In Mohn v. CBS Corp. (2017AP861), the Court of Appeals District I’s per curiam decision upheld the constitutionality of the property improvements statute of repose (Wis. Stat. § 893.89); thus Sprinkmann Sons Corp. was not liable for the plaintiff’s asbestos exposure.

Mary Ellen Mohn’s husband was exposed to asbestos while working at a construction project that ended in the late 1960s. Mohn was diagnosed with cancer in 2009, and Mary Ellen subsequently filed action against manufacturers and suppliers involved in the construction, including Sprinkmann, in 2012.

Wisconsin’s statute of repose for property improvements bars liability for persons involved in property improvements after ten years (reduced to seven years by 2017 Wis. Act 235). The statute of repose does not protect manufacturers of defective materials and property owners negligent in subsequent maintenance of improvements.

Mohn argued that Sprinkmann could be considered a manufacturer of defective material because it supplied defective, asbestos-containing insulation during the construction project. However, the appeals court rejected this argument, stating that Mohn’s argument would conflate manufacturers and other persons involved in property improvements, ultimately negating the protective purpose of the statute of repose. Sprinkmann furnished but did not manufacture the asbestos-containing insulation.

Mohn further argued that the statute of repose itself is unconstitutional as-applied to asbestos exposure claims because it violates rights to remedy and equal protection. The appeals court upheld the constitutionality of the law because the statute extinguishes the entire “right by which the litigant seeks a remedy.” Furthermore, the statute does not violate equal protection rights because the distinction of a class of asbestos claims that take longer to manifest serves a “legitimate governmental interest.”

In Shawn M. Wallace v. Richard R. Woodford (2016AP2359), the Court of Appeals District III maintained that Central Mudracing Association and Chippewa Valley Antique Engine & Model Club were not negligent in a mud bog racing accident that injured plaintiff Shawn Wallace.

The appeals court denied Wallace’s argument that the court should have included evidence of a prior accident at the track. The 2005 accident was properly excluded because the circumstances were substantially different from the accident at issue, Central Mudracing took remedial action after the first accident, and the jury could draw the same inferences with or without knowing of the 2005 accident.

Wallace further argued that Central Mudracing and Chippewa Valley made improper closing arguments that indicated no previous accidents had occurred on the track. However, the appeals court held that the defense attorneys’ claims implied no similar accident had previously occurred. The closing arguments were consistent with the court’s decision to exclude the 2005 accident evidence based on dissimilarities in the circumstances.

Finally, Wallace argued the court should have included a report from an accident reconstruction specialist, but the appeals court upheld that the expert testimony failed to meet the admissibility criteria in Wis. Stat. § 907.02.

In Halderson v. Northern States Power Co. (2017AP2522), the Court of Appeals District III upheld that Northern States Power (NSP) was negligent but not liable for treble damages for stray voltage on the Halderson family’s dairy farm.

The Halderson’s filed suit against NSP alleging stray voltage caused injury to their dairy herd. The Haldseron’s claimed negligence and damages under Wis. Stat. § 196.64(1), which requires public utilities to pay treble damages for negligent actions performed “willfully, wantonly or recklessly.”

The appeals court upheld the jury’s negligence verdict against NSP because NSP did not perform basic tests specified by the Public Service Commission (PSC) nor additional tests after the initial ones failed to reveal stray voltage. Furthermore, the court found NSP negligent because it did not conduct measurements in proper locations and did not initially inform the Haldersons of their right to request neutral isolation to mitigate the effects of the stray voltage on their cows.

NSP argued that the Halderson’s negligence claim was insufficient because it relied on testing beyond PSC mandates. However, the appeals court rejected this argument because Wis. Stat. § 196.857(1g)(b) does not prohibit public utilities from using testing procedures beyond those standardized by PSC, and PSC’s stray voltage Docket 106 mandates that utilities should pursue additional tests when animals exhibit stray voltage symptoms.

Although the court ruled NSP negligent, there was no clear and convincing evidence that NSP acted “willfully, wantonly or recklessly” as required for treble damages. The court upheld the circuit court judge’s directed verdict reversing the jury’s $4.5 million treble damages award to the Haldersons under Wis. Stat. § 196.64(1).

On appeal, NSP also raised objections to the jury instructions on finding negligence based on violation of a safety statute. NSP said the instructions misinterpreted PSC dockets as safety statutes, “cherry-picked” only docket provisions favorable to the Haldersons, and did not accurately reflect the dockets’ mandates. The appeals court held that NSP forfeited its right to object to the jury instructions during the circuit court trial.

The appeals court also denied NSP’s request for a new trial based on the fact that the Halderson’s attorney failed to disclose a familial relationship to one of the jurors.