Washington Court of Appeals Reverses Verdict and Remands 3M 8710 Mask Case for Re-Trial
On May 9, 2022, in a published decision, the Washington Court of Appeals, Division 1 reversed and remanded a case originally tried to verdict in November 2020 based upon claims that 3M was negligent in the manufacture and sale of its 8710 mask for use with asbestos. While the original jury did find 3M negligent, they did not find causation. The Court of Appeals held that the proximate cause jury instruction in the first trial misstated the law and the superseding cause instruction was not supported by substantial evidence and “these erroneous instructions prejudiced the outcome of the trial on the issue of negligence.”
The case was filed by Larry and Gloria Roemmich of Gig Harbor. Larry Roemmich contracted pleural mesothelioma, an invariably fatal cancer of the lining of the lungs in 2019. Mr. Roemmich was a career insulator at Puget Sound Naval Shipyard (PSNS) who relied on 3M’s 8710 mask to protect him from asbestos hazards associated with his work. Mr. Roemmich wore the 8710 assiduously from 1972-1980 whenever he worked around insulation materials. 3M actively marketed the 8710 to insulators at PSNS because of their frequent work with asbestos materials.
3M obtained approval for the 8710 from the Bureau of Mines in the early 1970s and marketed the mask based on that approval. The evidence at trial showed there were serious flaws in the approval process including failures in testing. The plaintiffs also presented evidence of 3M’s misleading advertising based on that approval. In 1980, the National Institute for Occupational Safety and Health (NIOSH) warned 3M that single use dust masks had the propensity to leak and should not be used to protect against asbestos because of leakage in the face seal. As the Court of Appeals stated, “[b]ut 3M continued to promote and sell its 8710 mask as protective against asbestos through 1986.”
The Court of Appeals found that the trial court erroneously gave a combined “but for” and “substantial factor” proximate cause instruction. The Court reasoned that the “but for” instruction would absolve 3M of responsibility despite the evidence presented at trial. The Court re-affirmed that in a multi-exposure asbestos case, the “substantial factor” instruction is appropriate. The court also found that PSNS’s failure to train Mr. Roemmich on the use of the 3M 8710 was foreseeable and, therefore, a superseding cause instruction was not appropriate.
The jury in the first trial did find that 3M was negligent but did not find causation under the now overturned instructions. The case will be re-tried on the issue of negligence with the correct causation instructions.
The decision can be found here.