Preview:

2003  WI  App  85
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.:                                                                 02-1888
†Petition for Review Filed.
Complete Title of Case:
MARY A. ZIELINSKI AND GEORGIANNA MEYER,
AS SPECIAL ADMINISTRATOR,
ESTATE OF GEORGE F. ZIELINSKI, DECEASED,
PLAINTIFFS-APPELLANTS,
V.
A.P. GREEN INDUSTRIES, INC.,
DEFENDANT,
POWERS HOLDINGS, INC., AND
FIREBRICK ENGINEERS, INC.,
DEFENDANTS-RESPONDENTS, †
MILWAUKEE CHAPLET & MFG. CO., INC.,
DEFENDANT.
Opinion Filed:                                                            March 18, 2003
                                                                          Submitted on Briefs:     February 4, 2003
Oral Argument:                                                            ---
JUDGES:                                                                   Wedemeyer, P.J., Schudson and Curley, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS:                                                                On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Ronald G. Tays of Law Office of Ronald G. Tays, of Milwaukee.




Respondent
ATTORNEYS:   On behalf of the defendants-respondents, the cause was submitted on the
             brief of Eric D. Carlson of Crivello, Carlson & Mentkowski, S.C., of
Milwaukee.




COURT OF APPEALS                                                            2003  WI  App  85
DECISION
DATED AND FILED                                                             NOTICE
                                                                            This opinion is subject to further editing.   If
                                                                            published, the official version will appear in
March 18, 2003                                                              the bound volume of the Official Reports.
Cornelia G. Clark                                                           A party may file with the Supreme Court a
Clerk of Court of Appeals                                                   petition to review an adverse decision by the
                                                                            Court of Appeals.   See WIS. STAT. § 808.10
                                                                            and RULE 809.62.
                                                                            Cir. Ct. No.   01CV5784
Appeal No.                                                        02-1888
STATE OF WISCONSIN                                                          IN COURT OF APPEALS
MARY A. ZIELINSKI AND GEORGIANNA MEYER,
AS SPECIAL ADMINISTRATOR,
ESTATE OF GEORGE F. ZIELINSKI, DECEASED,
PLAINTIFFS-APPELLANTS,
V.
A.P. GREEN INDUSTRIES, INC.,
DEFENDANT,
POWERS HOLDINGS, INC., AND
FIREBRICK ENGINEERS, INC.,
DEFENDANTS-RESPONDENTS,
MILWAUKEE CHAPLET & MFG. CO., INC.,
DEFENDANT.
APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge.  Reversed and cause remanded.




No. 02-1888
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1                                                                                               CURLEY, J.      The plaintiffs, Mary A. Zielinski and her daughter,
Georgiana Meyer, as the special administrator of the estate of George F. Zielinski
(Estate),  appeal  from  the  trial  court’s  order  granting  summary  judgment  and
dismissing  their  negligence  and  products  liability  claims  against  Firebrick
Engineers, Inc. and Powers Holdings, Inc. (Firebrick).1   The plaintiffs contend:
(1) they produced sufficient evidence to establish a genuine issue of material fact
as to whether Firebrick sold or supplied asbestos-containing products to the Ladish
Company; and (2) they produced sufficient evidence to establish a genuine issue
of material fact as to whether George Zielinski, their husband and father, was
exposed to asbestos-containing products supplied by Firebrick during the course of
his employment at Ladish.   Because evidence in the record creates a genuine issue
of material fact with respect to each of these issues, we conclude that summary
judgment was inappropriate.   Accordingly, the order granting summary judgment
to Firebrick is reversed and the cause is remanded.
I. BACKGROUND.
¶2                                                                                               George Zielinski was employed at the Ladish Company from 1947
to 1951, from 1953 to 1954, and from 1957 to 1963, during which Ladish was an
industrial metal works foundry, which primarily manufactured metal components
through casting and forging.   Zielinski began his work at Ladish as a mason’s
helper, and after an apprenticeship, became a mason.   His main duties included the
maintenance and repair of foundry furnaces.   As part of this work, Zielinski would
1  Powers Holding, Inc., is a successor to Firebrick Engineers, Inc.  The parties, including
defendants-respondents, use the names of the companies interchangeably.   Therefore, we assume
that no issues regarding successor liability are present.
2




No. 02-1888
tear out old refractory and insulating materials from the foundry furnaces and
rebuild the furnaces with new materials.2    Ladish operated over  200 furnaces
during the times of Zielinski’s employment.   Therefore, these furnaces were in
constant need of repair and replacement of the refractory and insulating materials.
It is alleged by the plaintiffs that many of the materials used by Zielinski in this
process contained asbestos.
¶3                                                                                                   On  approximately  April  15,  1999,  Zielinski  was  diagnosed  with
mesothelioma.3   He died a month after the diagnosis, on May 14, 1999.   On May
11, 1999, Zielinski and his wife, Mary, had filed an action against various asbestos
suppliers  and  manufacturers.    On  June                                                           6,                                                                       2001,  however,  that  lawsuit  was
dismissed.   On June 26, 2001, Mary Zielinski and her daughter, Georgiana Meyer,
as the special administrator of her father’s estate, filed a second lawsuit naming
four  defendants,  including  Firebrick.     The  defendants  moved  for  summary
judgment.
¶4                                                                                                   With  respect  to  Firebrick,  the  trial  court  found  the  evidence
insufficient to establish that Firebrick sold or supplied any asbestos-containing
products to Ladish.   Additionally, the trial court found the evidence insufficient to
establish  that Zielinski had  been exposed  to any asbestos-containing products
supplied  by  Firebrick.    On  April                                                                19,                                                                      2002,  the  trial  court  granted  summary
2  A refractory material is capable of resisting high temperatures.   See WEBSTER’S THIRD
NEW INT’L DICTIONARY, 1909 (1983).   These refractory materials are used to line the melting
furnaces; the insulation materials are then used to reduce heat loss and keep the furnaces
operating at optimum efficiency.  See http://www.industrialheating.com.  Because one of the most
common maintenance problems encountered in any given foundry is the repair and replacement
of the refractory and insulation materials used to line the furnaces, quick repair and replacement
of these materials is a key element in maintaining adequate productivity in foundry operations
and reducing furnace downtime.  See id.
3  Mesothelioma is a cancer resulting from over-exposure to asbestos-related products.
See http://www.mesoinfo.com/about/mesothelioma.html.
3




No. 02-1888
judgment and dismissed all claims against each of the defendants.   The plaintiffs
only appeal from the trial court’s dismissal of Firebrick.
II. ANALYSIS.
¶5                                                                                      This appeal involves issues decided pursuant to summary judgment.
We review a trial court’s grant of summary judgment de novo, owing no deference
to the trial court’s decision.   Deminsky v. Arlington Plastics Mach., 2001 WI App
287,  ¶8,  249 Wis.  2d  441,  638 N.W.2d  331, cert. granted,  2002 WI  23,  250
Wis. 2d 555, 643 N.W.2d 93, aff’d, 2003 WI 15, 259 Wis. 2d 587, 657 N.W.2d
411.   Summary judgment is only appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.   M &
I First Nat’l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 497, 536
N.W.2d 175 (Ct. App. 1995).   Thus, we will reverse a decision granting summary
judgment  if  either                                                                    (1)  the  trial  court  incorrectly  decided  legal  issues,  or    (2)
material facts are in dispute.   See Deminsky, 2001 WI App 287 at ¶9.
¶6                                                                                      Our summary judgment methodology is often repeated.   We must
first determine whether the complaint states a claim.    Green Spring Farms v.
Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).   If the plaintiff has stated
a claim and the pleadings show the existence of factual issues, then we must
examine whether the moving party has presented a defense that would defeat the
claim.   Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct.
App. 1983).   If the defendant has made a prima facie case for summary judgment,
the   court   examines   the   pleadings,   affidavits,   depositions,   answers   to
interrogatories, and admissions on file to determine whether a genuine issue exists
as to any material fact, or whether reasonable conflicting inferences may be drawn
from undisputed facts, therefore requiring a  trial.    Green Spring Farms,  136
4




No. 02-1888
Wis. 2d at 315.   Thus, summary judgment is only appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.”   WIS. STAT.
RULE 802.08(2) (2001-02).
¶7                                                                                        In  determining whether  material  facts are  at issue,  we  must ask
whether “only one reasonable inference may be drawn from the undisputed facts.”
Groom v. Prof’ls Ins. Co.,  179 Wis.  2d  241,  249,  507 N.W.2d  121  (Ct. App.
1993).   If so, “the drawing of that inference is a question of law, and an appellate
court may draw it.”   Id.   However, if review of the record reveals that disputed
material  facts  exist  or  undisputed  material  facts  exist  from  which  reasonable
alternative inferences may be drawn, then summary judgment is inappropriate.
Grams v. Boss, 97 Wis. 2d 332, 338, 294 N.W.2d 473 (1980).
¶8                                                                                        There are five conditions necessary to recovery under strict products
liability:
(1) that the product was in defective condition when it left
the  possession  or  control  of  the  seller,                                            (2)  that  it  was
unreasonably dangerous to the user or consumer, (3) that
the defect was a cause (a substantial factor) of the plaintiff's
injuries  or  damages,                                                                    (4)  that  the  seller  engaged  in  the
business of selling such product or, put negatively, that this
is not an isolated or infrequent transaction not related to the
principal business of the seller, and (5) that the product was
one which the seller expected to and did reach the user or
consumer without substantial change in the condition it was
when he sold it.
Cook v. Gran-Aire, Inc., 182 Wis. 2d 330, 335, 513 N.W.2d 652 (Ct. App. 1994)
(emphasis in original) (citing Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d
55 (1967)).
5




No. 02-1888
¶9                                                                                         In  the  instant  case,  Firebrick  argues:               “The  plaintiffs   …  have
presented  no  evidence  that                                                              [Firebrick]  sold  or  distributed  asbestos-containing
products to Ladish Company.”   Therefore, they challenge parts of the first and
fifth requirements of a strict products liability claim, i.e., that their products “left
the possession or control of the seller” and  “did reach the user or consumer.”
However, Dean Beaumont, who worked at Ladish for twenty-seven years as the
lead man on the first shift and later as a supervisor for the masons and masons’
helpers,  and  Matthew  Bridich,  an  engineer,  rebut  Firebrick’s  first                 challenge.
Beaumont stated in a deposition taken on April 3, 2001:
Q:   You brought with you some documents today….   Some
of  those  documents  look  like  vendor  lists,  approved
materials from Ladish; is that right?
A:   Right.
Q:   Did you take those with you when you left Ladish or
did you get them later?
A:   Before.
….
Q:   And why did you have those when you left Ladish?
A:   For my own personal use.
Q:   What personal use is that?
A:   I could come down with something.
Q:   So  in  case  you  developed  a  disease,  you  wanted  to
know what products were there?
A:   Yes.
….
Q:   ….    And what I want to find out is if there are any
products that aren’t on this list that you can recall using at
Ladish.   Is there any way for you to do that?
A:   No.
6




No. 02-1888
Q:   So the best source of what products could have been
used at Ladish, to your knowledge, is what’s … in the list;
right?
A:   Yes.
Q:   And just because a product is in this list doesn’t mean it
was used there; right?
A:   Yes.
Q:   These are products that someone could purchase to use
there; right?
¶10    The  vendor  lists  referred  to  by  Beaumont  make  two  specific
references to products available to Ladish from Firebrick.   The “1955 MASTER”
vendor list states:
Manufacturer                                                                     Brand Name   Vendor
….
5. Weber                                                                         Weber “48”   Firebrick Engineers
And the “1958 MASTER” vendor list states:
Manufacturer                                                                     Brand Name   Vendor
….
3. Forty-Eight Insulations                                                       Weber 48     Firebrick Engineers
Corp.
¶11    Matthew Bridich, who worked as an engineer at Ladish from 1953 to
1992, also gave deposition testimony regarding the vendor lists:
Q:   Now, these lists, vendor lists, approved lists, are meant
to contain all the materials approved for use in the furnaces
at Ladish; is that right?
A:   That’s correct.
Q:   So if you needed to purchase something, you would go
to that list and look to see, here are “X” number of types of
block insulation we can purchase, and try to get what’s
available, the right price, et cetera, I would assume; right?
7




No. 02-1888
A:   That is correct.
Q:   So purchasing knew what products they could order?
A:   That’s correct.   And we’re speaking specifically about
masonry materials now….
….
Q:   The products that a mason’s helper at Ladish would be
using,  those  products,  brand  names  or  manufacturers,
would be found in these lists here; right?
A:   That is correct.
Q:   They wouldn’t be using products that aren’t in these
lists; right?
A:   They would not.   I am hung up on the word “using.”
Q:   Working with?
A:   Yes
Q:   Installing?
A:   Mason helpers might start out just on rip-out, teardown.
Q:   But these are mason type of products?
A:   That is correct.
¶12                                                             Finally, while going over the vendor lists, Beaumont also stated that
Ladish had probably purchased Weber 48:
Q:   “Forty Eight Insulation Corporation”?
A:   Yes, right, that’s another one.
Q:   You got block insulation from them?
A:   Yeah, sure.
Q:   And you have “Weber 48”?
A:   Yeah.
Q:   What’s Weber 48?
8




No. 02-1888
A:   Weber 48 rings a bell now. We probably bought it -
That was their listing for the block we bought from them
that said Weber 48 on the box or the bag….
¶13    Thus,  we  conclude  that  the  plaintiffs  have  presented  evidence,
through the vendor lists and the deposition testimony of Beaumont and Bridich,
that  creates  a  genuine  issue  of  material  fact  as  to  whether  Firebrick  sold  or
supplied asbestos-containing products, namely Weber 48, an insulating block and
cement, to the Ladish Company.
¶14    Alternatively, Firebrick argues that the plaintiffs failed to “prove”
that their product was a substantial factor in producing Zielinski’s injury.    In
support of this conclusion, Firebrick claims:                                                “There has been no testimony that
George  Zielinski  worked  with  or  around  a  product                                      [d]istributed  or  sold  by
[Firebrick].    A                                                                            [p]laintiff  must  show  he  or  she  was  exposed  to  defendant’s
asbestos-containing  product  by  working  with  the  product  or  by  working  in
proximity to worker’s using that product.”
¶15    Firebrick  misstates  the  plaintiffs’  burden.                                       “[T]he  inquiry  on
summary judgment is not to decide the questions of fact raised by the affidavits
and  other  proof,  but  to  decide  whether  such  questions  exist  and  should  be
submitted to the trier of the facts.”   Frewe v. Dupons Const. Co., 37 Wis. 2d 676,
681, 155 N.W.2d 595 (1968).   Accordingly, “[w]e have often said that the power
of the courts under the summary-judgment statute  … is drastic and should be
exercised only when it is plain that there is no substantial issue of fact or of
permissible inference from undisputed facts to be tried.”   Id. at 681-82.
¶16    With respect to causation and summary judgment, our supreme court
has held:
9




No. 02-1888
The test of cause in Wisconsin is whether the defendant’s
negligence was a substantial factor in contributing to the
result.  The  phrase                                                                       “substantial  factor”  denotes  that  the
defendant’s conduct has such an effect in producing the
harm as to lead the trier of fact, as a reasonable person, to
regard it as a cause, using that word in the popular sense.
Causation is a fact; the existence of causation frequently
is an inference to be drawn from the circumstances by the
trier of fact.
….
[If] there is no credible evidence upon which the trier of
fact can base a reasoned choice between … two possible
inferences, any finding of causation would be in the realm
of speculation and conjecture. “Speculation and conjecture
apply to a choice between liability and nonliability when
there is no reasonable basis in the evidence upon which a
choice of liability can be made.”                                                          “A mere possibility of
such causation is not enough; and when the matter remains
one of pure speculation or conjecture or the probabilities
are at best evenly balanced, it becomes the duty of the court
to direct a verdict for the defendant.”
Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 458-59,
460,  267  N.W.2d  652  (1978)  (citations omitted).    Therefore, we  must decide
whether Zielinski’s exposure to Firebrick’s products while working at Ladish is a
mere possibility, or whether the plaintiffs presented credible evidence from which
a reasonable person could infer that Zielinski was exposed to Firebrick’s products.
We  conclude  that there  was evidence  from which causation could have  been
reasonably inferred.
¶17    The widespread use of asbestos products and the debilitating effects
of  asbestos-related  diseases  have  resulted  in  a  flood  of  litigation  in  courts
throughout the nation.   See Blackston v. Shook & Fletcher Insulation Co., 764
F.2d  1480,  1481  (11th Cir.  1985).    Faced with such a problem, a number of
jurisdictions have established a bright-line test regarding causation in asbestos
litigation.   See, e.g., Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir. 1985)
10




No. 02-1888
(“Testimony of co-workers who can identify a plaintiff by name as having worked
with or around a particular defendant’s asbestos-containing products is substantial
evidence of exposure in asbestos cases.”); Blackston, 764 F.2d at 1481-82 (11th
Cir. 1985) (stating proof that a particular defendant’s asbestos-containing product
was used at the job site and that the plaintiff was in proximity to that product at the
time it was being used is sufficient to establish causation); Migues v. Fibreboard
Corp., 662 F.2d 1182, 1185 (5th Cir. 1981) (stating that testimony of co-workers
who can identify a plaintiff by name as having worked with or around a particular
defendant’s asbestos-containing products is substantial evidence of causation).
¶18    Generally,  courts  have  taken  one  of  two approaches  in  deciding
asbestos-related causation issues: (1) making broad pronouncements of law in an
attempt to simplify the causation issue as in the above-cited cases; or (2) narrowly
deciding each case on the facts presented within the causation framework already
in place.   While we find these bright-line tests useful in establishing important
factors to be considered within our pre-existing causation framework, we decline
to adopt a bright-line rule regarding causation for fear of over-simplifying such a
complex issue.   In the instant case, we decide the issue of causation based on the
totality of the circumstances surrounding the work of masons at Ladish and the
products  they  generally  used.    Thus,  we  must  determine  whether  Firebrick’s
product may have been a substantial factor in contributing to Zielinski’s injuries,
i.e., that the defendant’s product had such an effect in producing the harm as to
lead a reasonable person to regard it as a cause.  See Merco, 84 Wis. 2d at 458-59.
¶19    Robert Delbovo, who worked as a mason at Ladish from 1948 to
1991, gave the following deposition testimony:
11




No. 02-1888
Q:   Did you know George Zielinski?
A:   Yes.
….
Q:   [T]here’s a time period where you and Mr. Zielinski
worked on second shift?
A:   Oh, sure.   Yeah.
Q:   Do you know how long that was?
A:   Geez, I don’t know; maybe about four or five years.
….
Q:   ….    Now  at  least  as  I  understand  it,  there  are  two
different types of masons at Ladish.   There were refractory
masons and the masons that did the more non-refractory
work?
A:   No, no.   Masons were masons, and we all did the same
work.
….
Q:   And the masons were doing the refractory work on the
furnaces, right?
A:   We did the refractory work, we did mason work.   As far
as laying cement, we helped with the cement.    We built
buildings with cement blocks; we laid brick.
….
Q:   And did Mr. Zielinski do both of those type of jobs?
A:   Yeah, he did that.
¶20                                                                                    The plaintiffs have already established, in the words of Beaumont,
that Ladish “probably bought” Weber 48 from Firebrick.   Drawing the inference
most favorable to the plaintiffs from Delbovo’s deposition testimony, we also
conclude that a fact-finder might infer that Zielinski used this product in his work
as a mason at Ladish.    Thus, we conclude:                                            (1) the plaintiffs have presented
evidence that creates a genuine issue of material fact as to whether Firebrick sold
12




No. 02-1888
or supplied asbestos-containing products, namely Weber 48, to Ladish; and (2) the
plaintiffs have presented evidence that creates a genuine issue of material fact as
to whether Zielinski was exposed to asbestos containing products supplied by
Firebrick during the course of his employment at Ladish.
¶21    Based  upon  the  foregoing  reasons,  the  order  granting  summary
judgment to Firebrick is reversed and the cause is remanded.
By the Court.—Order reversed and cause remanded.
13

Download 5470.pdf

Wisconsin Law