The Law’s Obsession with Warnings

Professor Beth J. Rosenberg is Assistant Professor, in the Department of Public Health & Community Medicine, in Tufts University School of Medicine, Boston, Massachusetts.  Rosenberg is an unabashed activist.  She is driven by concerns that humans are ruining the environment and poisoning themselves.  She is a champion of workers’ safety and workers’ rights.  So when she writes about her personal experience with the lack of interest among workers in the hazards of silica, we all can learn something about whether the law’s obsession with warnings makes sense.

In 2003, Rosenberg wrote an article about her experiences in trying to have silica added to the list of substances regulated under the Massachusetts’ Toxics Use Reduction Act (TURA).  Beth Rosenberg, “Second Thoughts About Silicosis,” 13 New Solutions 223 (2003) (http://www.ncbi.nlm.nih.gov/pubmed/17208725).  Working with support from the Environmental League of Massachusettes and the Massachusettes Public Health Association, Rosenberg petitioned to have silica added to the TURA list of substances, in part out of a desire to help fuel a ban on abrasive blasting with silica in Massachusettes.  She figured that by piggybacking on the environmental movement, or riding “the green wave,” as she put it, the state’s environmental laws could be used to help control occupational exposures.

Rosenberg’s ideals and aspirations ran into the wall of worker expectations and needs.  They did not want abrasive blasting banned; they wanted stronger enforcement from OSHA, and better respirators.  Rosenberg admits that the workers were pursuing a path that was not her goal, and she learned that, at legislative hearings, she needed “to take tighter control of the scripts of any hearings that I’m orchestrating.”  Id. at 227.

Rosenberg worked with the Painters’ union to study substitutes for silica in abrasive blasting.  Motivated by a recognition that “[s]ilica-related disease is completely preventable,” id.  at 224, she hoped to move them towards supporting a ban on silica for abrasive blasting. After several years of this work, however, Rosenberg decided to give up on her silica mission.  Her experience is instructive for correcting the misapplication of “failure to warn” products liability law to the use of a raw material such as silica in the workplace:

“The main point here is that the men I’ve interviewed are not terribly concerned about silica dust. They care about being treated decently and respectfully by their bosses. They’re concerned about being encouraged to work too fast to work safely. They care about lead dust, particularly bringing it home to their families, so they get really angry when the foreman wants to lock up the yard at five o’clock and doesn’t leave them enough time to shower and change their clothes. They feel that they are expendable. And although most are fully aware of silica’s dangers, silica is not a top priority for them. The silica agenda was set by some physicians and health professionals who are outraged that anybody is still dying of this 100 percent preventable disease. This is understandable, and I am one of those people, but I’m not sure this is the best way to be of service. I see that there are other, more pressing issues than silica.

I’ve chosen to serve working people, and yet they’ve had little or no role in setting the research agenda. Not only is this unrewarding for me, but it’s also a bad political strategy because you need a lot of support and collaboration to accomplish anything—even when everyone agrees that action is required—and interest in silica is tepid among the people most affected. This may not be true in other trades or in other countries, but it is true with abrasive blasters. And I stress that is not an awareness problem; they know breathing dust is bad for them, but it’s just not their top concern, and I can see why. So, henceforth, I’m going to let the community I choose to serve set the research agenda, and I will offer my assistance in their battles. That to me is the best way to do public health.”

Id. at 229 (emphasis added).  Rosenberg’s epiphany should lead to some thoughtful re-evaluation of how the law of products liability is applied to the use of a natural material such as crystalline silica.  While Professor Rosenberg was working with the Painters’ Union, and having her “Second Thoughts about Silicosis,” plaintiffs’ lawyers were screening, scheming, and suing for silicosis among the same union’s members.  If only plaintiffs’ law firms took heed of Professor Rosenberg’s lessons, and stopped signing up sand blasters under the paternalistic pretense that the law must provide a remedy for the alleged failure to warn.  The faux historians of silicosis, with their conspiratorial theories, could learn a great deal from Professor Rosenberg, as well.

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