United States District Court, W.D. Wisconsin
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,
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants. SCOTT SPATZ, individually and as Special Administrator of the Estate of Herbert Spatz, Plaintiff,
WEYERHAEUSER COMPANY, 3M COMPANY, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants.
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE.
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. 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
OF UNDISPUTED FACTS
Claims and Parties
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.
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.
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.
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
Certification of the 3M 8710 Respirator
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).) 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.)
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
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)
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.
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 ...