Liability Lawsuits Galore Dog 3M Over Dust Masks

Greg Gordon, Star Tribune Washington Bureau Correspondent

April 18, 2004

WASHINGTON, D.C. -- Minnesota's biggest manufacturer, 3M, is awash in litigation over a quarter-ounce mask that sold for less than a buck but was advertised as a lifesaver.

Suits allege that 3M marketed its disposable respirator for more than 25 years although it was defective and exposed thousands of workers to asbestos, silica and other deadly dusts. One former senior government scientist who is aiding the plaintiffs says government testing of the safety of 3M's and its rivals' single-use masks was so inadequate in the 1970s and 1980s that the workers may as well have been "guinea pigs."

But 3M, based in Maplewood and listed among Fortune Magazine's "Most Admired Companies," says it's the victim of a legal system run amok. It has been barraged by more than 388,000 suits over its Model 8710 mask and allegations that it marketed an earlier, unapproved nuisance-dust mask to hazardous industries. The company says that the suits are mostly groundless and that many of those filing them didn't even use its masks.

Jim McNerney, 3M's chief executive officer, is seeking help in Congress.

He has personally urged Sens. Mark Dayton, D-Minn., and Norm Coleman, R-Minn., to vote for legislation that would limit much of 3M's potential liability by settling the nation's present and future asbestos injury litigation. Republican leaders plan to bring the bill, which sets up an industry-financed trust fund that would pay victims $124 billion over 27 years, to the Senate floor this week.

GOP leaders have used a $150 million Mississippi jury award last year as a poster child for the legislation. As part of the judgment, the jury ordered 3M to pay $22.5 million to four workers with scarred lungs but few symptoms of disease -- a judgment the company is so confident will be overturned that it has not set aside the money. The company has won the four other suits that have gone to trial.

3M says it resolved 300,000 of the suits -- mostly in the past few years -- for nearly $300 million, an average of less than $1,000. Now the state of West Virginia is suing 3M and two other respirator makers, seeking to recover hundreds of millions of dollars in workers' compensation costs for more than 20,000 coal miners it says wore the masks and got black lung disease or silicosis.

The legal system, says 3M Assistant General Counsel John Allison, is "out of control."

But more than a half-dozen trial lawyers in Texas, Louisiana and Minnesota present a sharply different view of 3M's manufacture and sale of billions of dust masks. Documents emerging in those cases not only shed light on 3M's conduct but also point to government failures in regulating respirators.

In 1994, Nelson Leidel, a senior scientist at the National Institute for Occupational Safety and Health (NIOSH), wrote to the agency's chief that over the previous 22 years, "millions of American users of NIOSH-approved dust masks were irresponsibly put at risk of sickness or death from occupational diseases." He blamed "major procedural errors" by agency officials, including NIOSH's approval of disposable masks such as 3M's.

In 1979, while thumbing through testing records, Leidel discovered that 3M's masks were recertified in 1977 despite failing a key test of their resistance -- how hard a worker would have to breathe as the filter got increasingly clogged. Experts say that if a worker has to huff and puff, the mask's face seal is more likely to leak. Leidel, at the time, fired off a memo urging NIOSH certification officials to consider revoking the 8710's approval.

"We share your concern over the irregularities..." safety engineer William Cook responded weeks later. "It is obviously impossible to defend that certification decision."

But he said the 3M test was only "the tip of the iceberg."

"We have reason to believe that our certification files are well populated with similar irregularities."

Growing market

In 1962, 3M rolled out a single-strap, nuisance dust mask -- Model 8500 -- that would be displayed on hardware store shelves for the next 40 years. It sold at first for as little as 13 cents.

The company's marketing team saw the potential. 3M boasted in ads that the mask was "90.6 percent efficient (by weight) in filtering dust." While the ads recommended the mask for "non-toxic nuisance dust," an internal 1964 memo proposed running ads in magazines aimed at foundries, shipyards, steel plants, automotive factories, textile mills and spray painters -- job sites where hazardous substances filled the air.

Many of the pending suits accuse 3M of targeting workers exposed to toxic dust to buy the mask.

Larry King, a 3M trial lawyer, said those industries were targeted only for "non-toxic" uses. He said that not "a single person from 1960 to today" has alleged being misled by the ads. He said readers of trade journals were "sophisticated enough to know the difference between the masks and a respirator."

Rather than harming workers, 3M's Allison said in an interview, the company is the victim of a tidal wave of unwarranted suits, many of them brought by unscrupulous trial lawyers who have crossed the country with "18-wheelers" equipped with X-ray equipment for mass screenings of workers' lungs. Each suit names an average of 88 defendants, often including 3M regardless of whether the worker ever wore one of its masks, the company says.

Company memos tracked an exploding market for the 8500s: sales of 3.5 million masks in 1962, 16 million in 1966 and 32 million in 1970.

By the mid-1960s, 3M was at work on a more ambitious model -- 8710 -- for use against the growing peril of asbestos and other toxins.

When the 8710 was ready to be tested for government certification, it faced a silica dust test that gauged a mask's filtration ability and resistance.

Critics say the test could give a false impression of a respirator's filtration ability, because the silica penetration was measured by weight. Leidel, in an interview, called it "a silly test" because it used particles of varying sizes. He said a respirator might block 99 percent of the silica particles by weight, but only 60 or 70 percent by count. The tiniest particles, those smaller than 0.5 micrometers, which are invisible to the eye, penetrate farthest into the lungs and are the most hazardous, he said.

King disputes such assertions, asking, "Where is there published work that supports this hypothesis?" He also defended the silica dust test as "a valid way of evaluating the filtration efficiency of respirators."

NIOSH relied on the test until 1995, when it replaced it with a test of smaller, similar-sized sodium chloride particles.

Leidel said NIOSH created a crucial void in its respirating testing in 1972 when it decided to drop a test measuring how well a mask fit on the wearer's face. No fit test has been adopted since. Leidel said NIOSH's "testing requirements were so minimal as to be essentially public health fraud" and using workers as "guinea pigs." 3M's Allison dismissed Leidel as "out of the mainstream" at NIOSH and philosophically opposed to disposable respirators. Leidel was a boat rocker at the agency, but in 1993, two years before his retirement, he won the agency's Meritorious Service Medal for his work on respirator standards.

Sandblaster Tim Davis, 47, a father of four from Harned, Ky., put on a protective "fresh-air hood" while spraying sand on rusted tanks and walls from 1976 to 1991 and wore an 8710 during preparatory and cleanup work in his hazardous trade.

Davis suffers from silicosis, a progressive, oft-fatal disease that gradually stiffens the lungs and is caused by inhaling silica dust. After he underwent surgery for removal of lobes from his lungs, 3M agreed to a confidential settlement of his suit.

Davis, who did much of his work on Minnesota water towers, said he wakes each day thankful his name was "not in an obituary." He said he and his co-workers "thought we were being protected" with the 8710.

Another silicosis victim, Leonard Gray, 71, of Minneapolis, wore both 3M's nuisance dust mask and the 8710 and a later 3M model during more than 35 of his 47 years at the Smith Foundry Co. on E. 28th Street, said one of his Hastings lawyers, Mike Strom.

"I'm just proud to be here after that surgery," Gray said. "I can't do things I used to do."

Gray's work history illustrates the complexity of the respirator litigation, because he worked for 11 years before the 8500 mask became available. Gray's lawyers argue that because the masks did not protect him, he continued to breathe harmful dust, worsening his injury.

'Revolutionary' mask

On May 24, 1972, 3M's 8710 won federal certification for use against asbestos, silica and other fibrosis-producing dusts, and the company blitzed the industrial world with ads touting its "revolutionary," cheap, comfortable mask that had eliminated "99 percent" of particles in government tests.

NIOSH rated the respirator with a "protection factor" of 10 for those dusts -- meaning it could be relied on to filter up to 10 times their allowable exposure limits. But after testing it and other throw-away masks, the University of California's Los Alamos Scientific Laboratory rated it a 5.

"At 3M, we like to talk in terms of our brand promise," said Allison, the 3M counsel. He said workplace studies of its mask -- including at a brake shoe plant and a battery plant -- in the 1980s and 1990s "demonstrate that we've far exceeded that brand promise" to protect workers at 10 times the allowable limit.

But Rodney Vincent, whose law firm has litigated against respirator makers, said NIOSH had approved "a whole class of respirators that ... though relied upon by American workers, would actually contribute to exposures leading to lung disease."

In 1975, 3M ran into a snag that threatened its approval, according to testimony in December by Robert Schutz, a 78-year-old retired NIOSH chief of laboratory testing who oversaw the 8710's approval.

In a sworn deposition, Schutz testified that three years after the 8710 hit the market, NIOSH ran the silica dust test on 25 masks. They were tested in a different facility than when the 8710 was originally certified -- NIOSH's lab in Morgantown, W.Va., rather than the Bureau of Mines' lab in Pittsburgh.

Auditors found that when the masks loaded up with dust, they did not meet the resistance threshold, and that the straps were too short, making them uncomfortably tight. NIOSH regulations called for revocation of the mask's approval, but Schutz testified that he sent the company a letter directing it to fix the problems immediately.

3M officials fixed the strap lengths but concluded their 8710 could not pass the test in the new lab because of its higher humidity settings, according to company memos introduced in court. In an internal company memo, Einar Horne, a 3M official involved in developing respirator products, wrote that he had asked Schutz to ease the agency's resistance threshold, but Schutz refused because a 3M competitor's mask had narrowly passed the test. Some of 3M's competitors, however, were having similar problems with the Morgantown lab's testing, Schutz said.

Schutz said he ultimately chose to effectively look the other way while 3M addressed the problem. Internal 3M documents show its masks overwhelmingly failed its own quality control checks in 1977, 1978 and 1979. Schutz testified that, if 3M had informed him of those test results, he might have revoked its certification.

But King said the reason the masks failed 3M's tests was because it, too, changed the settings in its own testing lab to match NIOSH's and that agency auditors were aware of that. The masks remained safe for workers; it was just the test procedures that had changed, he said. Houston attorney Mike Martin, who questioned Schutz, was skeptical.

"They were able to keep all of this under the radar and sell the masks," Martin said. "That mask was their 'on ramp' to the highway to get into the business. They built their entire respirator division around the 8710. It would have been a huge deal if 3M would have had to take this mask off the market in 1975 like they should have."

In ensuing years, 3M improved its product several times, including adding an electrostatic charge that repelled dust. In 1980, the improved 8710 won expanded approval for use against mists containing lead and cancer-causing arsenic, cadmium and chromium.

But both NIOSH and its sister agency, the U.S. Occupational Safety and Health Administration, were beginning to tighten controls on disposable masks. In 1982, a Western region OSHA industrial hygienist, William Gribble, wrote his supervisors that 3M's masks "are dangerous because employees are using them for protection ... against carcinogens such as asbestos.

"Many times I have examined these respirators during and after employees have worn them, to find nearly as much visible contaminant inside the mask as on the surface outside. Every expert on respiratory protective devices I have talked to, including those in NIOSH and Los Alamos ... has denigrated this respirator."

Meantime, in 1980, top NIOSH officials wrote 3M and other disposable-mask makers, expressing concern that those products might be inadequate to protect workers against asbestos, by then a known cancer-causing agent. While the Norton Co. and some other 3M competitors recommended to their customers that they use a higher-quality respirator, 3M fought government rules prohibiting use of the masks for asbestos, until losing its appeal in 1986.

In 1986, company memos showed 3M's 8710 sales had shot up to 64.8 million masks.

Allison and King said, however, that none of 3M's critics has ever produced workplace studies to contradict its own, which indicate that the 8710 outperformed the government's standards by as much as 70-fold.

Rich Metzler, director of NIOSH's national personal protection technology lab, said the 8710 could not pass NIOSH's 1995 standard, and 3M stopped selling it in the United States in 1998 at the close of a three-year transition period.

Greg Gordon is at ggordon@mcclatchdc.com

** POSTED JUNE 30, 2003 **