Silica Update House Bill 417

Facts on Silica Second most common constituent in earth’s 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

Background: The Asbestos Crisis By the end of 2004, more than 75 companies had filed bankruptcy due to asbestos litigation. Mealey’s 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

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

Asbestos-Related Deaths Asbestos-related deaths have increased dramatically

Silica Related Health Risk is Dropping Dramatically  1969: More than 1,800 silica-related deaths  2002: Less than 150…nationwide

Silica Related Cases

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.

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

Where Cases Have Been Filed Texas Mississippi Louisiana Ohio California Florida West Virginia Illinois Arkansas South Carolina Oklahoma Kentucky Indiana

Passed Legislation

Actively Pursuing Legislation

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.

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

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. Ohio’s 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.

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.

Why Support HB HB 417 will allow companies to obtain insurance again 2. HB 417 addresses a specific crisis and is not an attempt at tort reform 3. HB 417 covers only silica and mixed dust, not asbestos 4. HB 417 benefits Kentucky’s legal system by preventing unnecessary litigation 5. HB 417 complements Kentucky’s Worker’s Compensation System