Wrongful Death and Survival in Asbestos Cases

Decisions in our library in which the court ruled on wrongful death and survival actions: 760 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Wisconsin

• Suoja v. Owens-Illinois, Inc. (2015). Objections to a plaintiff's status as the estate's special administrator and to the claim's mootness under state-law requirements are not jurisdictional and can be forfeited if not timely raised. A settlement of an earlier case does not "determine" an issue, so it cannot support issue preclusion under Wisconsin law.
• Sydow v. Weyerhaeuser Company (2015). Rule 25(a) no longer requires dismissal with prejudice when substitution is late, and leave to amend under Rule 15(a) is granted absent undue delay, bad faith, repeated failure to cure, or prejudice.
• Anderson v. Proctor & Gamble Paper Products Co. (2013). Under Wisconsin's safe place statute, a premises owner owes a heightened statutory duty to employees of independent contractors, separate from the common-law rule in Tatera. The construction statute of repose does not apply to damages sustained before April 29, 2004, and that date turns on when the injury was sustained, not when the claim accrued.
• Anderson v. the Proctor & Gamble Paper Products Company (2013). Wisconsin's safe place statute imposes a heightened duty on premises owners toward frequenters, including an independent contractor's employees, which does not require proof of an affirmative act of negligence. The construction statute of repose does not bar the claim where the damages were sustained before April 29, 2004.
• Viola v. Wisconsin Elec. Power Co. (2013). Airborne asbestos dust released during regular maintenance and repair work at a premises can be an unsafe condition associated with the structure under the Safe Place statute, not merely a negligent act of operation, when the injured worker did not negligently cause it.
• Delsart v. Albany Felt Company, Inc. (3rd District, 2012). When leave to amend is sought after summary judgment, there is no presumption favoring amendment; the movant must give a reason sufficient to overcome the value of finality of judgment, and a court may correct a manifest error of law by reconsidering its earlier use of the 'freely given' standard.
• Risse v. Building Services Industrial Supply, Inc. (1st District, 2012). To survive summary judgment, a plaintiff must produce evidence showing the worker was probably exposed to the defendant's asbestos-containing product and that the exposure was a substantial factor in the illness; evidence leaving exposure to speculation or conjecture is not enough.
• Tatera v. FMC Corp. (2010). A principal employer is not liable in tort for injuries to an independent contractor's employee doing the contracted work unless it committed an affirmative act of negligence or the work was extrahazardous. A failure to warn is an omission, and machining asbestos-containing friction disks is not extrahazardous because precautions can reduce the risk.
• International Paper Co. v. Labour & Indus. Rev. Com'n (2001). Under the statutes in effect in 1983, the twelve-year limit for a dependent's death benefit claim runs from the worker's death, not the injury. The earlier Kohler and Weissgerber decisions no longer control because the statute they relied on was amended.
• Sopha v. Owens-Corning Fiberglas Corp. (1999). A diagnosis of a non-malignant asbestos-related condition does not start the statute of limitations for a later diagnosed, distinct malignant asbestos-related condition. Claim preclusion also does not bar the second action, because asbestos cases present a special circumstance justifying an exception.