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Pecher v. Owens-Illinois

United States Court of Appeals, Seventh Circuit

June 6, 2017

Janet Pecher, Individually and as Special Administrator for the Estate of Urban Pecher, Deceased, et al., Plaintiffs-Appellants,
v.
Owens-Illinois, inc., et al., Defendants-Appellees.

          Dated February 16, 2017

         Appeals from the United States District Court for the Western District of Wisconsin. Nos. 3:14-cv-00147, 3:12-cv-00899, 3:14-cv-00186, 3:14-cv-00219, 3:14-cv-00286 & 3:14-cv-00161 - William M. Conley, Chief Judge.

          Before Flaum, Manion, and Kanne, Circuit Judges.

          Manion, Circuit Judge.

         The six cases consolidated on appeal all involve claims related to asbestos exposure over 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 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.

         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 ...


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