barnett 9-19-16

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Industrial Hygiene and State-of-the-Art in Asbestos and Toxic Tort Claims

The National Forum for Environmental and Toxic Tort Issues23rd Annual Conference

Union League Club, Chicago, ILSeptember 22, 2016

Presented bySteve Barnett, Esq.Connell Foley LLP

Historians tend to forget that their subjects did not know what was coming next.

- David Hackett Fischer, HISTORIANS’ FALLACIES – TOWARD A LOGIC OF HISTORICAL THOUGHT, 1970

What is industrial hygiene

“Industrial hygiene is a science and art devoted to the anticipation, recognition, evaluation, and control of those environmental factors or stresses arising in or from the workplace that may cause sickness, impaired health and well-being, or significant discomfort among workers or among the citizens of the community.”

- American Industrial Hygiene Association definition, 1959 to present

Milestones in the development of industrial hygiene

• Pre-Industrial Revolution• 1800’s-1910 Industrial revolution and dawn of IH• 1910’s IH Awareness• 1920’s IH Research• 1930’s Applied IH• 1940’s Institutionalization of IH

Milestones in the development of industrial hygiene

• 1950’s Extension of IH principles outside workplaces• 1960’s Cancer cases• 1970’s OSHA• 1980’s Hazardous waste and site remediation laws and

regulations, mold, indoor air quality• 1990’s Environmental and ecological risk assessment

Legal theories implicating IH state of the art• Strict liability• Absolute liability• Defective design• Failure to warn• Labelling• Premises owner negligence• Contractor negligence

Examples of IH state of the art referencesPliny, 79 AD. In 1902, it was written that,“In the great civilisations of antiquity, whether in the East, West, or in Europe generally, there was sufficient concentration of the forces of labour to produce the intensest forms of the maladies classed by Pliny as ‘diseases of slaves.’ Some of the most injurious processes known to us now are extremely ancient. To mention but a few: lead and quicksilver mining, the potters’ craft, and the textile processes of preparing and weaving asbestos and flax.”

- Adelaide Anderson, Her Majesty’s Chief Inspector of Factories, in DANGEROUS TRADES, Dr. Thomas Oliver, ed. 1902.

Examples of IH state of the art references

Pliny (cont’d)“Pliny (A.D. 50) refers not only to the difficulties in the weaving of asbestos, but also to the use of respirators to avoid the breathing of dust.”

- Donald Hunter, THE DISEASES OF OCCUPATIONS (4th ed. 1969)


Work clothes“The importance of wearing suitable clothing on the premises should be strongly impressed upon workers in dangerous trades. The ordinary or street-clothes should be taken off and replaced by special suits to be work during working-hours. It is not sufficient for a working-suit, jacket, or apron to be put on over the ordinary clothing. The working-suit should be taken off before the midday meal and before leaving the factory and exchanged for street-clothes. Working-garments should be cut perfectly plain, without folds or pockets, and should be made of strong, smooth, washable materials. By removing the working-clothes before meals and before leaving the factory, the poison is not carried into lunchrooms or into the homes of workers.”

- Tolman, SAFETY, METHODS FOR PREVENTING OCCUPATIONAL AND OTHER ACCIDENTS AND DISEASES, 1913


Change rooms“In dusty trades, cloakrooms, washing accommodations, and eventually douche-baths, separate from the workrooms should be provided for the workers. Conditions in regard thereto should be laid down by the competent authority.”

- Standard Codes of Industrial Hygiene, International Labour Office, Ser. F (Industrial Hygiene) No. 14, Geneva, Part 41 (1934).


Showers“It is desirable, in all dusty occupations, that the workmen should take off all their street clothing before beginning work, and this is absolutely essential when the occupation involves exposure to poisonous dust. For this purpose, suitable dressing-rooms, provided with lockers for street suits and separate compartments for overalls, are necessary. Facilities for washing and bathing, brushes, soap and individual towels should be furnished. In most of the civilized countries statutory provisions have been made for these sanitary requisites, in all establishments in which poisonous substances are manufactured or used, and the result has been most beneficial.”

- Kober & Hayhurst, INDUSTRIAL HEALTH, 1924


• Air sampling methods• Air sample analytical methods• Bystanders• Dust control methods (e.g., wetting)• Exposure limits (TLV’s, MAC’s, PEL’s, etc.)• Factory workers and end users• Fiber, particle size• Homes


• Non-US literature• Non-US workplaces• Respiratory Protection• State standards• Theory of carcinogenesis• Trades• Union knowledge• Visible dust• Walsh-Healy

Questions?

barnett 9-19-16

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