Silicosis-Liablity Bill Gets a Hearing
By Emerson Schwartzkopf
WASHINGTON – The proposed federal legislation to limit liability in stone-related silicosis cases got its first public airing last week … and, in today’s typical political climate, ran into a polarized climate.
Industry and medical representatives offered sworn testimony on H.R. 5437 – the Protection of Lawful Commerce in Stone Slab Safety Products – on Jan. 14 before House Judiciary Subcommittee on Courts, Intellectual Property, Artificial Intelligence, and the Internet.
The hearing, however, quickly showed a deep split between Republican and Democratic members, and the infusion of partisan political points unrelated to the bill’s original intent.
H.R. 5437 would exempt sellers of natural or man-made stone-slab products from liability lawsuits related to harm caused by fabrication. The bill would not only prohibit future filings in federal and state courts, but also dismiss any pending lawsuits.
The bill, introduced by Rep. Tom McClintock (R-Calif.), comes as hundreds of lawsuits are being filed by workers developing silicosis after inhaling crystalline-silica particles when fabricating quartz surfaces. While the civil actions initially cite workplaces, defendant lists have expanded to include slab-supply-chain vendors such as distributors, manufacturers and quarriers.
Industry representatives appearing before the subcommittee all noted the seriousness of silicosis, a fatal lung disease, and its deplorable effects on workers, current legal actions are overreaching in assessing liability.
“Our product, our industry and the many thousands of workers it employs, including 1,00 workers at Cambria, face a serious threat,” said Rebecca Shult, general counsel for the LeSueur, Minn.-based quartz-surface manufacturer. “Despite complying with all applicable law, including OSHA (Occupational Safety and Health Administration) regulations, we are under attack from hundreds of lawsuits.”
Shult noted that the conditions for silicosis arise when slabs are fabricated without adequate worker safety. She added that, at its own three fabrication facilities, “Cambria fab shop employees have spent more than 10 million hours fabricating over 650,000 quartz slabs without a single reported case of occupational disease.”
“The lawsuits are being filed by workers who have very tragically developed very serious occupational diseases, including silicosis as the result of working at dangerous workplaces,” she said. “This is unacceptable, and their employers must be held accountable.”
Shult also noted that Cambria has offered continued education on safe fabrication of its products, and also supported an effort in the California legislature last year to mandate training and licensing of fabricators.
Jim Hieb, CEO of the Natural Stone Institute, told the subcommittee that what he called the “couriers” – distributors and others – “are increasingly facing lawsuits for selling business materials.
He noted several examples, including:
- a California distributor with 45 pending lawsuits facing rising litigation costs and doubled insurance premiums;
- a New Jersey distributor, with no pending legal actions, having its insurance coverage dropped because of “the silica issue;” and
- a Utah natural-stone quarrier facing 20 lawsuits in California despite not selling any of its products in the state.
“And the list goes on and on,” Hieb added.
Gary Talwar, vice president of Natural Stone Resources in Anaheim, Calif., testified that his company now faces “65 silica lawsuits, higher insurance premiums, and mounting litigation costs.”
While the legal actions stem from surface fabrication, Talwar noted that his company doesn’t sell to fabricators.
“Less than one percent of my sales are artificial stone or quartz,” he added. “But that less-than-one percent is going to put me out of business potentially. And these cases have expanded to stone as well, not just artificial quartz.
“The misconception is that big business makes up this entire industry, but in reality, 95% of our industry is family-owned businesses, and that’s across the country. We’re not taking away from the severity of silicosis and how serious this is, but it is ultimately we’re out of control of how it’s cut and how it’s processed.”
The subcommittee also heard from Dr. David Michaels, an epidemiologist and former Assistant Secretary of Labor for Occupational Safety and Health from 2009-2017. During his term, OSHA tightened its regulations concerning worker crystalline-silica exposure.
Michaels opposed H.R. 5437 on the grounds of worker safety.
“If lawsuits by workers with silicosis are prohibited, these manufacturers will make no effort to prevent more workers from dying or becoming disabled by silicosis,” he said. “We should not allow the tarnish to continue.”
Michaels also noted the current OSHA standard is “safer, not safe,” as those rules are “based not only on health effects, but also on economic and technological feasibility.
“So just because you’re in the within the silica standard from OSHA, it doesn’t mean you’re safe with this particular type of silica; crystalline silica that’s coated with resins is clearly more-dangerous. Workers get silicosis much more quickly, younger, and they die more quickly.”
Michaels cited Australia as an example, where the country’s health ministers banned the use of crystalline-silica-based surfaces and manufacturers developed products using alternative materials.
“We shouldn’t be discussing immunity from litigation,” he added. “We should be discussing banning this product to make it safe for workers, and that would protect the manufacturers and the distributors as well.”
Questions and statements from subcommittee members quickly moved to partisan politics. Subcommittee Chairman Rep. Darrell Issa (R-Calif.), in his opening statement, tied the pending legislation to the continuing debate over immigration, although H.R. 5437 makes no mention of the subject.
“Unfortunately,” he stated, “a series of events, including the growth of illegal immigrants working in unregulated and unlawful fabrication facilities, has created many people who have been injured by ingesting in an unprotected way, the dust during wrongful cutting.”
Rep. Jim Jordan (R-Ohio), in yielding the floor for the bill’s sponsor to speak, also inserted a reference to the issue, identifying McClintock as “the chairman of our immigration subcommittee.”
McClintock, meanwhile, offered his own reference to the issue in criticism of his home state’s government.
“California is a sanctuary jurisdiction,” he said. “It controls CalOSHA. It appears they’re just turning a blind eye to lawbreaking by sweatshops that are breaking our immigration laws, labor health and safety laws, exposing their employees to the dust that causes silicosis.
“And it appears that instead of enforcing the law against these illegal practices, the Democrats prefer to drive you out of business.”
On the other side of the political aisle, Rep. Henry “Hank” Johnson (D-Ga.), the ranking member on the subcommittee, noted that Cambria CEO Marty Davis “is a well-known election denier and contributor to President Donald Trump.
“Why did my colleagues across the aisle call this hearing?” Johnson asked. “Apparently, it’s to give a handout to a millionaire friend of none other than Donald Trump.”
Rep. Joe Neguse (D-Colo.) questioned the bill’s protection against lawsuits, noting its rare use.
“The gun industry,” he said, citing examples, “which has secured liability protections from the United States Congress, the defense industry, and under certain circumstances, vaccines. So guns, bombs, vaccines, and luxury kitchen countertops, slab quartz products – that’s the list that this august body will have built in terms of giving immunity.”
“I understand the arguments you’re making,” he said, “and I respect your point of view, but I think these are arguments that are best positioned to be delivered to a jury, not to the United States Congress. You have ample opportunity to make the case to juries. In some cases, I suspect you will lose, as you have in other cases, you may win.”
