 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alder v. Bayer Corp.11/26/2002
ESENT AND HARM HAS OCCURRED?
A. Evidence of Exposure
The district court held that "plaintiffs are unable to prove exposure to any chemicals, let alone levels known to cause known toxic effects," and are therefore unable to prove causation. Certainly Technicians' difficulty in proving exposure to toxic levels of chemicals is compounded by the fact that no one actually tested the air quality in the mammography suite until after April 1995 when the hospital remediated the ventilation by installing a seven-inch vent directly to the outside.
AGFA points out that industrial hygienist John Spencer conducted a "worst case scenario" test after the improvement in the ventilation in which he blocked all the vents during the processing of mammography films. The test did not indicate toxic or, for some substances, even detectable levels of chemicals. The exact parameters of the tests are unclear from the record. It is clear, however, that before remediation the ventilation was woefully inadequate. The printed report of air quality tests conducted by OSHA on May 16, 1995, stated that
[Technicians] had been complaining about chemicals in the film developer (Curex Compact Daylight load Mammo System). At the time there were no vent systems attached to the machine. Fixers and developers are used in the machine. The fixer contains ammonium thiosulfate, acetic acid and ammonium sulfite. The developer contains among other chemicals glutaraldehyde and hydroquinone. Initially the Mammotech room had only two air exchanges per hour. (Emphasis added.)
According to the findings of fact of the University of Utah independent medical panel referenced above, " thers started calling [Jones] 'canary,' and claimed they knew how bad the chemicals were by how fast she would lose her voice." The medical panel further noted that "other individuals in addition to Ms. Alder were experiencing regular symptomatic irritative responses in the work environment and that a range of photographic chemicals including hydroquinone and glutaraldehyde were used on a very regular basis."
AGFA does not deny that the Curix machine operated in this environment, used photo processing chemicals, and produced an exhaust stream at least potentially laced with chemicals. Murray at various times both designed a deflector to direct the exhaust stream away from Technicians' faces and installed the AGFA ventilation kit. He recorded in a written action slip that he had installed the vent kit on a trial basis "to try to improve fume problem." Furthermore, the stringent warning in AGFA's own Planning Specifications instructed: "Make sure there is adequate air exchange in order to prevent too high a concentration of chemical fumes building up. An air exchange rate of 10 times the room volume per hour is required." (Emphasis added.) This in connection with OSHA's finding of an exchange rate of only two room volumes per hour constitutes evidence of chemical exposure, especially in association with Technicians' symptoms.
At the very least, this set of circumstances gives rise to the array of factual arguments noted in Technicians' briefs on appeal. Technicians assert that Spencer's tests could not indicate the extent of exposure sustained by Technicians, or anyone, because he ignored the issue of cumulative build-up. We agree. If, for example, the ventilation rate was short by at least eight complete air exchanges per hour, what was the cumulative chemical concentration in the air by the eleventh hour? Did the ventilation run continuously, and was the air completely refreshed at night? If not, what was the concentration by quitting time on Friday, or after a week, a month, or two years?
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|