Sand in My Shoes

Sharon L. Caffrey, Kenneth M. Argentieri and Julie S. Greenberg, of Duane Morris LLP, have written a piece for Law360, in which they suggest that the recent violations of the OSHA silica permissible exposure limit (PEL) by the fracking industry may lead to new silicosis claims.  “Another Wave Of Silicosis Claims May Be On The Horizon” (Oct. 3, 2012)

Silicosis has been a preventable disorder for over half a century. There will, however, always be silicosis cases because there will always be people who do not follow basic industrial hygiene principles.  Negligent employers will overexpose their workers.  Negligent workers will ignore workplace safety rules.

But silicosis cases do not translate into valid claims.  The essence of silicosis products liability claims is a failure to warn, and there is no basis in this millennium (and for the last few decades of the last millennium) for maintaining  failure-to-warn claim against silica sand suppliers.

Caffrey and colleagues discuss the fraudulent claiming activity that resulted in Judge Jacks’ rebuke to the tort litigation industry in MDL 1553.  In re Silica Products Liab. Lit., 398 F. Supp. 2d 563 (S.D. Tex. 2005). Judge Jack’s excellent gatekeeping and her opinion on litigation-sponsored medical screenings helped suppress an outbreak of silicosis litigation, but Her Honor actually worried that the bogus cases would obscure the real cases.  There are, however, no real cases of failure to warn in the context of silicosis claims.  In 1949, the U. S. Supreme Court, following the lead of the New York Court of Appeals, declared it to be a matter of common knowledge that breathing silica dust “is injurious to the lungs and dangerous to health,” a fact the plaintiff’s employer “was bound to know.” Urie v. Thomas, 337 U.S. 163, 180 (1949), citing Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944). Selling sand no more requires a warning than selling a set of kitchen knives.

Today, warnings in connection with bulk sales of silica should be nothing more than regulatory and litigation eye candy – supererogatory acts intended to ward off plaintiffs’ lawyers.  For the last two decades, the warnings have been frequent, intense, detailed, and lengthy.  Material Safety Data Sheets are often 10 to 15 pages long.  The silica exposures above PEL in the fracking industry, reported recent by NIOSH, took place at worksites managed by Halliburton, Schlumberger, Baker Hughes, and similar companies.  These companies have the knowledge and resources to provide a safe workplace.  They have had common law duties to control silica exposures for over a century.  Most states introduced regulations that mandated limits in silica exposure by the 1950s.  Government contractors had similar duties under the Walsh-Healey Act, and virtually all employers have been under a federal mandate to provide a safe workplace for the use of silica sand, since the effective date of the federal Occupational Health & Safety Act of 1970.

Caffrey and colleagues correctly note that OSHA has issued a Hazard Alert about exposures above the Permissible Exposure Limit in the fracking industry.  OSHA Hazard Alert for Crystalline Silica Exposures from Shale Gas Fracturing (June 22, 2012).  The lawyers’ discussion of the claim proliferation in MDL 1553 suggests that they were thinking of civil actions against suppliers.  There may be claims in the future, but the only legitimate claims will be workman’s compensation claims.  The recommendations made should help employers protect their employees from silicosis; better yet, the employers could just follow the law that has been in place for over 40 years.

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