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Throughout the 20th century there were reported cases of “mixed dust” lung diseases. Though there are numerous lung-scarring diseases specific to a particular substance (such as asbestosis from asbestos exposure and silicosis from silica dust exposure), often an individual will suffer from a “pneumoconiosis” (dust-caused lung disease) of mixed etiology. Mixed-dust disease claims have the potential to get around both the asbestos exclusion now common to commercial general liability policies and asbestos disease-specific legislation. Personal injury suits for mixed-dust pneumoconiosis have been filed in years past, and continue to be filed today. With legislation pending before the U.S. Senate proposed to bar all future filing of asbestos injury claims, we may see a new wave of bodily injury cases that would have had alleged asbestosis in the past filed under the rubric of mixed dust. Pneumoconiosis is a generic term for any injury to the lungs caused by breathing in dust. It is often seen in occupational settings where workers have repeated, long-term exposures to workplace dust. Typically, the damage consists of scarring in the interstitial spaces between cell layers in both lungs, and can cause shortness of breath and coughing due to restriction in the airspaces. Further, pulmonary lung fibrosis, regardless of the source, has been associated with increased risk of cancer of the lung (Demosthenes Bouros et al., “Association of Malignancy with Diseases Causing Interstitial Pulmonary Changes,” 121 Chest 1278 (April 2002 ). Beyond the better-known asbestosis and silicosis, there is a growing multitude of inorganic dusts known to cause interstitial lung disease, such as talc (talcosis), diatomaceous earth, coal dust (coal workers’ pneumoconiosis), kaolin (kaolinosis), mica (aluminum silicate fibrosis), polyvinyl chloride, beryllium (berylliosis), antimony and many others. There are also lung-scarring diseases attributed to organic dusts, usually because of molds found in the dust: Farmer’s Lung, Mushroom Worker’s Lung, Maple Bark Disease, Bird Breeder’s Disease and Cheese Washer’s Lung to name just a few. Albert Solomon and Louis Kreel, Radiology of Occupational Chest Disease (Springer Verlag 1989.) Among the more interesting reported cases of dust-caused lung diseases, there are: graphite pneumoconiosis (Luca Mazzucchelli et al., “Nonasbestos Ferruginous Bodies in Sputum From a Patient with Graphite Pneumoconiosis, A Case Report,” 40 Acta Cytologica 552 (1996)); “Hut Lung” in African women who hand- grind corn between stones (Joe Grobbelaar and Eric Bateman, “A Domestically Acquired Pneumoconiosis of Mixed Aetiology in Rural Women,” 46 Thorax 334 (1991); and numerous instances of lung scarring resulting from the use of antimony, cadmium, titanium, cobalt, iron dust, zeolite, chromite and zirconium. Hard to narrow down Indeed, with the many different dusts known to cause lung disease found in industrial and commercial workplaces, it is remarkable that a specific diagnosis other than “mixed-dust pneumoconiosis” can be made. Most of these dusts cause interstitial scarring in the lungs that can be difficult to differentiate on a chest X-ray. When a worker has exposures to airborne dusts of asbestos, quartz (silica), mica and iron fumes, it is improbable that a physician will be able to discern which portion of scarring is caused by which source. Cases of mixed-dust lung disease have been reported in workers’ compensation claims though the years, including in shipyard workers (asbestos, silica, fiberglass, miscellaneous metal-based fumes); crane operators (coal dust, silica, asbestos); brick layers (silica, asbestos, cement dusts); metal mill workers (asbestos, zinc, cadmium); and steel mill operators (silica, asbestos, metal fumes, carbon dust, mica, graphite, clay). There also have been reports of Dental Technician’s Pneumoconiosis due to the inhalation of silica and vitallium dusts. Mixed-dust claims were pending in the 1960s, and have been reported through the years since. In 1963, the Appellate Division of the Supreme Court of New York affirmed an award to a disabled gypsum mine worker diagnosed with mixed-dust pneumoconiosis. See William Groff v. Workers Compensation Board (National Gypsum Co.), 239 N.Y.2d 738 (1963). Numerous mixed-dust claims, both for workers compensation and in third-party tort, have been filed throughout the country since. Oddly sized particles Particles more than five microns in length tend to be big enough to be caught in the upper airways and eliminated out through the nose and mouth. Particles less than one micron are small enough to be dealt with by the body’s immune response macrophage cells. Particles between these sizes can accumulate in the lungs, however, and wind up in the lung parenchyma, causing scarring. Many of the inorganic dusts, such as asbestos and silica, continue to cause scarring in the lungs long after they are inhaled. A diagnosis of mixed-dust pneumoconiosis is typically made by obtaining an exposure history from the plaintiff, and a review of chest X-rays and pathology material. An expert radiologist can sometimes make a judgment call as to the source of the lung fibrosis based on the appearance of chest X-rays. For example, asbestosis tends to appear as diffuse elongated opacities, and silicosis more typically shows up as rounded nodular opacities. However, it is common that an individual set of chest X-rays is not wholly consistent with just one or the other source of fibrosis. Workers in industrial and construction settings all too often have exposures to more than one form of pneumoconiosis-causing dust. Ideally, a pathologist is provided sufficient lung tissue to do a digestion analysis (where the organic material is dissolved in bleach leaving the inorganic particulates), though less invasive techniques are usually more appropriate for living patients. Evaluation and identification of the particles is possible by observation under scanning electron microscope. A finding of elevated amounts of more than one form of dust known to cause lung scarring is supportive of a diagnosis of mixed-dust pneumoconiosis. The association between inhalation of asbestos fibers and lung disease was known by the 1960s in the United States. In the early 1970s, with the formation of the Environmental Protection Agency, asbestos content in materials was closely regulated, and by 1980 only a rare few products continued to contain asbestos in the United States. During the 1980s there was an explosion of personal injury litigation for workers exposed to heavy doses of asbestos. Though asbestos-containing products have been rare since the 1980s, the amount of litigation resulting from exposure to the products put in place more than 30 years ago has grown consistently every year. According to a study by Rand in 2002, more than 600,000 asbestos claims have been filed, costing more than $54 billion, and up to another 2.4 million claims could be filed in the years ahead. Stephen Carroll et al., Asbestos Litigation Costs and Compensation, an Interim Report (Rand 2002). In 1982, there had been 21,000 asbestos claims filed, with a total cost of $1 billion, three defendants in bankruptcy and about 300 defendants. As of 2002, there were 600,000 suits with a total cost of $54 billion, 60 bankruptcies resulting from the litigation and 6,000 defendants. Id. at page 81. There has been an unfortunate domino effect, whereby the larger and more culpable companies have sought bankruptcy protection, and plaintiffs’ attorneys thus seek out more and more obscure small defendants, such as local contractors and suppliers, to make up the difference. Asbestos litigation now touches almost every major area of industry, companies large and small. Even financial institutions and pharmaceutical companies, which thought they were immune, find that they get premises liability suits from plaintiffs who claim exposure at their premises. For example, the local hardware store gets sued because a plaintiff contends that he once bought a sack of drywall joint compound from them in the 1960s, or the local plumbing contractor finds he is a defendant in 300 cases because he installed asbestos gaskets between lengths of pipe 40 years ago. By the sheer nature of the injury from asbestos or silica exposure, the damage done in the lungs upon initial exposure continues to cause damage continuously from that initial exposure forward. Many states have determined that this kind of injury is a “continuous trigger” of insurance policies providing coverage to the insured defendant from the first exposure date forward. See e.g., Montrose Chemical Corp. v. Superior Court, 6 Cal. 4th 287 (1993). As a result, insurance carriers are on the hook for providing a defense under policies that they sold years or decades previously. These early policies were written with no expectation that they would be triggered 30 or 40 years after they were in effect, and sometimes have “per occurrence” limits, but no aggregate limit. Insurance repercussions Today, almost all general liability business policies offered include an absolute asbestos exclusion. Asbestos exclusionary language was a response to asbestos litigation in the 1980s, and by the mid-1990s became a standard, though even in 2003 some policies do not include the exclusion. The interesting question, then, is whether the asbestos exclusion clause in a typical insurance policy would exclude coverage for a mixed-dust claim. It is, of course, impossible to determine whether an exclusion does or does not apply in a vacuum of facts, but generally, if a plaintiff’s complaint specifies a personal injury resulting, even in small part, from exposure to asbestos, then the standard exclusionary language would likely be applicable, depending on the language of the exclusion. If the plaintiff’s complaint alleged mixed dust generally, without specific reference to asbestos, a general duty to defend the insured under the policy would likely be triggered, but either way, the end result would be the same. Should the evidence later indicate that asbestos was a contributing cause to the injury, the insurer might be able to deny coverage for indemnity. Senator Orrin Hatch, R-Utah, introduced a bill, S. 1125, entitled the Fairness In Asbestos Resolution Act (FAIR) in May. The bill sets up a managed fund of more than $100 billion for compensation of asbestos plaintiffs, to be paid on a sliding scale based on their medical claims, without any finding of fault to any defendant. In exchange for the no-fault compensation system, plaintiffs are barred from filing a separate lawsuit. Half the fund is to come from industry, and the other half from insurers. The bill came out of the judiciary committee in July, and will be taken up for discussion in the full Senate now that the August recess has passed. A political solution? As good as the bill sounds, there are critics on both sides. The insurance industry has expressed concern at the steep price, and some members of the insurance industry have indicated that the total amount (currently proposed at $153 billion) is simply too much. On the other side, unions and trial lawyer groups have balked, pointing out that plaintiffs in litigation can do better. (The bill proposes payouts based on a 10-level grading system, with the top dollar amount of $1 million going to an individual with mesothelioma-a cancer of the lung lining). The filing of asbestos claims as mixed-dust claims would get around the proposed litigation as it is currently written. There are cases currently pending as asbestos suits in which the plaintiff actually has mixed sources of lung injury. Under the current system, it is easier for plaintiffs to proceed with claims strictly for asbestos against the usual asbestos defendants than to attempt to make out a mixed-dust claim against the sources of some of the more obscure contributors to the injury. Under the FAIR bill, individuals with some demonstrated pleural scarring around the lungs but small amounts of injury within the lungs would get nothing and individuals with lung fibrosis would get a payment well below what would be recovered in a third-party tort claim. Should the Hatch asbestos bill become law, it is probable that there will be a corollary increase in the new filings of mixed-dust pneumoconiosis cases. Not only are such cases based on legitimate science, they are not new. Mixed-dust pneumoconiosis is an established diagnosis that is probably underdiagnosed today. As a result of insurance and industry efforts to minimize asbestos-related liability, it is likely that many would-be asbestos plaintiffs will elect to pursue their cases as mixed-dust claims. Mark A. Love and Scott Goldberg are partners at, respectively, the San Francisco and Los Angeles offices of Selman Breitman. They each head their office’s toxic tort litigation group.

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