Opposition Brief — Smith v. Brookshire Brothers, Inc.

3u The

Supreme Court of the United States

,

v

WESLEY SMITH,

Petitioner,

vs.

BROOKSHIRE BROTHERS, INC.,

Respondent.

h

Vv

On Petition For Writ Of Certiorari To

The First District Court Of Appeals,

Houston, Texas

gS

vy

BROOKSHIRE BROTHERS’

RESPONSE TO WESLEY SMITH’S

PETITION FOR WRIT OF CERTIORARI

a

v

CuRTIS (CURT) W. FENLEY III

Counsel of Record

WARREN T. MCCOLLUM

Attorney for Respondent

FENLEY & BATE, LLP

224 E. Lufkin Ave.

Lufkin, Texas 75901

936-634-3346

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether the State of Texas First District Court of

Appeals’ Opinion that Material Data Safety Sheets

(MSDS) are not a reliable source, by themselves, to

establish legal causation in a negligence action is an

issue limited to the jurisprudence of the State of

Texas?

Whether the Petitioner has met his burden of estab-

lishing Federal Question Jurisdiction?

Whether the State of Texas First District Court of

Appeals’ determination that Dr. Gary Friedman’s tes-

timony was unreliable is based solely on the unreli-

ability of MSDS?

Whether the State of Texas First District Court of

Appeals’ Opinion that MSDS are not sufficient to es-

tablish general causation in a civil chemical exposure

case is significant Federal issue?

Whether MSDS are reliable for use in proving general

legal causation in a civil chemical exposure case?

Whether there is a sufficient record for the Supreme

Court to determine if the specific MSDS relied upon

by Dr. Gary Friedman is reliable scientific evidence?

CORPORATE DISCLOSURE STATEMENT

Brookshire Brothers, Inc. no longer exists. The successor

entity is Brookshire Brothers, Ltd. which is a limited

partnership between Brookshire Brothers Management,

Inc. (a Texas Corporation) and Brookshire Brothers

Investment, Inc. (a Nevada Corporation). Neither is a

publicly traded company.

TABLE OF CONTENTS

’ Page

QUESTIONS PRESENTED .............:ccccsssssssssessseseeseses i

CORPORATE DISCLOSURE STATEMENT............. ce

Fe FT Ee vss titcctivcbncietcencenssacssivniaction iv

STATEMENT OF THE CASE.............ccecsccccsssssesssesoreere 1

SUMMARY OF THE ARGUMENT. ................cccccsceeeeeees 2

REASONS FOR DENYING THE WRIT...................006 3

ROR RSA eA OR aT Ee MI OSESE 16

SPE ETUC I sejinbcrdaipibdieccntinivnlicsisianbasbribecbebicdeincaatonascmnciai App. 1

RENN Wisc su dich lati cates pidieedean cuinnicanaatnodeagvanatouckditias App. 2

EE Wi iccictciniedtciissinisuquensdaspepiiccthink caceoitussmbacwanies App. 9

SINUS scslesssinssshas tran cebcccndgcranipinaiaZaaniemcknanbadiocs App. 12

Se NINE ak cindiisniinitsciedibaciodberenapiarcadinseclidadantohisnbsdeeienae App. 20

5 SES ree TMNT Smee Ret aR Pe ee App. 23

iv

TABLE OF AUTHORITIES

Page

CASES |

Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d

591 (Tex. App. — Houston [1st Dist.], 2002)..............:c00 2, 10

Curtis v. M&S Petroleum, 174 F.3d 661 (5th Cir.

SMITE ssid cibeshcidacsduxissopensdiahsiaucadlbctaarootengvencuhecuaniadcsebictned 6,9

Ferrell v. McDonald’s Corp., 2002 Tex. App. Lexis

5934 (Tex. App. — Dallas, 2002)...............c:cccccccssscesseeeees 15

Industrial Union v. American Petrol. Inst., 448 U.S.

a iiss eccmacekcscivabiccs Sbueiaineacseass aacectbann mubaseanend 9

Layne & Bowler Corp. v. Western Well Works, 261

Be EEE phstinitictonicicitsiaiiodendomasameaen 8

Maryland v. Baltimore Radio Show, Inc., 338 U.S. -

Se AI ee iiscsncpaiccrinccihksdntcissatisacaeaueaacncanaenined 5

McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2nd Cir.

SEE sitinsccorastsciresbsesesinveebiitrosinktatedoiee tinseuaswinneineeeetnealesbeiie 7

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953

Pe FO CM BOI vi vdtvnicsnviscssdeinncincsenesoasstursecden passim

Minnesota Mining and Manufacturing Co. v.

Atterbury, 978 S.W.2d 183 (Tex. App. — Texarkana,

EE ca vtiniieshespavciiineboscnbddbbaihediece capiddeumeniaaaeenaa 4,12, 13

Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th

Be I cic kessissvas cc ip cnae nix datecinnineaurnomanabarsbaiadiaas 2,10, 14

National Labor Relations Board v. Pittsburgh

Steamship Co., 340 U.S. 498 (1951)............cccssereseceeeee 8

Neal v. Dow Agrosciences LLC, 74 S.W.3d 468 (Tex.

TRI: TN, TI isis ss cicesevineeniceisicinivaecocninctdoentetpingion 12

Westerberry v. Gislaved Gummi AB, 178 F.3d 257

OE Es SI iad iciacncennia riiinnvetdiceteniniaechindamansaaie an 6

TABLE OF AUTHORITIES - Continued

Page

STATUTES, RULES AND REGULATIONS

United States Supreme Court Rule 10........c.cccccscseseseees 5,6

Texas Rules of Appellate Procedure 56.1 ...............:ccseeeees 4

29 CFR. § 1910.1200(d)(Q) ...ceccccececcececseceesesseees 4, 12,13, 14

STATEMENT O¥ THE CASE

Brookshire Brothers is dissatisfied with Wesley

Smith’s statement of the case and, as such, presents the

following for the court’s consideration.

Wesley Smith brought suit against Brookshire Broth-

ers for injuries he claims to have suffered from exposure to

household cleaners. Brookshire Brothers is a grocery

company with locations in Texas and Louisiana. Brook-

shire Brothers has chosen not to subscribe to the Texas

Workers’ Compensation System. Smith was employed at

Brookshire Brothers’ Corrigan, Texas location as a part of

the night cleaning crew. On September 12, 1995, he was

asked to clean the walls of the bakery. Smith claims that

he was given multiple household cleaners which he used to

clean the bakery walls. Smith alleges that the mixture of

cleaners caused irritation to his eyes, throat and mouth.

According to Smith, this irritation led to the development

of reactive airways dysfunction syndrome (RADS). Smith

has never been able to clearly identify the amount of the

household cleaners he used and the duration of his alleged

exposure to the chemicals.

Wesley Smith sued Brookshire Brothers on September

9, 1997. Smith asserted Brookshire Brothers was negli-

gent in failing to provide a safe workplace and that Brook-

shire Brothers’ conduct was grossly negligent, intentional

and/or consciously indifferent. Smith sought damages for

his alleged condition and punitive damages.

At trial, Wesley Smith’s counsel read the deposition

testimony of Dr. Gary Friedman. Dr. Friedman relied

almost solely upon MSDS for some of the household

cleaners allegedly employed by Wesley Smith. For the

other cleaners, which he could not locate MSDS, he relied

upon the manufacturer’s product label.

The First District Court of Appeals, citing to Moore v.

Ashland Chemical, Inc., 151 F.3d 269, 278 (5th Cir. 1998)

and Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d

591, 611 (Tex. App. — Houston [1st Dist.], 2002), correctly

found that Dr. Friedman’s reliance on MSDS, without

additional scientific support, was unreliable and therefore,

constituted no evidence. Without Dr. Friedman’s testi-

mony, Wesley Smith had no evidence of the causal link

between his alleged exposure to the household cleaners

and his alleged medical condition, Reactive Airways

Dysfunction Syndrome (RADS).

¢

SUMMARY OF THE ARGUMENT

The decision of the First Court of Appeals from Hous-

ton, Texas is a matter of Texas Jurisprudence. The State of

Texas has held that reliance on scientific studies whose

foundation is experiments conducted on animals or expo-

sure of animals to certain substances is inherently unreli-

able. This holding is particular to the State of Texas and is

not a federal issue.

The Petitioner, Wesley Smith, fails to establish a real

conflict between the First District Court of Appeals’

opinion in Brookshire Brothers, Inc. v. Smith and any

Federal Circuit Courts of the United States or any State

Court of last resort. Likewise, he has failed to establish

the First District Court of Appeals’ opinion conflicts with a

relevant decision of the United States Supreme Court or

that the First District Court: of Appeals’ opinion decided an

important question of Federal law.

The First District Court of Appeals’ decision was

based on more than MSDS were unreliable scientific

evidence. In fact, Dr. Friedman also relied upon medical

records, the patient’s history and manufacturer labels, all

deemed to be unreliable, in combination with the MSDS

and by themselves, to support Dr. Freidman’s causation

opinion.

The authorities and the underlying regulations

establish that MSDS are not scientifically reliable. The

reliance on a single animal study, the medical community’s

hesitancy to rely on MSDS due to the manufacturer/

author’s history of providing only part of the data or

inaccurate data, does not make MSDS a reliable basis for

a scientific opinion to support general causation. Finally,

the underlying record on appeal does not furnish sufficient

information upon which a court could determine the tests

performed by the MSDS author or even what the MSDS at

issue Says.

For these reasons, the Honorable United State Su-

preme Court should deny the Petition for Writ of Certio-

rari. :

,

v

REASONS THE PETITION SHOULD BE DENIED

i. The Highest Court of the State of Texas de-

clined to address the issue

On January 27, 2006 the Texas Supreme Court denied

the Petitioner’s Petition for Review. (Appendix 1, App. 1).

The Texas Supreme Court later denied a Motion for

Rehearing. (See Petitioner’s Petition App. C). The Texas

Rules of Appellate Procedure provide that:

4

“Denied.’ If the Supreme Court is not satisfied

that the opinion of the court of appeals has cor-

rectly stated the law in all respects, but deter-

mines that the petition presents no error that

requires reversal or that is of such importance to

the jurisprudence of the state as to require cor-

rection, the Court will deny the petition with the

notation ‘Denied’” Tex. R. App. P. 56.1(b)(1).

A petition for review which is refused is equivalent to an

opinion issued by the Texas Supreme Court and possesses

the same precedential value as an opinion issued by the

Texas Supreme Court. The disposition by the Texas Su-

preme Court of the Petitioner’s Petition for Review of the

First District Court of Appeals’ May 13, 2004 opinion

establishes that the opinion of the First District Court of

Appeals lack any significant merit within the jurispru-

dence of the State of Texas. The reason is that Texas law

already recognizes that epidemiological studies, which Dr.

Gary Friedman failed to cite, based upen research con-

ducted on animals is unreliable. Merrell Dow Phamaceuti-

cals, Inc. v. Havner, 953 S.W.2d 706, 728-729 (Tex. 1997)

and Minnesota Mining & Manufacturing Co. v. Atterbury,

978 S.W.2d 183, 199 (Tex. App. — Texarkana, 1998). The

Occupational Safety & Health Administration (OSHA)

requires chemical manufacturers to make a health hazard

determination and issue a MSDS based upon this determi-

nation. 29 C.F.R. § 1910.12°0(d)(2). The regulations give the

manufacturers guidance as to what types of studies may be

examined and used in making the health hazard determi-

nation in Appendix A and B which are attached to the

regulations. (Appendix 2, App. 4-6 & Appendix 3, App. 9-

10).’ In determining whether a product is a carcinogen,

* Both Appendix 2 & 3 were attached as Appendix G1 and G2 to

Smith’s Petition for Review to the Texas Supreme Court.

5

corrosive, highly toxic, irritant, or toxic, a chemical manu-

facturer is permitted to examine and base this determina-

tion on a single animal study. (Appendix 2, App. 5). Texas

law has specifically held that reliance upon animal studies

is not sufficient to establish legal causation in a court of

law. Texas also requires the epidemiological studies

presented in support of a general causation opinion dem-

onstrate that exposure to the chemical should double the

risk of contracting the medical condition at issue. Merrell

Dow Phamaceuticals, Inc. v. Havner, 953 S.W.2d 706, 717-

718 (Tex. 1997). Federal Regulations pertaining to MSDS

do not specify any ratio of risk. These holdings and re-

quirement are particular to Texas Jurisprudence.

Even though the First District Court of Appeals’

decision does touch on federally required MSDS, this

honorable court should exercise its discretion and deny the

petition for writ of certiorari because this is a matter that

falls within the province of Texas Jurisprudence. See

Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 70

S. Ct. 252, 94 L. Ed. 562 (1950) (Court permitted to deny

review of State court proceeding even though it involved

issue of federal law).

il. The Petitioner has failed to establish a conflict

with any reported opinions

Since the Texas Supreme Court denied the petition for

review, Smith cannot meet Supreme Court Rule 10(b)

requirement that the “state court of last resort” decide an

important issue which conflicts with Federal Circuit Court

of Appeals’ decisions or other State Courts’ of last resort

6

opinions. As such, Smith’s claim of jurisdiction under

Supreme Court Rule 10(b) fails.

However, Brookshire Brothers still believes it is

important to show this court that the opinions cited by

Smith as conflicting with the First District Court of

Appeals’ opinion are factually distinguishable. First, the

First District Court of Appeals’ opinion does not possess

the broad holding that Petitioner claims. (Petitioner’s

Petition, Pg. 7). The opinion does not hold that MSDS are

not reliable scientific evidence. The opinion merely states

that MSDS by themselves are not reliable scientific evi-

dence. (See Petitioner’s Petition App. All-Al4). The

Petitioner ignores footnote seven of the opinion when he

claims that the First District Court of Appeals’ opinion

conflicts with Curtis v. M&S Petroleum, 174 F.3d 661 (5th

Cir. 1999). The First District Court of Appeals references

petitioner’s reliance on the opinion in his motion for

rehearing and distinguishes Curtis from the case at hand.

In particular, the expert in Curtis was relying upon other

scientific studies establishing a causal link between the

chemical and the disease suffered by the plaintiffs. [bid.,

669-670. Here, the First District Court of Appeals correctly

determined that Dr. Friedman was not reiying upon any

scientific studies, but relied solely on the MSDS and

manufacturer labels. Clearly, there is no conflict between

the opinion in Curtis and the First District Court of

Appeals’ opinion.

The Petitioner also cites to Westerberry v. Gislaved

Gummi AB, 178 F.3d 257 (4th Cir. 1999) as an opinion

which conflicts with the First District Court of Appeals

opinion. First, the Westerberry court never held that MSDS

are reliable scientific evidence by themselves. The Wester-

berry Court stated that MSDS provided by the defendant,

a

the defendant’s own opening argument and the defen-

dant’s expert’s testimony established that exposure to talc

in sufficient quantities could cause irritation to mucous

membranes. Jbid., 264-265. In fact, the defendant in

Westerberry took the position at trial that ta.c could cause

irritation to mucous membranes but that the plaintiff had

not been exposed to a sufficient quantity. Jbid., 265 n. 2

Here, the First District Court of Appeals did not face a

situation where it was conceded by the Defendant at trial

(Respondent herein) that exposure to the chemicals at

issue would cause RADS. As such, there is no conflict

between the First District Court of Appeals opinion and

Westerberry.

The Petitioner also cites to McCullock v. H.B. Fuller

Co., 61 F.3d 1038 (2nd Cir. 1995) as a case that holds

contrary to the First District Court of Appeals. First, as

stated above, the First District Court of Appeals found

that MSDS are not reliable scientific evidence of general

causation by themselves. Likewise, McCullock did not hold

that MSDS are reliable scientific evidence by themselves.

The physician in McCullock relied upon the plaintiff’s

medical records, her medical history, pathological studies

and reference to scientific and medical treatises in combi-

nation with MSDS was a sufficiently reliable method. Dr.

Friedman did not rely on any pathological studies or any

medical or scientific treatises in coming to his opinions.

Contrary to the Petitioner’s representation, McCullock

does not conflict with the First District Court of Appeals

opinion.

“Certiorari is only granted ‘in cases involving princi-

ples the settlement of which is of importance to the public

as distinguished from that of the parties, and in cases

where there is a real and embarrassing conflict of opinion

8

and authority among the circuit courts of appeal.’” Na-

tional Labor Relations Board v. Pittsburgh Steamship Co.,

340 U.S. 498, 502, 71 S. Ct. 453, 456, 95 L. Ed. 479, 482

(1951) (citing Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393, 43 S. Ct. 422, 67 L. Ed. 712 (1923)).

There is no “real and embarrassing” conflict between the

First District Court of Appeals’ decision in Brookshire

Brothers, Inc. v. Smith and the three federal circuit courts

of appeal discussed above and cited to by Smith.

Ill. The reliance on MSDS was not the sole reason

Dr. Friedman’s testimony was unreliable.

The question presented before~the court, whether

MSDS are reliable scientific evidence upon which to base a

causation opinion, would not, if it was determined that

MSDS are reliable, lead to a determination that Dr. Gary

Friedman’s testimony was reliable. The First District

Court of Appeals found Dr. Friedman’s opinion to be

unreliable for the following reasons:

(1) Reliance on the commercial cleaner’s labels;

(2) Reliance on the patient’s medical records

and history of the event;

(3) Failure to rely upon any peer review arti-

cles;

(4) And failure to cite one epidemiological study

in support of his opinion. (Smith’s Petition,

Appendix A, A9-A14),.

In fact the First District Court of Appeals never asserts

that MSDS are unreliable scientific evidence. The court

merely stated that MSDS, “standing alone” do not provide

9

“the type of specific detailed showing of scientific reliabil-

ity required to accord evidentiary value to an expert’s

opinion.”~(Smith’s Petition, Appendix A, All). Stated

differently, MSDS, by themselves, are not sufficient

scientific evidence upon which to base a general causation

opinion in a chemical exposure case. In the underlying

appeal, Smith attempted to use Curtis v. M&S Petroleum,

174 F.3d 661.(5th Cir. 1999) as support for his proposition

that MSDS are reliable scientific evidence. However, the

First District Court of Appeals was able to appreciate the

distinction between the scientific materials relied upon by

Dr. Friedman and those relied upon by the Curtis expert.

Dr. Frank Stevens relied on MSDS and:

(1) Epidemiological Studies published by the

U.S. Department of Health and Human Ser-

vices;

(2) The U.S. Supreme Court’s Opinion in Jndus-

trial Union v. American Petrol. Inst., 448

U.S. 607, 100 S. Ct. 2844, 65 L. Ed. 2d 1010

(1980) which discusses multiple studies on

the effects of exposure to benzene;

(3) And the OSHA standard on benzene. Jbid.,

669-670.

The First District Court of Appeals does not hold that

MSDS are unreliable scientific evidence as alleged by

Smith. The MSDS at issue did not provide the data neces-

sary to determine if they were reliable. Specifically, there

was no evidence of the tests upon which the MSDS based

its findings that exposure to the chemicals could cause

RADS. (Smith’s Petition Appendix A, Al1-A12). Smith fails

to appreciate the fact that if Dr. Friedman had relied upon

more than just the MSDS, if Dr. Friedman had scientific

10

studies which supported his conclusions, then his testi-

mony and conclusions could have met reliability standards

under Texas law.

IV. There is no significant public outcry about the

First District Court of Appeals’ opinion.

Courts have held well before the First District Court

of Appeals’ May, 2004 opinion that MSDS, by themselves,

are not reliable scientific evidence. In 1998, the Fifth

Circuit Court of Appeals, a court whose opinions carry

significant precedential value in federal courts in the

states of Texas, Louisiana, and Mississippi, held that

MSDS, by themselves, were not sufficient scientific mate-

rial upon which to base a causation opinion. Moore v.

Ashland Chemical, Inc., 151 F.3d 269, 278 (5th Cir. 1998)

and Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d

591, 611 (Tex. App. — Houston [1st Dist.], 2002) n. 32.

There was no documented public outcry over the Fifth

Circuit’s opinion in the three states it affected. Smith

neglects to advise the court that this is not the first time

that the First District Court of Appeals has ruled that

MSDS are not reliable scientific basis by themselves. In

Coastal Tankships, U.S.A., Inc. v.. Anderson, 87 S.W.3d

591, 611 (Tex. App. — Houston [1st Dist.], 2002), the First

District Court of Appeals, in an en banc opinion, found

that MSDS, in combination with other unreliable data,

could not be used to establish causation. Again, there was

no public outcry about the First District Court of Appeals’

opinion. Now, a panel of three justices from the First

District Court of Appeals issues an opinion, which comes

to the same conclusion as Coastal Tankships and there is

suddenly an outcry, admittedly limited to Houston, Texas.

One has to ask where was the concern of Dr. Wayne

11

Snodgrass and the Houston Hazardous Materials Re-

sponse Team in 1998 and 2002 when the Fifth Circuit

Court of Appeals and the First District Court of Appeals

authored opinions with the exact same conclusion as the

three judge panel of Brookshire Brothers, Inc. v. Smith. It

is also strange that the public outcry is limited to Houston,

Texas. (Smith’s Petition Appendix D, E & F). Not only is

there no public outcry from outside Texas, but the concern

is limited to Houston, no amicus briefs from Dallas, Austin

or San Antonio. The reason is clear. The First District

Court of Appeals’ opinion has little impact on anyone

within the relevant medical community.

The same person who forwarded the First District

Court of Appeals opinion to Dr. Snodgrass and the Hous-

ton Hazardous Materials Team would have also done well

to have educated them as to the difference between apply-

ing MSDS in Dr. Snodgrass’ and Emergency Medical fields

and application in establishing causation in a court of law.

Smith, Dr. Snodgrass and the Houston Hazardous Materi-

als Team fail to understand, after exhaustive briefing of

this subject at the First District Court of Appeal and the

Texas Supreme Court, the purpose of the legal system.

“Our legal system requires that claimants prove their

cases by a preponderance of the evidence. In keeping with

this sound proposition at the heart of our jurisprudence,

the law should not be hasty to impose liability when

scientifically reliable evidence is unavailable.” Merrell

Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.26 706, 728

(Tex. 1995). “[T]he law must balance the ner. to compen-

sate those who have been injured by the wro:.. “al actions’

of another with the concept deeply imbedded in our juris-

prudence that a defendant cannot be found liable for an

12

injury unless the preponderance of the evidence supports

cause in fact.” Jbid., 718.

V. MSDS are not reliable scientific evidence when

solely used to support a causation opinion.

Courts commonly refer to two types of causation in

toxic tort cases, general and specific causation. Minnesota

Mining and Manufacturing Company v. Atterbury, 978

S.W.2d 183, 199 (Tex. App. — Texarkana, 1998) and Neal v.

Dow Agrosciences LLC, 74 S.W.3d 468, 472 (Tex. App. —

Dallas, 2002). “General causation is whether a substance

is capable of causing a particular injury or condition in the

general population, while specific causation is whether a

substance caused a particular individual’s injury.” Merrell

Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714

& 715 (Tex. 1995). The First District Court of Appeals

found that Smith did not have evidence of general causa-

tion because Dr. Friedman’s opinion was not reliable. The

Curtis opinion stands for the proposition that MSDS may

be combined with scientific studies to form the basis of a

general causation opinion. However, Smith seeks a ruling

from this court that MSDS, simply because they are

required by Occupational Safety & Health Administration

(OSHA), are sufficient by themselves to support a general

causation opinion. As the court will appreciate, the pur-

pose and less than stringent requirements of MSDS make

such a holding unwise.

MSDS are prepared by chemical manufacturers,

importers and employers. 29 C.F.R. § 1910.1200(d)(2).

These groups are required to examine scientific data and

make a hazard determination of the chemicals included in

the product. As can be expected, Federal Regulations are

13

not always followed. “The practitioner may find when

contacting the manufacturer that the actual ingredients

that are causing the patient’s symptoms may not have

been listed on the MSDS because they either constituted

less than 1% of the product or the information on the

chemicals was not disclosed because of trade secrets.”

(Appendix 4, App. 15).’ Not surprisingly, the MSDS author

has not always prepared a complete analysis. An under-

standing of the bias and interests of the author leads to

the clear conclusion that MSDS are not a reliable source of

information for making scientific determinations of causa-

tion.

OSHA requires chemical manufacturers to make a

health hazard determination and issue a MSDS based

upon this determination. 29 C.F.R. § 1910.1200(d)(2). The

regulations give the manufacturers guidance as to what

types of studies may be examined and used in making the

health hazard determination in Appendix A and B which

are attached to the regulations. (Appendix 2, App. 4-6 &

Appendix 3, App. 9-10). In determining whether a product

is a carcinogen, corrosive, highly toxic, irritant, or toxic, a

chemical manufacturer is permitted to examine and base

this determination on a single animal study. (Appendix 2,

App. 4-6 & Appendix 3, App. 9-10). The courts of the State

of Texas are very skeptical of animal studies. “[T]hus, it

would be fair to say that animal studies, standing alone,

are not likely to support a finding of causation.” Minnesota

Mining & Manufacturing Co. v. Atterbury, 978 S.W.2d 183,

199 (Tex. App. — Texarkana, 1998).

* Appendix 4 was attached as Appendix G6 to Smith’s Petition to

the Texas Supreme Court.

14

Here, OSHA has permitted chemical manufacturers to

make hazard determinations, which form the content of

MSDS, based solely upon studies performed on rats and

rabbits. The Texas Supreme Court in Merrell Dow Phar-

maceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)

found that proper scientific methodology would not rely

solely on studies based upon animals, including rats and

rabbits, as conclusive evidence that a substance is harmful

to humans. Ibid., 728-729. The Fifth Circuit made clear

that a lack of knowledge of the tests conducted by the

MSDS author substantially limits the value of an opinion

based upon that MSDS. Moore v. Ashland Chemical, Inc.,

151 F.3d 269, 278 (5th Cir. 1998). Here, Smith has not

provided any evidence of what studies were relied on in

authoring the applicable MSDS.

In a letter from the Assistant Secretary of OSHA,

Joseph A. Dear to Senator Daniel R. Inouye dated January

18, 1995, Mr. Dear sets forth the purpose of MSDS. Nota-

bly absent from these purposes is to support lega: theories

of causation in a court of law. (Appendix 5, App. 20-21).*

There is nothing wrong with the use of animal studies in

the context of MSDS when one understands that the MSDS’

purpose is to warn employees of the potential hazards of

chemicals. 29 C.F.R. § 1910.1200(aX(2). The purpose of the

legal system is different. “[T]he law must balance the need |

to compensate those who have been injured by the wrong-

ful actions of another with the concept deeply imbedded in

our jurisprudence that a defendant cannot be found liable

for an injury unless the preponderance of the evidence

supports cause in fact.” Merrell Dow Pharmaceuticals, Inc.

* Appendix 5 was attached as Appendix G2 to Smith’s Petition for

Review with the Texas Supreme Court.

15

v. Havner, 953 S.W.2d 706, 718 (Tex. 1995). After examin-

ing the purpose of MSDS as compared to the requirements

in a court of law, the First District Court of Appeals and

other courts’ ruling that MSDS, by themselves, are not a

reliable basis for expert testimony on causation are based

on sound legal reasoning.

VI. The record presented to the lower courts of

appeal is not sufficient to determine the reli-

ability of the specific MSDS at issue.

Even if this court found that MSDS could be reliable

scientific evidence by themselves, the MSDS referenced in

Dr. Friedman’s opinion were never made a part of the

record. They were not introduced into evidence and only

partial portions were presented when Dr. Friedman’s

deposition was read at trial. As is clear by the exemplar

MSDS in the text entitled Occupation Medicine (Appendix

6, App. 27),‘ the language of the MSDS may only half

heartedly support Dr. Friedman’s opinions. In particular

this MSDS reads, “Effects of Overexposure: Non-specific.

Severe eye injury can occur. ‘Skin irritation may occur when

handling finely grounded material.’” (Appendix 6, App. 27).

See also Ferrell v. McDonald's Corp., 2002 Tex. App. Lexis

5954 (Tex. App. — Dallas, 2002) n. 3 (MSDS read to state,

“could cause” and “generally aggravate” certain conditions. ).

Even if the court finds that MSDS are a reliable basis for a

causational scientific opinion, Smith has failed to present

the MSDS at issue in order to examine) their basis or even

how certain the MSDS state that RADS can be caused by

* Appendix 6 was attached as Appendix G5 to Smith’s Petition for

Review to the Texas Supreme Court.

16

the exposure to the household cleaners at issue. As a

result, the court will not have a sufficient record before it

to determine whether the MSDS relied upon by Dr. Gary

Friedman even supports his conclusions.

*

Vv

CONCLUSION

Wesley Smith has failed to establish that the United

States Supreme Court should grant his Petition for Writ of

Certiorari. He has not established a “real and embarrass-

ing” conflict between the Federal Circuit Courts and a

State Court of Last Resort since the Texas Supreme Court

denied the petition for review. There is not an important

issue of federal law involved as no one outside Houston,

Texas has complained about the First District Court of

Appeals’ opinion, an opinion which mierely followed prece-

dent from a 1998 Federal Fifth Circuit Court of Appeals

and the en banc opinion of the First District Court of

Appeals. The alleged uproar has been manufactured and

could be easily cured if Dr. Snodgrass and the Houston

Hazardous Materials Response Team were advised that

MSDS are reliable for their uses, just not reliable by

themselves to establish causation in a court of law. It is

also clear that MSDS, due to the method by which they

are published and their purpose, are not trustworthy and

their conclusions cannot be tested. Finally, the issue can

never be properly addressed on appeal because Smith has

failed to preserve for review the actual MSDS that Dr.

Friedman relied upon.

17

For the foregoing reasons, the United States Supreme

Court should deny Wesley Smith’s Petition for Writ of

Certiorari.

Respectfully submitted,

CuRTIS (CuRT) W. FENLEY III

Counsel of Record

WARREN T. MCCOLLUM

Attorney for Respondent

FENLEY & BATE, LLP

224 E. Lufkin Ave.

Lufkin, Texas 75901

936-634-3346

App. 1

APPENDIX 1

[SEAL] OFFICLAL NOTICE FROM

SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711-2248

RE: Case No. 05-0264 [POSTAGE METER]

COA #: 01-02-00677-CV Jan. 27, 2006

STYLE: WESLEY SMITH

v. BROOKSHIRE BROTHERS, INC.

Today the Supreme Court of Texas denied the petition

for review in the above-referenced case.

MAIL TO:

MR. WARREN THOMAS MCCOLLUM

FENLEY & BATE LLP

PO BOX 450

LUFKIN TX 75902

App. 2

APPENDIX 2

U.S. Department of Labor

[SEAL] Occupational Safety & Health Administration

www.osha.gov

Regulations (Standards — 29 CFR)

Health Hazard Definitions (Mandatory) - 1910.1200

AppA

¢ Part Number: ~ 1910

¢ Part Title: Occupational Safety and Health

Standards

¢ Subpart: Z

¢ Subpart Title: Toxic and Hazardous Substances

¢ Standard Number: 1910.1200 App. A

¢ Title: Health Hazard Definitions

' (Mandatory)

Although safety hazards related to the physical characteris-

tics of a chemical can be objectively defined in terms of

testing requirements (e.g. flammability), health hazard

definitions are less precise and more subjective. Health

hazards may cause measurable changes in the body — such

as decreased pulmonary function. These changes are gener-

ally indicated by the occurrence of signs and symptoms in

the exposed employees — such as shortness of breath, a non-

measurable, subjective feeling. Employees exposed to such

hazards must be apprised of both the change in body func-

tion and the signs and symptoms that may occur to signal

that change.

The determination of occupational health hazards is

complicated by the fact that many of the effects or signs

and symptoms occur commonly in non-occupationally

exposed populations, so that effects of exposure are diffi-

cult to separate from normally occurring illnesses. Occa-

sionally, a substance causes an effect that is rarely seen in

App. 3

the population at large, such as angiosarcomas caused by

vinyl chloride exposure, thus making it easier to ascertain

that the occupational exposure was the primary causative

factor. More often, however, the effects are common, such

as lung cancer. The situation is further complicated by the

fact that most chemicals have not been adequately tested

to determine their health hazard potential, and data do

not exist to substantiate these effects.

There have been many attempts to categorize effects and

to define them in various ways. Generally, the terms

“acute” and “chronic” are used to delineate between effects

on the basis of severity or duration. “Acute” effects usually

occur rapidly as a result of short-term exposures, and are

of short duration. “Chronic” effects generally occur as a

result of long-term exposure, and are of long duration.

The acute effects referred to most frequently are those

defined by the American National Standards Institute

(ANSI) standard for Precautionary Labeling of Hazardous

Industrial Chemicals (Z129.1-1988) — irritation, corrosiv-

ity, sensitization and lethal dose. Although these are

important health effects, they do not adequately cover the

considerable range of acute effects which may occur as a

result of occupational exposure, such as, for example,

narcosis.

Similarly, the term chronic effect is often used to cover

only carcinogenicity, teratogenicity, and mutagenicity.

These effects are obviously a concern in the workplace, but

again, do not adequately cover the area of chronic effects,

excluding, for example, blood dyscrasias (such as anemia),

chronic bronchitis and liver atrophy.

The goal of defining precisely, in measurable terms, every

possible health effect that may occur in the workplace as a

App. 4

result of chemical exposures cannot realistically be accom-

plished. This does not negate the need for employees to be

informed of such effects and protected from them. Appen-

dix B, which is also mandatory, outlines the principles and

procedures of hazard assessment.

For purposes of this section, any chemicals which meet

any of the following definitions, as determined by the

criteria set forth in Appendix B are health hazards. How-

ever, this is not intended to be an exclusive categorization

scheme. If there are available scientific data that involve

other animal species or test methods, they must also be

evaluated to determine the applicability of the HCS.

1. “Carcinogen:” A chemical is considered to be a carcino-

gen if:

(a) It has been evaluated by the International Agency for

Research on Cancer (IARC), and found to be a carcinogen

or potential carcinogen; or

(b) It is listed as a carcinogen or potential carcinogen in

the Annual Report on Carcinogens published by the

National Toxicology Program (NTP) (latest edition); or,

(c) Itis regulated by OSHA as a carcinogen.

2. “Corrosive:” A chemical that causes visible destruction

of, or irreversiblé alterations in, living tissue by chemical

action at the site of contact. For example, a chemical is

considered to be corrosive if, when tested on the intact

skin of albino rabbits by the method described by the U.S.

Department of Transportation in appendix A to 49 CFR

part 173, it destroys or changes irreversibly the structure

of the tissue at the site of contact following an exposure

period of four hours. This term shall not refer to action on

inanimate surfaces.

App. 5

3. “Highly toxic:” A chemical falling within any of the

following categories:

(a) A chemical that has a median lethal dose (LD(50)) of

50 milligrams or less per kilogram of body weight when

administered orally to albino rats weighing between 200

and 300 grams each.

(b) A chemical that has a median lethal dose (LD(50)) of

200 milligrams or less per kilogram of body weight when

_administered by continuous contact for 24 hours (or less if

death occurs within 24 hours) with the bare skin of albino

rabbits weighing between two and three kilograms each.

(c) A chemical that has a median lethal concentration

(LC(50)) in air of 200 parts per million by volume or less of

gas or vapor, or 2 milligrams per liter or less of mist, fume,

or dust, when administered by continuous inhalation for

one hour (or less if death occurs within one hour) to albino

rats weighing between 200 and 300 grams each.

4. “Irritant:” A chemical, which is not corrosive, but

which causes a reversible inflammatory effect on living

tissue by chemical action at the site of contact. A chemical]

is a skin irritant if, when tested on the intact skin of

albino rabbits by the methods of 16 CFR 1500.41 for four

hours exposure or by other appropriate techniques, it

results in an empirical score of five or more. A chemical is

an eye irritant if so determined under the procedure listed

in 16 CFR 1500.42 or other appropriate techniques.

5. “Sensitizer:” A chemical that causes a substantial

proportion of exposed people or animals to develop an

allergic reaction in normal tissue after repeated exposure

to the chemical.

App. 6

6. “Toxic.” A chemical falling within any of the following

categories:

(a) Achemical that has a median lethal dose (LD(50)) of

more than 50 milligrams per kilogram but not more than

500 milligrams per kilogram of body weight when admin-

istered orally to albino rats weighing between 200 and 300

grams each.

(b) A chemical that has a median lethal dose (LD(50)) of 3 ..

more than 200 milligrams per kilogram but not more than

1,000 milligrams per kilogram of body weight when

administered by continuous contact for 24 hours (or less if

death occurs within 24 hours) with the bare skin of albino

rabbits weighing between two and three kilograms each.

(c) A chemical that has a median lethal concentration -

(LC(50)) in air of more than 200 parts per million but not

more than 2,000 parts per million by volume of gas or

vapor, or more than two milligrams per liter but not more

than 20 milligrams per liter of mist, fume, or dust, when

administered by continuous inhalation for one hour (or

less if death occurs within one hour) to albino rats weigh-

ing between 200 and 300 grams each.

7. “Target organ effects.”

The following is a target organ categorization of effects

which may occur, including examples of signs and symp-

toms and chemicals which have been found to cause such

effects. These examples are presented to illustrate the

range and diversity of effects and hazards found in the

workplace, and the broad scope employers must consider

in this area, but are not intended to be all-inclusive.

App. 7

Hepatotoxins: Chemicals which produce liver damage

Signs & Symptoms: Jaundice; liver enlargement

Chemicals: Carbon tetrachloride; nitrosamines

Nephrotoxins: Chemicals which produce kidney damage

Signs & Symptoms: Edema; proteinuria

Chemicals: Halogenated hydrocarbons; uranium

Neurotoxins: Chemicals which produce their primary

toxic effects on the nervous system

Signs & Symptoms: Narcosis; behavioral changes;

decrease in motor functions

Chemicals: Mercury; carbon disulfide

Agents which act on the blood or hemato-poietic

system: Decrease hemoglobin function; deprive the

body tissues of oxygen

Signs & Symptoms: Cyanosis; loss of consciousness

Chemicals: Carbon monoxide; cyanides

Agents which damage the lung: Chemicals which

irritate or damage pulmonary tissue

Signs & Symptoms: Cough; tightness in chest; short-

ness of breath

Chemicals: Silica; asbestos

Reproductive toxins: Chemicals which affect the

reproductive capabilities including chromosomal dam-

age (mutations) and effects on fetuses (teratogenesis)

Signs & Symptoms: Birth defects; sterility

Chemicals: Lead; DBCP

Cutaneous hazards: Chemicals which affect the

dermal layer of the body

Signs & Symptoms: Defatting of the skin; rashes;

irritation

Chemicals: Ketones; chlorinated compounds

App. 8

h. Eye hazards: Chemicals which affect the eye or visual

capacity

Signs & Symptoms: Conjunctivitis; corneal damage

Chemicals: Organic solvents; acids

App. 9

APPENDIX 3

U.S. Department of Labor

[SEAL] Occupational Safety & Health Administration

www.osha.gov

Regulations (Standards - 29 CFR)

Hazard determinations (Mandatory) - 1910.1200 App B

¢ Part Number: 1910

¢ Part Title: Occupational Safety and Health

Standards

e Subpart: Z

¢ Subpart Title: Toxic and Hazardous Substances

e Standard Number: 1910.1200 App. B

¢ Title: Hazard Determinations

(Mandatory)

The quality of a hazard communication program is largely

dependent upon the adequacy and accuracy of the hazard

determination. The hazard determination requirement of

this standard is performance-oriented. Chemical manufac-

turers, importers, and employers evaluating chemicals are

not required to follow any specific methods for determin-

ing hazards, but they must be able to demonstrate that

they have adequately ascertained the hazards of the

chemicals produced « imported in accordance with the

criteria set forth in this Appendix.

Hazard evaluation is a process which relies heavily on the

professional judgment of the evaluator, particularly in the

area of chronic hazards. The performance-orientation of

the hazard determination does not diminish the duty of

the chemical manufacturer, importer or employer to

conduct a thorough evaluation, examining all relevant

data and producing a scientifically defensible evaluation.

For purposes of this standard, the following criteria shall

App. 10

be used in making hazard determinations that meet the

requirements of this standard.

1. “Carcinogenicity:” As described in paragraph (d)(4) of

this section and Appendix A of this section, a determina-

tion by the National Toxicology Program, the International

Agency for Research on Cancer, or OSHA that a chemical

is a carcinogen or potential carcinogen will be considered

conclusive evidence for purposes of this section. In addi-

tion, however, all available scientific data on carcinogenic-

ity must be evaluated in accordance with the provisions of

this Appendix and the requirements of the rule.

2. “Human data:” Where available, epidemiological

studies and case reports of adverse health effects shall be

considered in the evaluation.

3. “Animal data:” Human evidence of health effects in

exposed populations is generally not available for the

majority of chemicals produced or used in the-workplace.

Therefore, the available results of toxicological testing in

animal populations shall be used to predict the health

effects that may be experienced by exposed workers. In

particular, the definitions of certain acute hazards refer to

specific animal testing results (see Appendix A).

4. “Adequacy and reporting of data.” The results of any

studies which are designed and conducted according to

established scientific principles, and which report statisti-

cally significant conclusions regarding the health effects of

a chemical, shall be a sufficient basis for a hazard deter-

mination and reported on any material safety data sheet.

In vitro studies alone generally do not form the basis for a

definitive finding of hazard under the HCS since they have

a positive or negative result rather than a statistically

significant finding.

App. 11

The chemical manufacturer, importer, or employer may

also report the results of other scientifically valid studies

which tend to refute the findings of hazard.

App. 12

APPENDIX 4

OCCUPATIONAL

and

ENVIRONMENTAL

RESPIRATORY DISEASE

Phil Harber, M.D., M.P.H.

Professor of Medicine,

University of California, Los Angeles

Los Angeles, California

Marc B. Schenker, M.D., M.P.H.

Professor of Medicine,

Chairman, Department of Community

and International Health;

Director, Center for Occupational

and Environmental Health, Davis;

Department of Internal Medicine;

Institute of Toxicology and Environmental Health;

| University of California, Davis

School of Medicine,

Davis, California

John R. Balmes, M.D.

Associate Professor,

Chief, Division of Occupational

and Environmental Medicine,

attending Physician, Pulmonary and

Critical Care Service,

San Francisco General Hospital,

Department of Medicine,

School of Medicine,

University of California, San Francisco

San Francisco, California

App. 13

291 Illustrations

[LOGO] Mosby

St. Louis Baltimore Boston Carlsbad Chicago

Naples New York Philadelphia Portland London

Madrid Mexico City Singapore Sydney

Tokyo Toronto Wiesbaden

Steps in worksite visit for evaluation of patients

Previsit

Review industry and processes

Interview patient

Define scope and purpose of visit

Visit

Meet plant personnel

Walk through entire plant

Detailed review of patient’s work area

Air monitoring

Evaluate adequacy of controls .

_ Engineering (enclosure, process isolation, ventilation)

Administrative

Personal protective equipment

Postvisit

Review results with patient

Report (as appropriate) to employer, health authorities

Prepare recommendations and report

* * *

tion of compensability for workers’ compensation purposes

(see Chapter 53). In addition, a worksite visit may be needed

to determine whether a worker with respiratory disease can

safely work and whether special accommodations for the

App. 14

individual worker need to be implemented so that he or

she may be able to work (see Chapter 52). University-

based occupational health clinics often incorporate work-

site visits as a didactic tool in conjunction with clinic-

based teaching. Finally, a worksite visit may be used to

observe the patient and other workers at their tasks, to

determine the hazards to which the patient and others

may be exposed, to ascertain if any monitoring has been or

should be conducted, and to determine the effectiveness, or

lack thereof, of any controls in place. This may suggest

that there are other workers at risk.

Before conducting the worksite evaluation, the indus-

trial hygienist and health practitioners often familiarize

themselves with the industry and processes to be sur-

veyed. Company brochures may have descriptions of the

industry, the processes, and the products or services

produced. Useful information may also be obtained from

reference books describing various work processes and

common health and safety hazards associated with the

industry in question.’ The patient is often the best source

of information. For example, he or she may describe

specific tasks performed as a molder for a local nonferrous

foundry, making aluminum, brass, and bronze castings for

various industries. The practitioner can then research the

industry in various textbooks, such as Burgess’s Recogni-

tion of Health Hazards in Industry, to obtain a description

of the foundry industry, the terminology used (e.g., core-

making, molding, shakeout, and finishing), a discussion of

_the various elements in the alloys (e.g., copper, zinc, and

lead in brass and bronze alloys), and potential exposures

one may find in this industry (heavy metals, silica, pheno-

lic binders, etc.).*

App. 15

Patients should be asked about chemicals used by

both themselves and other workers. Reference books or

computer databases, such as Medline, Toxline, or Toxnet,

contain information on the toxic effects of these chemi-

cals.”” The NIOSH-Tic database is available on CD-ROM.*

In addition to published articles, this database also con-

tains the results of NIOSH Health Hazard Evaluations

(HHEs) of various industries and may provide valuable

information on health effects associated with particular

exposures.

If the patient knows only the brand name of the

products, the practitioners may request that the patient

ask his or her employer for the material safety data sheets

(MSDS, for the product(s) that are of concern. Although

not always complete, the MSDS are required in the United

States to list the hazardous ingredients (if >1% or >0.1%

for carcinogens), the acute and chronic health effects,

information regarding reactivity, explosiveness, and fire

precautions, disposal information, and information regard-

ing the use of personal protective equipment and proper

ventilation. More information regarding the product may

be obtained by the practitioners from the regional Poison

Control Center or directly from the manufacturer’s toxi-

cologist. The practitioner may find when contacting the

manufacturer that the actual ingredients that are causing

the patient’s symptoms may not have been listed on the

MSDS because they either constituted less than 1% of the

product or the information on the chemicals was not

disclosed because of trade secrets. Before visiting the

worksite, the patient should be interviewed in detail. In

addition, the purpose and scope of the worksite visit

should be defined in advance. The physical state, as well

App. 16

as the chemical identity, should be ascertained. The

accompanying box describes these common terms.

Physical state of agents

Dust: A suspension of solid particles in air

Mist: A suspension of liquid droplets in air

Gas: A gas phase contaminant

Vapor: A gas phase contaminant that is primarily liquid

as room temperature

Fume: A solid suspension resulting from condensation of

products of combustion

Fiber: A solid particle whose length:diameter ratio is high

(typically 10:1, although certain regulations employ a 3:1

ratio for definition)

Aerosol: A suspension of particles in air

THE WORKSITE VISIT

The worksite visit usually begins with a meeting with

plant personnel. Information collected may include the

results of past medical and environmental monitoring, a

review of MSDS, a review of the Occupational Safety and

Health Administration (OSHA) 200 log for previous years,

job descriptions for the employee, results of previous

OSHA investigations, medical reports from other physi-

cians, and any other useful information.

For manufacturing operations, the industrial hygien-

ist attempts to follow the production process, from raw

materials to finished products. The worksite survey will

start at the loading dock, looking at warning labels and

packaging of the raw materials, and then follow all the

materials through the production process, noting all the

App. 17

chemicals in use in each area. Special emphasis is given to

the area in which the patient works. However, it is advis-

able to review the entire work process since exposures

generated elsewhere in the plant may affect the patient.

Areas through which the patient walks should be re-

viewed. In addition to regular operations, potential expo-

sures to the patient during shutdown or maintenance

periods should be assessed. Each process should be ob-

served while in action to determine how the employees are

handling the products. It is important to note what inter-

mediate products and by-products are formed, as these

may be the source of the health complaints. For example,

on a site visit to a pesticide manufacturing plant, an

industrial hygienist determined, based on where the

individual worked on the line, that the source of his

problem was a by-product produced during manufacture of

the pesticide and not a reaction to the fairly inert final

product. Incompatible operations in close proximity to

each other should be noted. For instance, arc welding

operations placed too close to a vapor degreaser containing

chlorinated hydrocarbon solvents that are not properly

vented may allow formation of phosgene gas.

The worksite visitors should also look at areas such as

the office areas of manufacturing operations, break rooms,

eating areas, bathrooms, and change rooms. Hazardous

materials storage and disposal areas are also inspected for

potential leaks and offgassing of hazardous materials.

Maintenance operations are also inspected as there may

be a greater potential during these operations than during

normal operation. For example, at an auto assembly plant,

it was determined that the maintenance operators clean-

ing the paint spray booths had the potential for much

App. 18

greater exposure to the solvents from the paints than

spray painters.

Housekeeping practices are also noted, as these may

also produce hazardous exposures. To the extent possible,

the specific patient should be assessed, since interpersonal

differences in work habits exist. For example, dry-sweep-

ing of silica containing clay in a ceramics studio of a local

ert school generated a significant exposure to the silica.

Hydroblasting or steam cleaning may also generate con-

taminants.

Industrial hygienists may measure exposures with

monitoring devices such as detector tubes and pumps or

other direct reading instruments. Such short-term testing

may be supplemented with follow-up testing for a longer

period of time. Exposures may vary dramatically over the

course of a day, week, or month. Therefore, it is important

for the industrial hygienist to know when obtaining

measurements op a site visit, or evaluating measurements

taken before the visit, what the actual operating condi-

tions are (were) on the day of sampling. It is important to

determine if the workload and potential exposure are

(were) lighter than normal, heavier than normal, or

average. Often the greatest potential exposure of concern

occurs on the swing or night shift. Monitoring during the

day shift may not adequately represent the exposure of a

patient who is on the other shift.

The monitoring results are compared with relevant

standards, such as ACGIH threshold limit values {TLVs) or

OSHA permissible exposure limits (PELs).”” Often the

results indicate that the levels for suspect contaminants are

within the legally allowable limits. However, unusually

susceptible patients may develop symptoms at these levels.

App. 19

ADEQUACY OF CONTROLS :

The worksite visit should also evaluate the effective-

ness of methods taken to control exposure to hazards.

These include engineering controls, such as enclosure of

materials, isolation of processes, or ventilation; adminis-

trative controls, such as rotation of workers; and personal

protective equipment, such as respirators and protective

clothing. The adequacy of these measures for specific

patients should be evaluated. Relatively simple methods

may provide an approximate indication of the adequacy of

these controls.

Local exhaust ventilation systems, such as lab fume

hoods or portable exhaust ventilation for welding opera-

tions, can be evaluated with smoke tubes. Observing the

direction of the smoke and how fast it is exhausted will

give an indication of the effectiveness, or lack thereof, of

the system. The site visitor may examine the exhaust

system, checking for holes or improper modification to the

ductwork, the positioning of the exhaust ducts, the fre-

quency of filter changes, and the presence or absence of

dusts on the surfaces near the exhaust system. On one site

visit to a jewelry studio, an industrial hygienist noted the

satin buffing wheel was not properly exhausted. There

was an abundance of visible dust within the small enclo-

sure for the machine and the filters were quite dirty.

Moreover, the air was being recirculated through the

filters and back into the room, rather than to the outside.

Correcting this problem led to a substantial reduction in

the dust generated during this operation.

App. 20

APPENDIX 5

U.S. Department of Labor

[SEAL] Occupational Safety & Health Administration

www.osha.gov

Standard Interpretations

01/18/1995 - The need for Material Safety Data Sheets

(MSDSs).

¢ Standard Number: 1910.1200 :

January 18, 1995

The Honorable Daniel R. Inouye

United States Senate

Washington, D.C. 20510

Dear Senator Inouye:

This is in further response to your letter of September 29,

on behalf of your constituent, Dr. Charles T. Campbell,

concerning the Occupational Safety and Health Admini-

stration’s (OSHA) Hazard Communication Standard

(HCS). Dr. Campbell questioned the need for Material

Safety Data Sheets (MSDSs), which are required to be

developed and distributed under the HCS. Please accept

my apology for the delay in this response.

Employers and employees need the information contained

on MSDSs to protect themselves from hazardous chemical

exposures and to work safely with chemical products. The

result will be a reduction in chemical source illness and

injuries in the workplace. Since the HCS became effective,

the use and distribution of MSDSs have proven to be an

effective and efficient way to ensure that employers and

employees can obtain necessary information on the haz-

ards associated with exposure to chemicals in the work-

place.

App. 21

MSDSs are specified by section 1910.1200(g) of the HCS

(enclosed). The MSDS lists the hazardous ingredients of a

product, its physical and chemical characteristics (e.g.

flammability, explosive properties), its effect on human

health, the chemicals with which it can adversely react,

handling precautions, the types of measures that can be

used to control exposure, emergency and first aid proce-

dures, and methods to contain a spill. When new regula-

tory information, such as exposure limits, or new health

effects information becomes available, the MSDS must be

updated to reflect it.

It should also be noted that MSDSs are only required for

hazardous chemicals and only to be sent with their initial

shipment and with the first shipment after a MSDS is

updated. In practice, MSDSs are prepared and provided

for many products that are not covered by the HCS. It is

our understanding that this is being done for product

liability purposes, not for compliance with any Federal

regulation. In fact, MSDSs were prepared and made

available by many producers prior to implementation of

regulatory requirements. In addition, many customers

request MSDSs on all products, whether they are hazard-

ous or not.

This practice has also encouraged producers to provide

MSDSs for non-hazardous products. While OSHA does not

require or encourage this practice, we certainly do not

have the authority to prohibit producers from distributing

such MSDSs.

We hope this information is helpful to you. Please feel free

to contact OSHA's Office of Health Compliance Assistance

at (202) 219-8036 if you have any additional questions.

App. 22

Sincerely,

Joseph A. Dear

Assistant Secretary

App. 23

APPENDIX 6

Occupational

Medicine

THIRD EDITION

Editor-in-Chief

CARL ZENZ, M.D., Sc.D.

Consultant, Occupational Medicine

Milwaukee, Wisconsin

Clinical Professor, Preventivé Medicine

Medical College of Wisconsin

Past President

American Academy of Occupational Medicine

Editors

O. BRUCE DICKERSON, M.D., M.P.H.

Vice President

Dickerson Occupational Health Services

New Canaan, Connecticut

Associate Clinical Professor

Occupational Medicine Program

Columbia University

Assistant Clinical Professor, School of Medicine

Yale University

Past President

American College of Occupational Medicine

American College of Preventive Medicine

EDWARD P. HORVATH, JR., M.D., M.P.H. _

Director, Occupational Medicine

Section of Preventive Medicine

Department of General Internal Medicine

Cleveland Clinic Foundation

Cleveland, Ohio

Volunteer Associate Professor

Department of Environmental Health

App. 24

University of Cincinnati Medical Center

Cincinnati, Ohio

with illustrations

[LOGO] Mosby

* * *

This consideration can and should transcend “typical”

industrial hygiene concerns and impact on related areas.

The potential health hazards associated with the per-

formance of typical maintenance activities (welding, abrasive

blasting, solvent cleaning) can be drastically increased if the

equipment is potentially contaminated with a pesticide (figs.

47-8 and 47-9). The problem is further compounded if the

work is being performed by an outside contractor. .

Emergency planning for fires, explosions, spills, and leaks

is mandatory if employees and the surrounding community

are to be protected from untoward health effects (Fig. 47-10).

In this regard, a National Agricultural chemicals Association

brochure, Pre-Fire Planning and Guidelines for Handling

Agricultural Chemical Fires is very informative.”

Effective 24-hours-a-day security prevents the entry of

unauthorized personnel, such as vandals or juveniles, into

areas where chemicals are stored or handled.

Environmental aspects of occupational exposures

must be considered. Air-cleaning devices should be utilized

on all exhaust ventilation systems. Waste materials,

including empty containers, must be permanently dis-

posed of in an environmentally secure manner.

Employee training should be designed to influence

employees to comply with appropriate work practices.

App. 25

Such training should be conducted for all newly hired

persons and periodically for all employees.

Training should include the following areas:

1.

6.

Qualitative and quantitative identification

of materials handled (Fig. 47-11).

Potential risks of overexposure

Description of signs and symptoms that

might occur :

The importance of industrial hygiene and bio-

- logic monitoring and notification of test results

Description of work practice controls, includ-

ing personal protective equipment (respira-

tors, gloves, etc.)

First-aid and emergency training

[LOGO] vELsiIcoL MATERIAL SAFETY DATA SHEET

Revised 12/21/77 “Essentially Similar” to U.S. Department

# “SECTION I IDENTIFICATION OF PRODUCTS : «2

oa

of Labor Form, OSHA-20, Rev. May 12

MANUFACTURER'S NAME: EMERGENCY TELEPHONE NO.

Velsicol Chemical Corporation |(312) 670-4500

ADDRESS

341 E. Ohio Street, Chicago, Illinois 60611

TRADE NAME AND SYNONYMS

BANVEL Tech. Dicamba

CHEMICAL NAME AND SYNONYMS

2-methoxy-3, 6-dichlorobenzoic acid

CHEMICAL FAMILY

Organic herbicide

App. 26

SECTION II HAZARDOUS COMPONENTS OF MIXTURES

COMPONENTS % THRESHOLD | COMPONENTS % THRESHOLD

Technical Banvel

Acute oral LD, (rats) 1707 mg/kg

Acute dermal LD,, (rabbits) 200 mg/kg

Acute inhalation LD,,> 9.6 mg/1 (4-hour exposure)

Not a skin irritant but extremely irritating and

corrosive to the eye

SECTION HI PHYSICAL, DATA

BOILING POINT (°F)

SPECIFIC GRAVITY

(H,O=Y)

30°C (86°F)

VAPOR PRESSURE

({ILLEGIBLE] Hg)

100°C (212°F)

3.75X 10

PERCENT VOLATRE

BY VOLUME (%)

7.64

EVAPORATION RATE

(__=1)

0.5%

Melting Point °F

(900-100°C)

194-212

APPEARANCE AND ODOR

Light tan granular solid — practically odorless.

App. 27

3 SECTION IV FIRE AND EXPLOSION HAZARD DATA. :

Does not flash

FIRE EXTINGUISHING MEDIA

Fog or water spray, foam, carbon dioxide.

SPECIAL FIRE FIGHTING PROCEDURES

Wear full protective clothing, self-contained breathing

apparatus. Use water spray to keep containers cool.

Heat from fire can cause decomposition with the evolu-

tion of toxic and irritating fumes.

UNUSUAL FIRE AND EXPLOSION HAZARDS

SECTION: V HEALTH 1 1AZARD DATA

THRESHOLD LIMIT VALUE

Has not been established

EFFECTS OF OVEREXPOSURE

Nonspecific. Severe eye injury can occur.

“Skin irritation may occur when handling finely ground#

material.”

EMERGENCY AND FIRST AID PROCEDURES

EYE CONTACT: Flush with water for at least 15

minutes; get prompt medical atten-

tion.

SKIN CONTACT: Wash with mild soap and water

INGESTION: Induce vomiting, saline emetic; call a

physician.

INHALATION: Remove to fresh air.

App. 28

SECTION VI REACTIVITY DATA

UNSTABLE CONDITIONS TO AVOID

STABLE xx

STABILITY

INCOMPATIBILITY (Materials to avoid)

HAZARDOUS DECOMPOSITION PRODUCTS

Thermal decomposition may yield HC1, organochloride

products, carbon monoxide, carbon dioxide.

HAZARDOUS MAY OCCUR CONDITIONS TO AVOID

POLYMERIZA- WILLNOTOCCUR xx

TION

SECTION VII SPILL OR LEAK PROCEDURES

STEPS TO BE TAKEN IN CASE MATERIAL IS RELEASED OR SPILLED

Contain spill, sweep and collect in drums; follow by

thoroughly washing down with detergent and water.

Collect washings, do not allow in drainage ditches or

sewers.

WASTE DISPOSAL METHOD

Controlled incineration, designated landfill, or disposal

in accordance with applicable local, state and federal

regulations.

App. 29

SECTION VIII SPECIAL PROTECTION INFORMATIONg.

RESPIRATORY PROTECTION (Specify type)

Low levels — MESA/NIOSH-approved chemical car-

i tridge respirator for pesticides.

LOCAL EXHAUST SPECIAL

MECHANICAL (General) |OTHER

i VENTILATION

§ PROTECTIVE GLOVES EYE PROTECTION

Rubber gloves or the equivalent Chemical goggles.

OTHER PROTECTION EQUIPMENT

Shower, daily change of clothing.

fungicides.

OTHER PRECAUTIONS

Treat as with any pesticide. Self-contained breathing§

in case of severe fire.

The information presented herein while not

guaranteed was prepared by technically knowl-

edgeable personnel and to the best of our know!l-

edge is true and accurate. It is not intended to be

all inclusive and the means and conditions of use

and handling may involve other or additional

consideration.

Fig. 47-11. A sample material safety data sheet, which

has widespread use throughout industry.