Avoiding the Sand Trap: Silica Liability and the Premises Owner

What is most significant for landlords and premises owners, however, is an emerging trend that targets defendants beyond just those who manufacture silica-containing products (eg, the makers of sand blasting medium, grinder disks, etc.). New lawsuits target defendants with a more tenuous relationship to the supposed silica problem, such as manufacturers or distributors of products that do not contain, but are possibly used with silica, like safety equipment and tools. If history provides any reliable guide, it should not come as any surprise when the plaintiffs' bar seeks to expand the pool of potential clients further, to persons who had incidental exposure to silica dust and to expand the pool of defendants to include premises owners or operators on behalf of which activities involving silica were conducted. This potential for liability has been quietly analyzed and acted upon by insurers. Significantly, some insurers are now excluding silicosis from general liability and product liability insurance coverage. As silicosis litigation exhausts the coverage and assets of traditional manufacturer targets, it is easy to see premises owners (including even tenants) as the next target. Occupants or workers suffering alleged exposure would turn to premises owners, looking for more money, simply because silica-based products were used on the premises.

This two-part article provides landlords and tenants with some basic background on current silicosis issues and trends, and offers some suggestions to minimize risk. While there is recent good news about silica litigation reform, all businesses operating today should know the dangers and act to protect themselves.

What Is Silica and Silicosis?

Silica is the second most abundant substance on earth. Sand, rock, and mineral ores all contain silica. Silica exposure risk is greatest to workers in sand blasting, glass and ceramic making, painting, demolition, railroad and ship construction, mining, and masonry.

Silicosis is a lung disease caused by overexposure to inhaled crystalline silica. There is no cure, and it can be fatal. Scar tissue develops in the lungs of victims, and their ability to breathe is compromised ' sometimes to the point of total respiratory failure. Depending on the exposure, silicosis can be chronic, accelerated, or acute, developing in just a few weeks where exposures are the highest.

Silica Tort Litigation: The 'Next Asbestos' Or 'Next Tobacco' Arena?

What is most significant about silica exposure (and what makes it so different from asbestos) is that silicosis is 100% preventable if users follow well-known, reasonable precautions to reduce dangerous overexposure. There has never been an attempt to conceal the dangers of silica (something that historically enhanced liability in the asbestos arena), and silica dangers have been widely known since the 1930s. Education, safe-handling procedures, and safety devices have caused a historical decline in silicosis-related deaths and injuries ' during the 30 years between 1968 and 1998, silicosis-associated deaths in the United States declined dramatically from nearly 1200 to just 200-300 per year. National Institute for Occupational Safety and Health, Worker Health Chartbook, 2000, Chapter 3 ' Fatal Illness, Figure 3-3 (September 2000) (DHHS (NIOSH) Publication No. 2000-127).

Paradoxically, despite the decline of the disease, the last 5 to 10 years have experienced an upswing in filing of silicosis product liability lawsuits. At this juncture, even the most optimistic members of the plaintiffs' bar would be hard pressed to advocate silica as the 'next asbestos' or 'next tobacco' arena in terms of class action litigation. At least for the near term, silicosis mass tort litigation was spectacularly discredited in a scathing June 2005 court opinion (the so-called 'Judge Jacks' opinion) dismissing as fraudulent all but one of 10,000 silicosis claims on a Multi-District Litigation Texas federal court docket. In re Silica Products Liability Litigation, 398 F.Supp.2d 563, 567 (S.D. Tex. 2005) (remanding just under 10,000 silica claims back to state courts, and recommending that the cases be dismissed because they were based on fraudulent X-ray interpretations and diagnoses manufactured for money by corrupt screening companies, plaintiffs' attorneys, and doctors). Several states, most notably Ohio, Georgia, Texas, and Florida, have passed sweeping tort reform aimed specifically at curtailing abusive silica litigation. Reform bills are pending in a number of other states. The reforms raise the bar plaintiffs must meet before they can bring a claim. Thus, there is increasing hope that both legislative and judicial action will derail any increasing trend of silicosis litigation. Nevertheless, no one should think that the plaintiffs' bar will just give up on a potentially lucrative basis for claims, and it is both premature to dismiss the potential for liability and prudent to act now to minimize future risks.

Part Two of this series will discuss solutions for landlords.

William E. Meyer, Jr. is a partner in the Litigation Department of Schiff Hardin LLP, and concentrates his practice in defending companies against products liability and other personal injury claims. Beth Blackwood is an associate in Schiff Hardin's Litigation Department. Andrew Young practices with Kirkland & Ellis LLP.

Part One of a Two-Part Series

Many landlords have commissioned refurbishing or cleaning that involved sand blasting, concrete cutting, or masonry drilling on or at a building that remained in use. Some have leased premises to tenants that engage in these activities or that engage in production steps that include sanding, blasting, or scouring. There are special concerns about these activities that landlords should address, and this article explains why.

There was once a time when landlords and tenants had no concern about whether asbestos had been used on their premises. Even when asbestosis litigation started cropping up, it did not initially appear to be a matter of concern for commercial real estate businesses. Instead, it seemed to be a remote problem as that wave of litigation preliminarily struck shipyards and other industrial operators that employed workers having the highest levels of exposure. In hindsight, however, we know all too well how widely the scope of potential liability expanded to have an enormous impact in the commercial real estate business world. Lessons learned from that history should be applied now by landlords and tenants to minimize potential future exposure to silicosis claims.

Over the last decade, the plaintiffs' bar has demonstrated increasing interest in silicosis litigation. Whether prompted by the dwindling pool of asbestos plaintiffs, tort reform trends targeting other areas, or natural entrepreneurship, there is a resurgence in silicosis claims that bears no relationship to any growth of silicosis as an industrial disease.

What is most significant for landlords and premises owners, however, is an emerging trend that targets defendants beyond just those who manufacture silica-containing products (eg, the makers of sand blasting medium, grinder disks, etc.). New lawsuits target defendants with a more tenuous relationship to the supposed silica problem, such as manufacturers or distributors of products that do not contain, but are possibly used with silica, like safety equipment and tools. If history provides any reliable guide, it should not come as any surprise when the plaintiffs' bar seeks to expand the pool of potential clients further, to persons who had incidental exposure to silica dust and to expand the pool of defendants to include premises owners or operators on behalf of which activities involving silica were conducted. This potential for liability has been quietly analyzed and acted upon by insurers. Significantly, some insurers are now excluding silicosis from general liability and product liability insurance coverage. As silicosis litigation exhausts the coverage and assets of traditional manufacturer targets, it is easy to see premises owners (including even tenants) as the next target. Occupants or workers suffering alleged exposure would turn to premises owners, looking for more money, simply because silica-based products were used on the premises.

This two-part article provides landlords and tenants with some basic background on current silicosis issues and trends, and offers some suggestions to minimize risk. While there is recent good news about silica litigation reform, all businesses operating today should know the dangers and act to protect themselves.

What Is Silica and Silicosis?

Silica is the second most abundant substance on earth. Sand, rock, and mineral ores all contain silica. Silica exposure risk is greatest to workers in sand blasting, glass and ceramic making, painting, demolition, railroad and ship construction, mining, and masonry.

Silicosis is a lung disease caused by overexposure to inhaled crystalline silica. There is no cure, and it can be fatal. Scar tissue develops in the lungs of victims, and their ability to breathe is compromised ' sometimes to the point of total respiratory failure. Depending on the exposure, silicosis can be chronic, accelerated, or acute, developing in just a few weeks where exposures are the highest.

Silica Tort Litigation: The 'Next Asbestos' Or 'Next Tobacco' Arena?

What is most significant about silica exposure (and what makes it so different from asbestos) is that silicosis is 100% preventable if users follow well-known, reasonable precautions to reduce dangerous overexposure. There has never been an attempt to conceal the dangers of silica (something that historically enhanced liability in the asbestos arena), and silica dangers have been widely known since the 1930s. Education, safe-handling procedures, and safety devices have caused a historical decline in silicosis-related deaths and injuries ' during the 30 years between 1968 and 1998, silicosis-associated deaths in the United States declined dramatically from nearly 1200 to just 200-300 per year. National Institute for Occupational Safety and Health, Worker Health Chartbook, 2000, Chapter 3 ' Fatal Illness, Figure 3-3 (September 2000) (DHHS (NIOSH) Publication No. 2000-127).

Paradoxically, despite the decline of the disease, the last 5 to 10 years have experienced an upswing in filing of silicosis product liability lawsuits. At this juncture, even the most optimistic members of the plaintiffs' bar would be hard pressed to advocate silica as the 'next asbestos' or 'next tobacco' arena in terms of class action litigation. At least for the near term, silicosis mass tort litigation was spectacularly discredited in a scathing June 2005 court opinion (the so-called 'Judge Jacks' opinion) dismissing as fraudulent all but one of 10,000 silicosis claims on a Multi-District Litigation Texas federal court docket. In re Silica Products Liability Litigation, 398 F.Supp.2d 563, 567 (S.D. Tex. 2005) (remanding just under 10,000 silica claims back to state courts, and recommending that the cases be dismissed because they were based on fraudulent X-ray interpretations and diagnoses manufactured for money by corrupt screening companies, plaintiffs' attorneys, and doctors). Several states, most notably Ohio, Georgia, Texas, and Florida, have passed sweeping tort reform aimed specifically at curtailing abusive silica litigation. Reform bills are pending in a number of other states. The reforms raise the bar plaintiffs must meet before they can bring a claim. Thus, there is increasing hope that both legislative and judicial action will derail any increasing trend of silicosis litigation. Nevertheless, no one should think that the plaintiffs' bar will just give up on a potentially lucrative basis for claims, and it is both premature to dismiss the potential for liability and prudent to act now to minimize future risks.

Part Two of this series will discuss solutions for landlords.

William E. Meyer, Jr. is a partner in the Litigation Department of Schiff Hardin LLP, and concentrates his practice in defending companies against products liability and other personal injury claims. Beth Blackwood is an associate in Schiff Hardin's Litigation Department. Andrew Young practices with Kirkland & Ellis LLP.