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Lawsuits are mushrooming against manufacturers and distributors of respirators that coal miners allege didn’t do what they were supposed to-prevent them from getting respiratory diseases like black lung. Recent lawsuits were brought against 3M Co., Mine Safety Appliances Co. and other respirator manufacturers and distributors by 54 current and former miners in Union County, Ky. About 70 other suits are pending in eastern Kentucky. And this past summer, West Virginia Attorney General Darrell McGraw Jr. sued three respirator manufacturers to recover the costs of treating and paying benefits to more than 20,000 miners. The total cost borne by the state workers’ compensation fund could total hundreds of millions of dollars, the suit alleges. Though filed in Lincoln County, W.Va., Circuit Court, the defendants removed the case to federal district court on ground of diversity since the manufacturers are located in other states. West Virginia v. Minnesota Mining and Mfg. Co., No. 2:03-2161 (S.D. W.Va.). The state has a motion pending to remand the case back to state court. “Our plaintiffs had been diagnosed with black lung disease, having worked for years in coal mines,” said Lee Plotkin of New Orleans’ Gertler, Gertler, Vincent & Plotkin. Plotkin is involved in all the Kentucky cases. “We believe we can show at trial that the respirators used by the plaintiffs were defective and a substantial cause of their lung disease,” Plotkin said. Adams v. Minnesota Mining and Mfg. Co., No. 03-CI-00303 (Union Co., Ky., Cir. Ct. 2003), and Adams v. Minnesota Mining and Mfg. Co., No. 03-CI-00252 (Union Co., Ky., Cir. Ct. 2003). The lead plaintiffs are, respectively, Robert and Denver Adams. Different from asbestos What distinguishes the respirator cases from asbestos litigation is that asbestos was manufactured and coal is not. Coal mining companies are not named in any of the suits. Medical experts agree that fine particles of coal, rock and sand dust cause black lung and other debilitating and sometimes life-threatening lung ailments. Respirators, when used properly, are meant to prevent the inhalation of particles that lodge in the lungs. A reading of the respective complaints reveals that the Kentucky and West Virginia causes of action are nearly identical-strict liability, negligence, breach of implied warranty and misrepresentation. The West Virginia suit also alleges a violation of a state consumer protection act. The suits allege that the defendants acted in a common scheme by tacit or explicit agreement not to reveal known defects in their products. The plaintiffs seek punitive damages. No one disputes that the respirators met government certification standards. What is disputed is whether those standards reflected the actual conditions that miners worked in and whether manufacturers had made false claims about the protection their products promised. 3M spokeswoman Jacqueline Berry asserted that her company doesn’t believe the cases have merit and that they will be “vigorously” defended. “These respirators were certified by the government for use in the workplace environment,” she said. “Our literature accurately describes the appropriate uses for these respiratory products.” Doug McClaine, general counsel for Mine Safety Appliances Co., said his company “has never sold any product not approved by National Institute for Occupational Safety and Health [NIOSH] and the Mine Safety and Health Administration.” NIOSH is an arm of the Centers for Disease Control and Prevention. Otherwise, it is company policy that he not comment on ongoing litigation, he said. Eric Jacobi of Clay, Kenealy, Wagner & Adams of Louisville Ky., filed both Adams suits. Solo practitioner Kenneth Buckle, from Hyden, Ky., brought the eastern Kentucky suits. West Virginia and most of the defendants have outside counsel. The Denver Adams case was removed to federal court on the defendants’ motion. Last week, the plaintiffs asked that it be remanded to state court. The defendants also removed the eastern Kentucky cases to federal court. Motions are pending to remand them to state court. Post’s e-mail address is [email protected].

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