Lab Accidents and Liability: Institutional and Individual Risks

1. Lab Accidents and Liability: Institutional and Individual Risks June 14, 2012

2. Lab Accidents in the News • UCLA • Texas Tech • Yale • Boston College • University of Missouri • University of Florida • University of Maryland • Southern Illinois University

3. Texas Tech (2010) CSB investigation after an unusual number of laboratory incidents, including a recent explosion resulting in serious injuries, identified key lessons for universities and others, including calling on universities to: - Ensure that research-specific hazards are evaluated and then controlled by developing specific written protocols and training. - Expand existing laboratory safety plans to address the physical hazards of chemicals - Ensure that safety personnel report directly to a university official who has the authority to oversee research laboratories and implement safety improvements - Document and communicate all laboratory near-misses and incidents to educate individuals and track safety at the university.

4. Yale (2011) • Student died of asphyxiation when her hair was caught in lathe in chemistry lab • OSHA reported problems: did not meet ANSI standards for appropriate safeguards on machine, PPE assessments not completed, rules for use of shop, including warning signs, not posted • Yale not fined; OSHA did not have jurisdiction because student was not an “employee” • Student was alone at time of accident • Although no violations, OSHA report could be used as evidence in a wrongful death suit

5. Boston College (2011) • Doctoral student injured when beaker exploded containing thionyl chloride, used to make mustard gas and other nerve toxins • Student drove herself home then checked herself into hospital • Hazmat team had to clean up lab, student’s car and apartment • No safety violations found • Possible exposure to public areas and hospital workers – toxic tort liability

6. UCLA/Harran Charges • Count 1. Chemical Hygiene Plan • Willful failure to provide employee training on physical and health hazards of chemicals, and protective measures, such as appropriate work practices, emergency procedures, and PPE. (CA Code of Regs., Title 8, §5191(f)(4)) • Count 2. Injury and Illness Prevention Program • Willful failure to correct unsafe conditions, work practices, and work procedures in a timely manner. (CA Code of Regs., Title 8, §3203(a)(6)) • Count 3. Body Protection • Willful failure to ensure that employees wear appropriate protective clothing. (CA Code of Regs., Title 8, § 3383(b)) • UCLA faces up to $4.5 million in fines. Professor Harran faces up to 4 1/2 years in prison.

7. Why Criminal Prosecution? Investigation by CA Department of Industrial Relations: “[L]aboratory safety policies and practices utilized by UCLA . . . were so defective as to render the University’s Chemical Hygiene Plan and Injury and Illness Prevention Program essentially non-existent.” • Lack of adequate lab safety training and documentation • Lack of effective hazard communication practices • Repeated failure to correct persistent safety violations within labs • Dr. Harran’s assertions that Ms. Sangji had been properly trained “were at best misleading”; his contention that Ms. Sangji was adequately trained to handle t-butyl lithium was “nothing short of incredulous.”

8. UCLA • EH&S aware that in almost all labs researchers did not wear lab coats or other PPE • “Part of the culture” • EH&S had investigated injury accidents resulting from fire or explosion where PPE not worn • University took no action to ensure that appropriate PPE being utilized

9. UCLA’s Response • More rigorous lab inspections • More flame-resistant lab coats • Enhanced training in the use of safety gear and the handling of air-sensitive chemicals • Established a Center for Lab Safety.

10. OSHA Lab Standard • “Occupational Exposure to Hazardous Chemicals in Laboratories” • Enforced by PESH • Requires development and implementation of a Chemical Hygiene Plan designed to protect laboratory workers from potential health hazards associated with the use of hazardous chemicals

11. Required CHP Elements • 1.Standard operating procedures designed to address safety and health concerns associated with the use of hazardous chemicals in laboratories • 2.Criteria to be used to identify and implement control measures to reduce exposure (e.g., engineering controls, the use of PPE) • 3.A requirement to ensure that fume hoods and other protective equipment are functioning properly • 4.Provisions for employee information and training • 5.Circumstances under which a particular laboratory operation, procedure or activity will require employer approval before being implemented • 6.Provisions for medical consultation and examinations • 7.Designation of personnel responsible for implementing the CHP, including the assignment of a Chemical Hygiene Officer and, if appropriate, establishment of a Chemical Hygiene Committee • 8.Provisions for additional employee protection for work with particularly hazardous substances

12. Penalties – Civil (Administrative) Type of Violation Maximum Penalty $7,000 per violation $7,000 per violation $70,000 per violation (not less than $5,000) $7,000 per violation $7,000 per day unabated • Serious (substantial probability that death or serious physical harm could result from workplace condition or practice) • Other-Than-Serious • Willful or Repeated (intentional disregard of standard or plain indifference to hazard) • Posting Requirements • Failure to Abate Cited Condition [generally limited to 30 days]

13. Penalties - Criminal Type of Violation Maximum Penalty $250,000 (individual) or 6 months imprisonment or both $500,000 (corporation) $10,000 or 6 months imprisonment, or both $1,000 or 6 months imprisonment, ) or both • An employer convicted of a “willful” violation that caused the death of an employee is subject to a court-imposed fine or imprisonment, or both • Any person convicted of falsifying required record, report or application • Any person convicted of providing advance notice of inspection (without authority from OSHA

14. What About New York? • PESH/OSHA • Standards are essentially the same, unlike California • New York State Penal Law • Public Officers Law

15. New York – Criminal Charges • Manslaughter • Criminally negligent homicide • Reckless endangerment • Assault • Falsifying business records • Conspiracy • Concealing violations, falsifying records • Tampering with physical evidence

16. Torts • Wrongful death - a person is killed due to the negligence or misconduct of another individual, company or entity • Personal injury – injury due to the negligence or misconduct of another individual, company or entity • Damages • Loss of wages, medical expenses, mental anguish, pain and suffering, punitive damages

17. Duty of Care • Duty to provide a safe environment for employees and students • PESH/OSHA – Employer must assure safe and healthful working conditions • Duty of care also prescribed by regulation and industry standard • What care is reasonable under the circumstances?

18. Public Officers Law Section 17 • Authorizes defense for state officers, employees and volunteers in a state-sponsored program, who are sued in their individual capacity in a civil suit in state or federal court for acts or omissions occurring, or alleged in the complaint to have occurred, within the scope of their employment. • Statutory • Employee must deliver copy of papers served, along with a request for representation, to the Attorney General. Employee must also cooperate fully with Attorney General in defense of the matter. • State will indemnify the employee for damages where the injury resulted from acts or omissions which actually occurred, as opposed to merely alleged in the complaint to have occurred, within the scope of the employee’s public employment or duties. In addition, the damage must not have resulted from intentional acts on the part of the employee. • Based on facts and circumstances

19. Public Officers Law Section 19 • Authorizes reimbursement for criminal defense expenses incurred by state officers and employees upon acquittal or dismissal of criminal charges • The criminal proceeding must arise out of an act which occurred while the officer or employee was acting within the scope of his or her public employment or duties. • Reimbursement will be provided only after the officer or employee is acquitted or the criminal charges are dismissed. The attorney general is empowered to determine, after investigation and review of the facts and circumstances of the criminal proceeding, whether an officer or employee’s application for reimbursement should be granted.

20. Other Jurisdictions • Public Officers Law Sections 17 and 19 will apply if acting within scope of employment and filed in state or federal court • Local laws and government regulations control

21. Students • Students are not “employees” covered by OSHA/PESH • Students should be treated the same as employees for lab safety purposes • Student injuries covered by own insurance unless University is culpable

22. Recommendations • Ensure that research-specific hazards are evaluated and then controlled by developing specific written protocols and training. • Expand existing laboratory safety plans to address the physical hazards of chemicals. • Ensure that safety personnel report directly to a university official who has the authority to oversee research laboratories and implement safety improvements. • This does not necessarily mean a change in reporting structure • Document and communicate all laboratory near-misses and incidents to educate individuals and track safety at the university. CSB report, Texas Tech

23. Recommendations • Clearly identify (and document) roles and responsibilities of those charged with implementing protocols • Provide (and document) employee training • Conduct PPE assessment and select appropriate equipment for use • Certify assessment in writing • Provide (and document) employee training • Enforce PPE requirements • Review Injury and Illness Prevention program • Conduct lab inspections • Implement (and enforce) corrective action program • Ask “Do you have any safety or security concerns?”

24. Thank You! James L. Jarvis, Jr. Associate Counsel SUNY Office of General Counsel jljarvis@buffalo.edu (716) 645-4468