Document 5DJ5enJomOZRwGvjwenxnzJxV

v STATE OF CALIFORNIA COUNTY OF MENDOCINO ) (SS: AF3F30ID7.AVVJVIT OF ) MARC LAPPE. Ph.D. I, Marc A. Lappe, being first duly sworn according to law, depose and state as follows: 1. I am presently Professor of Health Policy and Ethics at the University of Illinois, College of Medicine, and beginning in September of 1994, I will serve as the Director for the Center for Ethics and Toxic Substances. Attached hereto as Exhibit A Is a true and complete copy of my Curriculum Vitae. Z I have reviewed summaries of the depositions of Jack H. Wolfsie, Walter D. Harris, Benton R. leach, J. Dexter Forbes, William Emerson Fletcher, MX)., Richard Kogler, Lavem Landry, and Joseph P. Variant taken in the case of Burnheimer v. Uniroval Chemical Company. Incorporated (Lake Cty. Common Pleas CL No. 91CV001653), as well as Uniroyal's answers to interrogatories in that action. 3. From my review of the above described material, I have found the following information of particular significance in forming my opinions in this matter: a. Harry Burnheimer began to work for the U.S. Rubber Company, now known as Uniroyal, in 1949. He worked in the Painesville, Ohio plant, which converted the monomer, vinyl chloride, into a polymer, polyvinyl chloride. Mr. Burnheimer was an instrument repairman, and as such he repaired the equipment URL 23202 T' used to create polyvinyl chloride monomer. It was known in the mid 1960's that workers performing such activities were routinely exposed to high levels of vinyl chloride and could develop health problems as a result His opportunity for exposure lasted from 1949 until 1974, when Uniroyal ceased to use vinyl chloride at that facility. In 1990, Mr. Bumheixner was diagnosed with angiosarcoma of the liver, a tumor causally linked to vinyl chloride. He died shortly thereafter. b. Prior to 1974, Uniroyal never adequately monitored its employees exposure to vinyl chloride. Hie lew samples which were taken in late 1972, 1973, and 1974 were insufficient to constitute a monitoring program to protect worker health. The company monitored airborne vinyl chloride concentrations only for explosion detection purposes. Explosion detection levels of the monomer are somewhere between sixty and two hundred and fifty thousand parts per million (60,000 - 250,000 ppm). c. The engineering controls which were in place at the Painesville plant to minimize emission of airborne vinyl chloride were directed toward economical value, that is, they were principally an economic incentive to recapture the monomer. No protective breathing devices were required to be worn by workers who were potentially exposed to vinyl chloride. The only protective dothtng 2 URL 23203 required of UmroyaJ workers was hard bats, safety glasses, and gloves. d. Uniroyal's knowledge of the toxic effects of vinyl chloride commenced in 1964. when Dr. Wolfsie became the Corporate Medical Director for UniroyaTs predecessor, U.S. Rubber Company. Dr. Wolfsie had an extensive library on vinyl chloride before joining the company, and thereafter he built an even larger reference library. He subscribed to scientific journals and joined organizations such as the American Academy of Chemical Toxicology. That same year, Walter Harris became Uniroyal's Corporate Industrial Toxicologist He also collected literature regarding toxicology matters, which was sent to the library along with the information Dr. Wolfsie gathered, c. Dr. Wolfsie professes to have limited memoiy regarding the contents of his library, but it is known that world literature existed as early as the late 1940's referencing the toxic effects of exposure to vinyl chloride and/or polyvinyl chloride. According to the sworn testimony of Walter Harris, UmroyaTs library contained a 1954 Chemical Safety Data Sheet (CSDS) for vinyl chloride, which provided that "the presently accepted upper limit of safety as a health hazard is 500 ppm." Although Dr. Harris was aware of that threshold limit value. Uniroyal did not undertake to engage 3 URL 23204 'V in monitoring of vinyl chloride exposure, levels of its employees at the Painesville plant to assure that this level was not exceeded 1 In February, 1969, the University of Michigan released a study titled "Epidemiological Investigation of the Polyvinyl Chloride Industry in Reference to Occupational Acroosteolysis." Acroosteolysis was known at least as early as 1961 to be caused by vinyl chloride exposure. It is typically characterized fay degeneration of the bones in the distal portion of the fingers. Uniroyal participated in the 1969 University of Michigan study, and both Wolfsie and Harris were aware of it As a result of the Acroosteolysis threat, Uniroyal began to routinely x-ray the hands of its workers at the Painesville FVC plant, to screen them for the disease. g. The University of Michigan report states "To assure that atmospheric concentrations are below this level," meaning S00 ppm, "air analysis instruments of adequate sensitivity should be used The flammable vapor detectors at most of the plants gives a positive reading only down to 400 to 800 parts per million of vinyl chloride. A more sensitive instrument of this type is commercially available that reads to a tenth of these levels. Also, a portable chromatograph has recently become commercially available which has even greater sensitivity." Uniroyal did not 4 URL 23205 obtain such an instrument, and took no 'action to alter its protocol to reduce the risk of harm to its employees. h. On May 22, 1970, an Italian research team headed by Dr. PJ- Viola, released a study which revealed that tumors had developed in rats exposed to vinyl chloride. This study was formally reported in the medical literature in 1971, but Dr. Harris was aware of Viola's study even before that date. In response thereto, Dr. Harris wrote to Benton T feel that it is probably necessary for the industry to run a dosage series to determine whether levels in the range of practical working conditions have any effect.. Thus one cannot say from present data that there will be no response URL 23206 at 1,000 or 100 parts per million * Despite this information, however, there was no immediate change in the protocol within the Painesville plant with respect to monitoring air levels or requiring protective clothing. i. In 1971, the American College of Government and Industrial Hygienists suggested Na time-weighted average threshold limit value of 200 parts per million... to prevent adverse systemic effects from long-continued daily exposure" Dniroyal did not adopt this standard or take any action to reduce its employees' exposure. j. In 1971, Benton Leach became the Factory Manager of the Painesville Uniroyal plant. Leach and Harris both received the 5 URL 23207 1972 Manufacturing Chemists Association (MCA) Chemical Safety Data Sheet (CSDS), which states that "[t]he primary hazard of vinyl chloride is associated with excessive respiratory exposure. Exposure to high levels may produce liver injury." Prior to reading the 1972 CSDS, both Leach and Harris were aware that chlorinated chemicals, such a vinyl chloride, could produce liver damage, and in fact Harris admits that it was well known at the time. k. On November 14,1972, Harris drafted a confidential company memo regarding a meeting of the Technical Task Groups which he had attended that day. Therein, he wrote. The work in Europe indicates that we have a problem which cannot be ignored." He was referring to the studies of another Italian scientist. Dr. Cesan Maltoni, who found vinyl chloride toxicity at Levels as low as 250 ppm. 4. Based upon my review of the above described material, my experience, training, and education, 1 have formed opinions regarding the matters at issue in this case. 5. It is my opinion that Harry Bumheimer died as a result of his occupational exposure to vinyl chloride. 6. It is my opinion that in causing its unprotected employees to be chronically exposed to vinyl chloride at unmonitored levels. Uniroyal 6 V exposed its employees to a risk sufficiently great that serious harm to one or 4 more of its employees was substantially certain to result This is particularly true for workers whose job description maximized the potential for overexposure to the monomer, such a Harry Bumheimer. 7. It is my opinion that Uniroyal was aware that its conduct was substantially certain to result in serious harm to its employees, in light of the fact that Uniroyal was aware of the known serious toxic effects of vinyl chloride, meiudmg degeneration of bone structure, yet took no action whatsoever to reduce the level of exposure of its employees who would be continuously over-exposed for periods spuming decades. Despite a recommended exposure level of not more than 500 parts per million. Uniroyal monitored its plant only for airborne concentrations of 60,000 parts per million. Uniroyal continued to fail to take any action to protect its employees from harm, even after learning that vinyl chloride had known oncological effects. In fact. Uniroyal continued to fail to take any preventive measures whatsoever until forced to do so by the Occupational Safety and Health Administration of the United States Government 8. It is my opinion that if Umroyal had utilized available precautionary measures to protect its employees from the known serious toxic effects of vinyl chloride, it is more likely than not that Harry Bumheimer would not have contracted angiosarcoma of the liver, and would not have died. 9. The contents of this Affidavit are based on my personal W l- 23208 & v --3 7 Vni^irrtgr as to which I am competent to testify. FURTHER AFFIANT SAYETH NAUGHT. MaRC a. IaPPE Sworn to before me and subscribed in my presence this day Of . 1911 . NOTARY PUBLIC CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of C/iLtPOfaJiA County of. H^AJDDC/f^O } on irA-*y before nw, LiuDn // fautouM* Doite* fUuC. DATE NAME. TITLE Of OFFICER EJS, 'iAtt 00E. NOTARY PUMJC* Hflec LfiePe personally appeared NAMEtSlOFSONERfS) C3 personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac UNDAM. UUWAft Comm. * 976196__ NOTARY PUBUC OUffOMM UtodxbeCaa^r J J _ 3 v v v yj V V "V O' A knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITN -SS my band and official seal. hn. ICjlCuu No. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though nw doss not rnquw t Notary id fll tn Dm data bskow. doing so may prow InwAmtoltio parsons ratyoiQ on Bis Oocanon QMOMOUAL CORPORATE OFFJCER(S) TTTU<S| PARTNER(S) LIMITED GENERAL ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: SIGNER IS REPRESENTING: NAME OF PERSONS) OR ENTTTY(IES) URL 23209 THIS CERTIFICATE MUST 5E ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Though ihs data roquostsd hart a not roowroa by tsw. it eouW prtvont trauduiont roanocfimom ot aw term SIGNATURE OF NOTARY OPTIONAL SECTION TTTLE OR TYPE OF DOCUMENT. AFFuMui-r NUMBER OF PAGES___ DATE OF DOCUMENT. SIGNER(S) OTHER THAN NAMED ABOVE. aasMajcjcjcgaom 01993 NATIONAL NOTARY ASSOCIATION * 8236 Aommot Aw.. P.O. Box 7164Canogs Park. CA 91309-716 8 * V CURRICULUM VITAE July 1994 NAME: ADDRESS: DATE OF BIRTH: PLACE OF BIRTH: PHONE: SOC: SEC: NUMBER: Marc Alan Lapp 47910 Signal Port Road, Gualala, CA 95445 January 14,1943 Irvington, New Jersey (707) 884-1846 140-34-7851 EDUCATION B.A. Ph.D. Biology Experimental Pathology Wesleyan University 1964 University of Pennsylvania. .1968 URL 23210 HONORS AND AWARDS: 1960-1964 1964-1966 1968-1970 1968-1970 1975-Present 1979-Present 1980-Present 1981-1985 1983-Present 1988-1991 Wainer-Chilcott Scholar. NIH Trainee. Anna Fuller Fund Fellow. Honorary Postdoctoral Fellow University of California. Member, Bioethics Advisory Committee, National Foundation, March of Dimes Fellow, Hastings Institute of Society, Ethics and life Sciences Invited Member, New York Academy of Sciences. Sustained Development Award, National Science Foundation. Board of Directors, Committee for Genetic Responsibility. Board of Directors, Health & Medicine Policy Group, Chicago. GRANTS 1972-1975 1986 1989 1991-1992 Principal Investigator, *Ethical Issues of Generic Knowledge" National Institutes of Health GTE Lecture Series Grant March ofDimes Grant, "Parental Exposure to Toxic Substances and Birth Outcomes* Principal Investigator, "Justice and the Human Genome" U.S. Department of Energy l EDUCATIONAL POSITIONS 1966 1965-1967 1968-1969 1968 1969-1970, 1980-1981 1969-1970 1971-1974 1971-1976 1972-1975 1975 1976-1978 1978-1979 1979-1981 1981-1985 1982-1983 1985-1986 1986-1988 1988-Present 1990-Present 1988- 1994 1991-1994 1999* 1994 1994-Present Graduate Supervisor of Pre-college Training, The Jackson Laboratory Teacher, Free University at University of Pennsylvania. Teacher, Free University at Berkeley. Lecturer, University of California, Berkeley. Staff Instructor, University of California Extension, Berkeley. Consultant in Biology io Worth Publishers, New York. Adjunct Assistant Professor, State University of New York, at Purchase. Associate for the Biological Sciences, Institute of Society, Ethics and the Life Sciences, Hastings-on-the Hudson, New York. Principal Investigator, NIH Grant to study Social and Legal Aspects of Human Genedc Research. Guest Instructor, Sarah Lawrence College Program in Human Genetics. Chief, Office of Health, Law and Values, Department of Health, California. Chief, Office of Planning and Evaluation, Department of Health Services, California. Chief and Staff Toxicologist, Hazard Evaluation System and information Service Department of Health Services and Department of Industrial Relations. Adjunct Associate Professor of Health Policy, University of California, Berkeley. Special Consultant, Department of Consumer Affairs. Sciences Editor, Callaghan & Co., Toxic Monograph Series. Director, Humanistic Studies Program, Professor, University of Illinois, at Chicago, Affiliate College of Pharmacy Appointed Member: Appeals Board of the Love Canal Medical Fund. Consultant to Medical Devices and Radiation Panel, FDA Professor of Health Policy & Ethics, Univ. of Illinois, College of Medicine. National Consultant* The Human Genome Project and Women Visiting Scholar, University of Washington Director, Center for Ethics and Toxic Substances Adjunct Prdfessor 1994-1995 2 URL 232 H / V URL 23212 HOUSE AND SENATE TESTIMONY (Washington, D.C.) 1977 September? Testimony before House Subcommittee on* Science and Technology, Recombinant DNA Research and Public Health. November 2 Testimony on Freedom and Responsibility in Science before Senate Commerce Committee . 1982 November 18 Testimony (submitted by invitation) to House Subcommittee on Science and Technology on Ethics of Developing Treatment for Human Genetic Disease. 1985 December 18 Testimony on Biotechnology and Government Policy, Subcommittee on Oversight & Investigations, Senate Commerce and Energy Committee, 1988 November 22 Testimony on Disclosure and Informed Consent, before the Panel on Medical Devices, Food and Drug Administration. 1991 June 11 Testimony on adequacy of safety testing of injectable silicone, Human Resources &. Intergovernmental Relations Subcommittee of the Committee on Government Operations, House Representations of 1992 June 4 Testimony on health policy issues surrounding the development of dental prosthetic devices. Human Resources & Intergovernmental Relations Subcommittee of the Committee on Government Operations, House of Representations ORGANIZATIONS American Association for the Advancement of Science American Public Health Association American Chemical'Society Hastings Center National Environmental Health Association New York Academy of Science Scientific Advisory Committee to Mothers and Others Society of Environmental Toxicology and Chemistry Editorial Board, International Journal of Occupational-Medicine and Toxicology 2 URL 23213 PUBLICATIONS 1. Lappd, M.A. "Evidence for the antigenicity ofpapillomas arising on isografts of initiated skin," Proc. Am^ Assoc. Cancer Res. 7:40, 1966 (abstract). 2. Lapp6, M.A. "Immune elimination of pre-malignant papillomas in isografts of initial skin," Proc. Am. Assoc. Cancer Res. (9:39, 1968, (abstract of paper presented at 9th annual meeting at AACR). 3. Lapp6, M.A. "Evidence for the antigenicity of papillomas induced by 3-methylcholanthrene." J. Nat. Cancer Inst. 40:823-840,1968. 4. Lapp6, M.A. "The role of immunologic surveillance during skin careino-genesis in the mouse," Ph.D. Dissertation, University of Pennsylvania, Philadelphia. (LC card. no. Mic. 69-15, 079). Ann Arbor, Michigan, University Microfilms, Inc., p. 84, 1968. 5. Lappe, M.A., Graff, RJ. and Snell, G.D. "The importance of target size in destruction of skin grafts with weak incompatibility." Transplantation 7:372-377,1969. 6. Graft, R.J., Lappd, M.A. and Snell, G.D. "The influence of the gonads and the adrenal glands on the immune response to skin grafts," Transplantation 7:105-111,1969. 7. Lappe, M.A. "Tumor specific antigens: Possible origin in premalignant lesions," Nature 223:82-84,1969. 8. Lapp6 M.A. and Prehn, R.T. "Immunologic surveillance at the macroscopic level: Non-selective elimination of premalignant skin papillomas," Qneer Research 29:2374-2378,1969. 9. Lappd M.A. and Blair, P.B. "Interference with mammary tumorigenesis by antilymphocyte serum," Proc. Am. Assoc. Cancer Res. 11:47,1969. (abstract of paper presented at 11th Annual Meeting of AACR). 10. Lappi M.A. and Steinmuiler, D.S. "Depression of weak allograft immunity in the mouse by neonatal or adult exposure to uiethan," Cancer Research 30:674-680,1970. 11. Lappd, M.A. "Chemical and Biological Warfare," In: The Social Responsibility of the Scientist. Martin Brown (ed.). The Free Press, Berkeley. 12. Lappi M.A. and Prehn, R.T. "Predictive value of .skin allograft survival during the development of ureihan induced lung adenomas in BALB/c mice," Cancer Rfgearrh 30:1357-1361,1970. 4 URL 23214 PUBLICATIONS Coat'd. 13. Lapp, M.A. The ecology of cancer," Contact Point 48:140-146,1970. 14. Lappe, M.A. "Failure of long-term immunologic control 3-methycholanthrene-induced skin tumors in the autochthonous host,- (Presented at the 7th Annual Meeting of the Reticuloendothelial Society, December 1970). J. Reticuloendothelial. Soc. 10:120-130., 1971. 15. LappS, M.A. "Evidence for immunological surveillance during skin carcinogenesis: Inflammatory foci in immunologically competent mice,- Israel J. Med. Sci. 7:52-65, 1970. 16. Blair, P.B. Kripke, M. Lapps, M.A., Bonhag, R.S. and Young, L. "Immunologic deficiency associated with mammary tumor virus infection. Hemagglutinin production and allograft response.* J. Immunol.. 106:364-70,1971. 17. Lapps, M.A. "Genetic Control,* N. Eng. J. Med. 286:49-50,1971. Getter to the editor). 18. L^ppS M.A. and Schalk, J. "Necessity of the spleen for balanced secondary sex ratios following maternal immunization with male antigen,* Transplantation 11:491-495,1971. 19. Lapps, M.A. The genetic counselor: Responsible to Whom?* The Hastings Center Report 2:2, 1971. 20. Prehn R.T. and Lapps, M.A. "An Immunostimulation theory of tumor development." Transplantation Review 7:26-54, 1971. 21. Lapps, M.A. "Risk-taking for the Unborn," The Hastings Center Report 1:2-4 1972. 22. Lapps, M.A., Gustafson, J.M., Roblin, R. et al., "Ethical and social issues in screening for genetic disease," N. Eng. J. Med. 286:1129-1132, 1972. 23. Lapps, M.A. "Moral obligations and the fallacies of genetic control," Theological Studies 33:411-427,1972. 24. Lapps, M.A. The possible significance of immunological recognition of Preneoplastic and Neoplastic cell surfaces," National Cancer Institute Monographs 35:49-55,1972. 5 URL 23215 PUBLICATIONS Confd. 25. Lappd, M.A. "Mass genetic screening programs and human values: Another view,* Med. Dimensions 2:2, 1973. 26. Lapp6, M.A. "Allegiances of human geneticists: A preliminary typology," The Hawing* Center Studies 1:2, 1973. 27. Lapp6. M.A. "Human Genetics," In: Publicj>olicv_toward the environment: A review and appraisal. Ann. N. Y. Acad, of Sri. 216:152,1973. 28. Lappd, M.A. "Genetic knowledge and the concept of health." The Hastings Center Report 3:4, 1973. 29. Lappd, M.A. "Genetic and biochemical screening: Beyond testing for disability," Lab. Management Vol. 11, No. 11, November 1973. 30. Lappe, M.A. and Brody, J.A. "Genetic counselling: A psychotherapeutic approach to autonomy in decision-making," Birth Defects Original Article Series (published as No. 46). 31. Lappe M.A. and Steinfels, P. "Choosing the sex of our children," Hastings Center Report 4, pp. 3-7, February 1974. 32. Lappd M.A. and Roblin, R. "Newborn genetic screening as a concept in health care delivery: A critiques." Birth Defects Original Article Series. Ethical Social and Legal Dimensions of Screemng_fonHuman Genetic Disease 10:1-23,1974. 33. Hhrman L. and Lappd, M. "Screening for polygenic disorders." Birth Defects Original Article Series. Ethical. Social and Legal Dimensions of Screening for Human Genetic Disease 10:102-122, 1974. 34. Brower, D., Lappd, M.A. and McCurdy, J.C. Of AH .Things Most_ Yielding. McGraw-Hill, Inc. (New York, 1974) 35. Lapp6, M.A. "Censoring the Hereditarians," CsannifiDffial 50:183-185, 1974. 36. Lapp6, M.A. "What counts in deciding to withhold treatment from the defective new bom?" Tufts Medical Alumni Bulletin 33. 1974. 6 'v rOTUCAIKfflg Corn'd. 37. Lappd, M.A. "Gan Eugenic policy be just?" In: The Prevention of Generic_Discase and Mental Retardation. A. Mulinsky, Ed., W.B. Saunders, Phila:, pp 456-476, 1975. 38. Gaylin W. and Lappd, M.A. 'Fetal Politics,' Atlantic 235:66-71,1975. 39. Lappd, M.A. "Moral Claims of the Wanted Fetus, ' Hastings Center Report 5:11-13,1975. 40. Lappd, M.A. 'Realities of 'Genetic Engineering',' Medical Research Engineering 12:25-29,1976. 41. Lappd, M.A. 'Human Uses of Molecular Genetics,' Federation Proceedings 34, 1975. 42. Lappd, M.A. "Accountability in Science,' Science 187:696, 1975 (letter). 43. Lapp6, M.A. 'Abortion and Fetal Research: A Reconsideration, InrEncvclopaedia Britannica Year Book. 1975. 44. Lappd, M.A. 'Reflections on the Non-Neutrality of Hypothesis Formulation,' ritnieal Research 24:56-63,1976. 45. Lappd, M.A. 'Reflections on the Cost of Doing Science," Annals of the New York Academy of Sciences 265:102-111, January 23,1976. 46. Lappd, M.A. 'What's in the Genes Anyway?' Man and Medicine 5:268-272, 1976 47. Lapp* M.A. and Brody, J.A. 'Genetic counselling: A psychotherapeutic approach to autonomy in decision-making,' Psychiatry and Genetics. M.A. Sperber and L.F. Jarvik, eds. (Basic Books, New York), 1976. 48. Lappd, M.A. "The Perils of Knitting New Life' American Biology Teacher 39:200-206, 1977. 49. Lappi M.A. and Morrison R. (eds.) Annals of the New York.Academy of Sciences Volume 265. 'Ethical and Scientific Issues Posed by Human Uses of- Molecular Genetics,' 1976. 50. Lappd, M.A. Statement before the Subcommittee on Science, Research and Technology, September 7, 1977, In: Science Policy Implications of DNA Recombinant Molecule Research. U.S. Gov. Printing Office (93-481) Pub. No. 24 of the Committee on Science and Technology, Washington, 1977) pp. 1011-1043. 7 j V PUBLICATIONS Cont'd. 51. Lappd, M.A. "Genetic Engineering: Science Fiction or Science Fact?" In Redesigning Man: In Search of an Ethic. T.W. Hogan ed., Chaminade University Press, Honolulu) 1977. 52. Lappd, M.A. "Pulling Back from the Apocalypse," Man and Medicine 2:120, Winter, 1977. 53. Lappd, M.A. "Genetic Screening." In: Principles of Counseling. T. HsiaT ed., (Alan R. Liss, Inc. New York, 1978). 54. Lappd M.A. and Archibold, P. "The Place of the Public in the Conduct of Science." University of Southern California Law Review 51:1539-1554,1978. 55. Lappd, M.A. "Dying While Living: A Critique of Allowing to Die Legislation." Journal of Medical Ethics 4:111-116,1978. 56. Lappd, M.A. "Theories of Generic Causation in Human Disease," In: Genetic Counseling: Facts. Values and Norms. Plenum Press (New York, 1978). 57. Lappd, M.A. "Generics and Our Obligations to the Future," In: Bioethics and Human Rights. E. & E. Bandman, Little, Brown & Co., pp.84-93. 1978. 58. Lappd. M.A. "Ethical Issues in Eugenics." Encyclopedia of Bioethics W. T. Reich ed.. MacMillan: The Free Press (New York, 1978). 59. Lappd, M.A. "Genetic Politics." Simon & Schuster (New York, 1979). 60. Capron, A.M., Lappd, M.A., Murray, Jr., R.F. and Twiss, S.B. eds., "Genetic Counselling: Facts. Values and Norms." Plenum Press (New York, 1978). 61. Lappd, M.A. "Recombinant DNA: The Case for Controls," In: Prospect for Man: Genetic Engineering J.G. Little, ed. (York University, Toronto) pp. 91-102,1979 62. Lappd, M.A. "HLA homozygosity and neural tube defects," lancet 1:1342,1979 (letter). 63. Lappd M.A. and Myers, Beverlee "California's New Birth Certificate Law: Some Lessons to be Learned," American Journal of Public Health 69:706, 1979. 62. Lappd, M.A. "HLA homozygosity and neural tube defects," lancet 1:1342,1979 Getter). 8 URL 232 H URL 23218 PUBLICATIONS Cont`d. 63. appd M.A. and Myers, Beverlee "California's New Birth Certificate Law: Some *sons to be Learned/ American Journal of Public Health 69:706, 1979. 64. Lappd, M.A. "Humanizing The Genetic Enterprise," Hastings Center Repon, 9:10-14,1979. 65. Lappd, M.A. "Holistic Health: A Valuable Approach to Medical Care," Western Journal of Medicine. 131:475-477,1979. 66. Lappd, M.A. "Breaking Scientific Dogmatism." Op-Ed Page, Oakland Tribune (editorial). Commentary Page for January 7, 1980. 67. Lappe. M.A. "Advice to a Young Scientist," by P.B. Medawar, Commonweal (book review). 68. Lapp, M.A. "Toxic Substances in the 1980's," In: The Environmental Handbook. G. DeBell, ed. (Friends of the Earth, San Francisco), 1980. 69. Lappd, M.A. "Public Health in the 1980's," In: Progress as if Survival Mattered. (Friends of the Earth, San Francisco), 1981. 70. Lapp6, M.A. "Blaming the Victim," Hard Choices, pp. 25-26, Regents of the University of Washington, (Seattle, 1981). 71. Lappd, M.A. "Justice and Prenatal Life," In: Justice and Health Care. Earl E. Shelp ed., D. Reidel Pub. Co., 1981, (New York). 72. Lapp6, M.A. et al., "Carcinogens and Regulation," Science. 211:332-334,1981. Getter). 73. Lapp6, M.A., "Trace Elements and the Unborn: Review and Preliminary Policy Implications," In: Trace Elements and Health. J. Rose ed., Butterworths, (London, 1982). 74. Lappd. M.A.. Germs That Will Not Die: The Medical Consequences of The Misuse of Antibiotics. Doubleday/Anchor Press, (New York, 1982). 75. Lapp6, M.A. "Ethical Issues Generated bv Testing for Genetic Susceptibility to Occupational Hazards nr Monitoring for their Mutagenic Effects." Invited Background Review Article, Office of Technology Assessment, 1983. 9 t URL 23219 publications Corn'd. 76. Lappd, M. A. "Genetic Disease: Diagnosis and Treatment", In: Proceedings of the Fifth Arnold O. Beckman Conference in Clinical Chemistry, A.A. Dietz, Ed., Washington, D.C., 1983, pages 282-296. 77. Lappe, M.A. (editor and co-author). Published Reports from The Hazard Evaluation System and Information System, California Department of Health Services, 1979-1982. 78. Lappd, M.A. (editor and co-author). Trichloroethylene fTCE): Evaluation of the Human Health Effects. California Department of Health Services and Department of Industrial Relations, April 18, 1980. 79. Lappd, M.A. (editor and co-author), 2. 4-Dichiorophenoxvacetic Acid Cl. 4-DL Evaluation of the Human Health Effects. California Department of Health Services and Department of Industrial Relations, June 16,1980. 80. Lapp*, M.A. (editor and co-author), Potential Health Hazards Associated with the Use of Plastic Pipe in Potable Water Systems. California Department of Health Services and Department of Industrial Relations, October 17,1980. 81. Lappd, M.A. (editor and co-author). The Toxicology of PCB's: An Overview with Emphasis on Human Health Effects and Occupational Exposure. California Department of Health and Department of Industrial Relations, January, 1981. 82. Lappi, M.A. "Potential Reproductive Risks Posed by Maternal Exposure to Photographic Chemicals," Journal Birth: Issues in Perinatal Care and Education. 10:173-177,1983. S3. Lapp6, M.A. "Values and Public Health: Value Considerations in Setting Health Policy," Theoretical Medicine. 4:1-10,1983. 84. Lapp6, M.A. "Ethical Issues in Testing for Differential Sensitivity to Occupational Hazards," Journal of Occupational Medicine. 25:797-801, 1983. 85. Lappd, M.A. "Ethics at the Genetic Frontier: A Critique of the Use of Genetic Knowledge," In: John Bradford Pracyk, Editor, Science, Technology, Ethics and Policy, Duke University Symposium Committee, pp. 22-37, 1983. 86. Lapp6, M.A. "The Relationship Between Rational Medicine and Public Policy: Antibiotics As a Case Study," In: John Bradford Pracyk, Editor, Science. Technology. Ethics and Policy. Duke University Symposium Committee, pp. 38-55, 1983. 10 PUBLICATIONS Cont'd. 87. Lapp*, M.A. "The Tyranny of The Bell-Shaped Curve: Who Should be Protected From Risk-Generating-Activities?" Politics and The Life Sciences. Vol. 3, No 1, 53-55, Aug. 1984. 88. Lapp*, M.A. "Virtue and Public Health: Societal Obligation and Individual Needs," Earl E. Shelp (ed.), D. Reidel Publishing Company, Virtue and Medicine. 289-303, 1984. 89. Lapp*, M.A. Broken Code: The Exploitation of DNA. Siena Club Books, (San Francisco, 1985). 90. Lapp*, M.A. "Ethics and Public Health," Chapter in Maxcv-Rosenau Public Health and Preventive Medicine. John Ladd Editor, 1985. 91. Lapp*, M.A. "Recombinant DNA: Prospects for Health?" GencWATCH. Vol. 1. Nos. 5 & 6, September-December 1984. 92. Lapp*, M.A. "Ethical Concerns in Occupational Screening Programs," L of Occupational Medicine. 28:930-934,1986. % 93. Lapp*, M.A. "Biotechnology's Debt to Public Health." Technology Review. August-September 1985. ^ ^ 94. Lapp*, M.A. "Setting Priorities in Biotechnology," Science for The People. 17:44-49, 1985. 95. Lapp*, M.A. "When Antibiotics Fail," North Atlantic Press (Berkeley, California, 1986). 96. Lapp*, M.A. "Is Big Brother Watching Your Genes?" Medical Ethics for the Physician 1 (4): 1-2, October, 1987. 97. Lapp*, M.A. "Limits of Genetic Inquiry," Hastings Center Report April, 1987 p. 5 and March, 1988, p. 420. 98. Lapp*, M.A. "Ethical Issues and Premature Application of Gene Therapy,' Politics and the Life Sciences 6:19-21,1987. 99. Lapp*, M.A. "Will Gene Probes Redefine the Meaning of Normal?" Medical Ethics for the Physician 2:6-7,1987. 100. Lapp*, M.A. "Ethical Issues in Genetic Screening for Susceptibility to Chronic Lung Disease," Journal of Occupational Medicine 30: 493-501, 1988. li V IZZZZ 7&n PUBLICATIONS Cont'd. 101. Lappd, M.A*. 'Long Range Implication* of Mapping aiuj Sequencing the Human Genome: Ethical and Philosophical Implications/ Mapping our Genes Contractor Reports, Vol 1, Office of Technology Assessment, U.S. Congress. 70 pp. 1988. 102. Lappd, M.A. "Ethics, Maternal, and Child Health/ In: Malang Change Happen: Action Strategies DHHS Region V Second Annual Maternal and Child Health Conference, Univ. of Illinois Press (Chicago) pp. 81-86. 1988. 103. Lappd, M.A. "Commentary" on Crane et al. - "Environmental Exposures in Cytogenetically Defined Subsets of Acute Non-Lymphocydc Leukemia/ JAMA 262: 634-639, 1989, In: Environmental Health Monthly 2: 9-10, 1990. 104. Lappd, M.A. "Genetic, Neuroscience and Biotechnology/ Hastings Center Reports. Nov/Dec 1990, pp 21-22. 105. Lappd, M.A. Ethical Considerations of Fear of Cancer Following Toxic Substance Exposure," of the Fourth National Environmental Health Conference. Agency for Toxic Substance Disease Registry. Center for Disease Control, Government Printing Office, Washington, D.C., 1990. 106. Lapp*, M.A. Chemical Exposing the Toxic Threat to Public Health and the Environment. San Francisco, CA: Siena Club Books, 199L 107. Lappd, M.A. Ethical Issues in Manipulating the Human Germ Line. Journal of Medicine and Philosophy 16:621-639, 1991. 108. Lappi, M.A. "Eugenics" In: Encyclopedia of Bioethics Warren T. Reich, Ed. Macmillan Pub. Co. (New York, 1992). 109. Lappd, M.A. "Risks and the Ethics of Genetic Choice. In: Prescribing Our Future. Ethical Challenges of Genetic Counseling. D.M. Bartels, B.S. LeRoy and A.L. Caplan, Eds Aldine de Gruyter Press (Hawthorne, NY), 1993. 110. Lappd, Murphy, T., M.A. Eds. Justice and the Genome. University of California Res Los Angeles (forthcoming). 111. Lappd, M.A. "Justice and the Genome," National Forum Spring, 1993. 112. Lappd, M.A. "Silicone-Reactive Disorder. A New Autoimmune Disease caused by Immunostimulation and Super antigens/ Medical Hypotheses October, 1993. 12 PUBLICATIONS Coat'd. 113. Wolt LJv., Lappe, MA, Peterson RD. & Ezraflson, E.G.', "Human Immune Response to Polydimethy/Siloxane (Silicone): Screening Studies in a Breast Implant Population/' FASEB Journal 7: October, 1993. 114. Lappe, MA, Evolutionary Medicine. Sierra Club Books (in press). 13 URL 23222 -^ URL 232. Ctiio Unrep. App. Cases 1989-94 1990 ML 40229, Stillo v. Rubbermaid Inc., (Ohio App. 1990) Copyright (c) West Publishing Co. 1994 Mo to original U.S. Govt, works. ------------------------------------------------- Page 1990 ML 40229 follows --------------------------------------------------- NOTICE: HILE 2 OF 1HE CHE0 SUPREME COURT RULES FOR THE REPORTING OF CFINICNS IMPOSES KES'IKICnCNS AND UMEEAIIGNS OR THE USE OF tHKELESHED GPINICNS. Carol snujp, et al., Plaintiff-Appellants, v. RUBBERMAID 2NGCSPCRA1XD, Defendant-Appellee. No. 56612. Court of Appeals of Ohio, Cuyahoga County. April 5, 1990. Civil Appeal free ccnocn Pleas Court, Case No. 143225. Michael T. Honchan, Mary L. Miample, Steven L. Kasseman, Cleveland, far plaintiff-appellants. TTvmas Schick, Cleveland, far defendant-appellee. JOURNAL ENUCf and CfPINICXJ DYKE, judge. ------------------------------------------------Page 1990 ML 40229 *1 follows-----------------------------------------------Plaintiffs-appel 1 ants, the estate of Grace I. Berry and C&rol Stillo, alleged that defendant acted intentionally in causing their respective resulting illnesses and, in the case of Grace I. Berry, death. Defendant-appellee Rubbermaid, me., filed a motion far suumaiy judgment arguing that no material issues of fact exist in regard to plaintiffs' ability to meet the requisites far establishing an employer intentional tart as set forth in Van Fossen v. Babcock & Wilocx Co. (1988), 36 Ohio St. 3d 100. Plaintiffs opposed defendant's motion far summary judgment. Cn October 3, 1988, the trial court, vitteut written opinion, granted summary judgment in favor of defendant*. Plaintiffs filed a timely nppr/il of the trial court's ruling. Plaintiffs carol Stillo and Grace Berry were employees at defendant's plant from 1966 and 1973, respectively, until 1982. By January of 1982, both wanen had been diagnosed by their physicians as having scleroderma-type illnesses including Raynaud's phenomenon which, according to their toasting physicians, resulted from their prolonged exposure to polyvinyl chloride degradation products. During the time of plaintiffs' aplcyment, defendant was involved in the manufacturing of plastic products, and used a substance known as polyvinyl chloride (hereinafter FVC) in the production of its products. PVC is a substance that is fanned when vinyl chloride monomers (a gas) undergo polymerisation. (FN1) PVC can exist in powder, pellet and liquid farm. The vinyl chloride mondner, the chemical ocmpound that undergoes polymerization, is a highly tcoric, dangerous substance. Residue of vinyl chloride can be precipitated Iran PVC in the manufarrturing' process. (FTC) In this case, the pleadings, briefs, and evidentiary materials submitted by defendant show that it used PVC in powder, pellet and farm in the manufacturing of seme of its products, including proocoaos consisting of molding, injecting and coating. No than 1974 through reports and notices from the Occupational Safety and Health Administration, Department of labor (hereinafter OSHA) defendant was made aware that the use of polyvinyl chloride resin (EN3) in its manufacturing process was shown to be a danger to its employees engaged in those manufacturing processes. It was determined that the trade vinyl chloride mcrcxDer was a degradation product of TOC and was present in manufacturing ccnditicns. Defendant was further informed by OSA that the standard far exposure to vinyl chloride was being drastically reduced. Flvju the OSHA hearings, industrial users of IVC, including defendant, were directed to monitor their equipment and manufacturing processes to make sure that they fell within the newly-established part per million standard, and were Airem-eA to immediately institute feasible engineering, weak practice and personal protective controls to reduce employee exposure to at or below the new permissible exposure limit. ------------------------------------------------ Page 1990 WL 40229 *2 follows -----------------------------------------------Defendant instituted a program to monitor exposure levels of vinyl chloride mrrtrwnar at the plant where plaintiffs were employed. PVC was used at defendant's plant until 1977 at whicii time its use was ^grmt-iriiarf except in the wire coating division there it was used until 1982. I WHERE A MATERIAL ISSUE OF FACT EXISTS WITH RESPECT TO WHETHER AN EMPLOYER KNOWINGLY AND INEE*HTCNAIItf EXPOSED ITS EMPLOYEES TO A HAEMFUL, TOXIC SUBSTANCE, IT IS ERRCR FOR THE TRIAL COURT TO CENCLDDE, AS A MATTER OF IAW, THAT NO MATERIAL ISSUES OF FACT APE IN DISR7TE, THEREBY GRANTING SCMOKY JUDGMENT TO THE EMPLOYER. Plaintiffs argue in their sole assignment of error that the farial court erred by granting sumnary judgment in favor of defendant since there was a genuine issue of material fact as to whether defendant oenmitted an intentional tort as defined by law. In Van Fossen v. Babcock & Wilcox Oo. (1988), 36 Chic St. 3d 100 the Ohio Supreme Court set forth the standard far determining whether an employer has ccmmitted an intentional tact against an employee: Within the purview of Section 8(A) of the Restatement of the Law 2d, Tarts, and Serticn 8 of Prosser & Keeton on Torts (5 Ed. 1984), in order to establish "intent"' far the purpose of proving the existence of an intentional tart committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or oonditicn m zz mn '1 within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, tfen harm to the employee will be a substantial certainty and not just a high risk; and (3) that the employer, under such circumstances, and with such knowledge, did 'act to require the employee to continue to perform the dangerous task. *** To establish an intentional tart of an employer, proof beyond that required to prove negligence and beyond that to prove xecklessrmss must be established. VSiere the employer acts despite his knowledge of sene risk, his conduct nay be negligence. Where the risk is great and the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the ccnsequanses will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and of a risk - something short of substantial certainty - is not intent. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [1962], 69 Ohio St. 2d 608, 23 0.0. 3d 504 , 433 N.E. 2d 572; and Jones v. VIP Development Co. [1984], 15 Ohio St. 3d 90, 15 GBR 246, 472, N.E. 2d 1046, explained.) (Brpbasis added.) ------------------------------------------------Page 1990 WL 40229 *3 follows ------------------------------------------------Van Fossen supra, paragraphs five and six of the syllabus. In Bostic v. Connor (1988), 37 Ohio St. 3d 144, 146, the court stated as follows: Summary judgment is appropriate then the following factors have been established: *** (1) that there is no genuine issue as to ary material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can cone to but one conclusion, and that conclusion is adverse to the party against whan the motion far summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Go. (1978), 54 Ohio St. 2d 64 , 66 8 O.O. 3d 73, 74, 375 N.E. 2d 46, 47. See, also. Civ. R. 56(C); and Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 327, 4 O.O. 3d 466, 472, 364 N.E. 2d 267, 274. The standard for granting stannary judgment is high; in an employer intentional tart case, it is no less high. In Hunkier v. Goodyear Tire & Rubber Cb. (1988), 36 Ohio St. 3d 135, at 138 the court, in deciding an intentional-' tort claim, stated: - * In deciding whether the trial court correctly granted stannary judgment to Goodyear, we must follow Civ. R. 56 and view the record in the light most favorable to the party opposing the motion. *** Further, the inferences to be drawn from the underlying facts contained in depositions, affidavits,-and exhibits must be construed in the opposing party's favor. When so construed, the motion must be overruled if reasonable minds cnulrt find far the party V apposing the motion. ***. Moreover, [u]pon motion Tar sunnary judgment pursuant to Civ. R. 56, the burden of establishing that the watwiai facts are not in dispute, and that no genuine issue of fact exists, is on the party moving far sunnary judgment. v. Willis Day Warehousing Co. (1978), 4 Ohio St. 2d 64, 8 O.O. 3d 73, 375 N.. 2d 46. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine Issue far trial, f?vti party must so perform if he is to avoid sunnary judgment. Accordingly, in an action fcy an employee against his employer alleging an intentional tort, upcn motion far sunnary judgment ty tto defendant employer, the plaintiff employee must set forth qpedfic facts which show that there is a geniire issue of whether the employer had ccmnitted an intentional tort against employee. (Biphasis added.) Van Fossen, supra, paragraph seven of the syllabus. The issue therefore in the present case is twofold: whether the movant, in this instance defendant, established that no material issue of fact existed as to its knowledge of a dangerous procedure or condition within its business operation which was substantially certain to harm the plaintiff and nonetheless continued to expose its employees to such harm, and secondly If the fanner is true whether plaintiff set forth specific facts which would show that there was a genuine issue of fact as to whether defendant had knowledge of a dangerous procedure or condition within its operation which it knew was substantially certain to harm plaintiffs and required plaintiffs to continue to perform the dangerous task.* I. Page 1990 KL 40229 *4 follows Defendant concedes its obligation to be in compliance with the 09Jk regulations. Defendant's evidence attached to its motion far sunnary judgment indicated that it instituted a program within its plant to monitor exposure levels of vinyl chloride and that it was consistently within the OSA limits. Defendant apparently concludes that because it was in compliance with OSHA, it did not know that a dangerous process existed within its work environment. Defendant's evidence also indicated that plaintiffs' illnesses were not necessarily attributed to the workplace. Based on defendant's evidence, which indicated it was in ocspliance with OSHA and thus did not know a dangerous process existed, it ***-" plaintiffs' burden to set forth specific facts which stowed that there was a genuine issue as to whether defendant had knowledge that a dangerous process existed within their work environment. I. Plaintiffs produced evidence which created an issue of fact as to whether the first prong of the Van Fossen test was satisfied. In order to raise an issue of fact under the first prong of the van Fossen test, plaintiffs rust produce sene evidence which shows defendant had knowledge that a dangerous process within its business operation. .Plaintiffs submitted the OSHA regulations which included the record of the cXr~) t(.o>* TfO-O cr- -X URL 23227 hearings held by 0HA in 1574. Ihe OSft regulations and hearings sake it clear that defendant was aware of the health hazards and dangerous propensities of PVC in early 1974.- OSHA's drastic reduction of the allowable permissible levels of PVC prior to 1974 of 500 parts per million to an emergency tenporary standard of 50 parts-per million, to a proposed permanent standard of 1 part per million, clearly put the plastics industry, which included defendant, on notice that PVC was a hazardous substance. OSHA clearly rejected the plastics industry's argument that their pre-1974 levels of vinyl chlorite did not induce cancer and were safe, oasv stated that the significance of a lower dose could not be accurately assessed. In fact, OSHA concluded that rnrrnivrti didn't indicate whether a safe level of exposure at all. Ihe regulations further indicated that testimony of most esqjerts concluded that a quantification of a safe esqposure concentration was not possible given the present state of scientific knowledge. OSHA noted that the plastics industry's proposed, to change the exposure level later, when inproved technology would permit such reduction, would seem to indicate that the plastics industry, to which defendant belonged, had doubts about the safety of the new exposure limit about to be adapted. It is dear from the OSHA regulations that the new exposure limits for work with PVC substances were not doomed safe levels but rather permissible levels based upon evidence then available, which QSHA practically errmtifri onnld prove Harmful in the future. NIQSH, also a part of the 1974 hearings, in fact orywviivwart that vinyl rHimHsa mmrmarm are carcinogenic and that a safe exposure level to a carcinogen cannot be determined. ------------------------------------------------ Page 1990 WL 40229 *5 follows -----------------:------------------------------ Given the rapidity with which OSHA changed its pm-mias-tm* levels of vinyl rewrite a-mwa-g in the workplace and the caution and hesitation by OSHA in arriving at the new levels, it is evident that defendant knew that working with PVC substances presented a health hazard. Further, the 093A regulations make clear- that in the absence of the institution of feasible engineering, work practice and protective controls to reduce aplcyee exposure to at or below the new permissible exposure limit, a dangerous process would exist within tise work environment. In other words, the OSHA regulations made it evident that a violation of the new permissible levels, i.e., ncnocnplianoB, would result in exposure of enplcyees to substantial certainty of harm. Viewing the evidence presented in a light most favorable to plaintiffs, we conclude that plaintiffs successfully rebutted defendant's contention that they were unaware of a dangerous process. An issue of fact exists as to whether the first prong of the Van Possen test was satisfied. -'1 n. Plaintiffs produced evidence which created an issue of fact as to whether"the ooccnd and third prongs of the Van Possen test were satisfied. In order to raise an of fact under the second and third prongs of the - Van Possen test, plaintiffs sust produce some evidence which shews defendant had knowledge that if the employee is subjected to the dangerous prooessthen H*-rm will be a substantial certainty, and, further, that the oployer knowingly required the employee to continue performing the dangerous task. . As i=r- stated, the defendant's evidence showed that a monitoring-program was i i^icrf within its plant and that the levels of vinyl chloride were consistently at or below the new standards set by OSHA. Defendant argues that given its coiplianbe with what the industry thought at the time to be reasonable exposure levels, there exists no evidence of a specific intent to injure the plaintiffs: To contradict defendant's argument and evidence, plaintiffs submitted a statement by Dr. Randall S. KTakauer, the plaintiffs' treating physician and Director of The Rheumatic and Zsnunologic Disease Section at St. Michael's Medical center in Newark New Jersey. Dr. Krakauer stated: I find that there clearly were vinyl chloride monomer levels in the plant, and that the measurements were taken in such a way that the levels at the work stations of these two women could not be determined. The final standard adopted by OSHA had a permissible level of 1 part per million of vinyl chloride monomer in the rark environment. The OSHA regulations submitted by plaintiffs reveal that FVC users were instructed under its methods of nrwpi -i mna section that: Employee exposure to vinyl chloride shall be controlled to or at below the permissible exposure level. ... by engineering, work practice and pcn"c^*i protective controls. (Brphasis added.) Dr. Kfakauer further stated that: It is Tsp clear that protective measures were not taken to protect workers against the known dangers of aerosolized vinyl chloride monomers. *** The random chance of two employees coning down with this dlnaano in one year is extraordinarily small. *** I believe both Mem. stillo and Mrs. Berry had vinyl chloride induced scleroderma- like syndrome due to their exposure during esploymerxt at Rubbermaid since there is no history to suggest any other p1*TM* of exposure. (Etphasis added.) ----------------------------------------------- Page 1990 KL 40229 *6 follows -----------------------------------------------Plaintiffs' evidence showed 1) that the monitoring was done in a way that was unreliable and undeterminative; and 2) that defendant was not in compliance with the OSHA regulation thich called far the introduction of personal protective controls in the work environment. The defendant's record is devoid of any evidence of any personal protective measures instituted to protect workers fran the degraded FVC fumes and powders. : Plaintiff Carol Stillo submitted her own affidavit which supports her rebuttal that, despite the known dangers presented by the use of FVC, nothing changed in her work environment. Stillo's affidavit indicated that die worked at defendant's plant from 1966 to 1982. Plaintiff worked in the plastics division at injection molding, compression molding, plastic shelving and also worked in filling orders. Plaintiffs' evidence shewed that in the injection molding process, FVC in pellet farm was put into a barrel in the injection machine and was heated to 380 degrees Fahrenheit. The pellets then were turned into a HgtHd and injected into a mold. The finished product would drop cut of the machine. The evidence indicated 5 pgm of vinyl chloride in powder form was retained. *>_rO ;r., ' URL 23228 l f Stillo, in her affidavit, testified that if she wasn't busy at her nachine, she would use hot wire to coal packages with plastic wrap, stillo testified that if she was not working cn heated FVC, She was working next to machines and processes that used EW2. Stillo stated that no barriers existed in her work environment to separate or isolate her from the processes where FVC was being used. Further she stated that no containers for the oantaiixoent of airborne gases and particles. Stillo attested that at one spot, workers would gather PVC scraps, grind than bade into a powder, and put then into a box. When the box got full, Stillo stated, it would be picked up by one of the workers and dusped bade into the machine. Stillo related that FVC powder would fly all over and that dust would be on her hands and arms. Stillo stated that when the machines which used FVC were purged, gas and steam would surround her far 2 to 3 minutes. At the hot wire station, Stillo stated that every heat hit the plastic, gas would come up in her face. She testified that in her 15 years at the plant there was no ventilation. Stillo testified that she was not given a respirator or any kind of protective gear, and was never warned of the dangers presented in working with these substances. Plaintiffs' evidence further indicated that defendant did not change any of its manufacturing processes as it related to than, stillo testified that the same procedures employed in the early 1970's were the same ones employed in the late 1970's. Plaintiffs' evidence also indicated that every machine involved in the production of FVC products was not tested, but rather the monitoring was done cn a random, as opposed to an inclusive, basis. lb contradict defendant's claim that its ccnplianoe with the OSHA regulations entitles it to sunnary judgment because ccnplianoe shows that no evidence of a specific intent to injure existed, we have plaintiffs' evidence which shows: 1) the monitoring required by OSHA was randan and undeterminative as it related to plaintiffs; 2) defendant never initiated personal protective measures as required by OSHA; and 3) defendant did not change any of its processes as they related to plaintiffs, and the same procedures employed in the early 1970's were the same ones employed in the late 1970's. --------------------------------------------- Page 1990 KL 40229 *7. follows ------------------------------------------------ Hie record demonstrates that nonocnplianoe with the OSHA regulations would cause a dangerous condition in the work environment to exist resulting in harm that was substantially certain to oocur to workers. Keeping in mind that the inferences to be drawn from the underlying facts contained in depositions, affidavits and exhibits must be construed in the opposing party's favor when ruling cn sunmary judgment, we find that plaintiffs set forth specific facts which showed that a genuine issue existed as to whether defendant was in ccnplianoe with the OSHA regulations, and further plaintiffs created a genuine issue of fact as to whether defendant knew that harm was substantially certain-; to oocur and whether defendant continued to allow plaintiffs to be esqaoeed such harm. -.? a.-. 3 ' s..' The plaintiffs' assignment of error is well taken, me trial court's grpnt-v- of defendant's sunmary judgment is reversed and the matter is remanded trial court far further proceedings. .t .'ii : ort; BATFCN, C.J., and SWEFNFY, J., concur. ,,:;inc`r ar. N.B. Ihis entry is made pursuant to the third sentence of Buie 22(D), Ohio 2cr to t.too Riles of Appellate Procedure. This is an announcement of decision (see Rile 26). Ten (10) days frau the date hereof this document will he stasped to indicate journalization, at which time it will **r--i*> the judgment and order of the court and time period far review will begin to run. * EN1 polymerization is a chemical reaction in *4iich two or more small molecules combine to farm larger molecules which repeat stiuclural units of larger molecules. Webster's New collegiate Dictionary (1973- 1976) 692. FN2 Plaintiffs were not involved in the manufacturing of vinyl chloride. Bather, they were involved in manufacturing products made with FVC. We recognize that FVC and vinyl chloride are not synonymous. EN3 A resin is defined as ary of a large class of synthetic products that have seme of the physical properties of natural resins but are different chemically and are used chiefly as plastics. Webster's New collegiate Dictionary (1973-1976) 985. URI- 23230 ; ''t i.o; A?