An epidemic of asbestos lawsuits has felled dozens of U.S. companies and weakened hundreds more over the decades. Now businesses' worst legal malady could help spread a completely new kind of illness: avian flu. Among the outfits struggling to fend off asbestos suits are industrial safety companies, which make cheap, disposable, polypropylene masks. Such "respirators" could play an essential role in containing any outbreak, but in the U.S., they are in ominously short supply.
Since 2002, mask makers have been targeted by workers seeking redress for lung ailments caused by exposure to asbestos and silica. More than 300,000 lawsuits in state courts across the country claim that masks worn by industrial workers didn't protect them from inhaling tiny, potentially deadly airborne particles. Defendants, ranging from industry giant 3M Co. (MMM) to a clutch of closely held manufacturers, say the respirators aren't designed for use in certain industrial settings, such as steel mills or during sandblasting, a claim backed by federal safety regulators.
Courts have dismissed thousands of the complaints, but companies have spent millions of dollars defending or settling tens of thousands more. In 2004 one of those manufacturers, Pittsburgh-based Mine Safety Appliances Co. (MSA), decided that it had had enough. "We just pulled the trigger" and stopped making the masks, says William Berner, the company's risk manager. "There was just too much liability."
Now the mask industry is playing up avian flu worries. The goal is to press Congress for legislation that would insulate companies from lawsuits as long as their masks aren't defective and meet the strict standards set by the National Institute for Occupational Safety & Health. That would effectively shield respirator makers from nearly all litigation, given that NIOSH must approve every type of mask before it's allowed on the market. The proposal has support from Senators John Cornyn (R-Tex.) and Ben Nelson (D-Neb.), but with Congress embroiled in immigration and other hot election-year issues, the legislation has drawn no other co-sponsors and its chances are iffy.
Plaintiffs' lawyers say malfunctioning masks aren't the problem. They contend that manufacturers improperly marketed the disposable, paper-like face masks to workers and employers as a cheap and safe alternative to much more expensive equipment. "It's not that the products were defective per se," says Brent Coon of Brent Coon & Associates in Beaumont, Tex., a law firm representing organized labor in thousands of respirator cases. The manufacturers "sold them and represented them to be something they weren't."
Mask makers are counting on Washington's support. An industry coalition reports that its members, which represent about 50% of the respirator market, spent the equivalent of 90% of their 2004 net income fighting litigation in the past few years. Even 3M of St. Paul, Minn., is feeling the pain. In the second quarter of 2005, it boosted its respirator liability reserves by $30 million, for a yearend total of $210 million.
Merits of the cases aside, mask production is cooling just as demand spikes. If the nation is hit with a flu pandemic that resists drug treatment, respirators would be one of very few ways to reduce transmission. The fluid-resistant disposable masks, which sell for less than $1 each, could be critical equipment for health-care workers. Replacing the respirators at a steady clip, they would be able to treat patients with less risk of infecting themselves or others.
In early April, the Health & Human Services Dept. said it would pay $34.8 million to buy some 62 million respirators to stockpile for use in the event of a pandemic or bioterrorism attack. Michael Bell, a doctor in the National Center for Infectious Diseases at the Centers for Disease Control and Prevention, says there's no guarantee the masks will help, but he calls the move a precaution. "Our industry partners were telling us they're having difficulty ensuring supply down the road," says Bell. "We were worried that we might be caught short."
The global rush on respirators is, well, breathtaking. In January, the French government announced a 2 1/2-year plan to acquire 685 million masks, requiring that most of them be made in France. The French government says it will invest about $12 million to help automate the winning bidders' factories. France "wanted to have this capacity within its borders," says Jerry McGurkin, senior vice-president of Bacou-Dalloz, an industrial safety company near Paris that won some of the French government's work. Germany, Australia, and other countries also are ordering masks by the millions.
Many companies are ramping up non-U.S. production. But if a pandemic occurs, the U.S. might not be able to look overseas for help. When SARS hit China in 2003, Beijing quickly embargoed its domestically made masks. "We had people calling us from Asia crying on the phone," says Gwilym McGrew, president and CEO of AllHeart.com, a medical supply distributor based in Camarillo, Calif. AllHeart.com ran out of respirators then and has them on back order now as McGrew scouts for new suppliers.
The big government demand has left hospitals, fire departments, and other first responders in the lurch. When the Baltimore City Fire Dept. went shopping for 100,000 respirators in March, it came up empty-handed. The city believes it finally has found a supplier, but other fire departments haven't been so lucky. "There are shortages around the country," says Dr. Georges C. Benjamin, executive director of the American Public Health Assn., a Washington trade group.
"I'm not sure this pandemic will ever come, but if it does, the world will not have masks," says AllHeart.com's McGrew. "When the first sparrow dies in the U.S. from bird flu, consumers are going to hoard these things like crazy." McGrew himself is putting some away as a favor to an employee whose daughter is a pediatrician. "We have a reserve set aside for her," he says.
By Lorraine Woellert