Segal McCambridge Legal Blog

Posted By:
January 27, 2012

Wisconsin appeals court reverses $1.5 million asbestos award

The estate of a man who died from malignant mesothelioma did not produce enough evidence to prove he was exposed to the asbestos-containing brake shoes supplied by the defendant.

By Joe Forward, Legal Writer, State Bar of Wisconsin

Jan. 24, 2012 — In a recent decision, a Wisconsin appeals court reversed a $1.5 million damages award against a brake-shoe supplier whose product contained asbestos, concluding the evidence was insufficient to prove causation.

John Pender worked as a painter and glass setter for 41 years, from 1952 to 1993. In 2006, he was diagnosed with malignant mesothelioma and died shortly thereafter.

Pender's estate sued various product manufacturers based on negligence and strict products liability, claiming the brake shoes they supplied to Pender's employer, Harnischfeger Corp., contained asbestos that created an asbestos-laden dust during the grinding process.

Pneumo Abex LLC, a brake shoe supplier, was one of the manufacturers. Abex did not dispute that its product contained asbestos. But in Estate of John Pender v. Pneumo Abex LLC, (Jan. 18, 2012), the District I Wisconsin Court of Appeals agreed with Abex that the estate did not produce sufficient evidence to prove Pender had actual exposure to Abex's product.

The record indicated that Abex supplied brake shoes to Harnishfeger Corp. while Pender worked there, but there was insufficient evidence that Abex's brake shoes were supplied to the particular plant where Pender worked.

Harnishfeger had several plants in Milwaukee, and nine different companies supplied brake shoes to the company for a 20-year period. The other suppliers that Pender's estate sued were dismissed at the summary judgment stage. At trial, Abex stood as the sole defendant.

A jury found Abex liable on theories of both negligence and strict liability, awarding damages of nearly $1.5 million. But the appeals court ruled the case was over at summary judgment.

"We would have to pile inference upon inference in order to conclude that Pender was exposed to Abex's brake shoes while working at the National Avenue plant," wrote Judge Kitty Brennan.

"The evidence fails to take Pender's alleged exposure outside the realm of speculation and conjecture." The court noted a lack of evidence that Abex's brake shoes were ever delivered to Harnishfeger's National Avenue plant specifically, or were ever present or grinded there.

"The evidence presented to the trial court created on a 'mere possibility' of causation, which is not enough to survive summary judgment," the appeals court concluded.

The original article can be found here

Posted By:
February 19, 2011

Wisconsin enacts tort reform

Wisconsin has recently enacted tort reform measures that the American Tort Reform Association (ATRA) called "necessary and reasonable” by placing limits on civil liability that would “invariably help boost the state's economy.”

According to ATRA, the new legal reform law brings Wisconsin into line with other states by limiting product liability to assist small businesses and manufacturers. It also adopts the higher, federal court standard for the admission of expert testimony, requiring such opinion to be based on sound, per-reviewed science.

"Importantly, the new reform package also overturns an onerous Wisconsin Supreme Court decision that established a so-called 'risk contribution' theory, which allowed personal injury lawyers to sue any and all lead paint manufacturer that had sold paint in the state decades ago without having to prove which products actually caused harm.

"Lastly, the new limit on awards for punitive damage will help reduce trial lawyers' incentive for bringing some of their less meritorious lawsuits, which of course cost just as much to defend against as do more meritorious lawsuits."

Here is a link to the Wisconsin tort reform bill

The ATRA article is here

Posted By:
July 21, 2010

Wisconsin Supreme Court holds no duty from principal to independent contractor employee

Walter Tatera died from malignant mesothelioma. His widow, Vicki, alleged Walter was exposed to asbestos when he worked at B&M Machine (owned by Walter's father) from the 1960s through 1993. She sued the supplier of the asbestos-containing products, FMC Corporation.

The circuit court dismissed the lawsuit after concluding that Vicki had failed to make her case. The Court of Appeals affirmed part of the circuit court's decision, but reversed another part.

Both parties appealed to the Wisconsin Supreme Court, which held:

"We conclude that Tatera’s negligence claim against FMC falls within the general rule that a principal employer is not liable in tort for injuries sustained by an independent contractor’s employee while he or she is performing the contracted work. In this case, neither of the two exceptions to that general rule applies. First, even accepting Tatera’s allegations as true, we conclude that FMC’s conduct did not constitute an affirmative act of negligence. Rather, Tatera’s allegations of negligence are grounded in FMC’s alleged omissions. By definition, the negligent failure to warn, failure to investigate or test, and failure to instruct are omissions, not affirmative acts of negligence. Moreover, the act of supplying asbestos-containing friction disks does not itself constitute an affirmative act of negligence because liability for such an act is necessarily premised in failing to warn, an omission. Second, we conclude that machining an asbestos-containing friction disk does not qualify as an extrahazardous activity because steps may be taken to minimize the risk of injury. Because we hold as a matter of law that FMC is not liable in tort to Tatera, Tatera’s negligence claim under Restatement (Second) of Torts § 388 is necessarily barred."

The July 20, 2010 decision can be here

The webiste for the Wisconsin Supreme Court is here

Posted By:
May 26, 2010

Milwaukee developer wins $8.37 million verdict

In what could be the largest bad-faith insurance verdict in state history, Milwaukee developer Park Terrace won an $8.37 million verdict from a Milwaukee County Circuit Court jury after accusing its insurance company of switching its policy after a fire.

Read more in the Milwaukee Business Journal here