2024 WI App 33

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2022AP723

Complete Title of Case: 

PRE filed June 6, 2024

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

DATED AND FILED

May 7, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

4

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),1in 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.
No. 2022AP723

5

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.
No. 2022AP723

6

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. 
No. 2022AP723

7

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. 
No. 2022AP723

8

¶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. 
No. 2022AP723

9

¶14 Wisconsin’s safe place statute, WIS. STAT. § 101.11,5is a negligence 

statute that provides that an employer or property owner has a heightened, nondelegable 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.
No. 2022AP723

10

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 asbestoscontaining 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.”
No. 2022AP723

11

¶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[.]”
No. 2022AP723

12

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 
No. 2022AP723

13

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.” 
No. 2022AP723

14

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 
No. 2022AP723

15

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 
No. 2022AP723

16

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.
No. 2022AP723

17

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 
No. 2022AP723

18

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. 
No. 2022AP723

19

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 
No. 2022AP723

20

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.”
No. 2022AP723

21

¶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. 
No. 2022AP723

22

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). 
No. 2022AP723

23

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). 
No. 2022AP723

24

¶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 
No. 2022AP723

25

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.
No. 2022AP723

26

¶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). 
No. 2022AP723

27

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 posttrial 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 
No. 2022AP723

28

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.
No. 2022AP723

29

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. 
No. 2022AP723

30

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 
No. 2022AP723

31

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 asbestoscontaining 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.
No. 2022AP723

32

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. 
No. 2022AP723

33

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 
No. 2022AP723

34

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). 
No. 2022AP723

35

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 
No. 2022AP723

36

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. 
No. 2022AP723

37

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.
No. 2022AP723

38

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). 
No. 2022AP723

39

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 
No. 2022AP723

40

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. 
No. 2022AP723

41

§ 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 
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42

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). 
No. 2022AP723

43

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 crossappeal succeeds in part and we reverse the order of judgment in part. The circuit 
No. 2022AP723

44

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.