Mohammad Khan discusses the recent trends in silica-related claims.
T he dangers of silica have been known since the 1930s and deaths related to silica have fallen by over 80% since 1968. However in recent years, silica claims have rocketed. The Wall Street Journal reported that one of the largest silica manufacturers in the US faced 22,000 claims in 2003, compared with 3,505 in 2002. The Coalition for Litigation Justice reported that an unnamed insurer had seen a ten-fold jump in claims since August 2002, with 30,000 plaintiffs now included on its books. Should insurers be worried? Is silica the new asbestos?
What is silica?
Naturally occurring silica is the second most abundant mineral in the world. Silica can be found in sand, quartz, granite, concrete, cement, and stone and is still used in many industries ranging from construction to rubber and plastics to automotive repair. Crystalline silica (silica dust) is found in varying proportions within naturally occurring silica.
Why is it a problem?
Generally silica is not a problem. Although it is everywhere, diseases caused by exposure to silica are not common. However, inhalation of crystalline silica can cause an incurable lung cancer called silicosis, and other diseases including tuberculosis, chronic obstructive pulmonary disease, emphysema, and autoimmune diseases.
The recent surge in silica claims appears to be due to changes in litigation rather than an increase in silica-related illnesses and deaths. In fact, silica-related deaths fell from 1,157 in 1968 to just 187 in 1999. By comparison, over the same period, asbestosis deaths rose from 77 to 1,265.
What is causing this surge?
With the potential for a federal solution to the asbestos issues, it has been suggested that asbestos lawyers have been looking for new torts to pursue. Silica and asbestos illnesses are similar: analogous injuries and exposure, a large and overlapping pool of plaintiffs, and also overlapping experts and corporate defendants. A full and final asbestos settlement does not restrict a plaintiff from claiming again for injuries perhaps also caused by silica exposure, although policy buybacks may restrict this ability.
Most of the silica claims filed so far have been filed in Mississippi, Texas, and Ohio. The acceleration of silica claims in these states is probably due to the recent reform of tort law in Mississippi and Texas and the silica-specific legislation adopted in Ohio that will restrict silica claims after a certain date. Consequently, one may expect to see silica claims increasing in other states in future.
Silica and asbestos claims
Silica, of the two, has a lot of catching up to do. The overall US mortality rate for deaths from silica between 1990 and 1999 was 1.2 per million compared with a national death rate from asbestosis of 5.4 per million.
Although the total number of silica claims filed so far is small compared with asbestos, the potential pool of silica claimants is huge. In an April 2002 report, the National Institute of Occupational Safety and Health stated that at least 1.7m US workers are potentially exposed to respirable crystalline silica. They added that 'an undetermined portion of the 3.7m US agricultural workers' might also be exposed. This compares with about 1.3m employees in construction and general industry who faced significant asbestos exposure.
However, asbestos was used in many more products than silica. Further, although silica is everywhere (for example on a beach), it is often too large to cause pulmonary problems. Consequently, fewer people would be exposed to the levels sufficient to cause disease.
Should insurers be worried?
There is a danger that silica claims will be treated like asbestos claims in the US tort system. Like mesothelioma, silicosis has a long latency period it can occur 10 to 40 years after exposure.
Asbestos has had insurance exclusion clauses for many years. In the late 1970s, some general liability policies had wordings that excluded asbestosis. The US courts decided that this wording did not exclude all diseases caused by asbestos, but that the wordings only excluded claims from the disease asbestosis and not the other asbestos-related injuries such as mesothelioma and lung cancer. There is, however, no standard insurance wording for silica exclusions. It may take several years before a commonly agreed legally watertight exclusion clause is developed.
Lawyers for silica plaintiffs are seeking greater damages. For example, see the 5,569 specific dollar lawsuits faced by respirator manufacturer, Minnesota Mining and Manufacturing (3M), shown in figure 1 below.
To date, 3M has been able to settle its silica cases for an average of about $1,000. Whether it will be able to do this in future remains to be seen. 3M and other defendants have successfully won some defence verdicts. For example, in July 2004, the Wisconsin Supreme Court found that sand suppliers were not liable as their product was not dangerous.
An advantage for defendants is that the dangers of silica have been known since the 1930s, with newspapers and medical journals at that time publishing many reports about the hazards of silica dust. Rigorous safety standards were implemented and these have strengthened further, which probably accounts for the reduction in the deaths from silicosis over time.
Several defendants have attempted to use the 'sophisticated user' defence that large employers should have known about the dangers of silica and implemented appropriate risk management and safety procedures. Although this has prevailed in a few cases, this defence has as yet been unsuccessful at the Supreme Court level. For example, in March 2004, the Minnesota Supreme Court reversed an appellate court ruling that recognised the sophisticated user defence in a silica lawsuit. Two similar cases are being heard at the Texas Supreme Court and their verdicts are awaited.
It is uncertain how silica claims will develop. The Insurance Information Institute has stated that some of the new personal injury claims being filed are on behalf of individuals suffering from occupational lung cancer caused by exposure to silica potentially a new class of claimants.
However, defendants do appear to be winning a substantial number of cases and appear to have learnt from the mistakes made by the asbestos industry. They are trying to keep the silica cases in the workers compensation arena and have not settled multiple claims bundled together. Medical criteria also appear to be stricter than for asbestos cases. This appears to suggest that although silica liabilities will be significant, they will not be of the scale of asbestos liabilities.
Over 8,400 companies have had 730,000 asbestos claims filed against them whereas currently only 400 companies have 70,000 silica claims filed. Over 70 companies have gone bankrupt because of asbestos whereas only two have gone bankrupt as a result of silica claims.
Most awards usually range from $1,000 to $1m, and the largest silica award has been $7.5m in 2001. In comparison, the largest asbestos award was $57m in 2000. Estimates of the ultimate US insurance share of asbestos claims are about $70bn and the London market share has been estimated to be $30bn. CSFB has estimated that the US insurance industry's ultimate silica liability could 'quite possibly' be $10bn. The RAND Institute has estimated that the total costs of asbestos litigation to date are about $54 bn.
Who is at risk?
According to the Alliance of American Insurers, some of those most often targeted by silica plaintiff lawyers are construction workers, sandblasters, shipbuilders, miners, glass manufacturers, potters, railroad workers, foundry workers, grinders and polishers, welders, soap and detergent workers, and demolition workers.