/>iThe dangers of workers developing silicosis amid the fabrication of engineered stone has become a topic heavily discussed in the news and elsewhere recently. Silicosis is a lung disease that develops from the exposure and inhalation of silica particles.
On Oct. 2, National Public Radio (“NPR”) aired a story entitled “Workers Are Falling Ill, Even Dying, After Making Kitchen Countertops.”[1] The story discussed the growing fear that “thousands of workers in the United States who create countertops out of what's known as ‘engineered stone’ may be inhaling dangerous amounts of lung-damaging silica dust, because engineered stone is mostly made of the mineral silica.” On Oct. 7, the United States House of Representatives Committee on Education and Labor penned a letter to Secretary of Labor Eugene Scalia echoing the concerns about silica exposure, and requested an update and proposed action.
Workers have brought claims alleging they developed silicosis after exposure to silica dust from polishing, manufacturing, grinding, and fabricating engineered stone.[2] While these cases have been infrequent thus far, these stories are important considerations for employers and the engineered stone industry, as they raise potential workplace-safety considerations as well as the risk of litigation.
Employers have some guidance from Occupational Safety and Health Administration (“OSHA”) regulations concerning workplace silica exposure. OSHA issued a hazard alert about exposure to silica in 2015.[3] However, in 2017, OSHA backed away from its National Emphasis Program concerning respirable crystalline silica.[4] Yet, the final rules promulgated by OSHA in 2016 regarding occupational exposure to silica remain in effect.[5]
Lawsuits concerning silica exposure are not new to the toxic tort landscape. There are several concerns to be mindful of concerning potential claims involving silica exposure. Mass toxic tort litigation concerning silica exposure ensued in 2005 regarding some 10,000 claims of silica-related personal injury claims. [6] However, in that multidistrict litigation (“MDL”), Judge Janis Graham Jack found the injuries claimed by plaintiffs were supported by litigation-driven screening processes to bolster claims of a “phantom epidemic.” Judge Jack’s opinion resulted in the dismissal of lawsuits across the country in state and federal courts involving silica-related personal-injury claims. The 2005 MDL illustrates an issue of which employers and the manufactured stone industry should be aware of the potential for dubious injury claims not supported by the evidence.
Another potential issue lurks in a seemingly reliable source. The NPR story detailed the Center for Disease Control and Prevention’s (“CDC”) Sept. 27 Morbidity and Mortality Weekly Report, which suggested stone fabrication workers—especially those working with engineered stone—were at risk of developing silicosis. The CDC’s case report examined only 18 silicosis cases in stone fabrication workers in California, Colorado, Texas, and Washington from 2017-2019. It is important to understand that such case reports are not scientific research studies and do not analyze variables and controls; they are only to generate hypotheses for further studies. Courts place low value on case studies in litigation, as addressed in multidistrict litigation regarding claims of exposure to zinc in denture adhesive products. See In Re Denture Cream Products Liability Litigation, 795 F. Supp. 2d 1345 (S.D. Fla. 2011)(citing Casey v. Ohio Medical Products, 877 F. Supp. 1380, 1385 (N.D.Cal.1995))(“Case reports may provide anecdotal support, [but] are no substitute for a scientifically designed and conducted inquiry.")
While OSHA standards remain in place to give employers and the engineered stone industry guidance about silica exposure, given the recent attention to the suggested health implications, the risk for litigation looms. Even when employers and those in the engineered stone industry adhere to workplace safety regulations, lawsuits can happen.
[1] Workers Are Falling Ill, Even Dying, After Making Kitchen Countertops, Nell Greenfield Boyce, Morning Edition, National Public Radio, October 2, 2019, https://www.npr.org/sections/health-shots/2019/10/02/766028237/workers-are-falling-ill-even-dying-after-making-kitchen-countertops
[2] Ublester Rodriguez et al. vs. Breton USA Customers Service Corp., et al., No. 2011-55206, in Harris County's 333rd District Court; Popular Quartz Countertops Pose a Risk to Workers, Barry Meier, New York Times, April 1, 2016, https://www.nytimes.com/2016/04/02/business/popular-quartz-countertops-pose-a-risk-to-workers.html.
[3] Occupational Safety and Health Administration. (2015). Hazard Alert: Worker Exposure to Silica, during Countertop Manufacturing. Retrieved from https://www.osha.gov/Publications/OSHA3768.pdf
[4] Occupational Safety and Health Administration. (2017). Cancellation of CPL 03-00-007, National Emphasis Program - Crystalline Silica (Directive No. CPL 03-00-007). Retrieved from https://www.osha.gov/enforcement/directives/cpl-03-00-007-0
[5] See Respirable crystalline silica, 29 C.F.R. § 1926.1153.
[6] In Re Silica Products Liability Litig., 2005 WL 1593936 (S.D.Tex.).
