WORKERS’ COMPENSATION MONTHLY
P.O. Box 829 E. Falmouth, Mass. 02536
A Publication of SEAK, Inc.
Vol 4 No. 9
Chemically Induced Asthma
by Douglas A. Swanson, Esq.
New evidence has established that there is yet another risk to those workers who paint. It is the risk of contracting chemically induced asthma. The asthma is caused by exposure to Isocyanates, a component of polyurethane, a 2-component paint.
E.I. du Pont de Nemours and Company and Mobay Chemical Corporation manufacture one of these paint systems. Du Pont manufactures Imron 192-S Activator while Mobay manufactures the active ingredient in the 192-S Activator–Desmodur N-75. I’mron has gained popularity because it provides a superior wear and appearance under harsh conditions. The component primarily responsible for the paint’s extended wear is a compound called hexamethylene diisocyanate which is manufactured by Mobay under the trade name Desmodur N~75.
The medical evidence is now quite clear that exposures to sufficient levels of isocyanates will cause some people (generally 5 to 20 percent of an exposed population) to develop various acute reactions, including shortness of breath, nausea, vomiting and abdominal pain. Exposure can also lead to sensitization so that subsequent exposures result in severe reactions and to a chronic and permanent asthma condition. There is also evidence to show that neurological problems may develop.
Two cases in Oregon are believed to be among the first court trials to have findings issued which detail the dangers of this product. (Owen P. Kelly v. E.I. du Pont de Neroours & Co., and Mobay Chemical Corporation, Civil No. 81-166-RE and Dennis V. Schmitt v. E.I. du Pont de Neroours & Co., Civil No. 80-1182-RE).
The cases were tried jointly before the Honorable James Redden of the United Stated District Court for the District of Oregon,The Judge’s Findings of Fact are a harsh indictment of the dangerous substance. The following findings are from both cases:
6. Exposure to sufficient levels of isocyanates will cause some people to develop reactions, which may include shortness of breath, tightness of chest, nausea, eye and skin irritation, vomiting, dizziness and abdominal pain.
7. Approximately 5 percent of the population, when exposed to isocyanates, will become sensitized to isocyanates so that subsequent isocyanate exposures even at extremely low levels. will result in a severe and sometimes fatal reaction to it.
8. Sensitization results in asthma like conditions (e.g. shortness of breath, wheezing).
9. Sensitization is a permanent condition. Once a worker is sensitized he or she must avoid any further exposure to isocyanates at any level.
10. While the asthma symptoms that first indicate that a worker has been sensitized will generally subside after the worker is removed from the isocyanate environment. Sensitization can lead to a persistent, permanent asthma-like state.
33. Du Ponrs label and warnings on the 192-S activator were dangerously defective in the following ways:
a. Du Pont only warned of allergic respiratory reaction when it knew that the 192-S activator could result not only in an asthma-like condition reversible after several hours or days, but a persistent, chronic asthma condition that in some cases would be permanent.
b. Du Pont’s~warnings did not warn that exposed workers could develop a permanent disease.
c. Du Pont’s warnings did not warn of the sensitization phenomenon which would render a sensitized worker hyperreactive to even a very low exposure. The label did not clearly explain that once a worker is sensitized, the sensitization is permanent.
d. Du Pont’s warnings failed to identify adequately the hazardous chemical component in its product by indicating that it contained “aliphatic polyisocyanates” without specifying what isocyanate derivative was involved.
e. Du Pont’s warnings in regard to the need for respirators are ambiguous and did not clearly indicate that any respiratory protection was required.
f. Du Pont’s warnings in regard to respirators were written in such stilted and technical language as to be incomprehensible to the average employer or painter.
g. Du Pont’s warnings failed to require absolute isolation of the spray painting environment..
h. Du Pont’s warnings recommended a vapor particulate mask respirator when it knew that the manufacturers of such masks had withdrawn their recommendation for use with isocyanates.
i. Du Pont warned only of the danger of monomeric isocyanate in their product when the polymeric isocyanate also constitutes a health hazard.
j. Du Pont failed to provide warnings to use protective measures other than respiratory devices, such as goggles, facial protection, and special protective clothing.
k. Du Pont’s warnings failed to contain any advice in regard to pre-employment screening of workers who would come into contact with isocyanates.
I. du Pont’s warning failed to warn workers who would be exposed to their products or such workers’ employers ot the full nature of the health hazards posed by exposure to their products.
m. Du Pont’s warnings failed to warn employees who might be exposed to its products and their employers of the appropriate safety precautions to be used in spray painting operations of its products.
Defendant du Pont was negligent in the manufacturing and Marketing the 192S Activator when it knew or should have known that it was a health hazard to workers, inchjding plaintilt, who would be exposed to such product.
35. Defendant du Pont was negligent in failing to warn workers who would be exposed to the 192S Activator of the. full nature and extent of the health hazards posed by,,. exposure to it.
36. Defendant du Pont was negligent in failing to adequately advise Freightliner (plaintiff’s employer) and plaintiff of the appropriate safety precautions to be employed while using the 192S Activator.
38. Defendant du Pont was negligent in failing to warn Freightliner and Freightliner employees that it was not safe to spray paint products including the 192S Activator except in totally isolated spray painting operations.
These findings are significant in light of the multiple defenses raised. The defendants took, and continue to take a very hard line that the product only poses a temporary and short-lived health hazard. The defendants also took the position that even if hazardous, they had provided sufficient warnings on their label; if the warnings weren’t sufficient, the workers should have protected themselves with appropriate masks: and if the workers did wear the masks the asthma was, “spontaneous adult onset”.
All the hazards of these chemicals have yet to be established. These decisions, however, represent an important forward step.
Attorney Swanson was lead counsel in the Kelly case and practices in Portland, Oregon (503-228-5222),