Silica Suits: Tipping Point Or Just Tip Of The Iceberg?

Does the drop-off mean that insurance industry representatives are right when they suggested that the early surge in 2003 was a mad dash to the courthouse to beat tort reforms in Mississippi and Texas? Or is there a bigger message in the fact that the 3,828 additional plaintiffs filed cases against U.S. Silica in the second half of 2003, eclipsing figures for every prior full year except 2002?

"We really don't know," said Mark Behrens, a defense attorney in the Washington office of Shook, Hardy & Bacon. The fact that cases increase doesn't mean they all have merit, he said.

Mr. Behrens is counsel to the Coalition for Litigation Justice, a Washington-based group formerly known as the Coalition for Asbestos Justice. The name change was made so the group could start monitoring silica cases and filing briefs.

The litigation, he said, "is at a tipping point." If the judges allow traditional product liability defenses, apply sound science and don't rush to consolidate large numbers of them, then this "should never become the next asbestos."

Silica Is Everywhere; Silicosis Isn't

Mr. Behrens wasn't the only insurer representative to draw distinctions between silica litigation and asbestos. Comparing the substances at the heart of the two sets of cases, Robert Hartwig, chief economist for the Insurance Information Institute in New York, said silica is everywhere. "It's sand. It's rock. Anytime you cut rock, anytime you demolish a building, anytime you build roads, you expose workers to this dust," he noted.

In contrast, there is very little asbestos used in products anywhere in the world today, he noted. "You'd actually have to work at it very hard to come into substantial contact with asbestos on a regular basis, especially in workplace setting," he said.

The National Institute of Occupational Safety and Health, in an April 2002 report, "Health Effects of Occupational Exposure to Respirable Crystalline Silica," said that at least 1.7 million U.S. workers are potentially exposed to respirable crystalline silica (based on a 1991 estimate), adding that "an undetermined portion of the 3.7 million U.S. agricultural workers" might also be exposed. A 2000 World Health Organization fact sheet also said that more than one million U.S. workers are occupationally exposed, adding that 59,000 could eventually develop silicosis.

"It is reported that each year in the United States about 300 people die from it, but the true number is not known," the WHO report said.

Mr. Hartwig, who co-authored a February 2004 silica liability report compiling many more statistics from various government agencies, said the numbers indicate that the likelihood of becoming ill from silica is less than from asbestos. With silica, "it's a question of how much [workers] are exposed to and for how long," he explained.

Knowledge of potential health problems and of methods to eliminate hazards account for some of the difference, according to Robert Glenn, president of National Industrial Sand Association in Calverton, Md. He noted that problems with asbestos didn't get attention until the 1960s, while silica hazards have been known since 1910.

Mr. Glenn noted that while silicosis deaths have dropped 80 percent, "asbestosis deaths are just the other way. They increased from 77 asbestosis deaths in 1968 to 1,265 in 1999," he said, quoting a NIOSH report. "For silica, it's 1,157 in 1968 and 187 in 1999."

"So I really think what we have is a litigation epidemic and not a silicosis epidemic," he said.

"Not to trivialize this, but more people were killed last year falling off rooftops on job sites than NIOSH found had died from silica-related illness," said Mr. Behrens. He conceded that there may be more people who are injured who are not dead. "But you wouldn't expect the number of injuries would go up if the death rate is declining."

Mr. Glenn said that "the dots don't connect. It's counterintuitive that silicosis is increasing when we see this drop in mortality and also a drop in dust levels. I just don't feel that all of these lawsuits are legitimate."

"Certainly there are some workers sick with silica disease, and they deserve to be taken care of. But these cases are coming from litigation screenings," he saidnot from people going to their physicians who are diagnosing them to have disease.

Is Silicosis More Prevalent Than Stats Reveal?

"Insurance companies want to say that its all the lawyers," said Lance Lubel, a plaintiffs' attorney for Heard, Robins, Cloud, Lubel & Greenwood in Houston. "To some extent it is. We drum up the cases by doing screenings. No lawyer that's being straight with you can tell you otherwise."

Still, Mr. Lubel said, there is a percentage of cases that plaintiffs' lawyers "drum up" that treating doctors miss simply because treating physicians don't know what silicosis is.

What are the chances that a regular physician will understand what he's looking at when a sandblaster complains of shortness of breath, Mr. Lubel asked, noting that there are only 15-to-20 certified B-readers in the entire state of Texas. Instead of coming to the correct diagnosis of silicosis, he said, a treating physician will conclude it is smoking-related shortness of breath, emphysema or chronic obstructive pulmonary disease, known as COPD.

Beyond Silicosis: Other Diseases

Mr. Lubel was the plaintiff's attorney in Tompkins v. U.S. Silica, a case that resulted in the largest silica jury verdict in the state of Texas in 2001$7.5 million. While most reports focus on the size of the award, "what's often lost is the fact that it was the first time a jury had been asked to link silica exposure to chronic obstructive pulmonary disease and emphysema," Mr. Lubel pointed out, calling that aspect of the case "groundbreaking."

One of the problems for silica defendants, he noted, is that there are so many diseases that are implicated from exposure to crystalline silica. While most of his cases are brought on behalf of plaintiffs with silicosis, NIOSH's April 2002 report indicates some links to COPD, emphysema, autoimmune disease, lung cancer, kidney disease and tuberculosis.

For plaintiffs, a problem is that medical experts believe that silica alone will not cause COPD or emphysema, Mr. Lubel said, noting that there must be a combination of silica exposure and a smoking history. However, he noted, the combination makes the incidence of those illnesses more prevalent than just smoking alone.

Juries may have a difficult time, but they "can work through the issue of the silica versus tobacco," he said, noting that this was the situation in the Tompkins case, where the jury spent a great deal of time on the smoking issue, according to post-trial interviews.

Mr. Glenn noted that the link between silica and lung cancer has been looked at by several groups, including the International Agency for Research on Cancer, a WHO organization, which first drew attention to the link in the 1980s when IARC said crystalline silica should "probably" be classified as a carcinogen based on animal experiments. Later, in 1996, IARC did classify silica as a human carcinogen (as did the National Toxicology program of the Department of Health and Human Services a few years later), but did not give any indication of the level of exposure at which cancers would be expected.

Mr. Glenn noted, however, that if silica does play a role in the induction of lung cancer, then that role is through the silicotic response. In other words, if you did not have silicosis or fibrosis, then there would not be any increased risk of lung cancer, he said, adding that while some lawsuits have been filed on behalf of cancer victims, most allege silicosis.

A Road Map For Plaintiffs?

The IARC designation of crystalline silica as a carcinogen, and the continuing existence of roughly 200 silicosis deaths per year, prompted the U.S. Occupational Safety and Health Administration to review its standards for controlling exposure, according to a Dec. 22, 2003 report in the Federal Register. Should a draft rule under review be adopted, it would not only cost small businesses billions of dollars to implement, but it will cause litigation to increase "exponentially," warns Henry Chajet, an environmental health and safety lawyer for Washington-based Patton Boggs.

In a recent article in a law journal (Harris Martin, January 2004), Mr. Chajet said that data cited by OSHA to support the new rule is a "gold mine" of evidence for attorneys representing victims of silica-related illnesses. Among his concerns is a provision that would decrease OSHA's silica permissible exposure limit, he told National Underwriter.

NISA's Mr. Glenn noted that OSHA's permissible limit a time-weighted average of 100 micrograms per cubic meter of air over an eight-hour shift in a 40-hour week was based on a recommendation from the American Conference of Governmental Industrial Hygienists dating back to the start of OSHA in 1971. In 1974, when Mr. Glenn worked for NIOSH, the research arm of OSHA, NIOSH published a criteria document recommending that the exposure limit should be cut in halfto 50 micrograms.

"There are always attempts to use [the differing] NIOSH limit in litigation," said Mr. Chajet, whose law firm coordinated materials for a small-business review of the new OSHA draft rule (a required procedure of OSHA rulemaking). "But no NIOSH-recommended limit for any substance has ever been adopted," he said, noting that NIOSH "makes recommendations on the basis of driving risks to zero."

"That's not the same as a reasonable approach to risk control," he said, adding that the companies he represents believe the OSHA permissible limit represents an appropriate level of risk given the declining silicosis death rate under the current rule.

According to Mr. Glenn, members of the National Industrial Sand Association are regulated by the Mine Safety & Health Administration, which uses the OSHA permissible limit. "Our members follow the law," he said, adding that NISA has "an intense model program for silicosis prevention" and that many member companies are striving to get to half the MSHA level.

Tipping, But In What Direction?

As for litigation trends, Mr. Glenn suggested that suits against industrial sand suppliers "are probably just the tip of the iceberg."

He predicted that the construction aggregates industry, which supplies concrete and other materials for construction, "could bear the brunt of future litigationjust because of the volume of the material they produce that's used so much in the basis of our infrastructure."

"You don't build roads without silica road base," he said, adding that the aggregates industry produces 2.3 billion metric tons of materials annually, compared to only 26 million tons of industrial sand.

Focusing on the sand industry, Mr. Behrens said that the fact that small, regional companies predominate might discourage plaintiffs' lawyers from continuing to file cases. In particular, he contrasted the smaller firms with national asbestos companies with deeper, wider pockets.

In the conclusion of the series, Susanne Sclafane examines how much commercial liability insurers might ultimately end up paying out on silica-related claims?

Reproduced from National Underwriter Edition, May 28, 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.