Lab Accidents and Liability:
Institutional and Individual Risks
June 14, 2012
Lab Accidents in the News
•
•
•
•
•
•
•
•
UCLA
Texas Tech
Yale
Boston College
University of Missouri
University of Florida
University of Maryland
Southern Illinois University
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.
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
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
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.
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.”
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
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.
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
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
Penalties – Civil (Administrative)
Type of Violation
Maximum Penalty
•
Serious (substantial probability that
death or serious physical harm could
result from workplace condition or
practice)
$7,000 per violation
•
Other-Than-Serious
$7,000 per violation
•
Willful or Repeated (intentional
disregard of standard or plain
indifference to hazard)
$70,000 per violation
(not less than $5,000)
•
Posting Requirements
$7,000 per violation
•
Failure to Abate Cited Condition
[generally limited to 30 days]
$7,000 per day unabated
Penalties - Criminal
Type of Violation
• 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
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
What About New York?
• PESH/OSHA
– Standards are essentially the same, unlike
California
• New York State Penal Law
• Public Officers Law
New York – Criminal Charges
•
•
•
•
•
•
Manslaughter
Criminally negligent homicide
Reckless endangerment
Assault
Falsifying business records
Conspiracy
– Concealing violations, falsifying records
• Tampering with physical evidence
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
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?
Public Officers Law Section 17
• Authorizes defense for state officers, employees and volunteers in a statesponsored 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
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.
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
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
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
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?”
Thank You!
James L. Jarvis, Jr.
Associate Counsel
SUNY Office of General Counsel
jljarvis@buffalo.edu
(716) 645-4468