DULUTH — Ashen Diehl's life was changed in an instant on Aug. 11, 2012.
Walking along East Superior Street with her young daughter, the Duluth woman was struck by a driver who ran a red light and careened onto the sidewalk after "huffing" a chemical compound from an aerosol can.
Diehl, then 33, suffered a shattered vertebra, a collapsed lung, broken ribs and bruises all over her body. At 40, she remains paralyzed from the waist down, confined to a wheelchair for the rest of her life.
The driver, Robert Nicholas Buehlman, received a probationary sentence and, later, some prison time.
But Diehl is now pursuing another legal option. She's suing 3M, the Twin Cities-based multinational conglomerate that manufactures the dust-removal product Buehlman was reportedly inhaling at the time of the crash.
Huffing, or "dusting," is a cheap and effective way to get high, said Phil Sieff, one of her attorneys, who contended that 3M has done little to prevent widespread abuse.
"The list of innocent people who have been harmed by individuals inhaling and becoming immediately impaired is frightening and staggering," he said. "And when the public learns about it, I think they're going to demand changes."
3M did not respond to a request for comment on the case, but has formally denied the allegations in multiple court documents.
“What happened to (Diehl) in August 2012 because Mr. Buehlman drove under the influence, lost control of his vehicle and hit plaintiff with his vehicle was a tragedy," attorney Jeanette Bazis wrote in a memorandum. "But her injuries do not give rise to liability on the part of 3M.”
Is manufacturer responsible?
A woman who was riding with Buehlman at the time of the incident testified that she saw him put an aerosol can to his mouth and push the spray button. Buehlman then blacked out and drove onto the sidewalk, according to court documents
Buehlman, then 29, of Bayfield, pleaded guilty to criminal vehicular operation resulting in great bodily harm and four other crimes. He was sentenced to an above-guideline term of 10 years of supervised probation, including a year in jail, but a subsequent violation sent him to prison for nearly four years.
Dust removal products manufactured by 3M and other companies are advertised for use on electronics, automobiles and a variety of household items. But they contain a pressurized gas called difluoroethane, or DFE, that, when inhaled, can cause almost immediate impairment, including unconsciousness. The same chemical is found in a variety of products, including cleaning agents, deodorants, hairsprays and air fresheners.
3M's dust remover includes a warning label indicating that the product "contains a bittering agent to help discourage inhalant abuse." Smaller print reads: "ABUSE by inhaling contents may cause INSTANT DEATH or injury."
But Diehl's attorneys said there is little evidence to suggest the bittering agent actually prevents abuse, citing dozens of examples of vehicle crashes caused by huffing, along with academic studies, news reports and popular culture references to the issue.
"We think there is a better bitterant that would be more effective," Sieff said. "We think that the sales volume of dust remover far, far exceeds legitimate use, much like the sale of opioids far, far exceeds what would be legitimate use."
Diehl's suit seeks a "reasonable sum in excess of $50,000" for alleged negligence.
"Ashen Diehl was rendered permanently paralyzed, has sustained a total and utter loss of all quality of life, lives in misery and will continue to do so all her life, has suffered and will suffer great pain of body and mind, total loss of wages and future earning capacity, has incurred substantial medical expenses and will continue to incur additional medical expenses for the rest of her life in an amount that cannot be estimated at this time," the complaint states.
Meanwhile, 3M contended successful litigation "could very well result in the cessation of sales of the product altogether due to the potential ‘Pandora’s box’ of actions."
“It is not dust remover that caused the injury to plaintiff," Bazis argued. "Instead, it was the misuse of that product by an intervening third party. It indeed would be a ‘leap in logic’ to assume that the simple manufacture and sale of the dust removal product would result in an accident of the kind experienced by plaintiff so as to give rise to a duty on the part of 3M. "
Variety of inhalants abused
The National Institute of Drug Abuse estimated in July 2012 — about a month before Diehl was injured — that there were approximately 100-200 inhalant-related deaths in the country every year over the prior decade. In 2018, the National Survey on Drug Use and Health reported that approximately 2 million people over the age of 12 had used inhalants at some point.
A few high-profile cases have made headlines more recently, including a November 2018 case in which a huffing driver struck and killed three Girl Scouts and a mother cleaning up a highway near Eau Claire, Wis.
Minnesota State Patrol Lt. Don Marose, who coordinates impaired-driving training for police officers statewide, said there aren't reliable statistics on huffing incidents in Minnesota, in large part because the state's DWI law didn't account for products like dust remover until a loophole was closed by the Legislature in 2018.
Marose said huffing and driving does occur rarely, but it's far more common to find users passed out in a parked vehicle. Abuse also occurs with products such as cooking spray, glue, paint thinner and nitrous oxide — though particular symptoms vary by substance.
"They're going to get dizzy. A lot of the time they are noncommunicative," Marose said. "They do have a very gross loss of muscle control. A lot of times they pass out, sometimes with the rag still in their hands or the can still in their hands. ... It's not like you're going to take this and pass out in a couple of seconds or half a minute — it's pretty much pass out during the act of actually huffing that stuff."
Marose said inhalants are most commonly used by young people who may not fully understand the consequences.
"The perception might be, 'Well, it's not really drugs. It's not bad for you,'" Marose said. "But it's all these harsh chemicals that were never really intended to go in your body, so they're probably doing more damage than a lot of the other substances that are out there."
Was incident foreseeable?
Diehl initially filed suit in September 2018, but the case was thrown out last February by 6th Judicial District Judge Eric Hylden, who found that 3M attorneys did not have a "duty of care" to Diehl.
“3M does not seem to have had any active role in Mr. Buehlman’s conduct on the day of the accident," Hylden ruled. "They simply put a product on the market, which was likely purchased by a wholesaler or distributor, then resold to a retailer, and Mr. Buehlman picked up the dusting product there. 3M was not involved in that end of the sale, nor in Mr. Buehlman’s misuse of the product, his decision to get behind the wheel of a vehicle after he inhaled those fumes, or his driving behavior leading up to when he struck Ms. Diehl.”
But a three-judge panel of the Minnesota Court of Appeals reinstated the case in November. In a split decision, the judges noted a manufacturer must take steps to protect against "unintended yet reasonably foreseeable use" of a product it puts on the market.
“The fact that 3M did not have an active role in (Buehlman’s) conduct on the day of the accident does not mean that 3M did not have a duty," Judge Randolph Peterson wrote in the majority opinion.
The case presents an issue that is generally left up to a jury to decide, said David Schultz, who teaches at the University of Minnesota Law School.
"This is the classic reasonable-person question," Schultz said. "Would a reasonable person say this was foreseeable?"
The gun industry, notably, has received widespread exemption from liability, but Schultz said most other manufacturers have to answer for the toll of their products. The tobacco industry was forced into a major settlement in the 1990s and opioid manufacturers are now facing a similar barrage of lawsuits.
Diehl's attorneys said they would prove that 3M had reason to know people were inhaling dust remover while operating vehicles and failed to take adequate steps to prevent it.
"It was foreseeable to every manufacturer of this product," Sieff said. "It was foreseeable to most major retailers. It's entirely foreseeable to law enforcement, who struggle with this problem. The only people it may not have been foreseeable to is the general public."
A trial date has not been scheduled.