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V DEFENSE PRACTICE SEMIN; TumntIffs lEXHIB^T " t-164 ASBESTOS PERSONAL INJURY LITIGATION SEMINAR 1998-21C November 12-13,1998 Pointe Hilton at Squaw Peak Phoenix, Arizona exhibit THE DEFENSE RESEARCH INSTITUTE, INC. 750 N. Lake Shore Drive - Suite 500 Chicago, Illinois 60611 Historical Perspective: The Role of Industrial Hygiene in Asbestos Products and Premises Liability Litigation Lawrence R. Birkner, CIH, CSP, REA (CA) Vice President and Technical Director McIntyre, Birkner and Associates, Inc. v Thousand Oaks, California t \ c-i Table of Contents I. Objectives C-4 II. The History of Industrial Hygiene C-4 III. The Asbestos Historical Perspective C-5 IV. Fundamental Definitions C-9 V. The Processes of Industrial Hygiene C-9 VI. The Role of the Industrial Hygienist in Asbestos Management C-14 VII. Retaining an Industrial Hygienist for Asbestos Litigation C-15 VIII. The Industrial Hygiene as an Asbestos Expert C-16 IX. Using the Industrial Hygiene Expert-Examples C-17 X Ethics C-19 XI. Conclusion ' C-19 XII. Bibliography C-21 C-3 L Objectives The objectives of this paper are fourfold: (1) to provide a brief historical overview of the industrial hygiene profession, (2) to familiarize you with the unique workplace perspective of the industrial"" hygiene expert and the applicability of industrial hygiene to asbestos litigation^ (3) to give some examples of the application of industrial hygiene principles in litigation, and (4) to review some of the ethical issues counsel and industrial hygiene experts face. This paper is designed to pique interest in the depth and breath of what the profession offers, and spark thinking about possible new and innovative ways to litigate asbestos and other toxic tort cases. IL The History of Industrial Hygiene The profession of industrial hygiene has a long and rich history that can be traced back to Hypocrites (470-360 BC) who observed the disease-causing properties of lead. In 1713, Bernardino Ramazzini wrote De Mortis Artificum Diatriba, the first comprehensive analysis to make the connection between occupational exposure and disease. In the 1830s, McCready (US) and Thackrah (UK) published the first modem medical texts addressing the recognition of occupational disease. With the foundation established for exposure-disease recognition. Dr. Alice Hamilton, in the early 1900s, added the dimensions of evaluation and control to the study of occupational disease--crystallizing the applied science of industrial hygiene. Dr. Hamilton's research and publications, and the British factory regulatory model provided the rationale for government's involvement and leadership in the prevention and control of occupational disease and injury in the United States. The first modem laws regulating the work environment were promulgated by the British in 1802. These laws, which were supposed to control the workplace environment, were ineffective since they did not provide for inspection and enforcement The British Factory Acts of 1864 and 1878 required that ventilation be used to dilute and remove air contaminants from the workplace. The 1901 British Factory Act provided for the regulation of dangerous trades and the impetus for the investigation of workplace hazards and enforcement. In 1905, the Massachusetts Health Department appointed inspectors to investigate dangerous trades, formally establishing the government's role in the area of occupational health and safety. By 1948 all states covered occupational diseases in their worker's compensation programs. The first safety regulation was passed by Congress in 1912 to control the hazards associated with the use of white phosphorus in matches. In 1914 the US Public Health Service formed a Division of Industrial Hygiene. In 1922, Harvard established an industrial hygiene degree program, formalizing the profession. The 1936 Walsb-Healy Act (establishing safety and health requirements for contractors providing goods and services to the federal government) clearly established die federal government's role in regulating occupational health and safety. 04 In 1938 and 1939, respectively, the American Conference of Governmental Industrial Hygienists (ACGIH) and the American Industrial Hygiene Association (AIHA) were established. By the mid-1940s most of the states had occupational health programs and industrial hygiene staffs. In the 1950s, there was little progress in occupational health as the country was focused on post-war economic growth. The late 1960s, a period of immense social activism, spawned the era of health, safety and environmental legislation and regulation, culminating with the Occupational Safety and Health and the Environmental Protection Acts in 1970. See Table 1 for a more detailed history of the profession. Interestingly, the history and growth of the industrial hygiene profession parallels key 20th century developments in our understanding of asbestos health effects and regulatory response. Briefly--early hints of asbestos-related disease were seen in Great Britain before 1910. These observations correspond to the early work of Alice Hamilton which defined the profession. The confirmation of a relationship between asbestos exposure and lung fibrosis in the 1930s corresponds to the formation of the major industrial hygiene professional associations. The emerging recognition of a link between asbestos and cancer between 1965 and 1975 ties to Ijgislative developments that led to the formation of the Occupational Safety and Health Administration and the growth nf the industrial hygiene field, figure 1 shows the growth of the profession from 1940 to 1990, as measured by the membership of the world's largest industrial hygiene association. The figure also graphs the accepted asbestos exposure limits for the same period. III. The Asbestos Historical Perspective A brief history of asbestos and its uses will help us understand the magnitude of the asbestos challenge. The unique properties of asbestos, a generic name for a family of fibrous minerals, have been known since ancient times. Roman historians wrote about asbestos; Plutarch describes asbestos lamp wicks; C-5 Hereodotus mentioned the use of asbestos cremation cloths to salvage the ashes of the dead; and Pliny described the use of an animal bladder to protect slaves from asbestos dust in an early reference to occupational disease and respiratory protection. In modern times, practical uses of asbestos were first demonstrated in Quebec during the 1850s, by Henry Ward Johns. He developed a fire resistant composite roofing material by mixing asbestos with burlap, pitch and paper. Johns also formulated gasket material and pipe and boiler insulation. It is ironic that his death certificate indicates that he died of "dust- phthisis pneuomonitis." Following his death, Johns's company was purchased by C. B. Manville to form the Johns-Manville Company. Called the "Magic Mineral, the use of asbestos grew throughout the first half of the 20th Century. Its strength, chemical and temperature resistance and its abundance led to its use in a wide variety of products. Asbestos was considered a strategic mineral in WWII and its production was controlled by the federal government The government's massive war shipbuilding effort relied on asbestos products to insulate pipes, boilers; and later a sprayed-on material was also used to fireproof ship structures. Following the war, it was heavily used in a sprayedon steel fire protection system for multi-story buildings. In 1970, asbestos fireproofing was reportedly used in over halfofall multi-story buildings. In the early 1970s, the use of asbestos began to decline following the publication of various health studies by Dr. Irving Selikoff and his associates at the Mount Sinai School of Medicine in New York. In 1970, Philadelphia enacted the first ban on asbestos fireproofing products, and the EPA issued a nationwide ban on sprayed-on fireproofing in 1973. Since 1974, the peak year for US asbestos consumption, sales have declined from 800,000 metric tons to 30,000 metric tons in 1994. At the time of its formation in 1970, the regulation of asbestos was at the very top of OSHA's agenda. The agency's emergency temporary asbestos standard of 1971 began the consolidation of over 40 years of science and was certainly a defining moment in the protection of thousands of workers with exposure to asbestos. Today, asbestos is one of the most regulated materials on earth. C-6 Table 1 Historical Events In OccibaitonaHleatlh and Safety 1XOOJDOOBC Australopithecus used stones as toob and weapons. f*nt knappea suffered cuts and eye Injuries: bbon hunters contracted anthrax. 10.000 BC Neoithic man began food-producing economy and the ubon revolution In Mesopotamia. At end of Stone Age. grind ing of stone, bom. bone, and ivory tools with sandstone: pottery making. Inen weaving. Beginning of the history of occupations. ym BC Copper and Brorva Age--metal workers reloawd from food production. Metaturgy--the lint spectafeed craft. 370 BC Hippocrates dealt with the health of citizens, not workers. but dkt identify lead poisoning m miners and metolurgbt*. SO AO Plrsus Secundus (Piny the Bder) identttted use of animal blad ders intended to prevent bhdatlon of dust and lead fume. 200 AO Gden visited a copper mine, but his discussions on pubic health cid not Include workers' disease. Middle Ages No documented contributions to the study of occupational 1473 1500 1665 1700 1775 1830 1900s Stonbog recognized that the vapors of some metals were dangerous and descrbed the symptoms of Industrial pobonmg from lead and merctry with suggested preventive measures. InOefte Mefafca (1556). Georgius Agricola described every facet of mining, smelting, and refining, noting prevalent deeases and Occidents, and means of prevention including the need for ventiatton. Paracelsus (1567) described respiratory diseases among mners with an exceient description of mercury poison ing. Remembered as the father of toxicology. *AI substances are poisons .. .the right dose dfterenttates a poison and a remedy." Workday tor mercury miners at idrta shortened. Semordno Ramazzlni. "father of occvraatlonal medcine." prbtshed Oe Morbls Artfftcum Odfriba. (Diseases of Workers) and examined occupattond dseases and "cautions.* He Introduced the question. "Of vhot trade are you?" Aportroitof Paracelsus (1567) who b remembered as the father of toxicology. Perdvd Pott desorbed occupational cancer among English Chimney sweeps, identifying soot and the lock of hygiene measures as a cause of scrotal cancer. The result was the Chtmey-Sweeps Act of 1788. Charles Thockrds authored the first book on occupattond dseotot to be published in England. Hb views on dsease and prevention helped stimulate factory and health legbtation. Medcd Inspection and compensation were estabhhed In lew. Or. Alee Hamffon investigated many dangerous occupations and hod tremendous Influence on early regulation of occupotiond hazards In the United States. In 1919 me become the first woman faculty member at Harvard University and wrote Ejpbring fhe Dangerous Trades: Table 1-History of Industrial Hygiene C-7 Tabfe 1 (corttnutcO ***" Historical Events In Occupational Health and Safety 1902-1911 Federal and then state (Washington) legislation covering workera' compensation. By 1948 all states covered occupational diseases. First survey In the United States of the extent of occupattonai disease conducted by the ffnois Occupational Disease Commission. Massachusetts appointed health inspec tors to evaluate dangers ot occupations. 1910 First national conference on Industrial diseases in the United States. 1912 U.S. Congress levied prohtolttve tax on the use of white phos phorus In making matches. 1913 National Safety CouncS organized. New York and Ohio estab lished first state industrial hygiene agencies. 1914 USPKS organized a Division of Industrial Hygiene and Sanitation. American Public Health Association organized section on Industrial hygiene. 1916 American Association of Industrial Physicians and Surgeons formed. American Medical Association held first symposium on Industrial hygiene and medicine. 1922 Harvard established Industrial hygiene degree program. 1928-1932 Bureau of Mines conducted toxicological research on solvents, vapors, and gases. 1936 Watsh-Healy Act required companies supplying goods to government to maintain safe and healthful workplaces. 1938 National (later American) Conference of Governmental Industrial Hygienists formed. 1939 American Industrial Hygiene Association organized. American Standards Association and ACGlH prepared first list (maximum alowabie concentrations) of standards for chemical exposures In Industry. 1941-1945 Expanded industrial hygiene programs In states. 1941 Bureau of Mines authorized to inspect mines. 1960 American Board of Industrial Hygiene organized by AIHA and ACGlH. 1966 Metal and Nonmetafic Mine Safety Act. 1968 Professional Code of Ethics drafted by AAW. Code adopted by al four Industrial hygiene associations by 1981. 1969 Coat Mine Health and Safety Act. 1970 Occupation^ Safety and Health Act. 1977 Federal Mine Safety and Health Act. 1992-present Efforts to tignMeantty amend OSHAct. 1995 Revised Professional Code of Ethics odopted by an four Industrial hygiene associations. Table 1 (Continued) is reprinted, with permission, from The Occupational Environment--Its Evaluation and Control, Chapter 1 The History and Philosophy of Industrial Hygiene, V. E. Rose, AIHA Press, 1997. C-8 IV. Fundamental Definitions here is much confusion and misuse of a number of important concepts in the rieid of industrial hygiene and occupational health. Some of the difficult concepts include: Dose is the amount of a substance or energy actually absorbed per unit of volume or weight of an individual or organ. Concentration is the amount of a given substance in a stated unit of measure. For example, the unit volume or weight of a chemical per volume of air (part per million parts ofair (ppm), milligrams per cubic meter of air (mg/M3). For asbestos it is generally a fiber count per cubic centemeter ofair (f/cc)). Exposure is the state of being exposed to a concentration or magnitude of a chemical or physical agent It is important to note that exposure is not the same as dose. Hazard is thought of as a situation that is capable of causing harm. Thus the greater the risk, the higher the likelihood that hazard will cause harm. Risk is the probability and magnitude of harm. For chemical and mineral exposures, it is defined as a function of toxicity and exposure. Toxicity is a relative property of a substance and refers to the harmful effect (e.g, eye irritation, nerve damage, tissue fibrosis, or cancer, etc.) on some biologic mechanism and the condition under which this effect takes place (e.g., inhalation, ingestion, dose, etc.). Safe is thought of as being free from unacceptable risk, or conversely, acceptable risk is thought of as being safe. What is safe is a perception of the level of risk that exists in a given situation and a willingness to accept that risk by an individual or society. V. The Processes of the Profession The profession is built on four processes: first, the anticipation of potential exposures and their possible consequences; second, the recognition of existing exposures and their potential health outcomes; third, the quantitative and qualitative evaluation of the work environment and the fourth, design of workplace environmental control strategies. Using basic sciences such as chemistry, biology, and physics; applied sciences such as toxicology, epidemiology, medicine and engineering, and an understanding of business operations, the industrial hygienist ultimately seeks to to prevent occupationally related disease. C-9 Figure 2-Industrial Hygiene Processes V.l Anticipation and Recognition The first step in addressing a potential workplace health risk is the recognition that a potential exposure to a hazard exists. With the complexity of the work environment, anticipation and recognition of workplace exposures are the most difficult parts of the industrial hygiene process. They require a wide range of experience and knowledge--from staying abreast of changing developments in science, engineering and medicine--to developing an understanding of manufacturing, construction and service operations. Most important, however, is developing a firm grasp of the worker-work environment interface. C-io It is essential to have a strong knowledge of chemistry, physics, biology and toxicology and yet communicate to managers and workers in non-technical and non-threatening terms. To properly anticipate and recognize exposure to workplace hazards, the industrial hygienist and occupational health physician, must have open lines of communication with research and development organizations, operating management and the worker. Only in the last two decades, however, has the business-team concept in occupational health solidified. Anticipation, which requires a team approach, was only adopted as part of the recognition process in the 1980s, and to date, little has been written about it. Figure 3 depicts the process. Anticipation of Future Exposures Hazard Assessment Recognition of Existing Exposures Track developments in technology and identify the potential exposures associated with the technology. Determine how these technologies will be applied. Track developments in medicine and toxicology to assess agent hazards. Understand current technology, manufacturing processes, and exposures associated with them. Determine what substances or physical agents are used in the workplace in question and assess the physical, chemical and health hazards Influence the planning and design to help assure processes and work practices are affected to control exposures to employees. Assess the nature of health hazards. Conduct an initial walkthrough survey of the work environment to develop an understanding of the worker--workplace interface and the nature of potential exposures. Conduct a qualitative risk assessment, combining knowledge of the hazards and estimating potential exposures to the identified hazards to help determine the nature and extent of the evaluation processes. Figure 3. Simplified Anticipation and Recognition Process V.2 Evaluation Evaluation involves the examination and judgement of the amount, degree, and significance of health hazards in the work environment The process builds on knowledge gained in the anticipation and recognition process and involves a qualitative and quantitative assessment of the environment It requires building an understanding of the details of the work process--materials and equipment used, exposure controls, work schedules, production rates, work practices, as well C-il as taking measurements of exposures in the work environment. Figure 4 summarizes the evaluation process. Phase 1. Preliminary 2. Walkthrough Survey Action Review Anticipation and Recognition Data__________________________________ Determine process raw materials intermediates products bi-products wastes physical agents Determine process: steps equipment used work practices (correct and actual) production rates raw material consumption rate waste generation rates Identify exposure control methods and strategies that are in place______________ Qualitative Risk Assessment Develop a measurement (sampling) protocol defining, how many, when, where, and how samples are to be taken. Conduct exposure measurements and workplace observations Analyze samples by required laboratory methods Calculate exposures__________________ Place exposures in context of all operational and qualitative data collected, guidelines and standards. Outcome Evaluation strategy List of agents with potential exposure significance List ofjobs and tasks with potential exposures Estimate of process exposure variability Qualitative description of workplace/worker interface and exposure potential Exposure control strategies Areas of potential significant risk potential List ofjobs and tasks that provide a representative assessment of workplace exposures__________________ A sampling protocol that meets the level of scientific validity required by rcgulatio and internal requirements Raw data Analyzed exposures Conclusions about exposures Recommendations Report to management and Recommendations Control Figure 4. The Evaluation Process C-12 V.3 Control Once the environment has been evaluated and the nature and degree of exposure is characterized, decisions about the necessity for and type of control strategies are made. The fundamental assumptions that underpin the control of recognized workplace hazards are: All hazards can be controlled to some degree by some method. There are alternative strategies to control each hazard. Multiple controls may be required to achieve the desired mitigation level. Some controls are more cost effective than others. Control strategies may not be able to completely control the hazard. The primary objective of any set of control strategies is to interrupt the path between the source of the recognized, problematic exposure and the worker. Figure 5 depicts this concept and presents a number of general control strategies. EMISSION SOURCE Substitution Process change Automation Process enclosure Process Isolation Dry to wet methods Local exhaust ventilation Preventive Maintenance AIR PATH Change air direction Dilution ventilation Increase distance Erect barrier EMPLOYEE Move worker out of path Training and education Enclose Respirators Rotation Figure 5. -General control strategies at the source, path and the worker-- reprinted, with permission, from The Occupational Environment--Its Evaluation and Control, Chapter 31, General Methods for the Control of Airborne Hazards, D. JeffBurton, AIHA Press, 1997. The hierarchy of controls generally accepted by the industrial hygiene profession and regulatory agencies requires that the exposure be designed or engineered out of the process. If this is not possible, then other strategies that include employee scheduling (administrative controls), work practice design and training, and use of personal protective equipment may be employed. The hierarchy for addressing airborne hazards is listed in Table 2. C-13 Method Strategy Engineering , ,,. Elimination Substitution Isolation Enclosure Ventilation Process change Product change Dust suppression Preventative maintenance Adrainistrative/Management Program management Housekeeping Sanitation Work practices Education and training labeling and warning systems Environmental monitoring Waste disposal practices Rotation of employees Medical controls Personnel Protective Equipment Respiratory protection Other protective clothing/equipment Table 2--Hierarchy of exposure control VL The Role of the Industrial Hygienist in Asbestos Management In order to understand the role the industrial hygiene expert may play in litigation, it is important to comprehend his or her role in the asbestos management process. Since the early days of the profession, the industrial hygienist has played a role in the management of dusty materials. As knowledge about the relationship between asbestos exposure and lung fibrosis emerged in the 1930s, and the connection between asbestos exposure and lung cancer and mesothelioma reached consensus between 1965 and 1975, the position of the industrial hygienist has grown in significance. The role industrial hygienists play include: As the health professional, the industrial hygienist understands the health risks of asbestos and can relate the risk of exposure to employees, managers, engineers, regulators and jurors. As an air-monitoring specialist, the industrial hygienist has a solid understanding of sampling and analytical techniques and can ensure that environmental measurements are meaningful and interpreted accurately to assess the levels ofasbestos in the work environment As an engineer, the industrial hygienist has an understanding of the practical issues involved in contamination control, work area isolation, work practices, and in the use of personal protective equipment C-14  As a teacher, the industrial hygienist is routinely called upon to communicate technical and health risk information to lay persons, and to instruct workers in safe work procedures and management of resources required for assuring control. As a project manager, the industrial hygienist has experience in working with a team to achieve specific operational goals and to coordinate exposure control. VIL Retaining an Industrial Hygienist for Asbestos Litigation Now that we know what an industrial hygienist does, we can focus on the role the TH expert can play in developing and litigating product and premises liability cases. iTIslmportant to recognize that, unlike the legal or medical profession, there is no well defined educational route to becoming an industrial hygienist Hygienists generally start with a strong science base in chemistry, physics, biology or mathematics or a solid foundation in the applied disciplines of engineering toxicology or epidemiology. With this background many people practicing today have sought advanced degrees in industrial hygiene. There are only a handful of schools that offer undergraduate degrees in industrial hygiene, primarily*because it is believed that a sufficient science base cannot be developed when compressed with the applied industrial hygiene coursework. The American Board of Industrial Hygiene (ABIH) sets the standards for education and experience and board certifies industrial hygienists that meet its level of experience requirements. The Accreditation Board of Engineering and Technology (ABET) accredits university industrial hygiene programs. The profession is focused on bringing good science and engineering to bear on 'preventing occupational disease by controlling exposures, thus reducing risk. This mission requires that the industrial hygienist be able integrate and apply data from the basic sciences, medicine, toxicology, epidemiology, engineering, operations and management The industrial hygienist is, effectively, the integrator and conduit of this information into the workplace and is key in managing the multidimensional interface between the workplace and the employee: When retaining an industrial hygiene expert to provide consulting services or expert witness testimony in asbestos litigation, counsel should determine:* The education of the industrial hygienist Total years ofexperience Board certification in industrial hygiene Years and type of asbestos experience product manufacturing -research and development -construction -mining and milling -building operations and maintenance -plant operations and maintenance -automotive, etc. C-I5  Litigation experience and potential conflicts Historical knowledge -medical, epidemiologic, toxicology -regulatory -non-rcgulatory standards -warnings and labeling -product application Communications skills Authorship of books, chapters and articles addressing asbestos or related areas Research addressing asbestos or related areas Creativity and innovativness Selected properly, the industrial hygiene expert should be able to review the facts in the case and help to formulate creative and innovative scientific and technical strategies for litigation. They should be able formulate opinions based on exposure samples, available information about operating conditions, procedures, policies, depositions, interviews, etc. Given adequate information, they should be able to reconstruct a theoretical model of historical working conditions and provide exposure estimates' with a reasonable degree ot scientific certainty. "' VHL The Industrial Hygienist as an Asbestos Expert Industrial hygienists with their intimate knowledge of the workplace, can play a k*jy role in helping legal counsel in explain complex issues beyond those familiar to the ordinary witnesses, to judges and jurors. Specifically, an industrial hygienist can help develop litigation in the following areas: Explaining the concepts of hazard, exposure, dose, risk and safety. Analyzing and explaining the nature and degree of workplace exposure Helping to define what is safe. Analyzing and explaining the effectiveness of company industrial hygiene programs, policies, procedures, and their evolution over time. Explaining compliance and regulatory enforcement issues. Explaining historical "state-of-the-art" issues with respect to regulations, exposure standards, work practices, engineering controls, warnings and labeling, etc. Analyzing and explaining work practices, their resultant exposures to potential hazards, and the magnitude of subsequent risks. The advantage the industrial hygiene expert has is the broad base of knowledge and expertise used in occupational health. While the industrial hygienist cannot provide medical, toxicology, or epidemiologic opinions or judgements, he or she can advise C-16 a jury how this information has been used in making judgements about workplace protection or how the exposure limits or recommended guidelines have changed as medical science grew more knowledgeable. Subsequently the IH can explain how workplace conditions, labeling, warnings, use of personal protective equipment and required medical evaluations evolved as the knowledge in the field grew. Since the IH has frequently been the only information conduit of occupational health data to and from the worker and management, they are qualified and well equipped to explain these issues to a jury. More importantly, they can discuss the concepts in terms that can be understood in the courtroom. Below are a number of examples of where the industrial hygienist can be used in asbestos premises and product liability litigation. DC. Using the Industrial Hygiene Expert-Examples 1. Product Applications--The industrial hygienist can discuss the asbestos content of products, their application and exposure potential. They can review the use of the product in the context of state-of-the-art knowledge of health hazards, regulatory standards, and control technology. The expeitshould be able to provide analogies and examples to help simplify the complexities of key points of science and engineering. When exposure data is available, the expert should be able to use it to provide an assessment of the exposures and to place them in the appropriate historical scientific and regulatory context 2. Premises Exposure and Risk--The industrial hygiene expert can evaluate the exposure to building occupants and maintenance workers associated with installed building materials and their components, such as abestos. They can review and discuss the condition of installed materials. Based on existing medical and epidemioloical information, the expert can aid in the estimation of risk associated with building occupation and compare it to the risk of breathing outdoor air. 3. Explaining Scientific Principles--The expert will be able to explain concepts like dose-response, exposure, hazard and safety to a jury using ordinary common-experience examples. The expert can take these principles and demonstrate how they relate to the case at hand. For example, the IH can demonstrate, how and why different work practices with asbestos containing material can yield different levels of exposure. 4. Scientific and Regulatory History When addressing issues such as asbestos exposures, the expert familiar with the literature and the changing regulatory environment can discuss asbestos levels found in the work environment, exposure control methods, and the accepted exposure limits for the time period in which the exposures in question occurred. The contribution of workplace exposures to cumulative-life time exposures and the risks that were understood in die exposure timeframe can also be addresed. Table 3 is an example of a graphic that an industrial hygienist might use to help a jury understand the changing nature of the science and the regulations that developed in response to this knowledge. C-17 ^s^^^Year^ <1969 Accepted Safe Exposure limit Vet Accepted Safe Cumulative Exposure for 50 year working life in f/cc-yean Standard formulated to prevent 5mppcf est. 30tfcc 1500 Asbcstoris 1969 12 600 Asbestosis 1971 12/J*f 600/500 Asbestosis 19721973** (12/7/71) 5 250 Cancer 1976 2 100 Cancer 1986 0.2 10 Cancer Authoritative Body USPHS ACGIH Wtlsh-Heaiy ACGIH* OSHA *I2f7cc proposal by ACGIH--never formally adopted Adopted by ACGIH in 1973 OSHA ACGIH OSHA ACGIH OSHA ACGIH Table 3. Example of an exhibit to explain the change in scientific and regulatory knowledge 1994 0,1 5 Cancer OSHA ACGIH 5. Explaining Exposure Monitoring--One of the central activities conducted by industrial hygienists is exposure evaluation. When it is necessary for a jury to understand the basic concepts of exposure measurement and analysis, the industrial hygiene expert can explain collection and analytic methods, and can place the results in context. When it is necessary to evaluate a set of samples that has been placed into evidence, the expert can discuss the results and their meaning in terms of past and current standards. The hygienist may also be able to draw conclusins about the risk, if any, associated with the exposure data. 5--Authoritative Standards--Regulations are difficult to understand, even for those who work with them daily. The expert can help a jury unravel the motivation and meaning of standards. For example, authoritative exposure limits for asbestos have been established by the American Conference of Governmental Industrial Hygienists (ACGIH) and the Occupational Safety and Health Administration. The IH expert can help explain the underlying philosophy, and science used to establish safe exposure limits. For example (see table 4): C-18 Authoritative Underlying Standard Setting Philosophy Bodv ACGIH "...airborne concentrations of substances...under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse health effects." OSHA Standards ... the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by the standard for the period of his working life. (OSHA Act (Pub. Law 91-596)) Sec.6(bX5)). Table 4--Standard Setting Philosophy The industrial hygienist can also explain how these standards have been applied by the occupational health professions. The expert can review specific details of these regulations including the preamble, exposure controls, use of respirators, medical surveillance, and exposure monitoring. In the period of time prior to federal regulatory standards, the expert can elaborate on generally accepted state requirements or others accepted by the profession. X. Ethics The role of the industrial hygiene expert is to provide information based on expertise, and to offer opinions that, to the best of his or her knowledge, arise from objective considerations of all the variables involved. The industrial hygiene expert should be able to state that opinion no matter whether retained by counsel for the plaintiff or defense. Opinions, given the same set of facts, will be the same for both. It is important that industrial hygiene experts maintain their objectivity and integrity and not view the case through the attorney's lens, but provide opinions strictly on the facts as presented. The industrial hygiene expert must view the entire set of evidence in the case and should not make decisions based only on counsel's selection of documents. The industrial hygienist must be erven all documents, depositions, data, product information, site tours, and anything else that is necessary and reasonable to form an opinion. <--------- It is also important for the industrial hygienist to recognize the boundaries of his or her knowledge and expertise and to make sure that counsel is fully apprised of those boundaries. The industrial hygiene expert must not be persuaded to go beyond his or her technical limits. The profession's code of ethics appears in Figure 6, and it should be used as a tool to guide the relationship between the industrial hygiene expert and legal counsel. XL Conclusion Workplace health issues are complex, involving the evaluation of variable work environments, multiple exposures, changing scientific and engineering knowledge, altering demographics, and new and revised regulations. Industrial hygiene provides C-19 a broad, multi-dimensional perspective that integrates the basic sciences, with the applied sciences of medicine, toxicology, epidemiology, and engineering. The industrial hygiene approach defined in this paper will give counsel, judges and jurors a framework in which to see and grasp premises and product litigation in a manner that will aid in their fair and effective case adjudication. Code of Ethics for the Practice of industrial Hygiene OMacthm These rennae provide sundards of ethical conduct tor Indua* trial Hypsrueri as they practice thair profession and exarcue their primary mission. to protect the health tad well-being of mtaoi people aad the public from chemical. microbiolopcal. aad physical health hasarda proeeat at. or eaunataag from. Ioduatrial HypeaiaU aha11 practice their pro{season follow* ia( ncocaaed erientific priadplaa with the realisation that the lives, health, aad well-baing of people may depend upoo thair prafaaaiaoal judgment aad that they an obligated to pro* tact the health aad well-being of people. MTESFEETNE CU0EUNE5 Industrial HypanfrW should base thair professional epioiooa. judgments. iatatptvubcni of findinn. and tummmendatinna upon ronngnitoil erientific principles aad proedeea which pre* eerve aad ptomet the health aad wuU-beiag of people, e ladustnel Hjgmncte shall pot distort. altar, or hide teemia indi&B(pniiiiiDBii opi&ioM or fttH*****>4 e Industrial Hypenisu shall not knowingly make etaumeats lint aiiiiniimiiir la limit fai n Tnduefrial Hypenisu ahaU couneel afiiected paztiea {actually regarding pntentitl health hake aad precaatmoa aaeaaaary to avoid adrone health effects. MlBMSnff CUDEUNES Indiatrial Hygienists ehould obtain infarwietmn regarding po tential health neks hem reliable sources. lndnanriel HypeaiaU ehnuld review the **** *nadity available arianuuaon to factually iafrrm the affected part--. laduetiial Hyptniau ehould inmate appropriate meaeusue to eeelk-*,k* *--lt* -* ---ly --u *- i-- -r. CANON 4 Industrial HypeaiaU shall avoid orcumiuncsi where a -~-*p---<* of professional judpneot er conflict of interest may anas. MTERKETTVE GUIOBJNES e laduotnel HypeaiaU should promptly disclose known or potto- cfel conflicts of in--to parties that may bo affected. , a Iaduethal Hypenutt shall not aolidt er accept financial er / ocher valuable roneidsrenon from any party, directly or indi-tfl redly, which ie intended to influenro professtonal judgment. liyf--**^*1 Hygienists (hall not offer any substantial pit er othor valuable considerstroo. in order to secure work. e Industrial Hygienists should advise their dienu er employer erhsn they initially believe a project to oaprove industrial hy giene roodeinna will not be sueoeuhaL e Industrial HypetueU should not ecoept work that nefitively iBpACfel tltt ability ID fulfill dturiwy OMBBitBIDU. s In the evert that this Code of Ethics appears to conflict with emitter pmfiaairmtl nmU to which Industrial Hypemats'are t*--*t they will resolve the nrmflirt in the --*-- that pro* Cacu the health ef affected pertiee. CANONS Industrial Hypenisu shall perform aervioes only in the ar eas of thair oompeunoe. MTBPBETTVE GUKUNES Industrial Hygienists ehould undertake to perform services only ii hen qualified by education, cmiaiag, or azpariaaoe to the specific *--h---*1 fields involved. unless sufficient nietenre is provided by quahfisd --ociatie. ooosultsnte. or employees. Industrial HypeaiaU shall ***- appropriate certifieetioae, ropetrstinne. sodfar bcenees as required by federal, tuu. auditor local repibtory aqencsse pnor to providing induetrial hypanc semoct. where such credentials sre required. Industrial Hypenisu shall affix or author-- the use oftheir seal, stamp, er eipueme only erheo the document is proposed by tb* Industrial Hypeust or someone undsr their directum lad--i ill Hygienists ahaU keep confidential perooaal aad buaaaaaiafmmatieaafataiaadduriB(thaaKerciaaefiadue* trial hypsue actjvitia*. except when required by law or over* ridiac htakh aad safety cot Ii iml Hyfwt-- ehould riport pad mmmnniroto iafama* echia ai-ssisry to protect the health and safety of work- em oad the cnmmanitr- Maaem wh-- the health aad hvua af peepla ere eadaapmed. 1 od--rial Hypen--s shall woofy them employer, cheat, er led--nel Hyponsau ehnuld releeee confidential peronatl er bueomee mfcrmadaa only enth the iafarmerinn owuere npieee authon--. except erheo then a e duty to daacloee informsUoa ee leeeoed by law or ropiletinn, Indudrial HypemtU (hall ad respoaiibly to uphold the integrity of the prafenioa. NTEBPSETNE CUDELMES e Industrial Hypenisu shall avoid conduct or practice which IS likely to discredit the preface inn or deceive the public. e Industrial Hypsnists shall not permit use of their name or firm name by any person or fins which thry haronaeoa to believe fngapng In fraudulentor (nhnoist industrial hygiene pro--. Industrial Hyps--ta shall not use automeau m advertising lye 'f*i* -- ----- ---**.~t istevisl miaropceaenu* uon affact er emittiag a material fact necnaary to keep cute* mil fros hiiif mlHdtflfe Industrial Hypemau thafl not kaoenaqiy permit their employ ees. splejin.arethers toauempiesontthe individuals' pro* fesssosisl background, expert--, or eanncee erhich ero nerspneeiaeta-- effect. e laduetnal Hypenisu shall not imipiiienl their professional rdm-iuoa. sspenenro. er oudantiala. Ftgura dr- Thq Joint Coda of Ethics tor the Piachca of Induatrial Hygiona andoned by the AIHA, ttw ABIH, tha AAJH, and the ACGIH. (From ACGiH Todayi 3(1). January 1995.) C-20