Breathing-mask makers look to Congress for lawsuit relief

Six companies that make respiratory masks want Congress to protect them from lawsuits, saying such a step would ensure that they could meet production demands in the event of a terrorist attack or flu pandemic.

The companies — Aearo. Bacou-Dalloz, Inovel, Moldex, MSA and North Safety, which collectively have formed the Coalition for Breathing Safety — wrote a letter last week to President Bush arguing that “unfettered liability costs will dramatically affect our nation’s ability to respond to an avian flu pandemic.”

The issue primarily affects N-95 respirators, disposable masks with filters that are used by first responders and healthcare workers.

According to the coalition, more than 326,000 claims have been filed against the companies from 2002 and 2004. Before that, the companies faced an average of 200 cases a year.

Litigation costs now take up 90 percent of the revenue from mask sales, according to the coalition.

The companies have been lobbying, with the help of Bracewell & Giuliani, for Senate and House bills that would protect them for lawsuits as long as federal regulators had approved the masks.

Sens. John Cornyn (R-Texas) and Ben Nelson (D-Neb.) and Reps. Bill Shuster (R-Pa.) and Tim Holden (D-Pa.) have introduced liability-protection bills for the companies.

Lawsuit protections are needed “so the companies can expand their facilities to meet production demand if there is a pandemic,” said Ed Krenik, a lobbyist at Bracewell & Giuliani working on behalf of the coalition.

The National Institute of Occupational Safety and Health approves designs of respiratory masks.

The companies argue that they have been listed among other defendants in cases seeking damage claims for silicosis diagnoses. Silicosis is a respiratory illness caused by breathing crystalline silica.

The case isn’t the first in which companies have used the threat of a pandemic to gain liability immunity. Last year, Congress gave immunity protections to vaccine makers.

Companies also are encouraging the Bush administration to buy more masks as part of its flu preparations. The administration has awarded contracts for the production of 60 million masks, but France, these companies point out, has plans to buy more than 600 million masks.

In May a group of 85 members of Congress wrote the administration urging it to include the use of respiratory masks in its plan for flu-pandemic preparations. The plan now calls for surgical masks, which provide less protection, be given to healthcare workers.

“Preparation thus far … fails to properly account for the risks of infection and implement a plan to minimize them,” the letter states.