Asbestos Case Analysis

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Because of the diverse citizenship of defendants in asbestos litigation, which frequently entails many defendants, forum selection is always an important consideration for parties.

Parties thus need to look at this decision, and evaluate whether Wisconsin state courts are a favorable jurisdiction to be in, relative to other courts.

Unfortunately, the court examined case law from very few other jurisdictions in reaching its own decision, and for those few where it did, it did not always characterize that case law correctly. In other instances, the cases cited by the court are not the best examples of clarity themselves.

For instance, the court cites two cases from the 11th Circuit as examples of cases in which courts have “made broad pronouncements of law in an attempt to simplify the causation issue.”

However, in one of those cases, Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir. 1985), the Eleventh Circuit expressly stated it would not create bright-line rules or make any broad pronouncements, but would “decide each on the narrow grounds that leads to a decision,” just as our court of appeals purported to do in the case at bar.

The Wisconsin Court of Appeals correctly rejected the 11th Circuit’s characterization of its own position, and recognized that the court did create a broad pronouncement — proof that an asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product is sufficient to survive summary judgment.

Meanwhile, the court effectively creates the exact same broad pronouncement of law as the Eleventh Circuit.

The problem with the court’s characterization of its own decision may stem from its failure to clearly distinguish between the two issues presented in this case: (1) did the product actually reach the user or consumer; and (2) if so, was it a substantial factor in causing the plaintiff’s damages.

The court thus cites Odun v. Celotex Corp., 764 F.2d 1486 (11th Cir. 1985), and Migues v. Fireboard Corp., 662 F.2d 1182 (5th Cir. 1981), in its discussion of the second issue, when the actual issues in those cases concerned the first.

As in the case at bar, a frequent issue in asbestos cases is what product did the defendant supply. A common defense is that, although the defendant made asbestos-containing products, and sold products that the plaintiff worked with, the product that the plaintiff actually worked with did not contain asbestos.

The litigation frequently occurs years later, as in this case, and there is scant evidence as to exactly what product of the defendant was used at the plaintiff’s workplace.
That was the issue in Migues, Odun, and is similar to the main issue in Zielinski’s case.

Serious treatment of this case should involve recognition of the obvious — Zielinski was a mason, whose job consisted of frequently installing new insulation and tearing out the old. If that insulation contained asbestos, it is eminently reasonable to create a presumption that it caused his mesothelioma.

While the court spent the bulk of its decision on this issue, there was relatively little dispute to be found in the defendant’s brief on appeal about it.

In its consideration of the real issue in dispute in the case — whether Firebrick actually sold Weber 48 to Ladish — the court’s discussion was extremely brief, although its holding is of enormous importance.

In this case, no witness testified with any real certainty that Ladish actually purchased and used the asbestos-containing product. One of the witnesses testified that its presence on the list only meant it “could have been used,” but agreed, “just because a product is in this list doesn’t mean it was used there.”

	Links Wisconsin Court of Appeals Related Article ‘Probably’ is enough to prove causation

The same witness testified, “Weber 48 rings a bell now. We probably bought it… (emphasis added).”

By holding that a single statement of “we probably bought it” is sufficient in a strict products liability action to survive summary judgment, the court is effectively also holding that it would constitute sufficient evidence to prove a manufacturer delivered a product and survive an appeal after judgment for the plaintiff, even if this was the extent of the evidence that the plaintiff presented at trial.

The court purported to decide this case “within the causation framework already in place.”

However, the court did not cite any prior precedent for its holding that, “we probably bought it,” is sufficient evidence for a jury to find that a “product … did reach the user or consumer.”

As such, this is a decision with extremely broad implications for strict product liability actions, regardless of how the court of appeals characterizes it.

– David Ziemer

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David Ziemer can be reached by email.