Welcome to Part III of this continuing series on the silicosis epidemic affecting the surfacing industry. Now that the genesis and “growth” of the epidemic has been systematically laid out in Parts 1 & II (published in Stone World earlier this year), it is time to start focusing on what help and resources are available to fabricators. In this article, I share absolutely vital information I learned with an attorney who is ahead of the curve in helping/representing fabricators, as well as distributors and manufacturers, navigate through the precarious silicosis waters we wade in today.
I was honored to have been invited to the Raleigh Technical Summit this past September at CaraGreen (suppliers of “Healthier Alternative” building materials) in Raleigh, NC. Jessica McNaughton, president of CaraGreen, worked long and hard with Laura Grandlienard, president of ROCKin’teriors, an extremely well-respected custom countertop fabricator in Raleigh, to host the Summit. This exclusive event was by invitation only with the goal of keeping it smaller in size, which facilitated a more intimate atmosphere. Invites were focused on those who had a significant voice, industry stake and/or vision to share. The companies hope to make the Summit an annual event in Raleigh.
During the Summit, I had the pleasure of attending a presentation by Joseph Sine, partner of Cohen, Seglias, Pallas, Greenhall & Furman PC. Sine's presentation focused on silicosis -- everything from the history of silica safety requirements to the most recent silicosis litigation. He also provided insight on what fabricators can do right NOW to protect themselves and their workers.
After the Summit concluded, I shared with Sine my 2016 published article foretelling of the impending silicosis epidemic and more so, WHY. I also shared with him Parts I & II of my articles on silicosis and what we discovered is simple – the two of us have a passion to educate and help. Sine graciously agreed to participate in an interview to drill down into some very poignant questions; questions I thought long and hard about on behalf of the several thousand fabricators across the U.S.
As a former fabrication executive myself, I know of many fabricators overly fraught with fear -- fear of what potential health crises MAY be brewing with their workers unbeknownst to anyone; fear being held accountable for “what they didn’t know;” and being almost paralyzed in decisions regarding what to do first and when and how etc. My questions will hopefully address this mindset of very concerned fabricators and provide the impetus to get or keep going full steam ahead.
Here we go ...
1.) What would you say to a fabricator who is equally seriously concerned about the current state of their employees’ health and their business operation versus the serious fear about the potential ramifications of “doing the right thing,” which could make the company extremely vulnerable to legal action by employees, the state, the federal government and so on? What do you say to help a fabricator reconcile this potent conundrum they are facing?
ANSWER: Protecting employees and mitigating your risk of adverse litigation actually go hand-in-hand. If you are taking the appropriate steps to ensure compliance with OSHA’s silica safety standards, you are both protecting your employees from the adverse health consequences associated with breathing in respirable crystalline silica (RCS), while also avoiding a potential OSHA citation. Furthermore, if you properly document your compliance with OSHA’s silica safety standards, you will also help protect yourself from potential liability in future personal injury lawsuits.
2.) If a fabricator were to immediately engage with OSHA or the consultancies who would come in and evaluate one’s environment for compliance/negligence aimed at detailing what changes are needed, does this provide any type of “temporary immunity” for the fails and vulnerabilities found? Knowing they will then be given “some” time to correct and implement, how does this then bode for a company whose voluntary “audit” may then elucidate various health affect in their workplace?
ANSWER: OSHA’s On-Site Consultation Program offers free and confidential health and safety services to small- and medium-sized businesses. Companies can (and should) take advantage of these free services to find out if there are any potential hazards at their workplaces and how to fix them. Importantly, OSHA does not offer “temporary immunity” for companies that participate in the On-Site Consultation Program; however, the program is run separately from OSHA’s enforcement arm and any observed violations will not result in any penalties or citations provided that the employer remediates the violation. As a result, it is a great opportunity for a company to scrutinize its health and safety practices without the threat of citations or penalties.
With respect to the second question, participating in OSHA’s On-Site Consultation Program can only help improve your processes, thus further protecting the health of your employees. While an employer cannot go back in time, it can always evaluate and improve its policies moving forward.
3.) How effective (or not) would the “ignorance” defense of a fabricator be? I believe there is some percentage of fabricators who were never advised, educated and/or warned of the MCR hazard. Virtually invisible particles that cause micro abrasions on lung tissue causing the immune response to create scar tissue, etc. is not something one would just typically have an epiphany on, so to what extent is it either fair or reasonable for a fabricator (who can demonstrate a lack of any warnings) to be liable, and if so, to what extent, in these cases might they expect to be financially so?
ANSWER: Ignorance is not a viable defense to an OSHA citation. On the flip side, if you intentionally or knowingly commit an OSHA violation, OSHA can cite you for a “Willful” violation, which will result in a penalty of up to $161,323. Even without proving knowledge or intent, OSHA can cite any employer for a serious, other-than-serious, or de minimis safety violation.
When it comes to personal injury lawsuits, whether “ignorance” can serve as a defense depends on several factors. In negligence cases, a defendant is liable if it fails to adhere to the standard of care that a hypothetical “reasonable fabricator” would have exercised in similar circumstances. Thus, the question is whether a “reasonable fabricator” would have known about the dangers of RCS at the time the hazard was created.
That being said, the health risks associated with exposure to silica dust were discovered a long time ago. In 1938, the Secretary of Labor held a National Silicosis Conference and initiated a campaign aimed at applying techniques and principles to reduce silica dust hazards. In 1996, the Secretary of Labor initiated a Special Emphasis Program on silicosis caused from exposure to RCS. Ultimately, OSHA published the final RCS standards in 2016. Thus, a plaintiff’s attorney will likely be able to establish that a reasonable fabricator would have understood the risks associated with RCS and taken actions to protect its employees for at least the last several decades.
In addition, some jurisdictions have strict products liability, which holds manufacturers responsible for injuries caused by their products, regardless of their intent or knowledge. In states that have strict products liability laws, a fabricator would be unable to pursue “ignorance” as a defense.
4.) A corollary to this question then is, assuming a fabricator was made aware and did implement appropriate mechanical systems (dust collection, water, etc.) however, failed to have a detailed safety plan with say, periodic monitoring, with the genuine thinking they were acting compliantly, does “effort” pose a potential mitigator in penalty assessment?
ANSWER: The short answer is “no.” OSHA can (and will) cite a fabricator for any observed violation, even if the fabricator is compliant with every other OSHA obligation. However, when deciding the amount of a penalty, OSHA considers four factors: (1) the gravity of the violation; (2) the size of the employer’s business; (3) the good faith efforts of the employer; and (4) the employer’s history of previous violations.
With respect to the “good faith reduction,” there is no reduction for high gravity serious violations, willful violations, repeated violations or failure to abate violations. Further, no reduction is available if the employer has no safety and health management system in place, or there are major deficiencies in the program. Under certain circumstances, an employer can receive a 15 to 25% reduction if it has implemented an effective safety and health management system in good faith.
5.) Would you agree that yesterday was the best time to start aggressively moving in the direction of creating an entire corporate culture around silica safety and yet, today is still never too late?
ANSWER: I agree. It is important that you proactively develop, implement and enforce policies to protect your employees’ health and safety. Not only should companies start aggressively moving towards compliance, they should also stay abreast of future changes to the law in their jurisdiction. For example, in 2023, Cal OSHA adopted an emergency temporary standard to enhance worker protections from RCS hazards. Thus, companies should evaluate and update their safety policies on a regular basis.
6.) How important do you feel is creating not only the extensive action plans surrounding Silica Safety, but creating a CULTURE within the organization that embraces the program, creates internal checks and balances, encourages teamwork and makes silica safety a new stand-alone pillar upon which the company resides?
ANSWER: Safety plans only work if they are communicated to employees and enforced by management; otherwise, they are just pieces of paper. Thus, to create a compliant workplace, fabricators must create a culture of safety. There are a number of tools that fabricators can use to change their safety culture. First, they should ensure that every employee receives training before they start working. The company should also provide retraining on a regular basis, including if it observes unsafe conditions in the workplace. A member of management (such as a safety director) and/or outside safety consultants should also regularly inspect the workplace to ensure the employees are continuing to comply with the company’s safety plans. Lastly, if management observes an employee not complying with the safety plan, it should (1) retrain that employee; and (2) follow the disciplinary process set forth in the safety plan.
7.) Does precedence in product liability cases in other industries play a role in determining liability and damages in silicosis cases in the fabrication industry? E.g. Cigarettes and smoking, round-up, asbestos, for a few examples.
ANSWER: Yes. Generally speaking, plaintiffs are pursuing two common causes of action in silicosis cases: (1) negligence; and (2) strict products liability. Both of these causes of actions have a long and storied history under the “common law” that will serve as precedent.
In fact, in a recent article, the attorney handling the Reyes-Gonazalez case stated: “It is basic liability law, basic negligence, ordinary care to avoid injury to others … What would a reasonable manufacturer or supplier do? … [T]he product was defective as designed, because it’s not as safe as the users expected it to be. … [T]here were no warnings at all.” (“Engineered stone companies found partially liable for worker’s silicosis,” Daily Journal (Aug. 9, 2024), available at https://www.dailyjournal.com/articles/380327#:~:text=James %20Nevin.,of%20an%20impending%20industry%20reckoning.).
Thus, some of the issues in the silicosis cases will likely be:
- Was the product unreasonably unsafe or dangerous when it was sold?
- Did the fabricator/supplier/distributor provide sufficient warnings of the dangers of RCS when the product was sold?
- Did the fabricator exercise reasonable care in designing, manufacturing or marketing the products?
- Was the plaintiff using the products in a reasonable or foreseeable manner?
8.) What options would a fabricator have to “pay for” a verdict of damages? Typically, are the penalties due in full, in cash with the expectation that liquidation of assets may be necessary, etc. within 30 days of adjudication or can payment plans/garnishments be established so the fabricator can remain in business?
ANSWER: The first thing a fabricator should do if he/she is sued is notify their insurance carrier(s). If the fabricator’s insurance policy covers the claim, the plaintiff will likely first look to the insurance carrier to satisfy the judgment. However, be aware that many insurance policies now contain a “Silica-Related Dust Exclusion,” an “Asbestos, Lead, and Silica or Silica-Related Dust Exclusion” or some similar exclusion, which may prevent the fabricator from obtaining coverage. When procuring or renewing an insurance policy, fabricators should pay close attention to the exclusionary language in their policies to avoid a potentially uninsured loss.
In the event that insurance is not available, the plaintiff will look to the fabricator to pay any judgment entered against it. The time to pay a judgment is different depending on your jurisdiction. In addition, the filing of an appeal (or the filing of a bond) may prevent the plaintiff from executing on the judgment during the pendency of an appeal. In the event that you do not appeal and the judgment becomes final, the plaintiff can proceed with executing on the judgment, usually by executing on the companies’ assets or garnishing the companies’ bank accounts. However, sometimes judgment creditors will agree to a payment plan to avoid the cost and time associated with the execution process. If a judgment is entered against your company, you should consult with an attorney to discuss the options available in your jurisdiction.
Many priceless golden nuggets reside in Sine’s answers. While the questions I have could go on for volumes, I wanted to touch on some key areas that I know are in the minds of many fabricators with whom I speak.
The takeaway here is quite simple: Act now! If you haven’t already moved towards a safer, more compliant workplace, you should immediately take efforts to move towards compliance. If you have made efforts to improve your safety practices, benchmark your actions against what was discussed above and re-evaluate if you see the need for improvement.
If you would like to discuss the specific silica regulations in your jurisdiction or develop better policies and practices, please reach out to Sine directly at: jsine@cohenseglias.com or via phone at 267-238-4775.
This third part is all about providing valuable information and resources to fabricators who may be struggling with how to do what they need to do and an option or two on where to go for help.
Rest assured, I will follow developments as this situation continues to unfold. The one thing I feel is true here is that the sooner safety procedures are optimized the sooner we should be able to mitigate the silicosis affect curve – something all members in the enterprise chain play a role in to varying degrees. Much more to come….
