United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 7, 2019

Decided January 8, 2019

Before

DIANE P. WOOD, Chief Judge

DIANE S. SYKES, Circuit Judge

AMY J. ST. EVE, Circuit Judge

Nos. 18-1974 & 18-1975

PAMELA KILTY, as Special Administrator 

of the Estate of Elvira Kilty, et al., and

SCOTT SPATZ, as Special Administrator of 

the Estate of Herbert Spatz,

Plaintiffs-Appellees,

v.

WEYERHAEUSER COMPANY,

Defendant-Appellant.

Appeals from the United States District 

Court for the Western District 

of Wisconsin.

Nos. 16-cv-515-wmc & 16-cv-726-wmc

William M. Conley,

Judge.

O R D E R

Weyerhaeuser Company, the defendant in these two consolidated tort suits, filed 

this interlocutory appeal of the denial of its motion to dismiss. Because the district court 

has since entered summary judgment in its favor on the merits, the appeal is moot. We 

therefore grant the appellees’ motion to dismiss it.

We recount the relevant procedural history. Administrators of the estates of two 

deceased employees sued their former employer, Weyerhaeuser, under diversity 

jurisdiction. They alleged that the decedents acquired mesothelioma from “community 

exposure” to asbestos dust and fibers expelled from Weyerhaeuser’s plant. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
Nos. 18-1974 & 18-1975 Page 2

Weyerhaeuser moved to dismiss, arguing that the exclusive-remedy provision of 

Wisconsin’s Worker’s Compensation Act, WIS. STAT. 102.03(2), immunized it from tort 

suits brought by their former employees. Before the district court ruled on those 

motions, Weyerhaeuser moved for summary judgment on the merits. While the

summary-judgment motions were pending, the court denied the motions to dismiss, 

reasoning that the Act did not bar employee suits based on community exposure. 

After the district court denied the motions to dismiss, several events quickly 

occurred. First, Weyerhaeuser filed an interlocutory appeal to contest the denial of the 

motions to dismiss. Second, it moved to stay proceedings in the district court. Before the 

district court ruled on that motion, Weyerhaeuser asked this court for a similar stay. We 

denied the motion without prejudice so that the district court could decide the issue 

first. Then, one day after our ruling, the district court granted Weyerhaeuser’s motions 

for summary judgment and denied its motions to stay as moot. 

Once summary judgment was entered on the merits in favor of Weyerhaeuser, 

the plaintiffs asked us to dismiss the interlocutory appeal as moot. Weyerhaeuser 

opposed the motion, raising three contentions: (1) its interlocutory appeal divested the 

district court of jurisdiction to enter summary judgment, so the appeal remains live; (2)

the denial of the motion to dismiss is immediately appealable as a collateral order; and 

(3) the district court’s ruling about immunity is wrong. 

If this appeal is moot and must be dismissed for that reason, we need not decide 

the close question whether the district court’s ruling was immediately appealable as a 

collateral order. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949). 

Weyerhaeuser argues that it was immediately appealable because the Act immunizes 

the company from suit, not just liability. But when courts have interpreted other states’ 

worker’s compensation statutes, they have come to different conclusions. Compare

Black v. Dixie Consumer Prod. LLC, 835 F.3d 579, 583 (6th Cir. 2016), cert. denied, 137 S. 

Ct. 2294 (2017) (citing Beaver v. Oakley, 279 S.W.3d 527, 528 (Ky. 2009)) (Kentucky 

contractor immunity statute provides immunity from suit and is thus immediately 

appealable), with Freeman v. Kohl & Vick Mach. Works, Inc., 673 F.2d 196, 199–200 (7th 

Cir. 1982) (citing Crider v. Zurich Ins. Co., 380 U.S. 39 (1965)) (Georgia worker’s 

compensation statute provides immunity from liability and is thus not immediately 

appealable). This court in Freeman also offered this “strong argument” for denying 

collateral-order review: “the district court's order may be rendered moot by the 

subsequent course of the litigation.” 673 F.2d at 200. Because that is what happened 

here, we do not decide whether the collateral-order doctrine applies, nor do we review 

the district court’s interpretation of Wisconsin’s Act. 
Nos. 18-1974 & 18-1975 Page 3

Weyerhaeuser’s success on the merits at summary judgment moots this 

interlocutory appeal. “Ordinarily, only a party aggrieved by a judgment or order of a 

district court may exercise the statutory right to appeal therefrom.” Deposit Guaranty 

National Bank v. Roper, 445 U.S. 326, 333 (1980). If the appellant “was not harmed by the 

judgment, he lacks standing to appeal.” Chase Manhattan Mortgage Corp. v. Moore, 446, 

F.3d 725, 727 (7th Cir. 2006). Weyerhaeuser is not harmed by the adverse interlocutory 

ruling because, even if it was immune from suit under Wisconsin’s Act, summary 

judgment in its favor on the merits precludes any further risk of suit. As we anticipated 

in Freeman, the subsequent course of this litigation following the interlocutory order has 

rendered this appeal moot.

Weyerhaeuser’s responses do not persuade us otherwise. First, it contends that 

its filing of the notice of interlocutory appeal “divested the district court of jurisdiction 

over issues of Weyerhaeuser’s liability.” That is incorrect. The Supreme Court said in 

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982), that “[t]he filing of a notice 

of appeal ... divests the district court of its control over those aspects of the case 

involved in the appeal.” But “Griggs notes an important limitation on the rule that just 

one court at a time possesses jurisdiction: the doctrine applies only to ‘those aspects of 

the case involved in the appeal.’” Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995). 

This appeal seeks only a decision on immunity, not liability on the merits, and so the 

appeal did not divest the district court of jurisdiction over the merits. If it did, this court 

would not have answered Weyerhaeuser’s motion to stay the district court’s

proceedings on the merits by telling it to return first to the district court.

The Supreme Court’s decision in Grupo Mexicano de Desarrollo S.A. v. All. Bond 

Fund, Inc., 527 U.S. 308 (1999), shows both that, despite an interlocutory appeal, a 

district court can retain jurisdiction to decide the merits of a case and that the merits 

decision can moot the interlocutory appeal. There, while the appeal of a preliminary 

injunction was pending, the district court permissibly decided the merits and entered a 

permanent injunction. Id. at 313. The plaintiff argued that the permanent injunction 

mooted the preliminary-injunction appeal. Id. at 313. The Court reiterated that 

“[g]enerally, an appeal from the grant of a preliminary injunction becomes moot when 

the trial court enters a permanent injunction, because the former merges into the latter.” 

Id. at 314. A limited exception may apply if, by winning the preliminary-injunction

appeal, the defendant may recover against an injunction bond Id. at 317, 333. But this 

narrow exception does not apply here because Weyerhaeuser has no right of recovery 

(such as a bond) if the district court wrongly denied it immunity. See, e.g., Int'l Bhd. of 

Teamsters, Local Union No. 639 v. Airgas, Inc., 885 F.3d 230, 235–37 (4th Cir. 2018). 
Nos. 18-1974 & 18-1975 Page 4

With no bond at play, Weyerhaeuser replies that we must address the immunity 

question in order to spare it from the burden of future litigation. It relies on Goshtasby 

v. Bd. of Trustees of Univ. of Ill., 123 F.3d 427, 428 (7th Cir. 1997), where we said that “if 

the defendant is correct that it has immunity, its right to be free of litigation is 

compromised, and lost to a degree, if the district court proceeds while the appeal is 

pending.” But in Goshtasby the context was different. We were ruling on a motion to 

stay proceedings in ongoing litigation. No such motion is before us now because the 

case is over. If the district court had denied Weyerhaeuser’s stay motion without 

simultaneously entering summary judgment, Weyerhaeuser could have returned to us 

to argue that we should order a stay. But that sequence did not occur. And it need not 

have. Goshtasby clarifies that even when we stay district-court proceedings based on 

immunity, we do not do so because of “any formal division of ‘jurisdiction’ between 

trial and appellate courts—for an appeal from an interlocutory order may endow both 

courts with authority over discrete portions of the case.” Id.

Similarly, Weyerhaeuser unpersuasively argues that we may hear this appeal 

because the district court’s ruling will have a “practical preclusive effect,” even if not a 

“legally preclusive” one. It worries that, without an appellate immunity ruling, new

plaintiffs may pursue the same claim, and the company will be caught in “an endless 

merry-go-round.” First Nat’l Bank v. Comptroller of Currency, 956 F.2d 1360, 1363 (7th Cir. 

1992). But that concern is not present. For one thing, the “endless merry-go-round” in 

First National Bank was litigation between the same two parties. Id. That cannot happen

here—Weyerhaeuser prevailed on summary judgment, so the parties’ disputes are over. 

Second, nothing precludes Weyerhaeuser from asserting statutory immunity if sued by 

new plaintiffs. And if a court denies immunity again, Weyerhaeuser may seek an 

expedited interlocutory appeal to reduce the risk that its new appeal might become 

moot. Finally, a fear of the collateral-estoppel consequence of a decision is not by itself 

grounds to appeal it. LaBuhn v. Bulkmatic Transp. Co., 865 F.2d 119, 122 (7th Cir. 1988). 

Likewise, this appeal does not remain live under the limited rule Weyerhaeuser 

invokes from Camreta v. Greene, 563 U.S. 692 (2011). There, the Court carved another

slim exception to the presumption that a prevailing party cannot appeal. The case 

involved a public official who, the Ninth Circuit decided, violated a constitutional right 

but prevailed on qualified-immunity grounds because the right was not clearly 

established. Id. at 703. The Court ruled that the official could appeal the adverse ruling 

of substantive constitutional law because otherwise the Ninth Circuit’s decision, if 

wrong, would adversely affect how that official discharged public duties in the future. 

Id. Weyerhaeuser’s appeal does not fall within this exception for two reasons. First, the 

question whether Weyerhaeuser is immune from suit does not bear on how it handles 
Nos. 18-1974 & 18-1975 Page 5 

its substantive legal duties to the public. Second, in Camreta, the appellee had won on 

the substantive right, and so the appellant had a “stake in preserving the court’s ruling”

on immunity. Id. Here the appellees lost on the merits; this left them with no stake on 

appeal.

Weyerhaeuser’s final argument is self-refuting. It suggests that if we rule that it is

not immune, we “should remand the case with instructions to re-enter the 

summary-judgment order.” And if we rule that it is immune, we “should vacate the

summary-judgment order and remand with instructions to grant Weyerhaeuser’s

motion to dismiss.” Weyerhaeuser thus presents an appeal in which the only thing that 

it asks us to decide is how it wins, not whether it wins. That is not an adequate reason for 

us to hear the appeal. See LaBuhn, 865 F.2d at 121–22 (desiring “the greater authority of

an appellate decision,” and fearing “a Pyrrhic victory” do not justify pursuing an

appeal). 

Thus, the appellees’ motion to dismiss the appeals is GRANTED, and the appeals 

are DISMISSED.