Workers Exposed to Toxics Get Green Light to Sue Boeing

by Eric Nelson
The Free Press

A group of Boeing workers exposed to toxic phenolic resins at the Auburn plant scored a procedural victory when the Washington Supreme Court ruled in late October that their claims are valid under Washington's worker compensation laws and may be pursued in court.
The 14 workers, whose plight was covered by The Free Press in a March, 1994 article "It's All in Your Head," have suffered severe injuries since their exposure in 1987 - including headaches, dizziness, rashes and multiple chemical sensitivity.
Normally, workers who are injured on the job receive compensation from the state insurance pool and cannot sue employers for further damages. Under the court's decision, however, if the employer has knowledge of the harm and refuses to correct the working conditions causing the harm, the employer can be sued.
Earlier decisions by the court had denied workers the right to pursue court claims under the Industrial Insurance Act of 1911. Citing a 1916 case, the court concluded, "Although the court may have been correct in stating that in 1916 everyone 'agreed that the blood of the workman was a cost of production,' that statement no longer reflects the public policy or the law of Washington."
The workers allege that Boeing managers knew they were becoming ill from chemical exposure, but refused to improve working conditions and remove the chemicals. In a unanimous decision, the court held that employers who deliberately injure their workers "should not burden and compromise the industrial insurance risk pool."
The court's holding sends a strong signal to Washington employers, said an attorney for the workers.
"I think there are a lot of workers out there who are not yet sick who will benefit from this case," said James Hailey, an attorney with Schroeter, Goldmark and Bender in Seattle.
"(Employers) can't hide behind worker's compensation anymore. If an employer sees workers getting sick, they have to take action. The law has changed and it has changed for the better," Hailey said.
The State Supreme Court is the fourth court to review the case since the workers filed suit in King County Superior Court in 1991. Boeing removed the case to federal district court in Seattle, where it was dismissed. On appeal, the Ninth Circuit Court of Appeals certified several questions of law to the Washington State Supreme Court. The state supreme court was asked to define "deliberate intention" in the state industrial insurance statute and to determine whether evidence produced by the workers could justify a finding of "outrageous conduct" by Boeing.
In response, the State Supreme Court has defined "deliberate intention" as meaning "the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." Under the facts of the case, the workers allege that one supervisor warned superiors that workers were falling ill when phenolic "pre-preg" was introduced into Auburn's 1702 shop. Nonetheless, managers denied the request for more ventilation. One manager wrote, "The odor level of the phenolic pre-pregs relative to other materials currently used in (Building 1702) does not warrant expenditure of funds at this time."
One worker's affidavit reveals that she was given a tag to wear around her neck to measure phenolic resin levels in the shop. Later that day, she and another worker fell ill and were taken to Boeing Medical. "Now I think I was subjected to an experiment as to the effects of phenolic resins on human beings without my knowledge or consent," she stated.
The court noted that Boeing submitted no response to rebut this testimony.
Boeing argued injury to workers is not evidence of the employer's intent to harm them if the conduct was "calculated to advance an essential business purpose." That contention was soundly rejected.
"Boeing was betting all its chips on the idea that its primary purpose was building planes, and that no one wanted the workers to get sick. But as long as harm is a known secondary effect (of the business purpose), there will be liability," said Hailey.
Given the facts in the case, the Supreme Court wrote: "There was no accident here. The present case is the first to reach this court in which the acts alleged go beyond gross negligence of the employer, and involve willful disregard of actual knowledge by the employer of continuing injuries to employees."
As for the worker's contention that Boeing's actions constituted "outrageous conduct," the court held that the state Industrial Insurance Act does not bar "torts of outrage," as long as the workers can prove that Boeing managers intentionally inflicted emotional distress. The workers allege that implied threats of job loss, altered workplace test conditions, and public embarrassment of workers who complained are all evidence of intentional infliction of emotional distress.
Seven years after the exposure, the Auburn workers may now proceed to court on the merits of their claim.



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Contents on this page were published in the December/January, 1996 edition of the Washington Free Press.
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