SILICA DUST: THE NEXT ASBESTOS?

Part one of Series

Why did the company that manufactured the first hard hat get hitwith over 600 lawsuits from over 17,000 plaintiffs in 2003? Thetwo-word answer is silica dust.

The more precise answer is that Cynthiana, Ky.-based E.D.Bullard Company, the inventor of the hard hat, also makesrespiratory protection devices, which some workers say failed toprotect them from inhaling small particles of industrial sand.That, in turn, has resulted in lung abnormalities that may one dayturn into silicosis, an incurable disease, the workers charge.

“Our product actually works,” said Roger Andrews, Bullard'sdirector of risk management. “But we're nonetheless a defendant inthese cases” along with everyone else, he said.

Providing some history, Mr. Andrews explained that Bullardinvented the hard hat in 1919, but that it wasn't until the 1930sthat the building of the Golden Gate Bridge led to the developmentof air-supplied respirators. When the steel to construct the bridgearrived in San Francisco, it was rusty, he said. Bullard was askedto design protection for workers who had to sand blast the rustoff, he said.

Today, the air-supplied respirator looks like a space helmetwith an air hose going into it and a cape that goes down to theworker's waist, said Mr. Andrews, who served as the president ofthe New York-based Risk and Insurance Management Society in2000.

A dust bowl was sweeping across the nation during the samedecade that Bullard first developed its product one that now putsthe company at the center of a distinctly different dust storm withat least 159 other defendant companies. Industrial scientists andother experts say that organized efforts to eliminate silicosisdate back to the same time period, and that knowledge of thehazards of silica dust go back even further.

Insurers, defendants and their attorneys insist that a differentkind of drought might have motivated a recent increase inlawsuits.

“I would have to believe that trial lawyers are concerned thatasbestos suits are going to dry up and they're looking for a newcrop to harvest,” said Robert Glenn, president of the NationalIndustrial Sand Association in Calverton, Md., echoing thespeculations of many experts on the defense side interviewed forthis series of articles. “They've become quite talented at pursuingasbestos suits,” another fibrotic lung disease, he added.

Recent Lawsuits: Defendants' Perspective

“It doesn't matter what product you have,” Mr. Andrews toldNational Underwriter when initially asked which of hiscompany's products has made it a target of so many lawsuits.

Companies “are in it from the sand suppliers to [ones] that madepots that they held sand in,” he said, suggesting that lawyersfiling cases alleging damaged lungs from silica respiration “willinvolve anybody” that has products related to silica supply.

Insurance experts following silica litigation say the maintargets are companies involved in sandblasting or grindingoperations, companies that mine, process and supply industrial sandand gravel (including NISA members), and makers of respirator masksand protective equipment like Bullard and 3M in Minnesota.

When Bullard is named in lawsuits, Mr. Andrews said, theallegation is that its air-supplied respirator product didn't workor that the company didn't give a proper warning.

“We have a good market share in that product, and it works,” hesaid. “It's been tested many times in different formats. So we'regenerally not a target defendant a lot of times. It depends on who[else] is around to pay the claims,” he suggested.

While lawsuits relating to silica-related injury have beenaround for more than 20 years, typical defendants have seen amarked spike in claims in the last two years.

Mr. Andrews said his company faced one case in 1975, and that itwasn't until 1993 that multiplaintiff suits started to crop up. Inthe mid-1990s, he reported, cases began to take off, but even in1999, the year with highest totals in the decade, there were just62 cases from roughly 200 plaintiffs. In contrast, in 2002, 156cases were filed by 4,305 plaintiffs. And in 2003, the numberssurged to 643 cases and 17,288 plaintiffs.

Indeed, a recent history of filings that Mr. Andrews providedshows that 643 cases brought in 2003 exceeded all the cases filedfor the years 1995-2002 combined.

“By and large, there aren't many plaintiffs out there who arereally sick with silicosis. It's like in asbestos. They had anabnormal lung X-ray,” he said, noting that a lot of the plaintiffshave never used Bullard's product or worked in the sandblastingindustry. But “it takes awhile to get to the point where we'redismissed out” of cases, he said, noting that Bullard,historically, has been dismissed from 80 percent of such cases.

Among the “couple of dozen” that have gone to trial, Bullardlost only two, Mr. Andrews said.

In its most recent 10-K annual filing, 3M reports a similaractivity for respirator mask lawsuits, with victories in four offive cases tried to a verdict. The case emergence story is similarfor Better Minerals & Aggregates Company in Berkeley Springs,W.Va., where suits arise out of the alleged use of productssupplied by a subsidiary, U.S. Silica Company, in foundries or asan abrasive blast media.

John Ulizio, chief executive officer of U.S. Silica, saidlitigation started in 1975 against his company, which mines,processes and sells industrial minerals primarily silica sand.

Back in the 1970s, the lawsuits were “relatively limited interms of numbers.” And litigation was also limited in terms ofgeography, Mr. Ulizio reported. “Weve historically had our cases inTexas,” he said, adding that there were also some lawsuits in otherlocations in the early- and mid-1980s. But those cases “didn'tresult in an explosion in silica litigation, and were resolved infavor of the silica sand defendants,” he said, referringspecifically to a mass filing in Virginia arising from a foundryexposure and a large number of cases filed in WesternPennsylvania.

“We had more than 500 cases filed in 1987, compared to 12 in1986 and 34 in 1988,” he said, noting that the Pennsylvania caseswere successfully defeated by litigating on the basis that U.S.Steel (the user of the silica sand in the cases) was asophisticated user of sand products and that U.S. Silica shouldhave no liability associated with failing to warn U.S. Steel'sworkers.

“We had a relatively cohesive and coordinated defense group atthat time,” Mr. Ulizio said.

After that, filings tapered off again until a recent “dramaticincrease,” he said. In particular, there was a “bubble” of filingsin Mississippi from November 2002 to April 2003a state where U.S.Silica really hadn't been named as a defendant “in any real number”of cases prior to 2002. The 2002 filings almost all occurred inNovember, he said, adding that the bulk of the 2003 filingsoccurred before May 2003.

Mark Behrens, a defense attorney in the Washington office ofShook, Hardy & Bacon, as well as counsel to the Coalition forLitigation Justice, a Washington-based insurer group, is one ofmany observers who speculated that there are two reasons for theupsurge. One is that plaintiffs' lawyers have filed to try to beattort reforms that were enacted in Mississippi and Texas. The otherone is that, looking ahead, the lawyers were concerned that federalasbestos legislation might pass, he said.

At Bullard, Mr. Andrews said, “we do have a couple of casesright now in Texas, where workers have complicated silicosis, [but]most of the people aren't really sick. The plaintiffs' lawyers willsay that they are because they have an abnormal lung X-ray. Buteven a B Reader [a certified X-ray reader] will say it's anabnormal film and that's all it isWe don't know whether it could bechildhood pneumonia or it was caused by smoking or bronchitis.”

According to the National Institute for Occupational Safety andHealth, B Reader approval is granted to physicians who demonstrateproficiency in the classification of chest X-rays using what'sreferred to as the International Labor Office ClassificationSystem. This system uses the numbers 0 to 3 to identify the degreeof scarring on a lung, with 0 indicating no scarring and 3 beingthe most severe. A 1/0 film is one that the reader consideredcalling a 0 before finally deciding to rate it as a 1.

“I probably would have a 1/0 lung, too, just because you'reexposed to the environment a lot of times,” Mr. Andrews said, inresponse to an increase of silicosis lawsuits based on 1/0readings, contrasting those with the few Texas cases based on 3/3or 2/2 readings.

Asked about the cost of defending lawsuits, Mr. Andrews gavethis summary: “Bullard is not a big company. We have 250 employeesnow and $70 million in sales. It's a privately held company and tohave someone devoted to litigation management full time issurprising, so that cost is enormous.”

He added that he doesn't keep statistics on the specific costfigures as he once did. “We just got inundated with all this. Ijust don't have time.”

“I get the complaint in and there are often 100-to-150 companiesnamed. So I know that at least that many companies are respondingthe way I am,” he said, going on to describe a process of makingcopies for all the insurance carriers and attorneys and sendingthem out. “Then, the actual defense work starts. So just theprocessing is a big drain on business that people don'trealize.”

Working Toward A Ban

“I'm trying to garner enough support to actually ban the use ofsilica for abrasive blasting in the United Statesso we can see anend to this litigation,” Mr. Andrews said, noting that it wasbanned in Europe years ago.

“We've learned that a lot of employers take shortcuts with thesafety of their employees. Even though a product works, they won'tmaintain the product properly. They'll buy aftermarket parts [and]often they don't even use air-supplied respirators,” he added.

“It just appears that [the Occupational Safety and HealthAdministration] is not capable of monitoring a work site,” hesaid.

Next Week: Plaintiffs' lawyers perspectives on banningsilica for blasting, on 1/0 X-Rays, and newdefendants.

SIDEBAR 1

Flag: FYI

What Is Silica?

Its Sand and Rocks

Robert Glenn, an industrial hygienist who formerly conductedlung disease research for the National Institute for OccupationalSafety and Health, a federal agency that is part of the Centers forDisease Control and Prevention, explains the science of silica andthe disease silicosis.

Silica is essentially a compound of the elements silicon andoxygen, which occurs naturally in crystalline and non-crystallineforms, he said. The crystalline form of silica which is the onethat has disease potential is characterized by a systematicarrangement of atoms, he said, adding that quartz is the mostcommon form of crystalline silica.

“Silica is extremely ubiquitous,” he said, referring to thecrystalline form. “It is the second most common mineral in theEarth's crust.”

Mr. Glenn, who is president of the National Industrial SandAssociation, said: “It's so pervasive that all rocks and soilcontain some crystalline silica. A granite block can have 40-to-50percent crystalline silica in it.”

“Whenever you see a dust cloud even from agriculture orconstruction, or from driving on unpaved roads you can pretty wellbet there's respirable crystalline silica in that dust cloud. Weall have inhaled it,” he added.

Does that mean we're all in danger of developing silicosis?

Mr. Glenn explained that silica only becomes hazardous whenparticles reach the deep lung or alveolar region. That meansparticles must become small enough to be respirable (as they can insandblasting, grinding and mining operations) and there must be an“intensity of exposure” exposure above certain occupationalexposure limits measured in micrograms per cubic meter of air.

Exposure also has to occur on a frequent basis. “Silicosis isnot a casual disease that you get from one exposure. The main formsthat we're concerned about come from repeated exposures, day afterday, for a major part of a working lifetime,” he said.

Members of NISA mine and process a high-quality, high-purityform of crystalline silica, mainly quartz, which has become knownas “industrial sand” or “silica sand,” Mr. Glenn explained.

“Our sands, because of their uniqueness, have very good chemicaland refractory properties. They go into glass, including flatglass, bottling glass, fiberglass. They're used in the casting ofmetals in foundries. They're used in enhancing oil and gasproduction. They go into ceramic. They end up in paints andadhesives.”

Industrial sands also find their way into computer screens,PDAs, cell phones and automobiles, he said, explaining that theseitems either have parts made from sand or metal parts that havebeen cast in sand.

Susanne Sclafane

Caption for sand photo to come when we know what shot wehave

SIDEBAR 2

Flag: FYI

Latest Reform Efforts

Among the Texas reforms, effective on Sept. 1, 2003, were ajoint-and-several liability reform and multidistrict litigationreform allowing defendants who had cases filed all over the stateto consolidate them in front of one judge, noted Mark Behrens,counsel to the Coalition for Litigation Justice.

Explaining the joint-and-several rule change, he noted thatprior to the reform, a defendant would only pay damages based onits percentage of fault if the defendant was less than 15 percentliable in an asbestos case, but could be held liable for the entireharm where it was more than 15 percent at fault. The reform raisedthe percentage from 15 percent to 50 percent, consistent with otherliability cases.

Mississippi reforms, which took effect on Jan. 1, 2003, includedcaps on punitive damages, joint liability reform, venue reform andfrivolous lawsuit sanctions, he said.

Mr. Behrens asserted that whenever tort reform is passed, “youoften see plaintiffs' lawyers that have cases in thepipelinedump[ing] their inventory into the system at once to beatthe effective date of the reform.”

?Susanne Sclafane

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Reproduced from National Underwriter Edition, May 10, 2004.Copyright 2004 by The National Underwriter Company in the serialpublication. All rights reserved.Copyright in this article as anindependent work may be held by the author.