“Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”
George Santayana, The Life of Reason or the Phases of Human Progress 172 (1905; Marianne S. Wokeck & Martin A. Coleman, eds., 2011).
One of the remarkable and deplorable features of litigation in the United States is that it consumes such an incredible toll of time, energy, money, intellectual effort, creativity, while receiving so little attention in terms of careful curation of its history. Does anyone in the judiciary, the legislature, in the public, in industry, in labor, or at the bar, learn anything from the entirety of a complex litigation? Insurers certainly note their payouts, and adjust their premiums, but have their litigation strategies, and counsel selection and control, improved outcomes? I suspect that there is a great deal of learning to be had, at every level, and from every institutional perspective. It seems that this potential learning is often left untapped.
There are some notable efforts at the history of individual litigation. In 1987, Peter Schuck wrote an incisive history of the Agent Orange litigation.[1] About a decade later, two other law professors, Michael Green and Joseph Sanders, each wrote a history of the Bendectin litigation.[2] Whatever the reader thinks of these histories of litigations, they are all respectable efforts to understand the full course of a so-called “mass tort” litigation, from beginning to end. Law schools do a fine job of teaching the making of widgets, from initial pleadings, to judgments, to appeals, to enforcement of judgments. The academy does less well in teaching the high-level strategies employed in litigations, and the criteria for evaluating the success or failure of those strategies.
There are many important litigations that have not been memorialized in histories. The asbestos litigation existed as isolated as sporadic worker compensation claims before World War II, and after the war, well into the 1970s. The first civil action may have been filed by attorney William L. Brach filed on behalf of Frederick LeGrande, against Johns-Manville, for asbestos-related disease, on July 17, 1957, in LeGrande v. Johns-Manville Prods. Corp., No. 741-57 (D.N.J.). Civil litigation for individual personal injuries took another decade to get started, and has since become institutionalized as a perpetual, limitless, and often unprincipled legal phenomenon in the United States. There have also been environmental and class action asbestos cases, with the infamous case against the Reserve Mining Company in Minnesota having received book length treatment, in 1980.[3] Miles Lord, the trial judge in the Reserve Mining case, was unceremoniously rebuked for unprofessional judicial malfeasance by the Court of Appeals for the Eighth Circuit.[4] More recently, Judge Lord’s law clerk has attempted to resurrect her mentor’s destroyed reputation in a hagiographic biography.[5] These books recount, fairly or not, important episodes in the asbestos litigation, but no one to date has attempted to write a history of the entire broad sweep of asbestos litigation.
The situation is similar in silicosis litigation, where the need for a history of the multiple failed attempts to impose liability on remote silica sand suppliers cries out for unified treatment. There is, to be sure, a highly biased account that runs through one text, Deadly Dust, written by two radical historians who helped fuel the litigation attempts in the 1990s, and in the 21st century.[6] The perspective of Deadly Dust, however, either ignores or misunderstands the litigation strategies and outcomes for the actual participants in silicosis litigation.
Recently, a chapter in the new edition of a treatise on products liability law has offered up a brief history of silica litigation.[7] The chapter correctly notes that “[s]ilica litigation in the United States has largely dried up following the 2005 dismissal of the multidistrict In re Silica Products Liability Litigation.”[8] In a chapter section, “§ 8:5.2 History of Litigation,” the authors purport to discuss the history of silica litigation, but they begin with one episode, the filing of thousands of cases in Mississippi and Texas, which were removed to federal court and consolidated in a Multi-District Litigation before the Hon. Janis Graham Jack, in Corpus Christi, Texas. Judge Jack famously declared “red flags of fraud” on the litigation battleground, with active participation from many high-volume testifying expert witnesses, such as Drs. Ray Harron and B.S. Levy.
The chapter lightly touches upon a few subsequent, post-MDL silica cases in Mississippi,[9] but importantly the chapter misses the sweep of silica litigation, before the MDL debacle. A more sustained, disinterested history of silica litigation would be a worthwhile undertaking for a few reasons.
- Silica litigation is a strong example of misplaced liability in the industrial setting of selling a natural commodity to purchasers who are employers with strong state and federal regulatory obligations to provide safe workplaces.[10]
- The litigation over silica health effects severely tests the notion that litigation is needed as an adjunct to regulation. Silicosis mortality has declined steadily in the late 20th and early 21st century, despite the failure of silica claims.[11]
- In the late 20th and early 21st centuries, silica litigation was fueled in part by a tendentious ruling by the International Agency for Research on Cancer (IARC), which declared that crystalline silica is a “known” human carcinogen. The working group was deeply divided, and the classification was subsequently shown to have ignored important studies.[12] Although subsequent IARC working groups handed down even more suspect monographs, revisiting the conditions that gave rise to the IARC silica monograph would be yield valuable insights into the capture and corruption of the IARC process by biased advocates.
- Defendants often come under serious criticism and pressure to settle litigation, as though the filing of complaints, with allegations of harms, demands social justice and ample remedies. In silica litigation, many defendants did not succumb to such pressure, and their efforts revealed corruption in the manufacturing of claims, through fraudulent diagnoses, product identification, and misdirected blame.
An adequate history of silica litigation would need to explore:
- The era before worker’s compensation (1890-1930, including Gauley Bridge), when civil litigation was the only recourse, and when plaintiffs were met with defenses of contributory negligence, fellow-servant rule, assumption of risk, and statutes of limitations.
- The era of worker’s compensation (1930-1968 or so), when employers had close to absolute liability for the medical damages and lost wages of their employees.
- The era of strict liability (1969 – 1997), ushered in by the doctrine of stricts products liability in the Restatement (Second) of Torts, and fueled by the enticement of mushrooming jury verdicts, and perceived inadequacies of worker compensation awards. Contributory negligence gave way to comparative negligence, and plaintiffs colluded in claims of ignorance of silica hazards. Silica litigation was episodic, with “outbreaks” in Alabama, western Pennsylvania, and New Jersey.
- The IARC Resurgence (1998 – 2010), which “sexed up” silica litigation, and led to mass filings, and the Battle of Corpus Christi, in Judge Jack’s courtroom. Additional outbreaks occurred in Mississippi, New Jersey, Pennsylvania, and California.
There is probably much I have missed, but the sketch above is a beginning.
[1] Peter H. Schuck, Agent Orange on Trial: Mass Toxic Disasters in the Courts (1987).
[2] Michael D. Green, Bendectin: The Challenges of Mass Toxic Substances Litigation (1996); Joseph Sanders, Bendectin on Trial: A Study of Mass Tort Litigation (1998).
[3] Robert V. Bartlett, The Reserve Mining Controversy (1980).
[4] Reserve Mining Co v. Hon. Miles Lord, 529 F.2d 181 (8th Cir. 1976).
[5] Roberta Walburn, Miles Lord: The Maverick Judge Who Brought Corporate America to Justice (2017).
[6] David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Politics of Occupational Disease in the Twentieth Century America (1991).
[7] George Gigounas, Arthur Hoffmann, David Jaroslaw, Amy Pressman, Nancy Shane Rappaport, Wendy Michael, Christopher Gismondi, Stephen H. Barrett, Micah Chavin, Adam A. DeSipio, Ryan McNamara, Sean Newland, Becky Rock, Greg Sperla & Michael Lisanti, “Recent Developments in Asbestos, Talc, Silica, Tobacco, and E-Cigarette/Vaping Litigation in the U.S. and Canada,” Chap. 8, in Stephanie A. Scharf, George D. Sax & Sarah R. Marmor, eds., Product Liability Litigation: Current Law, Strategies and Best Practices (2nd ed. 2021).
[8] Id. at § 8:5.1 Overview (referring to In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.)).
[9] Mississippi Valley Silica Co. v. Eastman, 92 So. 3d 666 (Miss. 2012); Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891 (Miss. 2015).
[10] See NAS, “Products Liability Law – Lessons from the Military and Industrial Contexts,” 13 J. Tort Law 303 (2020); “The Misplaced Focus of Enterprise Liability on the Wrong Enterprise” (Mar. 27, 2021).
[11] See, e.g., Ki Moon Bang, Jacek M. Mazurek, John M. Wood, Gretchen E. White, Scott A. Hendricks, Ainsley Weston, “Silicosis Mortality Trends and New Exposures to Respirable Crystalline Silica — United States, 2001–2010,” 64 Morbidity and Mortality Weekly Report 117 (Feb. 13, 2015).
[12] Patrick A. Hessel, John Gamble, J. Bernard L. Gee, Graham Gibbs, Francis H.Y. Green, Morgan, Keith C. Morgan, and Brooke T. Mossman, “Silica, Silicosis, and Lung Cancer: A Response to a Recent Working Group Report,” 42 J. Occup. & Envt’l Med. 704 (2000).
