Wisconsin Appeals Court Doubles Punitive Damages to $13.4M in Pabst Asbestos Death Suit

Background

Gerald Lorbiecki was a union steamfitter at multiple sites across Wisconsin, including Pabst, from the 1970s to the early 2000s. He was diagnosed with mesothelioma in 2017 and died in 2018 after filing a lawsuit against Pabst Brewing and multiple other defendants. Lorbiecki alleged negligence and violations of Wisconsin’s safe place statute which led to his exposure to asbestos while working. Asbestos is a known carcinogen that can cause mesothelioma, a rare and aggressive cancer of the lining of the lungs, abdomen, and chest. His widow, Carol Lorbiecki, on behalf of herself and the estate, was represented by Lynn R. Laufenberg and Melissa J. Prost of Gingras Thomsen & Wachs LLP and Jonathan Holder and Lisa Shirley of Dean Omar Branham Shirley LLP. Pabst was represented by David J. Turek and Stephen T. Trigg of Gass Turek LLC and Stephanie W. Weiner and Eric D. Rosser of HeplerBroom LLC.

The Trial

The trial took place in September and October 2021. Lorbiecki presented testimony from Dr. Arnold Brody, a cell biologist and experimental pathologist, and Dr. Edwin Holstein, a specialist in preventative medicine and occupational medicine who focuses on asbestos-related illnesses. The experts told the jury about the dangers of working with asbestos, the kind of symptoms mesothelioma causes, and the fatality rates from the disease. A delivery driver testified in a video deposition that he delivered asbestos materials to Pabst worksites weekly. One of Lorbiecki’s coworkers also testified about the way that pipefitters and steamfitters would have to clear out old asbestos insulation, causing dust to fly around.

The jury also heard evidence showing that Pabst knew of the presence of asbestos prior to Lorbiecki’s time at the various worksites and that the company was aware of the danger to workers of exposure to asbestos. An internal Pabst memo from 1971 detailed the asbestos-related safety precautions employers were required to take under OSHA regulations. A Pabst handbook from the same year included no reference to asbestos or any of the related safety precautions.

Pabst called Dr. Kimberly Hoppe-Parr, a certified industrial hygienist, as an expert witness. The company argued that it was impossible to prove that Lorbiecki had actually been exposed to asbestos on his worksites, or that he was not wearing protective gear.

$20 Million in Punitive Damages Reduced Based on Statute

The jury found that Pabst and four other companies’ negligence in violating the safe place statute caused Lorbecki’s mesothelioma. Three of the other companies were dismissed by stipulation. The jury apportioned Pabst 22% of the liability. One of the companies was a subcontractor with Pabst, and its 20% share of liability was imputed to Pabst on a post-trial motion. The jury awarded Lorbiecki almost $200,000 for medical and funeral expenses, $5 million for pain and suffering, and $1.35 million for his widow’s loss of companionship. The jury also awarded $20 million in punitive damages specifically against Pabst, for intentionally violating Lorbiecki’s right to a safe workplace.

Pabst moved to set aside the verdict and to reduce the punitive damages award. The circuit court did not set aside the verdict, but it did reduce the punitive damages award. The court based the reduction on the Wisconsin punitive damages statute, which limits the punitive damages to an amount that is double the compensatory damages award, or $200,000, whichever is greater. The circuit court calculated this amount based on Pabst’s 42% share of the compensatory damages. The total compensatory damages were $5.5 million, and Pabst’s share was $2.3 million. The court set punitive damages against Pabst at $4.6 million, for a total verdict against Pabst of $6.9 million.

The Appeal

Pabst appealed the verdict based on insufficiency of evidence, issues with jury instructions, allowing the jury to consider punitive damages, and more. Carol Lorbiecki and Lorbiecki’s estate cross-appealed the reduction in the punitive damages award.

In considering the appeal, the Court of Appeals found that the jury’s verdict reflected a reasonable inference of both negligent and intentional violations of the safe place statute based on the credible evidence presented, and ruled against Pabst on all counts.

On Lorbiecki’s appeal, the Court held that the circuit court had misapplied the Wisconsin punitive damages statute. The circuit court doubled Pabst’s portion of the compensatory damages. The Court of Appeals held that the punitive damages statute was not intended to limit punitive damages to the ratio of comparative fault, because compensatory damages and punitive damages have different purposes. The Court cited longstanding Wisconsin Supreme Court precedent explicitly declining to apportion punitive damages by comparative fault.

Based on this analysis of the statute, the Court of Appeals increased the amount of punitive damages to $11 million, double the total $5.5 million in compensatory damages. The total award, including Pabst’s 42% share of the compensatory damages, is now $13.4 million.

Takeaways for Attorneys

Asbestos-related cases continue to be a huge source of litigation nationwide, including multi-district litigation and class actions. Due to the length of exposure and the severity of asbestos-related illnesses, many of these cases are litigated on behalf of estates and survivors. While many of these cases settle, Lorbiecki v. Pabst is a reminder that jury verdicts in asbestos cases can be very high, especially as more precedent establishes the linkages between asbestos exposure and related injuries.