If you have been in an asbestos trial lately you have probably heard the claim that “no one has ever identified a safe level of exposure to asbestos.” You may have seen power point slides sprinkled a smorgasbord of acronyms for regulatory agencies such as OSHA, NIOSH, WHO, IARC and more, all accompanied by the claim that they all say no safe level of exposure has ever been established. Leaving aside for the moment that all such pronouncements, if they occurred at all, would probably be hearsay, there is another fundamental problem with this contention. While it may be true now that everyone says that, it was not always the case. To the contrary, at least one notable regulatory agency said just the opposite, and said it repeatedly over many years. If one looks back to when the exposures were occurring and evaluates what was being said at that time, often a much different picture comes into focus than what the plaintiffs’ bar and their experts claim.
As a case in point, look at the State of California’s Department of Industrial Relations General Industry Safety Orders (“GISOs”) Title 8, Chptr 7 CA Administrative Code. These regulations had the force of law. They existed as early as 1936. Violations were punishable by fines and could be prosecuted as misdemeanors. The law has provided that a branch of the Department of Industrial Relations enforce the safety orders as adopted by the Board. In effect, therefore, a company must comply with the GISOs and follow the standard set by the regulators.
Plaintiffs’ assertion that no organization has ever declared that asbestos exposure is safe is factually and historically false. For example, in 1949, the GISOs indicated that asbestos exposures at a level of 5 million particles per cubic foot is “considered safe for men to work whether for brief periods or for full working periods daily for an indefinite time.” (Emphasis added.) Widening the hole in plaintiffs’ arguments, the 1949 GISO also stated that “differences of opinion are found among authorities. The [5 million particles per cubic foot is] given as an indication of current opinion and practice, doubts being resolved on the side of safety.” (emphasis added) Thus, even after considering all the differences of opinion available to the Department of Industrial Relations at the time, it still considered a certain level of exposure to asbestos as safe.
Subsequent revisions to the GISOs create even a greater issue for plaintiffs. Similar language was used again in the 1955 revisions. As late as 1968, the following language was included: “The following table represents airborne concentrations of substances which will provide a reasonably safe environment for nearly all workers. The concentrations represent conditions under which nearly all workers may be repeatedly exposed day after day without adverse effect.” Again, the 1969 GISOs indicate that exposures of 5 million particles per cubic foot or less are safe.
Defendants should be ready with these and other documents to rebut plaintiffs’ misleading generalizations during trial. Left unchecked, these statements can be detrimental to your case and be a factor for a plaintiff’s verdict. These type of statements are factually and historically incorrect, and the jury must be alerted to the true standard that companies were held to during the time of plaintiff’s alleged exposure.