Growing legislation directed toward injuries allegedly caused by working with engineered stone products manufactured and distributed by various defendants, including manufacturers, distributors, suppliers and brokers, serves as a bellwether test for the rapidly growing engineered stone industry.
What Is Engineered Stone?
Engineered stone, commonly referred to as artificial stone or
simply quartz, is the industrially manufactured stone slabs used to
make countertops and other products. The process for manufacturing
quartz slabs began in the 1960s but did not become commercially
viable until the 1990s. Quartz, as compared with its alternatives
– natural stones such as marble, granite and quartzite
– offers many benefits, including durability, uniformity,
affordability, and scratch and stain resistance. However, it was
not until the housing boom in the 2000s that the quartz countertop
industry took shape, led by industry giants Caesarstone, Cambria
and Cosentino.
By many metrics, quartz countertops are now the most common countertop material in the United States and many other Western countries. However, a growing body of medical evidence and ensuing lawsuits have cast a shadow over the industry, highlighting health concerns for the workers fabricating the quartz slabs for consumers. The primary concern is silicosis.
What Is Silicosis and What Causes It?
Silicosis is most often an occupational disease caused by the
inhalation of respirable crystalline silica (RCS). These fine
crystalline particles bypass the body's defense mechanisms and
find their way into the microscopic alveoli, or tiny air sacs in
the lungs, where a complex chemical reaction occurs exchanging the
oxygen we breathe with the carbon dioxide our bodies produce.
However, once a particle of RCS enters an air sac, it is trapped there and renders that air sac useless. Our bodies attempt numerous defense mechanisms to remove the intruder, but ultimately the air sac becomes inoperable due to scar tissue. If one breathes in enough RCS over long enough periods of time, the number of air sacs that become inoperable pose serious health concerns, specifically because our bodies can no longer absorb enough oxygen into our blood stream. This is silicosis.
Silicosis is not a new phenomenon. Humans have been aware of the symptoms for millennia – silicosis has been affecting coal miners for centuries. Only now, we possess the technology to create products with higher RCS content than found in nature. For example, on average, a quartz slab contains a higher percentage of RCS than a natural stone slab. Many experts believe this higher RCS content results in accelerated silicosis among workers who frequently process quartz slabs. This could explain the rise in silicosis claims by engineered-stone workers in the past few years.
The Rise of Engineered-Stone Litigation and Safety
Concerns
Tracking the occurrence of silicosis among the workers fabricating
these quartz slabs is a challenge. It requires reporting from
various health care providers, and the Occupational Safety and
Health Administration (OSHA) does not have an accurate accounting
of the occurrence of the disease. It is believed that since 2021
there have been more than 170 cases of silicosis among quartz
countertop workers in California and an estimated 50 lawsuits filed
in the state. There also have been several recent filings in
Washington, Oregon and Colorado.
But is this only the beginning? As jury awards escalate, they surely will inspire plaintiffs' bars across the country to begin signing up clients and suing.
From a legal perspective, we ask if manufacturers distributors, suppliers and brokers of quartz countertops are contributing to a silicosis epidemic. Quartz slabs now come with warning stickers and labels, which have evolved over time to better inform the fabricators of quartz countertops about the risks involved and the precautions the industry needs to take. Notably, as juries find employers at fault for failing to follow the warnings and safe handling instructions for quartz countertops, they apportion the majority of fault, and in a recent trial, apportioned as much as 70 percent, to those employers.
The industry believes these products can be fabricated safely if they take the reasonable precautions included in the warning stickers and labels and reflected in the OSHA guidelines that have existed for decades, such as wet cutting methods to reduce dust, air filtration systems to clean the air in fabrication shops, personal protective equipment including filtered respirators, air quality monitoring and medical monitoring. These are the most prominent and common safety precautions, but this is not an exhaustive list. Many manufacturers also offer comprehensive educational materials and seminars to teach fabricators how to use the products safely, and offer a certification process for fabricators who complete these seminars and institute appropriate industrial hygiene measures.
However, OSHA must play a larger role in fulfilling its government mandates of monitoring employers and ensuring they provide a safe workplace. This can only come from OSHA and not the manufacturers, distributors, suppliers or brokers of quartz countertops.
Issues Facing Defendants in Litigation
The burden of proof is always on the plaintiffs in these cases.
They must prove they were exposed to each manufacturer's
product, and that distributors, suppliers and brokers were each in
the chain of commerce connecting the manufacturers to their
exposure. To do this, most plaintiffs rely on their own deposition
testimony and testimony from coworkers, witnesses and employers.
Sometimes, plaintiffs have photographs of their workshops with
brand names visible, or submit invoices, receipts or pickup slips
identifying manufacturers, distributors, suppliers or brokers.
However, these physical pieces of evidence can be rare, especially given exposures going back 10 or 15 years. Relying on recollection alone, plaintiffs often misidentify a defendant from name confusion, location confusion, or simply a desire to identify as many defendants as possible. Plaintiffs, with the advice of their attorneys, often sufficiently muddy the water through discovery such that dispositive motion practice becomes unlikely. Therefore, the dozens of defendants in these lawsuits face the reality of defending a case at trial in front of sympathetic plaintiffs with serious illnesses or those who have undergone the trauma of lung transplantation.
Conclusion
This increasing litigation presents a significant threat to a
relatively young industry. Bolstering warnings and disclosures,
having manufacturers enforce the policy that only certified
fabricators work on their products, and increasing oversight and
regulation from OSHA and state and federal legislatures will help
reduce future cases of silicosis caused by exposure to respirable
crystalline silica, but nothing can undo prior exposures.
Manufacturers, distributors, suppliers, brokers and their carriers must take seriously the risk of past exposure and engage defense counsel early to investigate claims and find potential exculpatory evidence. Defense counsel, through discovery and other means, will seek to relieve the client of liability through evidence the client was misidentified or that there was little or no exposure to the client's products or workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
