Wisconsin Court Agrees Tatera Can Sue

On Tuesday, May 12, a Wisconsin appeals court reversed its 2007 decision and ruled that the widow of a man who died from working with asbestos-laden brake parts can sue the company that supplied the parts.

In the case of Vicki Tatera of Greenfield, Wisconsin versus FMC Corp. a reseller of aftermarket automotive parts, the District 1 Court of Appeals said that Tatera can, in fact, sue FMC, even though prima facie evidence of strict liability does not exist.

According to court documents, Walter was employed at B&M Machine of Racine from 1963 through 1964, and again from 1967 through 1993. While there, he worked with friction brake materials, which involved grinding asbestos-laden brake linings down the right shape and size. In his suit originally filed in 2004, Tatera said that this grinding process created large amounts of dust-containing asbestos, which would thicken the air in the immediate area of his workstation and eventually deposit itself all over the shop.

The linings were manufactured by Stearns Company, a maker of industrial brakes and clutch components in Milwaukee since 1917. In 1967, FMC Corp. took over Stearns operations, not as a manufacturer but as a wholesaler, importing the parts and sending them to B&M to be machined.

According to Tatera, FMC sent over 18,000 friction lining parts to B&M over the course of his employment, and these were returned to FMC to be assembled into the final brake system, which was then sold to firms who installed them in automobiles.

Walter died from mesothelioma in 2004, the same year in which he filed his suit, and his widow, Vicki, continued the suit as a survivor, only to find charges against FMC dismissed in 2006 by Judge Claire Fiorenza - a dismissal upheld by Judge Timothy G. Dugan in September of 2007.

At that time, Vicki charged that FMC was negligent in that it "knew of the danger, had a duty to warn Walter of the dangers associated with asbestos, and the failure to warn was a direct cause of the injuries suffered". It was her contention that FMC should be held strictly liable for her husband's injuries on the basis that it "manufactured, supplied or installed a product that was unreasonably dangerous", and further failed to warn or provide safe handling instructions for said product.

FMC Corp. argued that it owed no duty to Mr. Tatera, who as an employee of an independent contractor should have looked to his employer, B&M, for redress of his injuries. B&M was founded and owned by Walter Tatera's father.

The court found for FMC, and even in its recent reversal reiterated that Tatera had not presented a prima facie case for strict liability. However, it concluded, Tatera had presented a prima facie case for negligence, and therefore concluded that further proceedings were warranted.

In addition to FMC Corp., Tatera is suing the Kelsey-Hayes Company, United Healthcare and American Medical Security. Kelsey-Hayes, formerly a major supplier of wheels, brakes, and other components to the auto industry, was acquired by London-based LucasVarity PLC in 1996. United Healthcare is an operating division of UnitedHealth Group, the largest single health carrier in the United States. American Medical Security is an insurance provider headquartered in Green Bay, Wisconsin.

In its ruling, the court may have inadvertently opened the door for more former cases denied on strict liability which can now be reinstituted under the umbrella of negligence. If so, the ruling represents a major victory for mesothelioma victims, and their survivors, who have been turned away be courts overwhelmed with asbestos cases in recent years.

Sources: Forbes, United Healthcare, and the Wisconsin Courts website.

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