SILICA DUST: THE NEXT ASBESTOS?

Part one of Series

Why did the company that manufactured the first hard hat get hit with over 600 lawsuits from over 17,000 plaintiffs in 2003? The two-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 makes respiratory protection devices, which some workers say failed to protect them from inhaling small particles of industrial sand. That, in turn, has resulted in lung abnormalities that may one day turn into silicosis, an incurable disease, the workers charge.

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

Providing some history, Mr. Andrews explained that Bullard invented the hard hat in 1919, but that it wasn't until the 1930s that the building of the Golden Gate Bridge led to the development of air-supplied respirators. When the steel to construct the bridge arrived in San Francisco, it was rusty, he said. Bullard was asked to design protection for workers who had to sand blast the rust off, he said.

Today, the air-supplied respirator looks like a space helmet with an air hose going into it and a cape that goes down to the worker's waist, said Mr. Andrews, who served as the president of the New York-based Risk and Insurance Management Society in 2000.

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

Insurers, defendants and their attorneys insist that a different kind of drought might have motivated a recent increase in lawsuits.

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

Recent Lawsuits: Defendants' Perspective

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

Companies “are in it from the sand suppliers to [ones] that made pots that they held sand in,” he said, suggesting that lawyers filing cases alleging damaged lungs from silica respiration “will involve anybody” that has products related to silica supply.

Insurance experts following silica litigation say the main targets are companies involved in sandblasting or grinding operations, companies that mine, process and supply industrial sand and gravel (including NISA members), and makers of respirator masks and protective equipment like Bullard and 3M in Minnesota.

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

“We have a good market share in that product, and it works,” he said. “It's been tested many times in different formats. So we're generally 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 been around for more than 20 years, typical defendants have seen a marked spike in claims in the last two years.

Mr. Andrews said his company faced one case in 1975, and that it wasn't until 1993 that multiplaintiff suits started to crop up. In the mid-1990s, he reported, cases began to take off, but even in 1999, the year with highest totals in the decade, there were just 62 cases from roughly 200 plaintiffs. In contrast, in 2002, 156 cases were filed by 4,305 plaintiffs. And in 2003, the numbers surged to 643 cases and 17,288 plaintiffs.

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

“By and large, there aren't many plaintiffs out there who are really sick with silicosis. It's like in asbestos. They had an abnormal lung X-ray,” he said, noting that a lot of the plaintiffs have never used Bullard's product or worked in the sandblasting industry. But “it takes awhile to get to the point where we're dismissed 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, Bullard lost only two, Mr. Andrews said.

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

John Ulizio, chief executive officer of U.S. Silica, said litigation 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 in terms of numbers.” And litigation was also limited in terms of geography, Mr. Ulizio reported. “Weve historically had our cases in Texas,” he said, adding that there were also some lawsuits in other locations in the early- and mid-1980s. But those cases “didn't result in an explosion in silica litigation, and were resolved in favor of the silica sand defendants,” he said, referring specifically to a mass filing in Virginia arising from a foundry exposure and a large number of cases filed in Western Pennsylvania.

“We had more than 500 cases filed in 1987, compared to 12 in 1986 and 34 in 1988,” he said, noting that the Pennsylvania cases were successfully defeated by litigating on the basis that U.S. Steel (the user of the silica sand in the cases) was a sophisticated user of sand products and that U.S. Silica should have no liability associated with failing to warn U.S. Steel's workers.

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

After that, filings tapered off again until a recent “dramatic increase,” he said. In particular, there was a “bubble” of filings in 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 in November, he said, adding that the bulk of the 2003 filings occurred before May 2003.

Mark Behrens, a defense attorney in the Washington office of Shook, Hardy & Bacon, as well as counsel to the Coalition for Litigation Justice, a Washington-based insurer group, is one of many observers who speculated that there are two reasons for the upsurge. One is that plaintiffs' lawyers have filed to try to beat tort reforms that were enacted in Mississippi and Texas. The other one is that, looking ahead, the lawyers were concerned that federal asbestos legislation might pass, he said.

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

According to the National Institute for Occupational Safety and Health, B Reader approval is granted to physicians who demonstrate proficiency in the classification of chest X-rays using what's referred to as the International Labor Office Classification System. This system uses the numbers 0 to 3 to identify the degree of scarring on a lung, with 0 indicating no scarring and 3 being the most severe. A 1/0 film is one that the reader considered calling a 0 before finally deciding to rate it as a 1.

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

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

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

“I get the complaint in and there are often 100-to-150 companies named. So I know that at least that many companies are responding the way I am,” he said, going on to describe a process of making copies for all the insurance carriers and attorneys and sending them out. “Then, the actual defense work starts. So just the processing is a big drain on business that people don't realize.”

Working Toward A Ban

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

“We've learned that a lot of employers take shortcuts with the safety of their employees. Even though a product works, they won't maintain 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 Health Administration] is not capable of monitoring a work site,” he said.

Next Week: Plaintiffs' lawyers perspectives on banning silica for blasting, on 1/0 X-Rays, and new defendants.

SIDEBAR 1

Flag: FYI

What Is Silica?

Its Sand and Rocks

Robert Glenn, an industrial hygienist who formerly conducted lung disease research for the National Institute for Occupational Safety and Health, a federal agency that is part of the Centers for Disease Control and Prevention, explains the science of silica and the disease silicosis.

Silica is essentially a compound of the elements silicon and oxygen, which occurs naturally in crystalline and non-crystalline forms, he said. The crystalline form of silica which is the one that has disease potential is characterized by a systematic arrangement of atoms, he said, adding that quartz is the most common form of crystalline silica.

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

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

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

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

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

Exposure also has to occur on a frequent basis. “Silicosis is not a casual disease that you get from one exposure. The main forms that we're concerned about come from repeated exposures, day after day, for a major part of a working lifetime,” he said.

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

“Our sands, because of their uniqueness, have very good chemical and refractory properties. They go into glass, including flat glass, bottling glass, fiberglass. They're used in the casting of metals in foundries. They're used in enhancing oil and gas production. They go into ceramic. They end up in paints and adhesives.”

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

Susanne Sclafane

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

SIDEBAR 2

Flag: FYI

Latest Reform Efforts

Among the Texas reforms, effective on Sept. 1, 2003, were a joint-and-several liability reform and multidistrict litigation reform allowing defendants who had cases filed all over the state to 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 that prior to the reform, a defendant would only pay damages based on its percentage of fault if the defendant was less than 15 percent liable in an asbestos case, but could be held liable for the entire harm where it was more than 15 percent at fault. The reform raised the percentage from 15 percent to 50 percent, consistent with other liability cases.

Mississippi reforms, which took effect on Jan. 1, 2003, included caps on punitive damages, joint liability reform, venue reform and frivolous lawsuit sanctions, he said.

Mr. Behrens asserted that whenever tort reform is passed, “you often see plaintiffs' lawyers that have cases in the pipelinedump[ing] their inventory into the system at once to beat the 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 serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.


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