1. Premier 2002 issue1. Premier 2002 issue by pmv10607

VIEWS: 5 PAGES: 4

									                       PREMIER ISSUE


                       SILICA
   FROM THE FRONT LINES OF THE SILICA LITIGATION             PREMIER ISSUE




  SILICA LITIGATION:
  WAKING A SLEEPING GIANT




                 The Epidemiology of
                          Mesothelioma
                          Researchers
                 Silica Exposure and Disease
                          Publish SV40
                          Study



                           Research Watch: Report on
                           A 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
             PERSPECTIVES



                                                                                          Three types of silicosis exist: chronic, acceler-

                                     E
                                             ver since the United States Supreme
                                             Court published its opinion in Urie v.       ated, and acute.
                                             Thompson (1949) 337 U.S. 163,
                                     silicosis litigation has been an integral part of    Chronic silicosis occurs after 10 or more years
                                     the rich tapestry of toxic tort litigation in this   of exposure to relatively low levels or concen-
                                     country. While it has not gained the notoriety       trations of silica dust. In chronic silicosis
Silicosis                            of asbestos or tobacco litigation, silica dust
                                     exposure litigation has occupied a strong
                                                                                          patients, the latency period may take some
                                                                                          time and will not develop until well after the
                                                                                          initial exposure, over 25 years in some cases.
Litigation:                          foothold in this area for the past fifty years.
                                     In fact, a number of events, recent and
                                     upcoming, will once again place the spotlight
                                                                                          The fibrotic changes in the lung may continue
                                                                                          to develop over time even after the exposure

A Potential                          on silicosis litigation.                             has ceased. Chronic silicosis is further subdi-
                                                                                          vided into simple and complicated silicosis.
                                     Crystalline silica is a generic term, which          Simple silicosis is characterized by the pres-
Sleeping Giant                       encompasses a number of minerals to include
                                     quartz, tridymite, and cristoballite. As quartz
                                                                                          ence of small, rounded fibrous nodules. They
                                                                                          range in size from 3 to 6 mm and are not larg-
                                     is the most common mineral in the earth’s            er than 1 cm in diameter. Sufferers of simple
                                     crust, there is no shortage of crystalline silica    silicosis generally do not exhibit respiratory
by
                                     in the environment. Crystalline silica is com-       symptoms unless they have a co-existent dis-
                                     monly referred to as “silica dust”, which has a      ease like emphysema or some other lung dis-
                                     number of industry applications. It also can         ease. Complicated silicosis have larger silicotic
                                     be the ambient result of various industrial          nodules and lesions in most cases greater than
                                     activities. Industrial settings where crystalline    1 cm in diameter. Complicated silicosis
                                     silica may exist are sandblasting, rock drilling,    patients generally demonstrate shortness of
                                     masonry work, underground construction,              breath and symptoms of increasing severity to
                                     mining, foundry work, ceramics, pottery,             include breathing failure. National Centre of
                                     detergent and soap manufacturing, stone cut-         Occupational Health Alert, “Crystalline Silica:
                                     ting, glass manufacturing, agriculture, ship-        Health Hazards and Precautions” (Feb. 1999).
                                     building, railroad work, automotive repair, oil
                                     field work, and abrasive manufacturing.              Accelerated silicosis can occur from five to 10
                                     According to NIOSH studies, U.S. workers in          years after exposure to high concentrations of
                                     these industries number over two million,            crystalline silica. Although similar to the pat-
Michael J. Pietrykowski, Esq.        with more than 100,000 in what are consid-           tern of development of chronic silicosis, accel-
and                                  ered occupations “high-risk” for silica dust         erated silicosis tends to develop from simple to
                                     exposure. Steeland & Brown, “Silicosis Among         complicated silicosis in a much faster time
                                     Gold Miners: Exposure-Response Analyses &            period. “Silicosis in Sandblasters,” supra.
                                     Risk Assessment,” (1995) 85 Am. J. of Public
                                     Health 1372.                                         Acute silicosis is linked to extremely high con-
                                                                                          centrations of silica dust and can develop as
                                     When workers inhale silica dust, scar tissue         quickly as a few weeks to five years from ini-
                                     appears in the lungs, which surrounds the sili-      tial exposure. The radiological appearance and
                                     ca particles. This process is generally known        other features of acute silicosis are similar to
                                     as silicosis, the formation of nodular regions       that of pulmonary alveolar proteinosis.
                                     around the silica particles in the lungs. As the     Symptoms include cough, weight loss, and
                                     inhaled crystalline silica affects more lung tis-    fatigue. Death can occur within a few months
                                     sue, breathing becomes increasingly difficult,       if the exposure is significant enough.
                                     chest pain develops, and death may occur as a        Traditionally, acute silicosis has been found in
                                     result. Silicosis sufferers experience shortness     sand-blasters and drillers, especially those
Thomas J. Tobin, Esq.
                                     of breath, fever, and cyanosis. Other pul-           working with silica powder. As discussed
                                     monary symptoms may develop as well. Some            below, a number of recent efforts have height-
                                     are incorrectly diagnosed as having pulmonary        ened interest in the potential causes of silicosis
See page 64 for author biographies
                                     edema, pneumonia, or other lung diseases.            and the potential dangers of silica dust expo-
                                     NIOSH, “Silicosis in Sandblasters” (2002).           sure. NCOH Alert, supra .

                                                             2
                                                                 COLUMNS
                                                                                                                             PERSPECTIVES



Early Beginnings                                    dubbed the “king of occupational diseases” at         the traditional mining, sandblasting, and
                                                    that time. See Markowitz & Rosner, supra , at         foundry industries. Plaintiffs emerged with
As early as the 1930s, the link between silica      303. Throughout this time period, the great           silica dust exposure from work in ceramics,
dust inhalation and silicosis was established.      majority of silicosis plaintiffs stayed within        pottery, shipbuilding, railroad work, agricul-
Silicosis gained national prominence with the       various state run systems and away from               tural harvesting, and oil field drilling.
death of approximately 700 workers dry              the courts.
drilling in tunnels in West Virginia.Markowitz                                                            During this time period, various agencies, fed-
& Rosner, “The Reawakening of National              Increase of 3rd Party Claims (1980s-1990s)            eral and state, further refined regulations con-
Concerns About Silicosis,” (1998) 113 Public                                                              cerning workplace safety and acceptable limits,
Health Reporter 302. Given the amount of            Toward the end of the 1970s, plaintiffs and           which also aided the spread of silicosis litiga-
direct exposure and the timing of their deaths,     their counsel were becomingly increasingly            tion. The National Institute for Occupational
these West Virginians died of acute silicosis,      dissatisfied with worker’s compensation awards        Safety and Health, the Mine Safety and
which created no statute of limitations prob-       and turned their sights to a new brand of sili-       Health Administration, and the Occupational
lems. The limited latency period of acute sili-     cosis litigation. Attorneys in Virginia, Texas,       Safety and Health Administration continued
cosis raised no issues relative to latency or the   and Pennsylvania were among the first to file         to promulgate rules and regulations. These
discovery rule.                                     suit against manufacturers of silica products         actions not only worked to increase occupa-
                                                    used in the various industries where potential        tional safety in these industries but also made

            “A number of events, recent and upcoming, will once
              again place the spotlight on silicosis litigation.”
Until 1949, chronic and accelerated silicosis       plaintiffs were exposed to silica dust. The           compliance more difficult for employers and
sufferers had difficulty meeting the applicable     basis for liability as against those manufactur-      manufacturers. In turn, these more difficult
statute of limitations in light of the latency of   ing and supplying silica products to employers        standards have aided plaintiffs in arguing
their disease. The United States Supreme            was and remains similar to that of asbestos           breach of the duty to warn and also defective
Court, with the Urie v. Thompson decision,          and other similar substances. Most cases              design and manufacture.
recognized that the mechanical application of       involved theories of failure to warn and defec-
the statute of limitations, with no discovery       tive design and manufacture.                          Toward the end of the 1990s, some favorable
rule, could lead to inequitable results for                                                               statistics indicated a drop in the number of sil-
plaintiffs with diseases having a latency period    Starting with a $1 Million verdict in favor of a      icosis-related deaths. NIOSH reports indicate
longer than the applicable statutory period.        sand blaster-industrial painter (Flowers v.           that mortality rates from silicosis declined
The Supreme Court in Urie allowed a plain-          Specialty Sand Co.), Texas became and contin-         from over 1,000 per year in the late 1960s to
tiff, with silicosis that was latent beyond the     ues to be a popular jurisdiction for silicosis lit-   fewer than 250 per year in the mid-1990s
duration of the statute of limitations period,      igation, especially for sandblasting plaintiffs.      (1994-1996). See BNA Occupational Safety &
to sue for inhalation injuries because the suit     There were also groups of plaintiffs claiming         Health Daily, March 21, 2000. While this
was initiated within a reasonable time after the    silica exposure in Pittsburgh, Pennsylvania,          news is encouraging, it does not indicate an
discovery of the disease. This decision not         and Lynchburg, Va., in the foundry and steel          elimination of silicosis deaths, but rather a
only lead to the establishment of a discovery       industry. See Appleson, “Third-Party Claims           steady downward trend in deaths that are con-
rule in most states, but it paved the way for       Grow in Silica Dust Cases,” National Law              firmed silicosis deaths. It also does not track
future cancer and asbestos-related matters.         Journal, August 29, 1983.                             specifically whether diagnoses of silicosis are
                                                                                                          decreasing at a greater or lesser rate. In recent
Steady Stream of Litigation (1950s — 1970s)         In light of the trend of third-party claims and       literature, as will be discussed below, the risk
                                                    also the epidemiological evidence linking sili-       of silica dust exposure is still one of
In the time period after the Urie decision and      cosis and silica dust, silicosis litigation thrived   “substantial” concern for NIOSH. Id.
the state regulations that followed, there was      during the 1980s and 1990s with a steady
certainly no shortage of silicosis patients and     stream of plaintiffs. The trend in this area of       Present & Future (2000 & Beyond)
their lawsuits. However, the focus appeared to      litigation in this time period was to constantly
be on recovery almost exclusively against           push the envelope to discover new areas and           Some recent events and controversy will likely
employers. In the 1950s to the 1970s, more          industries where silica dust exposure is preva-       steer silicosis litigation into the forefront of
than 95 percent of the silicosis claims were in     lent. As these decades came to an end, silico-        toxic tort litigation over the next few years.
the worker’s compensation arena. Silicosis was      sis litigation had spread into industries beyond      As discussed below, there have been recent liti-
                                                                                                                                  continued on page 64
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                                                              SILICA • PREMIER ISSUE
PERSPECTIVES



Silicosis Litigation                                 ammunition in battling the sophisticated pur-          even though the epidemiological evidence is
continued from page 3                                chaser defense asserted by manufacturers and           not firmly linking silicosis and a number of
                                                     suppliers of silica products.                          other diseases and conditions, the move is
gation matters and increased vigilance by                                                                   clearly afoot to do so and may have a signifi-
NIOSH and other agencies may augment the             Current Health Issues Related to Silicosis             cant impact on silicosis litigation.
legal toolbox of plaintiffs claiming illness from
silica dust exposure.                                Recent studies and those currently pending             In addition to the focus of NIOSH and other
                                                     have the attention of those involved in silicosis      agencies to further study the relation of silico-
Two recent developments in Texas have indi-          litigation. There are a number of key health           sis to other diseases, NIOSH is also not only
cated that silicosis litigation is alive and well.   issues that could affect the look of silicosis liti-   conducting studies in new areas of industry
First, in Tompkins v. U.S. Silica Company            gation for years to come. The following are a          but also forming a grass roots campaign to
(2001) Case No. E-162,276 (Texas), a jury in         few of these items of interest.                        teach epidemiology at the high school level.
Jefferson County District Court awarded the                                                                 “Silicosis in Sandblasters,” supra . According
largest Texas silicosis verdict, approximately       First, in 2000, NIOSH issued three reports             to NIOSH studies, industries such as the fab-
$7.6 Million, in a wrongful death case due to        that indicated that the latency period for silica      ricated metal products industry and various
respiratory failure from emphysema and silico-       miners who exhibit no illness, even 15 years           construction industries have not caught up to
sis. The decedent’s exposure period was from         after exposure, cannot rule out possible               the compliance standards of mining and other
1968 to 1977 as a sandblaster, and the jury          adverse effects. According to reports resulting        more traditional silica exposure industries. As
found against U.S. Silica on a failure to warn       from recent studies in Berkeley Springs,W.Va.,         a result, these industries may be an increasing
theory. This verdict is significant as it indi-      Mill Creek, Okla., and Columbia, S. C.,                target for the plaintiffs’ bar as silicosis litiga-
cates the potential willingness of juries to         NIOSH issued the opinion that latency peri-            tion further evolves. In addition, NIOSH has
impose liability on failure to warn theories in      ods for silica-exposed workers can reach as            begun a program to increase awareness of the
the 1960s and 1970s. With the latency of sili-       long as 35 to 40 years. This was evidenced by          study of epidemiology and has adopted silico-
cosis, potential plaintiffs will be around for       examination of workers who have not been               sis as its case study for use in high schools.
quite some time.                                     diagnosed with silicosis, but exhibit radiologi-       This will certainly increase awareness of silico-
                                                     cal findings consistent with silicosis. As a           sis and may affect the litigation related to it.
The other notable Texas case is set for oral         result, the potential pool of plaintiffs will
argument with the Texas Supreme Court on             remain significantly large for at least the next       Although litigation involving injuries related
Oct. 16, 2002. This case, Humble Sand &              decade, given this information. See BNA                to inhalation of silica dust has been around
Gravel, Inc. v. Gomez, Tex., No. 01-0652, will       Occupational Safety & Health Daily, June 13,           since the 1940s, it continues to evolve today.
give the Texas Supreme Court the opportunity         2000.                                                  With the recent verdict and pending decision
to address a hot topic of late in toxic torts –                                                             regarding the sophisticated purchaser doctrine
the sophisticated purchaser defense. Under           Second, there have been increasing efforts by          in Texas and also the evolving trend to link
the sophisticated purchaser defense, a manu-         NIOSH and the World Health Organization                silicosis to lung cancer and other disease, sili-
facturer who sells a chemical or some other          to link silicosis with other diseases. For exam-       cosis litigation is likely to continue for quite
potentially hazardous substance to a customer        ple, researchers have consistently attempted to        some time. Depending on the results of
that knows or should know of the dangers             link silicosis with lung cancer, pulmonary             pending studies, this area of litigation could
associated with that material is not liable if the   tuberculosis, and other airway diseases as well        flourish and become as recognizable as its
purchaser fails to adequately protect its            as auto-immune diseases (to include lupus,             asbestos relative. The next twelve months will
employees from harm caused by the product.           chronic renal disease, and rheumatoid arthri-          dictate much of the future for this field.
This defense, recognized by a number of              tis). See BNA Occupational Safety and Health
states, is gaining increasing disfavor among         Daily, May 20, 2002. Proponents of these               Michael J. Pietrykowski is a partner in the San Francisco
plaintiffs’ attorneys who believe that relieving     links between silicosis and other diseases (espe-      office of Gordon & Rees, LLP, and is the Chairman of
the seller of a duty to warn creates a dangerous     cially lung cancer) currently have many critics.       the firm’s Toxic Tort & Environmental Law Practice
precedent. Chemical manufactures, on the             See Regis, “Comment: From the Sandbox to               Group. He represents wide array of industry clients in
                                                                                                            most areas of toxic tort litigation to include cases involving
other hand, rely on this defense, because of         Sandblasting: Regulation of Crystalline Silica”
                                                                                                            chemicals, asbestos, and mold exposures.
the difficulty and added costs of having to          (1999) 17 Pace Environmental Law Review
control the activities of downstream cus-            207. Many believe that the epidemiological             Thomas J. Tobin is a senior associate practicing in the
tomers. Many legal commentators believe              link between silicosis and lung cancer in the          San Diego and Los Angeles offices of Gordon & Rees,
that the Texas Supreme Court will use this           absence of lung fibrosis “must still be consid-        LLP. He specializes in representing clients against claims
opportunity to further erode the sophisticated       ered scanty and inconsistent, although biologi-        of personal injury as well as property and business damage
purchase defense and increase potential liabili-     cally plausible.” Hardy & Weill, “Crystalline          from alleged exposure to chemicals, hazardous substances,
ty for defendants in product liability actions.      Silica: Risks & Policy” (1995) 103 Environ-            pesticides, mold, and other substances.
Should this occur, plaintiffs will have further      mental Health Persp. 152, 153. As a result,
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                                                                               COLUMNS

								
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