Document 859vB3937Vywrqeg1vq36MxNd

Xou have asked our opinion as to the advisability of pursuing the sane procedure in this case as in King vr-temuctiitn. wherein we * succeeded in a summary judgment motion in the federal courts# Belevant material in the file is first summarized as follows: Petition- Cir. ct., St. Louis, filed 11/27/57s Plaintiff employed by defendant as welder 1945 - 1957, exposed to gases, fumes, dust and metal particles, oausing general infection in respiratory system. Defendant was negligent in that the work and the nearby grinding operations were likely to and did produoe and aggravate illness incident thereto, that defendant failed to provide pro tective devices in violation of Seo. 292*300 (O.D. statute), failed to have plaintiff examined monthly under Seo. 292.33 (which refers to 292.310), failed to post notices as to dangers under 292.420, failed to provide respirators under 292.320, exhauBt fans under 292.380, dust oatchers under 292.390 and grinding wheel hoods under 292.120. Petition sIbo alleges oommon law negligence . in falling to provide a safe place to work. Plaintiff has emphysema, pneumonitis, fibrosis and bronchiectasis, caused and aggravated by the above and is permanently disabled; ad damnum is $150,000. Employment-History. When hired in 1945, plaintiff was examined by Dr. Melnhardt (deceased) who noted ankylosis of the spine but nothing as to respiratory system. According to his work atten dance records, he was absent five weeks in Naroh-Aprll, 1947, and he stated on deposition that he had pneumonia and waB off five or six weeks "about 1950 or 1951" (he must have meant 194?)* Company medioal reoords show his return to "light work" April 15 or 16, 1947. A "Physician'8 First Beport," dated 4/14/47, states that plaintiff beoame siok 2/1/47, with what looks like "emphysema right," though the writing is not very legible. Not until July, 1954, waslihe again significantly absent; be was then out for 12 > months with respiratory trouble. In July, 1955* he was re-employed with Dr. Donley's exam showing his right ohest still bad; "patient extremely underweight...capable of doing only very light work for - approximately 3-4 hours a day." Plaintiff's own Dr. Drum wrote, 7/8/55, that he-was sufficiently improved so that "light oooupation would be beneficial." He apparently then did part-time work as a welder, but 9/9/56 he beoame a "maohine helper" as the com pany oould not continue with the part-time arrangement. However, SCF-ABEX-0705 SPNY 000023 ABEX-063 he stayed out most of the time until 12/18/56, when he was switched to small press brake operator. He was laid off 3/15/57 from this job and deollned to take that of "machine helper," bo stayed out until 9/3/57, when he wus reoalled to small press brake operator. Dr. Donley then indicated "Light work only--if none available, reject;" plaintiff was underweight with polyoeptio disease of lungs and chronic bronchitis. He quit around March, 1958* Hospital_and Medical Hsoords. Fever, pneumonia and fluid in right lung noted during February-April, 19**7 Tentative diagnosis 7/31/54 was pneumonitis and TB. Beadmitted 9/l?/5** And discharged 10/2/54, diagnosis still TB. 5/31/56, huge right cavity with fibrosis and fluid noted. Plaintiff's attorney wrote Dr. Bouse, 10/2/57, asking, "Is condition occupational?" and was answered: "Mr. Arpln Link does have pulmonary fibrosis and cystic emphyse matous changes in his lungs. I believe X would be perfectly safe in saying that this was not oaused by any occupation or exposure to dusts or fumes, but it would most certainly be aggravated by such exposure. I cannot in any way say that his present condition would have arisen from such exposure, however." Discharge diag nosis, H/29/56, is: Pulmonary fibrosis, right upper lobe cyst, emphysema, chronic pulmonary .bacterial lnfeotlon; condition un changed. This report states: "The patient has been a welder at Hussman's for the past 12 years working in an enclosed room with no open windows or outlet fans, and has inhaled galvanized dust smoke and aluminum flux for this period of time. Fellow workers got epistaxis from this but not patient." Testimony on Deposition 6/11/58. Plaintiff stated that there were grinders working along with the welders, raising metal dust, dirt and smoke. The room wa6 very large, without a ventilating system, arc welding causes fumes but welders wore face helmets. Fumes would sometimes get so bad at night that one oould hardly see the lights, and In winter with the windows dosed one oould hardly see across the building. The grinding dust settled 60 that he could wipe it off his table with his finger. The volume of fumes and dust remained about the same except in 1953 He did some galvanized welding which oaused white fumes to float around and get in his nostrils. The workers repeatedly oomplained, individually and through their union; exhaust fans were promised hut never installed. During the entire 13 yearB of employment he never saw any notices that assured had accepted the O.D. amendment, nor was he ever advised as to precautionary measures. Q.J?. Hazard and Question of Acaentance. Apparently, O.D. notices are n-~>t now posted at the plant. Only Mr. George Edwards, the safety engineer, recalls posting a notioe in 1954. However, assured did notify the Commission of its election to bring O.D. SPNY 000024