Katrina and I were asked about inhalation of methylene chloride effects and what could legally be done about suing the small factory owner who never warned the workers or provided proper ventilation or inhalation protection masks. Last week I posted two options, a workers’ compensation claim and a separate lawsuit in district court for tort damages.
[Original Post about methylene chloride, Here is how to protect yourself from chemicals in the workplace. December 20, 2013, by Attorney Steve Lombardi]
Today and for the next few days Katrina and I will post one case per day that deal with personal injury from inhalation or breathing of methylene chloride. These cases are no more than toe holds upon which to start your research. They are intended to be a starting point not an end point. I will say that each case we found seemed to have pretty severe damages in one form or another, some ending in the death of the worker.
At the end of this week I’ll try and cover the one common area where homeowner’s come into contact with this chemical composition in their homes. Here is today’s case and please note the daily photographs are from Jason Arnold an intern architect with RIM Architects out of Anchorage Alaska. You can find Jason in LinkedIn.
Anne W. Yates Administratrix vs Norton Company, 403 Mass. 70 (1988) Suffolk County
Case Summary: At the trial of a claim for breach of warranty arising out of the death in an industrial accident of a worker who inhaled certain toxic chemicals while wearing an air respirator mask manufactured by the defendant, the judge's instructions to the jury were deficient in failing to inform the jury that a product manufacturer's failure to give adequate warnings constitutes breach of an implied warranty of merchantability, and neither the fact that the case was tried solely on the issue of the adequacy of warnings nor the judge's two brief allusions to warnings during the breach of warranty instructions converted his incomplete comments into a "full, fair and clear" statement of the law. [74-76]
At the trial of a claim for negligence arising out of the death in an industrial accident of a worker who inhaled certain toxic chemicals while wearing an air respirator mask manufactured by the defendant, where the worker's particular use of the respirator raised only the issue of his comparative negligence, the judge improperly instructed the jury that a finding of an unforeseeable misuse of the respirator by the worker would, by itself, warrant a finding in favor of the defendant. [76-77] O'CONNOR, J., dissenting.
Here are the facts stated in the opinion: The facts are as follows: Jonathan Smith was an unskilled laborer whose job with California Products was to clean out tanks that were used to mix paints and varnish. In July, 1980, he was asked to clean the interior of a 500-gallon tank that had been used to make varnish. The tank was approximately five feet tall and six feet in diameter. Smith's foreman told him to coat the interior wall of the tank with "5f5," a paint and varnish remover manufactured by Sterling-Clark-Lurton, then to cover the tank, and to allow the paint remover to work over the weekend. The foreman told Smith that the tank would be "power washed" from the outside during the following week and admonished Smith not to go into the tank to scrape the varnish residue because the power wash would do the job.
The following Monday Smith applied a second coat of "5f5" because the first application had not worked adequately. Smith's foreman told Smith to let the solvent work for a few more days and again warned Smith not to go inside the tank. On Tuesday Smith went into the tank to scrape the varnish residue from the interior walls. At approximately 10 A.M., one of Smith's coworkers, who had also told Smith not to go inside the tank, tapped on the tank to notify Smith that it was time for a coffee break. Smith took the morning coffee break, as well as a break for lunch. There was evidence that he consumed several cans of beer during the work day. Smith reentered the tank at approximately 2:05 P.M. following the afternoon coffee break.
At approximately 2:35 P.M., Smith's foreman inquired as to Smith's whereabouts. When told that Smith was cleaning the tank, the foreman went to look for Smith. He found Smith lying unconscious on the bottom of the tank, wearing an organic vapor respirator manufactured by Norton. Smith was pulled out of the tank and was taken to a hospital. He never regained consciousness, and died three days later.
The results of the autopsy showed that Smith had suffered acute bronchopneumonia and brain death as a result of the inhalation of methylene chloride, a component of "5f5."
The Norton respirator which Smith had been wearing was advertised as being effective against organic vapors. Such respirators do not supply oxygen, but, when the wearer inhales, the air is drawn into a cartridge where activated charcoal attaches to the harmful organic vapors entrapping the vapors in a filter and preventing them from reaching the lungs. The cartridges have a limited useful life, and, once the activated charcoal is saturated, contaminants are able to "break through" the filter and enter a person's lungs.
The Norton respirator and cartridges were approved by the National Institute for Occupational Safety and Health (NIOSH). The respirator and cartridges were intended to be used in a well-ventilated area and with chemicals that had good warning qualities. [Note 2] As originally sold, the respirator came in an individual package together with an instruction booklet. The instruction booklet contained a warning; [Note 3] a yellow tag was attached to the respirator which also provided a warning; [Note 4] the package in which the cartridges were sold furnished a warning; [Note 5] and, finally, the cartridges themselves contained a warning. [Note 6]
Additional Blog Posts:
- Original Post about methylene chloride, Here is how to protect yourself from chemicals in the workplace. December 20, 2013, by Attorney Steve Lombardi
- Methylene Chloride As a Product Liability Claim Inadequate Warnings Respirator
- Methylene Chloride As a Workers’ Compensation Claim
- Methylene Chloride As a Product Liability Claim And Federal Preemption
- Methylene Chloride As a Workers’ Compensation Claim – Renal Failure