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Date: 06-07-2017

Case Style: Janet Pecher v. Owens-Illinois, Inc., et al.

Case Number: 16‐1799

Judge: Manion

Court: United States Court for Appeals for the Seventh Circuit on appeal from the Western District of Wisconsin (Dane County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: The six cases consolidated on
appeal all involve claims related to asbestos exposure over
2 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
thirty years ago at a single Marshfield, Wisconsin plant which
produced fire doors.1 While complex on the surface, and
involving bulky appendices and appeals of separate orders,
the thrust of the appeal is quite simple: the claims at issue are
covered by the exclusive remedy provisions of Wisconsin’s
Worker’s Compensation Act, Wis. Stat. § 102.03(2). Plaintiffs
attempt to get around this bar by recharacterizing their
injuries as occurring off the job. These arguments are
unavailing. In addition, the claims against Owen‐Illinois
claims 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.
I. Background
In April 1952, the United States Patent and Trademark
Office issued Patent No. 2,593,050 for a “Composite Fire
Door,” assigned to defendant Owens‐Illinois. The useful
innovation was a fire door that was up‐to‐code and easy to
produce. The patent claims themselves never specifically
mention the use of asbestos, but instead describe a fire door
with a “core of inorganic, rigid, fire‐proof, light weight
material of a substantially uniform apparent density and
consistency throughout.” Later versions of the patent
contemplate this core material being “conventional solid,
foam, or honey‐combed construction and the like, comprising
magnesium oxychloride foam cement, expanded
polyurethane, mineral wool mats or gypsum or hardboard
honeycomb or egg‐crate construction or boards of asbestos
1 All references will be to this “Marshfield plant.” Until 1960 it was
owned and operated by Roddis Plywood. After 1960 it was owned and
operated by Weyerhaeuser.
Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380 3
bound with cement.” While included as examples, these are not
elements of the patented subject matter.
In 1956, Owens‐Illinois entered into a licensing agreement
with Roddis Plywood, set to expire on termination of the
patent in 1969. In 1960, Weyerhaeuser Company purchased
Roddis Plywood. From some time in the 1950s all the way
until 1978, the Marshfield, Wisconsin plant at issue produced
at least some fire doors that used asbestos as its thermal
insulator. By June 1978, however, the Marshfield plant had
ceased using asbestos.
The six plaintiffs on appeal were all employees of that
Marshfield plant. All six plaintiffs (or the decedents they
represent) 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 (the “Weyerhaeuser
plaintiffs”)—Diane Jacobs, Katrina Masephol, and Janice
Seehafer—raise claims against Weyerhaeuser Company
related to household or community exposure to asbestos.
The initial case involved numerous defendants, and one
by one they have dropped out as the case has developed. The
two remaining defendants are Weyerhaeuser Company and
Owens‐Illinois. Claims against Weyerhaeuser by Jacobs,
Masephol, and Seehafer were dismissed in an order of
February 19, 2016, and a motion for reconsideration was
denied on May 5, 2016. These three, represented by the same
lawyers, filed a notice of appeal on Monday, June 6, 2016,
regarding numerous dismissal orders or orders denying the
reconsideration of the dismissal orders. These cases were
consolidated with the claims against Owens‐Illinois on
appeal.
4 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
Claims against Owens‐Illinois, based upon the licensing of
a patent, by plaintiffs Masephol, Boyer, and Seehafer were
dismissed in an August 22, 2014, order. Perhaps in light of that
order, the remaining three plaintiffs agreed to dismiss similar
claims against Owens‐Illinois in a stipulation accepted by the
court on June 16, 2015, styling the dismissal as “involuntary.”
Five of the six plaintiffs filed their notice of appeal with
respect to claims against Owens‐Illinois on June 6, 2016 (three
of them appealing claims against Weyerhaeuser in the same
order). One plaintiff, Janet Pecher, filed her notice of appeal
on April 11, 2016, apparently relating back to a standard order
of dismissal accepting a settlement from Weyerhaeuser on
March 11, 2016.
Needless to say, the posture of this kitchen‐sink
consolidated appeal is irregular. Nevertheless, the gravamen
of the case can be split into two parts: the claims against
Weyerhaeuser Company, and the claims against Owens‐
Illinois. Upon full review, it is clear that all of the orders
dismissing the claims against both defendants were proper,
and the various appealed orders of the district court are
affirmed.
II. Analysis
A. Claims Against Weyerhaeuser Company
Three plaintiffs appeal the dismissal of their claims against
Weyerhaeuser Company related to their claims for
community and household exposure to asbestos. Each of the
Weyerhaeuser plaintiffs worked at Weyerhaeuser for years in
close contact with asbestos. Therefore, on the surface at least,
it appears their claims should be limited to the procedures set
out in Wisconsin’s Worker’s Compensation Act, which
Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380 5
provides the “exclusive remedy against the employer” for
work‐related injuries. Yet plaintiffs contend that their
asbestos‐related injuries were not caused on the job, but at
home and in the community, and style these as public and
private nuisance claims. For example, one plaintiff, Roger
Seehafer, worked for 44 years at the plant cutting and drilling
asbestos mineral cores. When he developed mesothelioma
years later, plaintiffs’ counsel attributes this not to his work in
the plant, but to the ambient asbestos in the surrounding
community, a public nuisance that significantly contributed
to his mesothelioma as he went about his side job hauling
milk to and from a dairy a few blocks away. He also relies on
ambient exposure related to his one month living in the same
city as the plant.
Plaintiffs presented expert witnesses in support of this
theory. With respect to the three of the plaintiffs on appeal
adverse only to Owens‐Illinois (Kathy Boyer, Janet Pecher,
and Robert Sydow), the district judge admitted the expert
testimony under Fed. R. Evid. 702. But the district judge
rejected that expert testimony in the cases of the three
Weyerhaeuser plaintiffs who appeal this ruling—Masephol,
Seehafer, and Jacobs. The district court reasoned that these
plaintiffs failed to demonstrate that the expert testimony
would be reliable in their cases. This was because none of the
three plaintiffs demonstrated that they lived close enough to
the Marshfield plant long enough for the experts to opine that
non‐occupational exposure contributed significantly to their
injuries. The district court, reasonably, noted that a small
exposure might “contribute” to contracting mesothelioma.
But the testimony of the experts themselves could not support
the legal finding of proximate causation for such nonoccupational
exposure in the cases of Masephol, Seehafer, and
6 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
Jacobs. However, the court noted that the testimony of the
experts might support a finding of proximate causation in the
cases of Boyer, Pecher, and Sydow. The court specified it
could not “ignore the real possibility that any trier of fact
might be unable to balance defendant’s right to exclude
liability or damages for occupational exposures under
compensation laws against the understandable, if unduly
prejudicial, sympathy that would be engendered at trial in
light of the inexorable pain and death that results from this
disease.”
One need not read between the lines to note that the
district court was concerned that the expert testimony
proffered by plaintiffs’ counsel 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. Indeed, the court noted that “it may
well be the outcome of any trial” that the jury finds that all of
the plaintiffs’ injuries were solely caused by occupational
exposure. Even with this in mind, the district court still
managed to allow the expert testimony into the Boyer, Pecher,
and Sydow cases, because each of these plaintiffs lived closer
to the factory. This admission under Rule 702 seems overly
deferential to a highly dubious theory of harm, but neither
this nor the exclusion of the same testimony with respect to
the three plaintiffs on appeal could be considered an abuse of
discretion. C.W. v. Textron, Inc., 807 F.3d 827 (7th Cir. 2015).
the district court noted in the same order, absent this novel
claim of non‐occupational exposure, the three Weyerhaeuser
plaintiffs (Jacobs, Masephol, and Seehafer) had “failed to put
forth sufficient evidence for a reasonable jury to conclude that
non‐occupational asbestos exposure was a substantial
contributor to their respective injuries.” Accordingly, the
Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380 7
district court properly dismissed the public and private
nuisance claims.
Quite apart from the problems of causality, however, the
private nuisance claims fail for a second reason noted by the
district court: the plaintiffs failed to provide any individual
proof of a current possessory interest in land tainted by
asbestos. Plaintiffs do not even attempt to remedy this waiver
on appeal, instead claiming that their “use and enjoyment” of
the property they owned decades ago was limited by
mesothelioma they developed recently. Under Wisconsin
law, however, a private nuisance is an interference with a real
property interest. Wisc. Stat. § 844.01. There is no contention
that the plaintiffs were limited in their use or enjoyment of the
property they owned at the time; rather, the argument is that
they were harmed by ambient asbestos during their ordinary,
unimpeded use and enjoyment of their property, and that
they had no idea until they developed mesothelioma years
later. Also for that reason, as noted by the district court, these
claims would fall outside the six‐year Wisconsin statute of
limitations for such claims. Wis. Stat. § 893.52.
B. Claims Against Owens‐Illinois, Inc.
The claims against Owens‐Illinois all relate to the
company having licensed its Patent No. 2,593,050 to
Weyerhaeuser Company during the operative time period.
Specifically, all six plaintiffs on appeal alleged that because
the fire doors produced at the Marshfield plant were designed
by Owens‐Illinois, and because Weyerhaeuser happened to
use asbestos in producing the fire doors, Owens‐Illinois
should be on the hook for asbestos‐related injuries to
Weyerhaeuser employees. Throughout the amended
pleadings, the specific form of this argument shifted from a
8 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
failure‐to‐warn claim related to the design, to a negligence
claim related to the design, to a strict liability claim that
Owens‐Illinois actually produced some of the asbestos cores
contained in the fire doors (there is no evidence for this). In
short, the plaintiffs did everything in their power to keep
Owens‐Illinois a party to this litigation.
However, the claims against Owens‐Illinois are frivolous.
As noted by the district court in its order of August 22, 2014,
dismissing the claims for the first time, there is unanimity
among courts that product liability cannot attach to the mere
licensing of a patent. In those cases where tort liability can
attach to a non‐manufacturing licensor of intellectual
property, there is always some additional factor for
attributing liability.
In arguing for liability for patent holders for products
produced by others, plaintiffs cite to the complex statutory
scheme envisaged by the Hatch‐Waxman Act, 98 Stat. 1585.
That Act allows for manufacturers of branded drugs to be on
the hook for mislabeling on their generic counterparts,
precisely because the generic drug manufacturers are
prohibited by law from altering the label in any way.2 In such
2 Dolin v. SmithKline Beecham Corp., 62 F. Supp. 3d 705, 711 (N.D. Ill. 2014).
As the court noted in that case: “The Act provides for an expedited, less
costly approval process for generic versions of drugs whose name‐brand
predecessors have already obtained FDA approval. Once the name‐brand
manufacturer’s patent expires, generic manufacturers are able to enter the
market with the benefit of a far more streamlined approval process. This
generic drug application process is referred to as the Abbreviated New
Drug Application … One caveat of this approach, however, is that the
generic drug’s design and warning label must identically match that of the
name‐brand version of the drug in all material respects.” Id. In exchange
Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380 9
a case the branded manufacturer can be said to have “caused”
any mislabeling by a generic drug manufacturer, even if the
branded drug manufacturer had no hand in the manufacture
or distribution of the drug or the labels.
However attenuated the causal chain in that context, it
pales in comparison to the theory of liability advanced by a
plaintiff. This theory would hold a patent licensor liable for
the injuries caused not merely by the licensees practicing the
patented subject matter, but for injuries caused by other, nonessential
features of the final product produced by the
licensee. Holding a patent licensor liable for injuries they in
no sense could be considered to have “caused” raises serious
due process concerns. Furthermore, there is no reason to
believe such a theory of liability could be limited to situations
in which the patentee and the licensee at issue have a face‐toface
relationship. Many research entities, such as universities,
do not directly practice their patents or directly license them.
Rather, they license their patents to a third party who then
turns around and re‐licenses again. And ultimately, 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?
To the extent the plaintiffs’ theory sounds in negligence,
and that by designing a door Owens‐Illinois opened itself up
to liability when workers produced the door, the theory fares
no better. The production of ball bearings involves working
with molten metal: this is a physical necessity, and readily
foreseeable. Yet we do not hold the patentee for “a process to
for this subsidy to their competitors, branded manufacturers were granted
extended patent terms.
10 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
create ball bearings” accountable for safety slips simply
because he or she patented or licensed a process that could
involve injury. The patent system is designed to facilitate
innovation, to disseminate useful technology far and wide. It
is not a substitute for a worker’s compensation system.
However described, the plaintiff’s theory of liability is, as
Owens‐Illinois notes, not supported by “any decision
anywhere.” In spite of this, plaintiffs have sought to keep
Owens‐Illinois a party to this litigation, even going so far as
to suggest, without evidence, that Owens‐Illinois itself
manufactured some of the asbestos cores contained in the fire
doors at issue. It gets worse. The record indicates that all
relevant claims against Owens‐Illinois were dismissed with
prejudice on a joint stipulation of the parties on June 16, 2015,
on the condition that Owens‐Illinois bear its own costs. And
yet, plaintiffs reraise these same claims on appeal, in clear
contravention of Fed. R. Civ. P. 41(a)(2) and the joint
stipulation. Chavez v. Ill. State Police, 251 F.3d 612, 654‐55 (7th
Cir. 2001) (“The case law is clear … that when a district court
grants voluntary dismissal[, under Rule 41] a plaintiff has
neither the reason nor the right to appeal the dismissal
because the plaintiff has received the relief it requested.”). 3
Counsel for Owens‐Illinois responds on the merits to these
arguments regarding liability, and offers only the most gentle
rebuke in their briefing on appeal. But after being haled into
3 We might speculate that this stipulation was an attempt to bring four
similarly situated plaintiffs (Pecher, Jacobs, Sydow, and Seehafer) within
the ambit of the August 22, 2014 district court order dismissing identical
claims. But when presented with a voluntary dismissal by the parties the
district court is in a very different situation than when presented with a
motion to dismiss for failure to state a claim.
Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380 11
court yet again on what appear to be claims both frivolous
and dismissed on a stipulation of the parties, one wonders if
counsel for Owens‐Illinois has resigned itself to endless
litigation. It should not. The district court orders dismissing
the claims against Owens‐Illinois are affirmed, and plaintiffs’
counsel must show cause why this portion of the appeal was
not frivolous under Rule 38.
III. Certificate of Compliance
At oral argument, we brought to the attention of plaintiff’s
counsel the non‐compliance of its briefing with Fed. R. App.
P. 32(a)(7) and our local rules. Specifically, we asked counsel
why the briefing was so lengthy and why citations were made
without spaces, in order to mask the true word count. Counsel
indicated that he had requested and been granted leave to
enlarge the type‐volume limitation to 16,500 words, but had
no explanation for the spacing. He had certified that the brief
contained 16,453 words, excluding the portions of the brief
exempted by Fed. R. App. P. 32(f). Our review of the brief is
that on an ordinary word processor it does appear to be just
under the word limit. When the citations are cleaned up,
however, the count is well over 17,000 words. As we advise in
our circuit brief filing checklist, counsel “must assure that
they count all words in the brief before certifying compliance
with Rule 32.” See also DeSilva v. DiLeonardi, 185 F.3d 815 (7th
Cir. 1999).
The filing error before us is not, however, the sort of
unintentional error made by differences in word processor
counting functions. It was undoubtedly deliberate. 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
12 Nos. 16‐1799, 16‐2376, 16‐2377, 16‐2378, 16‐2379, 16‐2380
all seventy‐seven pages of the primary brief. A practitioner
before this circuit can take one look at the briefing in this case
and observe that its bulk is out of the ordinary: no reasonable
attorney could have, in good conscience, certified compliance
with the type‐volume requirements.4

* * *

4 This is not even to mention the six additional CDs of sealed material
that snuck into the record on appeal, apparently in violation of a June 3,
2015, order of the district court and a confidentiality agreement executed
by the parties that same day.

Outcome: For the foregoing reasons, the decisions of the district
court below are AFFIRMED. Furthermore, the plaintiffs have
14 days to show cause why sanctions should not be imposed
for the failure to comply with the type‐volume limitations of
Rule 32, and to explain why the appeal of the claims involving
Owens‐Illinois was not frivolous under Rule 38.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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