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FILE NAME Talc TALC DATE 2004 June DOC TALC177 DOCUMENT DESCRIPTION Article from Law Journal Website - Is Toxic Tort Reform Leading to the Same Disability Claims with New Labels , 38 Burnham Brown - Attorneys at Law Oakland California June 2004 ^ Close Window - Print This Page BURNHAM | BROWN A professional law corp Publications Article - June 7 2004 IS TOXIC TORT REFORM LEADING TO THE SAME DISABILITY CLAIMS AND HOW DEFENDANTS CAN USE THIS TO THEIR ADVANTAG?E by Sheila Flanagan WITH NEW LABELS 1. Introduction - The Changing Face of Occupational Lung Disease Complex litigation in Northern California has seen a recent rise in silicosis and welding fume related lawsuits against an historical backdrop where asbestos related lawsuits were the norm This trend which is in part due to the self invention of some local plaintiff firms to stay profitable in the face of the threat of a federalized compensation program for asbestos injuries raises many questions about personal injury litigation in general and whether it is realistic to reform the legal system one toxic tort at time It also raises some interesting questions about the claimed disease processes involved in silica welding fume and asbestos litigation among others and whether the more recent litigants are really a different population with different ailments and different exposures or whether they are really litigants from the same pool of workers construction workers automobile mechanics shipyard workers electricians plumbers welders etc. against largely the same pool of defendants with labeled disease categories for the current legal climate Considering this question more closely from a defense standpoint illuminates how these cross diseases can be used to defendants advantage It is not always so easy to establish occupational lung disease specific to silica versus welding fumes or asbestos talc metal dusts other minerals or inorganic compounds It remains plaintiff's burden to prove it was your client's product or premises that caused plaintiff's illness and that requirement includes proof that it was a substance or dust with some relationship to your client's product premises or liability a Welding fume exposure cases are particularly illustrative example of the broad spectrum of exposure claims that are compressed together in the latest personal injury cases Welding fume exposure encompasses a mixture of many fine fumes and gases produced from working with a variety of elements and compounds usually over many years These include chromium iron steel nickel arsenic asbestos manganese silica beryllium cadmium nitrogen oxides phosgene acrolein fluorine compounds carbon monoxide cobalt copper lead ozone selenium and zinc to name just some Focusing on the specifics of a given injury to a limited number of materials at a limited number of job sites or employers may help to shift the liability away from your client In the alternative the generic nature of many occupational lung diseases may assist you in spreading the liability amongst a larger group of materials and job sites decreasing your client's proportionate share of the liability For years defense attorneys have discussed putting the absent chairs in play at the defense table in asbestos trials to emphasize what small aspect of any plaintiff's exposure one defendant might have had When you add the chairs of the products manufacturers and distributors of all of the http.//www burnhambrown.com/print/printit cfm 2Fpublications pubid 102 1 of 4/12/2006 2:04 15 PM Burnhara Brown : Attorneys at Law Oakland California many minerals and compounds that produce chronic obstructive lung disease interstitial fibrosis and dyspnea the number of chairs in play may in fact fill a very large court room This article considers some of the similarities and differences in the presentation of lung diseases depending upon the cause or causes In some cases it may be possible to shift the cause of a plaintiff's pulmonary complaints squarely away from a defendant's products and onto others with a different injurious component In other cases it may only be possible to spread the causes more evenly across causative factors and apportion among defendants more broadly Below categorized by common forms of medical presentation is a discussion of the many potential causative agents for each type of presentation 2. Common Symptoms of Occupational Lung Disease A. Dyspnea Probably the most common symptom recited by all plaintiffs and their attorneys medical experts is dyspnea or shortness of breath Dyspnea is a generic term for difficult or labored breathing with a wide range of etiologies and is a common symptom of lung disease due to silica welding fumes asbestos talc cadmium ceramic fibers beryllium mica kaolin iron and steel dust cotton grain and wood dusts ammonia isocyonates sulfur dioxide and coal mining as well smoking asthma sleep apnea heart disease and weight gain B. Pulmonary Function Abnormalities Basic pulmonary function abnormalities can be broken down into three basic interpretive categories obstruction restriction and reduction in diffusion capacity Obstructive lung disease is due to a decrease in the amount of air that you can exhale from your lungs This is caused by narrowing or blockage of the airways Obstructive disorders include emphysema and asthma Less air is inhaled and exhaled because the airways and air sacs lose their elasticity the walls between many of the air sacs are destroyed and become thick and inflamed and the cells in the airways may produce more sputum than usual clogging the airways Restrictive lung disease is caused by a decrease in the amount of air that the lungs can hold The lungs become stiff reducing their ability to expand for inhalation due to processes such as sarcoidosis and pulmonary fibrosis Diffusion capacity measures the transfer of carbon monoxide across the capillary bed of the lungs In the presence of normal amounts of hemoglobin and normal ventilatory function the primary limiting factor of diffusion capacity is a decrease in the surface area of the capillary bed due to emphysema loss of capillary bed increased distance from terminal bronchiole to the capillary bed and the mismatching of ventilation to blood flow Asbestosis silicosis welding fumes in smokers [ 1 and mineral and metal dusts have been shown to cause restriction on pulmonary function tests Silica welding fumes in term smokers mineral and metal dusts coal mining smoking and ammonia have been documented to cause obstruction on pulmonary function testing produce a decrease in diffusion capacity All of these substances have been shown to C. Chronic Obstructive Lung Disease COPD Emphysema Silica welding fumes coal mining ceramic fibers iron and steel dust cotton grain and wood dust ammonia cadmium isocyonates sulfur dioxide as well as smoking have all been documented to cause symptoms of COPD otherwise known as irreversible obstruction on pulmonary function testing COPD may also present with a reduced resting diffusion capacity DLCO and inflated lungs on chest ray High Resolution CT scans HRCTs may show evidence of emphysema and small airways disease D. Interstitial Fibrosis http www burnhambrown.com/print/printit 2Fpublications 2 of 4/12/2006 2 04 15 PM Burnham Brown - Attorneys at Law Oakland California Asbestosis silicosis welding fumes cadmium exposure coal workers pneumoconiosis CWP talc aluminum antimony barium beryllium chromium cadmium lanthanides nickel tin titanium uranium radon zirconium mica and kaolin exposures have all been claimed to produce interstitial fibrosis Interstitial fibrosis has been categorized by the International Labor Organization ILO into three discreet categories small rounded opacities small irregular opacities and large opacities These categories are further particularized by reading small opacities into sizes within their shape subcategory Small rounded opacities associated with silicosis and other lung abnormalities are classified by the following letter system p = opacity diameter up to 1.5 mm q = diameter from 1.5 mm up to 3 mm r = diameter from 3 mm up to 10 mm Small irregular opacities associated with asbestosis and other lung abnormalities are classified by this letter system s = opacity diameter up to 1.5 mm t = diameter from 1.5 mm up to 3 mm u = diameter from 3 mm up to 10 mm The extent of fibrosis or opacities is graded in terms of a profusion score that ranges from 0 for the least pervasive to 3+ for the most pervasive Interstitial fibrosis can be further classified by the lung zones where it is found to be the most prevalent To this end asbestosis is largely described as irregular opacities in the mid and lower lung zones Silicosis is described as mostly rounded opacities primarily in the upper and middle lung zones Welding fumes have been shown to cause interstitial fibrosis in the absence of silica exposure Coal Workers Pneumoconiosis also has been described largely as primarily rounded opacities mostly in the upper lung zones However irregular opacities have also been observed in a significant number of U.S. coal miners Talcosis presents as both nodular rounded and irregular opacities consistent with both silicosis and asbestosis related fibrosis is also described as both nodular and irregular opacities largely at the lung bases Similarly Kaolin related fibrosis is described as both nodular and irregular opacities in the mid and lower lung zones Perlite miners have also shown in one study to present with diffuse peripheral reticular and nodular opacities common to complicated mixed pneumoconiosi6s Aluminum exposures in some forms such as aluminum powder causes pulmonary fibrosis in the upper most portions of the lung 7 Antimony a metal commonly used with lead and in machine bearings has been shown to cause pneumoconiosis 9 Barium can cause baritosis a form of pneumoconiosis with profound evidence of fibrosis on radiographs without much evidence of physiologic impairment Studies have documented clearing of barium related fibrosis with cessation of exposure Exposure to beryllium can cause berylliosis Berylliosis presents similar to sarcoidosis with necrotizing lung granulomas or fibrosis found mostly in the upper lung zones Beryllium lymphocyte transformation tests of BAL cells or peripheral blood lymphocyte tests may be non- necessary to distinguish this disease from other forms of occupational lung disease 11 ] Chronic cadmium fume exposure has been associated with pulmonary fibrosis 12 Chromium fumes have been associated with interstitial lung disease and fibrosis in welders Workers exposed to mica can present with diffuse interstitial fibrosis either in the upper or lower lung zones Cobalt exposure can cause interstitial fibrosis with concomitant asthma often referred to as hard metal disease It can also present with enlarged hilar lymph nodes and be difficult to distinguish from sarcoidosis or berylliosis 14 Lanthanides a group of 14 metals commonly used as alloys have been http www burnhambrown 2Fpublications 102 3 of 4/12/2006 4/12/2006 2:04 15 PM Burnham Brown - Attorneys at Law Oakland California associated with granulomatous disease and lung fibrosis in recent years Copper sulfate exposure can also present in advanced disease as diffuse reticulonodular opacities particularly of the upper lung zones in a similar pattern to tuberculosis or progressive massive fibrosis similar to latter stages of other pneumonconioses Studies of exposed workers have seen a significant number of irregular opacities of profusion score 1/0 or greater on radiographs and some though fewer cases of rounded opacities with the same profusion score | 17 17 Sepiolite exposures have also been shown to cause interstitial fibrosis 18 E. Pleural Plaques Pleural plaques are a relatively unusual finding and not common to many exposures Asbestos is the most commonly found cause of pleural plaques and asbestos pleural plaques commonly are calcified Talc mica kaolin zeolite sepiolite wollastonite and shale exposures have also been documented to cause pleural plaques However these are without calcification 19 F. Lung Cancer There are many epidemiologically proven occupational and environmental factors that increase an individual's risk of lung cancer In complex litigation we may be familiar with lung cancer due to asbestosis silicosis and smoking Epidemiologic studies also show an increased risk of lung cancer due to arsenic nickel chromium aluminum iron and steel founding beryllium radon sulfuric acid diesel exhaust glass manufacturing paint spray mining cadmium chloromethyl ethers BCME and CMME certain coal processing uranium and antimony 21 22 23 [24 25 These elements are also found outside the occupational setting As one example cadmium is found in significant amounts in cigarettes with elevated amounts of cadmium in serum blood levels Recent epidemiology suggests there is no increased risk of lung cancer from welding fumes sponsored a study of lung cancer risk in welders in the early 1990s that suggested a 34 IARC increased risk of lung cancer in welders 27 However multiple large studies of welders since then have revealed negligible to no increased risk in lung cancer in this populatio2n8 29 30 31 32 3. Use the Generic Presentation of These Indistinguishable Plaintiffs to Your Clients Advantage Clearly there is a wide variation in the radiologic and pulmonary function presentation of a broad spectrum of claimed occupational lung diseases There is also significant crossover of what may have been asbestos lawsuits to silicosis and welding fume complaints The Plaintiffs Bar has learned to used the gray zones between disease categories to their advantage In the right cases there is no reason why defendants can't claim their own advantage As an example many texts use the following three steps to diagnose silicosis 1 history of sufficient exposure to silica variable dependent upon the exposure level 2 chest radiographs with evidence of nodular opacities consistent with the disease and 3 no other concomitant illness that mimics silicosis It is this last step that as defense counsel we should not pass over too quickly So many occupational lung diseases present almost exactly the same So many plaintiffs also have very similar pulmonary function and radiographic presentations Add to this that very few plaintiffs really present with a text book case of a specific occupational disease absent at a minimum http www burnhambrown 2Fpublication pubis d 102 4 of 4/12/2006 2 04 15 PM Burnham Brown - Attorneys at Law Oakland California confounding factors for smoking and aging if not also weight gain asthma allergies and heart disease The lesson we can take from so many similar presenting occupational lung disease claims is to use the generic presentation of a given plaintiff's disease process to your client's advantage in discovery e In deposition determine what other occupations and other substances plaintiff may have had exposures to and get details about duration and job duties e Evaluate the similarities and differences a plaintiff's claimed symptoms and exposures have to your client's liability area and what alternative exposures may present similarly e Ask your medical experts about the other possibilities and point out other types of exposures that you may have uncovered in the discovery process e Thoroughly review medical records for evidence of alternative causation for a plaintiff's symptoms Certain occupational diseases can be identified through blood testing and biopsies If it is alleged that your client exposed plaintiff to silica but his medical records show he has tested positive to beryllium lymphocytic transformation your battle may be won Similarly if the allegation is that your client is in part responsible for plaintiff's exposure to welding fumes causing lung disease but on biopsy the mineral dust analysis reveals mostly talc and bronchiolar talc dust laden macrophages then an alternative causation has been established Finally it may not be viable to shift causation completely to another substance or disease process in many cases However this is not reason to give up alternative theories of causation as there is always the opportunity to apportion causation between more substances more disease processes or more entities Bibliography Amandus HE et al Significance of Irregular Small Opacities in Radiographs of Coal Miners in the U.S.A. British Journal of Industrial Medicine 1976 13-17 Antonini JM et al Pulmonary Responses to Welding Fumes Role of Metal Constituents Journal of Toxicology and Environmental Health Feb. 13 2004 67 233-49 Becker N Cancer Mortality Among Arc Welders exposed to Fumes containing Chromium and Nickel Results of a third follow 1989-1995 Journal of Occupational and Environmental Medicine April 1999 41 294-303 Churg Andrew and Francis Green Pathology of Occupational Lung Disease Shoin New York 1988 Cooper D. Prendergrass EP et al Pneumoconiosis among Worker in an Antimony Industry American Journal of Roentgenology 1968 103 495-508 Cugell DW The hard metal Diseases Clinical Chest Medicine 1992 13 269-279 Danielsen TE et al Incidence of Cancer among Welders and other Shipyard Workers with Information on Previous Work History Journal of Occupational and Environmental Medicine January 2000 42 101-9 Doig AT Baritosis A benign pneumoconiosis Thorax 1976 31 30 - 39 Elmes PC Perlite and Other Nuisance Dust JR JR Soc Med 1987 80 403-440 http www burnhambrown.com/print/printit.cfm?thePage=%2Fpublications%2Farticle%2Ecfm?pubid=102 burnhambrown.com/print/printit.cfm?thePage=%2Fpublications%2Farticle%2Ecfm?pubid=102 burnhambrown.com/print/print.cfm?thePage=%2Fpublications%2Farticle%2Ecfm?pubid=102 5 of 4/12/2006 2 04 15 PM Burnham Brown - Attorneys at Law Oakland California Funahashi A et al Welders Pneumonconiosis Tissue Elemental Microanalysis by Energy Dispersive ray analysis British Journal of Industrial Medicine 1988 45 14-18 Gamble et al An epidemiologic study of a group of talc workers American Review of Respiratory Disease 1979 119 741-753 Groth M et al Respiratory Symptoms in Danish Welders Scandanavian Journal of Social Medicine 1989 271-276 Gustavsson P et al Occupational Exposure and Lung Cancer Risk A Population Casereferent Study in Sweden American Journal of Epidemiology July 1 2000 32-40 Hendrick DJ et al Occupational Disorders of the Lung Recognition Management and Prevention W.B. Saunders London 2002 IARC Monographs Chemicals and Industrial Processes Associated with Cancer in Humans Lyon France IARC 1979 IARC Monographs Some Metals and Metallic Compounds Lyon France IARC 1980 IARC Monographs Beryllium Cadmium Mercury and Exposures in Glass Manufacturing Industry Lyon France IARC 1994 IARC Monographs Chromium Nickel and Welding Lyon France IARC 1990 IARC Monographs Silica some Silicates Coal Dust and Aramid Fibrils Lyon France IARC 1997 Liss GM Health Effects of Welding and Cutting Fume - An Update Ontario Ministry of Labour Final Report December 1996 McDonald JW et al Rare Earth Pneumoconiosis Analytical Scanning electron microscopy and literature review Modern Pathology 1995 8 859-65 Stark P Vineyard Sprayers Lung - A Rare Occupational Disease J Can Ass Radiology 1981 32 183-184 Meyer KC Beryllium and lung disease Chest 1994 106 942-946 Mitchell J Manning GB et al Pulmonary Fibrosis in Workers Exposed to Finely Powdered Aluminum British Journal of Industrial Medicine 1961 18 10-20 Muir DCF et al Prevalence of Small Opacities in Chest Radiographs of Nickel Sinter Plant Workers British Journal of Industrial Medicine 1993 50 428-31 Pontkonjak V et al Antimoniosis A Particular Form of Pneumoconiosis Etiology Clinical and Xray Findings Internal Archives of Occupational and Environmental Health 1983 51 199-207 Rizzato G et al The Differential Diagnosis of Hard Metal Lung Disease Scientific Total Environ 1994 177-83 Schnorr TM et al Mortality in a cohort of antimony smelter workers Am J of Industrial Medicine 1995 759-770 Shaham J Biological Monitoring of Exposure to Cadmium a Human Cardinogen as a result of active and passive smoking of Occupational and Environmental Medicine 1996 1220- 1228 http www burnhambrown.com/print/printit 2Fpublications 6 of 4/12/2006 2 04 15 PM BurnhamBrown - Attorneys at Law Oakland California Welders Simonato et al A Historical Prospective Study of European Stainless Steel Mild Steel and Shipyard British Journal of Industrial Medicine 1991 48 145-154 Steenland et al Lung Cancer in Mild Steel Welders American Journal of Epidemiology 1991 133 220-229 Smith TJ et al Pulmonary effects of chronic exposure to airborne cadmium American Review of Respiratory Disease 1976 114 161-169 Click here for attachment Contributing Attorneys Sheila Flanagan Contributing Practice Areas Environmental Mailing Address PO Box 119 Oakland CA 94604-0119 1901 Harrison Street 11th Floor Oakland CA 94612-3501 Phone 510.444.6800 FAX 510.835.6666 info@burnhambrown.com http www burnhambrown printit 2Fpublicatiopn ubis d 102 7 of 4/12/2006 2 04 15 PM