FEATURE

Twenty-five years of toxic tortlitigation: Lessons learned—Challenges defined

By Frank M. Parker, III

INTRODUCTION

As a country that prides itself in being asociety of laws, it should be no surprisethat accidents and occupational dis-eases would find their way into ourcourt system. In fact, even thoughthe court system handles thousandsof these cases every year, most profes-sional safety and health professionalsare unaware of how the practice of ourprofessions are the subject of manylitigation cases or the impact of courtdecisions on our profession. This arti-cle is not a learned thesis on the legalsystem as I am not and have no desireto be an attorney. However, the inter-face between our legal system and ourprofessions leads to some very inter-esting situations which I report here assimple observations and my opinionswhich I hope may be useful to others inpreventing or preparing for litigation.

WHY LITIGATION

To understand at least part of the rea-son for litigation is to understand thatindustrial accidents and occupationaldiseases are, by their very nature, veryexpensive. With the advances in med-icine, these costs can only continue torise dramatically. Recently, a 38-year-old sand blaster, who suffered frompotentially fatal acute silicosis,received a lung transplant. In thefuture, these heroic medical proce-

Frank M. Parker, III, CIH, CSP, PE,is a partner and CEO of Caliche Ltd.,200 Brantley Lane, Magnolia, TX77254, USA (Tel.: 281 356 6038;e-mail: fparker3@calicheltd.com).

1871-5532/$32.00

doi:10.1016/j.jchas.2007.12.001

dures will become more common aswell as more expensive. Medical costsalone are typically hundreds of thou-sands and sometimes millions of dol-lars. Add economic losses and courttransaction fees and the damagesquickly add up.

Occupational disease is not free.These damages require someone orsome entity to pay for them. This mightbe an insurance company, a manufac-turer, a distributor, a premise owner,the injured party or his family, ourgovernment and, as a final resort, char-ity. The court’s job, to a large extent, isto somehow allocate these costs to theparties involved in the litigation.

CHOICES

I have yet to find an Industrial Hygien-ist (IH) or Safety Professional that didnot have strong opinions about litiga-tion and our legal system. Many feelthe system is basically unjust and isstrongly biased toward either the plain-tiff(s) or the defendant(s). There is noquestion that the legal system is veryadversarial; there is no middle ground.You are presumed to be for the plaintiffor for the defense. The attorney’s job isto fight as hard as he or she can fortheir client, let the judge be the referee,and let the jury decide where truth andjustice lie.

However, no matter our opinion,society desperately needs the judicialsystem if it is to function anywherenear ‘‘civilized’’. Consequently, thecourts are not going away any timesoon. This leaves us with threechoices: ignore the issue, stay angryat the system, or learn what it has to tellus about society’s values and goals.Understanding what transpires in liti-gation can inform us what is expectedof us and our programs, as well as

� Division of Chemical Health

focus us on better defining our profes-sional goals.

THE LAW

The court room is an entirely differentworld than the one we typically oper-ate in. Each court has its own person-ality, rules and hubris. The ‘‘law’’ is thecommon thread among all courts andeach court tries its best to execute itsresponsibilities as required by the‘‘law’’. There are some obvious differ-ences between our worlds.

A very important difference is thatthe ‘‘law’’ trumps OSHA regulations.Compliance with OSHA is important,however, compliance with OSHA isnot necessarily sufficient. Historicalstandards such as those found in theWalsh-Healey Act’s Safety and HealthStandards,1 American Conference ofGovernmental Hygienist (ACGIH)Threshold Limit Values (TLVs)2,National Institute for Safety andHealth (NIOSH) RecommendedExposure Limits (RELs)3 and state reg-ulations are also important but notnecessarily sufficient. For example,OSHA’s asbestos warning label isinadequate and relying on it to meetlegal obligations is risky. Also, in myopinion, juries typically feel thatOSHA is biased towards industryand does not have the average work-er’s interest foremost in their efforts.

Industrial hygiene focuses on andwants to talk in terms of ‘‘risk’’. How-ever, the court is concerned primarilywith ‘‘cause’’. Because an event has avery low probability of occurring is notproof that it did not happen. To argueto a jury that the disease was notcaused by an agent because the ‘‘risk’’is low is like telling them that eventhough they hold the winning lotteryticket whose ‘‘risk’’ of winning may

and Safety of the American Chemical Society 9Elsevier Inc. All rights reserved.

have been millions to one, they are notentitled to the jackpot.

The court is also focused on ‘‘whatwas known and when was it known’’which is also known as the ‘‘state of theart and knowledge’’. Governmentsnever lead a safety or health issue; theyare always years behind the scientificcommunity. It is very common for thescientific knowledge of an agent’shazards to be known decades beforeany regulatory or professional societyestablishes safety guidelines or regula-tions. For manufacturers of hazardousproducts, who are held to the level ofan expert and are presumed to have allrelevant knowledge, this becomes cri-tical to their defense. Such knowledgeis also important to the IH if they are tohelp their employer or client minimizetheir legal liabilities.

DEFENDANTS

The numbers of defendants in litiga-tion cases can be ‘‘legion’’. I have oftenheard attorneys say that a likely candi-date for litigation requires three ele-ments: an injured party (damages), aviolation of the law, and a solventdefendant. Anyone who has evenremotely been associated with thedesign, manufacture, distribution,installation, repair, removal or dispo-sal of a hazardous material or productscontaining a hazardous component issubject to be part of litigation. Forexample, I worked on a case whereeven an IH had been brought into asuit under the allegation that he failedto use the proper instrument to mea-sure the plaintiff’s benzene exposures.

An important legal concept is thatthe manufacturer of a hazardous pro-duct is held to the level of an expert onits hazards. Consequently, ‘‘We did notknow’’ becomes a difficult argument todefend. This concept applies to everyproduct, even those you might notthink are hazardous such as safetyequipment. A faulty respirator or weaksafety harness can easily be a ‘‘hazar-dous product’’ if it ‘‘causes or contri-butes to the cause’’ of an accident orillness.

Employers are generally immunefrom lawsuits from their employeesas a result of workers’ compensation

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laws. Based on my review of many IHprograms, apparently this immunityhas made many employers compla-cent. If employers were not immune,they would offer an easy target forlitigation since most do not have safetyand IH programs consistent with thestate of the art and knowledge of anyindustrial hygiene subject or even thecontemporary OSHA regulations.However, employers who are also pre-mise owners have become favorite tar-gets because most of the work on theirsites is now conducted by contractorsdoing the same tasks their employeesused to do.

As damages increase and the num-ber of defendants decline, due to avariety of reasons, the employerbecomes a viable ‘‘solvent defendant’’.Will the laws change to make employ-ers more liable? We can predict that atsome point hospitals, insurance com-panies, unions, other companies andgovernments will grow tired of pickingup the tab and will actively seek theirlegislature’s and the court’s help indeferring at least some of these coststo other parties. I have worked on acase where the state’s workers’ com-pensation commission has funded aplaintiff attorney’s suit against a pro-duct manufacturer in an attempt torecover their costs for a permanentlydisabled 18-year-old worker. Myrecommendation to our industrial cli-ents is to anticipate that the employerwill eventually lose at least some of itsimmunity. Stay tuned; litigation is amoving target.

PLAINTIFFS

Acute occupational diseases and inju-ries typically present themselves incourt in a straight forward manner.The cause of the injury is relatively easyto identify as are the defendants.Chronic occupational diseases suchas cancer and pneumoconiosis areanother matter. Given a long workhistory with a variety of jobs andemployers, the sources and amountof exposure to the ‘‘causative agent(s)’’are usually in major dispute.

Most plaintiffs with cancer typicallypresent themselves in the legal systempost-retirement. This is not surprising

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given the long latency periods neces-sary for cancer to develop. However, itis very problematic for IH programmanagers. They are seldom, if ever,aware of the fact that their retiredemployee got cancer and their occupa-tional disease does not automaticallyshow up on their OSHA Form 300either.

Plaintiffs frequently present withepisodic high exposures over periodsmuch shorter than 40 years. Theirexposure histories are better categor-ized as a series of peak (Ceiling and/orShort Term Exposure Limit—STEL)exposures over a few years rather thana classic Time Weighted Average(TWA) exposure over 40 years. Thischange in the exposure profile parallelsthe major changes in the work envir-onment over the last 50 plus years.Work environments since World WarII have changed dramatically fromlarge industrial plants with day inand day out lifetime exposures totoday’s workers who multi-task andexperience exposures better describedas a series of peak exposures, often to abroad variety of stressors. We knowthat some chemicals’ ability to causeoccupational cancers are dose ratedependent as well as dose dependent(i.e., benzene4). Our obsession withTWAs is preventing us from a completeunderstanding of work place risks. As aresult, it is my opinion that workers’risks in most modern day industrialenvironments would be better con-trolled if the primary focus was oncontrolling peak exposures rather thanbasing everything on TWAs.

There seems to be a common beliefthat what occupational disease we seein litigation is the result of gross expo-sures prior to OSHA. Factually, that isnot correct. Many plaintiffs withchronic occupational diseases are pre-senting with their first exposuresbeginning in the 1970s, 1980s and afew starting in the 1990s. This shouldnot be a surprise for several reasons.These workers’ latency periods arenow at least several decades and, con-trary to wishful thinking, workplaceconditions are not nor ever have beenon a curve of continuing improvement.Substantially, all IH programs are bet-ter described as cyclic. They vacillateover time between ineffective, to more

mical Health & Safety, May/June 2008

effective and back again. Also, in mostcases, plaintiffs are not employed inorganizations that had effective pro-grams or if they did, the program failedfor some reason to protect them.

KNOWLEDGE

A critical question always addressed inlitigation is,‘‘What did we know andwhen did we know it?’’ Most of us indexour knowledge of a hazardous materialat the time we studied it in college or thefirst time we ran into it in our practice.In these scenarios, we focus on thecurrent status of knowledge and spendlittle, if any, time looking into the mate-rial’s history. However in litigation, his-tory is very important as manyquestions address the worker’s workhistory and the related contemporaryindustrial hygiene, medical, epidemio-logical and toxicological knowledge.

A common litigation argument is,‘‘No one knew chemical X was hazar-dous when this plaintiff was firstexposed to it.’’ One has to be very cau-tious when making such a statementsince most of the industrial hazardslitigated today have long and documen-ted histories predating OSHA andNIOSH. Industrial hygiene’s historygoes back to at least the early 1700swith Ramazzini and his book Diseasesof Workers.5 In this country, the firsttextbook I have found referencingindustrial hygiene is Tolman’s 1913book entitled Methods for PreventingOccupational and Other Accidents andDiseases.6

A related argument is, ‘‘While weknew chemical X caused a disease,we did not know it caused this otherdisease.’’ Asbestos is probably the bestexample. Asbestosis, a serious andsometimes fatal occupational lung dis-ease, was recognized in the UnitedStates in the 1920s and 1930s. As timewent on, other diseases including lungcancer and mesothelioma were identi-fied. The countervailing argumentshave become, ‘‘Once asbestos wasfound to be hazardous, how many dif-ferent diseases it causes is academic’’and ‘‘Until we knew asbestos causedmesothelioma, there was no reason toprotect against mesothelioma’’. Iwould have empathy with the latter

Journal of Chemical Health & Safety, May/J

argument only if the proponent couldshow they were doing those thingsnecessary to prevent asbestosis (warn-ing, monitoring, etc.). It also ignoresprobably the strongest tool available toprevent occupational disease. Thatbeing, if a material is found to be hazar-dous in one setting, we know it will bepotentially hazardous whereever it isfound. That is why the OccupationalExposure Limits (OELS) are listed byhazardous material and not by trade orindustry.

Finally, it is important to recognizethat the current OSHA regulations,ACGIH TLV’s, or NIOSH RELs donot necessarily represent the state ofthe art and knowledge on that stressorat the time when the standard waspublished. In fact, some OELs arenot protective against all recognizeddiseases caused by a hazardous mate-rial, for example, mesothelioma.7 Ingeneral, it has historically taken sev-eral decades for the ‘‘knowledge’’ totravel from the scientific communityto and be processed by the regulatorsand national standards organizations.In addition, these organizations aresubject to ‘‘politics’’. There is nothingwrong with ‘‘politics’’; it is simply a factof life in our governmental and socialsystems. This is especially true ofOSHA where the enabling legislationrequired consideration of non-healthand safety issues such as economicsand feasibility. OSHA represents ournational understanding of these issuesin the 1960s and early 1970s. The lawand the courts represent a significantlymore current view which has changedover the last 30 years and will continueto change in the future. Consequently,it is important to understand the cur-rent state of art and knowledge, andnot simply rely on OSHA if you are tohelp your current employer or client.

MANAGEMENT

Organizations that become involved inlitigation exhibit several commoncharacteristics. Many simply did nothave any IH programs historicallyand a surprising number currently stilldo not have any. Most have neveremployed industrial hygienists or hiredIH consultants. Generally, in response

une 2008

to the existence of OSHA, many orga-nizations do have a document they calltheir ‘‘Safety Program’’ but, they areusually prepared by someone withoutany education or training in the IH orsafety fields. These programs also tendto be simplistic and not implemented.

For those organizations with reason-able programs and in-house or consul-tant IH resources, the failures aretypically ones of execution. The IHpolicy will lay out a reasonable andsafe procedure, but it was simply notfollowed at the task level. Anothertypical example is where the organiza-tion’s employees are protected andcontract employees doing the sametask are not. This is especially notice-able where the organization is actuallyproviding supervision to the contractemployee.

Other management failures includeinadequate or no training, inadequatewarnings, little or no exposure data,and poor decision practices. Becauseof their importance, these subjects areaddressed in more detail in the nextsections.

FAILURE TO WARN

Failure to warn the plaintiff plays acritical role in substantially every toxictort litigation case. The law does notprohibit the manufacture of all hazar-dous products but it does require ‘‘ade-quate’’ warnings concerning theproduct’s hazards. There are four cri-tical areas that a worker needs clearand useful information:

1. W

hat are the hazards? 2. H ow do I know when I am at risk? 3. H ow do I protect myself? and 4. W hat are the things I should not do

with or to this product?

Most warnings seen in litigation arepatently very poor. First, they do notanswer these important questions.They also use phrases that are non-sense to the worker such as, ‘‘Do notcreate dust’’; ‘‘Use with adequate ven-tilation’’ or ‘‘Use in a well ventilatedarea’’8; ‘‘Do not breath dust/vapor’’;‘‘If PEL is exceeded, wear NIOSHapproved respirator’’ among manyothers.

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The Material Safety Data Sheet(MSDS) has emerged as the primarydocument for warning employers,workers and consumers. The MSDShave been found to be often inaccurateat best.9 This problem is confirmed bymy experiences in reviewing MSDS upto the present time. Second, the MSDSformat alone makes it a poor warning.It is a document originally created byoccupational health and safety profes-sionals as a short hand summary to beused by professionals. At some point itwas hijacked by OSHA and otherswho declared that it was all that theworker needed to use the productsafely. To begin with, it is not orga-nized to answer the above criticalquestions. How many workers know,or even care what specific gravity orvapor pressure mean, let alone howthis information relates to their healthand safety? A worker confronted withconfusing and unrecognizable techni-cal information first is often turned offto anything that follows.

Creating an adequate warning is nota trivial task. First, it requires an inputfrom the worker and/or consumer.Then it needs input from a broad spec-trum of talent including attorneys, psy-chologists, communicators, as well asphysicians, IHs, safety, chemists, etc.In my opinion, warnings should beaddressed as a subspecialty of adver-tising and not the sole responsibility ofthe health and safety department.Advertising focuses on the worker/consumer and changing their behaviorOccupational safety and health profes-sionals are so focused on scientificcorrectness and certainty that the mes-sage sent via a MSDS to the workercommunicates little if any useful infor-mation. If the intent is to produce ade-quate warnings that change behavior,then any advertising agency would findit a familiar project.

EXPOSURE DATA

The paucity of exposure data on Plain-tiff A to stressor B is simply amazing,especially 35 years after OSHA. Sel-dom do exposure data exist in litiga-tion that can be even associated withthe two, even with widely recognizedstressors such as asbestos, benzene,

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noise and ionizing/non-ionizing radia-tions. This is also found in organiza-tions with long histories of goodreputations in the health and safetyarea.

In litigation, the proof is the respon-sibility of the plaintiff. Consequently, adefendant without any exposure datafinds themselves in a great defensiveposition. However, that defense isshowing some vulnerability, especiallyif there is an OSHA regulation thatrequires exposures be determined. Itis also very important to understandthat there are no neutral data. If expo-sure data does exist, its very existencehurts one side or the other and everyeffort will be made to discredit it. Howmany IH’s convert their samplevolumes to standard temperature andpressure? Something that simple canhave data disqualified by a judgebecause it is not ‘‘scientifically reli-able’’.

Most programs I have reviewedseem to be based on ‘‘professionaljudgment’’ with little or no exposuredata upon which the ‘‘judgment’’ isbased. Without a scientific basis, ‘‘pro-fessional judgment’’ is simply guessingor even worse, wishful thinking. LordKelvin said, in simplistic words, thatwith data you know something; with-out data you know nothing. Demingunderstood that without a profoundknowledge of the system you cannotmanage it. The lack of exposure data isthe ‘‘elephant’’ in the IH’s profession’s‘‘room’’. For a scientific profession thatowes its existence to exposure data(OELS), we seem to be very reluctantto generate any.

CHALLENGES

Litigation is here to stay. As long asinjured parties need a nonviolent reso-lution system, the courts will play animportant and dominant role in oursociety. There are only two ways toprevent toxic tort litigation. First, isby having society’s rules/laws prohibitlitigation; and second, is by preventingthe toxic tort. Industrial hygiene’ssupreme contribution to societywould be the accomplishment of thesecond approach. It is the only win–win scenario and most likely the least

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expensive in the long run. However,especially here in Texas, the entirefocus seems to be on the firstapproach.

Historically, by far the most effectivetool to changing the behavior of largesegments of society has been educationand training. Workers, managers andhealth and safety professionals whoknow the hazards of a product, knowwhen they are at risk, know how toprotect themselves and know what notto do with the hazardous product arein the best position to prevent occupa-tional disease and accidents. However,changing behavior takes significanteffort, expense, and time. Having aworker, supervisor, etc. spend 5 min-utes reading a MSDS will never workand is misleading at best.

We desperately need exposure data.If the scientific community scruti-nized the exposure component of epi-demiology studies to the same degreethat they do the other components,few if any epidemiology studies wouldbe published relating exposure con-centrations to disease incidence. Moststudies do not have sufficient hardexposure data and are forced to relyon someone’s opinion as to what theexposures might have been. Fixingthis problem starts with the products’manufacturers. Manufacturers needto determine the hazards, if any, gen-erated by their products prior to pla-cing them in commerce. They need topublish exposure data generated dur-ing their products’ anticipated livesincluding installation, maintenanceand disposal so IH’s can understandthe risks when, or even before, theyarrive in their organization’s workplaces. Employers have to generateexposure data so that the health andsafety professionals can prevent occu-pational diseases. We no longer canafford, in terms of social and realcosts, waiting the decades until occu-pational diseases emerge before we doanything. The data we produce has tobe scientifically defensible and suffi-cient to support our opinions andactions. Finally, more emphasis mustbe placed on preventing excessivepeak exposure concentrations. Focus-ing solely on TWAs results in under-estimating the true risks workers areexperiencing.

mical Health & Safety, May/June 2008

No program can be successful inpreventing occupational disease andaccidents if it does not have a strongcomponent that insures that the orga-nizations’ occupational health andsafety policies are implemented andconsistently executed. In the 1980s Ispent several years assigned to the USAir Force’s Inspector General’s (IG)organization inspecting the industrialhygiene programs at Air Force Reservebases around the country. I wasimpressed with the IG’s understandingof what motivated organizations andhow you keep them focused on theirmission. Their motto said it all. ‘‘Peopledo not do what you expect them to do,they do what you inspect them to do’’.If some outside entity is not assuringthat safety and health policy and pro-cedures are being executed adequatelyand consistently then you can beassured that they most likely are not.

THE IH PROFESSIONAL

The ultimate challenge for the profes-sional industrial hygienist is, andalways has been, how to prevent occu-pational diseases that most likely willnot present themselves for decades.Complying with OSHA may be a startbut, if history tells us anything, it tellsus that compliance with OSHA regu-lations today will not be adequate initself to meet that goal. Meeting thisgoal requires the professional IH towork in the ‘‘gap’’ between whereOSHA, NIOSH, and ACGIH wereyesterday and the reality of today’sknowledge. Arguing with your clientthat OSHA requires certain protectivemeasures is easy. To convince your

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client that they need to get past OSHAand focus on what is truly necessary,based on the current state of the artand knowledge, is a major challenge. Itis also where the professional IH’sgreatest value to his organization lies.

Dr. Ralph Vernon, the late TexasA&M professor and past president ofthe American Academy of IndustrialHygiene, introduced and preached‘‘anticipation’’ to IHs throughout hiscareer. He stressed that it is not thatdifficult to anticipate where thehazards of a stressor most likely willbe found. For example, it is most likelythat nanoparticles are going to presenta serious occupational health threatsomewhere. It is obvious that theyare going to be inhaled and distributedthroughout the body. Are the manu-facturers going to do the toxicologicalstudies and exposure simulation stu-dies parallel with developing theseimportant products? Are we going towait until these small particles, and/orthe materials carried with them, areproven hazardous to a ‘‘scientific cer-tainty’’ among an exposed work groupyears or decades from now, or are wegoing to start implementing engineer-ing controls and developing protectiveequipment and procedures now?

Occupational disease litigation overthe next several decades will be domi-nated by the diseases caused by stres-sors we know and understand today.What about all those stressors outthere that may have lost their ‘‘sexappeal’’ but to which workers are stillbeing exposed? Are we going toassume that because we have knownabout them for years that they couldnot possibly be a problem anymore?Or are we going to approach each

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work activity as professionals and gen-erate the information necessary todetermine that worker risks are accep-table and ameliorate those risks thatare unacceptable?

REFERENCES1. Basic Safety and Health Requirements,

US Department of Labor, Walsh-HealeyPublic Contracts Act. March 2, 1942and sequential editions.

2. Lanier, M. E. (Ed.). (1984). ThresholdLimit Values—Discussion and Thirty-Five Year Index with Recommendations.American Conference of GovernmentalIndustrial Hygienists: Cincinnati, OH,1984.

3. Pocket Guide to Chemical HazardsNational Institute for OccupationalSafety and Health various editions.

4. Lanier, M. E. Benzene Documentationof the Threshold Limit Values andBiological Exposure Indices, 7th ed.American Conference of GovernmentalIndustrial Hygienists, 2001 p. Benzene-17.

5. Ramazzini B, Diseases of Workers,Translated by W.C. Wright, HafnerPublishing Company, New York 1964,1713, 255.

6. Tolman, W. H. Safety Methods forPreventing Occupational and Other Ac-cidents and Diseases; Harper & Broth-ers Publishers; New York, 1913.

7. Tolman, W. H. Asbestos Documenta-tion of the Threshold Limit Values forChemical Substances, 7th ed. AmericanConference of Governmental IndustrialHygienists, 2001 Asbestos–6.

8. Olcerst, R. Use in well-ventallated area?Am. Ind. Hyg. Assoc. J. 1999, May/June,337–383.

9. Kolp, P. W.; et al. Assessment of theAccuracy of Material Safety DataSheets. Am. Ind. Hyg. Assoc. J. 1995,February, 178–183.

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