Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kilty v. Weyerhaeuser Co.

United States District Court, W.D. Wisconsin

June 1, 2018

PAMELA KILTY, individually and as Special Administrator of the Estate of Elvira Kilty, PAUL J. KILTY, DAVID L. KILTY, WILLIAM J. KILTY and JAMES S. KILTY, Plaintiffs,
v.
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants. SCOTT SPATZ, individually and as Special Administrator of the Estate of Herbert Spatz, Plaintiff,
v.
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Plaintiffs assert negligence and strict liability claims against 3M for manufacturing and selling respirators, which original plaintiffs Elvira Kilty and Herbert Spatz used while working in a factory that manufactured fireproof doors with asbestos cores. Both Kilty and Spatz eventually developed and died from mesothelioma as a result of asbestos exposure.[1] Before the court are motions for summary judgment by defendant 3M Company. (‘515 dkt. #122; ‘726 dkt. #106.) For the reasons that follow, the court will deny those motions, finding that plaintiffs have raised a genuine issue of material fact as to whether the respirators were defective under both strict liability and negligence law.

         OVERVIEW OF UNDISPUTED FACTS[2]

         A. Claims and Parties

         Plaintiffs assert claims for negligence and strict liability against defendant 3M arising out of their contracting mesothelioma as a result of exposure to asbestos while working at Weyerhaeuser Company door manufacturing plant located in Marshfield, Wisconsin. Plaintiffs' claims do not concern direct exposure to asbestos from a 3M product; rather, plaintiffs allege that its branded “8710” respirators were defective and unreasonably dangerous because their design did not adequately protect against or prevent exposure to asbestos fibers.[3]

         Plaintiff Elvira Kilty was employed at Weyerhaeuser between 1955 and 1994. Until 1967, Kilty was an asbestos-core door patcher, splicer and inspector in the finishing department; from 1967 to 1987, she was a core gluer, molder feeder and core patcher in the asbestos core mill. Kilty was diagnosed with mesothelioma on October 2, 2015.

         Plaintiff Herbert Spatz was employed at Weyerhaeuser from 1962 to 2001. Spatz was a packer in the craftwall section in 1962. From 1962 to 1968, Spatz worked in the asbestos core mill, again as a craftwall packer helper, and also as a filler sprayer and panel coder. On July 22, 1968, until Weyerhaeuser discontinued its use of asbestos, Spatz worked as a pan filler in the mineral core department, where asbestos mineral cores were produced. He was diagnosed with mesothelioma on October 21, 2015.

         On July 18, 1972, Wes Sydow issued a Weyerhaeuser interoffice communication stating that it was necessary to wear face masks whenever mineral core is being machined or sanded. On December 1, 1972, a Weyerhaeuser interoffice communication was issued by Jim Gallatin to all mineral core department employees, titled “Personal Protective Clothing & Equipment Policy, ” mandating the use of masks for all mineral core department employees. Two employees who worked in the mineral core department around that time also observed employees wearing masks, one of whom, Mary Crist, identified the box containing the masks as labeled with “3M.” Moreover, Crist recalled Kilty wearing the mask, at least at times, while working in the mineral core department.

         B. Certification of the 3M 8710 Respirator

         In 1972, the National Institute of Occupational Safety and Health (“NIOSH”) and the U.S. Bureau of Mines (“USBM”) jointly enacted respirator regulations to oversee the performance and quality of respiratory equipment. See 30 C.F.R. § 11. (See Finch Aff., Ex. 1 (dkt. #202-1).)[4] The regulations provided that respirators shall be considered approved for use “only where such respirators . . . are . . . [t]he same in all respects as those respirators which have been approved after meeting the minimum requirements for performance and respiratory protection prescribed in this Part 11.” 30 C.F.R. § 11.2. (See Finch Aff., Ex. 1 (dkt. #202-1) p.4.) The regulations also required manufacturers “to maintain . . . the approved quality control sampling schedule and the acceptable quality level for each characteristic tested, and to insure that it is manufactured according to the drawings and specifications upon which the certificate of approval is based.” 30 C.F.R. § 11.33(f). (See Finch Aff., Ex. 1 (dkt. #202-1) p.7.)

         The 3M 8710 Respirator was designed to protect a user from inhaling asbestos above the permissible exposure level (“PEL”). On May 24, 1972, 3M received the certificate of approval from the NIOSH and the USBM for the 8710 Respirator. The 8710 Respirator was certified for protection from asbestos at levels of up to 10 times the PEL. The 8710 Respirator maintained uninterrupted NIOSH certification as a single-use respiratory from 1972 until 1998 when 3M voluntarily withdrew it from sale in the United States.

         As part of an application for approval or a modification of approval under the regulations, applicants were required to submit a quality control plan, setting forth various provisions for the management of quality. 30 C.F.R. § 11.40. (See Finch Aff., Ex. 1 (dkt. #202-1) p.8.) The approved quality control plans are “incorporated into a certificate of approval.” 30 C.F.R. § 11.42(c). (See Id. at p.8.) As discussed in more detail below, NIOSH approved 3M's quality control plan. The regulations further provided that the NIOSH and the USBM reserved the right to “revoke, for cause, any certificate of approval issues pursuant to the provisions.” 30 C.F.R. § 11.34. (See Finch Aff., Ex. 1 (dkt. #202-1) p.7.) The regulations also set forth the process for seeking approval of modifications to approved requirements. 30 C.F.R. § 11.35. (See Finch Aff., Ex. 1 (dkt. #202-1) p.7.)

         The bulk of the parties' proposed findings of facts concern whether 3M's 8710 mask performed as certified. The court addresses these proposed facts and the parties' disputes below in the opinion.

         OPINION

         To prove a claim of strict liability under Wisconsin law, plaintiff must demonstrate:

(a) That the product is defective because it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.
(b) That the defective condition rendered the product unreasonably dangerous to persons or property.
(c) That the defective condition existed at the time the product left the control of the manufacturer.
(d) That the product reached the user or consumer without substantial change in the condition ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.