Silica Update

1
Silica Update

• House Bill 417

2
Facts on Silica

• Second most common constituent in earths crust
• Silicosis recognized as occupational disease for
  over 70 years
• Particles of 1/24,000 inch in diameter or less
  respirable silica
• Silicosis has latency period of 5-20 years

3
Background The Asbestos Crisis

• By the end of 2004, more than 75 companies had
  filed bankruptcy due to asbestos litigation.
• Mealeys Litigation Report Asbestos
• 6,000 companies named defendants
• Over 54 Billion spent on litigation
• Over 750,000 plaintiffs have filed claims
• Over 65 of compensation to plaintiffs with no
  functional impairment

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A Second Bite of the Apple?

• Same plaintiffs firms
• Many of the same plaintiffs who have settled
  asbestos cases!
• Same theories of liability
• Failure to warn, negligence
• Same recruitment methods
• Mass screening, advertisements

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Asbestos-Related Deaths
Asbestos-related deaths have increased
dramatically
6
Silica Related Health Risk is Dropping
Dramatically
?1969 More than 1,800 silica-related deaths
? 2002 Less than 150nationwide
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Silica Related Cases
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The Insurance Issue

• Insurance carriers are refusing to underwrite
  general liability without a silica exclusion.
• Several industries are without general liabililty
  silica coverage.
• Note that employee claims are governed by
  workers compensation. This is not a workers
  compensation issue.

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Industries Affected

• Variety of Industries Affected
• Sandblasting
• Mining/Quarrying
• Furnace Installation/Repair
• Refinery
• Construction
• Abrasive Powders
• Foundry Work
• Glass, Ceramics Mfg.
• Asphalt Paving
• Railroad Repair
• Power Tool Manufacturers
• Block/Masonry
• Sand Gravel Operations
• Safety Equipment Manufacturers

10
Where Cases Have Been Filed

• Texas
• Mississippi
• Louisiana
• Ohio
• California
• Florida
• West Virginia
• Illinois
• Arkansas
• South Carolina
• Oklahoma
• Kentucky
• Indiana

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Passed Legislation
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Actively Pursuing Legislation
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Issue Summary

1. Silica claims have sky rocketed in the past four
   (4) years.
2. No insurance coverage.
3. Legislation passed in surrounding states forces
   claims to states with no restrictions.

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The Goals of Silica Justice Reform

• Re-institute insurance coverage
• Eliminate frivolous, expensive lawsuits
• Preserve the ability for truly sick people to
  recover for actual injuries

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What Does the Bill Do?

• Physical impairment must be a required element of
  any silicosis claim. In asbestos case history,
  over 65 of the funds went to plaintiffs who
  suffered no physical harm tied to asbestos. We
  must avoid this in silica claims. Ohios law
  does not allow a plaintiff to bring a claim
  unless the plaintiff can prove physical
  impairment.
• Plaintiffs must be required to prove silica
  exposure was a substantial contributing factor to
  that physical impairment.
• Testing standards must meet AMA guidelines. The
  need for testing requirements is highlighted in
  the Texas federal litigation, where one doctor
  diagnosed 3,617 patients without knowing the
  criteria for silicosis diagnosis, while another
  signed blank forms and allowed the
  plaintiff-funded screening company to fill out
  the diagnosis.

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What Does the Bill Do?

• In order to be a Qualified Physician who can
  testify, the doctor must not spend more than a
  certain percentage of his practice in consulting
  work. This eliminates career expert witnesses
  who are easily manipulated by plaintiffs bar
  funding, and allows only practicing physicians to
  testify. In Ohio, physicians face a 25 limit on
  consulting time. In the proposed Arkansas bill,
  it was 10.
• In order to testify, the doctor must have
  actually treated the plaintiff, not just glanced
  at the screening result. Again, this abuse was
  highlighted in the Texas case, where one doctor
  performed 1,239 diagnoses in 72 hours less than
  4 minutes apiece.
• Workers compensation cases must remain separate
  from other silica cases. This keeps the benefits
  of workers compensation with the employer, such
  as the cap on damages.

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Why Support HB 417

• HB 417 will allow companies to obtain insurance
  again
• HB 417 addresses a specific crisis and is not an
  attempt at tort reform
• HB 417 covers only silica and mixed dust, not
  asbestos
• HB 417 benefits Kentuckys legal system by
  preventing unnecessary litigation
• HB 417 complements Kentuckys Workers
  Compensation System