Michal Mekota, Munich

Silicosis - A new claims complex in liability insurance?

US insurers have for some time been observing an increase in silica-related claims. Around 70,000 claims have been filed against US firms in recent years.

What makes silicosis (dust disease) stand out from other topical subjects, such as electromagnetic fields and mould, is that the relationship between the illness and well-defined medical symptoms has been clearly and scientifically established. However, in view of the parallels between silicosis and the lung disease asbestosis, insurers, plaintiffs' lawyers and the press are asking whether this could be a new "asbestos-style" claims complex.

Relatively little is known at present about silica as an insurance issue. It is by no means clear whether the inferences drawn in connection with asbestos — while certainly valid given the similarities between the two lung diseases — will hold true in the future. All concerned appear to agree, however, that the insurance industry's exposure to silicosis cannot be compared with its asbestos exposure.

Dust disease

Silicosis is one of the oldest occupational diseases known to mankind. Its history is directly related to the emergence of rock and coal mining. An ancient Egyptian papyrus referred to silicosis as stone-cutters' lung; it was also known to the Greek physician Hippocrates in antiquity.

The Swiss physician Paracelsus reported in detail on "Miners' phthisis and other miners' diseases" in the 16th century. Today, silicosis primarily affects workers in the sandblasting, quarrying, mining and construction industries.

Over-exposure for many years can lead to the formation of fibrotic nodules and scar tissue in the lungs, destroying the special breathing tissue and replacing it with connective tissue. The lung's ability to extract oxygen from the air is reduced.

There are three distinct forms of silicosis:

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  Chronic silicosis: This form can develop when silicogenic dust is inhaled in low concentrations over a period of more than ten years.
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  Accelerated silicosis: This form can arise when someone has been exposed to highly concentrated silica for a period of between four and nine years.
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  Acute silicosis: Acute silicosis can occur when large and extremely concentrated quantities of crystalline silica enter the lungs within a short space of time. The symptoms of this form of the disease can develop within a few weeks.

Recent studies indicate that a causal connection exists between exposure to silicogenic dust and a higher incidence of chronic obstructive pulmonary disease (COPD), tuberculosis, lung cancer, emphysema, lupus, scleroderma and rheumatoid arthritis.

There is no treatment for silicosis. Once contracted, only minor pulmonary changes can be brought to a halt; in severe cases, the change in tissue continues inexorably. The disease can even break out several years after exposure to the dust has ended. The latency period is between ten and 40 years.

Silicosis can only be prevented by appropriate precautionary measures, such as protective clothing and respiratory protection.

Health impairment and litigation in the USA

Workers in the mining, quarrying and construction industries are most likely to suffer health impairment. They are exposed to the dust almost daily.

Plaintiffs also include workers engaged in blasting, rock drilling and sandblasting. According to the US governmental agency OSHA (Occupational Safety and Health Administration), the following industries are most heavily exposed to litigation:

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  Construction and road building
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  Mining
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  Iron and steel
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  Abrasives production

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The plaintiffs

Since the physical injuries caused by silicosis resemble those of asbestosis, plaintiffs' lawyers in the USA are using the same litigation techniques as were originally developed in the asbestos arena. The same law firms that led the asbestos litigation are now playing a vanguard role in silicosis litigation. They organise mass X-ray screenings of potentially exposed workers, consulting the same doctors as for asbestosis and asking them to compile reports on silicosis.

There are indications that previous asbestos cases are being re-opened and relabelled as silicosis cases. Liability in particular will play an important part in the litigation. In addition to seeking remuneration under workers' compensation, it is anticipated that plaintiffs will attempt to circumvent workers' compensation. This would mean placing the blame squarely on the employers' shoulders by charging them with negligently harming their employees by deliberately exposing them to a known and serious danger.

Liability lessons

With precisely this argumentation, liability was shifted from the workers' compensation system to the general liability arena in asbestos litigation. Juries consequently awarded much higher sums, as liability also allows for pain and suffering as well as punitive damages.

It may also be assumed that plaintiffs will not only bring action against employers, but also against other groups. An estimated 25,000 silica-related claims are pending against US Silica Company, the leading US producer of silica sand; the energy and oil corporation Halliburton has reported 21,000 pending claims.

3M, which mainly produces industrial and household articles, currently faces more than 54,000 claimants alleging that 3M's respiratory equipment was inadequate.

Settlements have averaged around US$ 1,000 to date, but these amounts are expected to increase substantially. In fact, 3M has increased its reserves for claims by US$ 100m to US$ 231m.

The defendants

The suppliers of products containing silica can assert the so-called sophisticated purchaser/user defence, according to which it is argued that large industrial employers know of the health hazards presented by silica and should have taken appropriate protective measures.

If the plaintiffs were to address their claims to bulk suppliers, the latter can assert that they have drawn attention to the danger on their packaging in recent decades and that, as bulk suppliers, they are not obliged to warn individuals directly or to advise their customers to pass the warnings on to their employees.

Employers could also use compliance with OSHA standards as a defence. However, they could be held liable if the plaintiffs were to prove that the concentrations of crystalline silica defined by OSHA to prevent health impairment are inadequate and that the employers were aware of this fact but chose to ignore it.

Where silica exposure is being blamed for other conditions, there is almost always another factor at work as well. It will usually be smoking, which invariably raises the question of the plaintiff's contribution to the development of the condition. This could substantially reduce the size of any award.

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