Historians, often of the subspecies social, labor, or Marxist, have frequently been recruited by the lawsuit industry to support their litigation efforts. One such historian, David Rosner, sometimes with his friend Gerald Markowitz, seems to show up everywhere, including the infamous Ingham case, in which he served largely as a compurgator and moralist.
Given the role that such historians are permitted to play in high-stakes litigation, it is important to look at their more professional work in the journals for insights into their methodology. A couple of years ago, David Rosner and Gerald Markowitz, published a story about governmental regulation of workplace safety before the passage of the Occupational Health and Safety Act in 1970.[1] Their article is an interesting case study of how to bias an historical analysis by leaving out material facts, a modus operandi in their litigation work as well.
The abstract gives a brief flavor of their tendentious narrative:
“The Occupational Safety and Health Act of 1970 and the Workers Right to Know laws later in that decade were signature moments in the history of occupational safety and health. We have examined how and why industry leaders came to accept that it was the obligation of business to provide information about the dangers to health of the materials that workers encountered. Informing workers about the hazards of the job had plagued labor–management relations and fed labor disputes, strikes, and even pitched battles during the turn of the century decades. Industry’s rhetorical embrace of the responsibility to inform was part of its argument that government regulation of the workplace was not necessary because private corporations were doing it.”
The authors attempt to tell a one-sided story that only “voluntary” warnings were assumed by employers before OSHA, without the force of law. The enterprise perpetuates a common myth of plaintiffs’ advocates that pre-OSHA occupational safety was based upon employers’ voluntary assumption of responsibility, and that it was not until the passage of the OSH Act that employers were subject to legal obligations to warn.
In terms of scholarship, Rosner and Markowitz break no new ground; indeed, the topic was presented with more historical acumen by scientists in an article that predated the Rosner and Markowitz article by a decade.[2] More damning, however, the historians laureate of the plaintiffs’ bar contradict their thesis that manufacturers had only voluntary commitments to their worker safety by pointing to the law of the 1930s, which placed a common law duty of care on employers:
“As one judge in the New Jersey Supreme Court opined at the time, ‘It was the duty of the defendant company to exercise reasonable care that the place in which it set the deceased at work . . . should be reasonably safe for the plaintiff, and free from latent dangers known to the defendant company, or discoverable by an ordinary prudent master, under the circumstances’.”[3]
Of course, legal historians are well aware that there has been a common law duty of reasonable care owed by “masters” (employers) to their “servants” (employees), including a duty to protect them from occupational hazards such as overexposure to dusts, including respirable crystalline silica.[4] There was nothing voluntary about the common law duty.
What makes Rosner and Markowitz’s account egregiously wrong is its complete omission of the extensive state governmental regulation of occupational exposures in advance of OSHA. Taking New York (where Rosner and Markowitz live and teach) as an example, we can see that the state had occupied the field of regulating workplace safety many decades before the enactment of OSHA.
The industrial use of crystalline silica provides an example of a “hot” issue in early 20th century industrial hygiene. Initial efforts in New York state, starting as early as 1913, focused on the most prevalent industrial exposures, such as foundries, where whole grain and ground silica was used in metal casting and cleaning. New York’s long-recognized common law duty of employers to provide a safe workplace was statutorily codified in 1921.[5] By 1935, silicosis became a compensable disease under New York law, in all industrial settings.
New York’s efforts to protect industrial workers from silica exposure achieved national recognition in 1940, when LIFE magazine published a description of measures taken by the state to safeguard workers on an 85-mile tunnel aqueduct project. The project required thousands of workers to drill through quartzite rock (composed of almost entirely of crystalline silica). Intent on avoiding a repeat of the Hawk’s Nest tragedy, the state imposed safety measures on the project, including wet drilling, elaborate ventilation, and air sampling. LIFE declared the New York state precautions to be “[a] triumph of preventative medicine.”[6]
New York courts also have been in the forefront of recognizing the hazards of silica exposure, and addressing the legal implications of knowledge of those hazards. In 1944, New York’s highest court, the Court of Appeals, held, in a silicosis personal injury case, that:
“[i]t is a matter of common knowledge that it is injurious to the lungs and dangerous to health to work in silica dust, a fact which defendant was bound to know.”[7]
From the 1950s on, New York comprehensively regulated the use of crystalline silica in the industrial workplace. In 1956, New York promulgated “Industrial Code Rule No. 12 – Control of Air Contaminants,” which governed “all processes and operations releasing or disseminating air contaminants in any workroom or work space” (§ 12.1), and clearly defined the employer’s duties to protect workers, regardless of the industry sector or manufacturing process.
Silica was specifically covered by these 1956 regulations. Section 12.2 of the Rule, “Responsibility of employers,” requires:
“Every employer shall observe and effect compliance with the provisions of this rule relating to prevention of air contamination and to providing, installing, operating and maintaining control or protective equipment, and shall instruct his employees as to the hazards of their work, the use of such control or protective equipment and their responsibility for complying with this rule.”
Section 12.25 specifically identified industrial processes that create “air contaminants,” such as free silica.
New York law imposed correlative obligations upon workers. Under § 12.3, the employee’s responsibility was to use the controls and equipment provided by his employer for his protection.
New York’s 1956 regulations, like the federal regulations that would follow in the early 1970s, focused on avoiding exposure to hazardous substances such as crystalline silica in the first instance. Section 12.7, “Prevention,” requires that
“[a]ll processes and operations where practicable shall be so conducted or controlled as to prevent avoidable creation of air contaminants.”
Section 12.9, General control methods, specifies “[o]ne or more of the following methods . . . control dangerous air contaminants:
- Substitution of a material which does not produce air contaminants;
- Local exhaust ventilation at the source of generation of the air contaminant;
- Dilution ventilation in any work space in which air contaminants are generated or released;
- Application of water or other wetting agent to prevent air contaminants;
- Other methods approved by the board.”
Section 12-29, “Maximum allowable concentrations – evidence of dangerous air contaminants,” provides that air contaminants in quantities greater than those listed “shall constitute prima-facie evidence that such contaminants are dangerous air contaminants.” In a chart entitled “Mineral Dusts,” the 1956 regulations specifically imposed a maximum exposure for free crystalline silica, depending upon the percentage concentration of silica in the total dust.
In 1958, New York revised Rule 12, with its extensive regulation of silica, to provide an even more detailed description of employer responsibilities of employers for air monitoring, ventilation, respiratory programs, and worker education. Section 12.6 of the 1958 Regulations, “Prevention of air contamination,” mandated that
“[a]ll operations producing air contaminants shall be so conducted that the generation, release or dissemination of air contaminants is kept at the lowest practicable level.”
Rule 12 was revised again in 1963, and in 1971, each time with greater specificity of the employer’s responsibility for safe handling of air contaminants, which was always defined to include silica dust. These state regulations never restricted their application to any particular industry. Crystalline silica was thus regulated in every industry conducted within New York.
New York state recruited and employed some of the leading scientists in the field of industrial hygiene and occupational medicine to serve in its Department of Labor’s Division of Industrial Hygiene. Leonard Greenberg, who was a graduate of Columbia College of Engineering, and who received his Ph.D. and M.D. degrees from Yale, served as the executive director of the New York State Division of Industrial Hygiene 1935 to 1952. He later served as an official on pollution control until 1969.[8] While at the New York Department of Labor, contributed widely to scientific publications on occupational health,[9] as did many other scientists under his supervision.[10]
Omission of material facts seems to be a key aspect of the faux historian’s methodology, and very useful in litigation if your conscience permits it.
[1] David Rosner & Gerald Markowitz, “‘Educate the Individual . . . to a Sane Appreciation of the Risk’: A History of Industry’s Responsibility to Warn of Job Dangers Before the Occupational Safety and Health Administration,” 106 Am. J. Pub. Health 28 (2016).
[2] See John L. Henshaw, Shannon H. Gaffney, Amy K. Madl , and Dennis J. Paustenbach, “The Employer’s Responsibility to Maintain a Safe and Healthful Work Environment: An Historical Review of Societal Expectations and Industrial Practices,” 19 Employee Responsibility & Rights J. 173 (2007).
[3] Rosner & Markowitz at 30 (quoting Frederick Willson, “The Very Least an Employer Should Know About Dust and Fume Diseases,” 62 Safety Engineering 317 (Nov. 1931) (quoting in turn an unidentified New Jersey court decision).
[4] See, e.g., Bellows v. Merchants Dispatch Transp. Co., 257 A.D. 15 (4th Dept. 1939) (holding that employer failed to provide a safe work environment with proper ventilation to employee who contracted silicosis).
[5] New York Labor Law § 200 (enacted 1921).
[6] “Silicosis,” Life (April 1, 1940).
[7] Sadowski v. Long Island R.R., 292 N.Y. 448, 456 (1944),
[8] “Leonard Greenberg, Pollution Official, Dies,” New York Times (April 12, 1991).
[9] See, e.g., Leonard Greenburg, “Pneumoconiosis,” 33 Am. J. Pub. Health 849 (1943); Leonard Greenburg, “The Dust Hazard in Tremolite Talc Mining,” 19 Yale J. Biology & Med. 481 (1947).
[10] See, e.g., James D. Hackett, Silicosis, N.Y. Dep’t Labor & Industry Bull. 11 (Dec. 1932); Frieda S. Miller, Industrial Commissioner, “Detection and Control of Silicosis and Other Occupational Diseases” (1940); Adelaide Ross Smith, “Silicosis and Its Prevention, Special Bulletin No. 198,” (1946).
