3M, Toxic Torts, and Product Liability
The industrial conglomerate 3M started life as Minnesota Mining and Manufacturing in 1902. Since that time, the company has grown into one of the largest corporations in the world, currently ranked at #103 on the Fortune 500. Makers of Scotch tape and other widely used products, the company also has a long history of fighting and settling litigation alleging mass tort malfeasance. The list extends well beyond just dual-ended combat earplugs, the subject of an explosive, well-publicized ongoing multidistrict litigation effort.
This article is the fourth in a series of five that will examine 3M’s recent history as a defendant, its legacy of settlements and the strategies and tactics they use to fight mass tort claims against the company.
There is a junction within the mass tort universe where toxic torts and product liability intersect. 3M has found itself straddling that line quite frequently even as it grows stronger as a dominant player in the industrial manufacturing sector.
This is a history that precedes 3M and its chemical manufacturing peers’ looming wave of litigation alleging serious injury from PFAS products. Part 3 of this series discussed the history of these so-called “forever chemicals,” and current cases such as multidistrict litigation in South Carolina claiming injuries caused by PFAS-based aqueous film-forming foam.
Interestingly, though, one particular 3M product, the 8710 model respirator mask, has been the focus of broad-scale litigation efforts involving three classes of dangerous airborne dust particles: asbestos, coal dust and silica.
The mask, made primarily of polyurethane and polypropylene, is itself not toxic. Yet allegations of 8710 mask design defects; ineffective testing, performance, and user training; and failures to warn about both have walked through American courtroom doors for years.
Much of the alleged harm’s origins date to the 1970s and earlier. 3M stopped selling the 8710 model in the U.S. in 1986 (though it is still marketed in Australia and New Zealand). Even so, awareness of respiratory illnesses such as mesothelioma and pneumoconiosis continue to swell—as does the legal tide against 3M tied to their old respirators.
Perhaps this comes as a surprise. 3M may be the pre-eminent maker of protective masks for workers and other people who find themselves in regular proximity to toxins and viruses.
N95 masks have become a cultural staple of the COVID-19 pandemic due the mask’s role in protecting frontline workers. And 3M makes a whole lot of them: The company estimates it is now producing just short of 100,000 N95 masks a month.
Still, if their record on court dockets is any indication, they don’t always score a hundred with their masks. The defects and alleged bad corporate behavior cited in complaints centered on the 8710 masks usually include some combination of:
- The inherent inadequacy of the masks to protect users from toxic dust at high levels
- “Pressure drops” and air leakage caused by improper fit
- Alterations to the masks during shipping that remained uncured, without word from the company on how to correct these alterations
- Lax testing standards and a failure to report adverse results
- Failures to warn of defects or of the risks tied to prolonged exposure, or to raise awareness of how best to wear the masks
Here, we examine some specifics of 3M’s litigation battles concerning asbestos, coal dust and silica.
3M, Toxic Torts and Product Liability—Asbestos: Not Just About Adhesives
In re: Asbestos Products Liability Litigation, a multidistrict litigation effort in Eastern District of Pennsylvania, dates all the way back to 1991. The MDL’s formation occurred soon after the Environmental Protection Agency’s decision in 1989 to impose a near-total ban on future use of the fibrous material once used to insulate office walls, protect the sides of houses and resist heat, among other uses.
By 2009, the number of claims being transferred to the MDL Court had grown so intense that the judge in the case was forced to severely limit the docket moving forward. The Judicial Panel of Multidistrict Litigation reports that as of June 15, 2021, only 26 cases representing 192,120 claims were on the current docket.
Asbestos matters do still continue to permeate the usual federal and state court dockets. Trust funds totaling more than $30 billion to fund future settlements have been accumulated by 60 defendants.
How does 3M fit into the asbestos story? The company has been a defendant in the giant MDL and in other forums, as it manufactured and sold products containing asbestos, mainly sealants such as adhesives, caulk and cement, starting in the 1930s. It continues to be a defendant in claims alleging harmful exposure to its asbestos products. For instance, a case naming dozens of defendants is alive now in Connecticut state court.
However, most of 3M’s legal liability connected to asbestos stems from those 8710 masks and design defect claims. The online information clearinghouse and advocacy organization mesothelioma.net estimates that 3M has settled approximately 300,000 cases claiming the masks proximately caused asbestos-related plaintiff injuries.
In one publicized series of cases, one lot of publicized 8710 mask cases originated from the same Weyerhaeuser door factory in Marshfield, Wis., in the mid-2010s. These actions alleged that at least six employees died from illnesses caused by fireproofing insulation material used in the doors they helped create. Results in the cases were mixed, as some settled, and some were dismissed.
Coal Dust: Miners Earn Their “Black Lung” Sum from 3M
The struggle of career coal miners in Appalachia with “black lung disease” has been well documented in recent years. The Centers for Disease Control and Prevention has even produced videos featuring horrific images of lungs by extreme intake of coal dust.
Responsibility does not just lie at the feet of the coal mining companies or business-friendly regulators anymore. Juries in Knott County, Ky., have in recent years have awarded punitive damages to miners suing 3M for the 8710 mask’s failure to keep them safe on the job. In one 2018 case, the policy-making rumble of tort punishment was massive: $62.5 million in punitive damages to two brothers suffering from black lung.
That decision seems to have triggered a rush to bring suit against coal mining companies not just in Kentucky and West Virginia but also nationwide. Landing pages promising 3M-linked “dust mask lawsuit” consultations have popped up all over the Internet. Many of these explicitly reference the big payout in Kentucky.
Silica: From an MDL Failure to Renewed Scrutiny
An ill-fated MDL effort that aggregated silica claims from more than 15 years may be a good lesson for mass tort professionals in what not to do.
Silica is an oxide found in quartz, sand, and other minerals. Starting in 2003, speculation began over whether silica would be the next big mass tort after asbestos. Attorneys and medical screening companies in Mississippi tried their hardest to make it happen, and an MDL targeting 8710 masks and many other products was formed in 2005 in the Southern District of Texas.
As it turns out, 9,000 of the silicosis claims in the MDL were diagnosed by only 12 doctors.
“To place this accomplishment in perspective, in just over two years, [a screening company] found 400 times more silicosis cases than the Mayo Clinic (which sees 250,000 patients a year) treated during the same period,’” U.S. District Court Judge Janis Graham Jack wrote at one amusing point in a ruling that effectively killed the MDL.
Jack stated the plaintiffs used “fraudulent misjoinder of claims” that masked a lack of sufficient diversity jurisdiction to support a federal cause of action.
This collapse of the silica MDL did not actually mean that long-term illness from silica was not a thing to take seriously. Within the past few years, renewed efforts to combat silicosis have intensified.
As evidence of this, the Occupational and Safety and Health Administration (OSHA) updated its main silica protection rule several years to significantly raise the required level of protections for foundry workers, sandblasters and other professionals exposed regularly to silica dust. The new rule caught the attention of 3M, which released a two-page brochure describing its “respiratory protection options” that comply with the updated OSHA silica rule.
A Final Thought On 3M, Toxic Torts, and Products Liability
The lawsuit-laden journey of the 3M Model 8710 Disposable Respirator can be seen as an alarm that toxic tort offenses may be more pervasive than we may think initially on the surface. However, it could also be seen as an opportunity for mass tort professionals to refine their skills as factfinders and case evaluators. Sure, exposure to poison chemicals and dust was awful, but how was the protection against them? Were any other remediation efforts faulty or ineffective?
Maybe one day, too, you’ll find yourself at that intersection of toxic torts and products liability. And maybe you can excel at directing the traffic.
Written by Christopher O’Connor
About the Author
Christopher O’Connor, Esq., is a licensed attorney (N.Y.) and a longtime journalist. His areas of focus include mass tort practice, employment law, enterprise technology, mental and spiritual health, and law practice management. He also possesses CIPP/US certification as a privacy professional.
O’Connor lives just outside of Houston, TX, and enjoys hiking, podcasting and cooking for his wife.