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The Webb of Unsophistication in Products Liability Law

May 29th, 2016

The Heart of the Matter

The classic early cases in products liability law were about consumers hurt by consumer products, sold by manufacturers or dealers directly to consumers. The key component of these cases was inequality of bargaining power, of knowledge about latent defects or hazards, and of control over the discovery of latent hazards or defects. American products liability law was created around consumer products.  Just think of Henningsen, Escola, and MacPherson.[1]  These were all consumer products for which the rhetoric about inequality of bargaining, knowledge, and control over design, manufacturing, and latent hazards sometimes makes sense. The paradigmatic model for products liability, however, frequently does not work for the three-way relationship of sales of products to large industrial employers. The model especially does not work when the product is a raw material used throughout a factory, or incorporated into another product.

Many courts have failed to come to grips with the inadequacy of the consumer model for products liability cases in instances of occupational harm to industrial employees.  Courts have been trying to ram this square peg into a round hole since the early asbestos litigation (which perhaps made some sense because there was inequality between Johns Manville and most vendees), but makes no sense when John Manville is itself the purchaser.

The Tangled Webb in California Law

The Webb case received some attention after the California Court of Appeals reversed a trial court’s entry of JNOV for defendant Special Electric on the so-called sophisticated intermediary defense.  See “California Supreme Court Set To Untangle Webb” (July 7, 2013); “Big Blue & The Sophisticated User and Intermediary Defenses” (Sept. 27, 2014); G. Jeff Coons, “What a Tangled Webb We Weave: Court Imposes Failure to Warn Liability On Supplier to Johns-Manville” (April 2013). Special Electric petition for review, and eventually the California Supreme Court called for full briefing and oral argument in the Webb case.

The wheels of justice grind slowly in California. Special Electric filed its opening brief on the merits, on September 10, 2013. Webb’s widow answered in December 2013, and Special Electric replied in February 2014. Several amici curiae joined the fray in April 2014. Mark A. Behrens filed a brief on behalf of the Coalition for Litigation Justice, Inc., Chamber of Commerce, NFIB Small Business Legal Center, and American Chemistry Council. The Pacific Legal Foundation also filed, as did Elementis Chemicals Inc.

After mulling over the briefs for two years, the California Supreme Court heard argument on March 1, 2016, and then in surprisingly short order, affirmed the intermediate appellate, earlier this week. The Supreme Court’s ruling upheld a Court of Appeal’s decision that reversed a judgment for defendant Special Electric, based upon a jury verdict in favor of William Webb, who was exposed to crocidolite sold by Special Electric, and which caused him to develop mesothelioma in 2011. The Supreme Court’s opinion[2] held that sophisticated intermediary doctrine was a complete legal defense, even potentially for an asbestos supplier, but declined to apply it to the benefit of Special Electric, which had misrepresented facts about crocidolite and offered no evidence that its purchaser was sophisticated about crocidolite asbestos and its unique relationship with mesothelioma. [Slip opinion cited here as Webb.] Webb v. Special Elec. Co., Inc., 2016 BL 163642, Cal., No. S209927, 5/23/16).

The majority opinion[3] fortunately was able to separate the poorly framed and supported defense by Special Electric from the basic tenets of tort law and the sophisticated intermediary defense. To the extent that anyone doubted the validity of the sophisticated intermediary defense, the Webb Court formally adopted the doctrine as the law of California, as set out in the Second and Third Restatements of Tort Law. Webb at 15-16. According to the Court, a defendant may set up sophisticated intermediary doctrine as a complete defense, to failure to warn claims for known or knowable product risks, sounding in negligence or in strict liability, when the defendant supplier:

“(1) provides adequate warnings to the product’s immediate purchaser, or sells to a sophisticated purchaser that it knows is aware or should be aware of the specific danger, and

(2) reasonably relies on the purchaser to convey appropriate warnings to downstream users who will encounter the product.”

Webb at 16 (emphasis in original).[4]

As an affirmative defense, the defendant supplier must carry its burden of showing that it adequately warned the intermediary, or that it knew the intermediary knew or should have known of the specific hazard, and that it reasonably relied upon the purchaser to transmit warnings. Id.

On appeal, the California Supreme Court held that defendant Special Electric failed to preserve its entitlement to the sophisticated intermediary defense because “it never attempted to show that it actually or reasonably relied on Johns-Manville to warn end users. Nor did Special Electric request a jury instruction or verdict form question on the sophisticated intermediary doctrine.” Webb at 23.

Alternatively, on the assumption that Special Electric preserved the defense, the Court held that this defendant failed to establish the defense as a matter of law because:

“[a]lthough the record clearly shows Johns-Manville was aware of the risks of asbestos in general, no evidence established it knew about the particularly acute risks posed by the crocidolite asbestos Special Electric supplied. In addition, plaintiffs presented evidence that at least one Special Electric salesperson told customers crocidolite was safer than other types of asbestos fiber, when the opposite was true.”

Webb at 23.

The Webb Court reviewed the Tort Restatements’ embrace of the sophisticated intermediary defense in both the Second and Third editions.  The Webb Court noted that the Third Restatement demonstrated the continued validity and vitality of the defense, as had been expressed in the Section 388 of the Restatement Second of Torts.[5] The Court noted and followed the Third Restatement’s recitation of guiding considerations for invoking and sustaining the defense:

“There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user.”

Webb at 15 (citing Restatement 3d Torts, Products Liability, § 2, com. i, at p. 30.) Citing California precedent, the Webb Court noted that

“[t]he focus of the [sophisticated intermediary] defense . . . is whether the danger in question was so generally known within the trade or profession that a manufacturer should not have been expected to provide a warning specific to the group to which plaintiff belonged.”

Webb at 9-10 (quoting from Johnson v. American Standard, Inc. 43 Cal.4th 56, 72 (2008).  The pertinent legal test is whether a reasonable supplier would have known of the intermediary’s sophistication with respect to the relevant risk. Webb at 20.[6] Of course, the existence of a pervasive regulatory control of risk creation, detection, and mitigation in the workplace would count heavily in this objective test.  “Every person has a right to presume that every other perform his duty and obey the law.” Webb at 21 (internal citation omitted) (emphasis added).

The Restatement factors, however, did not support Special Electric’s invocation of the defense in a case involving:

(1) crocidolite asbestos, one of the most hazardous substances known,

(2) defendant’s affirmative and blatantly false misrepresentations of the relative safety of crocidolite relative to chrysotile asbestos,[7] and

(3) a complete failure of proof that the purchaser, Johns Manville, knew that crocidolite was especially hazardous with respect to the causation of mesothelioma.

Webb at 23-24. Factors one and two were givens for defense counsel, but factor three speaks to unnecessary coyness on the part of the defense.  Showing that Johns Manville was well aware of the extraordinarily great hazard of crocidolite would have been relatively easy to do from past transcripts, articles, speeches, and litigation conduct of the Johns Manville companies. Despite the extreme hazards from uncontrolled asbestos exposures, the Webb case explained that the sophisticated intermediary defense was not per se inapplicable to asbestos cases, and went so far as to disapprove an earlier California Court of Appeals decision that refused to apply the defense in the asbestos personal injury context when no warnings had been given.[8] “Sophistication obviates the need for warnings because a sophisticated purchaser already knows or should know of the relevant risks.” Webb at 17-18.

The Webb case acknowledged that defective design claims against raw material suppliers are incoherent and invalid, whether for the raw material itself, or for downstream design defect claims against for the product with the incorporated raw material. “[A] basic raw material such as sand, gravel, or kerosene cannot be defectively designed.” Webb at 11-12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).[9]

The Webb Court also evinced a healthy disrespect for the notion that tort law is only about spreading risk and compensating injured persons. The Court acknowledged that in some instances, there were competing policies of compensating persons injured by products and “encouraging conduct that can feasibly be performed.” Webb at 2. The Court also acknowledged that there were hazards to warning when none was needed or when the absence of a warning would not be a legal cause of harm:

“Because sophisticated users already know, or should know, about the product’s dangers, the manufacturer’s failure to warn is not the legal cause of any harm. A sophisticated user’s knowledge is thus the equivalent of prior notice. The defense serves public policy, because requiring warnings of obvious or generally known product dangers could invite consumer disregard and contempt for warnings in general.”

Webb at 9 (internal citations omitted) (emphasis added). Furthermore, the sophisticated intermediary defense balances the need for the worker-consumer’s safety with “the practical realities of supplying products.” Webb at 17.

The Webb decision puts California in line with the majority rule that recognizes the validity of the sophisticated intermediary defense, and embraces real-world truth that:

“[in] some cases, the buyer’s sophistication can be a substitute for actual warnings, but this limited exception only applies if the buyer was so knowledgeable about the material supplied that it knew or should have known about the particular danger.”

Webb at 17.[10] The Court noted and agreed with the Restatement Third’s observation that imposing liability upon raw material suppliers for failure to warn can be unduly and unfairly burdensome when such liability would require remote suppliers

“to develop expertise regarding a multitude of different end-products and to investigate the actual use of raw materials by manufacturers over whom the supplier has no control.”

Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134).

Concurrence

Chief Justice Tani Gorre Cantil-Sakauye, along with Justice Ming W. Chin, concurred in the result, but dissented from the majority’s rationale as overly broad. The concurring justices insisted that a supplier reasonably relies upon its purchaser only when the purchaser has actual awareness of the product’s risks. Webb concurrence at 4. Even this stingier approach noted that one of the purpose of warnings is

“to enable the consumer or others who might come in contact with the product to choose not to expose themselves to the risks presented.”

Webb Concurrence at 3 (citing Restatement3d Torts, Products Liability, § 2, com. i, at p. 30).  In many sophisticated intermediary contexts involving occupational exposures to fumes, vapors, and dusts, workers (consumers) cannot appreciate whether they might come in contact with the product such that they have actual risks unless the sophisticated intermediary measures its specific workplace exposures, given its actual engineering, administrative, and person protection controls.

Commentary

The Webb Court failed to address in any meaningful form how Special Electric could discharge a duty to warn Mr. Webb directly, when it sold blue asbestos to Johns-Manville, which then incorporated that fiber, along with other recycled asbestos into transite pipes. To this extent, the Webb decision carries forward the glib belief in efficacy of warnings, without any evidence or critical thought.

It is hard to imagine an industrial purchaser that was unaware of the special hazards of crocidolite by 1970, and yet Special Electric apparently failed to offer evidence on the issue whether Johns-Manville had such awareness. A court might take judicial notice of Johns-Manville sophistication, but there is not even the suggestion that Special Electric attempted to supplement the vacuous record with a request for judicial notice.

If the California Supreme Court’s recitation of the facts of the case is correct, then we are left with an unflattering inference about Special Electric’s trial strategy and execution.  Perhaps Special Electric was coyly trying to avoid a downside outcome in which it was responsible for 99.99% of the verdict because its blue asbestos was by far the most important cause of Mr. Webb’s tragic disease, a disease that would have almost certainly been avoided had never had exposure to blue asbestos. The propensity of crocidolite to cause mesothelioma is orders of magnitude greater than chrysotile, which by itself may not even be a competent cause of the harm suffered by Mr. Webb.

In the final analysis, the Webb Court correctly adopted the sophisticated intermediary principle as an essential limit to tort liability, but denied its benefit to Special Electric.  The sophisticated intermediary doctrine should not, however, be conceived of as an affirmative defense.  The scope of the rule is defined by the rationale for its existence, and the sophisticated intermediary situation lies outside the realm and rationale of protecting, by warning, consumers against latent hazards.  It is time that courts recognize that much litigation brought to its doors is really the result of labor-management issues within the workplace, and not the doings or responsibility of remote suppliers of raw materials.

[1] See, e.g, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (holding that privity of contract did not bar suit and that product manufacturers could be liable to consumers for injuries); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960); Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453, 150 P. 2d 436  (1944).

[2] See Steven Sellers, “California Ruling Defines Asbestos Supplier’s Duty to Warn,” BNA Product Safety & Liability Reporter (May 24, 2016).

[3] The majority opinion was written by Associate Justice Carol A. Corrigan, and joined by Associate Justices Kathryn Mickle Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar and Leondra R. Kruger.

[4] See also Webb at 2 (“Under the sophisticated intermediary doctrine, the supplier can discharge this duty if it conveys adequate warnings to the material’s purchaser, or sells to a sufficiently sophisticated purchaser, and reasonably relies on the purchaser to convey adequate warnings to others, including those who encounter the material in a finished product. Reasonable reliance depends on many circumstances, including the degree of risk posed by the material, the likelihood the purchaser will convey warnings, and the feasibility of directly warning end users.”); Webb at 6 (“[T]he sophisticated intermediary doctrine provides that a supplier can discharge its duty to warn if it provides adequate warnings, or sells to a sufficiently sophisticated buyer, and reasonably relies on the buyer to warn end users about the harm.”). Webb at 17 (“If a purchaser is so knowledgeable about a product that it should already be aware of the product’s particular dangers, the seller is not required to give actual warnings telling the buyer what it already knows.”).

[5] See Webb at 15 (“The drafters intended this comment to be substantively the same as section 388, comment n, of the Restatement Second of Torts.”) (citing Restatement 3d Torts, Products Liability, § 2, com. i, reporter’s note 5, at p. 96; Humble Sand & Gravel Inc. v. Gomez, 146 S.W.3d 170, 190 (Tex. 2004). See also Webb at 9 (citing Restatement 2d Torts, § 388 (b), com. k, at pp. 306-307) (“Courts have interpreted section 388, subdivision (b), to mean that if the manufacturer reasonably believes the user will know or should know about a given product’s risk”).

[6] Relevant considerations may include the general dissemination of knowledge of relevant risks, the intermediary’s knowledge of those risks, and the intermediary’s reputation for care. Webb at 20.

[7] Webb at 3, 23.

[8] See Webb at 17-18 (disapproving of the holding in Stewart v. Union Carbide Corp., 190 Cal. App. 4th 23, 29-30 (2010)).

[9] See also Webb at 12 (quoting from Restatement 3d Torts, Products Liability, § 5, com. c, at p. 134) (“Inappropriate decisions regarding the use of such materials are not attributable to the supplier of the raw materials but rather to the fabricator that puts them to improper use.”).

[10] citing approvingly Cimino v. Raymark Industries, Inc., 151 F.3d 297, 334 (5th Cir. 1998) (holding that raw asbestos supplier did not need to warn asbestos product manufacturer Fibreboard, which was “a sophisticated, expert, and knowledgeable manufacturer” of insulation products, about asbestos risks); Higgins v. E.I. DuPont de Nemours & Co., 671 F. Supp. 1055, 1061-1062  (D. Md. 1987) (exculpating supplier when purchaser was a highly sophisticated manufacturer with knowledge from independent sources, as well as its suppliers), aff’d, 863 F.2d 1162 (4th Cir. 1988).

Posted in Asbestos, Silica, Sophisticated User | Comments Off on The Webb of Unsophistication in Products Liability Law

Putting the Liability Spotlight on Employers

November 30th, 2015

In 2013, the Pennsylvania Supreme Court held that employers could be directly liable to employees for injuries that become manifest outside the time limits (300 weeks) of the Commonwealth’s workman’s compensation statute. Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The implications for so-called long latency, toxic tort claims were obvious, and the generated some commentary. See “Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014); “The Erosion of Employer Immunity in Tort Litigation” (Jan. 20, 2015).

The Legal Intelligencer has now reported the first “cashing in” or “cashing out” on the change in Pennsylvania law. Plaintiff’s lawyer, Benjamin Shein, took an employer to trial on claims that the employer was responsible for alleged asbestos exposure that caused John F. Busbey to develop mesothelioma. Bobbie R. Bailey of Leader & Berkon, in Los Angeles, defended. The case was tried before Philadelphia Judge Lisette Shirdan-Harris and a jury. After a three week trial, on November 10, the jury returned a verdict in favor of plaintiff, against the employer defendant, in the amount of 1.7 million dollars. Busbey v. ESAB Group, Phila. Court of Common Pleas, No. 120503046. Max Mitchell, “Employer Found Liable In Asbestos Verdict: Busbey v. ESAB Group $1.7 Million Verdict,” The Legal Intelligencer (Dec. 1, 2015).

For witnesses, Shein called frequent litigation-industry testifiers, Dr. Steven Markowitz on occupational disease, and Dr. Daniel Dupont, a local pulmonary physician. Shein also called one of the pink panther historians, Gerald Markowitz. See “Narratives & Historians for Hire” (Dec. 15, 2010). The employer defendant called an industrial hygienist, Delno D. Malzahn.

According Ben Shein, the verdict represented the first trial win in Pennsylvania for an asbestos claim against an employer, since the Pennsylvania Supreme Court decided Tooey in 2013. From the Legal Intelligencer’s account, and the line-up of litigation industry witnesses, the plaintiff’s trial evidence on exposure and standard of care seems shaky, and the winner may not be discernible until the appellate review is concluded.

In Illinois, an intermediate appellate court held out the prospect of a legal change similar to Tooey. In 2014, the Illinois Court of Appeals held that workman compensation petitioners, whose claims fell outside the Illinois statute were not barred by the exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2014 IL App (1st) 123219. See Patrick W. Stufflebeam, “Folta v. Ferro Engineering: A Shift in Illinois Workers’ Compensation Protection for Illinois Employers in Asbestos Cases,” News & Press: IDC Quarterly (Mar. 11, 2015).

The Illinois Supreme Court allowed an appeal, as well as extensive amicus briefings from the Illinois Trial Lawyers Association, the Asbestos Disease Awareness Organization, the Illinois AFL-CIO, the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel, a joint brief from insurers,[1] and a joint brief from various manufacturing companies.[2]

Earlier this month, the Illinois Supreme Court reversed and held that even though claims fell outside the Illinois workman’s compensation statute, those claims were still barred by the Act’s exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2015 IL 118070 (November 4, 2015).

[1] the American Insurance Association, Property Casualty Insurers Association of America, and the Travelers Indemnity Company.

[2] Caterpillar Inc., Aurora Pump Company, Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation.

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The Unreasonable Success of Asbestos Litigation

July 25th, 2015

In asbestos litigation, the plaintiffs’ bar has apparently invented a perpetual motion machine that feeds on outrage that will never run out. Still, lawyers who have not filled their wallets with legal fees from asbestos cases sometimes attempt to replicate the machine. For the most part, the imitators have failed.

What accounts for the unreasonable success of asbestos litigation? Unlike pharmaceutical litigation, exposure does not require a prescription. Although asbestos insulators and applicators experienced the most exposure, other trades and occupations worked with, or near, asbestos materials. Anecdotal testimony of exposure suffices in almost every case. Add para-occupational exposure, and the sky’s the limit for the class of potential plaintiffs. See Lester Brickman, “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014); Peggy Ableman, “The Garlock Decision Should be Required Reading for All Trial Court Judges in Asbestos Cases,” 37 Am. J. Trial Advocacy 479, 488 (2014).

Then there is the range of diseases and disorders attributable to asbestos. Excessive exposure to asbestos minerals cause non-malignant pleural plaques and thickening, as well as lung fibrosis, asbestosis. Some asbestos minerals cause mesothelioma, and despite a differential in potency among some of the minerals (between amosite and crocidolite), the general and specific causation of mesothelioma is often uncontested. Furthermore, lung cancer in the presence of asbestosis may be the result of interaction of asbestos exposure and cigarette smoking. Plaintiffs’ counsel and The Lobby have expanded the list of attributable diseases to include non-pulmonary cancers, only to find some defendants willing to pay money on these claims as well.

In addition to the ease of claiming, or manufacturing, exposure, and the willing cooperation of the occupational medical community in supporting medical causation, asbestos litigation is a lightning rod for moral outrage in the courtroom. Plaintiffs claim that “industry” knew about the hazards of asbestos, including its carcinogenicity, long before warnings appeared. Defending the knowledge claim requires nuanced explanation of shifting standards for establishing causality as epidemiology developed and was applied to putative asbestos-related cancer outcomes, as well as changing views about the latencies of asbestos-related diseases.

Every once in a while, plaintiffs’ and defense counsel[1], the media[2], the academy[3], and the insurance industry[4] ask whether “silica” is the next asbestos. Although the prospects have been, and remain, dim, plaintiffs’ counsel continue to try to build their litigation palace on sand, with predictably poor results. See Kimberley A. Strassel, “He Fought the Tort Bar — and Won,” Wall St. J. (May 4, 2009).

There are many serious disanalogies between asbestos and silica litigation. One glaring difference is the inability to summon any outrage over suppressed or nondisclosed knowledge of alleged silica cancer hazards. The silica cancer state of the art, written by those who are lionized in the asbestos litigation – Hueper, Schepers, and Hardy, along with NIOSH and the Surgeon General, all appropriately denied or doubted silica as a cause of lung cancer. See below. When the IARC shifted its views in the 1990s, under the weight of determined advocacy from some partisans in the occupational medicine community, and with the help from some rather biased reviews, industry promptly warned regardless of the lack of scientific support for the IARC’s conclusion. The manufacturing of faux consensus and certainty on silica and lung cancer is an important counter to the incessant media stories about the manufacturing of doubt on topics such as climate change.

[1] Robert D. Chesler, James Stewart, and Geoffrey T. Gibson, “Is Silica the Next Asbestos?” 176 N.J.L.J. 1 (June 28, 2004); Mark S. Raffman, “Where Will Silica Litigation Go?” 1 LJN Silica Legal News 1 (2005); Chris Michael Temple, “A Case for Why Silica Litigation Is Not the ‘Next Asbestos’,” LJN Product Liability Law & Strategy (2004).

[2] Jonathan D. Glater, “Suits on Silica Being Compared To Asbestos Cases,” N.Y. Times (Sept. 6, 2003).

[3] Michelle J. White, “Mass Tort Litigation: Asbestos,” in Jürgen Georg Backhaus, ed., Encyclopedia of Law and Economics 1 (2014); Melissa Shapiro, “Is Silica the Next Asbestos? An Analysis of the Silica Litigation and the Sudden Resurgence of Silica Lawsuit Filings,” 32 Pepperdine L. Rev. 4 (2005).

[4] “Is silica the new asbestos?” The Actuary (2005).

Historical Statements – – State-of-the-Art

Maxcy, ed., Rosenau Preventive Medicine and Hygiene 1051 (N.Y., 7th ed. 1951) (“Thus, there is no evidence that lung cancer is related in any way to silicosis.”)

May Mayers, “Industrial Cancer of the Lungs,” 4 Compensation Medicine 11, 12 (1952) (“Nevertheless, silicosis is not, apparently associated with, or productive of, lung cancer, whereas asbestosis very probably is.”) (Chief, Medical Unit, Division of Industrial Hygiene and Safety Standards, N.Y. Dep’t of Labor)

Geritt Schepers, “Occupational Chest Diseases,” Chap. 33, p. 455, ¶3, in A. Fleming, et al., eds., Modern Occupational Medicine (Phila. 2d ed. 1960) (“Lung cancer, of course, occurs in silicotics and is on the increase. Thus far, however, statistical studies have failed to reveal a relatively enhanced incidence of pulmonary neoplasia in silicotic subjects.”)

Spencer, Pathology of the Lung (1962) (“Silicosis and lung cancer inhaled silica, unlike asbestos, does not predispose to the development of lung cancer.”)

Wilhelm Hueper, Occupational and Environmental Cancers of the Respiratory System at 2-6 (N.Y. 1966) (“The bulk of the available epidemiologic evidence on the association of silicosis and lung cancer supports the view of a mere coincidental role of silicosis in this combination. *** From the evidence on hand, it appears that a well advanced silicosis does not seem to furnish a favorable soil for the development of cancer of the lung.”) (chief of the National Cancer Institute)

Harriet L. Hardy, “Current Concepts of Occupational Lung Disease of Interest to the Radiologist,” 2 Sem. Roentgenology 225, 231-32 (1967) (“cancer of the lung is not a risk for the silicotic. It is a serious risk following asbestos exposure and for hematite, feldspar, and uranium miners. This means that certain dusts and ionizing radiation alone or perhaps with cigarette smoke act as carcinogens.”)

Raymond Parkes, Occupational Lung Disorders 192 (London 1974) (“Bronchial carcinoma occasionally occurs in silicotic lungs but there is no evidence of a causal relationship between it and silicosis; indeed the incidence of lung cancer in miners with silicosis is significantly lower than in non-silicotic males.”)

Kaye Kilburn, Ruth Lilis, Edwin Holstein, “Silicosis,” in Maxcy-Rosenau, Public Health and Preventive Medicine, 11th ed., at 606 (N.Y. 1980) (“Lung cancer is apparently not a complication of silicosis.”)

Robert Jones, “Silicosis,” Chap. 16, in W. Rom, et al., eds., Environmental and Occupational Medicine 205 (Boston 1983) (“The weight of epidemiologic evidence is against the proposition that silicosis carries an increased risk of respiratory malignancy.”)

W. Keith C. Morgan & Anthony Seaton, eds., Occupational Lung Diseases 266 (1984) (“It is generally believed that silicosis does not predispose to lung cancer. * * * On balance, it seems unlikely that silicosis itself predisposes to lung cancer.”)

1 Anderson’s Pathology at 910b (1985) (“There is no evidence that silica increases the risk of lung cancer, nor does it enhance tobacco induced carcinogenesis.”)

U.S. Dep’t of Health and Human Services, The Health Consequences of Smoking – Cancer and Chronic Lung Disease in the Workplace: A Report of the Surgeon General at 348, Chapter 8 “Silica‑Exposed Workers” (1985) (“the evidence does not currently establish whether silica exposure increases the risk of developing lung cancer in men.”)

J. Cotes & J. Steel, Work-Related Lung Disorders 156 (Oxford 1987) (“The inhalation of silica dust does not contribute to malignancy.”)

NIOSH Silicosis and Silicate Disease Committee, “Diseases Associated With Exposure to Silica and Non-fibrous Silicate Minerals,” 112 Arch. Path. & Lab. Med. 673, 707 (1988) (“Epidemiologic studies have been conducted in an effort to assess the role of silica exposure in the pathogenesis of lung cancer. *** Thus, the results are inconclusive … .”)

Arthur Frank, “Epidemiology of Lung Cancer, in J. Roth, et al., Thoracic Oncology, Chap. 2, at p. 8 (Table 2-1), 11 (Phila. 1989) (omitting silica from list of lung carcinogens) (“The question of the relationship of coal mining to the development of lung cancer has been frequently considered. Most evidence points to cigarette smoking among coal miners as the major causative factor in the development of lung cancer, and neither a recent84 nor a British study of lung cancer among coal miners has found any relationship to occupational exposure.”)

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The Erosion of Employer Immunity in Tort Litigation

January 20th, 2015

The present workman’s compensation system in the United States has serious flaws. Scheduled awards are inadequate in some states, and their inadequacy fosters specious litigation against remote third parties who are not able to control the workplace use of hazardous materials. In many states, premiums are set on an industry-wide basis, and thus careless employers are not handed incentives to improve workplace hygiene. With awards low, and without the need to rate individual employers, compensation insurers do not adequately inspect and control individual employers’ conduct. Workman’s compensation statutes provide a lien against any third-party recovery, which means that employers (and their insurers) will be rewarded for their negligence if injured employees can frame liability suits against third-parties, such as suppliers of raw materials to the employers.

For the most part, organized labor and management reached their great compromise over occupational injury litigation back from about 1911 through the early 1930s. Before the passage of the various compensation acts, employees had common law negligence actions against employers for deviations from reasonable care. In some part of the country, juries were extremely sympathetic to injured workers, and equally hostile to employers. At the same time, employers had powerful defenses in the form of contributory negligence, which barred claims by workers who were the least bit careless for their own safety. The fellow-worker rule, assumption of risk, and statutes of limitations further diminished workers’ likelihood of success in pursuing tort claims. One option that was not on the table in the negotiations was to open up liability of remote vendors to employers as a way to mitigate the hardships of the common law tort system. Remote suppliers had even more potent defenses in the form of privity of contract, intervening and superseding negligence of the employers and employees, and all the other defenses that employers enjoyed. More important, however, the interlocutors realized that employers controlled the workplace, and had the greatest opportunity to prevent industrial injuries and occupational disease. When the workman’s compensation bargain was struck, labor knew that the scheduled awards would be workers’ sole or main source of compensation.

Worker’s compensation statutes made recovery for most injuries a certainty, with schedules of damages that were deeply discounted from what might be had in a jury trial. In return for well-nigh absolute liability, employers gained certainty of outcome, reduction of administrative costs, and immunity to tort liability for all but intentional harms. The remedial compensation statutes gave employers immunity, but they did not eradicate the basic common law bases for suits against employers. But for the worker’s compensation statutes, employees would have rights of action against employers. Gaps in the compensation acts translated into gaps in immunity, and reversion to the common law of negligence.

The predicate for the “deal” began to disintegrate after World War II. For one thing, changes in tort law diminished the defenses that employers had exercised so effectively before the deal. Contributory negligence gave way to comparative negligence.  Assumption of risk defenses were curtailed, and the fellow-servant rule was severely modified or abandoned.

Just when Labor might have been feeling consumed by buyer’s remorse over its deal, strict liability principles began to replace privity doctrines. In 1965, the American Law Institute adopted § 402A which provided for “Special Liability of Seller of Product for Physical Harm to User or Consumer,” based upon concerns of unequal knowledge of defects and latent hazards of products sold to consumers. Liability followed for harm caused by a product irrespective of privity of contract or warranty, and even if “the seller has exercised all possible care in the preparation and sale of his product.” Restatement (Second), Torts § 402A (2)(a),(b) (1965).

Section 402 became the vehicle for injured workers to ditch their capped damages in worker’s compensation court, and to put their cases back in front of juries, with the prospect of unlimited awards for non-economic damages. Although instigated by the perceived imbalance of knowledge between manufacturers and buyers with respect to design and manufacturing defects, strict liability doctrine quickly became a vehicle for redressing inadequacies in the workman’s compensation systems. What was problematic, however, was that there was often no inequality of knowledge between seller and purchaser, or hidden or latent hazard in the product or material.

There are exceptions to the exclusivity of workman’s compensation remedies against employers. One exception, available in most states, is for intentional torts committed by employers. The scienter requirement for intentional torts allowed only very few cases to proceed against employers in tort. A bigger gap in immunity, however, was opened in Pennsylvania, where workers regained their common law right to sue employers for negligence and other torts, for occupational diseases that manifest more than 300 weeks after last employment. Section 301(c)(2) of the Pennsylvania’s Workman’s Compensation Act, 77 P.S. § 411(2) removes these delayed manifested occupational disease claims from the scope of Pennsylvania’s Act. The Pennsylvania Supreme Court filled in the obvious logical gap: if the Act did not apply, then the employer had no immunity against a common law cause of action, which was never abolished, and was unavailable only when there was a statutory remedy under the Act. Tooey v. AK Steel Corp., 81 A.3d 851 (2013); “Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014). See also Gidley v. W.R. Grace Co., 717 P.2d 21(Mont. 1986)).

The Tooey decision has the potential to open an important door for plaintiffs and defendants alike. With employer immunity erased, the employer’s duty of reasonable care to protect the health and safety of its employees can once again be harnessed to improve the lot of workers, without concocting Rube-Goldberg theories of liability against remote suppliers and premise owners. Juries will see the entire evidentiary case, including the actions and omissions of employers, which will tend to exculpate remote suppliers. Employers will be given incentives to train employees in workplace safety, and to document their efforts. Employers will assert comparative negligence and assumption of risk defenses, which will give the lie to the plaintiffs’ claims of inadequate warnings from the remote suppliers.  Tooey, and the prospect of employer liability, has the potential to improve the truth finding ability of juries in tort cases.

Folta v. Ferro Engineering, 2014 IL App (1st) 123219.

In June of last year, the Illinois intermediate appellate court followed the Pennsylvania Supreme Court’s lead in Tooey, and decided to allow a direct action against an employer when the employee’s claim was not within the scope of the Illinois workers’ compensation act. Folta v. Ferro Eng’g , 14 N.E.3d 717, 729 (Ill. App. Ct.), appeal allowed (Ill. S. Ct. Sept. 24, 2014). See Steven Sellers, “Workers’ Compensation System Threatened By Illinois Asbestos Decision, Companies Say,” 43 Product Safety & Liability Reporter (Jan. 8, 2015).

James Folta developed mesothelioma 41 years after leaving his employment with Ferro Engineering, a latency that put his claim outside the Illinois Workers’ Compensation Act and Workers’ Occupational Diseases Act. The panel of the intermediate appellate court held that the same latency that denied Mr. Folta coverage, also worked to deny the employer immunity from common law suit. Mr. Folta’s asbestos exposure occurred at his Ferro workplace, from 1966 to 1970, during which time raw asbestos and many finished asbestos product suppliers provided warnings about the dangers of asbestos inhalation.

The BNA reporter, Mr. Sellers, quoted Mark Behrens, of Shook, Hardy & Bacon, as stating that:

“This case is part of an emerging national attack on state workers’ compensation systems by the personal injury bar.”

Id. Perhaps true, but the systems have been under critical attack from the public health community, legal reformers, labor, and industry, for some time. No one seems very happy with the system except employers in the specific moment and circumstance of asserting their immunity in tort actions. The regime of worker compensation immunity for employers has failed to foster worker safety and health, and it has worked to shift liability unfairly to remote suppliers who are generally not in a position to redress communication lapses in the workplace.

The Illinois Supreme Court has allowed Ferro Engineering to appeal the Folta case. Not surprisingly, the American Insurance Association, the Property Casualty Insurers Association of America and the Travelers Indemnity Company have filed an amicus brief in support of Ferro. Various companies — Caterpillar, Inc., Aurora Pump Co., Innophos, Inc., Rockwell Automation, Inc., United States Steel Corp., F.H. Leinweber Co., Inc., Driv-Lok, Inc., Ford Motor Co., and ExxonMobil Oil Corp. — have also banded together to file an amicus brief in support of Ferro. Ironically, many of these companies would benefit from abandoning employer immunity in occupational disease litigation. Taking the short view, the defense amicus brief argues that the Illinois Appellate Court’s decision distorts the “delicate balancing of competing interests,” and will lead to a flood of asbestos litigation in Illinois. The defense amicus further argues that the intermediate appellate court’s decision is “the first step towards unraveling the quid pro quo embodied in the acts.”

The problem with the defense position is that there already a flood of asbestos litigation in Illinois and elsewhere, and the problem lies not in damming the flood, but ensuring its equitable resolution. Divining what a legislature intended is always a risky business, but it seems unlikely it had any clear understanding of diseases with latencies in excess of 25 years. And while the Ferro decision has the potential to unravel the defense’s understanding of employer immunity in long-latency occupational disease cases, the real issue is whether bringing the employer to the table in civil litigation over occupational diseases will result in more equitable allocation of responsibility for the harms alleged. Even a “wrong” decision by the Illinois Supreme Court will have the advantage of inciting the Illinois legislature to clarify what it meant, and perhaps to recalibrate tort law to acknowledge the primary role of employers in providing safe workplaces.

Posted in Learned and sophisticated intermediary, Sophisticated User | Comments Off on The Erosion of Employer Immunity in Tort Litigation

Big Blue & The Sophisticated User and Intermediary Defenses

September 26th, 2014

Two particularly perfidious myths perpetrated by the asbestos litigation industry is that crocidolite was not used in the United States, and that chrysotile is as potent in causing mesothelioma as is crocidolite. Both myths are untrue, but they have become current articles of faith among the “The Lobby.” See “Selikoff and the Mystery of the Disappearing Amphiboles” (Dec. 10, 2010).

Because of the flagrant falsehoods imbedded in the Lobby’s mythology, I am always fascinated to see incontrovertible evidence of the use of crocidolite. Crocidolite is a blue fiber, and Johns-Manville (JM) was the “Big Blue” of the North American asbestos industry. JM used crocidolite in several products, but perhaps best known is its incorporation of blue fiber into asbestos cement products, known as Transite. One of JM’s manufacturing facilities, where crocidolite was used, was in Stockton, California, a.k.a. Fat City.

The JM Stockton plant was the situs of a recent sophisticated intermediary case, which is set for argument soon before the California Supreme Court. Webb v. Special Electric Company, Inc., 214 Cal. App. 4th 595, 153 Cal. Rptr. 3d 882, 888 (2013). See Monica Williams Monroe “Is There a Duty to Warn Even the Most Sophisticated User?”(July 23, 2014); “California Supreme Court Set To Untangle Webb” (July 7, 2013). The JM Stockton facility was, at one time, the largest consumer of asbestos in California, for use in making Transite (asbestos-cement) pipe products. See Asbestos:  The Magic Mineral (JM Brochure). In 1982, JM sold the Stockton facility to the J-M Manufacturing Co., and the J-M A/C Pipe Corp., which were unaffiliated with JM. “Johns-Manville Sells Pipe Unit” N.Y. Times (Dec. 21, 1982)[1].

Back in April 2001, the Kazan firm obtained a substantial jury verdict against J-M A/C Pipe Company, on behalf an employer who had worked there since 1959. Hardcastle v. J-M A/C Pipe Corp., Alameda County Superior Court No. 830058-2 (Jury verdict, April 21, 2001). The employer claimed untruthfully that it had never been sued, and had to confront allegations that it had cheated on air quality testing. The jury found J-M A/C Pipe Co. liable for negligence, with actual malice.

Given the actual knowledge and sophistication of the employer, one would expect that there was no need for an outside vendor of asbestos to warn the employer of its hazards, especially not after the early 1960s. Such a defense appears to have been interposed in one unreported California case. Ransom v. Calaveras Asbestos Ltd., No. B207018 (Cal. App. 2d Dist., Div. 5) (Mar. 4, 2009) (unpublished). Plaintiff claimed that his lung cancer was related to occupational exposure at the Stockton plant. Dr. Samuel Hammar, a pathologist, testified conclusorily that “each and every occupational exposure to asbestos” was a substantial factor. Dr. B.S. Levy offered testimony on epidemiology of asbestos fiber types. Somehow the court got the idea that “there were no distinctions in the effect of the types of asbestos to which plaintiff was exposed.” Id. Mistakes were made, and not much seems to have come of the sophisticated intermediary defense.

The sophisticated user defense seems to have gone better in a jury trial that ended with a defense verdict last month. Plaintiffs sued Special Electric for having brokered South African crocidolite fiber to the Stockton facility, and for having caused plaintiff’s mesothelioma. See “Special Electric Secures Defense Verdict In San Francisco Asbestos Trial” (Sept. 24, 2014). Plaintiffs called a physician, Barry Horn, M.D., and an industrial hygienist, William Ewing, CIH, as expert witnesses, to support their consumer expectations test for design defect. The defense called no witness, but defended on theory that the plaintiff, Mr. Dennis Hill, had been trained in, and aware of, the hazards of asbestos by the mid-1970s. Martha Joan Hill v. A.C.& S. Inc., et al., San Francisco County Superior Court (trial Sept. 2 through 10, with verdict returned Sept. 10, 2014) (Hon. Richard B. Ulmer, Dept. 624, and a jury).

It is a safe bet that Mr. Hill, and his union, had known about asbestos hazards for much longer than acknowledged. Mr. Hill’s demise is sad outcome to the crocidolite tragedy, for which his employer was and should have responsible. Almost as sad is forcing a remote supplier of crocidolite to defend itself for having brokered asbestos to the one of the world’s most knowledgeable users of the natural material.

[1] The Stockton plant was organized by the Machinists District Lodge 115, Local Lodge 1549, from 1958, on. Johns-Manville Sales Corp. v. National Labor Relations Board, 906 F.2d 1428 (10th Cir. 1990). The sale of the facility took place on the heels of a violent strike, in which the union showed it, too, could act maliciously and violently.

Posted in Causation, Sophisticated User | Comments Off on Big Blue & The Sophisticated User and Intermediary Defenses

Asbestos and Asbestos Litigation Are Forever

September 16th, 2014

When I first started practicing “asbestos law,” I routinely found copies of letters from JAG lawyers to shipyard workers, in their personnel files. The letters were notifying the workers that they had been diagnosed with asbestosis, usually by a local pulmonary physician who performed contract services for surveillance for the shipyard. The letters notified the workers that they might have rights under the Federal Employees’ Compensation Act, but emphasized that the workers had remedies against the Navy’s vendors of asbestos-containing products, and that if they sued in tort, the Navy would have a lien against any recovery. In practice, the lien was so unwieldy, that most of the Philadelphia plaintiffs’ firms would forego filing the FECA claim altogether. Thus the Navy effectively limited its liability, and kept its munitions budgets intact, while dozens of its vendors went bankrupt.

In 2011, Kara Franke and Dennis Paustenbach published a review of historical documentation of the United States Navy’s knowledge of the hazards of asbestos use in its shipyards. Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011). Earlier, in the 1980s, Dr. Samuel Forman published a history of Navy knowledge through World War II. Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988). Both histories serve to add valuable context to the asbestos “state of the art” story, by showing that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The subject is well covered territory, but the article approaches its subject matter from the perspective of what was known by the United States Navy, which may well have been singlehandedly responsible for exposing the greatest number of men and women to asbestos in the United States.  Back in the 1980s, Dr. Sam Forman covered a similar theme, but only through War War II.  See also Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy 99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards).

In the early days of the asbestos litigation, defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful. Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

In many states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Unfortunately, many defense counsel failed to appreciate the potential that intermediary knowledge had for defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given. See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of liability defenses. When defendants occasionally found a judge that would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success. See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of federal government’s superior knowledge of hazard and control of workplace).

Finding admissible evidence of the government’s superior knowledge was not always an easy task. In the O’Donnell trial, defendants presented the testimony of Dr. Kindsvatter, an industrial hygienist with a doctoral degree, who had been the chief hygienist at the Philadelphia Naval Shipyard for most of the post-World War II period. Counsel also had copies of Bureau of Medicine & Surgery bulletins, with ribbons and seal authentication. These bulletins announced the Navy’s adoption of threshold limit values for asbestos, and its mandate that the values be complied with in all shipyards.

More recently, additional resources have become available, courtesy of the internet. The Navy published a safety magazine, Safety Review, starting in 1944. Glimpses of Safety Review can be found on Google Books, and “snippets” of selected volumes 17-22 can be viewed at the Hathi Trust Digital Library[1]. Hard copies of the entire Safety Review can be found in a few university libraries, with the help of World Catalog.

More recently, Archive.org has made available selected documents from a collection of documents from the United States Navy Bureau of Medicine and Surgery. This website provides a search engine and a browse by subject option. The collection on line is incomplete, but does include some issues of United States Navy Medicine, and United States Navy Medical News Letter. Here is how the webpage describes the fuller archives:

“A historical component has existed at the US Navy’s Bureau of Medicine and Surgery since May 1907 with the establishment of the Publications Office. In addition to producing The Naval Medical Bulletin, the Publications Office was responsible for producing occasional historical monographs, and maintaining a historical archive. Today the Office of Medical History’s mission has evolved to preserve and promote the history and heritage of the Navy Medical Department while serving the needs of our customers. The collection consists of publications, public records, manuscripts, personal papers, hospital plans, Navy Hygiene Museum records, biographical files, subject files, facility files, films, videos, photographs, prints, drawings, and artifacts. The OMH currently consists of over 100 collections covering over 1,000 linear feet and is staffed by a historian and an archivist.”

So apparently, more is available at the archive than is available on line. Perhaps in the fullness of time, when there is no more asbestos litigation, the archives will be fully digitized. Of course, the ship has sailed on most civilian and military asbestos exposure cases, but the web and the paper archive will contain a great number of documents that show the government’s superior knowledge with respect to the relevant hazards of asbestos, at various times.

[1] Curiously, the Hathi Trust website states that Safety Review is protected by copyright law: “Full view is not available for this item due to copyright © restrictions. Page numbers with matches are displayed without text snippets due to these restrictions. Snippets may be available for some items if you log in.” Of course, as a governmental work and publication, Safety Review is not subject to copyright protection.

Posted in Historian Testimony, Sophisticated User | Comments Off on Asbestos and Asbestos Litigation Are Forever

Sand in My Shoe – CERTainly

June 17th, 2014

Late last week, the California Court of Appeals reversed a dismissal on the pleadings in a claimed silicosis case. Uriarte v. Scott Sales Co., NO. B244257, California Ct. App. (2d Dist. Div. June 13, 2014)(certified for publication).

The defendants supplied silica sand to plaintiff’s employer for use as sandblasting media. Plaintiff, Mr. Francisco Uriarte, alleging that he developed lung fibrosis from sandblasting, sued the defendants.  Rather than defending on the ground of adequate warning, common knowledge, employer knowledge, plaintiff’s knowledge, and the like, defendants moved to dismiss on the pleadings on the grounds of the component parts doctrine, by which a “manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.” Id.  The California Court of Appeals reversed, and held that the component parts doctrine does not apply.  Fairly predictable, and probably correct to leave the defendants to their important, substantive defenses.

The appeal, however, is noteworthy for another reason, which received no comment from the California appellate court. The Council for Education and Research on Toxics (“CERT”), along with a list of physicians and scientists, filed an amicus brief in support of reversal. The individual amici[1] and CERT sought an opportunity to participate as

“a public benefit organization whose charitable purposes are education and research regarding toxic substances… . The other amici are all physicians. epidemiologists, scientists, and scholars of science and the history of science and public health.”

Amicus Brief for CERT at 1 (Oct. 10, 2013).  This participation is their right, but the amici avow that:

“None of the amici has any financial or other similar interest in the outcome of this lawsuit.”

Id. at 1.  This claim is not so clear. The Appendix to the Amicus Brief provides background on the individual amici. Although it may well be correct that none has a financial interest in the Uriarte case itself, most of the amici have been active as testifying expert witnesses, exclusively or nearly so for claimants, in cases just like the appeal.  The individual amici have been financially compensated for their witnessing. The brief fails to mention the amici’s advocacy roles, their testifying for remuneration, or their positional, political, and professional conflicts of interest.

The appearance of impropriety, however, is much greater than suffering the court system to have expert witnesses become advocates in disguise as neutral scientists, in a silicosis case. The CERT organization, one of the amici, is a non-profit California corporation, EIN: 42-1571530, founded in 2003, with a business address at:

401 E Ocean Blvd., Ste. 800, Long Beach, California 90802-4967,

and a telephone number: 

1-877-TOX-TORT

The person answering a telephone call to this number identified “The Metzger Law Group,” which makes CERT seem like the alter ego of The Metzger Law Group.

CERT’s mission statement? Furthering scientific understanding of toxins. But lawyer Ralph Metzger is noted as the contact person for CERT!  That is the same Ralphael Metzger, with the same Metzger Law Group, at the same Long Beach, California, address, who is the attorney for Mr. Uriarte in this case. Metzger apparently controls CERT, and he appears to be involved in CERT as a corporate officer.

Representing a party, and being a corporate officer in an amicus that attempts to influence an appellate court as a neutral entity, would seem to offend fundamental fairness in the appellate process.  In Uriarte, there was probably no harm, but surely the participation of amici in appellate proceedings needs to be policed more vigilantly.

[1] Richard W. Clapp*, Ronald Crystal, David A. Eastman*, Arthur L. Frank*, Robert J. Harrison*, Ronald Melnick*, Lee Newman, Stephen M. Rappaport*, Joseph Ross, and Janet Weiss*.  An asterisk indicates that the amicus was also an amicus in a brief filed by CERT, in the Milward case. See “CERT” (July 9, 2013).

Posted in Conflicts of Interest, Sophisticated User | Comments Off on Sand in My Shoe – CERTainly

British Labor Historians Belaboring American Labor History – Gauley Bridge

October 14th, 2013

Jock McCulloch and Geoffrey Tweedale are labor historians, which means mostly they write about the issues of interest to industrial workers, from an unremittingly pro-labor and anti-management perspective.  Recently, these British writers have weighed in on American labor history, and the role of Dr. Anthony Lanza in the litigation that followed the Gauley Bridge tunnel construction.  See Jock McCulloch and Geoffrey Tweedale, “Anthony J. Lanza, Silicosis and the Gauley Bridge ‘Nine’,” 26 Social History of Medicine (2013), in press [cited as M&T]

Here is the authors’ abstract:

“Gauley Bridge was the scene of America’s biggest industrial disaster, in which hundreds of workers died from silicosis in the aftermath of the drilling in 1930–31 of a hydro-electric tunnel at Hawk’s Nest. This article scrutinises for the first time the role of Dr A. J. Lanza (a medical director of Metropolitan Life Insurance Company) in hiding the extent of acute silicosis amongst the tunnellers. Lanza and his allies in the medical profession were able to impose their own interpretation on events at Gauley Bridge. Their analysis of nine autopsies ignored the evidence of acute silicosis, in favour of one which emphasised tuberculosis, racial susceptibility, syphilis, the supposed negligence of the workforce and alleged racketeering by lawyers. The result was that acute silicosis largely disappeared from medical discourse and Gauley Bridge was denied a place in America’s national consciousness.”

McCulloch & Tweedale’s investigation into Lanza’s role in the litigation is interesting, but hardly surprising.  He was, after all, a medical director of a large insurance company, and no doubt that the Gauley Bridge litigation, which started in 1932, threatened Met Life’s interests and his own.  These British authors, however, do a much less convincing job of investigating the bias of the physicians who testified for some of the Gauley Bridge victims, and of the plaintiffs’ lawyers, who had a substantial interest in passing off tuberculosis, pneumonia, and other respiratory illnesses as silicosis.

Was Gauley Bridge Denied A Place in America’s National Consciousness?

McCulloch and Tweedale claim that the Gauley Bridge disaster hardly registered in the nation’s memory.  Their claim is demonstrably false. M&T at 2. These authors appear to make their claim to advance a conspiratorial labor view of history that fails to account for evidence from many other walks of life. They write:

“The neglect of Hawk’s Nest—which is indicative of the way that risks in the workplace and silicosis in particular have been underplayed or ignored by historians and social scientists—is unfortunate.”

M&T at 3.  While their suggestion that Hawk’s Nest, another name for the Gauley Bridge locale, has been ignored by social historians until recently has some plausibility, their implication of more widespread neglect cannot be sustained. Furthermore, their suggestion that Gauley Bridge fits into their Marxist paradigm of corporate corruption of science (citing similar works by Michaels, Castleman, Rosner, et al.) ignores the robust debate from all sectors of society, including the scientific community, organized labor, political actors, industry, government, and academia.

The Gauley Bridge disaster, and disaster it was, was memorialized in song, in literature, and most important, in a refined understanding of how extreme silica exposures can lead to rapid onset of silicosis.  These “non-labor” sources are generally ignored in the authors’ “tunnel vision.” McCulloch and Tweedale’s indictment against Lanza asserts that Lanza:

“did not seek to find a truthful explanation for the premature deaths of these men(and countless others), but instead hijacked the medical agenda to serve powerful business interests. In doing so, they certainly proved to be accomplices, but hardly unknowing ones.”

M&T at 3-4.

The historical evidence may support Lanza’s work behind the scenes in the Gauley Bridge trials, but the authors broad, overwrought implications are non-sequiturs:

“As a result, for almost half a century Hawk’s Nest was denied a place in the national consciousness and silicosis was elided as a major public health issue in the USA.”

M&T at 4.

In Song

In 1936, Josh White wrote and sang a labor protest song, “Silicosis is Killing Me”:

I said silicosis, you made a mighty bad break of me.
Awww, silicosis made a mighty bad break of me.
You robbed me of my youth and health;
All you brought poor me was misery.

Now silicosis, you’re a dirty robber and a thief.
Awww silicosis, dirty robber and a thief.
Robbed me of my right to live and all you brought poor me was grief.

I was there digging that tunnel for six bits a day;
I was there digging that tunnel for six bits a day;
Didn’t know I was digging my own grave, silicosis eating my lungs away.

I says mama, mama, mama, cool my fevered head.
I says mama, mama, come and cool my fevered head.
I’m going to meet my Jesus, God knows I’ll soon be dead.

Six bits I got for digging, digging that tunnel hole.
Six bits I got for digging, digging that tunnel hole.
Takes me away from my baby, it sure done wrecked my soul.

Now tell all my buddies, tell all my friends you see;
Now tell all my buddies, tell all my friends you see.
I’m going way up yonder, please don’t grieve for me.

In Cinema

Silicosis was addressed in the emerging art form of cinema, but perhaps most notably in The Citadel (1938), which featured Robert Donat as a physician trying to treat and prevent silicosis.  The movie was nominated for an Academy Award, for best picture in 1939; King Vidor was nominated for his directing of the movie.

Perhaps less artistic, but no less compelling than King Vidor, in 1937, Secretary of Labor Frances Perkins declared war on silicosis, toured mines, convened national conferences on the problem, and issued a film entitled, “Stop Silicosis.”

 

Secretary Perkins as she appeared in “Stop Silicosis.”

 

In Media

The Gauley Bridge disaster and aftermath were covered widely in newspapers and  magazines through the mid- to late-1930s.  McCulloch and Tweedale concede the existence “extensive national media coverage.” M&T at 14.  They complain, however, that “press interest subsided.” Id.  Before we advert to conspiracy theories and suggestions of mass attention deficit disorder, we need only remind ourselves that soon after the Congressional hearings, and the National Silicosis Conference, of the 1930s, Hirohito and Hitler occupied center stage.  Press interest is, almost by definition, ephemeral.

In Legislative Action

In 1936, Congress reacted angrily to the media coverage of the Gauley Bridge tunnel workers’ developing and dying of acute silicosis.

A contemporaneous account described the congressional hearings and quoted from the Committee’s official report:

“In a two hundred printed page report the Committee on Labor of the House of Representatives at Washington furnishes the ‘Hearings’ on House Joint Resolution 449 – the legislative vehicle which rudely trundled into the light of publicity the secrets of the silicosis tragedy at Gauley Bridge, West Virginia.  This Committee of the Congress presents the testimony of many specialists, including several from the United States Bureau of Mines and the Public Health Service, as well as of special investigators and several surviving victims of the occupational disease from this now notorious tunnel operation. The official report of the investigation

concludes:

‘That the whole driving of the tunnel was begun, continued, and completed with grave and inhuman disregard of any consideration for the health, lives, and future of the employees.

That as a result many workmen became infected with silicosis; that many died of the disease and many not yet dead are doomed to die from the ravages of the disease as a result of their employment and the negligence of the employing contractor. That such negligence was either willful or the result of inexcusable and indefensible ignorance there can be no doubt on the face of the evidence presented to the committee.’

The record presents a story of a condition that is hardly conceivable in a democratic government in the present century. It would be more representative of the middle ages. It is the story of a tragedy worthy of the pen of a Victor Hugo–the

story of men in the darkest days of the depression, with work hard to secure, driven by despair and the stark fear of hunger to work for a mere existence wage under almost intolerable conditions.”

26 Am. Labor Legis. Rev. 66 (1936)

Francis Perkins, Roosevelt’s Secretary of Labor, in 1938 convened a National Silicosis Conference, which brought together organized labor, industry, government, and academics to address the outstanding safety and health issues in industries that gave rise to unsafe silica exposures among their workers.  The National Silicosis Conference published its proceedings in a series of reports, which in turn were memorialized in textbooks of the time.  See, e.g., Jewett V. Reed & A.K. Harcourt, The Essentials of Occupational Disease 162 & n. 15 (1941) (citing National Silicosis Conference, Report on Medical Control. United States Dep’t of Labor Bull. No. 21, Part 1 (1938)).

LITIGATION:  plus ça change, plus c’est la même chose

Jock McCulloch and Geoffrey Tweedale deplore Dr. Lanza’s participation in the silicosis litigation that followed the Gauley Bridge disaster.  They go to great lengths to suggest that Lanza suppressed the diagnostic entity of “acute silicosis,” and that he was motivated by race prejudice against the African American tunnel workers and bias in favor of the insurance company for which he worked.

Their narrative of the Gauley Bridge litigation, however, is selective and fatally incomplete.  They report that the first case to go to trial in 1933, Raymond Johnson v. Rinehart & Dennis Company, resulted in a hung jury, and they offer multiple hearsay to suggest that the defense bribed several members of the jury.  Perhaps there is something to the innuendo, but these historians ignore the contemporaneous accounts that described the circus atmosphere created by the histrionics of the plaintiffs’ counsel.  Newsweek described the “legal pyrotechnics”:  the plaintiffs’ lawyers

“threw handfuls of white silica dust into the air to show jurors how it hung like an ectoplasmic pall.  The plaintiffs’ legal team arranged a court room procession of doomed silicosis sufferers — the parade of the living dead.”

“Silicosis Tunneling Through an Atmosphere of Deadly Dust” Newsweek 33, 34 (Jan. 25, 1936).  Rinehart & Dennis settled 200 cases in the aftermath of the hung jury.  The plaintiffs’ lawyers filed additional cases, but McCulloch and Tweedale fail to report that the next jury, sitting in Charleston, rejected the worker’s claim. Id.

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).

In Occupational Medicine

Before the Gauley Bridge disaster, acute silicosis was not a well-defined diagnostic condition.  A paper published in the Journal of the American Medical Association, in 1932, states that “acute silicosis” did not gain recognition until 1929.  Earle M. Chapman, “Acute Silicosis,” 98 J. Am. Med. Ass’n 1439 (1932).  The author described cases arising out of the abrasive soap manufacturing industry, where silica exposures were confounded by exposure to alkali soap powder.

Two papers in 1933, in the American Journal of Public Health, gave tentative recognition to acute silicosis, and cautiously labeled the condition, “so-called acute silicosis.”  Homer L. Sampson, “The Roentgenogram in So-Called ‘Acute’ Silicosis, 23 Am. J. Pub. Health 1237 (1933); and Leroy U. Gardner, “Pathology of So-Called Acute Silicosis,” 23 Am. J. Pub. Health 1237 (1933).

Unfortunately for McCulloch and Tweedale’s thesis, the recognition of acute silicosis, and the assessment of the prevalence of all varieties of silicosis, were confounded by the wide-spread prevalence of tuberculosis (TB).  The radiographic appearance of TB often consists of  nodular opacities, which physicians, using early, unsophisticated chest radiography, could easily confuse with silicosis.  Often workers had both TB and silicosis, and the severity of the patients’ conditions could not easily be attributed to one or the other condition.

Reading the medical literature of the day is a healthful antidote to the glib generalizations that unfairly import present-day knowledge into the discussion of silicosis in the 1930s.  In 1934, Dr. John Hawes, in the New England Journal of Medicine, noted that:

“Our ideas concerning silicosis have undergone radical changes during the past ten to fifteen years.”

John B. Hawes, II & Moses Stone, “The Effect of Acute Respiratory Tract Infections Upon Latent Silicosis,” 211 New Engl. J. Med. 1147, 1147 (1934).  Tuberculosis and tuberculosilicosis were major confounders in the clinical, diagnostic picture confronted by physicians in the 1930s and 1940s. See, e.g., Louis Benson, “Tuberculosilicosis,” 223 New Engl. J. Med. 398 (1940);  H. K. Taylor & H. Alexander, “Silicosis and Silico-Tuberculosis,” 111 J. Am. Med. Ass’n 400 (1938); G. Ornstein & D. Olmar, “Tuberculosis and Silicosis,” 2 Quarterly Bulletin Seaview Hospital 28 (1936).

An editorial in the New England Journal of Medicine, in 1936, presented a balanced view of the issues, and noted that both labor and management had important work to do to bring the safety issues under control.  Editorial, “The Problem of Silicosis,” 214 New Engl. J. Med. 794 (1936).

Effective therapies for TB became available in the 1950s.  During the 1930s, silicotuberculosis was often called “complicated” silicosis; i.e., silicosis was complicated by mycobacterial infection.  In the 1950s, with the advent of antiobiotic therapies for TB, “complicated silicosis” changed meaning to refer to advanced chronic silicosis in which small silicotic nodules had coalesced into large nodules.

Even after antibiotics became available for TB, silicosis was hardly forgotten.  Of course, the medical profession and the citizenry had other pressing issues in the 1950s: polio, an emerging epidemic of tobacco-related lung cancer, the threat of war and nuclear holocaust.  Still, silicosis remained part of the larger discussion of occupational and environmental hazards.  See, e.g., Harriet L. Hardy, “Medical Progress: Occupational Medicine,” 247 New Engl. J. Med. 473 (1951).  See also Schachtman, “Conspiracy Theories: Historians, In and Out of Court” (2013) (discussing the quantitation of publication rates about silicosis in both PubMed and in Google labs, both of which show continuing interest in, and publication about, silicosis throughout the 1950s and 1960s, into the OSHA era).

The Gauley Bridge litigation was a short-lived side show in the history of silicosis. Contrary to the McCulloch and Tweedale’s narrative, however, acute or rapid-onset silicosis became a well-accepted diagnostic entity.  See, e.g., Lewis Gregory Cole & William Gregory Cole, Pneumoconiosis (Silicosis) – The Story of Dusty Lungs – A Preliminary Report (N.Y. 1940); Jewett V. Reed & A.K. Harcourt, The Essentials of Occupational Disease 164 (1941); Rutherford T. Johnstone, Occupational Medicine and Industrial Hygiene 337 (1948); Donald Hunter, Diseases of the Occupations 837, 849 (1955).

Prevalent Racketeering

McCulloch and Tweedale concede that accurate diagnoses of silicosis require a chest X-ray (which labor radicals and plaintiffs’ lawyers in the 1930s disputed), as well as well as careful clinical examination and full occupational and personal medical histories. M&T at 5.  Although they note the diagnostic difficulties, the authors miss the lack of specialization and experience among many general practice physicians to make an accurate diagnosis of silicosis.  They acknowledge that the use of X-rays in diagnosis was still contested in the early 1930s.  M&T at 11.  The situation in the 1930s was thus ripe for specious claiming.

What McCulloch and Tweedale also seem to miss in their focus on a few compelling Gauley Bridge cases is that the diagnostic difficulties and confounders were a prescription for fraud and scamming on the wider stage.  In deploring management’s lobbying for workmen compensation laws, they ignore that many labor unions concurred.  In the context of silicosis hazards, plaintiffs faced serious legal hurdles against their employers, in the form of limitations, assumption of risk, fellow worker, and contributory negligence defenses.

In 1936, in the pages of the New England Journal of Medicine, Dr. Hawes commented upon the widespread scamming and racketeering that accompanied the serious silicosis cases in West Virginia.

“Very few physicians are aware of the extent to which claims for alleged injury and disease due to dust are being brought before courts and industrial accident boards in this country. The situation in this regard amounts to a ‘racket’ compared with which others, notorious in New York, Chicago and elsewhere, fade into insignificance.   Unscrupulous lawyers have their ‘runners’ on the lookout for any employee who is exposed to dust in the course of his work, no matter what the nature of the dust nor however harmless it may be, who happens to come down with a cough or a cold or indeed with almost any other illness and then and there try to persuade him to bring suit. Unfortunately, in too many instances, physicians partly through ignorance and partly through an honest desire to help their patients and perhaps on the general theory of ‘soaking the insurance company’ are willing to testify that the dust to which this individual had been exposed was entirely responsible for his condition. In nearly 100 per cent of such cases the doctor takesat its face value the word of the worker and his friends as to the dust hazard without any real knowledge of the situation obtained from a personal inspection of the plant or at least by interviewing those in a position to know.”

John B. Hayes, II, MD, “Silicosis,” 215 New Engl. J. Med. 143 (1936).

Although the medical understanding of silicosis has advanced tremendously, the racketeering, alas, is still with us to this day.  See In re Silica Products Liab. Lit., 398 F. Supp. 2d 563 (S.D. Tex. 2005) (Jack, J.) (describing the attorneys’ manufacturing fraudulent silicosis claims in MDL 1553).  Of course, there are real silicosis cases, but overwhelmingly they are “simple” silicosis cases, typically unaccompanied by impairment or disability.  Tuberculosis is now rarely a confounder, but histoplasmosis and coccidioidomycosis are important confounders of simple silicosis in some areas of the United States.

The Charge of Racism

McCulloch and Tweedale point out that Lanza formed an opinion that black workers were more prone to TB and silica-related disease because of their race and prevalent syphilis.  To be sure, there was (and still is) much race, ethnic, and religious prejudice in the United States.  Lanza’s views on race, however, are irrelevant to the ultimate acceptance of acute or rapid-onset silicosis as an occupational hazard of extremely high-levels of occupational silica exposure.  The race theory appeared to play no role in the civil litigation in West Virginia, and it receives no mention in the many textbooks that describe and accept acute silicosis as a diagnostic entity. As for the continuing existence of race prejudice, McCulloch and Tweedale might have noted that Dr. Gerrit Schepers, who testified for plaintiffs in asbestos and silica cases in the United States for decades, described young black African children as “pickaninnies.”  See Gerrit Schepers, “Discussion,” 132 Annals N. Y. Acad. Sci. 246, 247 (1965). It is a relatively easy, ad hominem game to play, to dismiss a scientist’s views because of his irrational race prejudices. Lanza may have been influenced by his racial theories in acting behind the scenes of the Gauley Bridge litigation, but McCulloch and Tweedale would be hard pressed to find them articulated in Lanza’s textbooks or articles.

The Rosner-Markowitz Hypothesis

The authors note that Lanza, with Metropolitan Life, helped to form the Air Hygiene Foundation (later the IHF), and they insinuate that these organizations were involved in various nefarious actions:

“The AHF (later named the Industrial Hygiene Foundation) was an enduring and powerful industry group, which helped defuse the silicosis crisis by helping companies defend compensation claims, by conducting industry-sponsored industrial hygiene studies and by assuaging public fears. This organisation, in effect, took the dust problem away from the trade unions and the public and sequestered it inside laboratories and private gatherings, where health issues could be mediated by experts and government, safe from untoward publicity. Industry lobbying was able to influence the shaping of state compensation laws for silicosis, which protected big business.”

M&T at 15-16.  These insinuations are borrowed, with attribution, from fellow labor historians, David Rosner and Gerald Markowitz.  The claims are a mixed lot.  For instance, why would not an industry work to help companies defend compensation claims?  Organized labor worked to help its members prosecute claims.  Surely McCulloch and Tweedale do not believe that every claim made was valid or that every defense frivolous.

Assuming that the AHF/IHF had some role in pressing for state workman compensation laws, then it was aligned with many labor unions that pushed for similar reforms.  As noted above, plaintiffs were often at a serious disadvantage in litigation against employers, and they frequently were turned out of court on grounds of limitations, contributory negligence, fellow-worker rule, or assumption of risk.  Plaintiffs needed certainty in coverage for occupational disease, not a jury lottery system, and employers needed some reasonable limits on the extent of liability.  Workman’s compensation was a compromise, bound not to satisfy everyone.

As for helping companies institute industrial hygiene measures and conduct hygiene studies, the AHF/IHF was helping industry live up to its obligations to provide a safe workplace.  The United States government, under the Presidency of Franklin Roosevelt, was involved in similar measures in the 1930s.  See, e.g., United States Dep’t of Labor, Silicosis Prevention:  Dust Control in Foundries (1939).

McCulloch and Tweedale’s accusation that the AHF/IHF “in effect, took the dust problem away from the trade unions and the public and sequestered it inside laboratories and private gatherings, where health issues could be mediated by experts and government, safe from untoward publicity,” is, of course, borrowed directly from the writings of Rosner and Markowitz.  The accusation does not gain any credibility from being repeated.  Involving scientists and competent laboratories that would study the issues and publish their results was a responsible step for industry to take.  Much of the early political rhetoric about silicosis was driven by personal, subjective anecdotes and uncontrolled observations.  The involvement of scientists was a step followed by labor unions, as in the example of the asbestos insulation workers union hiring Dr. Irving Selikoff in the 1950s to investigate their concerns about occupational cancer risk.

There was much to be gained by de-escalating the emotion and vitriol of the labor-management conflicts of the 1930s, although the de-escalation was unsatisfactory to radicals on both sides.  The fact is that the labor unions remained interested in, and concerned about, silicosis, both before and after World War II.  Labor unions had their own private gatherings, and engaged in rent-seeking from state and federal agencies, as did industry.  After the passage of the Occupational Health and Safety Act of 1970, labor’s interests generally prevailed at the agency level.

“The result was that acute silicosis largely disappeared from medical discourse and Gauley Bridge was denied a place in America’s national consciousness.” M&T at Abstract.  This causal conclusion is demonstrably wrong.  If you like conspiracy theories, McCulloch and Tweedale’s history might well be self-referentially labeled, Deceit and Denial, after the work of their American counterparts, Rosner and Markowitz.

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Sand in My Shoes

October 4th, 2012

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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International Labor Organization – What Really Matters in Occupational Safety

May 20th, 2012

Created in 1919, the International Labour Organization (ILO) is now part of the United Nations.  The ILO, with its motto, “Promoting Jobs, Protecting People,” exists as a forum for governments, employers, and workers, to shape policies and programs to advance safe, dignified work.

The ILO has been involved in many aspects of protecting workers against the dust diseases of the lungs.  Every United States lawyer who litigates pneumoconiosis claims is, of necessity, familiar with the ILO’s system for standardizing the classification and interpretation of plain film chest radiographs for the pneumoconioses.  Last year, in conjunction with the National Institute of Occupational Safety and Health (NIOSH), the ILO reissued its long-awaited guidelines for digital radiographs.  Guidelines for the use of the ILO International Classification of Radiographs of Pneumoconioses, revised edition 2011 (Nov. 17, 2011).

The ILO system for classifying chest radiographs is used around the world for health surveillance, epidemiologic studies, and in some places, for assessing extent of pneumoconiotic disease and compensation for silicosis, asbestos-related diseases and coal workers’ pneumoconiosis. See ILO fact sheet about the 2011 edition of the classification system.

The ILO standard radiographic images are now available in DICOM Format on DVD from the ILO.  In January 2012, NIOSH published a “Notice of Proposed Rulemaking – Amendments to Specifications for Medical Examinations of Underground Coal Miners” to modify regulations of the Coal Worker’s Health Surveillance Program (CWHSP), to retain the use of plain film, while permitting the use of digital radiography for the assessment of coal worker’s pneumoconiosis.

* * *

The ILO has done important work in other areas as well.  If you are looking for a single publication that captures the key principles of providing a safe workplace, you would be hard pressed to find a better source than the ILO’s text on occupational safety and health. Benjamin Alli, Fundamental principles of occupational health and safety (2d ed. 2008).    The first edition, from 2001, is available for free from the ILO’s website. Benjamin Alli, Fundamental principles of occupational health and safety (1st ed. 2001).

The ILO describes the text as

“useful for legislators and labour inspectors, those involved in policy-making (governments, and employers’ and workers’ organizations) and those within enterprises who are concerned with the practical implementation of measures to promote and protect the safety and health of workers (managers, supervisors, workers’ representatives), as well as academic institutions.”

What is remarkable about the ILO text is the even-handedness in which it describes the respective responsibilities of the employers and workers for the promotion and preservation of workers’ health.  The duties of employers are described as including the duty to:

  • “inform  the  workers  of  all  the known hazards associated with their work, the health risks involved and the relevant preventive and protective measures;
  • take appropriate  measures  to eliminate or minimize the risks resulting from exposure to those hazards;
  • provide  workers  with  suitable protective equipment, clothing and  other  facilities  where  adequate protection against risk of accident or injury to health, including  exposure  to  adverse conditions, cannot be ensured by other means… .”

Id. at page 95.   In practical terms, the ILO specifies the “work practices and organizational methods” to reduce or eliminate safety and health hazards.  Personal protective equipment, such as respirators, is a last resort:

“When none of the above approaches is feasible, or when the degree of safety achieved is considered inadequate, the only solution is to provide exposed persons with suitable personal protective equipment and protective clothing. This is the final line of defence and should be used only as a last resort, since it entails reliance on active cooperation and compliance by the workers. Moreover, such equipment may be heavy, cumbersome and uncomfortable, and may restrict movement.

Employers should consult workers or their representatives on suitable personal protective equipment and clothing, having regard to the type of work and risks. Furthermore, when hazards cannot be otherwise prevented or controlled,  employers should provide and maintain such equipment and clothing as are reasonably necessary, without cost to the workers. The employer should provide the workers with the appropriate means to enable them to use the individual protective equipment. Indeed, the employer has a duty to ensure its proper use. Protective equipment and clothing should comply with the standards set by the competent authority and take ergonomic principles into account. Workers have the obligation to make proper use of and take good care of the personal protective equipment and protective clothing provided for their use.”

Id. at 97.

Remarkably, what is absent from the ILO text is any rhetoric or rationale in support of warnings on products from remote vendors.  Judges and legislators might well take note that the dissemination of information about hazards in a workplace is so dependent upon employers in the first instance, and workers in the next, that it will be a rare case when a supplier of a raw material or commodity will actually have the opportunity to play a substantial role in causing a chronic over-exposure occupational disease.  The focus of the American law on warnings from a remote supplier is an anomaly created by the legislative immunity accorded employers in the tort system.

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