After nearly half a century of relative calm in the tort system, lawsuits involving coal workers’ pneumoconiosis (“CWP”), commonly referred to as black lung disease, are on the rise against safety product manufacturers in American coal country. Although litigation involving CWP claims has been virtually nonexistent for many decades, three conditions that could give rise to a CWP mass tort wave are converging: (1) a 2016 study from the Centers for Disease Control and Prevention (“CDC”) reporting a dramatic increase in incidence of CWP in miners; (2) increased negative media attention to mining safety issues and coal mining’s impact on national energy policy; and (3) a $7.2 million dollar plaintiffs’ verdict in the first coal dust case to proceed to verdict against a respirator manufacturer. This Alert explores the development of CWP safety products cases and the legal challenges facing potential defendants.
Background: CWP and the Federal Legislation that Kept Litigation Dormant for Decades
CWP is a disease caused by inhaling coal mine dust. CWP is a latent disease that can take years to develop. In its advanced stages, it can result in severe airway impairment, is irreversible, and potentially fatal.
Similar to state workers’ compensation systems, the Federal Coal Mine Health and Safety Act of 1969 and the 1973 Black Lung Benefits Act created a no-fault scheme to compensate injured miners that essentially removed CWP claims against mining companies from the tort system. More recently, however, plaintiffs’ counsel are stepping back into the courtroom and asserting claims against safety product manufacturers and distributors on behalf of clients with CWP.
Government Studies Indicate Occurrences of CWP Are Increasing
In 2016, the CDC released a report that CWP diagnoses are increasing. The CDC, through the National Institute of Occupational Safety and Health, conducts the Coal Workers’ Health Surveillance Program as mandated by the Federal Coal Mine Health and Safety Act of 1969. According to the CDC, occurrences of CWP among long-term underground miners who participated in chest radiographic screening declined steadily from the 1970s through 1990s. However, since 2000, results from this program show an increase in the prevalence of CWP. In addition, severe cases of CWP are being identified in miners at younger ages.
The 2016 CDC report refutes the notion that CWP is an obsolete disease. Also, it may provide evidence for plaintiffs to allege that despite the use of various environmental controls in mines, including personal protective equipment, miners are still at risk of contracting CWP.
Media Scrutiny of Mine Safety and Mining Operation Environmental Impact
The CDC is not the only entity analyzing epidemiological trends and publishing about CWP. Various media outlets and interest groups, such as the Smithsonian, NPR, and Appalachian Citizens Law Center, are publishing on CWP. While non-governmental sources may not be given the same deference as governmental entities, the increased media scrutiny adds to the chorus of often-negative discussions of coal mining practices.
The media outlets mentioned above are also taking note of CWP diagnoses and suggesting that the CDC figures may underrepresent the total diagnoses. Some outlets have gone so far as to state that the number of diagnoses may be up to 10 times higher than the government tally reported through the CDC. For example, one investigation that included data obtained from 11 black lung clinics located in the heart of Appalachian coal country revealed nearly 1,000 cases of severe CWP from this decade. Further, the investigation hypothesizes that the number of severe cases is likely even higher because clinic records are incomplete and still other clinics declined to provide data for the survey. Whether accurate or overstated, this media reporting has resulted in a growing list of publications available to potential plaintiffs building their case against new defendants.
These reports hypothesize that the number of CWP diagnoses (and therefore potential plaintiffs) is on the rise for three independent reasons: (i) miners laid off following the coal boom that lasted from the mid-1990s until 2010 are now taking part in screening X-rays; (ii) sufficient time may have passed following the boom for the latent disease to begin manifesting; and (iii) mining practices during the 21st century are alleged to have exposed miners to more silica and other non-coal dust as operations have shifted to focus on thinner coal seams embedded in silica-containing rock as well as an increase in the practice of slope mining, where “crews cut solid rock to reach coal seams.”
Finally, certain media outlets and interest groups have negatively portrayed the coal industry for many years. As some of those entities focus on mine safety issues and CWP in particular, they feed a narrative that mine safety processes were insufficient.
Recent Litigation Activity
In February 2016, the first CWP trial to proceed to verdict against a safety equipment defendant concluded. In that case, a Knott County, Kentucky jury awarded approximately $7.2 million, including punitive damages, to James Couch, a miner with CWP. Six months later, another Kentucky jury returned a defense verdict in a similar CWP trial against a different safety equipment manufacturer. While the early CWP trial results against safety equipment manufacturers have been mixed, the plaintiffs’ bar has not been discouraged from filing additional claims.
Indeed, plaintiffs have continued filing claims in Kentucky, West Virginia, and Virginia. Similar litigation could expand into other states that are both major producers of coal and feature significant volumes of tort litigation, such as Pennsylvania and Illinois.
In light of the recent media and regulatory attention to the resurgence of CWP diagnoses, the $7.2 million Couch verdict, and recent filings in multiple jurisdictions, the beginnings of a new mass tort wave affecting the safety products industry in American coal country could be forming. As part of that wave, suits may expand to include additional defendants, including those offering environmental control and ventilation products. Businesses in the safety products industry should take notice, assess potential liability exposure, and research available insurance coverage.