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PREMIER ISSUEPREMIER ISSUE

SILICA

The Epidemiology of Silica Exposure and Disease

Research Watch: Report onA Unique Six–Month Study

SILICA LITIGATION: WAKING A SLEEPING GIANTSILICA LITIGATION: WAKING A SLEEPING GIANT

The Epidemiology of Silica Exposure and Disease

Research Watch: Report onA Unique Six–Month Study

ALSO IN THIS ISSUE:• International Silicosis & Cancer Symposium Planned for Late October• The Latest Silica Research in Medical Journals Around the World• Appeals Courts Weigh the Validity of ‘Sophisticated User’ Defense

FROM THE FRONT LINES OF THE SILICA LITIGATION PREMIER ISSUE

Ever since the United States SupremeCourt published its opinion in Urie v.Thompson (1949) 337 U.S. 163,

silicosis litigation has been an integral part ofthe rich tapestry of toxic tort litigation in thiscountry. While it has not gained the notorietyof asbestos or tobacco litigation, silica dustexposure litigation has occupied a strongfoothold in this area for the past fifty years.In fact, a number of events, recent andupcoming, will once again place the spotlighton silicosis litigation.

Crystalline silica is a generic term, whichencompasses a number of minerals to includequartz, tridymite, and cristoballite. As quartzis the most common mineral in the earth’scrust, there is no shortage of crystalline silicain the environment. Crystalline silica is com-monly referred to as “silica dust”, which has anumber of industry applications. It also canbe the ambient result of various industrialactivities. Industrial settings where crystallinesilica may exist are sandblasting, rock drilling,masonry work, underground construction,mining, foundry work, ceramics, pottery,detergent and soap manufacturing, stone cut-ting, glass manufacturing, agriculture, ship-building, railroad work, automotive repair, oilfield work, and abrasive manufacturing.According to NIOSH studies, U.S. workers inthese industries number over two million,with more than 100,000 in what are consid-ered occupations “high-risk” for silica dustexposure. Steeland & Brown, “Silicosis AmongGold Miners: Exposure-Response Analyses &Risk Assessment,” (1995) 85 Am. J. of PublicHealth 1372.

When workers inhale silica dust, scar tissueappears in the lungs, which surrounds the sili-ca particles. This process is generally knownas silicosis, the formation of nodular regionsaround the silica particles in the lungs. As theinhaled crystalline silica affects more lung tis-sue, breathing becomes increasingly difficult,chest pain develops, and death may occur as aresult. Silicosis sufferers experience shortnessof breath, fever, and cyanosis. Other pul-monary symptoms may develop as well. Someare incorrectly diagnosed as having pulmonaryedema, pneumonia, or other lung diseases.NIOSH, “Silicosis in Sandblasters” (2002).

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Three types of silicosis exist: chronic, acceler-ated, and acute.

Chronic silicosis occurs after 10 or more yearsof exposure to relatively low levels or concen-trations of silica dust. In chronic silicosispatients, the latency period may take sometime and will not develop until well after theinitial exposure, over 25 years in some cases.The fibrotic changes in the lung may continueto develop over time even after the exposurehas ceased. Chronic silicosis is further subdi-vided into simple and complicated silicosis.Simple silicosis is characterized by the pres-ence of small, rounded fibrous nodules. Theyrange in size from 3 to 6 mm and are not larg-er than 1 cm in diameter. Sufferers of simplesilicosis generally do not exhibit respiratorysymptoms unless they have a co-existent dis-ease like emphysema or some other lung dis-ease. Complicated silicosis have larger silicoticnodules and lesions in most cases greater than1 cm in diameter. Complicated silicosispatients generally demonstrate shortness ofbreath and symptoms of increasing severity toinclude breathing failure. National Centre ofOccupational Health Alert, “Crystalline Silica:Health Hazards and Precautions” (Feb. 1999).

Accelerated silicosis can occur from five to 10years after exposure to high concentrations ofcrystalline silica. Although similar to the pat-tern of development of chronic silicosis, accel-erated silicosis tends to develop from simple tocomplicated silicosis in a much faster timeperiod. “Silicosis in Sandblasters,” supra.

Acute silicosis is linked to extremely high con-centrations of silica dust and can develop asquickly as a few weeks to five years from ini-tial exposure. The radiological appearance andother features of acute silicosis are similar tothat of pulmonary alveolar proteinosis.Symptoms include cough, weight loss, andfatigue. Death can occur within a few monthsif the exposure is significant enough.Traditionally, acute silicosis has been found insand-blasters and drillers, especially thoseworking with silica powder. As discussedbelow, a number of recent efforts have height-ened interest in the potential causes of silicosisand the potential dangers of silica dust expo-sure. NCOH Alert, supra.

Silicosis Litigation: A PotentialSleeping Giantby

Michael J. Pietrykowski, Esq.and

Thomas J. Tobin, Esq.

See page 64 for author biographies

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SILICA • PREMIER ISSUE

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Early Beginnings

As early as the 1930s, the link between silicadust inhalation and silicosis was established.Silicosis gained national prominence with thedeath of approximately 700 workers drydrilling in tunnels in West Virginia.Markowitz& Rosner, “The Reawakening of NationalConcerns About Silicosis,” (1998) 113 PublicHealth Reporter 302. Given the amount ofdirect exposure and the timing of their deaths,these West Virginians died of acute silicosis,which created no statute of limitations prob-lems. The limited latency period of acute sili-cosis raised no issues relative to latency or thediscovery rule.

Until 1949, chronic and accelerated silicosissufferers had difficulty meeting the applicablestatute of limitations in light of the latency oftheir disease. The United States SupremeCourt, with the Urie v. Thompson decision,recognized that the mechanical application ofthe statute of limitations, with no discoveryrule, could lead to inequitable results forplaintiffs with diseases having a latency periodlonger than the applicable statutory period.The Supreme Court in Urie allowed a plain-tiff, with silicosis that was latent beyond theduration of the statute of limitations period,to sue for inhalation injuries because the suitwas initiated within a reasonable time after thediscovery of the disease. This decision notonly lead to the establishment of a discoveryrule in most states, but it paved the way forfuture cancer and asbestos-related matters.

Steady Stream of Litigation (1950s — 1970s)

In the time period after the Urie decision andthe state regulations that followed, there wascertainly no shortage of silicosis patients andtheir lawsuits. However, the focus appeared tobe on recovery almost exclusively againstemployers. In the 1950s to the 1970s, morethan 95 percent of the silicosis claims were inthe worker’s compensation arena. Silicosis was

dubbed the “king of occupational diseases” atthat time. See Markowitz & Rosner, supra, at303. Throughout this time period, the greatmajority of silicosis plaintiffs stayed withinvarious state run systems and away from the courts.

Increase of 3rd Party Claims (1980s-1990s)

Toward the end of the 1970s, plaintiffs andtheir counsel were becomingly increasinglydissatisfied with worker’s compensation awardsand turned their sights to a new brand of sili-cosis litigation. Attorneys in Virginia, Texas,and Pennsylvania were among the first to filesuit against manufacturers of silica productsused in the various industries where potential

plaintiffs were exposed to silica dust. Thebasis for liability as against those manufactur-ing and supplying silica products to employerswas and remains similar to that of asbestosand other similar substances. Most casesinvolved theories of failure to warn and defec-tive design and manufacture.

Starting with a $1 Million verdict in favor of asand blaster-industrial painter (Flowers v.Specialty Sand Co.), Texas became and contin-ues to be a popular jurisdiction for silicosis lit-igation, especially for sandblasting plaintiffs.There were also groups of plaintiffs claimingsilica exposure in Pittsburgh, Pennsylvania,and Lynchburg, Va., in the foundry and steelindustry. See Appleson, “Third-Party ClaimsGrow in Silica Dust Cases,” National LawJournal, August 29, 1983.

In light of the trend of third-party claims andalso the epidemiological evidence linking sili-cosis and silica dust, silicosis litigation thrivedduring the 1980s and 1990s with a steadystream of plaintiffs. The trend in this area oflitigation in this time period was to constantlypush the envelope to discover new areas andindustries where silica dust exposure is preva-lent. As these decades came to an end, silico-sis litigation had spread into industries beyond

the traditional mining, sandblasting, andfoundry industries. Plaintiffs emerged withsilica dust exposure from work in ceramics,pottery, shipbuilding, railroad work, agricul-tural harvesting, and oil field drilling.

During this time period, various agencies, fed-eral and state, further refined regulations con-cerning workplace safety and acceptable limits,which also aided the spread of silicosis litiga-tion. The National Institute for OccupationalSafety and Health, the Mine Safety andHealth Administration, and the OccupationalSafety and Health Administration continuedto promulgate rules and regulations. Theseactions not only worked to increase occupa-tional safety in these industries but also made

compliance more difficult for employers and manufacturers. In turn, these more difficultstandards have aided plaintiffs in arguingbreach of the duty to warn and also defectivedesign and manufacture.

Toward the end of the 1990s, some favorablestatistics indicated a drop in the number of sil-icosis-related deaths. NIOSH reports indicatethat mortality rates from silicosis declinedfrom over 1,000 per year in the late 1960s tofewer than 250 per year in the mid-1990s(1994-1996). See BNA Occupational Safety &Health Daily, March 21, 2000. While thisnews is encouraging, it does not indicate anelimination of silicosis deaths, but rather asteady downward trend in deaths that are con-firmed silicosis deaths. It also does not trackspecifically whether diagnoses of silicosis aredecreasing at a greater or lesser rate. In recentliterature, as will be discussed below, the riskof silica dust exposure is still one of “substantial” concern for NIOSH. Id.

Present & Future (2000 & Beyond)

Some recent events and controversy will likelysteer silicosis litigation into the forefront oftoxic tort litigation over the next few years.As discussed below, there have been recent liti-

“A number of events, recent and upcoming, will once again place the spotlight on silicosis litigation.”

continued on page 64

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gation matters and increased vigilance byNIOSH and other agencies may augment thelegal toolbox of plaintiffs claiming illness fromsilica dust exposure.

Two recent developments in Texas have indi-cated that silicosis litigation is alive and well.First, in Tompkins v. U.S. Silica Company(2001) Case No. E-162,276 (Texas), a jury inJefferson County District Court awarded thelargest Texas silicosis verdict, approximately$7.6 Million, in a wrongful death case due torespiratory failure from emphysema and silico-sis. The decedent’s exposure period was from1968 to 1977 as a sandblaster, and the juryfound against U.S. Silica on a failure to warntheory. This verdict is significant as it indi-cates the potential willingness of juries toimpose liability on failure to warn theories inthe 1960s and 1970s. With the latency of sili-cosis, potential plaintiffs will be around forquite some time.

The other notable Texas case is set for oralargument with the Texas Supreme Court onOct. 16, 2002. This case, Humble Sand &Gravel, Inc. v. Gomez, Tex., No. 01-0652, willgive the Texas Supreme Court the opportunityto address a hot topic of late in toxic torts –the sophisticated purchaser defense. Underthe sophisticated purchaser defense, a manu-facturer who sells a chemical or some otherpotentially hazardous substance to a customerthat knows or should know of the dangersassociated with that material is not liable if thepurchaser fails to adequately protect itsemployees from harm caused by the product.This defense, recognized by a number ofstates, is gaining increasing disfavor amongplaintiffs’ attorneys who believe that relievingthe seller of a duty to warn creates a dangerousprecedent. Chemical manufactures, on theother hand, rely on this defense, because ofthe difficulty and added costs of having tocontrol the activities of downstream cus-tomers. Many legal commentators believethat the Texas Supreme Court will use thisopportunity to further erode the sophisticatedpurchase defense and increase potential liabili-ty for defendants in product liability actions.Should this occur, plaintiffs will have further

ammunition in battling the sophisticated pur-chaser defense asserted by manufacturers andsuppliers of silica products.

Current Health Issues Related to Silicosis

Recent studies and those currently pendinghave the attention of those involved in silicosislitigation. There are a number of key healthissues that could affect the look of silicosis liti-gation for years to come. The following are afew of these items of interest.

First, in 2000, NIOSH issued three reportsthat indicated that the latency period for silicaminers who exhibit no illness, even 15 yearsafter exposure, cannot rule out possibleadverse effects. According to reports resultingfrom recent studies in Berkeley Springs,W.Va.,Mill Creek, Okla., and Columbia, S. C.,NIOSH issued the opinion that latency peri-ods for silica-exposed workers can reach aslong as 35 to 40 years. This was evidenced byexamination of workers who have not beendiagnosed with silicosis, but exhibit radiologi-cal findings consistent with silicosis. As aresult, the potential pool of plaintiffs willremain significantly large for at least the nextdecade, given this information. See BNAOccupational Safety & Health Daily, June 13,2000.

Second, there have been increasing efforts byNIOSH and the World Health Organizationto link silicosis with other diseases. For exam-ple, researchers have consistently attempted tolink silicosis with lung cancer, pulmonarytuberculosis, and other airway diseases as wellas auto-immune diseases (to include lupus,chronic renal disease, and rheumatoid arthri-tis). See BNA Occupational Safety and HealthDaily, May 20, 2002. Proponents of theselinks between silicosis and other diseases (espe-cially lung cancer) currently have many critics.See Regis, “Comment: From the Sandbox toSandblasting: Regulation of Crystalline Silica”(1999) 17 Pace Environmental Law Review207. Many believe that the epidemiologicallink between silicosis and lung cancer in theabsence of lung fibrosis “must still be consid-ered scanty and inconsistent, although biologi-cally plausible.” Hardy & Weill, “CrystallineSilica: Risks & Policy” (1995) 103 Environ-mental Health Persp. 152, 153. As a result,

even though the epidemiological evidence isnot firmly linking silicosis and a number ofother diseases and conditions, the move isclearly afoot to do so and may have a signifi-cant impact on silicosis litigation.

In addition to the focus of NIOSH and otheragencies to further study the relation of silico-sis to other diseases, NIOSH is also not onlyconducting studies in new areas of industrybut also forming a grass roots campaign toteach epidemiology at the high school level.“Silicosis in Sandblasters,” supra. Accordingto NIOSH studies, industries such as the fab-ricated metal products industry and variousconstruction industries have not caught up tothe compliance standards of mining and othermore traditional silica exposure industries. Asa result, these industries may be an increasingtarget for the plaintiffs’ bar as silicosis litiga-tion further evolves. In addition, NIOSH hasbegun a program to increase awareness of thestudy of epidemiology and has adopted silico-sis as its case study for use in high schools.This will certainly increase awareness of silico-sis and may affect the litigation related to it.

Although litigation involving injuries relatedto inhalation of silica dust has been aroundsince the 1940s, it continues to evolve today.With the recent verdict and pending decisionregarding the sophisticated purchaser doctrinein Texas and also the evolving trend to linksilicosis to lung cancer and other disease, sili-cosis litigation is likely to continue for quitesome time. Depending on the results ofpending studies, this area of litigation couldflourish and become as recognizable as itsasbestos relative. The next twelve months willdictate much of the future for this field.

Michael J. Pietrykowski is a partner in the San Franciscooffice of Gordon & Rees, LLP, and is the Chairman ofthe firm’s Toxic Tort & Environmental Law PracticeGroup. He represents wide array of industry clients inmost areas of toxic tort litigation to include cases involvingchemicals, asbestos, and mold exposures.

Thomas J. Tobin is a senior associate practicing in theSan Diego and Los Angeles offices of Gordon & Rees,LLP. He specializes in representing clients against claimsof personal injury as well as property and business damagefrom alleged exposure to chemicals, hazardous substances,pesticides, mold, and other substances.

Silicosis Litigationcontinued from page 3