Should you prepare to be an OHS expert witness?

New forms of litigation due to workplace injury disputes are ongoing

Lawsuits and workers’ compensation
    In the earliest days of OHS, disputes of who was responsible for the payment of a workplace injury or illness was settled by litigation. Every US state eventually passed workers’ compensation insurance law to establish a no-fault system where responsibility for injury/illness payment nearly always falls upon the employer. According to NOLO², however, the following conditions may be outside the WC shield:
   • If you were injured by a defective product, you might be able to bring a products liability action against the manufacturer of the product.
   • If you were injured by a toxic substance, you might be able to bring a toxic tort lawsuit against the manufacturer of that substance.
   • If you were injured because of your employer's intentional conduct, you might be able to bring a personal injury lawsuit against your employer.
   • If your employer does not carry workers’ compensation insurance, you might be able to sue your employer in civil court or collect money from a state fund.
   • If a third party caused your injury, you might be able to bring a personal injury lawsuit against that person.
    Caveat: the above list should not be considered inclusive. Other conditions likely exist that may pierce the workers’ compensation insurance shield.

New problems
    OHS is a very broad and evolving field. New forms of litigation because of workplace injury or illness disputes continue to break through. For example, Fisher-Phillips Covid-19 Employment Litigation Tracker and Insight has tracked over 3,000 Covid-19 employment cases since 1/30/2020. Among these cases, about 7% involve employer negligence / wrongful death and unsafe workplace.³ Even if the US closes the door on Covid-19 by year’s end, scientists now predict other communicable disease epidemics in coming years are probable.

Old problems
    Some old OHS disputes are taking on a new perspective. When OSHA issued its 1978 lead standard, for example, its advisory appendices suggested that workers intending to start a family should limit their blood lead level to below 30 micrograms per deciliter to prevent lead caused birth defects.      Fearing birth defect lawsuits, many employers installed “fetal protection programs” that only allowed infertile women (but no restriction on men) to work with lead and other reproductive hazards. The US Supreme Court in 1991 unanimously found that this practice violated the 1978 Pregnancy Discrimination Act. While few workplace birth defect lawsuits have been successful in past years, legal settlements in the tens-of-millions of dollars have been particularly troublesome.  
    Troublesome too, is the growing unrest with federal pregnancy discrimination claims. Research by Bloomberg Law found that since 2016, each succeeding year set a new record for the number of claims filed. Bloomberg Law projects that 2021 end-of-year pregnancy discrimination claims will set another new record. Why do these claims continue to rise?
    Perhaps adding fuel to PDA claims and lawsuit embers, OSHA’s 2012 HazCom (GHS) standard mandated the hazard statement, where appropriate, “may damage the unborn child.” But what workplace exposures, chemical or not, may harm a child?  Coincidentally (but maybe not) 2012 was the first year that the Pregnant Workers Fairness Act (PWFA) was introduced into the US Congress. The first state PWFA-like law was issued in 2012, too. There are now 31 states, 4 cities and DC with PWFA-like law. Nealy every PWFA law was based on the advocate rally cry “income or health.” The health portion of this cry should be of keen interest to OHS pros.

     Troublesome too, is the growing unrest with federal pregnancy discrimination claims. Research by Bloomberg Law found that since 2016, each succeeding year set a new record for the number of claims filed. Bloomberg Law projects that 2021 end-of-year pregnancy discrimination claims will set another new record. Why do these claims continue to rise?
     Perhaps adding fuel to PDA claims and lawsuit embers, OSHA’s 2012 HazCom (GHS) standard mandated the hazard statement, where appropriate, “may damage the unborn child.” But what workplace exposures, chemical or not, may harm a child?  Coincidentally (but maybe not) 2012 was the first year that the Pregnant Workers Fairness Act (PWFA) was introduced into the US Congress. The first state PWFA-like law was issued in 2012, too. There are now 31 states, 4 cities and DC with PWFA-like law. Nealy every PWFA law was based on the advocate rally cry “income or health.” The health portion of this cry should be of keen interest to OHS pros.

    The latest version of the federal PWFA comfortably passed in bipartisan fashion the US House in May 2021 and was approved comfortably by the US Senate Health, Education, Labor and Pension Committee August 2021. A US Senate vote awaits. We’re on the cusp of a new federal law with significant OHS impact. Will the federal PWFA limit disputes? The US Congressional Budget Office expects that for the first three years after PWFA regulations are issued, volume of claims related to pregnancy discrimination received by the EEOC will increase by about 20 percent each year. The portion of claims brought because of “health” disputes is uncertain, but likely will be significant.

What’s an expert witness?
    Per Wikipedia, an expert witness is “a person whose opinion by virtue of education, training, certification, skills or experience, is acceptable by the judge as an expert.”⁴ See Wikipedia full article for greater clarification.
    Consider this example: Every OHS pro has some understanding of noise hazards. Kentucky’s 2019 Pregnant Workers Health Impact Assessment⁵ (Kentucky PWFA law passed in 2019), advises that “Women exposed to 80 dB for an 8-hour shift were at increased risk of preterm delivery and high noise may place their unborn child at risk to hearing loss.” Assume that a worker’s preterm child in 2021 in your state was born with hearing loss. Note, newborns in nearly every US hospital receive an electronic hearing test before they leave the birthing hospital. The worker sues (more appropriately the child brings the suit) for compensation for the child’s hearing loss.
    How is the above dispute solved? Is this a workers’ compensation claim? Is this an OSHA issue i.e., provide a workplace free from recognized hazards? How should this claim be valued? If the case has standing, i.e., allowed by the courts, an AAP member will likely be retained as an expert – sometimes for the plaintiff, sometimes for the defense. But who else, particularly among OHS pros, could be an expert in this case? Would you rather be an expert for the plaintiff or defense in this case? If you developed and delivered hearing conservation training in this case, but did not include Kentucky’s noise hazard information warnings at 80 dB, could you as an individual be sued for “failure to warn?” Be aware, risk adverse manufacturers now include noise warnings at 80 dB in product literature that is sometimes found on product labels. Are there limits on where hazard information is found then disclosed? Hint, Kentucky’s noise hazard information came from a study conducted and published outside the US.
    There is a lot to consider in most litigation claims. OHS litigation claims are likely to rise, examples given. Plaintiff and defense attorneys, judges and juries, and others, such as news media, require OHS experts to make complex OHS information, comprehensible. Becoming an expert witness i.e., subject matter expert should be part of your career plan.