Judge William M. Conley will be deciding if 3M’s respirators could have done more to protect workers—six who died and one who is sick—from asbestos exposure at a Weyerhaeuser door manufacturing plant in Wisconsin.
Asbestos was supposed to have been utilized as a fireproofing insulation material in the manufacturing of doors at the plant for decades. Yet, 3M’s 8710 respirator given to employees by Weyerhaeuser did not come with health risk warnings and ample protection against asbestos fibers.
The mesothelioma death claims on behalf of Richard Masephol, Urban Pecher, Valmore Prust, Roger Seehafer, Sharon Heckel, and Rita Treutel are being consolidated in pre-trial with the only living worker’s case—Milton Boyer.
The trial will be bifurcated, or split, into phases with the first phase covering common claims with liability and the second to explore causation and damages. Judge Conley is working with complex multiparty causation problems such as separating the possible exposure in the plant from factors outside in the plaintiffs’ communities and households.
In June, it was ruled that asbestos was released into the air and outside community by the plant, which gave a basis for causes of action to include negligence, strict liability, and nuisance. The Clean Air Act preempted the claims though as they were supported by federal clean air requirements.
In November, it was ruled that Dr. Daniel Brody must be available for a deposition by 3M even though he’ll be testifying on the functionality of the lungs and science of asbestos-related diseases and was already questioned by 3M in a different case.
Any opposition did not help as the court said, “Regardless of 3M’s familiarity with Brody, it has a right under Rule 26 to depose Dr. Brody.” If he doesn’t provide a deposition in time, it will result in “plaintiffs being prevented from offering his testimony at the trial against 3M.”
3M has a history of asbestos due to the hazardous chemicals being used in its products before the ban of 1977 by the U.S. Consumer Protection Safety Commission. Caulking compounds and adhesives such as 3M’s Caulk, Sticky Tar Caulking, Adhesive, and Wet Adhesives products may have contained asbestos.
However, the majority of asbestos-related lawsuits and claims against 3M involve the company’s mask and respirator products, including the 8710 in this consolidated suit. The actual products did not have asbestos, but they’re thought to not offer sufficient protection against occupational dusts.
With the 8710 respirators, the U.S. Occupational Safety and Health Administration (OSHA) approved the disposable masks for use in areas of asbestos exposure that didn’t exceed the permissible exposure limit (PEL). When the PEL was decreased, 3M took the 8710 off the market as “an approved respirator for use with asbestos.”
If Doctors Frank M. Parker III, Henry A. Anderson, and Jerrold L. Abraham meet the admissibility standards required by the U.S. Supreme Court, then they can testify as additional experts on behalf of the plaintiffs.
In November, the court did note that the negligence claim “appears likely to survive the motion.”
