Departments — March/April 2006

Silicosis Litigation: A New Breed of Claims Is Emerging

Contractors should be aware that silica-related diagnoses could increase over the next few years as more symptoms begin to surface in tradespeople

Barbara Adams ATTORNEY AT LAW Barbara Adams is a founding member of the San Francisco law firm of Adams Nye Sinunu Bruni Becht LLP. She has been defending companies, including contractors, manufacturers, distributors and property owners for more than 20 years, in litigation involving silica, asbestos, lead and mold. Email: badams@ansbb.com

By now, the impact of asbestos-related lawsuits on the construction industry is well known. These claims have cost contractors millions and have expanded to engulf businesses from insulation manufacturers to plumbing, painting and electrical contractors. But what's less well known is that the next source of equally devastating lawsuits might literally be right under your feet-silica.

Asbestos Litigation: A Brief History

First, some general background. In the 1970s, attorneys started filing lawsuits on behalf of people with illnesses related to the inhalation of asbestos fibers. The vast majority of these plaintiffs suffered from asbestosis, a chronic and potentially fatal lung condition. The defendants were typically manufacturers of insulation-related products.

In the early 1980s, two of the world's largest manufacturers of asbestos-containing insulation, Johns Manville and Unarco, filed for bankruptcy protection. In response, plaintiffs' attorneys soon expanded their claims to include insulation distributors and contractors.

The bankruptcies of manufacturers and some contractors continued through the 1980s and into the 1990s, but the plaintiffs' bar kept widening its net. They established medical screening programs that brought in more shipyard and insulation workers, as well as plaintiffs in completely new fields. Plumbers, boilermakers, welders, electricians, painters and auto mechanics began bringing asbestos suits, and more new defendants were added.

Today, few, if any, plaintiffs suffer the debilitating asbestosis seen in earlier decades. Those who allege asbestosis have a mild form of the disease, if any at all. Their ranks are augmented by plaintiffs with lung cancer, gastro-intestinal cancers, lymphatic cancers and ever-increasing numbers of cases of mesothelioma-a form of cancer strongly, but not invariably, linked to asbestos.

The Next Asbestos?

Like asbestosis, silicosis is a chronic and potentially disabling fibrosis of the lungs caused by inhaling respirable dust. Silicosis is created when sand, rock, concrete, masonry, drywall and other materials containing crystalline silica are turned into fine dust particles, which are then inhaled.

Silicosis litigation has been occurring for many years, particularly in Mississippi, Texas, Ohio, Louisiana and Illinois. Defendants typically are sand suppliers, respiratory equipment makers, sandblasting equipment makers and occasionally premises owners.

The potential for a major increase in the number of silicosis claims is substantial. First, few if any products contained asbestos by 1980. By contrast, the National Institute of Occupational Safety and Health concluded that 1.7 million workers were exposed to silica annually in the early 1980s. The true number exposed may be even higher.

An exceptionally broad range of occupations may include potential silica inhalation. These include not just sandblasters but also refinery workers; painters; drywall installers; concrete workers; brick, tile and stone craftsmen; pottery workers; metal and sheet-metal workers; roofers; medical and dental lab employees; and auto repair workers.

Diagnoses on the Rise?

Like asbestosis, severe silicosis is virtually unknown today. However, plaintiffs with highly disputed silicosis file suit regularly. They also contend, based on marginal research, that lupus, scleroderma, lung cancer and rheumatoid arthritis are related to silica inhalation.

Despite the continued use of silica in the workplace, deaths from silicosis are reported to be declining while deaths from asbestos continue to increase. This raises an unsettling possibility: Has increased awareness of asbestosis led to an increased diagnosis of it? Is the legal tail wagging the medical dog?

If awareness has led to increased diagnoses, then silica-related diagnoses could also increase over the next few years. Firms representing silicosis plaintiffs are increasing the range of occupations to whom they advertise free screenings. California has just started seeing silica-related personal injury claims, and attorneys from out of state are opening California offices.

Potential Curbs on Silica Litigation

Some state reforms may limit the potential onslaught of silica-related claims. Consolidation of plaintiffs and the resulting dubious mass settlements are now more difficult. Medical evidence often must be more direct. And, in California, rulings on the local level have prevented consolidated filings by multiple unrelated plaintiffs in a single case.

So silica litigation is not yet an asbestos-sized juggernaut. Thanks to the expensive lessons learned from asbestos litigation, steps are being taken by legislators, judges and defense counsel to curb potential abuses.

However, contractors who have used products that contained silica should be aware that the potential to be brought into such cases exists. Records of safety instructions, mandatory safety measures, warnings and any monitoring for silica hazards should be maintained in the event that a defense needs to be mounted someday.