The Skinny On Silica

The Skinny On Silica

After weeks of immersing myself in documents about silica lawsuits, I received yet another package to sift through. This one, from a media relations firm representing tort reformers, included an odd item a video called “Stop Silicosis Now.”

Popping it into my VCR, I discovered that this video in glorious black and white dated back to 1938. Put together by the Department of Labor, it warned of dangers of breathing deadly silica dust.

Midway through, viewers are introduced to John Steel, a foundry worker whose lungs are so damaged that he can't lift a shovel of sand. His employer is forced to fire him. A quick cut to the next scene shows Mr. Steel performing the only job he can find carving names on tombstones.

As the narrator went on to describe how Mr. Steel ironically contemplated his own fate as he carved the stone (and inhaled yet more dust), I couldn't help but snicker at this over-the-top Movietone newsreel-type presentation with its caricature of a real victim.

My inappropriate reaction can perhaps be explained by the fact that I was subject to a lot of over-the-top spin as I put together the series of articles that begins on page 10. Defendants and insurers charge that every asbestos lawyer is taking asbestos claims and turning them into silica claims for workers who aren't ill; plaintiffs' lawyers contend insurers are totally unwilling to compensate the sick and dying.

Ultimately, the story of how silica suits impact insurers will come down to reactions appropriate or not. Will plaintiff attorneys file more cases? Will defendants fight or settle? Will insurers cover claims?

The silica story gave me a rare opportunity to talk to representatives from all sides at a pivotal point in the history of these cases including the risk manager for a respiratory protection maker you'll meet this week. In coming weeks, you'll hear a singular set of well-orchestrated messages from defendants and insurers, and three plaintiff lawyers will reveal their strategies as they come at this from very different directions.

In spite of differing viewpoints, everyone I spoke with voluntarily answered a question I didn't have to ask declaring that silica is not “the next asbestos.” In the process, insurers blamed the media and plaintiffs blamed tort reformers for hyping such comparisons.

Maybe a better question to ask is whether the insurance industry can survive silica, on top of mold, on top of asbestos, followed by welding rods and aspartame, and whatever else. The litany should give insurers pause as they consider quick settlements and the messages they send.

Another question that came up, less often, was whether the workers' comp system is the right place to handle silica-related claims. Here, Im moved by personal experience to conclude it is not, but at a loss to come up with a workable scheme.

Over a year ago, I spent my days for six months in the respiratory care unit of a hospital watching mechanical ventilators breathe for helpless patients. While none had silicosis, with those memories vivid, I can't imagine tossing $100,000 to the victim of a completely preventable lung ailment whose horrible fate was caused by an employer's negligent risk management practices.

Clearly, the no-fault comp system is causing lawsuits to be directed at the wrong parties. Yet for real victims, handed a death sentence when diagnosed with silicosis even if they are few there has to be a better answer.

Susanne Sclafane

Managing Editor

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.