Editorial: Silica Exposure Lawsuits: The Next Toxic Tort?

by Bilzin Sumberg Baena Price & Axelrod LLP
Contact

With the Occupational Safety and Health Administration signaling its increased attention to workers’ exposure to crystalline silica, and the plaintiff bar evidently in search of new subjects for “toxic tort” claims, there is growing concern among builders about a potential rising tide of “silica exposure” lawsuits against them. Will that type of suit soon take its place alongside such historical legal headaches as asbestos and Chinese drywall claims?

According to OSHA, Avoiding Silica Inhalation Should Be a High Priority

The possible good news for builders is that the science underlying silica exposure claims has generally been deemed questionable enough that plaintiffs have encountered significant difficulties in proving their claims. The bad news is that OSHA nevertheless appears to believe that pertinent studies clearly establish the dangers of crystalline silica.

OSHA also believes that avoiding silica inhalation should therefore be a high priority both for workers and those for whom they work. OSHA’s sustained focus on this subject makes it imperative for builders to educate themselves, and their personnel most likely to come into extensive contact with silica particles, about the key issues — including the preventive measures that OSHA touts.

What is Crystalline Silica?

Crystalline silica is a basic component of soil, sand, granite and many other minerals. Quartz is the most common form of crystalline silica. Tiny particles no more than one-hundredth the size of grains of sand can be created and sent airborne during work with stone, concrete, brick or mortar.

According to OSHA, which proposed new rules in August 2013 regarding silica exposure, such “exposure remains a serious threat to nearly 2 million U.S. workers, including more than 100,000 workers in high-risk jobs such as abrasive blasting, foundry work, stone cutting, rock drilling, quarry work and tunneling. Crystalline silica has been classified as a human lung carcinogen. Additionally, breathing crystalline silica dust can cause silicosis, which in severe cases can be disabling, or even fatal.”

Allegedly inadequate industrial hygiene practices years ago exposed workers to thresholds of sand and similar dusts that workers have claimed did significant damage to their lungs. Many (including OSHA) contend that practices aimed at reducing silica exposure are still in dire need of improvement today.

When filing silica exposure lawsuits, plaintiffs typically seek compensation for respiratory illnesses, risks of serious bacterial disease and fear of cancer (if cancer has not yet been diagnosed). The steel industry, and other industries that use vast quantities of sand, were defending mass numbers of silicosis claims even before the huge wave of asbestos claims in the early 1980s.

The relative success of those industries in dealing with those suits may be one reason that asbestos claims became much more prevalent than crystalline silica claims in the years that followed. However, advancements in medical research related to the role of silica in causing diseases helped to propel a second wave of such lawsuits from 2000-2004.

Although Past Litigation Has Been Unsuccessful, New OSHA Rules May Spark a Resurgence of Silica Lawsuits

A federal multidistrict litigation panel was established for silica claims in 2003. Two years later, Judge Janis Graham Jack of Texas largely brought those proceedings (and mass silicosis claims throughout the country) to a halt.

Jack issued an opinion in the silica MDL that was highly critical of the plaintiffs’ counsel and their medical experts. She made clear that she believed that plaintiffs’ counsel and their experts were generating “mass tort” litigation through fraudulent diagnoses of silicosis. What followed were mass dismissals of silica suits in the MDL, and in state courts across the country.

In the next several years after Jack issued her opinion, the number of silicosis lawsuit filings diminished to a few hundred cases nationwide. Her scathing opinion was likely not the only factor causing potential plaintiffs’ counsel to steer clear of silica exposure claims.

Among other problems, the difficulties of establishing causation, the logistical problems and expenses of mass medical screenings, and the continued difficulty of diagnosing silicosis, all pose major threats to prospective lawsuits. Those factors are also likely to give rise to extensive discovery, the filing of lots of pretrial motions, and potent challenges to plaintiffs’ experts.

Of course, homebuilder defendants also face the potentially staggering costs (and many distractions) of a silica exposure suit whenever one is filed. Moreover, OSHA, by proposing in August new rules designed to limit crystalline silica — and by asserting that those new rules would prevent nearly 700 deaths a year — may well have begun to spark a resurgence of silica lawsuits.

New Rules and Immediate Action Steps for Builders

At the very least, OSHA’s proposals, and certain immediate action steps that it outlines in a recent “fact sheet,” require the attention of builders. Here are some of the steps that this federal agency strongly recommends, and may soon require:

  • Replace crystalline silica materials with safer substitutes, whenever possible;
  • Provide engineering or administrative controls, where feasible, such as local exhaust ventilation and blasting cabinets. Where necessary to reduce exposures below the permissible exposure limit, use protective equipment or other protective measures;
  • Use all available work practices to control dust exposures, such as water sprays;
  • Participate in training, exposure monitoring, and health screening and surveillance programs to monitor any adverse health effects caused by crystalline silica exposures;
  • Wear only a “N95 NIOSH” certified respirator, if respirator protection is required. Do not alter the respirator.

There may be substantial negative legal and business consequences in the event of noncompliance with OSHA’s expectations. Those consequences could reasonably be expected to include reputational risk as well as possible exposure to costly lawsuits seeking huge amounts of alleged damages.

Builders should therefore stay apprised of OSHA’s directives, implement a program for training and for compliance with those directives, and track the effectiveness of their training and compliance programs over time.

This article is reprinted with permission from Law360.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bilzin Sumberg Baena Price & Axelrod LLP | Attorney Advertising

Written by:

Bilzin Sumberg Baena Price & Axelrod LLP
Contact
more
less

Bilzin Sumberg Baena Price & Axelrod LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!