Michelle K. Ideker, Plaintiff - Appellant
PPG Industries, Inc.; PPG Industries Ohio, Inc.; Rohm & Haas, Defendants Harley-Davidson, Inc.; Harley-Davidson Motor Company Operations, Inc., Defendants - Appellees Midwest Medical Specialists, PC; Dr. Avon Coffman; Kansas City Cancer Center LLC; Dr. Sukumar Ethirajan, Defendants
Submitted: February 12, 2015.
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For Michelle K. Ideker, Plaintiff - Appellant: Michael S. Kilgore, Litigation Counsel, Kenneth Blair McClain, Lauren E. McClain, Daniel A. Thomas, HUMPHREY & FARRINGTON, Independence, MO.
For Harley-Davidson, Inc., Harley-Davidson Motor Company Operations, Inc., Defendants - Appellees: James Cirincione, Trevor Will, FOLEY & LARDNER, Milwaukee, WI; Kevin M. Kuhlman, Robert Kent Sellers, LATHROP & GAGE, Kansas City, MO.
Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
RILEY, Chief Judge.
In this diversity case, see 28 U.S.C. § 1332(a)(1), Michelle Ideker appeals the non-prejudicial dismissal of her work-related personal injury claim against her former employer, Harley-Davidson Motor Company Operations, Inc., and Harley-Davidson, Inc. (collectively, Harley-Davidson), on collateral estoppel grounds. The district court determined its prior dismissal of a nearly identical claim in a separate 2011 case, see Idekr v. PPG Indus., Inc., No. 10-0449-CV-W-ODS, 2011 WL 144922, at *3 (W.D. Mo. Jan. 18, 2011), precluded Ideker's relitigation of the issue in this case. With appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
On April 30, 2010, Ideker sued Harley-Davidson Motor Company Group, Inc. (HD Group) and others in federal district court, alleging she developed non-Hodgkins lymphoma from exposure to benzene while working in HD Group's paint department. On January 18, 2011, the district court dismissed Ideker's complaint against HD Group for failing to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). Deciding a matter of first impression in Missouri, the district court predicted the Missouri Supreme Court would require Ideker to raise her occupational disease claim against HD Group before Missouri's labor and industrial relations commission (commission) because her claim was " covered by Missouri's Workers' Compensation Law." On April 8, 2011, Ideker filed a workers' compensation claim with the commission, which is still pending.
Ideker's tort claims against the remaining defendants stayed before the district court until August 17, 2011, when the district court granted Ideker's voluntary stipulation of dismissal without prejudice. Ideker concedes the district court's dismissal of HD Group became final and appealable at that time.
Less than thirty days later, see Fed. R. App. P. 4(a)(1)(A), on September 13, 2011, the Western District of the Missouri Court of Appeals, over two separate dissents, issued an opinion that cast some doubt on the district court's state-law prediction. See State ex rel. KCP & L Greater Mo. Operations Co. v. Cook, 353 S.W.3d 14, 29-30 (Mo.Ct.App. 2011); accord Amesquita v. Gilster-Mary Lee Corp., 408 S.W.3d 293, 301 (Mo.Ct.App. 2013) (Eastern District) (agreeing with majority in KCP & L). In KCP & L, the Missouri Court of Appeals--examining Missouri's workers' compensation law as amended in 2005--determined Missouri's exclusivity provisions, Mo. Rev. Stat. § 287.120, did not bar common-law tort claims alleging occupational disease. KCP & L, 353 S.W.3d at 29-30.
Although Ideker's counsel was also counsel in KCP & L and frankly admits he was aware of the decision before Ideker's time to appeal expired, counsel explains Ideker did not appeal because " [a]t the time, there was little incentive for Ideker to seek appellate review requiring a ...