Traditionally, toxic tort related claims are brought under product liability actions for negligence, breach of warranty, and strict liability. [1] Asbestos has historically been the center of toxic tort litigation. The number of asbestos-related claims filed nearly tripled during the 1990’s and in 2000 alone, with major corporations reporting upwards of 500,000 new asbestos claims filed against them.[2] Other substances, however, are increasingly becoming prevalent in toxic tort litigation.
Silica, which exists in two forms as either crystalline (c-silica) or amorphous (noncrystalline; a-silica), is a substance with rising numbers seen in toxic tort litigation. Exposure to c-silica may occur in industrial and occupational settings and was also recognized as an occupational inhalation hazard by the Environmental Protection Agency in 1996.[3]
In 2017, the Appeals Court of Massachusetts affirmed a decision finding that a third party, rather than the defendants, were contractually responsible for defending and paying certain claims involving workers’ exposure to silica in coal mine dust while using respirators manufactured by the third party.[4] In Cabot, former coal mine employees filed suit alleging that while using the defendant’s respirators prior to 1995, they had developed medical conditions including silicosis and coal workers’ pneumoconiosis, due to exposure to coal mine dust which contains silica in crystalline form.[5] The Court made distinctions between dictionary definitions and industry definitions of silica to clarify whether the phrase “commercial silica sand and sand products used for sandblasting” was synonymous with “crystalline silica fragments and dust” that the former coal miners had been exposed to.[6] The Court further relied on experts to determine that if the respirator manufacturers wanted to enter a contract specifically concerning commercially produced “silica sand”, they would have used that particular phrase, thereby implicating the third party.[7]
Despite the rise in silica related toxic tort litigation, mitigating factors remain in place. Some states have begun enacting laws that set medical eligibility guidelines for potential plaintiffs who want to file a lawsuit over exposure to silica.[8] In these states, plaintiffs whose health conditions do not meet the eligibility guidelines would have to wait until their symptoms and/or diagnoses meet the guidelines before they can bring a lawsuit for silica exposure.[9]
Additionally, in 2005 U.S. District Court Judge Janis Jack issued an opinion rejecting the validity of thousands of medical reports generated by screenings as part of a multi-district litigation involving 10,000 claims of injury from exposure to silica dust.[10] Justice Jack’s use of a Daubert hearing in a mass tort proceeding lead to a finding that “lawyers, doctors and screening companies were all willing participants” in a scheme to “manufacture . . . [diagnoses] for money.”[11] This case is a significant contributing factor in mitigating frivolous claims in mass tort proceedings against manufacturers in silica litigation as well as other toxic tort litigation.
[1] Sean P. Wajert, Product Liability Claims, Defenses, and Remedies, Practical Law Practice Note 2-504-171
[2] Michelle J. White, Understanding the Asbestos Crisis, (May, 2003) (unpublished manuscript) (on file with Yale Law School)
[3] Toxicological Profile for Silica, Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/ToxProfiles/tp211-c1.pdf
[4] Cabot CSC Corp. v. Aearo Techs. LLC, 86 N.E.3d 246 (Mass. App. 2017)
[5] Id.
[6] Id.
[7] Id.
[8] Kathleen Michon, Legal Claims in Silica Lawsuits, Nolo Legal Encyclopedia, available at https://www.nolo.com/legal-encyclopedia/silica-silicosis-health-risks-litigation-32206-2.html#:~:text=Like%20most%20toxic%20tort%20actions,is%20called%20a%20class%20action.
[9] Id.
[10] Lester Brickman, Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, 29 Cardozo L. Rev. 513 (2007)
[11] Id.
