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Employment Blog

Federal Court Applies Worker’s Compensation Exclusive Remedy to Asbestos Secondary Exposure Lawsuit

Authored by Russell W. Wilson
Posted on April 20, 2015
Filed under Employment

Plaintiffs in asbestos personal injury and wrongful death lawsuits often attempt to circumvent the exclusive remedy of worker’s compensation. The federal district court for the Western District of Wisconsin has recently applied Wisconsin’s exclusive remedy provision to dismiss a Wisconsin employer from an asbestos lawsuit brought by an employee. The case is Boyer v. Weyerhauser Company, et al., 39 F. Supp.3d 1036 (issued Aug. 22, 2014; reconsideration in part Nov. 4, 2014). 

Milton Boyer’s complaint alleged that in 1973 he began work for Weyerhauser at its Marshfield plant where asbestos fireproofing products were manufactured and products containing asbestos were used in the manufacturing process. The complaint was drafted so as to circumvent Wisconsin’s exclusive remedy provision of worker’s compensation. For example, the complaint alleged that asbestos fibers reached Mr. Boyer’s home and auto, as well as the plant’s lunchroom and other locations where no work-related activities were conducted. The complaint alleged that the fibers were transported from the production area on worker clothing, personal effects, skin, and hair.

Weyerhauser moved to dismiss the complaint on the theory that the allegations of exposure to asbestos fibers outside the plant manufacturing area could not overcome the fundamental gist of the complaint:  that exposure to asbestos fibers occurred in the course of employment and arising out of employment. The court ruled in favor of Weyerhauser and dismissed Boyer’s complaint as to Weyerhauser with prejudice. In its analysis the court summarily rejected the “dual persona” exception to the defense of exclusive remedy. Rather, the court found that the complaint clearly alleged that Boyer’s exposure to asbestos fibers occurred while in the course of his employment (i.e. the time, place, and circumstances of employment) and that the exposure arose out of his employment under the zone of special danger doctrine (i.e. the causal origin of the injury).

The court relied on established Wisconsin case law, but it also reviewed case law outside of Wisconsin, notably Silkwood v. Kerr-Magee Corp., 667 F.2d 908 (10th Cir.1981), rev’d on other grounds, 464 U.S. 238 (1984). In that case an employee at the defendant’s nuclear fuel processing plant won a judgment at the district court level for radiation from plutonium found at her apartment. The Tenth Circuit Court of Appeals, however, applied Oklahoma’s exclusive remedy provision of worker’s compensation, noting that all of the plutonium to which the employee was exposed originated from her place of employment.

Although the Boyer decision of the federal court in the Western District of Wisconsin is not binding (i.e., precedential) in Wisconsin state courts, the decision is highly persuasive as it is based on well-settled Wisconsin law. This decision might be persuasive in cases brought in jurisdictions outside Wisconsin depending upon the specific allegations. Click here for a link to a copy of the Boyer decision.