A federal appeals panel in Chicago has upheld lower courts’ dismissal of several asbestos exposure lawsuits brought against door maker Weyerhaeuser Company and Owens-Illinois Inc., saying their dispute with Weyerhauser should be handled under Wisconsin’s workers compensation law, and their claims against Owens-Illinois don’t belong in court at all.

On June 6, a three-judge panel of the U.S. Seventh Circuit Court of Appeals rejected the appeal brought by plaintiffs in six consolidated cases involving asbestos exposure more than 30 years ago at a fire door plant Marshfield, Wis.

Judges Joel M. Flaumm, Daniel A. Manion and Michael S. Kanne had heard arguments in the case on Feb. 16. Manion authored the opinion, with the other judges concurring.  

The doors in question date to an April 1952 Owens-Illinois patent. In 1956, Owens-Illinois signed a licensing agreement with Roddis Plywood, set to expire when the patent terminated in 1969. Weyerhaeuser bought Roddis in 1960 and, through June 1978, built fire doors that contained asbestos. The six plaintiffs appealing were either door plant employees or representatives of those workers’ estates. Each case involves a worker who, Manion wrote, “developed mesothelioma as a result of asbestos exposure, and on appeal all six raise claims against Owens-Illinois under a theory of negligence arising out of patent design.”

Three of the six plaintiffs, Diane Jacobs, Katrina Masephol and Janice Seehafer, brought claims against Weyerhaueser related to household or community asbestos exposure; those were dismissed Feb. 19, 2016, and a reconsideration motion was denied May 5, 2016. The women filed a notice of appeal June 6, 2016, which was consolidated into the Owens-Illinois claims.

Three plaintiffs’ claims against Owens-Illinois, based on patent licensing, were dismissed Aug. 22, 2014. The other three plaintiffs agreed to dismiss similar claims. The court accepted that proposal June 16, 2015, noting the dismissal was “involuntary.” But five plaintiffs filed notice of appeal on June 6, 2016; the other had done so by April 11, 2016.

“Needless to say,” Manion wrote, “the posture of this kitchen sink consolidated appeal is irregular.”

Still, the justices ultimately found all the dismissals to be appropriate. They agreed that characterizing the mesothelioma as a result of asbestos exposure occurring outside the workplace — layered with the court’s special allowances to plaintiffs who happened to live closer to the factory by allowing expert testimony to apply to their claims — “was an attempt to avoid the exclusive remedy provisions of Wisconsin law, offering jurors a way to award damages under a cause of action that should otherwise be foreclosed.”

Further, the plaintiffs failed to claim Weyerhaueser committed private nuisance limiting use of their personal property. Even if they had, they would have fallen outside Wisconsin’s six-year statute of limitations.

Manion also noted the claims against Owens-Illinois “are frivolous,” as they allege the company should be on the hook for Weyerhaueser employee injuries simply because Owens’ patent incorporated asbestos — even though “there is unanimity among courts that product liability cannot attach to the mere licensing of a patent.”

The panel offered several examples of distinctions between patent and production, such as, “why not hold the lab researcher himself personally liable if somewhere, down the line, some licensee produces his invention and chooses to build it using a toxic substance?”

No matter how the plaintiffs argued, Manion wrote, there is no precedent supporting the attempts to assign liability to Owens-Illinois.

“The patent system is designed to facilitate innovation, to disseminate useful technology far and wide,” Manion wrote.  “It is not a substitute for a worker’s compensation system.”

The panel granted the plaintiffs 14 days to show why it should not impose sanctions for failure to comply with volume limitations and to explain why appealing the Owens-Illinois claims was not frivolous.

Plaintiffs were represented by attorneys with the firms of Cascino Vaughan Law Offices, of Chicago; Motley Rice LLC, of Mount Pleasant, S.C., and Washington, D.C.; and Galiher DeRobertis Waxman, of Honolulu.

Weyerhaeuser was defended by the firm of Forman Watkins & Krutz, of Jackson, Miss.

Owens-Illinois was represented by the firm of Riley Safer Holmes & Cancila LLP, of Chicago. 

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Motley Rice LLC Owens-Illinois Riley Safer Holmes & Cancila U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Western District of Wisconsin

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