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From Products Liability Law Daily, August 25, 2014

Licensor of fireproof door patent not liable for manufacturing worker’s mesothelioma

By John W. Scanlan, J.D.

Negligence and strict liability claims brought by a former worker of a plant that had manufactured asbestos fireproofing products against a company that had licensed to the manufacturer a design to manufacture fireproof doors using asbestos-containing cores were dismissed by the U.S. District Court for the Western District of Wisconsin. The court also dismissed claims against his former employer because they were barred by the state Workers’ Compensation Act (Boyer. v. Weyerhaeuser Co., August 22, 2014, Conley, W.).

Background. In 1973, Milton Boyer began working at a door manufacturing plant in which asbestos-containing products were used to manufacture asbestos fireproofing products. Weyerhaeuser Company formerly owned the plant; 3M Company designed, manufactured, and sold masks used for personal breathing protection there; and Owens-Illinois, Inc., sold licenses for a patent to manufacture fireproof doors that in practice used asbestos-containing cores and also designed, manufactured, and sold asbestos products such as a fireproof door core under the brand “Kaylo.” After Boyer developed malignant mesothelioma, he and his wife brought negligence and products liability claims against Weyerhaeuser, 3M, and Owens-Illinois (along with other claims against Metropolitan Life Insurance Company). Boyer alleged that he was exposed to asbestos from inhaling airborne fibers released by the plant as a result of his employment at the plant; from fibers contaminating his home, auto, the lunchroom, and other locations where non-work activities were performed; from fibers that contaminated the community; and transport of fibers to other locations through worker clothing, personal effects, hair and skin, and by collecting, removing, and dumping asbestos waste. Owens-Illinois and Weyerhaeuser each moved for dismissal of the claims against it.

Product licensing. Negligence and strict liability claims against Owens-Illinois based on its licensing to the manufacturer of the patent for a fireproof door were dismissed. The court first stated that, as a matter of law, the worker could not state a negligence claim based only on Owens-Illinois’ licensing of a patent. According to the court, this decision was consistent with a line of cases rejecting products liability claims based on patent licensing alone, as courts have consistently rejected negligence claims against a defendant which had no role in the manufacturing, marketing, or use of the product because the injury was not foreseeable to the defendant.

Similarly, Owens-Illinois could not be held strictly liable for the worker’s mesothelioma. Strict liability may be imposed by Wisconsin law only upon a defendant that was “engaged in the business” of selling the alleged defective product, which includes manufacturers, distributors, and sellers. As a patent licensor, Owens-Illinois was not a “seller” and there was no “product” that it sold. The worker also alleged that the company designed, manufactured, and sold asbestos products, including Kaylo fireproof door cores, but he did not allege that his former employer bought or used Kaylo door cores in manufacturing its fireproof doors. The court gave the worker 30 days to file an amended complaint “on the unlikely chance” that he can allege that his employer had used Kaylo door cores while he worked there.

Worker’s compensation. The claims against Weyerhaeuser, as the worker’s employer, were dismissed with prejudice because they were barred under the Workers’ Compensation Act. The worker’s injury was sustained while he was performing service growing out of and incidental to his employment. Although he asserted in his opposition brief that asbestos fiber exposures occurred outside the workplace, the allegations in his complaint contradicted that assertion; furthermore, any exposure outside his work was substantially due to his actions at work that he then transported on his clothes and his body to other locations. His theory that inhalation of asbestos fibers did not occur until they were transported off the premises was “implausible” because he had alleged that he was exposed to asbestos during his employment, the court said.

Similar case. A similar case (Prust v. Weyerhaeuser Company) brought by Virginia Prust against the same defendants related to her late husband Valmore’s lung cancer was dismissed by the same court for the same reasons. The court rejected the defendants’ claim preclusion and statute of limitations arguments, and also gave Prust 30 days to amend her claim against Owens-Illinois as the manufacturer of Kaylo door cores if, as with Boyer’s case, it could be brought in good faith.

The case number is 14-cv-286-wmc.

Attorneys: SaraEllen M. Hutchison (Law Office of SaraEllen Hutchison PLLC) for Amanda Knapp Ellis. Kathleen A. Nelson (Lewis Brisbois Bisgaard & Smith LLP) for Enhanced Recovery Co. LLC.

Companies: Enhanced Recovery Co. LLC

MainStory: TopStory DesignManufacturingNews AsbestosNews WisconsinNews

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