Carol Lorbiecki v. Pabst Brewing Company

2024 WI App 33

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2022AP723

PRE filed June 6, 2024

Complete Title of Case:

CAROL LORBIECKI,

PLAINTIFF-RESPONDENT-CROSS-APPELLANT,

ESTATE OF GERALD E. LORBIECKI,

PLAINTIFF,

V.

PABST BREWING COMPANY,

DEFENDANT-APPELLANT-CROSS-RESPONDENT,

INGERSOLL RAND COMPANY, MOLSON COORS BREWING
COMPANY,
SEARS, ROEBUCK AND CO., GENERAL ELECTRIC COMPANY AND
CLEAVER-BROOKS INC.,

DEFENDANTS.

Opinion Filed: May 7, 2024
Submitted on Briefs: January 10, 2023
Oral Argument: January 10, 2024

JUDGES: White, C.J., Donald, P.J., and Geenen, J.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the defendant-appellant-cross-respondent, the cause
was submitted on the brief of David J. Turek of Gass Turek LLC,
Milwaukee

Respondent
ATTORNEYS: On behalf of the respondent and cross-appellant, the cause was
submitted on the brief of Lynn Laufenburg and Melissa J. Probst
of Gingras, Thomsen & Wachs, LLP, Milwaukee, and Lisa W.
Shirley (pro hac vice) and Jonathan Holder (pro hac vice) of
Dean Omar Branham Shirley, LLP, Dallas, TX, .
2024 WI App 33
COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 7, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP723 Cir. Ct. No. 2018CV4971

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

CAROL LORBIECKI,

PLAINTIFF-RESPONDENT-CROSS-APPELLANT,

ESTATE OF GERALD E. LORBIECKI,

PLAINTIFF,

V.

PABST BREWING COMPANY,

DEFENDANT-APPELLANT-CROSS-RESPONDENT,

INGERSOLL RAND COMPANY, MOLSON COORS BREWING COMPANY,
SEARS, ROEBUCK AND CO., GENERAL ELECTRIC COMPANY AND
CLEAVER-BROOKS INC.,

DEFENDANTS.

APPEAL and CROSS-APPEAL from a judgment of the circuit court
for Milwaukee County: CHRISTOPHER R. FOLEY, Judge. Affirmed in part;
reversed in part and cause remanded with directions.
No. 2022AP723

Before White, C.J., Donald, P.J., and Geenen, J.

¶1 WHITE, C.J. Pabst Brewing Company (Pabst) appeals from the
judgment entered upon a jury’s verdict finding it in violation of the safe place
statute and liable for approximately $6.9 million in compensatory and punitive
damages for the injury and death of Gerald Lorbiecki from mesothelioma resulting
from asbestos exposure. Pabst argues multiple issues with the trial including
sufficiency of the evidence, jury instructions, evidentiary admissions, allowing the
jury to consider punitive damages, imputing a subcontractor’s liability to Pabst,
and denying judgment notwithstanding the verdict (JNOV) on grounds that the
claim was not legally sufficient. We conclude that Pabst’s arguments fail.

¶2 Carol Lorbiecki, individually and as the personal representative for
the Estate of Gerald E. Lorbiecki (hereinafter, Lorbiecki), cross-appeals the
judgment, arguing that the circuit court failed to properly apply the punitive
damages statute, WIS. STAT. § 895.043 (2021-22),1 in the calculation of the
judgment. We conclude that the punitive damages statute requires doubling the
total compensatory damages recovered by Lorbiecki, not doubling only Pabst’s
apportionment of the compensatory damages. Therefore, we grant Lorbiecki’s
cross-appeal in part, reverse the judgment in part and remand to the circuit court
with directions to enter judgment for punitive damages consistent with this
opinion.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

4
No. 2022AP723

BACKGROUND

¶3 Gerald worked as a pipefitter from the mid 1970s until the early
2000s at multiple worksites in Wisconsin, including Pabst, where he was exposed
to asbestos-containing materials at the worksites. Gerald was diagnosed with
mesothelioma in 2017 and died in January 2018, after initiating this action against
multiple defendants for negligence and violations of the safe place statute relating
to his asbestos exposure.2

¶4 The case proceeded to a jury trial in September and October 2021.
At trial, Lorbiecki presented Larry Schroeder, a steamfitter in the same union who
worked with Gerald in a similar role at Pabst.3 Lorbiecki also presented two
expert witnesses: Dr. Arnold Brody, a cell biologist and experimental pathologist,
and Dr. Edwin Holstein, a doctor specializing in preventative medicine and
occupational medicine, with a concentration on asbestos. The jury also heard from
Carol, Gerald’s wife, and Scott, his son. Lorbiecki called John Kimes, the
corporate representative for Pabst in its current ownership group, which was not
the owner of Pabst at the time of Gerald’s work there. The jury also was shown a
video deposition of Jack Wetzel, a delivery driver for Sprinkmann Sons who
delivered insulation materials to Pabst. Pabst then read in the depositions of Ralph
Van Beck, a vice president at Sprinkmann, and another deposition of Wetzel.

2
The circuit court granted partial summary judgment in Pabst’s favor on Lorbiecki’s
negligence claim and that claim was dismissed in May 2020.
3
We note that Schroeder identified Gerald as a fellow member of the Local 601
Steamfitters union. While Gerald’s profession is generally presented as a pipefitter, Schroeder
described Gerald and himself as steamfitters. We do not consider either man’s job title as
dispositive to this matter.

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No. 2022AP723

Pabst also called Dr. Kimberly Hoppe-Parr, a certified industrial hygienist, as an
expert witness.

¶5 The jury found that Pabst’s “negligence in violating the [s]afe
[p]lace [s]tatute” was a “cause of [Gerald’s] mesothelioma.” The jury also found
four other companies liable for Gerald’s injury. Three of these companies were
defendants that had been dismissed by stipulation.4 The final company,
Sprinkmann, was a subcontractor at Pabst and not a named defendant; the jury was
asked whether Sprinkmann was negligent with respect to Gerald’s health and
safety. The jury apportioned liability as follows: Pabst at 22%, Sprinkmann at
20%, Wisconsin Electric Power Company (WEPCO) at 22%, Butters-Fetting
Company, Inc. at 18%, and Grunau Company at 18%.

¶6 The jury determined that Gerald’s damages would be fairly
compensated at $195,163.55 for past medical, hospital, and funeral expenses,
$5 million for pain and suffering prior to death, and $1.35 million for Carol’s loss
of society and companionship. The jury then determined that Pabst intentionally
disregarded Gerald’s rights and awarded $20 million in punitive damages
specifically against Pabst.

¶7 Lorbiecki and Pabst filed post-trial motions. The circuit court
granted Lorbiecki’s motion to impute Sprinkmann’s 20% liability under the
verdict to Pabst because Pabst had a non-delegable duty under the safe place

4
The record reflects testimony that Gerald was exposed to asbestos on premises owned
by Wisconsin Electric Power Company (WEPCO), that the evidence in the case suggested that
Gerald was employed by Butters-Fetting Company, Inc. at the time he was working at the Pabst
site, and that he was employed by Grunau Company at the time he was working at the WEPCO
site. These three entities were named defendants in Lorbiecki’s lawsuit; however, through the
course of litigation, the court entered a stipulated dismissal of these defendants.

6
No. 2022AP723

statute to ensure its contractors did not negligently cause an unsafe condition on
the premises. This resulted in the court finding that Pabst was liable for 42% of
the compensatory damages.

¶8 Pabst argued that the circuit court should set aside the verdict
because it was premised on an erroneous spoliation instruction, improperly
admitted evidence, and insufficient proof on elements of a safe place statute
violation. Pabst further argued that punitive damages should be denied. While the
court declined to set aside the verdict, it granted Pabst’s post-trial motion to reduce
the damages in two ways. First, it applied the statutory cap on loss of society and
companionship damages under WIS. STAT. § 895.04(4) and reduced that award to
$350,000. Second, the court reduced the punitive damages award. “Punitive
damages received by the plaintiff may not exceed twice the amount of any
compensatory damages recovered by the plaintiff or $200,000, whichever is
greater.” WIS. STAT. § 895.043(6). The circuit court concluded that the punitive
damages should be calculated as twice Pabst’s apportionment of the compensatory
damages.

¶9 The circuit court calculated compensatory damages as follows:
$195,163.55 for medical and funeral expenses, $5 million for pre-death pain and
suffering, and $350,000 for Carol’s loss of society and companionship, which
totaled $5,545,163.55. The court then allocated 42% of the liability to Pabst,
equaling $2,328,968.69 in compensatory damages owed by Pabst. To calculate
the punitive damages, the court doubled the compensatory damages allocated to
Pabst, which equaled $4,657,937.38. The court entered a judgment of
$6,986,906.07 against Pabst.

7
No. 2022AP723

¶10 Pabst now appeals and Lorbiecki cross appeals. Additional facts are
discussed below.

DISCUSSION

¶11 Pabst makes five arguments on appeal, challenging the sufficiency
of the evidence of an unsafe condition, errors in evidentiary rulings and jury
instructions, the circuit court’s decision to allow the jury to consider punitive
damages, the court’s decision to impute Sprinkmann’s liability to Pabst, and the
court’s denial of Pabst’s post-trial motion for JNOV. In the cross-appeal,
Lorbiecki asserts that the circuit court erroneously interpreted the punitive
damages statute and should have doubled the jury’s award of compensatory
damages. We address each claim below.

I. Pabst’s claims on appeal

A. Sufficiency of the evidence of an unsafe condition

¶12 We begin with Pabst’s argument that there was insufficient evidence
that an unsafe condition at Pabst’s premises caused Gerald’s injuries. Pabst
asserts that the jury had to resort to speculation and conjecture to reach its verdict
because there was no credible evidence to support the verdict.

¶13 “Our review of a jury’s verdict is narrow.” Morden v. Continental
AG, 2000 WI 51, ¶38, 235 Wis. 2d 325, 611 N.W.2d 659. We view “the evidence
in the light most favorable to a jury’s verdict and must sustain the verdict if there
is any credible evidence in the record to support it, regardless of whether there is
evidence to support a different verdict.” Hoffmann v. Wisconsin Elec. Power
Co., 2003 WI 64, ¶9, 262 Wis. 2d 264, 664 N.W.2d 55.

8
No. 2022AP723

¶14 Wisconsin’s safe place statute, WIS. STAT. § 101.11,5 is a negligence
statute that provides that an employer or property owner has a heightened, non-
delegable duty to “repair or maintain the premises in as safe a condition as the
nature of the premises reasonably permits.” McGuire v. Stein’s Gift & Garden
Ctr., Inc., 178 Wis. 2d 379, 398, 504 N.W.2d 385 (Ct. App. 1993); Dykstra v.
Arthur G. McKee & Co., 100 Wis. 2d 120, 130-31, 301 N.W.2d 201 (1981). The
safe place statute “provides a higher duty than the duty of ordinary care regarding
certain acts by employers and owners of places of employment or public
buildings.” Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶20, 291 Wis. 2d 132,
715 N.W.2d 598. “[T]he statute imposes three duties on employers and owners of
places of employment or public buildings: the duty to construct, to repair, and to
maintain a safe place of employment or public building.” Barry v. Employees
Mut. Cas. Co., 2001 WI 101, ¶20, 245 Wis. 2d 560, 630 N.W.2d 517.

¶15 To succeed on a safe place statute claim, Lorbiecki had to show
(1) there was an unsafe condition on Pabst’s premises; (2) the unsafe condition
caused Gerald’s injury; and (3) Pabst had either actual or constructive notice of the
unsafe condition before Gerald’s injury. Correa v. Woodman’s Food Mkt., 2020

5
WISCONSIN STAT. § 101.11(1) provides that:

Every employer … shall furnish a place of employment which
shall be safe for employees therein and for frequenters thereof
and shall furnish and use safety devices and safeguards, and shall
adopt and use methods and processes reasonably adequate to
render such employment and places of employment safe, and
shall do every other thing reasonably necessary to protect the
life, health, safety, and welfare of such employees and
frequenters. Every employer and every owner of a place of
employment or a public building now or hereafter constructed
shall so construct, repair or maintain such place of employment
or public building as to render the same safe.

9
No. 2022AP723

WI 43, ¶12, 391 Wis. 2d 651, 943 N.W.2d 535. This court has previously held
that airborne asbestos exposure as a result of repair or maintenance work on pipes
covered in asbestos-containing insulation was an “unsafe condition” within the
meaning of the safe place statute. Viola v. Wisconsin Elec. Power Co., 2014 WI
App 5, ¶25, 352 Wis. 2d 541, 842 N.W.2d 515.

¶16 We begin with the record. The jury was presented evidence on the
health hazards of asbestos, the delivery of asbestos-containing material to Pabst,
and Pabst’s awareness of the risks prior to Gerald’s work time. Lorbiecki
presented two expert witnesses, Drs. Brody and Holstein, who explained the health
hazards from working with asbestos and the course of mesothelioma.
Dr. Holstein, who reviewed sales records from Sprinkmann, described as 20,000-
22,000 pages in total, testified that the records showed frequent, regular deliveries
of asbestos-containing insulation to Pabst spanning longer than the time Gerald
worked on the site. This fact was confirmed in the video deposition of Wetzel, a
delivery driver for Sprinkmann, who explained that he delivered asbestos-
containing insulation to Pabst once a week for decades. Kimes, Pabst’s corporate
representative, did not dispute that asbestos materials were delivered and used at
the Pabst site, including during the time period when Gerald was working. Kimes
testified that there were “significant amounts” of insulation installed and replaced
at Pabst.6

6
The record also reflected that Pabst’s facilities, including those for brewing, bottling,
and storage, contained extensive piping systems, both insulated and not. Kimes testified that
“just based on the amount of piping that we need in a typical bottling house, there was miles and
miles and miles of piping.”

10
No. 2022AP723

¶17 Further, Kimes testified about Pabst’s knowledge of asbestos in the
context of occupational safety and health. He testified that Pabst became aware of
the risk of asbestosis from asbestos exposure7 no later than June 1971, dated to a
memo circulated at Pabst detailing asbestos-related precautions employers were
expected to take under Occupational Safety and Health Administration (OSHA)
standards. This meant Pabst had awareness of the health hazards posed by
asbestos even if Kimes did not know when Pabst learned that asbestos caused
mesothelioma. Kimes reviewed the “Pabst plant rules and safety regulations”
from October 1971, which called for good housekeeping and daily inspections of
work areas, and made no mention of asbestos. Kimes also reviewed an OSHA
citation for the “bottle house”—the building where Gerald worked at Pabst—from
April 1986, which stated that broken asbestos pipe insulation was found on the
floor in February 1986. Kimes stated that there was not documentation of asbestos
abatement until the early 1990s.

¶18 Additionally, the record reflects that Lorbiecki presented testimony
from Schroeder, a steamfitter at the Pabst site, who knew Gerald and worked with
him for about four months at Pabst in the mid-1970s. Schroeder testified that
when a steamfitter needed to replace or repair an old insulated pipe prior to 1980,
the steamfitter had to “take off the asbestos insulation which was done by a
hammer or chisel, a saw, whatever you had in your hand; a screwdriver, pocket
knife.” Schroeder explained that when he replaced piping at Pabst, he had to
knock off old insulation: some of it may have been asbestos but most of it was
unidentified. He testified that when he removed insulation to replace pipes, the

7
Dr. Holstein explained in his testimony that asbestosis was a condition caused by
asbestos exposure that “could cause death and disability through scarring of the lungs[.]”

11
No. 2022AP723

insulation was visible, “flying around … basically dust.” Schroeder testified that
there was pipe insulation identified as asbestos-containing to be replaced with
fiberglass, but he did not recall any warnings about cancer. Schroeder also
explained that pipefitters and steamfitters generally performed similar work, that
both removed and replaced insulated pipes and insulation around pipes, that both
experienced similar working conditions while performing that work, and that this
was true of his experience at Pabst.

¶19 The circuit court described Schroeder’s testimony as “compelling
evidence” that Gerald was removing asbestos-containing insulation and exposed to
airborne asbestos at Pabst. Although Pabst argues that Schroeder never testified or
claimed to have directly seen Gerald removing asbestos-containing insulation in
the bottle house, the court held that Schroeder presented circumstantial evidence
of routine practice for a pipefitter’s actions at Pabst during this time. The court
stated that under the jury instructions and WIS. STAT. § 904.06, “routine practice
of an individual or entity acting in the same way during the incident or period in
dispute is circumstantial evidence that they likely acted in that manner during the
incident in dispute.” Schroeder testified that based on his own work as a
steamfitter, Gerald would have removed and replaced pipe and knocked off
insulation as a regular part of his job as a pipefitter at Pabst.

¶20 We agree with the circuit court that Schroeder’s testimony provided
a basis for the jury to find that Gerald was exposed to an “unsafe condition” at
Pabst. It is well established in Wisconsin law that a jury’s finding “may rest upon
evidence that is entirely circumstantial and that circumstantial evidence is
oftentimes stronger and more satisfactory than direct evidence.” State v.
Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990). We reject Pabst’s
assertion that the jury had to resort to conjecture based upon Schroeder’s

12
No. 2022AP723

testimony to find that Gerald was exposed to an “unsafe condition” at Pabst’s site.
Schroeder had a reasonable foundation for his testimony, including his own
experience at Pabst, his understanding of the activities that steamfitters and
pipefitters performed as part of their jobs, and his knowledge of Gerald’s work.

¶21 Pabst argues that to make a credible inference that Gerald was
exposed to asbestos at Pabst, the jury had to speculate that several exculpatory
inferences were not true, such as Gerald wearing protective equipment and only
working on uninsulated pipes or with non-asbestos-containing insulation, or that
Pabst had actual or constructive notice of the airborne asbestos in the bottle house
before Gerald’s exposure. However, Pabst’s argument fails. “[I]f the evidence
gives rise to more than one reasonable inference, we accept the particular
inference reached by the jury.” Morden, 235 Wis. 2d 325, ¶39. We will sustain
the jury’s verdict unless there was a “complete failure of proof” such that the
verdict must have been based on speculation. Hoffmann, 262 Wis. 2d 264, ¶9.
Although the jury could have accepted the chain of exculpatory inferences offered
by Pabst, the fact that it reached a different conclusion does not make its decision
speculation or conjecture.

¶22 Our examination of the record supports that there was credible
evidence to support the jury’s verdict that Pabst violated the safe place statute.
First, there was credible evidence of an unsafe condition at Pabst arising out of the
removal of asbestos-containing insulation in the bottle house. Second, there was
no dispute that asbestos can cause mesothelioma, the illness Gerald developed that
caused his death. Third, Kimes’s testimony showed that Pabst had notice that
asbestos was a health hazard as early as 1971, years before Gerald’s work at Pabst.
We “search the record for credible evidence that sustains the jury’s verdict, not for
evidence to support a verdict that the jury could have reached but did not.”

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No. 2022AP723

Morden, 235 Wis. 2d 325, ¶39. Here, the record reflects credible evidence to
support the jury’s verdict. We therefore sustain it.

B. Errors in evidentiary rulings and jury instructions

¶23 We next turn to Pabst’s argument about errors within the trial,
particularly as it relates to Lorbiecki’s efforts to prove that Pabst had knowledge
or should have had knowledge of the dangers of asbestos before Gerald’s work
period. First, we address the jury instruction on spoliation regarding Pabst’s
records that were destroyed or disposed of by a prior owner in 1985. Second, we
address the circuit court allowing Lorbiecki to introduce the purchase price that
Pabst’s current ownership group paid for Pabst in 2014. Third, we address the
circuit court admitting the legal complaints from three previous legal cases
involving asbestos and mesothelioma at Pabst.

1. Spoliation instruction

¶24 Pabst argues that the circuit court erred when it offered an evidence
spoliation instruction that allowed, but did not require, the jury to draw a negative
inference against Pabst based on a prior owner’s decision to discard documents
and computers in 1985. We return to the record: Lorbiecki questioned Kimes
about Pabst’s actions and ownership. Kimes testified that in 2014, Blue Ribbon
Holdings purchased Pabst from Dean Metropoulos Company, which purchased the
company in 2010 from Paul Kalmanovitz, who had purchased the company in
1985, and it had been publicly traded before that.

¶25 Lorbiecki questioned Kimes about Pabst through the 1970s, asking if
Pabst made efforts through lobbying to oppose worker safety laws. Kimes
responded that he did not know. When asked about how he prepared to testify as

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No. 2022AP723

the corporate representative, Kimes stated that the documents he reviewed were
limited to what had been transferred in the sale to the current ownership group,
stating “[t]here’s been many documents that have been destroyed, many
documents that were not conveyed to us. So there are gaps in that history.”
Kimes acknowledged that in response to Lorbiecki’s discovery request for
documents related to the bottle house at the Milwaukee Pabst facility, Pabst
produced only sixty-two pages of documents. In contrast, Lorbiecki questioned
Kimes about 22,000 pages of Sprinkmann sales orders and documents related to
Pabst’s purchases.

¶26 Kimes testified that when Kalmanovitz bought Pabst in 1985, he
ordered “[n]on-critical, non-essential documents … be destroyed” and all
employees’ computers be donated. Kimes stated that the current owner did not
dispute having successor liability for Pabst and its facilities in the 1970s.
Kimes stated that Pabst did not conduct asbestos remediation until the 1990s,
several years after the documents and computers were discarded.

¶27 At the close of trial, the jury was instructed as follows:

Evidence was adduced during this trial that during the
ownership and at the direction of Mr. Kalmanovitz, Pabst
destroyed documentary evidence and gave away computers
which may or may not have contained relevant evidence.
You may, but you are not required to, infer that Pabst did
so because that material and information in the computers
would have been unfavorable to their interest in any
potential future litigation.

¶28 In its post-trial motions, Pabst also asserted that the spoliation
instruction was unwarranted, arguing as it does on appeal, that there was no
evidence or proof that the discarded records were related to Lorbiecki’s work or
possible asbestos litigation, or evidence that the destruction was intentional and

15
No. 2022AP723

not negligent. In its post-trial ruling, the circuit court found there was credible
evidence to support the spoliation instruction. The court concluded that the
argument that there was no evidence of potential future asbestos litigation was
without merit because of the “explosion of asbestos litigation” during that time.

¶29 “Courts have discretionary authority to sanction parties who destroy
or withhold evidence relevant to pending or future litigation.” American Fam.
Mut. Ins. Co. v. Golke, 2009 WI 81, ¶21, 319 Wis. 2d 397, 768 N.W.2d 729. “We
affirm discretionary rulings if the [circuit] court has examined the relevant facts,
applied a proper standard of law, and, utilizing a demonstratively rational process,
reached a conclusion that a reasonable judge could reach.” Garfoot v. Fireman’s
Fund Ins. Co., 228 Wis. 2d 707, 717, 599 N.W.2d 411 (Ct. App. 1999). Among
its options to sanction a litigant, the circuit court may craft an instruction
“permitting the jury to draw a negative inference from missing evidence” as a
remedy. Id. at 717-18. A negative inference instruction may be appropriate when
the litigant “violated its duty to preserve relevant evidence,” Golke, 319 Wis. 2d
397, ¶42, and the destruction of evidence was the result of intentional conduct, not
merely negligent conduct, Mueller v. Bull’s Eye Sport Shop, LLC, 2021 WI App
34, ¶21, 398 Wis. 2d 329, 961 N.W.2d 112.8 We will sustain a jury instruction if

8
We note that in the context of spoliation sanctions, intentional conduct is distinguished
from bad faith or egregious conduct. Egregious conduct means “a conscious attempt to affect the
outcome of the litigation or a flagrant, knowing disregard of the judicial process.” Milwaukee
Constructors II v. Milwaukee Metro. Sewerage Dist., 177 Wis. 2d 523, 533, 502 N.W.2d 881
(Ct. App. 1993). “[D]ismissal as a sanction for spoliation is appropriate only when the party in
control of the evidence acted egregiously in destroying that evidence.” American Fam. Mut. Ins.
Co. v. Golke, 2009 WI 81, ¶42, 319 Wis. 2d 397, 768 N.W.2d 729. Dismissal was not raised as a
possible sanction and therefore, our analysis considers intentional conduct required for an
inference instruction.

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No. 2022AP723

it “comport[s] with the facts and [is] a correct statement of the law[.]” Estate of
Neumann v. Neumann, 2001 WI App 61, ¶68, 242 Wis. 2d 205, 626 N.W.2d 821.

¶30 An element of a safe place statute claim is the property owner’s
knowledge or notice of defect before injury occurs. Correa, 391 Wis. 2d 651, ¶12.
Although Pabst has argued repeatedly that there was no evidence in this case—of
Gerald’s work or of Pabst’s safety policies—the circuit court found that by 1985
the danger of asbestos was clear, and the risk of litigation based upon it was
strong. We agree with the circuit court’s assessment that Kimes opened the door
to considerations of spoliation because Kimes stated that the discarded documents
and computers resulted in him being unable to answer questions about Pabst’s
company history, including its use of asbestos-containing insulation for piping and
asbestos-related workplace safety practices in the 1970s. Pabst cannot rely upon
the previous destruction of documents to argue that there is no evidence that
supports Lorbiecki’s claims without facing the corresponding possibility that the
circuit court could allow the jury the option to form a negative inference from that
discarded evidence.

¶31 Pabst argues that the circuit court did not examine the relationship
between the missing evidence and the issues at trial. This argument is
disingenuous. The issues at trial included when Pabst had notice of the risks of
asbestos, its response, and its actions to preserve evidence for potential future
litigation. The record reflects that Kimes testified to having an incredibly small
number of documents for a company the size and age of Pabst. It is improbable
that additional relevant documents had not existed that could show Pabst’s actions
in relation to safety, repair, maintenance, asbestos and non-asbestos insulation, and
the materials, contractors, and workers engaged on site. We conclude that the

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No. 2022AP723

circuit court’s decision to give a spoliation instruction was based upon the
evidence in the record and the law and was within its discretion.

¶32 Pabst also argues that the spoliation instruction was inflammatory
because it made Pabst look reckless, irresponsible, and intent on covering up
damaging evidence, which most likely impacted the jury’s determination of
punitive damages. A spoliation instruction is a sanction designed “(1) to uphold
the judicial system’s truth-seeking function and (2) to deter parties from
destroying evidence.” Insurance Co. of N. Am. v. Cease Elec. Inc., 2004 WI App
15, ¶16, 269 Wis. 2d 286, 674 N.W.2d 886, aff’d, 2004 WI 139, 276 Wis. 2d 361,
688 N.W.2d 462. The spoliation instruction offered here was reasonable and
responsive to the evidence adduced at trial. The jury was instructed that it had the
option to make a negative inference, but it was not obligated to do so. We are not
persuaded that the jury was inflamed by this instruction.

2. Admission of Pabst’s purchase price in 2014

¶33 Pabst argues that the circuit court erred when it admitted irrelevant
evidence of the price that Pabst’s current owner, Blue Ribbon Holdings, LLC, paid
when it purchased Pabst in 2014 because that price was not relevant to Pabst’s
actions in the 1970s.9 Lorbiecki argues that the purchase price was relevant to the
knowledge of asbestos liability that Pabst’s current ownership had at the time of
purchase, because the ownership group likely knew what liabilities it was

9
We note that Pabst’s current ownership is referred to as Blue Ribbon Holdings, LLC
and Blue Ribbon Intermediate Holdings. No party has argued that any difference between these
entities is relevant to this dispute and we discuss it no further.

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No. 2022AP723

assuming in the purchase, as well as being relevant to the issue of punitive
damages.

¶34 We return to the record: Kimes testified that Blue Ribbon
Holdings’s 2014 purchase was for the brands and not any physical buildings, and
as a private sale, the exact price was not public, but there were reports that the sale
price was around $700 million. Lorbiecki asked, “And so Blue Ribbon Holdings,
LLC in 2014 had at least $700 million in resources to be able to determine what
type of liability they were purchasing for the facility Pabst had previously owned;
correct?” Kimes responded, “That is correct.” Kimes also testified that Pabst did
not dispute successor liability for the brewery including the bottle house in the
1970s. Pabst objected to the line of questioning, but the circuit court overruled the
objection.

¶35 “We review a circuit court’s decision to admit or exclude evidence
under an erroneous exercise of discretion standard.” Martindale v. Ripp, 2001 WI
113, ¶28, 246 Wis. 2d 67, 629 N.W.2d 698. “If the circuit court applied the proper
law to the pertinent facts and provided a reasonable basis for its ruling, we will
conclude that the court acted within its discretion.” Morden, 235 Wis. 2d 325,
¶81.

¶36 Although Pabst argues that the purchase price is irrelevant and
prejudicial, in the post-trial hearing, the circuit court found otherwise. It stated
that it considered the evidence clearly admissible “for likely knowledge of the risk
of asbestos and removal of asbestos” and that a wealthy company was “more
likely to have access to information in regard to those issues.” The court
concluded that the record for introducing the evidence for the purpose of punitive
damages “should have been better made,” but it concluded that “the evidence was

19
No. 2022AP723

relevant and admissible for both purposes.” The record reflects that Pabst
repeatedly attempted to distinguish its current ownership from the ownership in
the 1970s. Lorbiecki argues that, in doing so, Pabst opened the door to the
questions about the current ownership group and that the discussion of the
purchase price connects to the current ownership group’s knowledge. We
conclude that the circuit court acted within its discretion to admit the purchase
price information as relevant to the current owner’s knowledge of asbestos-related
risks and their effect on its purchase of the Pabst brands.

¶37 Although we find that evidence was properly admitted; nevertheless,
we address Pabst’s argument that Lorbiecki’s references to the purchase price
were unfairly prejudicial. Pabst argues that Lorbiecki portrayed Pabst as a large
corporation “ripe for a big verdict” by raising the issue of the large purchase price
and the company’s wealth. Lorbiecki made multiple references in closing
arguments that a very large transaction like this $700 million acquisition, showed
that the purchaser understood the liabilities related to the sale and further, that the
damages had to be large to have an impact. We “recognize[] the necessity for a
reasonable latitude” in counsel’s remarks and arguments to the jury. Fahrenberg
v. Tengel, 96 Wis. 2d 211, 228, 291 N.W.2d 516 (1980). Lorbiecki’s discussion
of the purchase price was not a dominating theme or the focus of its lengthy
closing argument.10

10
We note three references to the purchase price in closing arguments: First, the
purchase price reflected the work of “lawyers around a table” to “understand[] the liabilities” the
new ownership group would assume in the purchase. Second, asking the jury to send a message
to Pabst, arguing that “a small amount does not get through to people that buy and sell companies
for $700 million.” Third, “this is a company that bought Pabst for $700 million and then they just
asked you to put a value of pain and suffering being suffocated to death as $400,000.”

20
No. 2022AP723

¶38 Further, with punitive damages on the special verdict form, it was
reasonable for Lorbiecki to comment on the financial resources of the defendant
based on the evidence in the record.11 See id. at 226 (discussing instructing a jury
to “consider the defendant’s wealth so far as it appears from the evidence”). We
conclude that these comments “did not cause the jury to reach a decision that it
would not have reached otherwise.” Seifert v. Balink, 2017 WI 2, ¶163, 372
Wis. 2d 525, 888 N.W.2d 816. We therefore reject Pabst’s argument that this
information was so unfairly prejudicial to require a new trial.

¶39 Finally, Pabst complains that at the time the evidence was admitted,
the circuit court had not determined that Lorbiecki had made a prima facie case to
put the question of punitive damages before the jury. We conclude that the
purchase price evidence was admitted as relevant to the discussion of corporate
knowledge of asbestos-related risk related to Pabst’s 2014 purchase. Lorbiecki’s
later use of that admitted evidence was not improper. As discussed below, a prima
facie case for punitive damages was established by the close of evidence;
therefore, it was proper for Lorbiecki to use this evidence in closing arguments
with respect to punitive damages.

11
Pabst further asserts that the 2014 sales price is not indicative of the current value of
the company and that in any case, the defendant’s net worth is the relevant measure for punitive
damages. See Welty v. Heggy, 145 Wis. 2d 828, 835, 429 N.W.2d 546 (Ct. App. 1988)
(discussing that when “the assessment of punitive damages takes into account the defendant’s
wealth, then that wealth must be measured by net worth,” because “[a]ny other measure is
illusory”). We note that the jury instructions provide for the jury to consider a defendant’s
“ability to pay” and “the defendant’s wealth” as factors in the determination of punitive damages.
WIS JI—CIVIL 1707. The Supreme Court of Wisconsin has also concluded that “[n]et worth may
not in all instances be the best measure of an individual’s ability to respond in damages. We
believe a more accurate gauge is his financial resources, which include his earnings as well as his
net worth.” Jones v. Fisher, 42 Wis. 2d 209, 221, 166 N.W.2d 175 (1969). Pabst did not
introduce alternative evidence for the jury to consider and we decline to further address the net
worth argument.

21
No. 2022AP723

3. Evidence of other mesothelioma cases at Pabst

¶40 Pabst argues that the circuit court erred when it admitted evidence of
allegations in three prior legal cases that other workers at Pabst had been
diagnosed with mesothelioma. We return to the record. Lorbiecki questioned
Dr. Holstein if he knew of other mesothelioma cases at Pabst and offered as
evidence the complaints from three other mesothelioma cases against Pabst. Pabst
objected that the proffered other legal cases were irrelevant and may not be similar
to Lorbiecki’s case.12 The court overruled Pabst’s objections and admitted the
evidence.

¶41 Pabst argues that the circuit court erroneously exercised its
discretion because it failed to apply the proper legal standard for assessing “other
incident” evidence before admitting the evidence. Pabst argues that the court did
not examine whether the work performed by those plaintiffs in the cases was
“sufficiently similar” to the work performed by those plaintiffs and Gerald to be
relevant and probative.

¶42 As discussed above, the circuit court admits evidence at its
discretion. Martindale, 246 Wis. 2d 67, ¶28. Admitted evidence must be
relevant, under WIS. STAT. § 904.01, meaning that “it has any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Nowatske

12
Lorbiecki introduced three cases by name. The evidence consisted of the complaints
from three lawsuits. We reference materials available from those cases: Ahnert v. Emps. Ins.
Co. of Wausau, No. 13-C-1456, 2016 WL 97731 (E.D. Wis. Jan. 7, 2016); Peter v. Sprinkmann
Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308; Summons and complaint, Von
Till v. Armstrong Int’l, Inc., No. 1722-CC11890 (Cir. Ct. of City of St. Louis County, MO, filed
Dec. 6, 2017).

22
No. 2022AP723

v. Osterloh, 201 Wis. 2d 497, 503, 549 N.W.2d 256 (Ct. App. 1996).
Additionally, “evidence of … the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses, is relevant to
prove that the conduct of the … organization on a particular occasion was in
conformity with the … routine practice.” WIS. STAT. § 904.06(1).13 In assessing
the relevance of evidence, we consider both whether the “evidence relates to a fact
or proposition that is of consequence to the determination of the action” and
“whether the evidence has probative value[.]” State v. Sullivan, 216 Wis. 2d 768,
772, 576 N.W.2d 30 (1998). However, “relevant[] evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice” to
the defendant. WIS. STAT. § 904.03.

¶43 Lorbiecki moved to admit the other mesothelioma cases in support
of its questioning of its expert witness on whether multiple mesothelioma cases
had occurred at Pabst and whether that was significant to exposure and causation.
In its post-trial ruling, the circuit court concluded that “there was clearly sufficient
similarity in the other Pabst exposure cases” to admit that evidence as “compelling
circumstantial evidence of exposure and cause.” We conclude that evidence of
other mesothelioma occurrences could be relevant to show routine practices at
Pabst. See French v. Sorano, 74 Wis. 2d 460, 466, 247 N.W.2d 182 (1976).

13
Lorbiecki relies on cases establishing a general rule that prior, similar incidents at the
same place or under similar conditions were admissible at the circuit court’s discretion, under
WIS. STAT. § 904.06. See e.g., Lobermeier v. General Tel. Co. of Wis., 119 Wis. 2d 129, 150,
349 N.W.2d 466 (1984) (discussing admission of evidence of “ten incidents involving personal
injuries as the result of improperly grounded telephones” in a negligence action where the
plaintiff alleged injury from an ungrounded telephone); Netzel v. State Sand & Gravel Co., 51
Wis. 2d 1, 9-10, 186 N.W.2d 258 (1971) (discussing admitting evidence that “seven other
employees had been burned by the same concrete mix on the same day on the same job” as the
injured plaintiff in a dangerous defect action).

23
No. 2022AP723

¶44 Pabst next argues that the other mesothelioma cases did not establish
that those plaintiffs’ work was sufficiently similar to Gerald’s work. Pabst pointed
out that while Gerald worked in the bottle house at Pabst for four months in the
mid-1970s—Ahnert worked within Pabst much earlier, in 1959; Peter worked
there much longer, over thirty-six years extensively in the bottle house; and Von
Till did not identify when or for how long he worked at the Milwaukee Pabst
facility in the course of his thirty-one-year career that took him to at least
seventeen breweries. Lorbiecki argues that this evidence rebuts Pabst’s defense
that there was insufficient proof of asbestos exposure at Pabst and of Gerald’s
exposure in the bottle house. We conclude that the complaints in the other
mesothelioma cases were probative to the question of whether disturbed asbestos
was present at Pabst, and that those complaints were sufficiently similar to be
relevant. Having met the threshold of admissibility, the relevant weight to be
given to these three cases was up to the jury. State v. Jones, 2018 WI 44, ¶31, 381
Wis. 2d 284, 911 N.W.2d 97 (explaining that the circuit court determines
admissibility of evidence, while the jury determines the weight of that admissible
evidence in its fact-finding); French, 74 Wis. 2d at 466 (“Any lack of evidence as
to the conduct on a particular occasion is not a question of admissibility, but
sufficiency.”).

¶45 Finally, we reject Pabst’s argument that unfair prejudice from the
other mesothelioma cases outweighed the probative value. The record does not
reflect that Lorbiecki used these cases to inflame the jury. Pabst asserts the
evidence of other cases was highly prejudicial because Dr. Holstein, when
discussing whether it could be a coincidence that there were multiple
mesothelioma cases at Pabst, compared the situation to multiple asteroids landing
on your property—rare and not a coincidence. However, the circuit court

24
No. 2022AP723

specifically struck the reference to asteroids and instructed the jury to disregard all
stricken testimony. “Jurors are presumed to follow the court’s instructions.” State
v. Adams, 221 Wis. 2d 1, 12, 584 N.W.2d 695 (Ct. App. 1998). Therefore, we
reject Pabst’s argument that the jury’s decision was inflamed by the prior cases.

¶46 Ultimately, the circuit court considered the relevant facts, examined
the evidence under the proper standards of law, and reached a decision that a
reasonable court could reach. Morden, 235 Wis. 2d 325, ¶81. Therefore, we
conclude that the circuit court’s decision to admit the complaints in the other Pabst
mesothelioma cases was within its discretion.

C. Allowing the jury to consider punitive damages

¶47 Pabst argues that the circuit court failed in its gatekeeping function
when it allowed the question of punitive damages to reach the jury. “The plaintiff
may receive punitive damages if evidence is submitted showing that the defendant
acted maliciously toward the plaintiff or in an intentional disregard of the rights of
the plaintiff.” WIS. STAT. § 895.043(3). A circuit court should only send the
question of punitive damages to a jury “when the conduct is so aggravated that it
meets the elevated standard of an ‘intentional disregard of rights[.]’” Strenke v.
Hogner, 2005 WI 25, ¶42, 279 Wis. 2d 52, 694 N.W.2d 296 (citation omitted). A
plaintiff must show by “clear and convincing evidence” that the defendant “was
aware that its conduct was substantially certain to result in the plaintiffs’ rights
being disregarded.” Wischer v. Mitsubishi Heavy Indus. Am., Inc., 2005 WI 26,
¶34, 279 Wis. 2d 4, 694 N.W.2d 320. Whether there was sufficient evidence to
submit the question of punitive damages to the jury is a question of law we review
independently. Id., ¶32.

25
No. 2022AP723

¶48 Pabst argues that to prove that Pabst intentionally disregarded
Gerald’s rights, Lorbiecki had to show that Pabst (1) knew its contractors were
removing asbestos contrary to OSHA rules; (2) knew its contractors were not
protecting their employees pursuant to Pabst’s instructions; and (3) despite that
knowledge, deliberately, not just negligently, chose to do nothing to protect those
workers. Pabst asserts there is no evidence of any of these situations.

¶49 Lorbiecki argues that the circuit court correctly determined that there
was clear and convincing evidence to support submitting punitive damages to the
jury. Lorbiecki asserts that Pabst knew of the dangers of inhaling airborne,
disturbed asbestos years before Gerald arrived on Pabst’s premises, as
demonstrated by Kimes’s admission and the 1971 memo stating that OSHA
regulations required Pabst to control asbestos exposures on its premises, monitor
exposure levels, and implement precautions to protect workers. Lorbiecki then
asserts that despite its own safety manual from 1971 providing for daily
inspections for work areas, Schroeder’s testimony provided circumstantial
evidence of the uncontrolled removal of asbestos pipe insulation in a manner that
caused airborne asbestos dust in the bottle house.

¶50 Based on our examination of the record, we conclude that Lorbiecki
presented clear and convincing evidence that prior to Gerald’s work at Pabst, it
was aware of the dangers of asbestos and yet workers were unsafely exposed to
disturbed asbestos.14 An intentional disregard of rights “necessitates that the
14
We note that Pabst argues that there was insufficient evidence of the uncontrolled
removal of asbestos-containing insulation, arguing that Lorbiecki overstated the record. As
discussed in the sufficiency of the evidence section above, Schroeder’s testimony provided
evidence of the treatment of asbestos-containing materials at Pabst in the mid-1970s and provided
circumstantial evidence of Gerald’s exposure. A jury’s finding “may rest upon evidence that is
entirely circumstantial[.]” State v. Poellinger, 153 Wis. 2d 493, 501, 451 N.W.2d 752 (1990).

26
No. 2022AP723

defendant act with a purpose to disregard the plaintiff’s rights or be aware that his
or her conduct is substantially certain to result in the plaintiff’s rights being
disregarded.” Strenke, 279 Wis. 2d 52, ¶36. An “intentional disregard of rights”
must be a deliberate “course of conduct.” Id., ¶38. The rights at issue include the
“right to safety, health or life[.]” Id. The record reflects Pabst disregarded
Gerald’s right to safety and health in his workplace. Accordingly, we conclude
that there was clear and convincing evidence to put the question of punitive
damages to the jury.

D. Imputing Sprinkmann’s liability to Pabst

¶51 Pabst argues that the circuit court erred when it granted Lorbiecki’s
post-trial motion to impute Sprinkmann’s liability to Pabst. The record reflects
Kimes testified that Pabst contracted with Sprinkmann as its exclusive provider of
insulation until 1979, and he acknowledged that Sprinkmann provided vast
quantities of asbestos-containing insulation to Pabst over a long period of time.
The deposition testimony of Wetzel and Van Beck, a vice president of
Sprinkmann, showed that Sprinkmann had an employee on site regularly at Pabst
and was involved in the supply, repair, and removal of pipe insulation. In its post-
trial ruling, the circuit court concluded that Pabst delegated a specific duty to
Sprinkmann within its safe place statute duties: “[T]he duty to … provide safe
insulation materials and safely install, remove and repair that insulation,” which it
concluded Sprinkmann and other contractors failed to do.

¶52 “The duties imposed on employers and property owners under the
safe place statute are non-delegable.” Barry, 245 Wis. 2d 560, ¶42. “Under any
circumstance, it is the owner or the employer who must answer to the injured
party.” Dykstra, 100 Wis. 2d at 132. As a practical matter, this means that Pabst

27
No. 2022AP723

could not avoid liability for a breach of the duty by asserting that it delegated its
responsibility under the safe place statute to a contractor which would cause that
contractor “to be substituted as the primary defendant[.]” Id.

¶53 An examination of Barry is illustrative. A project manager, Barry,
working for a general contractor on an Ameritech property was injured on site
when he fell down stairs; another subcontractor had been engaged to repair and
maintain those stairs after there had been reports of loose carpeting snagging
people. Id., 245 Wis. 2d 560, ¶¶4-7. The subcontractor installed vinyl nosing
strips on the stairs in 1991 and Barry was injured in 1993, after which an
investigation into the stairs showed that several of the nosing strips had become
loose. Id., ¶¶5, 7-8. The jury apportioned liability at 45% for Ameritech, 45% for
the stairs subcontractor, and 10% for Barry. Id., ¶11. Although the case was
remanded for a new trial on a different basis, our supreme court held that
Ameritech’s duty under the safe place statute was non-delegable, and therefore, it
must answer to Barry for any violation, regardless of whether another party
contributed to the violation.15 Id., ¶43.

¶54 Pabst argues Barry is not applicable to the situation with
Sprinkmann because it did not engage Sprinkmann to specifically fulfill its
statutory duties under the safe place statute. Instead, Pabst contends that having
Sprinkmann deliver insulation did not mean that Sprinkmann took on safe place
statute duties to ensure the safe removal of asbestos-containing insulation from

15
Similarly, although Pabst may have contribution rights against Sprinkmann to the
extent of Sprinkmann’s negligence, those rights do not diminish the nature of Pabst’s statutory
duty to Gerald. See Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶42, 245 Wis. 2d 560, 630
N.W.2d 517.

28
No. 2022AP723

pipes. Pabst’s argument fails because it appears to ask us to determine that Pabst
did not delegate certain duties, which is not a fact question asked of the jury and
contradicts the conclusion of the circuit court.

¶55 More importantly, Pabst’s attempt to avoid the imputation of
Sprinkmann’s liability asks us to ignore the purpose of the safe place statute.
Under Wisconsin law, Pabst has the duty to construct, to repair, and to maintain a
safe place of employment or public building. WIS. STAT. § 101.11(1). Because
the property owner’s duty under the safe place statute is non-delegable, Pabst must
answer to Lorbiecki “for any violation of that duty regardless of whether another
party contributed to the violation.” Barry, 245 Wis. 2d 560, ¶43. It does not
diminish Pabst’s ultimate duty under the safe place statute that the jury was asked
to apportion the negligence attributable to each entity on the special verdict, nor
does the jury’s finding that Sprinkmann was 20% liable negate Pabst’s ultimate
responsibility for its work place. See id., ¶44.

¶56 Moreover, Wisconsin law supports imputing Sprinkmann’s
negligence to Pabst as a result of the safe place statute claim. “The duty of
defendant to furnish a reasonably safe working place being absolute, if such duty
be delegated by the master to another, negligence in that regard by such other will
be imputed to the master.” Driscoll v. Allis-Chalmers Co., 144 Wis. 451, 460,
129 N.W. 401 (1911). In other words, Pabst has an absolute duty to furnish a safe
place of employment. If Pabst invites another entity to its premises, such as by
contract to supply, repair, and remove asbestos-containing insulation, and then that
entity contributes to the unsafe condition of Pabst’s property, then the second
entity’s negligence is imputed to Pabst. Therefore, we conclude that the jury’s
apportionment of 20% negligence by Sprinkmann was properly imputed to Pabst
by the circuit court.

29
No. 2022AP723

E. Denying Pabst’s post-trial motion for JNOV

¶57 Pabst’s final argument is that the circuit court should have entered
judgment notwithstanding the verdict in Pabst’s favor because Lorbiecki’s claim
was legally insufficient for two reasons. First, Pabst argues that even if Gerald
was exposed to asbestos, it resulted from “acts of operation” of Gerald’s own
recklessness or negligence that falls outside of the safe place statute. Second,
Pabst argues that as the employee of an independent contractor, Lorbiecki cannot
sue Pabst “in tort.” We conclude that neither issue compels JNOV.

¶58 “[A] JNOV motion assumes that a jury verdict is supported by
sufficient evidence, but asserts that judgment should be granted to the moving
party on grounds other than those decided by the jury.” Dakter v. Cavallino, 2014
WI App 112, ¶16, 358 Wis. 2d 434, 856 N.W.2d 523, aff’d, 2015 WI 67, 363
Wis. 2d 738, 866 N.W.2d 656; WIS. STAT. § 805.14(5)(b). Because it presents a
question of law, we independently review the circuit court’s decision on a JNOV
motion. Management Comput. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206
Wis. 2d 158, 177, 557 N.W.2d 67 (1996).

1. The “acts of operation” exception to the safe place
statute

¶59 First, as Pabst acknowledges, this court concluded in Viola that the
“acts of operations” exception to the safe place statute—in which the plaintiff’s
own recklessness or negligence is a cause of the unsafe condition—was too
attenuated to apply to Viola’s asbestos-related claim. Id., 352 Wis. 2d 541, ¶24.
Pabst argues that Viola was incorrectly decided and that we should rely upon a
Supreme Court of Wisconsin holding that the safe place statute refers to an
“unsafe condition” at a place of employment, not “an act in the process of taking

30
No. 2022AP723

place.” Stefanovich v. Iowa Nat. Mut. Ins. Co., 86 Wis. 2d 161, 167, 271 N.W.2d
867 (1978) (citation omitted).16 Pabst argues that Gerald’s removal of asbestos-
containing insulation was a “negligent or inadvertent act” and not an unsafe
condition of the premises. See id., at 171.

¶60 In Viola, we made the distinction that the safe place statute applied
when asbestos was necessarily disturbed in the course of the regular maintenance
or repair of a structure, resulting in injury to the plaintiff. Id., 352 Wis. 2d 541,
¶25. The same distinction applies in this case. Further, Pabst has presented a legal
argument that would require us to conclude that Viola was incorrectly decided, an
action the court of appeals cannot take. Only the Supreme Court of Wisconsin has
“the power to overrule, modify or withdraw language from a published opinion of
the court of appeals.” Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246
(1997) (holding that the court of appeals is a unitary court that primarily has an
error-correcting function). We conclude that this JNOV argument fails and we
decline to further address the issue.

2. Tort liability for injuries to an independent
contractor’s employee

¶61 Pabst’s second argument is that the rule that “a principal employer is
not liable in tort for injuries sustained by an independent contractor’s employee
while he or she is performing the contracted work” should be expanded to apply to
safe place statute claims. See Tatera v. FMC Corp., 2010 WI 90, ¶2, 328 Wis. 2d

16
Notably, in so arguing, Pabst ignores that the removal of asbestos insulation created
airborne asbestos, an unsafe condition, to which other employees and frequenters were exposed,
distinct from the act of removing the insulation. Pabst does not discuss this unsafe condition in
the context of its challenge to Viola v. Wisconsin Elec. Power Co., 2014 WI App 5, 352 Wis. 2d
541, 842 N.W.2d 515.

31
No. 2022AP723

320, 786 N.W.2d 810. The circuit court dismissed Lorbiecki’s negligence claim
under this rule, but allowed the safe place statute claim to go to trial.17

¶62 Tatera analyzed duties under common law negligence in the context
of an independent contractor’s employee’s remedies for injuries on the job,
beginning with Wisconsin’s worker’s compensation statutes providing “the
exclusive remedy against the employer” for an injured employee. WIS. STAT.
§ 102.03(2). The Tatera court concluded that “a principal employer should be
generally protected from such tort liability because it has already assumed
financial responsibility for injuries to the independent contractor’s employees”
through the contract between the principal and independent contractor. Id., 328
Wis. 2d 320, ¶16. Accordingly, Gerald’s status as an employee of a contractor
working for Pabst negated a remedy in common law negligence under Tatera.

¶63 However, Gerald’s safe place claim is distinguishable. “The
standard of care that the safe[]place statute establishes is a higher standard of care
than that which the law imposes through common-law negligence.” Megal v.
Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶22, 274
Wis. 2d 162, 682 N.W.2d 857. The safe place statute imposes a duty on
employers and owners of places of employment “to their employees and their
frequenters.” Gennrich v. Zurich Am. Ins. Co., 2010 WI App 117, ¶16, 329
Wis. 2d 91, 789 N.W.2d 106 (emphasis omitted). “An employee of an
independent contractor doing work on the premises is a frequenter working in a

17
The United States District Court for the Eastern District of Wisconsin also concluded
that Tatera v. FMC Corp., 2010 WI 90, 328 Wis. 2d 320, 786 N.W.2d 810, would not bar a safe
place statute claim in Anderson v. Proctor & Gamble Paper Prod. Co., 924 F. Supp. 2d 996,
1003 (E.D. Wis. 2013). Although Pabst is critical that the circuit court relied upon Anderson in
its reasoning, we note that mandatory Wisconsin authority compels the same result.

32
No. 2022AP723

place of employment.” Hortman v. Becker Const. Co., 92 Wis. 2d 210, 226, 284
N.W.2d 621 (1979).

¶64 Consistent with this understanding, “the safe place statute addresses
unsafe conditions and common law [negligence] addresses negligent acts.”
Gennrich, 329 Wis. 2d 91, ¶23. Lorbiecki alleged a claim for a safe place statute
violation for an unsafe condition resulting in Gerald’s injuries. Under the holdings
in Viola, which we have no reason or authority to challenge, airborne asbestos
constituted an unsafe condition on the premises at Pabst. Id., 352 Wis. 2d 541,
¶25.; Cook, 208 Wis. 2d at 190.

¶65 Thus, a violation of the safe space statute falls outside the scope of
Tatera because such a claim is not based on a violation of common law duties, but
instead on the safe place duties owed to employees and frequenters. Pabst fails to
show how Tatera’s rule concerning common law negligence duties would negate
its heightened, non-delegable duty under the safe place statute. See Barry, 245
Wis. 2d 560, ¶42. We conclude that Tatera does not bar Lorbiecki’s safe place
statute claim. Pabst has failed to establish a legal insufficiency under Tatera in
Lorbiecki’s safe place statute claim. Accordingly, this JNOV argument fails.

II. Lorbiecki’s cross-appeal

¶66 Lorbiecki cross-appeals the order of judgment on the issue of the
calculation of punitive damages. Lorbiecki argues that the circuit court erred in its
application of the punitive damages statute, WIS. STAT. § 895.043, specifically
subsection (6) which provides that “[p]unitive damages received by the plaintiff
may not exceed twice the amount of any compensatory damages recovered by the

33
No. 2022AP723

plaintiff[.]”18 First, Lorbiecki asserts the circuit court ignored that punitive
damages are not governed by comparative negligence law.19 Tucker v. Marcus,
142 Wis. 2d 425, 436, 418 N.W.2d 818 (1988). Second, Lorbiecki argues that the
circuit court misapplied the meaning of “recovered” in § 895.043(6).

¶67 We review the facts. The jury attributed liability to five entities on
the verdict and awarded $6,545,163.55 in compensatory damages.20 It also found
that Pabst intentionally disregarded Gerald’s rights and awarded $20 million in
punitive damages against Pabst. The circuit court applied the statutory cap of
$350,000 on loss of society and companionship damages, under WIS. STAT.
§ 895.04(4), and reduced the total compensatory damages to $5,545,163.55.21
After imputing Sprinkmann’s liability to Pabst, the court found Pabst liable for
42% of the compensatory damages, for a total of $2,328,968.69. It then addressed
the punitive damage award. With consideration of the statutory cap imposed by
WIS. STAT. § 895.043(6), and the court set the punitive damages at double Pabst’s

18
Although WIS. STAT. § 895.043(6) was created in 2011, this issue presents a case of
first impression. See 2011 Wis. Act 2 § 23M.
19
WISCONSIN STAT. § 895.045 sets forth the law on contributory negligence. In its
comparative negligence subsection, it provides that “[t]he liability of each person found to be
causally negligent whose percentage of causal negligence is less than 51 percent is limited to the
percentage of the total causal negligence attributed to that person.” Sec. 895.045(1).
20
As discussed above, the jury’s award of compensatory damages totaled $6,545,163.55.
This amount was calculated as: $195,163.55 for medical and funeral expenses, $5 million for
pre-death pain and suffering, and $1.35 million for Carol’s loss of society and companionship.
21
We note that the record is not clear how or when the circuit court applied the statutory
cap on the jury’s $1.35 million award for loss of society and companionship. The apportionment
of damages should occur first, but in this case Pabst’s 42% of liability on the $1.35 million would
equal approximately $567,000, at which point the statutory cap would apply. Therefore, the
compensatory damages owed by Pabst were correctly determined. See Chang v. State Farm
Mut. Auto. Ins. Co., 182 Wis. 2d 549, 566, 514 N.W.2d 399 (1994) (providing the method of
applying the percentage of comparative fault before the application of any statutory maximums).

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No. 2022AP723

share of the compensatory damages, equaling $4,657,937.38. The court entered a
total judgment of $6,986,906.07.

¶68 Lorbiecki argues that the circuit court erred when it concluded that
the punitive damages must be limited in a ratio to Pabst’s apportioned share of the
compensatory damages. Lorbiecki contends that the punitive damages should
instead have been capped at $13,090,327.10, which equals double the
compensatory damages awarded by the jury, and not $4,657,937.38, as the court
concluded.

¶69 First, Lorbiecki argues that we must interpret the punitive damages
statute in compliance with Tucker, 142 Wis. 2d 425. Our supreme court discussed
that “Wisconsin has repeatedly recognized that the purposes of punitive damages
and compensatory damages are distinct[.]” Id. at 454. While compensatory
damages must be apportioned under the “statutory scheme of comparative fault”
under WIS. STAT. § 895.045, “the policy of punishing outrageous conduct by
awarding, where available, punitive damages [is] undiminished by proportional
negligence.” Tucker, 142 Wis. 2d at 452. The Supreme Court of Wisconsin
“expressly decline[d] to adopt an interpretation of section 895.045 under which
punitive damages would be deemed ‘damages for negligence’ and, as such, subject
to proportionate reduction.” Tucker, 142 Wis. 2d at 454. Lorbiecki contends that
under that holding, the circuit court erred when it calculated the cap of punitive
damages was double Pabst’s apportioned share of liability.

¶70 Second, the parties disagree about the meaning of the word
“recovered” in WIS. STAT. § 895.043(6). Pabst argues that the circuit court
correctly determined that “compensatory damages recovered by the plaintiff” is
limited to those compensatory damages that Lorbiecki can legally obtain from

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No. 2022AP723

Pabst in this lawsuit. Conversely, Lorbiecki argues that “recovered” refers to the
entire compensatory damages award against all parties liable to Lorbiecki before
the application of any statutory caps.

¶71 To resolve this issue, we must interpret the punitive damages statute,
WIS. STAT. § 895.043. “[T]he purpose of statutory interpretation is to determine
what the statute means so that it may be given its full, proper, and intended effect.”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d
633, 681 N.W.2d 110. We “apply the ordinary and accepted meaning of
language” when we interpret a statute. Seider v. O’Connell, 2000 WI 76, ¶32, 236
Wis. 2d 211, 612 N.W.2d 659. If the meaning is plain, then our inquiry ordinarily
stops. Kalal, 271 Wis. 2d 633, ¶45. The interpretation of a statute is a question of
law that we review independently. Waranka v. Wadena Ins. Co., 2014 WI 28,
¶15, 353 Wis. 2d 619, 847 N.W.2d 324.

¶72 The circuit court and Pabst relied upon Nelson v. McLaughlin, 211
Wis. 2d 487, 565 N.W.2d 123 (1997), in which the Wisconsin Supreme Court
interpreted the term “amount recovered” in WIS. STAT. § 807.01(4),22 which
governs interest on rejected offers of settlement when the party recovers an
amount larger than the settlement offer. Our supreme court held “that ‘amount
recovered’ in § 807.01(4) means that portion of the verdict for which a party is

22
In the statute on settlement offers, WIS. STAT. § 807.01(4) provides:

If there is an offer of settlement by a party under this section
which is not accepted and the party recovers a judgment which is
greater than or equal to the amount specified in the offer of
settlement, the party is entitled to interest [under a statutory
formula] … on the amount recovered from the date of the offer
of settlement until the amount is paid.

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No. 2022AP723

responsible, i.e., the judgment entered against the party, not including double
costs.” Nelson, 211 Wis. 2d at 505. Therefore, Pabst contends “the amount of
any compensatory damages recovered by the plaintiff” in WIS. STAT. § 895.043(6)
would be limited to the compensatory damages for which Pabst has been deemed
responsible. Pabst argues that only after that amount is determined does the circuit
court apply the statutory doubling rule for the cap on punitive damages.

¶73 Lorbiecki argues that Nelson does not provide compelling guidance
for interpreting the punitive damages statute because, as Nelson emphasized, its
interpretation was dictated by different phrases within the settlement offer statute,
namely the use of “judgment” and “amount recovered” in the same sentence. Id.,
211 Wis. 2d at 498-99, 510. Thus, on the specific terms and their usage within
this statute, the Nelson court concluded that “judgment” and “amount recovered”
should not be interpreted to have the same meaning. That is not the case in WIS.
STAT. § 895.043(6). Nelson also was guided by WIS. STAT. § 814.04(4), which
provided the calculation of “interest on [a] verdict” and explicitly differentiated its
rules from WIS. STAT. § 807.01(4). Nelson, 211 Wis. 2d at 500. We agree that
the punitive damages statute does not address the same issues as raised in
Nelson.23

¶74 We further reject Pabst’s argument because it ignores the statutory
context of punitive damages statute. “[S]tatutory language is interpreted in the

23
We observe that the conclusion in Nelson was also driven by potential unreasonable
results if “amount recovered” were interpreted to mean the entire verdict amount as opposed to
the amount of liability assessed against a particular defendant—e.g., unreasonably forcing
insurers to accept pretrial settlement offers rather than risk substantial liability for interest even
where the insurer’s liability is questionable or the appropriate amount of damages is highly
debatable. Nelson v. McLaughlin, 211 Wis. 2d 487, 502-03, 565 N.W.2d 123 (1997). No such
concerns exist here.

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No. 2022AP723

context in which it is used; not in isolation but as part of a whole; in relation to the
language of surrounding or closely-related statutes; and reasonably, to avoid
absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46. Pabst and the
circuit court’s attempt to define “amount recovered” through a statute on interest
relating to settlement offers fails to consider this term in the context of the punitive
damages statute or WIS. STAT. ch. 895.24

¶75 In contrast, Lorbiecki argues that the circuit court failed to consider
the plain and ordinary meaning of the language of the statute. Lorbiecki asserts
that at plain meaning, “the amount of any compensatory damages recovered by the
plaintiff” would refer to the jury’s determination of compensatory damages.
Lorbiecki argues that “recovered” is not the equivalent of a payment or a receipt,
but a right of relief. Lorbiecki relies on Black’s Law Dictionary, which offers
multiple definitions of “Recover” including “[t]o get back or regain in full or in
equivalence” and “[t]o obtain (relief) by judgment or other legal process.”
Recover, BLACK’S LAW DICTIONARY (11th ed. 2019).25

¶76 We conclude that within the context of chapter 895, “recover” and
“recovery” are understood in the ordinary and accepted meaning of obtaining
relief through legal process. See Recover, WEBSTER’S THIRD NEW

24
Recover (and recovery) are frequently used throughout WIS. STAT. ch. 895 on
damages. Examples include when a party may recover damages in certain wrongful death
actions, WIS. STAT. §§ 895.03, 895.031. There are limits on what may be recovered from parents
whose minor child commits certain acts. WIS. STAT. § 895.035. The contributory negligence
statute sets forth a framework on what may be recovered in negligence actions depending on the
plaintiff’s own negligence, the comparative fault of multiple tortfeasors, and product liability.
WIS. STAT. § 895.045.
25
Lorbiecki also relies on “Recovery” as defined as “[t]he regaining or restoration of
something lost or taken away” or “[t]he obtainment of a right to something (esp. damages) by a
judgment or decree.” Recovery, BLACK’S LAW DICTIONARY (11th ed. 2019).

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No. 2022AP723

INTERNATIONAL DICTIONARY (unabr. 1993) (offering definitions that include “to
get or win back”; “to gain by legal process”; or “to obtain a final judgment in
one’s favor”).

¶77 While Pabst argues that the plain meaning of “amount recovered” is
the recovery that the plaintiff will obtain from a particular defendant, this
construction falsely limits the plain meaning of “recovered.” “We will not read
into the statute a limitation the plain language does not evidence.” County of
Dane v. LIRC, 2009 WI 9, ¶33, 315 Wis. 2d 293, 759 N.W.2d 571. The plain
language of the statute does not support Pabst’s interpretation.

¶78 We conclude that within the punitive damages statute, “the amount
of any compensatory damages recovered by the plaintiff” is fixed in relation to the
plaintiff’s recovery—not to an amount connected to any particular defendant’s
liability or the plaintiff’s recovery from any particular defendant. “Recover” is not
the same as “receive a payment;” moreover, the statute here does not address any
practicalities of collecting a judgment. A plaintiff’s recovery arises out of the
calculation of compensatory damages, even if a plaintiff may never touch a
fraction of that amount due to other factors.

¶79 In conjunction with Tucker’s distinction that damages from
negligence were affected by apportionment but punitive damages were not, we
conclude that the clause “amount of any compensatory damages recovered” in
WIS. STAT. § 895.043(6) means the total amount of compensatory damages from
all parties found liable to the plaintiff.

¶80 Where we disagree with Lorbiecki is in the determination of “any
compensatory damages.” Here, the jury award for Carol’s loss of society and
companionship was reduced as a function of WIS. STAT. § 895.04(4). Although

39
No. 2022AP723

Lorbiecki argues the compensatory damages would equal the award in the jury’s
verdict before the application of any statutory caps, the maximum punitive
damages are formulated by statute in relation to the recoverable compensatory
damages.26 See Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 565,
514 N.W.2d 399 (1994) (“The statutory maximum is not a measure of damages,
nor a limit upon the amount of damage which may be awarded by the jury; rather
it is a limit only on recovery.”). Under these facts, the “award” consisted of the
amount the jury found on the verdict; whereas, “recovery” is the amount of the
award that a plaintiff has a legal right to enforce, after apportionment of liability
and application of statutory caps.

¶81 It would evade the logic of the punitive damages statute, and ignore
the plain meaning of the word “twice” in the statute, to have the maximum
punitive damages exceed twice the amount of compensatory damages that a
plaintiff was legally entitled to recover under a favorable judgment. See Kalal,
271 Wis. 2d 633, ¶47. Therefore, we conclude that the proper formulation of the
maximum punitive damages to which a plaintiff is entitled under WIS. STAT.

26
As our supreme court explained:

[A] party-beneficiary may prove damages in excess of the
statutory maximum, suffer a reduction in those damages for
contributory negligence pursuant to sections 895.04(7) and
895.045, Stats., and still be entitled to collect up to the statutory
maximum, assuming that damages equal to or greater than the
statutory maximum remain after reductions have been made for
his or her contributory negligence.

Chang, 182 Wis. 2d at 566. The same process is true here. The jury awarded $1.35 million for
Carol’s loss of society and companionship damages. Pabst’s 42% apportionment of liability was
applied first, then the statutory maximum cap was applied, and finally, combined with the other
damages, Lorbiecki’s compensatory damages against Pabst for the loss of society and
companionship were determined.

40
No. 2022AP723

§ 895.043 is double the total, recoverable compensatory damages after any
statutory caps are applied.

¶82 We now turn to Pabst’s argument that allowing the punitive damages
calculation based on total compensatory damages and not the apportioned
compensatory damages is an absurd result. Pabst contends that such a system for
punitive damages punishes Pabst for the wrongdoing of others. Punitive damages
have always been intended to serve as punishment and deterrence. See
Fahrenberg, 96 Wis. 2d at 234 (“Punitive damages are not awarded to
compensate the plaintiff for the loss sustained. They are allowed for purposes of
public policy to punish the wrongdoer and to deter … future similar
wrongdoing.”). Pabst ignores that the jury awarded $20 million in punitive
damages solely against Pabst; no imputation of punitive damages occurred, so
Pabst’s argument that it is being punished for the conduct of others is not
persuasive.

¶83 Pabst posits that interpreting the punitive damages statute to double
the entire recoverable compensatory damages would lead to an absurd result in
situations in which a 1% tortfeasor could be punished with 100% of the punitive
damages. In response, Lorbiecki argues that the cap on punitive damages does not
negate the court’s power to review a punitive damages award as excessive and
violating due process. See Management Comput. Servs., Inc., 206 Wis. 2d at 193
(“The Due Process Clause of the Fourteenth Amendment imposes substantive
limits on the size of punitive damage awards.”). Management Computer

41
No. 2022AP723

Services, Inc. also provided factors to determine whether a punitive damages
award was excessive.27

¶84 Nevertheless, we reject that our interpretation of WIS. STAT.
§ 895.043 leads to an absurd result. Although Wisconsin previously resisted
applying a fixed multiplier, Trinity Evangelical Lutheran Church & Sch.-
Freistadt v. Tower Ins. Co., 2003 WI 46, ¶63, 261 Wis. 2d 333, 661 N.W.2d 789,
the legislature created such a limit of no more than twice “any compensatory
damages” in 2011. 2011 WIS. ACT 2 § 23M. Section 895.043(6) acts to avoid
those constitutional concerns by capping punitive damages, and a two-time
maximum multiplier likely provides due process against excessive damages. State
Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single-digit
multipliers are more likely to comport with due process, while still achieving the
State’s goals of deterrence and retribution[.]”).

¶85 Under our interpretation, Pabst is correct that WIS. STAT. § 895.043
might not always prevent an unconstitutionally excessive punitive damage award
with regard to a particular defendant. But this is not an absurd result. When a
party alleges that a statute is unconstitutional on its face, “the challenger must

27
The Supreme Court of Wisconsin set forth the following factors for a circuit court to
consider as relevant to the facts of the case:

[T]he grievousness of the acts, the degree of malicious intent,
whether the award bears a reasonable relationship to the award
of compensatory damages, the potential damage that might have
been caused by the acts, the ratio of the award to civil or criminal
penalties that could be imposed for comparable misconduct, and
the wealth of the wrongdoer.

Management Comput. Servs., Inc. v. Hawkins, Ash, Baptie & Co., 206 Wis. 2d 158, 194, 557
N.W.2d 67 (1996).

42
No. 2022AP723

show that the law cannot be enforced ‘under any circumstances.’” Mayo v.
Wisconsin Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶24, 383 Wis. 2d
1, 914 N.W.2d 678 (citation omitted). This court’s interpretation of § 895.043
does not create a constitutional issue so much as it fails to prevent every possible
constitutional issue related to excessive punitive damages. We note that
§ 895.043(6) can only reduce a punitive damages award, it cannot increase the
difference between compensatory damages and punitive damages. Thus, Pabst’s
challenge fails because it cannot show that this interpretation of the punitive
damages statute would violate due process in every circumstance.

¶86 Further, Pabst has not challenged the actual punitive damages award
as excessive and in violation of due process. In other words, Pabst has not raised
an as-applied challenge to the statute. An as-applied challenge considers whether
the statute is constitutional for this party, under the particular facts in the case,
while the statute itself is presumed constitutional. Mayo, 383 Wis. 2d 1, ¶56.
However, we will not consider arguments Pabst has not raised. State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (concluding that we may
decline to consider undeveloped arguments).

CONCLUSION

¶87 We conclude that Pabst’s arguments fail. The evidence was
sufficient to sustain the verdict. The circuit court’s evidentiary and jury
instructions decisions were within its discretion. There was clear and convincing
evidence for the jury to consider punitive damages. The circuit court did not err
when it imputed Sprinkmann’s liability to Pabst. The circuit court did not err
when it denied Pabst’s motion for JNOV. We conclude that Lorbiecki’s cross-
appeal succeeds in part and we reverse the order of judgment in part. The circuit

43
No. 2022AP723

court erroneously calculated the punitive damages under WIS. STAT. § 895.043(6).
We instruct the circuit court to enter punitive damages in the amount of
$11,090,327.10, which equals twice the total compensatory damages previously
determined by the circuit court to be $5,545,163.55. The order of judgment of
Pabst’s liability for compensatory damages, $2,328,968.69, based on 42%
liability, remains as ordered previously. We instruct the circuit court to enter
judgment against Pabst for the new total, which equals $13,419,295.79. We
decline to order costs to either party.

By the Court.—Judgment affirmed in part; judgment reversed in part
and remanded with directions.

Recommended for publication in the official reports.

44