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Appeals court upholds asbestos exposure case dismissals

Appeals court upholds asbestos exposure case dismissals

Six cases claiming that asbestos exposure more than 30 years ago resulted in mesothelioma were dismissed by a federal appeals court Tuesday.

The six plaintiffs filed lawsuits against Owens-Illinois Inc., which was granted a patent in 1952 for an easy-to-produce fire door that used a core made of inorganic, rigid, fireproof, lightweight and uniform material. Although the original patent claim did not mention asbestos, later versions of the patent claim contemplated the use of boards of asbestos bound with cement as a possible core material, according to court documents in Janet Pecher et al. v. Owens-Illinois Inc. et al.

In 1956, Owens-Illinois licensed its design to Roddis Plywood, which was acquired by Marshfield, Wisconsin-based Weyerhaeuser Co. in 1960. Weyerhaeuser produced fire doors that contained asbestos until 1978, court records show.

The six plaintiffs, who were all employees of Weyerhaeuser and developed mesothelioma as a result of exposure to asbestos, filed separate lawsuits against Owens-Illinois for negligence arising out of patent design. Three plaintiffs also sued Weyerhaeuser related to their exposure to asbestos. Each of the cases were dismissed by the U.S. District Court for the Western District of Wisconsin, and the plaintiffs appealed. The cases were consolidated upon appeal.

In claims against Weyerhaeuser, the plaintiffs contend that their asbestos-related injuries were not caused on the job, but rather at home and in the community, and therefore not subject to the exclusive remedy provision of Wisconsin’s Worker’s Compensation Act. Plaintiff Roger Seehafer, for example, worked for 44 years cutting and drilling asbestos mineral cores but claimed his mesothelioma was caused by ambient asbestos in the surrounding community, court records show.

A three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that the district court properly dismissed these public and private nuisance claims, agreeing that the plaintiffs failed to put forth sufficient evidence for a reasonable jury to conclude that non-occupational asbestos exposure was a substantial contributor to their injuries.

In claims against Owens-Illinois, plaintiffs contend that the company is responsible for asbestos-related injuries because its designs were used in the fire doors produced in Weyerhaeuser’s plant. The claims ranged from failure-to-warn to negligence to liability. The appeals court ruled product liability cannot attach to the mere licensing of a patent.

“Plaintiffs attempt to get around (the exclusive remedy) bar by recharacterizing their injuries as occurring off the job,” the ruling said. “These arguments are unavailing. In addition, the claims against Owen‐Illinois … are frivolous. As a result, we affirm the multiple rulings of the district court dismissing the claims against both defendants on appeal and denying reconsideration.”

The court also scolded plaintiffs’ counsel for not complying with filing rules because briefings they submitted were unusually lengthy and citations were made without spaces in an attempt to skirt word count limits.

“It was undoubtedly deliberate,” the court said in its ruling. “As we noted at oral argument, one string citation without spaces counted as a single word; the same string citation, cleaned up, counted as sixty‐eight. This strategy is repeated throughout all seventy‐seven pages of the primary brief.”

The court gave plaintiffs two weeks to explain why they should not be subject to sanctions for not complying with type-volume limitations and to explain why the appeal of claims involving Owens-Illinois were not frivolous.

"The cases started with a bogus claim that our product was actually used as the core material in the fire doors," Owens-Illinois said in a statement emailed to Business Insurance Friday. "We proved it was not, and the plaintiffs finally abandoned those claims.

"Rather than accept the fact that (Owens-Illinois) products did not cause their clients to get sick, the plaintiffs’ lawyer made up a legally 'frivolous' theory that (Owens-Illinois) could nonetheless be held liable because we licensed a patent regarding the construction of a fire door," the statement continued. "As the 7th Circuit found, the use of asbestos was not part of the patented idea and no case anywhere has held that this is a legitimate basis for liability."

The company said it was targeted through ongoing legal proceedings because the companies that actually made the asbestos core materials used by or around the plaintiffs are in bankruptcy.

"Their bankruptcy trusts pay compensation, but the civil suits against (Owens-Illinois) were designed to find a solvent defendant to pay, despite the fact that, as the 7th Circuit found, we had nothing to do with causing these injuries," the company said. "Unfortunately, this type of bogus claiming scenario is all too common in the asbestos litigation. (Owens-Illinois) last sold an asbestos-containing product almost 60 years ago, and some plaintiffs’ lawyers are still trying to invent new legal theories so they can keep suing us."