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After seeing the effect of asbestos litigation on the courts and the economy — such as bankruptcy filings and the economic fallout that ensues — few want to see a repeat with silica litigation. On the federal level, a comprehensive bill has been introduced to address the current and future handling of asbestos, silica and mixed dust claims. The original proposal sought to create a $140 billion national trust fund for asbestos claims. A subsequent draft, which came out of committee May 26, added silica and mixed dust claims to the agenda. But while federal measures work their way through the system, states are implementing their own guidelines to control silica litigation. Some changes are being made through state court decisions, others through legislation. Some are already in place, while others are still in the works. An overview of some states’ silica litigation-related decisions and tort reforms should prove useful to the litigator who wants to know what trends are developing that may affect the litigator’s practice. Ohio This state was the leader of tort reform for silica litigation, becoming the first state to place limitations on a plaintiff’s right to sue for exposure to silica through passage of its Amended Substitute House Bill Number 342, which went into effect Sept. 1, 2004. Under this bill, plaintiffs who want to file a claim based on a nonmalignant condition must first make a prima facie showing that he “has a physical impairment, that the physical impairment is a result of a medical condition, and that the person’s exposure to silica is a substantial contributing factor to the medical condition.” See �2307.85(B). This showing must include a detailed exposure, medical, and smoking history and a medical examination as well as a pulmonary function test must be performed. In addition, under � 2307.85(B)(3)(a), the plaintiff must first establish that he “has a permanent respiratory impairment rating of at least class 2 as defined by and evaluated pursuant to the AMA guides to the evaluation of permanent impairment.” Settlement of a silicosis claim or mixed dust disease claim does not preclude a plaintiff from later filing a claim for a silica-related cancer injury. See �2307.88(C). Also, with claims for nonmalignant conditions, no award may be made to compensate for fear of or risk of developing cancer. See �2307.88(B). To establish a prima facie case, the doctor issuing the opinion must be “a board certified internist, pulmonary specialist, oncologist, pathologist, or occupational medicine specialist.” �2307.84(H)(3)(I)(1). The doctor must have treated or be currently treating the claimant, and that doctor (and his organization) can not spend more than 25 percent of his professional efforts in providing consulting or expert services in tort actions. See �2307.84(H)(3)(I)(2) and � 2307.84(H)(3)(I)(4). For smokers who develop lung cancer, �2307.85(C) requires “a diagnosis by a competent medical authority that the exposed person has primary lung cancer and that exposure to silica is a substantial contributing factor to that cancer.” They must also provide radiological or pathological evidence along with evidence of substantial exposure to silica. There is a 10-year latency period required for lung cancer claims, but this presumption may be rebutted by the plaintiff, who has the burden of proof. The newly enacted Revised Codes also cover wrongful death claims. These claims must first establish that the death and physical impairment of the exposed person resulted from a medical condition that was substantially caused by that person’s exposure to silica. A medical diagnosis, the 10-year latency period and requirement of radiological or pathological evidence of silicosis are applicable. Should a plaintiff try to avoid these requirements by instead alleging mixed dust exposure and injury, there is �2307.86 to comply with. Such plaintiffs must first establish a prima facie case and meet the same requirements as if they claimed silica exposure alone. Whether the claimant is alleging silica exposure or mixed dust exposure, the prima facie evidence must be filed with the court within 30 days of plaintiff’s filing a complaint or any other initial pleading. Thereafter, defendants have 120 days to file a motion to challenge the evidence. Section 2307.89 provides limited liability protection to premise owners. Claims can be filed against a premise owner only if the exposure occurred on the premises. Plaintiffs are required to prove that the breathing level of silica or other mixed dust exceeded limits adopted by the state. Furthermore, an invitee who performs work that involves silica or other mixed dust must prove that the premises owner had superior knowledge of the dangers of silica or other mixed dust to that of the invitee’s employer, if the invitee’s employer held itself out as being qualified to perform the work. The statute covers claims of tortious acts as well as guidelines for piercing the corporate veil. See �2307.901 and 2307.902. In addition to the tort reform, the courts are creating special dockets to deal with silica-related lawsuits. Mississippi Mississippi has seen an excessive amount of silica-related lawsuits. In an attempt to alleviate the strain caused by this and other tort injury litigation, Mississippi has recently passed tort reform laws. Starting Jan. 1, 2003, Mississippi began capping punitive damage awards. In addition, in prior years, Mississippi courts had allowed plaintiffs from other states to join in a Mississippi case if they had similar claims. In 2002, that situation changed when the state passed laws requiring plaintiffs to have a direct connection with Mississippi before they can bring or join an action there. Texas Case law paved the way for silica litigation to take off in Texas. The state has seen two important verdicts for plaintiffs in silica litigation. In Tompkins v. U.S. Silica Company, 92 S.W.3d 605 (Tex. App. 2002) (2001), the jury imposed liability on a defendant based on the theory of failure to warn, and in Humble Sand & Gravel, Inc. v. Gomez, 46 S.W.3d 170 (Tex. 2004), the sophisticated user defense was severely questioned in situations where employees of so-called sophisticated users, who are not necessarily told of dangers by their employers, are involved. Since these cases were decided, the Texas legislature has passed tort reform measures aimed at asbestos and silica litigation. Now, there are medical criteria that must be met before suits can be entertained, which include a qualifying medical report and pulmonary function tests showing a physical impairment. Minnesota In Gray v. Carpenter Brothers Inc., 676 N.W.2d 268 (Minn. 2004), the Minnesota Supreme Court opened the door to the handling of litigating silica claims. In Gray, the court dealt with the summary judgment motion brought by a supplier of silica in a product liability claim in which the plaintiff claimed negligence, strict liability for failure to warn, and breach of warranties of merchantability and fitness for intended purpose. The questions arose as to whether the plaintiff’s employer was a “sophisticated purchaser” and whether the supplier was a “bulk supplier.” Specifically, the plaintiff in Gray alleged that the supplier knew the hazards involved in using sand for foundry purposes and that the supplier knew that the disposable respirators his employer used were ineffective to protect users against the inhalation of silica dust. In Minnesota, generally, “a supplier has a duty to warn end users of a dangerous product if it is reasonably foreseeable that an injury could occur in its use.” Balder v. Hale, 399 N.W.2d 77, 81 (Minn. 1987). The duty to warn includes the duty to give adequate instructions for the safe use of the product. Frey v. Montgomery Ward & Co., 258 N.W.2d 782 (Minn. 1977). “Adequate warning” has been defined as the act of attracting attention to the fact that the product could cause harm, explaining how it can cause harm and providing instruction on how to safely use the product. Did the supplier in Gray comply with federal regulations, state regulations and/or industrywide standards? What are the effects of failure to comply with these regulations? Does proof of failure to comply with such standards make out a prima facie case of negligence? Unfortunately, the court did not come to any conclusions on these issues in Gray. The court did, however, enumerate the supplier’s potential defenses, including the learned intermediary, sophisticated user, sophisticated intermediary, bulk supplier and raw material/component part defenses. The first four are derived from the Restatement (Third) of Torts: Products Liability Section 5 (1998). The learned intermediary defense comes into play when the supplier of a dangerous product supplies it to a distributor who knows of the dangers. Although it is theoretically limited to pharmaceutical products, it has been applied, without mentioning the defense by name, to other areas. This defense has been rejected in cases involving employer-employee relationships — in particular, sand suppliers. With the sophisticated user defense, the supplier does not have any duty to warn the end user if the supplier has reason to believe that the end user will realize the dangerous condition. In Gray, there was no evidence that the end user knew the dangers of the product. A sophisticated intermediary defense may be raised to relieve a supplier of its duty to warn the end user when the end user’s employer is either fully aware of the dangers of the product and his knowledge is on a par with that of the supplier or the employer is provided with adequate warnings and safety instructions that make the employer knowledgeable. This defense is used where the supplier can show that it used reasonable care in relying upon the intermediary (i.e., employer) to provide the warnings to the end user (i.e., employee). The bulk supplier defense finds its origins in �388 of the Restatement (Second). Here, the supplier of a dangerous product that is sold in bulk can be relieved of its duty to warn the end users by adequately warning its purchaser of the bulk goods of the dangerous conditions of the product. Although this defense has been upheld in cases involving component parts wherein the final product causes the injury, it has been explicitly denied in cases in which sand caused the injury. Under the raw materials/component product supplier defense, the supplier of an inherently safe raw material is not held liable for a failure to warn when its raw product is used as a component in a final product that later causes injury. This defense can be found in the Restatement (Third) of Torts: Products Liability �5 (1998). The defense does not relieve the supplier of the duty of adequately warning the intermediate purchaser in cases where the supplier has superior knowledge of the dangers. California In California, there is an open question as to whether a product needs to contain one of the numerated chemicals listed in Proposition 65 in order for there to be an exposure that violates Proposition 65. How this issue is resolved will lay the framework for future silica litigation. New Jersey An application was made to the Supreme Court pursuant to the Mass Tort Guidelines and Rule 4:38A (Centralized Management of Mass Torts) to designate litigation that alleges a silica-related disease as a mass tort to be centralized in Middlesex County. After reviewing the application and all the comments received in response to the notice, the application was denied in July 2004. It is anticipated, however, that plaintiff attorneys will reapply for mass tort designation after their promised mass filings, which are to occur after the new year. Wisconsin It is well-established law in Wisconsin, under the sophisticated purchaser doctrine, that there is no duty to warn of dangers that are obvious to everyone. This defense has been upheld in connection with injury allegedly caused by unadulterated sand. Florida In 2005, Gov. Jeb Bush signed a comprehensive asbestos and silica tort reform law — the Asbestos and Silica Compensation Fairness Act — requiring plaintiffs to show actual physical impairments, thereby eliminating causes of action for fear or risk. In addition, the medical experts who testify concerning those physical impairments must be licensed in the United States, be board certified and must have treated the plaintiff. There is also a minimum respiratory impairment threshold of Class 2 (ILO graded 1/1) or higher. Georgia Georgia is currently considering tort reforms relating to asbestos and silica claims. Under the proposed bill, a silica claim will require prima facie evidence of a physical impairment to which silica was a substantial contributing factor. Tennessee Tennessee is looking to amend its law, in particular Title 29, Chapter 34, which would require exposure to silica be a substantial contributing factor to a plaintiff’s physical impairment. To support a case for injuries, the diagnosis would have to be based on a medical examination and pulmonary function test and would have to include a permanent respiratory rating of at least Class 2. Conclusion This area of law is still developing and attorneys practicing in silica litigation will have to continue to follow the local courts’ rulings as these issues continue to develop and become implemented into law. Beyond this, however, it is important to know what is going on nationwide. Being aware of developing trends in the law could prove helpful to the litigator who is formulating strategies and arguments for his or her own client’s case. This quick overview of some of these trends should serve as a starting point to further study. Marc S. Gaffrey is a partner and Wendy R. Kagan is an attorney at Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick.

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