Last week, Trial Guides author Rick Friedman obtained a $7.2 million verdict in Kentucky. This is believed to be the first coal-dust respirator case to go to trial in the country. James Couch filed suit against the manufacturer, Mine Safety Appliances, after being diagnosed with black lung.
Officials say several entities (including OSHA) called for the ban of these coal masks in the 1970’s, but Mine Safety Appliances continued to sell them. The plaintiff wore the masks for fifteen years, unaware that they were not correctly filtering the air he was breathing.
During trial, Rick used his Rules of the Road method to create a set of rules and principles that the company should have upheld. The Rules of the Road method is used to create a set of standards for litigation cases where there are not specific statutes governing the conduct of the defendant.
Below are the Rules of the Road Rick used to win his case:
Principles
- The primary concern of a respirator manufacturer should be the safety of the respirator user.
- When the air is safe to breathe, the miners don’t need respirators.
- The user’s life may depend on whether or not the respirator is working effectively.
- A responsible manufacturer keeps up with literature and knowledge in the field.
- Government permission is not a substitute for the manufacturer acting safely.
- Smaller particles penetrate filters more readily than larger particles.
- Smaller coal particles are more dangerous to a miner’s health than larger particles.
- A poorly fitting respirator provides little to no protection.
- Electrostatic charges discharge over time.
- Factors causing electrostatic discharge:
- Humidity
- High temperature
- Sub-micron size particles
- Oil mists
- Liquid aerosols
- Coal Dust
- Respirators using HEPA filters capture over 99.97% of all particulate matter including down to 3/10ths of a micron.
- To be safely used, a respirator must be fit-tested and fit-checked.
- The government did a poor job of protecting workers.
- A respirator can be defective for use in coal mines, even if the government approved it.
Rules
- Before marketing a product for a particular use, the manufacturer should test its safety under real-world conditions.
- A respirator should not be sold if it cannot be fit-tested.
- A respirator should not be sold if it cannot be easily fit-checked.
- A respirator manufacturing company should promptly inform users about the safety risks of its products that it learns about.
- A company should not sell a respirator as providing protection against black lung when the respirator does not provide protection against black lung.
- Even if the government allows an unsafe practice, a respirator manufacturer should not engage in that unsafe practice.
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