Disorder in the Court

On Top of Everything Else, Sick Boeing Workers Face Judicial Hurdles

by Eric Nelson

The Free Press

Just as the medical system has not caught up to the realities of chemical exposure in the workplace, neither has the legal establishment.

Washington, like many other states, has laws that limit a worker's ability to sue an employer for damages. Much of the debate hinges on proving ill health due to exposure in the workplace (thus the significance of psychological explanations), and on rigid definitions of intent, or whether or not the employer actually intended for workers to get sick.

In effect, self-insured Washington employers have "no-fault" insurance; an employer won't be held liable unless a worker can prove that he or she was intentionally injured. Because this is difficult to do, many employment lawyers are giving up on chemical exposure cases.

"It's a restrictive view and it compromises the worker's ability to present claims in court," said Jim Hailey, an attorney for some Auburn workers.

According to attorney Matt Sweeting, who has stopped handling many chemical sensitivity cases because of the costs to his practice, the plaintiff also must show that the employer intended to hurt a specific worker.

Sweeting drew an analogy. "It's not enough to prove that the employer fired a gun into a crowd, but you must also prove that the employer actually meant to hit the (injured) person."

In the Auburn case, Boeing claims it wasn't proven that the phenol formaldehyde resins made workers sick. And if they did fall ill, the company didn't do it on purpose.

However, "Our complaint alleged that Boeing knew all along that people were getting sick. Despite this knowledge, Boeing continued to make the workers use the toxic material."

A review of several cases shows the erratic nature of employment injury claims:

Most claims are handled on an administrative basis by the Department of Labor and Industries. If the employer contests the claim, it will go to the Board of Industrial Insurance Appeals. In some cases, the plaintiff's attorney may have to go to Superior Court to get a discovery order for obtaining employer records.
Boeing employee Robert Strom's claims that he was used as a human guinea pig and subjected to dangerous electromagnetic radiation was eventually settled out of court because Strom proved that Boeing knowingly exposed him to harm and monitored his health during that exposure.
Auburn workers have prevailed on several claims. First, they settled confidentially with the maker of the phenolic "pre-preg", Ferro Corp. They also settled out of court on claims that Boeing discriminated against them at work because they suffered from chemical sensitivities. However, a federal judge in Seattle ruled that Boeing did not mean to intentionally harm them. Now 12 workers are appealing that decision at the Ninth Circuit Court in San Francisco. Individual workers are still trying to get disability benefits before the state Board of Industrial Insurance Appeals.
Nine workers at General Plastics, a Boeing subcontractor in Tacoma, won a suit in Superior Court claiming that the company knowingly failed to protect its workers. However, General Plastics has appealed the ruling to the state Supreme Court.

Attorneys note that is it still cost effective for employers to battle this cases in court. Paying for a disability in which a person can no longer work, could cost upwards of $150,000.

Given the financial destitution and ill health of many chemically injured workers, attorneys are now selecting their cases carefully. Matt Sweeting hopes to establish a non-profit organization, the Chemical Injury Research Foundation, to continue his involvement with chemically injured people.

Disorder in the Court

On Top of Everything Else, Sick Boeing Workers Face Judicial Hurdles

by Eric Nelson The Free Press

Related Stories/Resources: Main Story: "It's All In Your Head" Suicide Solution - One Woman's Way Out Disunity Among the Machinists The MCS Debate: A Medical Streetfight Resources

by Eric Nelson

The Free Press

Related Stories/Resources:
Main Story: "It's All In Your Head"
Suicide Solution - One Woman's Way Out
Disunity Among the Machinists
The MCS Debate: A Medical Streetfight
Resources