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Silica Risk Could Be Declining: Guy Carpenter
NU Online News Service, Feb. 22, 10:04 a.m. EST—Court rulings concerning silica injury claims may keep such lawsuits from matching the explosive growth of asbestos litigation, according to a report released by reinsurance intermediary, Guy Carpenter & Company Inc.
Silica is essentially a compound of the elements silicon and oxygen, which occurs naturally in crystalline and non-crystalline forms. The crystalline form has given rise to lawsuits brought by workers who worked with silica sand. They allege that small particles they inhaled during abrasive sandblasting and other operations have caused a variety of lung ailments, including silicosis.
In the Guy Carpenter report, which updates the New York-based firm's 2004 report, "Silica—A Litigation Sandstorm," the authors review two recent developments in silica litigation which prompted their expression of “some cautious optimism” with respect to comparisons of silica and asbestos litigation.
In particular, they point to a Sept. 2004 Texas Supreme Court ruling on the “bulk supplier doctrine” in the case Humble Sand & Gravel Inc. vs. Gomez. The defense arises from the idea that sand suppliers can't label sand with a warning because they're supplying it in bulk.
Essentially, the court considered the issue of whether a supplier of a potentially dangerous product must warn a customer's employees of the hazard. A lower appeals court had found that suppliers have such a duty, but the Texas Supreme Court ordered a new trial, holding that a duty to warn hinged on the ability of suppliers to reach their customer's employees.
Guy Carpenter also noted the consolidation of 71 cases filed in 55 Texas district courts as a positive sign for the future of silica litigation, noting that consolidation allows for a more informed decisions on the part of an experienced jurist.
The report also looks at health data and reviews the silica liability issue in Europe.
"A review of health data…suggests that silica-related deaths are declining while a similar review of health data suggests that asbestos deaths remain on the rise," said Sean Mooney, Guy Carpenter's chief economist, in a statement announcing the report.
The updated report, "Update #1: Silica—A Litigation Sandstorm," is available for download on the Guy Carpenter website, www.guycarp.com.
Close shaves get tunnel workers in a lather
By Leonie Lamont
April 15, 2005 - Construction workers on the Chatswood underground rail link are furious after being ordered to shave their beards and moustaches and don masks to stop them inhaling dangerous silica dust.
Their employer insists new safety standards require the masks, but the workers argue the masks are uncomfortable and impractical in the wet and humid tunnel. The Australian Industrial Relations Commission has ordered the workers to halt any industrial action for three months. The commission heard that workers were refusing to work overtime, or work shifts longer than eight hours, to protest against the masks.
The project's contractors, Thiess Hochtief, introduced the masks for underground work after a new occupational exposure standard for silica dust came into effect in January, halving the acceptable levels.
Inhaled dust can cause silicosis - a scarring of lung tissue which makes it difficult to breathe - and increases the risk of lung cancer.
A Construction Forestry Mining and Energy Union organiser, Steve Dixon, said many workers had refused to shave off their moustaches or beards.
A WorkCover inspector told the commission the masks were "uncomfortable, you can't communicate in them, they're hot". However, the commission found there was no evidence they were unsafe.
The union has lodged an appeal against the commission's ruling.
Fast-multiplying lawsuits can stymie medical science, authors warn
Class-action lawsuits can significantly slow or halt science's ability to establish links between neurological illness and environmental factors produced by industry, a team of scientists and lawyers warns in the journal Neurology.
The authors caution that litigation's effects could seriously impair efforts to identify compounds that contribute to a wide variety of diseases, including Parkinson's disease, Alzheimer's disease and amyotrophic lateral sclerosis (ALS). They provide suggestions for policy changes to help shield scientists and their research. Recommendations include enhancing privacy protections for patient data obtained in research projects and eliminating financial conflicts-of-interest for scientists actively involved in research related to the litigation.
The lead author, Brad A. Racette, M.D., associate professor of neurology at Washington University School of Medicine in St. Louis, writes from personal experience: His studies tentatively linking welding to increased risk of Parkinson's disease resulted in a torrent of subpoenas for research data. Responding to them slows or stops his follow-up research.
"Participation in the legal system can be a huge burden on a researcher's schedule," Racette says. "There comes a point where a scientist needs the right to be able to say, testifying in court is not what I'm supposed to be doing, I'm supposed to be studying disease."
In addition to the scheduling challenges, parties involved in lawsuits often demand extensive disclosure of scientific data that disrupts research and threatens the privacy of patients and research volunteers. The two lawyers who are coauthors on the Neurology article, Ann Bradley and Carrie A. Wrisberg, worked with Racette to defend his data from unreasonable disclosure requests.
"I'm fortunate in that I work for a university that was willing to defend the value and privacy of our research data," Racette says. "Other scientists aren't so lucky."
The federal Health Insurance Portability and Accountability Act (HIPAA) prohibits release of data that can be used to identify patients, Racette notes. However, in many instances the extensive volume and particularity of data demanded by lawyers may still permit research subjects to be identified.
"To protect patient privacy and the value of our research data, we need specific, across-the-board restrictions on information that can be released in the courtroom," he says. "For example, Illinois has a law that designates medical research data as protected. That should be a model for other states."
The authors note that the substantial financial interests at stake in lawsuits often leads to biased research by well-paid expert witnesses. They cite the example of a Texas doctor found to be overdiagnosing a disease known as silicosis. The doctor had a financial interest in the number of patients diagnosed.
Peer review is of course a part of the regular scientific process, Racette notes, but a knowledgeable expert can design a study with a predetermined goal of discrediting earlier studies that linked a suspected toxin to a disease.
Industries on the defensive have also attempted to impugn the credibility of researchers. As an example, the authors cite the case of Herbert Needleman, M.D., professor of psychiatry and pediatrics at the University of Pittsburgh and the first scientist to link lead exposure to low IQ levels in children. The lead industry attacked Needleman's integrity, alleging academic fraud and triggering investigations by the Federal Scientific Integrity Board and his university. The investigations failed to find any evidence of academic fraud, and Needleman's results were later replicated, leading to beneficial changes such as the removal of lead from gasoline.
"It's really quite an eye-opener," Racette says. "Herb Needleman had to endure great personal and financial hardships, including the prospect of career loss and $85,000 in personal legal fees, all because he dared to study something produced by a powerful industry that might be harmful to people."
Racette admits that the difficulties litigation has imposed on his research has, at times, made the thought of switching his focus to a different area tempting. But he says he's much too stubborn to ever seriously consider such a step.
"To cure or prevent intractable disorders like the one I focus on, Parkinson's disease, scientists need to be free to investigate many different potential causes, including environmental factors produced by industry," he says. "We hope to get a national dialogue going about how we can create an environment where scientists are as free as possible to do good, unbiased research."
Racette's frequent collaborator Joel S. Perlmutter, M.D., professor of neurology, radiology and physical therapy and associate professor of neurobiology, is senior author of the paper.
By Washington University School of Medicine
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