 of 36 2 Table of Contents INTRODUCTION .......................................................................................................................... 4 LEGAL STANDARD ..................................................................................................................... 5 ARGUMENT .................................................................................................................................. 6 I. Plaintiff’s Claims Against Weyerhaeuser Are Barred by The Exclusivity Provision of Wisconsin’s Worker’s Compensation Act. .......................................................................... 6 A. In Wisconsin, worker’s compensation is the exclusive remedy against an employer for an occupational injury. ........................................................................................ 8 B. Allegations of non-occupational exposure, even if true, do not remove Plaintiff’s claims from Worker’s Compensation Act coverage and exclusivity........................ 9 i. California bars tort claims against employer for non-occupational exposures contributing to single injury already covered by the WCA. ........ 11 ii. Washington also bars tort claims against employer for single, covered injury. ........................................................................................................... 13 iii. This Court should bar tort claims against Weyerhaeuser based on non- occupational exposures contributing to a single, occupational injury. ....... 13 C. Dual Persona is the only recognized exception to the exclusivity provision; however, it has not been pleaded and does not apply in this case. ......................... 15 i. Dual persona is the only recognized exception to WCA exclusivity. ........... 15 ii. Plaintiff’s failure to plead the dual-persona exception is dispositive.......... 16 iii. Plaintiff’s allegations relate to a single entity-Weyerhaeuser as owner/operator of the Marshfield plant. The dual-persona exception, therefore, does not apply.............................................................................. 17 D. Plaintiff’s claims based on Decedent’s occupational injury, regardless of allegedly contributing non-occupational exposures, are barred by worker’s compensation exclusivity. .............................................................................................................. 18 II. Plaintiff’s Claims Are Based on the Clean Air Act and Must Be Dismissed. ................... 18 A. The Clean Air Act. .................................................................................................. 19 B. Plaintiff’s Claims Are Preempted By The Clean Air Act. ...................................... 22 C. Because Plaintiff’s Claims Are Preempted, They Must Be Dismissed. ................. 25 III. Plaintiff’s Complaint Fails To State A Cause Of Action Against Weyerhaeuser For Which Relief Can Be Granted, And, Therefore, The Claims Should Be Dismissed. ................... 26 A. Plaintiff’s allegations against Weyerhaeuser are nothing more than conclusions that, even if true, do not state a claim for relief that is plausible because they fail to provide sufficient facts. ........................................................................................... 26 B. Plaintiff’s nuisance claims are vague, conclusory and fail to provide enough facts to determine the basis for the claims or which nuisance claim is being pled. ........ 28 Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 2 of 36 3 C. Plaintiff’s private nuisance allegations fail because there is no claimed possessory interest in the affected property. ............................................................................. 30 D. Plaintiff’s claim for punitive damages should be dismissed because they are factually unsupported and conclusory. ................................................................... 31 IV. Plaintiff’s Private Nuisance Claims Are Barred by the Statute of Limitations. ................ 31 V. The Court Should Dismiss Plaintiff’s Claims Because Failure to Do So Will Enter a Field With No Sensible or Just Stopping Point. .......................................................................... 32 CONCLUSION ............................................................................................................................. 35 Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 3 of 36 4 INTRODUCTION Weyerhauser moves under Federal Rule of Civil Procedure 12(b)(6) for dismissal of Plaintiff’s claims for failure to state a claim on which relief can be granted. Plaintiff has sued Weyerhaeuser, Decedent’s former employer, based on Decedent’s alleged development of mesothelioma and subsequent death. Based on Plaintiff’s Complaint, Decedent’s mesothelioma was caused in part by occupational asbestos exposure and is, therefore, covered under Wisconsin’s Worker’s Compensation Act (WCA), Plaintiff’s exclusive remedy against Weyerhaeuser. If Plaintiff’s claims are allowed to proceed, Plaintiff may pursue claims against Weyerhaeuser in both the workers’ compensation and tort systems for the same injury. Although the Complaint is devoid of any allegations sufficient to remove Plaintiff’s claims from the Act, Plaintiff argues that such a result is proper because Decedent’s mesothelioma was caused by occupational and alleged non-occupational exposures. Even assuming the non-occupational exposures also contributed to the disease, Plaintiff is wrong. Pursuant to the strict exclusivity provision of the WCA and the policy behind it, as well as the persuasive holdings of two separate courts addressing nearly-identical issues, Plaintiff’s claims against Weyerhaeuser for an injury covered by the WCA are barred by the WCA and should be dismissed. Additionally, Plaintiff’s claims are preempted by the Clean Air Act (CAA) and must be dismissed. Assuming Plaintiff can somehow avoid the WCA and the CAA, his claims fail under Rule 8-Plaintiff improperly combined public and private nuisance into a single cause of action and failed to provide sufficient facts to support to either claim. Further, Plaintiff’s claims are against Wisconsin public policy because this case, like the ones before it, opens a door to claims without a sensible stopping point. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 4 of 36 5 LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a claim or entire complaint if a party fails “to state a claim upon which relief can be granted.” These basic pleading requirements, found in Rule 8, mandate that a complaint plead facts sufficient to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Dismissal for failure to state a claim is proper “when the allegations in a complaint, however true, could not raise a claim for entitlement to relief.” Id. at 558. Although the Court should consider all of Plaintiff’s factual allegations as true and draw all reasonable inferences in Plaintiff’s favor, courts are not required to accept “assertions of law or unwarranted factual inferences” contained within the complaint. Stachowski v. Town of Cicero, 425 F.3d 1075, 1078 (7th Cir. 2005); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (when determining whether complaint states plausible claim for relief, court should disregard “mere conclusory statements” and consider only factual allegations). The Supreme Court’s decision in Iqbal provides a framework for examining the sufficiency of a complaint. First, the court may “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 678. Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but not ‘show[n]’ - ‘that the pleader is entitled to relief.’” Id. at 679. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 5 of 36 6 ARGUMENT I. Plaintiff’s Claims Against Weyerhaeuser Are Barred by The Exclusivity Provision of Wisconsin’s Worker’s Compensation Act. Plaintiff’s Complaint unequivocally alleges that Decedent Herbert Spatz was exposed to asbestos while working for Weyerhaeuser at the Marshfield plant for nearly 40 years and that such exposure contributed in causing Decedent’s mesothelioma and death. Moreover, Plaintiff’s claims against the other Defendants depend solely on Decedent’s occupational exposures. Further, it is indisputable that his injury-mesothelioma-is recognized as a compensable injury under Wisconsin’s Worker’s Compensation Act (WCA). See Wis. Stat. § 102, et seq. The Complaint further alleges that Decedent was also exposed outside of the Marshfield plant while not working and that such exposures also contributed to the development of Decedent’s mesothelioma and death. Accepting all of these allegations as true, Decedent’s mesothelioma is nonetheless an occupational injury covered by the WCA-a fact that Plaintiff cannot deny. See Wis. Stat. § 102.03; see also Lange v. Labor and Indus. Review Comm’n, 215 Wis. 2d 561, 568 (Wis. App. 1997) (holding injury was covered by WCA where prior work-related injury contributed to severity of subsequent non-work-related re-injury). Because the injury is covered by the WCA, Plaintiff’s exclusive remedy against Weyerhaeuser for that injury is in the worker’s compensation system. See Melendrez v. Ameron Int’l Corp., 240 Cal. App. 4th 632, 641-42 (Cal. Ct. App. 2015); Campbell v. Lockheed Shipbuilding Corp., 115 Wash. App. 8, 14-16 (Wash. Ct. App. 2002). This is true even assuming Decedent’s alleged non-occupational exposure contributed to the injury. See, e.g., Melendrez, 240 Cal. App. 4th at 639 (accepting plaintiff’s allegations of non-occupational exposure to asbestos but finding WCA exclusivity barred claim against employer). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 6 of 36 7 Plaintiff’s allegations of non-occupational exposures do not create a separate injury outside worker’s compensation coverage and exclusivity. This point is made clear by two California and Washington appellate court opinions. See Melendrez, 240 Cal. App. 4th at 639-42 (decided after this Court’s ruling in the prior Marshfield cases); Campbell v. Lockheed Shipbuilding Corp., 115 Wash. App. 8, 9-10 (Wash. Ct. App. 2002). Both courts held that, for purposes of determining worker’s compensation exclusivity, an asbestos-related disease is a single injury. Where occupational exposure contributes to development of that single injury, the injury is entirely covered by worker’s compensation. Thus, tort claims against the employer for non-occupational exposures are barred by worker’s compensation exclusivity for the covered injury. The same result should follow in this case. Because Decedent’s single injury is covered by the WCA, Plaintiff must plead an exception to WCA exclusivity. The Wisconsin Supreme Court has recognized only one exception to the WCA’s exclusivity provision-the dual-persona exception. Plaintiff, however, did not plead the dual persona exception and alleged no facts that would support its application. According to Wisconsin case law, this failure requires the dismissal of his claim. In sum, Decedent was employed by Weyerhaeuser for many years. According to Plaintiff’s Complaint, he suffered an occupational injury caused by his employment with Weyerhaeuser. That injury was a single, indivisible injury. Accordingly, Plaintiff’s exclusive remedy against Weyerhaeuser, Decedent’s employer, is in the worker’s compensation system. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 7 of 36 8 A. In Wisconsin, worker’s compensation is the exclusive remedy against an employer for an occupational injury. Under Wisconsin law,1 when an employee suffers a work-related injury, the “right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer.” Wis. Stat. §§ 102.03(1)(c), 102.03(2) (emphasis added). In other words, an employer has statutory immunity from tort claims related to the occupational injuries of its employees. Henning v. Gen. Motors Assembly, 143 Wis. 2d 1, 5 (Wis. 1988). As the Wisconsin Supreme Court has explained, the exclusive remedy provision is the direct result of the legislature’s balancing of competing societal interests, and the decision to eliminate the employee’s ability to sue her employer is “inextricably built into our worker’s compensation system” and should be strictly enforced by Wisconsin courts. Id. at 20-21. Worker’s compensation laws constitute an all-pervasive legislative scheme which attempts to effect a compromise between the employer and the employee’s competing interests. The worker is benefitted by certain recovery irrespective of his own fault and irrespective of the employer’s absence of fault. Additionally, the worker’s compensation legislation abrogated an employer’s common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule. Although the employer’s defenses were abrogated, simultaneously the worker was obliged to accept a limited and scheduled compensation award. Worker’s compensation laws are basically economic regulations by which the legislature as a matter of public policy, has balanced competing societal interests. Id. at 11 (citation omitted) (emphasis added); Schachtner v. Dep’t. of Industry, Labor, and Human Relations, Equal Rights Div., 144 Wis. 2d 1, 6 (Wis. App. 1988) (the exclusivity provision “was an integral part of the political compromise reached” and “has been part of the worker’s compensation act since its creation”). 1 When diversity of citizenship is the basis for subject matter jurisdiction, the district court looks to the law of the forum state to determine which state’s substantive law should be applied. Klaxton Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487 (1941). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 8 of 36 9 Because worker’s compensation exclusivity is the direct result of the Wisconsin legislature’s balancing of public policy interests, the Wisconsin Supreme Court has cautioned that the “delicate balancing of the interests represented in our industrial society established in the worker’s compensation law [should] not be unjustifiably disturbed.” Henning, 143 Wis. 2d at 11 (quoting Jenkins v. Sabourin, 104 Wis. 2d 309, 322 (Wis. 1981)). “New liabilities on employers or employees should not be imposed by courts without compelling and well understood reasons. . . . To the extent that the present law may be disparate, unequal, or uneven in its application, it is a question for the legislature to address.” Id. at 26-27 (quoting Jenkins, 104 Wis. 2d at 323). Plaintiff cannot skirt the exclusivity provision of the WCA by making self-serving statements that his claims against Weyerhaeuser-for Decedent’s admittedly occupational injury-are unrelated to “service growing out of or incidental to decedent’s employment.” See Compl. at ¶¶ 36, 48. Decedent’s occupational injury “is the precise sort for which the worker’s compensation system operates to provide prompt and assured recovery and as to which the exclusivity provision should operate to provide immunity [to the employer].” Henning, 143 Wis. 2d at 21. To permit Plaintiff to proceed with a tort claim against Weyerhaeuser would require this Court to either: (1) ignore the fact that Decedent’s injury falls under the WCA; or (2) entertain a fiction that contributing non-occupational exposures create a separate injury compensable in tort. Neither leap is warranted. B. Allegations of non-occupational exposure, even if true, do not remove Plaintiff’s claims from Worker’s Compensation Act coverage and exclusivity. This Court has already settled the question of whether Decedent’s exposures at work and exposures resulting from “asbestos fibers remaining on clothing outside the place of employment” constitute occupational exposure. Those exposures are occupational. See Boyer, 39 Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 9 of 36 10 F. Supp. 3d at 1043 (citing Acevedo v. Consolidated Edison Co. of N.Y., 189 A.D.2d 497, 499 (N.Y. App. Div. 1993); Swanson v. Simpson Timber Co., 2013 WL 5469261, at *8 (Cal. Ct. App. Oct. 2, 2013) (unpublished)); see also Wis. Stat. § 102.03(1)(f) (“Any accident or disease arising out of a hazard of such service shall be deemed to arise out of the employee’s employment.”). As a result, based on Plaintiff’s allegations, Decedent’s injury is an occupational injury. This Court, however, permitted similarly situated plaintiffs-employees to proceed with tort claims against Weyerhaeuser for allegations of “measurably, causally distinct exposure to asbestos . . . based on Weyehaeuser’s [alleged] release of asbestos fibers into the community via ambient air, in landfills, etc.” Boyer, 39 F. Supp. 3d at 1049 (opinion on reconsideration). In effect, this Court allowed plaintiffs to “pursue nuisance claims against Weyerhaeuser based solely on plaintiffs’ exposure to asbestos not arising from their employment.” Id. Weyerhaeuser contends that the previous claims were exempted from WCA exclusivity in error. Plaintiff alleges a single injury.2 As made clear by a California appellate opinion (Melendrez)-which had not been rendered at the time of this Court’s order in the previous Marshfield cases-and a similar Washington appellate opinion (Campbell), when a single injury is alleged and that injury is covered by worker’s compensation, the employee’s exclusive remedy against the employer is worker’s compensation. This is true regardless of whether alleged non- occupational exposures may also exist and contribute to development of the covered injury. To hold otherwise would subject employers to liability in both the worker’s compensation system and the tort system for the same injury. 2 Weyerhaeuser anticipates Plaintiff will argue in response that the injury is the inhalation of fibers. Contrary to this contention, Plaintiff’s Complaint makes clear that the injury alleged is mesothelioma, not inhalation of asbestos. For example, as part of his General Allegations, Plaintiff alleges that, as a result of Defendants’ conduct, “decedent suffered from asbestos related diseases, including . . . mesothelioma.” Compl. at ¶ 17. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 10 of 36 11 i. California bars tort claims against employer for non-occupational exposures contributing to single injury already covered by the WCA. In a case decided in October 2015, a California appellate court considered a nearly identical fact pattern and legal question to the one presented here. Melendrez, 240 Cal. App. 4th at 639-42.3 The case involved a decedent-employee who was admittedly exposed to asbestos while employed by Ameron International Corporation, manufacturing Bondstrand pipe for more than 24 years. The decedent-employee was also allegedly exposed to asbestos at home while using Bondstrand pipe for personal projects. Id. at 635-36. The employee later developed mesothelioma, and his survivors brought tort claims against the decedent’s employer, based on his home exposures. Id. at 637. The plaintiffs contended those home exposures did not “arise out of and in the course of” the decedent’s employment. Thus, they argued, “the contribution to his mesothelioma caused by his home exposure to asbestos [was] not covered by workers’ compensation.” Id. The appellate court affirmed summary judgment based on worker’s compensation exclusivity. The court noted that “it was undisputed that [decedent’s] exposure to asbestos in his employment . . . substantially contributed to his mesothelioma. . . . [H]is mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage.” Id. (emphasis added). Because there was a single, WCA-covered injury, the court agreed that WCA exclusivity barred the tort claims, regardless of the alleged non-occupational, contributing exposures. Id. at 644. 3 This case was decided over a year after this Court’s August 22, 2014 decision on WCA exclusivity and nearly a year after this Court granted prior plaintiffs’ motion to amend on November 4, 2014. This case was discussed in the earlier Marshfield cases within Weyerhaeuser’s reply brief in support of its motion for summary judgment. See Boyer v. Weyerhaeuser Co., No. 14-286, Dkt. 385, Weyerhaeuser’s Reply in Sup. of Mot. for Summ. J., at 4. However, the question presented here was not before this Court at that stage of briefing. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 11 of 36 12 Each step of the court’s analysis is factually-parallel and applicable in this case. First, the appellate court discussed California’s “broad concept of contributing cause to bring injuries within workers’ compensation coverage.” Id. at 639-40. The court explained that “if a substantial contributing cause of an injury arises out of and in the course of employment, the injury is covered by workers’ compensation, even if another, nonindustrial cause also substantially contributed to the injury.” Id. at 640 (emphasis added). Next, the appellate court stated, “[The decedent’s] mesothelioma is covered by workers’ compensation. It is undisputed that a substantial contributing cause of [his] disease was his exposure to asbestos from the manufacture of Ameron’s Bondstrand pipe in the course of and arising out of his employment with Ameron.” Id. at 641. Turning to the plaintiffs’ non-occupational exposure allegations, the court held: [T]hat exposure does not create a separate injury outside workers’ compensation coverage that is compensable in tort law. . . . The most that can be said is that his home exposure likely contributed to the disease along with his workplace exposure. But under workers’ compensation principles, the contribution of his home exposure does not create a divisible, separate injury. The injury-mesothelioma caused by asbestos exposure-is entirely covered by workers’ compensation. Thus, plaintiffs’ civil action is barred by workers’ compensation exclusivity. Id. at 641-42 (emphasis added).4 The California court reached this conclusion despite the fact that the non-occupational exposure presented a fact question regarding whether “[the decedent’s] exposure to asbestos at home arose out of or in the course of his employment with Ameron.” Id. at 639. Because worker’s compensation exclusivity barred tort claims for the same injury incurred by occupational exposure, “that factual issue [was] not material” to the defendant’s defense or the 4 The court reached the same result for the additional reason that the plaintiff’s mesothelioma “was ‘collateral to or derivative of’ the injury he suffered at work (the same mesothelioma also caused by his working with Bondstrand pipe).” Melendrez, 240 Cal. App. 4th at 642. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 12 of 36 13 plaintiffs’ claim. Id. In other words, in the case of a single occupational injury, whether Decedent’s alleged non-occupational exposure falls outside the scope of worker’s compensation is not relevant to determining whether Plaintiff’s claims are barred by WCA exclusivity. ii. Washington also bars tort claims against employer for single, covered injury. California is not alone in its conclusion. A Washington appellate court addressed a substantially similar legal question in a case involving allegations of asbestos exposure at a defendant’s premises both while the claimant was an employee and later when he was present as a subcontractor.5 Campbell, 115 Wash. App. at 9-10. The court evaluated whether the former employee could recover in tort for “the injurious exposure” he had at the premises as a non- employee. Id. at 13. The appellate court noted “that courts . . . treat asbestos-related disease as an indivisible injury.” Id. at 14 (emphasis added). The court held that the exclusivity provision “unambiguously limit[ed] Lockheed’s liability for the illness [claimant] now suffers as a result of cumulative exposure to asbestos.” Id. at 15. The court held the exclusivity provision barred claims against an employer contributing to the indivisible injury; otherwise, “it would mean that an employer’s liability under the Act is not exclusive of all other liability for the injury.” Id. at 16. iii. This Court should bar tort claims against Weyerhaeuser based on non- occupational exposures contributing to a single, occupational injury. This case requires the same result as Melendrez and Campbell. Indeed, every step of the analysis in Melendrez can be seen in this case. Plaintiff alleges Decedent worked for Weyerhaeuser at the Marshfield plant and was exposed to asbestos there for nearly 40 years. See Compl. at ¶ 15(a). Additionally, he contends that Weyerhaeuser caused non-occupational exposures. Id. at ¶ 15(b)-(c). Decedent allegedly developed malignant mesothelioma from his “cumulative exposures” and died as a result. Id. at ¶¶ 19-21. As in Melendrez and Campbell, 5 This case arose under the federal Longshore Act as opposed to a state worker’s compensation act; however, the coverage for occupational disease and exclusivity provisions are substantially similar. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 13 of 36 14 Plaintiff alleges a single injury to which occupational exposures are indisputably a substantial contributing factor. Further, he brings claims against Weyerhaeuser, Decedent’s employer, based on alleged exposures “that were not part of service growing out of and incidental to decedent’s employment.” See Compl. at ¶¶ 36, 48; cf. Melendrez, 240 Cal. App. 4th at 637 (“Plaintiffs argue . . . the contribution to his mesothelioma caused by home exposure to asbestos is not covered by workers’ compensation.”). Moreover, as in Melendrez and Campbell, Plaintiff identifies only one injury-malignant mesothelioma. According to Plaintiff’s own allegations and this Court’s prior analysis, Decedent’s occupational exposures, at a minimum, substantially contributed to the injury. Thus, that single injury “is entirely covered by workers’ compensation.” Melendrez, 240 Cal. App. 4th at 642 (emphasis added). It is an occupational injury.6 The separate legal duties owed by Weyerhaeuser or separate alleged exposures from the plant do not create a separate injury outside the WCA system. As a result, “[P]laintiffs’ civil action is barred by workers’ compensation exclusivity.” Id. Under Wisconsin’s WCA, tort claims against an employer for a covered injury are barred by the exclusivity provision. Accordingly, this Court should dismiss Plaintiff’s claims against 6 This Court has previously noted that the worker’s compensation laws of California and Wisconsin are substantively similar and “similarly limit remedies to those available under the respective” WCAs. Boyer, 39 F. Supp. 3d. at 1043. Case law from each state demonstrates that expansive coverage under the WCA when workplace exposure or activity played a contributing role in the injury. See South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd., 61 Cal. 4th 291, 300 (Cal. 2015) (citing cases providing worker’s compensation benefits based on aggravated injuries following medical treatment of occupational injury or injuries from later nonindustrial accident where earlier industrial injury contributed to later injury); Lange v. Labor and Indus. Review Com’n, 215 Wis. 2d 561, 568 (Wis. Ct. App. 1997) (“For LIRC to conclude that a work-related injury is not a substantial factor in a second, related injury, it must find that the claimant would have suffered the same injury, to the same extent, despite the existence of the work-related injury. In all other cases . . . the re-injury will be compensable.”); see also Burton v. Indus. Com’n, 43 Wis. 2d 218, 221 (Wis. 1969) (discussing work-related injury that was aggravated by later unconnected accident). This similarity, between California and Wisconsin, in expansive WCA coverage provides yet another reason to credit the California appellate court’s analysis in Melendrez. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 14 of 36 15 Weyerhaeuser, Decedent’s employer, for alleged non-occupational exposures that, at most, contributed to development of Decedent’s single occupational injury. C. Dual Persona is the only recognized exception to the exclusivity provision; however, it has not been pleaded and does not apply in this case. The only recognized exception to the exclusivity provision of the WCA is the dual- persona exception. Plaintiff did not plead dual persona, and indeed, the dual persona doctrine could not apply to Plaintiff’s claims against Weyerhaeuser in this case. i. Dual persona is the only recognized exception to WCA exclusivity. In 1988, the Wisconsin Supreme Court was confronted with the certified question of: Should Wisconsin adopt the ‘dual capacity’ test so that sec. 102.03(2), Stats., will not immunize an employer from liability, except under the Worker’s Compensation Act, for an employee’s injuries caused by or resulting from an act of the employer in a capacity other than employer, or should Wisconsin adopt the ‘dual persona’ test so that an employer loses the immunity of sec. 102.03(2) only when the employer possesses, and acts in, a second persona so independent from and unrelated to her status as an employer that the law recognizes it as a separate legal person? Henning, 143 Wis. 2d at 5-6. In other words, can an employer be subject to tort liability because it wears “two hats” and the employer’s activities in its “non-employer capacity” caused injuries to an employee? Or, must an employer actually have two separate legal existences (“a dual persona”) before it loses the immunity protections of the WCA? In Henning, the plaintiff was a sanitation worker employed by the City of Janesville, injured while working at a landfill when the door of a trash cube manufactured and sold by the City malfunctioned. The trash cube had been attached to one of General Motor’s trucks, but the City had manufactured the cube and had previously sold it to GM. The plaintiff sued GM, who in turn made third-party indemnity claims against the City. The trial court denied the City’s exclusivity motion for summary judgment on the basis that the City’s dual roles as both employer and product manufacturer justified an exception to exclusivity. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 15 of 36 16 On appeal, the Wisconsin Supreme Court reversed, directing the trial court to enter an order granting summary judgment. Id. at 27. The Supreme Court determined that, while the City owed a separate duty to the plaintiff as a member of the public, the separate duty to the public did not give rise to liability to the plaintiff outside the worker’s compensation system. The Court explained that under the dual persona exception, “[a]n employer may become a third person, vulnerable to tort suit by an employee, if - and only if - he possesses a second persona so completely independent from and unrelated to her status as employer that by established standards the law recognizes it as a separate legal person.” Id. at 15. As the court in Schweiner v. Hartford Accident & Indemnity Company stated, “separate capacity or theory of liability is not sufficient. Instead, there must exist a duality or, in other words, a separate and distinct legal person” 120 Wis. 2d 344, 353-54 (Wis. App. 1984) (emphasis added). The Henning court rejected the application of the dual capacity exception in product liability actions against employers: Wisconsin is not alone in refusing to extend duality principles to permit product liability actions against employers: The great majority of American jurisdictions hold that an employer, who is also the manufacturer, modifier, installer, or distributor of a product used in the work, cannot be held liable in damages to her own employee on a theory of products liability. Henning, 143 Wis. 2d at 21 (citations omitted). ii. Plaintiff’s failure to plead the dual-persona exception is dispositive. As a threshold matter, the dual-persona exception must be pleaded. The Henning court stated: The methodology applied by the trial courts . . . first requires the court to examine the pleadings to determine whether a claim for relief has been stated. . . . Our examination in the case at bar need go no further than to examine the pleadings, since we find, for the reasons set forth below, that under no circumstances could General Motors have recovered under the pleadings. The vital allegation . . . necessary to sustain a cause of action Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 16 of 36 17 seeking to impose tort liability upon an employer who has paid workers’ compensation benefits, is an allegation that the City was involved in the accident as a persona distinct from its status as an employer. Id. at 6 (emphasis added). An allegation that Weyerhaeuser was involved as a persona distinct from its status as an employer is therefore a “vital allegation” and is “necessary to sustain a cause of action seeking to impose tort liability upon an employer.” Id. (emphasis added). If it is not pleaded, the Court’s inquiry stops and “under no circumstances” can Plaintiff recover against the employer. Id. (emphasis added); see also Arnold v. Minner, 2005 WL 1501514, at *9, 30 (D. Del. June 24, 2005) (granting defendants’ motion to dismiss based on worker’s compensation exclusivity because the plaintiff “does not assert the dual persona doctrine” in the complaint). Because Plaintiff did not plead the dual-persona exception, Plaintiff’s claims against Weyerhaeuser should be dismissed. iii. Plaintiff’s allegations relate to a single entity-Weyerhaeuser as owner/operator of the Marshfield plant. The dual-persona exception, therefore, does not apply. Plaintiff’s allegations relate to a single entity with one persona-Weyerhaeuser, the owner/operator of the Marshfield plant.7 Plaintiff alleges that Weyerhaeuser breached a duty to the general public, including Decedent, and that Weyerhaeuser is responsible for non- occupational exposures that contributed to Decedent’s development of mesothelioma. These allegations, at best, amount to dual capacity. Wisconsin has expressly rejected the dual-capacity theory. See Henning, 143 Wis. 2d at 26 (“while obligations to the general public may have grown from the sale of trash cubes, those obligations were undertaken by the same entity which 7 See Compl. at ¶ 4 (Weyerhaeuser “is the former owner of the Marshfield, Wisconsin door manufacturing plant”); id. at ¶ 14 (“The Marshfield plant manufactured asbestos containing fire doors beginning in 1955 and continuing through 1979.”); id at ¶ 28 (“Plaintiffs and other workers working in or in proximity to Kaylo door manufacturing operations at Weyerhaeuser”); id. at ¶¶ 37, 49 (“Weyerhaeuser owned and operated the door manufacturing plant in Marshfield during the period of decedent’s exposures”); id. at ¶ 38 (“Weyerhaeuser operated the Marshfield plant”); id. at ¶ 50 (“Weyerhaeuser knew or in the exercise of ordinary or reasonable care ought to have known the Marshfield plant operations resulted in emission and transport of asbestos fibers to locations outside the plant.”); id. at ¶ 79 (“The masks did not properly protect against inhalation of asbestos fibers from the operations at the Marshfield facility.”). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 17 of 36 18 employed Henning”); Schweiner, 120 Wis. 2d at 353-54 (“separate capacity or theory of liability is not sufficient”) (emphasis added). Because Plaintiff’s claims against Weyerhaeuser are all predicated on the alleged actions of a single entity, there is no applicable exception to worker’s compensation exclusivity, and Plaintiff’s claims against Weyerhaeuser are barred. D. Plaintiff’s claims based on Decedent’s occupational injury, regardless of allegedly contributing non-occupational exposures, are barred by worker’s compensation exclusivity. In the previous Marshfield cases, this Court correctly analyzed the questions presented to it and determined that exposures at work and exposures resulting from fibers transported on the worker’s own clothing are occupational exposures. This Court, guided by Melendrez and Campbell, should take the next step in the analysis. If an employee suffers from an injury covered by Wisconsin’s WCA, then worker’s compensation is the exclusive recovery against the employer for that injury. See Wis. Stat. § 102.03(2). Plaintiff will likely contend that non- occupational exposures fall outside the worker’s compensation system, thus, skirting the worker’s compensation system altogether and eliminating the requirement to plead the dual- persona exception. That contention misses the point. Decedent suffered from a single injury. Even by Plaintiff’s own allegations, Decedent’s occupational exposures substantially contributed to that injury. The occupational injury falls under the WCA. Accordingly, any tort claim against Decedent’s employer, Weyerhaeuser, for that same injury is also barred by the WCA exclusivity provision and should be dismissed. II. Plaintiff’s Claims Are Based on the Clean Air Act and Must Be Dismissed. Plaintiff’s claims against Weyerhaeuser should also be dismissed because they are preempted by the Clean Air Act (CAA). Plaintiff alleges that Weyerhaeuser emitted asbestos fibers, causing visible emissions, in violation of the National Emission Standards for Hazardous Air Pollutants (NESHAPs), a regulation promulgated pursuant to the CAA. See Compl. at ¶¶ Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 18 of 36 19 42(m), 42(o), 55(m), 55(o). Plaintiff contends that “visible emissions” of asbestos “were in violation of professional standards for industrial hygiene and environmental safety,” (Id. at ¶¶ 42(m), 55(m)) which “adversely affected the health interests of the community at large; interfered with the public health and safety; and interfered with the right of decedent to enjoyment and use of private property.” Id. at ¶ 57. The CAA preempts those claims because its regulation of air emissions, including the creation of the very “visible emissions” standard used by Plaintiff, “is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983). Accordingly, Plaintiff’s claims against Weyerhaeuser should be dismissed with prejudice. A. The Clean Air Act. The Clean Air Act is, in short, “a lengthy, detailed, technical, complex, and comprehensive response to a major social issue.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 848 (1984). In the wake of deadly large-scale air pollution events such as the 1948 Denora Smog Disaster in Denora, Pennsylvania, and the “Great Smog” in London in 1952, the United States Congress began developing a coordinated federal response to air pollution. In December 1963, President Johnson signed the CAA into law, stating that the legislation “ma[d]e possible a national effort to control air pollution, a serious and growing threat to both our health and our safety.” Lyndon B. Johnson, “Remarks Upon Signing the Clean Air Act,” December 17, 1963.8 The CAA established this comprehensive regulatory framework while balancing the need for industries to provide jobs and produce products against the need to regulate and control air 8 Although the Clean Air Act was passed in 1963, major amendments in 1970, 1977, and 1990 have significantly increased its scope and enforcement. Even more recently, EPA rulemaking under the Clean Air Act has resulted in major increases in federal regulation under programs such as the Cross-State Air Pollution Rule, promulgated pursuant to the “good neighbor” provisions of the Clean Air Act, and the Mercury and Air Toxics Standards, promulgated under §§ 111 and 112 of the 1990 Clean Air Act Amendments. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 19 of 36 20 quality in and among states. See, e.g., 42 U.S.C. § 7479(3) (defining “best available control technology” as “taking into account energy, environmental, and economic impacts and other costs”); 42 U.S.C. § 7413(e). The CAA (42 U.S.C. § 7401 et seq) establishes a cooperative federalist framework,9 with the EPA as the “Administrator” charged with establishing emissions standards for “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive (including source material, special nuclear material, and byproduct material) substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. § 7602(a), (g). Under this authority, the EPA regulates asbestos emissions. 42 U.S.C. § 7412(b)(1) (listing hazardous air pollutants). Pursuant to the 1970 Amendments to the CAA, Congress directed the EPA to promulgate rules and regulations for asbestos emissions in what has become known as the National Emissions Standards for Hazardous Air Pollutants - Asbestos report, or the Asbestos NESHAP. 38 Fed. Reg. 8,820 (Friday, April 6, 1973) (codified at 40 CFR 61.140 et seq). The Asbestos NESHAP regulated “major man-made sources of asbestos emissions into the atmosphere,” namely mining and milling, manufacturing, fabrication, demolition, and spraying. Id. The EPA determined that not all asbestos emissions should be prohibited but that “numerical concentrations or mass emission limits” were not practicable. Id. The standard instead limited “visible emissions” through the use of designated control equipment. Id.10 Through the 1975 9 In the section defining the purpose of the act, Congress emphasized enforcement of pollution controls was the primary responsibility of state and local governments and “Federal financial assistance and leadership is essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.” 42 U.S.C. § 7401(a)(3), (4). 10 These regulations have been updated as technology has allowed for more precise measurement and determination of safe levels of ambient asbestos and asbestos emissions, with the latest update promulgated in 2011. 40 CFR §61.140 et seq. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 20 of 36 21 CAA Amendments, the Asbestos NESHAP was expanded to regulate the transportation and disposal of asbestos waste. 40 Fed. Reg. 48292-96 (October 14, 1975). Under the CAA’s regulatory framework, states and municipalities act as the local enforcement arm. States develop and submit State Implementation Plans (SIPs) that must conform to a litany of requirements. 42 U.S.C. §§ 7410, 7421. The EPA then has the power to approve or reject the proposed SIP, and, if it finds the plan deficient, can promulgate a Federal Implementation Plan in its place. 42 U.S.C. § 7410(c)(1), (k)(1)(C). States also designate “air pollution control agencies” which, once authorized by the EPA, take the lead in actions such as administering operating permits and enforcing emissions standards and regulations. 42 U.S.C. §§ 7661a-f; 40 CFR § 70.11. The EPA, however, retains the power to intervene in the permitting process if it determines the system is being abused. 42 U.S.C. § 7661a(C)(i).11 In addition to the federal government and the states, there is a third enforcement mechanism within the CAA: citizen suits. Under the CAA, “any person may commence a civil action on his own behalf” “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.”12 42 U.S.C. § 7604(a). To bring such a suit, the claimant must give 60 days’ notice to the EPA, the State, and the alleged violating party. 42 U.S.C. § 7604(b)(1). Remedies are limited to injunctive relief and civil penalties (not to exceed $100,000), which are deposited into a general penalty fund or used to mitigate the effects of the violation. 42 U.S.C. § 7604(a), (g). Additionally, the section 11 Additionally, as part of the regulatory framework, there are extensive federal enforcement provisions designed to facilitate compliance with emissions regulations. For instance, the EPA can, “on the basis of any information available,” find a person in violation of the CAA and issue an order mandating compliance, issue an administrative penalty, or bring a civil action for “a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day for each violation, or both . . . .” 42 U.S.C. § 7413(a)(1), (b). The EPA can also enforce the SIPs if the states fail to do so. 42 U.S.C. §7413(a)(2). 12 Further, an individual may commence a citizens suit against the Administrator for failure to perform a non- discretionary act; or any person who attempts to construct a major emitting facility without a permit or who has violated a permit. 42 U.S.C. § 7604(a). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 21 of 36 22 includes a subsection that states: “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 emissions standard or limitation or to seek any other relief.” 42 U.S.C. § 7604(e). B. Plaintiff’s Claims Are Preempted By The Clean Air Act. Plaintiff’s claims against Weyerhaeuser-premised on air emission violations-are preempted and must be dismissed. As this Court stated in Boyer v. Weyerhaeuser Co., “the CAA is a federal regulatory scheme ‘in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’” 2015 WL 3485262, at *4 (W.D. Wis. June 2, 2015) (quoting Pac. Gas, 461 U.S. at 204). This characterization of the CAA is in line with that of other courts. See, e.g., N.C. ex rel. Cooper v. TVA, 615 F.3d 291, 298 (4th Cir. 2010) (“To say this regulatory and permitting regime is comprehensive would be an understatement. To say it embodies carefully wrought compromises states the obvious.”). Because the CAA occupies the field of air emissions, Plaintiff’s state law claims, premised on alleged violations of CAA regulations, are preempted and must be dismissed. Albeit under a convoluted procedural posture involving a dispute among states over downwind air quality, the Fourth Circuit recently held that the CAA can preempt state common law nuisance claims. Cooper, 615 F.3d at 298. There, the Tennessee Valley Authority (TVA) appealed an injunction granted in connection with a public nuisance claim based on emissions levels. Id. at 296. On appeal, the court defined “[t]he real question” as “whether individual states will be allowed to supplant the cooperative federal-state framework that Congress through the EPA has refined over many years.” Id. at 298. The court held that states cannot supplant the CAA through nuisance claims and emphasized that “it is essential that we respect the system that Congress, the EPA, and the states have collectively established.” Id. at 303, 311. Notably, the Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 22 of 36 23 court expressly rejected the “vague and indeterminate” state nuisance standards, stating “[i]f we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways, and bullfights, we will be hard pressed to derive any manageable criteria.” Id. at 302 (citation omitted). To allow such claims would lead to the “balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike.” Id. at 296. Other district courts have likewise held that state-law nuisance claims are preempted by the CAA. In Comer v. Murphy Oil USA, Inc., the plaintiffs made nuisance claims against a group of oil companies for releasing by-products which harmed their property. 839 F. Supp. 2d 849, 853 (S.D. Miss. 2012). The district court held the state law causes of action were preempted based in large part on the fact that federal courts should not determine the reasonableness of emissions or of reductions of emissions because those determinations should be made by the EPA. Id. at 865; see also United States v. EME Homer City Generation L.P., 823 F. Supp. 2d 274, 296-97 (W.D. Pa. 2011) (holding that the “comprehensive statutory and regulatory schemes” established by the CAA preempted the state common law nuisance claim).13 The Supreme Court has answered the analogous question of whether federal common law nuisance claims are “displaced” by the CAA. American Electric Power Company v. Connecticut. 131 S. Ct. 2527, 2532 (2011). The AEP Court emphasized the comprehensive regulatory framework of the CAA and the precise balance whereby the EPA was the “first decider” and federal judges “the second” in enforcing air quality standards. Id. at 2539. To reverse that order would upset the balance by placing a party with fewer resources and less expertise, federal judges, in charge of determining the reasonableness of emissions rather than the EPA, the 13 The Third Circuit, on appeal, summarily affirmed the dismissal of the state law claims because the claims “were not thoroughly developed” before the district court. See United States v. EME Homer City Generation, L.P., 727 F.3d 274, 299 (3d Cir. 2013). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 23 of 36 24 “expert agency.” Id. at 2539-40. “The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted.” Id. at 2540; see also United States v. Kin-Buc, Inc., 532 F. Supp. 699, 700, 702 (D.N.J. 1982) (holding that the CAA displaces federal common law nuisance claims because the Act “establishes a complete regulatory procedure” and Congress “occupies the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency”); United States v. Questar Gas Mgmt. Co., 2010 WL 5279832, at *5 (D. Utah Dec. 14, 2010) (holding that the CAA displaces federal common law nuisance claims because “there can be no clearer example of where Congress occupies the field”) (alterations, citation, and internal quotation marks omitted).14 In instances in which courts have found that the Clean Air Act did not preempt state tort claims, plaintiffs have sought to enforce either CAA permit violations or complementary state- law air emission regulations passed as a means of complying with the CAA, and courts have found that such enforcement suits fit narrowly within the CAA’s citizens suit provision. See, e.g., Bell v. Cheswick Generating Station, 734 F.3d 188, 192-193 (3d Cir. 2013). Under this provision, as described above, citizens can enforce pollution regulations even if states refuse to act. See Matthew Burrows, The Clean Air Act: Citizen Suits, Attorneys’ Fees, and the Separate Public Interest Requirement, 36 B.C. Envtl. Aff. L. Rev. 103 (2009). Plaintiff here does not seek to police a permit violation or enforce any complementary air emissions regulations on the Marshfield facility. Instead, he seeks to coopt the CAA, and any determination of the merits of these claims would necessarily involve a reasonableness determination of Weyerhaeuser’s emissions outside the delicate balance of the comprehensive 14 By using the language of field occupation, the court analyzed the claim under the more rigorous standard of preemption, not displacement. Even under this more difficult standard, the court dismissed the nuisance claim. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 24 of 36 25 regulatory framework built over decades under the CAA. If this Court makes such findings, it will threaten the uniformity which was a primary purpose of the CAA, and it will do so through a cause of action (nuisance) that is famously imprecise and has meant all things to all people. As the Fourth Circuit stated in Cooper, “[t]he contrast between the defined standards of the Clean Air Act and an ill-defined omnibus tort of last resort could not be more stark.” 615 F.3d at 302. Those defined standards were put in place to give industry the certainty that one framework would govern emissions and air quality rather than a patchwork of standards, or worse, a patchwork of judicial decisions. C. Because Plaintiff’s Claims Are Preempted, They Must Be Dismissed. The Clean Air Act was designed, and has been honed over the years, to be a comprehensive regulatory framework that ensures compliance with federally mandated emissions standards through a mixture of local, state, and federal enforcement. As this Court stated, “the CAA is a federal regulatory scheme in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Boyer v. Weyerhaeuser, 2015 WL 3485262, at *4 (W.D. Wis. June 2, 2015) (citation and internal quotation marks omitted). There is, therefore, a two-part analysis: (1) What is the subject of the CAA?; and (2) Would allowing Plaintiff’s claims to proceed constitute enforcement of state laws on that subject? The “subject” of the CAA in the context of these claims is found in the Act’s statement of purpose. The first of the five listed purposes is: “to protect public health and welfare from … air pollution or from exposures to pollutants in other media, which pollutants originate as emissions to the ambient air.” The second part of the analysis flows naturally from the first: if Plaintiff is successful in his claims for negligence and nuisance caused by air emissions from Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 25 of 36 26 Weyerhaeuser’s manufacturing process, this Court will enforce state laws on the protection of public health and welfare from air emissions, the same subject as the CAA, outside that comprehensive federal regulatory framework. See, e.g., AEP, 131 S. Ct. at 2532 (finding preemption of common law claims by the CAA); Cooper, 615 F.3d at 298 (holding state law claims preempted by CAA). Therefore, the claims are preempted. Because preemption applies, this Court must dismiss Plaintiff’s claims. See Krashna v. Oliver Realty, Inc., 895 F.2d 111, 114 (3d Cir. 1990) (“If Congress intended federal law to preempt the state law claim, then the court (federal or state) must dismiss it under the principles of ordinary preemption.”); Cooley v. Medtronic, Inc., 2012 WL 1380265, at *5-6 (E.D. Ky. Apr. 20, 2012) (“Because the MDA preempts Cooley’s negligence claim, it also preempts the loss of consortium claim.…The Court must dismiss Cooley’s complaint because all of her claims are preempted by federal law.”). III. Plaintiff’s Complaint Fails To State A Cause Of Action Against Weyerhaeuser For Which Relief Can Be Granted, And, Therefore, The Claims Should Be Dismissed. Plaintiff’s allegations against Weyerhaeuser are conclusory and factually unsupported. Even if the allegations are assumed to be true, they do not state a cause of action that is facially plausible. Additionally, Plaintiff’s nuisance and punitive damage allegations are vague and do not provide Weyerhaeuser with proper notice as required by Federal Rule of Civil Procedure 8. Because Plaintiff’s allegations are insufficient to state a claim against Weyerhaeuser, the claims against Weyerhaeuser should be dismissed. A. Plaintiff’s allegations against Weyerhaeuser are nothing more than conclusions that, even if true, do not state a claim for relief that is plausible because they fail to provide sufficient facts. To avoid the WCA and bring occupational claims against Weyerhaeuser in the tort system, Plaintiff baldly contends that his negligence and nuisance claims against Weyerhaeuser Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 26 of 36 27 are unrelated to Decedent’s employment. This implausible claim is not sufficient under Rule 8, and the court should not accept such conclusory allegations as true. See Brooks v. Ross, 578 F.3d 574, 580-81 (7th Cir. 2009). The factual detail in the complaint must not be “so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.” Id. at 581 (internal citation omitted).15 See also Riley v. Vilsack, 665 F. Supp. 2d 994, 1004 (W.D. Wis. 2009). Plaintiff has not provided the specific factual allegations, that, even if true, would support his causes of action. In particular, Plaintiff’s complaint does not contain the factual detail necessary for Weyerhaeuser to determine the basis for his private and public nuisance and negligence claims, or to determine whether certain allegations are based on occupational or non- occupational exposures. According to the Complaint, during “operations of [its] Marshfield plant,” Weyerhaeuser somehow caused asbestos “contamination of housing, vehicles, community businesses, and other places” and additionally “contaminated property.” Compl. at ¶¶ 33, 34, 46, 47. Plaintiff claims that fibers were transported outside the plant by some unidentified “employees or other persons” which contaminated some unknown “homes, autos, and other locations outside the plant which decedent breathed while residing in”…“the Marshfield area” at some unknown location. Id. at ¶ 15. These blanket allegations are are nothing more than factually unsupported conclusions and should not be given the assumption of truth. See Iqbal, 556 U.S. at 679. Even if true, the allegations do not raise a right to relief beyond the speculative level. Plaintiff does not allege how, when, or where this purported contamination occurred; how, when, 15 In Brooks, the Seventh Circuit agreed that plaintiff’s complaint failed to state a claim “because it is merely a formulaic recitation of the cause of action and nothing more. It therefore does not put the defendants on notice of what exactly they might have done to violate [plaintiff’s] rights under the Constitution, federal law, or state law.” Brooks, 578 F.3d at 582. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 27 of 36 28 or where Decedent was exposed to this contamination; or how such contamination/exposure is unrelated to Decedent Herbert Spatz’s employment with Weyerhaeuser. For example, Plaintiff does not claim Decedent lived in the city of Marshfield, much less near the Marshfield plant, nor even provide an address where he may have lived during the relevant time period. There are no allegations as to whose “housing” or “vehicles” were contaminated, or how or where either was contaminated as a result of the Marshfield plant. Likewise, there are no allegations as to what “other place” the Complaint refers, or how it was contaminated with asbestos from the Marshfield plant, or how/when Decedent may have been exposed there. As to the generic allegation that Weyerhaeuser “contaminated property,” there are no allegations of when any such contamination/exposure occurred, when it ceased, or how it was unrelated to Decedent Herbert Spatz’s employment at the Marshfield plant. As such, Plaintiff’s negligence and nuisance claims against Weyerhaeuser should be dismissed. B. Plaintiff’s nuisance claims are vague, conclusory and fail to provide enough facts to determine the basis for the claims or which nuisance claim is being pled. Further, the nuisance allegations are “so sketchy that the complaint does not provide the type of notice of the claim to which [Weyerhaeuser] is entitled under Rule 8.” Brooks, 578 F.3d at 581. Wisconsin recognizes public and private nuisance as separate causes of action. See State v. Quality Egg Farm, Inc., 104 Wis. 2d 506, 515 (Wis. 1981). Indeed, “[t]he two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names.” WILLIAM L. PROSSER, LAW OF TORTS § 87, at 573 (4th ed. 1978). Each has separate and distinct elements under Wisconsin law. Plaintiff, however, has chosen to assert both public and private nuisance allegations against Weyerhaeuser together in the same count. Compl. at ¶¶ 44, 59. A public Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 28 of 36 29 nuisance16 “is an unreasonable interference with a right common to the general public.” On the other hand, “a private nuisance17 is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement 2d of Torts § 821D. “Unless the facts can be brought within one of the two categories mentioned there is not, with any accurate use of the term, a nuisance.” PROSSER, LAW OF TORTS § 87, at 573. Plaintiff’s Complaint strings together a list of allegations under counts for intentional and negligent nuisance, neither of which asserts facts sufficient to support either private or public nuisance claims. As one of many such examples, in an apparent attempt to support a private nuisance theory, Plaintiff claims “[t]he contamination by asbestos fibers from the Marshfield plant… [i]nterfered with the right of decedent to enjoyment and use of private property as a family member by causing injury while decedent was occupying the property.” Compl. at ¶ 57. The Complaint contains no facts concerning which piece of property was contaminated, how it was contaminated, when it was contaminated, who owned the property, or how Decedent was prevented from using or enjoying the property.18 Plaintiff’s Complaint offers nothing more than conclusions and “formulaic recitations,” and the nuisance allegations against Weyerhaeuser should be dismissed. 16 “A public nuisance involves the impingement of public rights, rights that are common to all members of the public. In order to recover for a public nuisance, an individual must have suffered harm of a kind different from other members of the public who exercised that common right.” Bostco LLC v. Milwaukee Metro. Sewerage Dist., 350 Wis. 2d 554, 575 (internal citation omitted). A nuisance may be either created or maintained. Butler, 294 Wis. 2d at 416; Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis. 2d 635, 661 (Wis. 2005). See Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d 461, 466-68 (Wis. App. 1998). 17 “[I]n order to maintain an action for a private nuisance, there must be proof that there exists an invasion or interference with the private use and enjoyment of land, the defendant’s conduct was the legal cause of the invasion, and the defendant’s conduct is actionable under the rules relating to intentional or negligent conduct.” Milwaukee Metro., 277 Wis. 2d at 670. 18 Without specifying whether Decedent Herbert Spatz ever lived in the city of Marshfield or anywhere near the plant, Plaintiff broadly claims that he resided “in the Marshfield area.” See Compl. at ¶ 15 (emphasis added). Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 29 of 36 30 In addition, Plaintiff alleges that asbestos was transmitted outside the plant on unspecified “worker clothing, personal effects, hair, and skin which had become contaminated by asbestos fibers at the plant.” Compl. at ¶ 45. Plaintiff then contends that “the inhalation” occurred when Herbert Spatz and some unidentified people he was around were not working at the plant. Id. at ¶ 48. These allegations do not establish Plaintiff’s right to proceed on either type of nuisance cause of action against Weyerhaeuser. Rather, Plaintiff appears to be claiming that Herbert Spatz, as a worker, brought home asbestos on his personal clothing and effects. As discussed previously, allegations that an employee was exposed to asbestos from his own contaminated work clothing and personal effects fall within the domain of workers’ compensation exclusivity and are subject to the workers’ compensation exclusivity bar. C. Plaintiff’s private nuisance allegations fail because there is no claimed possessory interest in the affected property. As this Court has recognized, Plaintiff must have a current possessory interest in the property that was allegedly damaged. See Boyer v. Weyerhaeuser Co., 2016 WL 705233, at *25 (W.D. Wis. Feb. 19, 2016), reconsideration denied, 2016 WL 2619439 (W.D. Wis. May 5, 2016) (granting summary judgment on plaintiff’s private nuisance claims “[b]ecause plaintiffs lacked a possessory interest” in the land). Here, Plaintiff has not claimed that Decedent ever had, much less has, any current legal interest in the affected property. Plaintiff claims that asbestos from the plant was transferred to “homes, autos, or other locations” “which decedent breathed while residing in the Marshfield area,” and at some point in the past, he “occup[ied] the property” as a “family member.” Compl. at ¶¶ 15, 57. Plaintiff does not plead any facts that identify the property, and, importantly, he does not claim any legal interest in that property. In fact, Plaintiff only states that Herbert Spatz was a resident of Marshfield at the time of his death. See Compl. at ¶ 2. As the Supreme Court has held, “a Plaintiffs’ obligation to provide the Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 30 of 36 31 ‘grounds of his entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. (citation omitted) (emphasis added). Plaintiff has failed to do so, and his private nuisance claims should be dismissed. D. Plaintiff’s claim for punitive damages should be dismissed because they are factually unsupported and conclusory. Moreover, Plaintiff’s Complaint includes a one-sentence count for punitive damages. Compl. at ¶ 89. It states in its entirety: “Defendants acted maliciously, with intentional disregard for the rights of plaintiffs for which plaintiffs are entitled to recover punitive damages.” Id. This is nothing more than a conclusory recitation of the legal standard for punitive damages. There are no facts contained in the Complaint that Weyerhaeuser acted maliciously or with intentional disregard. “Threadbare recitals of the elements of a cause of action . . . do not suffice.” Iqbal, 556 U.S. at 678. To the extent Plaintiff claims that, under Rule 9(b), he may simply allege malice, intent, and other conditions generally, that is not enough. While mental states may be alleged generally under Rule 9(b), that is not sufficient to entitle Plaintiff to relief. “Rule 8(a) requires a plaintiff in every case to allege facts sufficient to ‘plausibly give rise to an entitlement to relief.’” Smith v. I- Flow Corp., 753 F. Supp. 2d 744, 750 (N.D. Ill. 2010) (internal citations omitted). Failure to allege such supporting, factual allegations results in the claim for punitive damages being dismissed. Cent. Brown Cnty. Water Auth. v. Consoer Townsend, 2011 WL 5040453, at *7 (E.D. Wis., Oct. 21, 2011). Plaintiff’s claim for punitive damages is conclusory and factually unsupported, and should be dismissed for failure to state a claim upon which relief can be granted. See Boyer, 39 F. Supp. 3d at 1042. IV. Plaintiff’s Private Nuisance Claims Are Barred by the Statute of Limitations. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 31 of 36 32 Finally, Plaintiff’s private nuisance claims also fail because the statute of limitations has run on that claim. In Wisconsin, actions to recover for damages to real or personal property have a six-year statute of limitations. See Wis. Stat. § 893.52. In addition, while Wisconsin has adopted the discovery rule, whereby tort claims accrue on the date the injury is discovered or should have been discovered, Plaintiff has failed to plead any facts to demonstrate he fits within that exception. See Gumz v. N. States Power Co., 305 Wis. 2d 263, 275 (Wis. 2007) (defining the contours of the discovery rule). Moreover, as this Court has recognized, while “the discovery rule is available for private nuisance claims, it would only apply when the plaintiff is aware of an injury, but does not know its cause.” Boyer, 2016 WL 705233, at *26. The Complaint makes no such claim and provides no facts supporting application of the discovery rule. Plaintiff alleges community exposures spanning the period beginning in 1955. See Compl. ¶15. Even giving Plaintiff the benefit of the doubt and taking 2001, his last date of employment, as the date on which the statute of limitations began to run, any claims for recovery of damages to real or personal property have long since been barred. Because Plaintiff’s Complaint does not fulfill even the most basic allegations of a private nuisance action and the statute of limitations has run on any potential claims, Plaintiff’s private nuisance claims should be dismissed. V. The Court Should Dismiss Plaintiff’s Claims Because Failure to Do So Will Enter a Field With No Sensible or Just Stopping Point. Plaintiff’s nuisance and negligence claims also fail under the public policy prong. In Physicians Plus, the Wisconsin Supreme Court applied public policy factors, long common in negligence actions, for use in public nuisance actions. 254 Wis. 2d at 111, 117. The six public policy factors Wisconsin courts have employed are: “(1) [t]he injury is too remote from the negligence; . . . (2) the injury is too wholly out of proportion to the culpability of the negligent Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 32 of 36 33 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 tort-feasor; . . . (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, (Wis. 2006) (citation omitted). Application of these factors is appropriate by the court in the context of a motion to dismiss. Id. at 413. In Butler, a group of property owners brought suit against the City of Shell Lake, as well as against several independent contractors, for negligence and private nuisance, claiming the plaintiffs’ ability to use and enjoy their lakefront property was unreasonably interfered with when the lake flooded. Id. at 409. The court emphasized that Wisconsin courts, even assuming arguendo that a plaintiff can prove negligence or public or private nuisance, can preclude liability and prevent a claim from proceeding based on public policy. Id. at 413 (noting grant of motion to dismiss for failure to state a claim as example of situation where court could preclude liability). Relying on the final public policy factor, entry into a field with no sensible or just stopping point, the Wisconsin Supreme Court precluded liability for nuisance.19 Id. at 419-20. The public policy rationale for precluding liability is similar to that in Butler. There, the court faced a group of plaintiffs and the possibility of many more.20 The Complaint in this case is the second of what could be a second wave of former employees making sweeping allegations against their former employer outside the WCA framework. Like the similar complaints before it, this Complaint also involves allegations of a work-related injury. Accordingly, relief for the 19 Although the Butler court precluded liability for a private nuisance, the court explicitly stated its reasoning would apply to both public and private nuisance claims. Id. at 418. 20 The court noted there were more than 400 properties on the lake. Id. at 405. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 33 of 36 34 alleged injury can only be sought through the WCA.21 Instead, Plaintiff has attempted an end run around the WCA’s exclusivity provisions. If the Court were to allow these claims, premised on an occupational injury to which alleged CAA violations allegedly contributed, to survive here, it would “enter a field that has no sensible or just stopping point.” This case, like the ones before it, opens the door for employees to bring tort claims against employers without a separate, non-occupational injury or dual- persona allegations. Specific to Weyerhaeuser, this case continues the tort claims by former employees for occupational disease. This Court should not allow Plaintiff to avoid a system specifically designed to provide relief for such allegations. 21 As has been discussed extensively in briefing before this Court, Wisconsin’s Worker’s Compensation Act provides “the exclusive remedy against the employer” when the injury “arises out of the employees employment.” Wis. Stat. § 102.03(1)(e) & (2); see also Henning, 143 Wis. 2d at 7. Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 34 of 36 35 CONCLUSION For all the reasons discussed above, Plaintiff’s Complaint fails to state a claim upon which relief can be granted, and all claims against Weyerhaeuser should be dismissed. DATED: January 3, 2017 Respectfully submitted, By: /s/ Tanya D. Ellis Joshua J. Metcalf (MS Bar No. 100340) Tanya D. Ellis (MS Bar No. 101525) Ruth Maron (MS Bar No. 104709) Mitch McGuffey (MS Bar No. 104986) FORMAN WATKINS & KRUTZ LLP 200 South Lamar Street City Centre Building, Suite 100 (39201) Post Office Box 22608 (39225-2608) Jackson, Mississippi Phone: (601) 960-8600 Facsimile: (601) 960-8613 Email: joshua.metcalf@formanwatkins.com Email: tanya.ellis@formanwatkins.com Email: ruth.maron@formanwatkins.com Email: mitch.mcguffey@formanwatkins.com Counsel for Weyerhaeuser Company Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 35 of 36 CERTIFICATE OF SERVICE I certify that on January 3, 2017, these papers were filed with the Clerk of the Court for the United States District Court for the Western District of Wisconsin using the CM/ECF system, which will send notification of such filing upon all parties who have appeared. /s/ Tanya D. Ellis Tanya D. Ellis Case: 3:16-cv-00726-wmc Document #: 15 Filed: 01/03/17 Page 36 of 36