Today’s W$J has an editorial about the ill consequences of the trend in recent years for lawyers prosecuting asbestos and silicosis cases to add makers of commonly used industrial masks and respirators as defendants in their suits:
The Coalition for Breathing Safety, an industry group, reports that between 2000 and 2004 plaintiffs attorneys filed more than 326,000 claims against its five members. Some of these are asbestos-related, although the recent deluge has been all silicosis. One manufacturer (which prefers not to be named lest it become a bigger target) says that prior to 2002 it faced about 200 silicosis claims a year. In 2003-4, it got hit with 29,000….The industry coalition estimates its members have spent the equivalent of 90% of their 2004 net income fighting suits in recent years.
The suits have fared poorly — none of the respirator makers have lost a case in court — but the making of industrial respirators and masks is a low-margin line of business, and companies that invest heavily in the business may simply be buying themselves legal risk. And now comes the scare over avian flu:
Respirator manufacturers are still going strong overseas, but the U.S. could find itself unable to purchase these products in a crisis. Worried about a possible flu pandemic, many governments are snapping up masks; France is acquiring 685 million. In previous disease scares (say, China and SARS), countries have blocked mask exports. Local U.S. governments and hospitals are already having a hard time finding supplies.
It might be added that the plight of respirator makers is attributable in large part to the economics of what has been called the shotgun approach to defendant-naming. It is very unlikely that lawyers would have filed 300,000 claims against mask makers, or anything approaching that number, if each suit had to be filed as a freestanding matter. However, it costs very little to add 3M or another respirator defendant when a case is already been judged to be worth filing against other, more vulnerable defendants. For more on the mask litigation, see Sept. 15, 2004 and Jan. 22, 2005. More: Point of Law, May 9.