Professor Rachel P. Maines, an historian in Cornell University recently presented on “Historians as Experts,” in an American Law Institute webcast continuing legal education program on “Finding and Developing New Expert Witnesses in Litigation” (Sept. 26, 2013). Of course, historians are experts of sorts, or they aspire to be, but Professor Maines addressed historians as expert witnesses in court, a special breed of expert.
Professor Maines’ contributions to the history of technology, and to asbestos in particular, are impressive, and so I appreciated her noting my blog post, “How testifying historians are like lawn-mowing dogs,” (May 2010), as one of my more entertaining “diatribes against testifying historians.” I don’t believe that historians are unnecessary in all cases, only in most cases.
Professor Maines also provided an important practice pointer by emphasizing the value of local historical societies as repositories of documents that may be important to litigation issues. Indeed, recently, I had the pleasure of working with an archivist at the Onondaga County Historical Society, in Syracuse, New York, not far from the hallowed halls of Cornell. A plaintiff, who worked at Syracuse China, in Syracuse, sued on a claim that he developed silicosis from workplace exposure. The crystalline silica and clay suppliers provided warnings on bags and on Material Safety Data Sheets, but the defendants wanted to show the depth and the duration of the employer’s knowledge of silica hazards.
The works of historians and archivists proved to be very important in the favorable resolution of this upstate New York silicosis case. The plaintiff worked at a chinaware factory owned by Syracuse China. A chinaware collector’s history of Syracuse China contained several statements that the employer had longstanding knowledge of silicosis hazards, as do virtually all responsible employers in the United States, from the early 1930’s forward. See Cleota Reed & Stan Skoczen, Syracuse China (Syracuse Univ. Press 1997). Several internet sources alerted me to the existence of the Onondaga Historical Association and its potential as a source of important documents about Syracuse China, and its predecessor, Onondaga Pottery. See, e.g., Tom Huddleston Jr., “Onondaga Historical Association unveils Syracuse China exhibit for two fundraisers,” (Mar. 22, 2010). A few phone calls later, I had an appointment to visit the Onondaga Historical Association and meet its very helpful staff.
Syracuse China closed its doors and ceased manufacturing a few years before the law suit was filed, and discovery of the employer for evidence of its sophistication was slow going. As luck would have it, the company had provided a room full of documents going back to the first decades of the 20th century. Among these documents were original pleadings in lawsuits, brought by employees who claimed to have developed silicosis in the 1930s. The management clearly followed not only litigation developments, but also technical aspects of dust measurement and control. In reviewing the Syracuse China archive at the Onondaga Historical Association, I found, among other things:
- pre-OSHA New York state regulations for workplace safety for use of crystalline silica;
- correspondence with silica expert, Dr. Leonard Greenberg, then at Yale University in the 1930s, and later an official in the New York Department of Labor; and
- American Ceramic Society publications and documents on crystalline silica health hazards and environmental controls.
Personnel records allowed me to establish that Onondaga Pottery had hired a young scientist, Edward Schramm, in the 1930’s, from the United States Bureau of Standards. Schramm served as one of the company’s representative to the American Ceramic Society. In 1933, Schramm published an article “Dust Elimination in the Pottery Industry” in 16 J. Am. Ceramics Soc’y 205 (1933), a journal of the American Ceramics Society. The sophistication of the plaintiff’s employer with respect to silica hazards and their control was indisputable, from the 1930’s forward.
The “treasure trove” of historical documents from the local historical society allowed the defendants to file an extremely strong motion for summary judgment on the issue of sophisticated intermediary and proximate causation. See Affirmation of Counsel for U.S. Silica Co. in Support of Motion for Summary Judgment, in Irwin v. Alcoa, Inc. et al., New York Supreme Court (Onondaga County) Index No. 2010-1098 (Oct. 1, 2012).
Professor Maines’ advice is an important reminder of the utility of informal discovery through historical archives as a supplement to the more typical lawyerly tools of subpoenas and document requests.
