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From Products Liability Law Daily, June 18, 2018

Silicosis victim’s defective respirator lawsuit survives evidentiary challenge

By Georgia D. Koutouzos, J.D.

A material fact remained in dispute as to whether a man diagnosed with silicosis after years of work drilling concrete had been inadequately protected from respirable silica based on a defect in 3M Company’s protective respirators, a Pennsylvania federal court determined, denying the respirator maker’s motion for summary judgment in the ailing man’s product liability lawsuit against the manufacturer. While the patient did not offer any direct evidence of his actual worksite exposure levels, he did submit evidence that an individual would be overexposed to airborne respirable silica when wearing the at-issue respirator, the court reasoned (Rothenbecker v. 3M Co., June 15, 2018, Caputo, R.).

A former sheet metal worker who had worked at various jobs in which he drilled, cut, or chipped concrete and who often wore a protective respirator made by 3M Co., sued the company after having learned that he had contracted silicosis (i.e., lung fibrosis caused by the inhalation of dust containing silica). The ailing man contended that he had been overexposed to inhalable silica when cutting or drilling concrete even though he wore a 3M respirator and that because of the respirator’s failings, the manufacturer was liable under negligence and strict liability theories encompassing both warning and design defects. 3M removed the case to federal court and moved for summary judgment on the basis that the plaintiff failed to establish that its respirators were the proximate cause of his injuries.

Introduced for "protection against pneumoconiosis-producing and fibrosis-producing dusts," the product predominantly at issue in the litigation—3M’s 8710 respirator—received a certificate of approval from the National Institute of Occupational Safety and Health and the U.S. Bureau of Mines in 1972. It also was approved by the U.S. Occupational Safety and Health Administration for use in environments where exposures to certain substances did not exceed 10-times the permissible exposure limit (PEL).

Causation. 3M argued that the ailing man could not prove that the subject respirator had failed to perform as intended such that its use was the proximate cause of his injuries. Respirators are designed to reduce, but not eliminate, exposure to airborne contaminants like silica, the company said, arguing that the 8710 respirator was designed to reduce a person’s exposure to within the PEL in an environment where the concentration of airborne respirable silica is no more than 10-times the PEL.

In that regard, the plaintiff had no proof regarding the levels of silica exposure at his work environments because no witness came forward with any air-monitoring data from his workplaces to quantify his exposure levels, 3M maintained, arguing that without evidence as to the contaminants present at the sites where the ailing man worked, a jury would be unable to determine whether he had been inadequately protected because of a defect in the respirator or whether, alternatively, his respirators simply were not the right respirators for the concentrations of silica to which he had been exposed.

However, the company did not cite any authority that requires a plaintiff to present such evidence in an action claiming exposure to unsafe levels of contaminants due to allegedly defective safety equipment, the court found, adding that persuasive authority suggested otherwise. Although the ailing man did not offer any direct evidence of his actual worksite exposure levels, he did submit evidence that sheet metal workers are exposed to respirable silica levels exceeding government regulations, the court observed. Specifically, he presented evidence regarding the levels of airborne respirable silica when cutting or drilling holes in concrete. According to that evidence, airborne respirable silica levels when drilling holes in concrete is slightly more than three times the PEL. In addition, there was evidence in the record that a sheet metal worker such as the plaintiff would be overexposed to airborne respirable silica when wearing a 3M 8710 respirator.

Based on the above, a material fact remained in dispute as to whether the ailing man had been inadequately protected from respirable silica based on a defect in 3M’s respirators, the court concluded, denying the company’s motion for summary judgment.

The case is No. 3:17-CV-0585.

Attorneys: Barry H. Dyller (Law Office of Barry H. Dyller) for John Joseph Rothenbecker, Jr. Basil Anthony DiSipio (Lavin, O’Neil, Cedrone & DiSipio) for 3M Co.

Companies: 3M Co.

MainStory: TopStory CausationNews ChemicalNews EvidentiaryNews DesignManufacturingNews PennsylvaniaNews

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