1. www.connellfoley.com
Industrial Hygiene and State-of-the-Art
in Asbestos and Toxic Tort Claims
The National Forum for Environmental and Toxic Tort Issues
23rd
Annual Conference
Union League Club, Chicago, IL
September 22, 2016
Presented by
Steve Barnett, Esq.
Connell Foley LLP

2. 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

3. 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

4. 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

5. 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

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

8. Examples of IH state of the art references
Pliny, 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.

9. 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)

10. Examples of IH state of the art references
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

11. Examples of IH state of the art references
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).

12. Examples of IH state of the art references
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

13. Examples of IH state of the art references
• 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

14. Examples of IH state of the art references
• Non-US literature
• Non-US workplaces
• Respiratory Protection
• State standards
• Theory of carcinogenesis
• Trades
• Union knowledge
• Visible dust
• Walsh-Healy

15. Questions?