Trial Set in Suit Linking 3M Respirators to Worker Deaths

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By Bruce Kaufman

Nov. 10 — Trial will begin Feb. 16 against 3M in a consolidated suit asking whether the respirator manufacturer should have done more to prevent the deaths of several workers allegedly exposed to asbestos at a Wisconsin door manufacturing plant owned by Weyerhaeuser.

A Nov. 9 order set the trial date for 3M Co. in this complex litigation against Weyerhaeuser Co. and 3M in the U.S. District Court for the Western District of Wisconsin.

The February trial involving 3M will be bifurcated, court documents show. The first phase will cover common claims concerning liability, while the second phase will address individual issues of causation and damages, including punitive damages

A review of court filings shows the trial judge is struggling with complex multiparty causation issues, including whether the plaintiffs' medical experts can separate the plaintiffs' possible exposure to asbestos in their respective communities and households from the “very significant” occupational exposure at the plant alleged in the complaints.

The seven suits contend asbestos was used for decades at the Marshfield, Wis., facility as a fireproofing or insulating material in the production of doors. The claims against 3M contend the manufacturer defectively designed the model 8710 respirator that was provided to employees, and failed to warn of the known risks.

Separate Trials Eyed

The suit by the sole living plaintiff, Milton Boyer, was consolidated for pre-trial purposes with claims on behalf of six other workers who died from mesothelioma: Richard Masephol, Urban Pecher, Valmore Prust, Roger Seehafer, Sharon Heckel and Rita Treutel.

Court orders by Judge William M. Conley are paving the way for separate trials against 3M and Weyerhaeuser by overlapping groups of plaintiffs. The Feb. 16 trial date only applies to claims against 3M by Boyer and the families of former workers Masephol, Pecher and Seehafer.

The causes of action also differ among the plaintiffs, but generally include counts in negligence, strict liability and nuisance.

In June, the court ruled that airborne asbestos allegedly released from the plant into the surrounding community provided a sufficient basis for private and public nuisance claims (2015 BL 173375) (30 TXLR 575, 6/11/15). The claims, however, were preempted by the Clean Air Act to the extent they relied on federal clean air regulations.

Expert Ordered to Appear at Deposition

The Nov. 9 ruling also ordered the plaintiffs to make Dr. Daniel Brody available to 3M for a deposition by Dec. 31.

The plaintiffs contended Brody—who plans to testify on the physiological design and function of the lungs, how asbestos fibers migrate through the body and the science of asbestos-related diseases—was already questioned by the same defendant in an earlier case.

But the court said the plaintiffs' position was “untenable.”

Regardless of “3M's familiarity with Brody, it has a right under Rule 26 to depose Dr. Brody,” the court said.

The plaintiffs' failure to produce Brody for a deposition by Dec. 31 will result in “plaintiffs being prevented from offering his testimony at the trial against 3M,” the court warned.

The court also set Dec. 7 for a hearing to determine whether the testimony of additional plaintiffs' experts—including Drs. Frank M. Parker III, Henry A. Anderson and Jerrold L. Abraham—meet the admissibility standards set forth by the U.S. Supreme Court in Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).

Summary judgment motions by each of the remaining defendants are pending. The court noted in the Nov. 9 order that the negligence claim against 3M, and “perhaps” even the strict liability claim, “appear likely to survive the motion.”

Three other companies were dismissed as defendants: Donaldson Co. and Gardner Denver Inc. in 2014; and Owens-Illinois Inc. in June.

Plaintiffs' attorneys include Cascino Vaughan in Chicago, and Motley Rice in Washington.

Forman Watkins & Krutz in Jackson, Miss., represents Weyerhauser.

Segal McCambridge Singer & Mahoney in Chicago represents 3M.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com