Document b5bM0EdbZ0KOgk7jv55jnvxGD
f -15^7.5 -Sent-to-i-BvRv Rennie, e. Maliory and p. Milner
Q.S.H.A. EXCERPTS - June 18, 1975
OCCUPATIONAL SAFETY & HEALTH REPORTER
Litigation
THIRD CIRCUIT HEARS CHALLENGE T CONSTITUTIONALITY OF PENALTY SCHEME
Owl argument on the question of the constitutionality of
the Xccupalional Safety and Health Act's provision for ad
ministrative enforcement of civil penalties was heard en
banc ok the U.S. Court of Appeals for the Third Circuit on
May 8 lb Philadelphia, Pa.
The ccwT's nine active judges and one senior judge who
participated in the court's initial decision in Frank Irey,
Jr., ]tic. t\OSAHRC and Brennan (OSHC 12831 heard the case as^ie result of their granting Irey's petition for
reconsideralfwi (Current Report, January 9, p. 923).
McNeill Slopes of the Atlanta, Ga'., law firm of Stokes,
Boyd & ShapiroXrged the court to adopt the minority opinion
expressed by Circuit Judge John J. Gibbons in the original
decision. GibbonX dissented on the ground that the ad
ministrative civil penalty scheme violates the right to a jury
trial guaranteed b\ the Seventh Amendment to the U.S.
Constitution. The faX that the Act permits the determina
tion of a civil penal without jury trial, which can be re
duced to an in persotam judgment renders the law un
constitutional, Stokes intended on behalf of Irey. Any
statute that includes administrative enforcement of civil
penalties without trial de ikJvo is unconstitutional, according
to Stokes. In fact, the attorney for Irey stressed that the-
petitioner's case rises or farfeon this issue.
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The Government's defense mthe statute was presented by.
Michael H. Stein, attorney, Ia. Department of Justice,
Washington, D.C. Stein argued thsklhe Act's penally scheme
makes a good deal of practical sense since it provides unifor?
mily and efficiency in enforcemen^of the law. Stokes sees
the employer who must defend himself against penalties and
citations as the "forgotten man" in this^rgument. Stein also
contended that a jury would be at a dissn^antage because of
its lack of expertise in the area of occupational safety and
health.
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Two other Courts of Appeals have heardV"gumen{ on the
identical issue of the ' constitutionality of Vie Act's civil
penalty provision. Atlas Roofing Company, Inc. (No.
73-2249) is pending before the U.S. Court of Ajweals for the .
Fifth Circuit and Dorey .Electric Company (No. 74-2181)
is awaiting a determination by the Fourth Circu\ (Current
Report, January 2, p. 912.) ..
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If the Government prevails in its defense of the AV's con
stitutionality, the U.S. Supreme Court has discretion to
review the case should the. employer decide to appear On
the other hand, if the disputed section of the Occupational
Safety and Health Act is declared unconstitutional, the High
Court is obligated to hear the case on its merits.
The Third Circuit will lake the arguments in Irey under ad
visement. Chief Judge Seitz, Senior Judge Staley, and Circuit
Judges Van Dusen, Aldisert,. Adams, .Gibbons, Rosenn,.
Hunter, Weis, and Garth heard the case.-..'. .
'
The plaintiffs include 163 former employees of Raybcslos-Manhattan, Inc., who, according to the Paterson, N.J., law firm of Gelman and Gelman, are seeking $1 million each for compensatory damages and $1 million each in punitive damages. Most of these workers have filed workers' compensation claims against Raybeslos.
The suit charges that J-M as well as the Asbestos Corpora tion of America, Garwood, N.J., and three Canadian con cerns, Bell's Asbestos Ltd,, Asbestos Corporation, and Cassiar Asbestos Ltd., ignored scientific data and medical evidence that should have prompted them to take more stringent safety measures. The Raybestos. plant, which made brake shoes, was closed in 1973.
Sunshine Mining Suit
A suit seeking $6.9 million for property damage, and $5
million for punitive damages was filed in Boise, Idaho, by
the Sunshine Mining Company of Kellogg, Idaho, relating to
the May 2, 1972, underground fire that killed 91 miners.
The suit names Mine Safety Appliances Company, the
Callery Chemical Company, and PPG Industries, Inc., as
conspiring to fail to inform the mines of dangers in the use of
polyurethane foam. ' -
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Nerve Disorder Suit
A former employee of Columbus Coated Fabrics plant fil
ed suit in Ohio's Franklin County Common Pleas Court for
$1.5 million in damages against Borden, Inc., Eastman
Kodak, and nine chemical company suppliers in connection
with total disability from peripheral neuropathy."
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The suit claims the defendants should have known that the
chemicals to which the workers were exposed in the plant,
includinglhe plaintiff in this suit, were dangerous and hazar
dous to the health of the workers. -
Some 56 former employees filed suit last September 4, and
five others filed suit January 24.
Crane Accident Suit , <
. .
Suit was filed in an Arkansas federal court asking $750,000
in' damages following a crane accident in which ' one employee was electrocuted and the .plaintiff was injured
severely.
.
Grove Manufacturing Company, Philadelphia, Pa., was
charged with negligence in the design of the crane, which
had no protective'device. The suit said Grove had a legal
obligation to post conspicuously a warning to persons who
would be using the crane that there was a hazard of elec
trocution in operating the crane without safety devices.
' ' Bailey's Crossroads
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' A U.S. grand jury in Alexandria, Va., asked U.S. Attorney General Edward H. Levi to appoint a special prosecutor to investigate an alleged coverup conspiracy by government of
ficials in the collapse of a high rise construction at Bailey's Crossroads, Va., that killed 14 workers in March 1973.
Litigation:.,-
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163 FORMER RAYBEsirOS-MANHATTAN WORKERS SEEK DAMAGES IN SUIT; OTHER SUITS FILED
A class action suit charging Jobns-ManvilJe Corporation,
Denver, Colo., and- four other asbestos firms with
negligence in exposing employees to dangerous health
. ' hazards was filed in the U.S. District Court for the District
\f of New Jersey..
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General Policy'
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STEIGER OBJECTS TO NJOSH CONTRACT TO DEVELOP ACCREDITATION PROGRAM
Objections to a contract, for more-than a half million
dollars awarded by the National Institute for Occupational
Safety and Health were voiced by Congressman William A.
Steiger (R-Wis) in a series of letters, and meetings with
NJOSH officials..
i".
.--The $543,7.90 amount was awarded the Joint Commission
on Accreditation of Hospitals, Chicago, TIL, ,lo develop a
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r M.rtllt Prborlar *
SPNy 000069