In this federal court case, the decedent, Charles Nuutinen, is alleged to have been exposed to asbestos while working as a pipefitter from 1959 through 1996 at various jobsites in Wisconsin, including the Point Beach Nuclear Power Station. The defendant, CBS, the entity responsible for turbine manufacturer Westinghouse Electric Corporation, moved for summary judgment on the Wisconsin statute of repose and gasket manufacturer John Crane moved for lack of product ID. The court denied CBS’ motion, but granted Crane’s motion.

CBS argued, and the plaintiff agreed, that Westinghouse’s construction of the Point Beach turbines was an improvement to real property under the statute of repose. However, many of the plaintiff’s claims were regarding the decedent’s maintenance work at the facility. Based on those claims, the court denied CBS’ motion, citing the case of Sprinkmann Sons Corp., 860 N.W.2d 308, 315 (Wis. Ct. App. 2015) that held, “Daily repairs are not improvement to real property as that phrase is used in the statute of repose.” The court also found CBS’ argument for partial summary judgment on the plaintiff’s construction-based claims unpersuasive. CBS claimed that the “manufacturer or producer” exception to the statute was inapplicable because Westinghouse was not in the business of selling or supplying insulation for use anywhere, having only provided insulation for particular turbine construction projects. The court pointed out that CBS was relying on old language from an earlier version of the statute and that the current version “clearly excepts claims based on a material provider’s prior conduct of designing or manufacturing the material in question, even if the material was designed for a specific project.” As the court subsequently held: “Here, the alleged defect is that the insulation material produced by Westinghouse releases asbestos fibers when removed or installed. Westinghouse had the ability to change the defective design, and the insulation material remained defective while the turbines were in use. Thus, the plaintiff’s claim is not barred by the construction statute of repose.”

Crane moved to dismiss the action, claiming that the plaintiff had produced no evidence to support a claim against it. The plaintiff’s only argument was that the motion was untimely, but the prior MDL court order required the plaintiff to identify each product alleged to have caused or contributed to the plaintiff’s asbestos-related illness, and which defendants were liable for the products. The court converted the motion to dismiss to one for summary judgment and then granted the motion. In its decision the court relied on the case of Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487 (7th Cir. 2007) that stated,  “A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.”

There were various other motions in limine brought by CBS and the plaintiff that can be reviewed in the full decision below.

Read the full decision here.

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• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
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