ExposureBlog

When I first began my consulting business, I would take notes on whatever paper was handy at the time: pocket notebooks, 8-1/2 x 11 college-ruled books, yellow pads, you-name-it.  During the time I worked with the federal government I began the practice of keeping what I called a “schedule book,” which was mostly a to-do list.  Over time, it  became the hard documentation for countless phone numbers, contacts and random thoughts regarding my projects.  When I started up my business I used the “schedule book” to keep track of my progress in my cases.

Then came the day I received a subpoena deuces tecum from the opposing counsel on a case I was working on.  Roughly translated, it means: come meet with us. . .and bring along every note you have that has to do with this case.   That meant, of course, that I had to hand over a stack of pocket notes, three or four different kinds of regular notebook paper. . .and worst of all, my schedule book.  My schedule book, you see, had notes I had written down regarding previous cases.  Not good at all. 

As it turned out, the case settled before my deposition took place, so no one got to see the schedule book.  But that was the day I quit writing notes about cases in the schedule book. 

From that day on, the notes would all be on yellow legal pads, which I would number and clamp into a binder along with the case worksheet. Now, when I receive the deuces tecum, I just take the case binder.

Of course, no system is perfect; the one flaw for this one is that sometimes–rarely, but sometimes–not everything I take to the deposition comes back.  Technically, it goes from opposing counsel’s office to the court reporter, sometimes back to counsel’s office, then back to the court reporter, and then—maybe weeks later—back to me.   In the process, books, photos and documents have gone missing, never to return.   In preparation for the day the binder containing the handwritten notes vanishes, I had taken to copying the notes into a computer file.  While this helped me to understand the information and clarify the issues, it was also time-consuming.  I was faced with a choice: copy every note I had taken, or risk the notes vanishing at some point.  In a recent attempt to resolve the problem I created an “issues” page for each case, where I list the salient points.  In doing so, I discovered that most cases seem to boil down to just a few issues—lack of training, lack of communication, inappropriate procedures, inadequate instructions for the job, etc.

FLYTs

Then there are the Post-It Notes (registered trademark) flyts. . .”Funny Little Yellow Things” as one lawyer called them.  I read depositions very carefully and mark important passages with yellow post-it notes.  Typically, I will write on these FLYTs statements like “Critical” “Very Important!!!!” “Check this”, etc.   Interestingly, the meaning of the notes change as the deposition progresses—the early FLYTs reveal the location of information central to the issue, while the later FLYTs mark passages that contradict or underscore prior testimony or the testimony of other witnesses.  In other words, all FLYTs are not equal in importance, and some have no importance whatsoever except to mark a passage that I have already read. 

A well-examined document may have hundreds of FLYTs sticking out from all exposed edges–forcing the opposing counsel to read each and every one.  Only rarely have I been asked about the comments found on the FLYTs—because sometimes it’s unreliable.  A passage that I marked as “critical” when I began reading the document may turn out to be far less important by the time I finish reading it.  Of course, I’m not about to go back and cross through the word “critical” on such a FLYT—who knows when another doc could provide info that would support and thus revive the importance of the original passage.  When looking through case documents information emerges slowly.  A comment created in the final analysis may be 180 degrees different than a comment created during the initial stages of the investigation.

Every investigation and analysis has its share of dead-ends, but the documentation leading to those dead-ends should be included in the total package, if only to answer the opposing counsel’s question, “have you thought of this?” 

Just in from the New York Times, a jury acquits WR Grace executives in their town-poisoning case.  According the federal prosecutors, the executives in question knew that the vermiculite they were pulling from the earth under Libby, Montana was deadly, but did little or nothing to ensure that the townspeople were warned or otherwise protected.  Apparently the jury didn’t agree, and now the execs can go back to their Sun City retirement homes. 

But there’s more to the story. 

Much of the vermiculite that WR Grace mined in Libby was sent to companies and distributors around the U.S. and marketed as insulation for homes and businesses.  It was also sold as a fire retardant to contractors putting up buildings.  I’ve seen this stuff being used as filler for potted plants. 

While not all vermiculite is the same—the levels of asbestos vary—it is certainly something you don’t want in your home.  In the past, some people have come down with mesothelioma with no known prior exposures to asbestos.  Actor Steve McQueen died of mesothelioma and it was generally assumed he had been exposed to it wearing asbestos-lined suits while racing cars.  But what if it had come from an attic in a house he lived in?  Perhaps it’s time to take a closer look at the epidemiology of mesothelioma cases around the country.

It happens to all of us who have attorneys as clients.  Sooner or later someone is going to ask for a comprehensive report, read it, send it over to opposing counsel, then refuse to pay for it.  Some consultants send an invoice for the work immediately before the report goes out and others will refuse to sign it until they get paid.  One of my old friends, a world-renowned toxicologist, would demand payment before the report was sent.  It still didn’t help.  Not long before he passed away he told me about a very aggressive Missouri plaintiff lawyer popping him for several thousand dollars in a case involving diacetyl exposure.  When my friend asked the guy to pay up, the lawyer threatened him with a lawsuit. 

Not long after I began work as an Industrial Hygienist I was contacted by a Houston attorney who specialized in two things: (1) workers’ comp cases and (2) stiffing experts who worked for him.  I was told this by his assistant, who informed me early on that I would never, ever be paid.  How did he know?  Because HE had never been paid.   And yes, the assistant was correct. 

Several years later I was contacted by a Galveston lawyer who had a tox tort against one of the oil companies.  His routine: constantly explaining how much money this case would bring in, while being too busy to pay the bill.  Over many months of research he ran up a bill that totalled something like $25,000.   After my accountant–a grizzled ex-Chem Engineer–explained what was really going on, I refused to do any more work.  In response my client erupted with all sorts of threats.   Finally, he agreed to meet at a restaurant and pay “some” of his bill if I would turn over my documents.  I showed up with the material, and he showed up drunk, then explained how he could hire U of H students to do this sort of work “for about 4 dollars an hour.”  He never got his documents but he didn’t pay his bill either.  Later I heard he ran for judge and lost.

One of my friends, a clinical tox guy, said he was once cajoled into sending a fifty-page report to a lawyer before asking for payment.  The lawyer accepted the report, copied it and mailed it back to my friend, complaining the work “wasn’t good enough.”  No, he didn’t get paid either.

As a result of this behavior, many of my consultant friends are getting out of litigation support, preferring to work with businesses.  The work may be boring and repetitive, but the pay is regular.  One of my friends, a safety expert wonders why I’m still willing to appear in court–where opposing counsel will undoubtedly “wave every line you’ve ever written in front of the jury, trying to show you really don’t know much of anything.” 

He’s right, of course, but that’s one of the reasons litigation support is so interesting:  a trained litigator with a cadre of experts is available to review your work.  Can’t find that working for a business. 

Not long after our conversation, my agency sent me a case involving the floor of a restaurant.  Seems one of the features of that establishment was serving their customers peanuts and then allowing them to throw the debris on the floor.  A woman had slipped as a result of these peanut shells and had broken her leg.  After looking at the restaurant in question, I began researching peanuts.  I discovered that the shells on the floor can hide whole peanuts and that peanuts contain oil. . .quite a bit of oil, as a matter of fact.  

 I then visited one of the restaurants and sure enough, the waitress brought a bucket of peanuts to the table.  After ordering a steak (which was excellent) I confiscated a few of the peanuts and took them back for analysis: weight, size and oil content.   Then I started on my report.  The bottom line: I discovered that the shell debris can obscure whole peanuts, which when crushed underfoot can spread the mash over a surprisingly large surface.  Thus, while the peanut shells are “open and obvious” (the defense argument) the peanuts underneath are not.  And thus, the customer doesn’t have an idea of the true nature of the hazard.

After the analysis I spent about three days working up a report for the plaintiff lawyer.  By the time I sent it off it covered 15 single-spaced pages with 82 references.  Shortly after that, I sent my invoice for the work to my agency who then billed the lawyer. 

A month went by.  Then, I got a phone call from my agent.  Seems the lawyer didn’t understand why the bill was so high.  Seems he told my agent that I had agreed to do the investigation, analysis, report writeup–and apparently even the deposition–for the cost of the initial retainer (which typically covers about 18 hours of work.)  Bottom line: he wanted the analysis and report for free.

In all, it was about $5000 worth of work and this guy was simply not going to pay for it.  Worse, he had the information and there was nothing I could do about it.  While it was true that he couldn’t call me to the stand in trial, it was also true that opposing counsel had not hired an expert.  It would be dueling lawyers only. 

After wrestling with the situation for two months, I finally asked to be delisted from the case.  Two months later, he took it to a jury and won–the verdict came in (as I understand it) for over $200,000, a first for this type of case.

Experts in this situation have little recourse but to choose their clients–and especially their agencies wisely, making sure, that when confronted with clients like this one, that they’ll respond accordingly.  Additionally, my accountant has added a few caveats to the payment structure that will serve to prevent this from happening again.

I’m still doing litigation support, because I’ve found that the great majority of attorneys will treat their experts fairly.  It’s the ones that don’t who make life very interesting indeed.  Too interesting. 

Far as I can tell, there’s no federal regulation listing the threshold limit value (TLV) to Internet spam.  If there was, I’m sure this site would be way overexposed.  Each day I have to put on the respirator and gloves, grab the baggies and flush out junk spam from this site.  If there were effective, enforceable regs against spam in this world, I decided that the perps at the San Francisco outfit bebo.com would be doing other things.  Like selling real estate.  Then I got Viagra spam from twosixtypress.com.  Twosixtypress?  In fact, the email for this stuff seemed to be from from my editor just a few doors down.  I opened it up and, sure enough, it was hawking Viagra.  I usually don’t talk about Viagra with my editor, so I figured something else must be going on.  I opened the email and looked at the site: “intuitionthick.com.”  That phrase fairly screamed ”China Spam” and when I went to Whois, sure enough, intuitionthick was a China operation.  Seems this pill factory is named Shittongtong, and is operating out of Jianshi, China (look it up on Google Earth).  There is an email listed as shitongtong(at)26.com. But don’t bother sending any email. It’s bogus. The phone number 86-0796-28850266 may be bogus as well.  I know, it’s tempting to thing there’s four or five smart, twenty-something Chinese grad students trying to pull in serious yuan from Viagra-deprived American net surfers, but. . .what if Shitongtong is a legit company that’s been scammed by a pack of thugs in, say, Moldavia or Marie-El?  Fact is, no one knows.  I sure don’t.  So every day, I clean out junk labeled bebo.com and glee.com and thenget back to working on exposure info where I know the client and the case and have a good idea of the facts.  Nothing like the Internet these days.

Toys R Us has recalled more toys from China.  The problem: lead. Back in August, Mattel recalled some of the popular Polly Pocket toys because of the same problem.  In October the watchdog group Center for Environmental Health announced that lead-containing toys were being sold at places like Wal-mart, Kmart, Sears, KB Toys, Target, RC2 Corp., Michael’s Stores Inc., Toys-R-Us, Costco Wholesale Corp. and Kids II Inc.  Strangely, the Consumer Product Safety Commission’s Nancy Nord recently opposed regulations to strengthen her agency, and Nancy Pelosi has called for her resignation.

The editors of PC World have chosen the ten worst keyboards of all time.  I haven’t tried any of them, but I wrote several drafts of my first book on an Apple ///.  That keyboard resembled the Commodore’s, but I don’t remember having problems with it.

I’ve always believed that it’s important to get as much information about the incident site as possible. In the past that involved videos, photographs, and even 3D photos.  Lately, I’ve been using panorama photography to convey information about the sites.  Combined with the Apple software application QuickTime, the viewer can move the field of view—just as though they were standing at the site.  Pretty cool, and it often beats standard photos for transmitting information about the site.  

But making a panorama isn’t as easy as snapping pictures on the digital camera while turning in a circle.  For one thing, the pivot point must be exactly at the “entrance pupil” or “nodal point” of the camera lens.  Otherwise, the software won’t be able to line things up correctly and the panorama will look strange and broken in places.  There are a number of gadgets available that one can attach to a tripod (essential equipment!) to ensure the camera rotates around the nodal point.  The one I use is a $199 gadget called the “Nodal Ninja.”  It showed up at my door in a beat-up cardboard box with VERY few instructions.  But it works.  And some of its competitors cost a lot more. 

Software

Most consultants doing safety work probably have Photoshop CS2.  It’s a great tool to examine photos up close and to extract almost-invisible information from a scene.  Photoshop CS2 also has a panorama function.  It’s just not something I recommend using.  Photoshop CS2 doesn’t really mind warping the scene a bit to make things fit, and that’s not always a good thing under all circumstances.

There are quite a few dedicated software packages that take separate shots and “stitch” them together to make a panorama.  I’m a registered user of several panoramic software packages, including Smoky City Design’s Panorama Factory, RealViz’s (very expensive) Stitcher 5.0, Hugin, and  PTGui 7.  Basically, the various stitcher software packs all do the same thing: they analyze the photos, then stitch them together to produce a panorama photo—a long, narrow image that you can import to QuickTime (using appropriate software such as PanoQTVR) or just publish as-is. 

Which do I consider the best?  Probably PTGui 7.  It’s easy to use, has a very simple interface, doesn’t hog your system (as RealViz products seem to do) and is very inexpensive.  Last time I looked, PTGui 7 was only $115.  Moreover, the response time on customer service is remarkably fast—in my case about 10 minutes. 

If you’re a safety professional and are considering panorama, you’ll find quite a few resources over a wide range of prices.  All produce workable panoramas; but you should understand that a high price doesn’t necessarily correlate with high quality. 

Recently, an attorney friend of mine was presented with a client who had apparently been exposed to a chemical found in a commercial product.  The label noted a few chemicals as active ingredients, but also claimed that 99% of the chem was inactive.  And unidentified.  Well, the regulations (such as they are) on material safety data sheets allow quite a bit of leeway regarding disclosure.  For example, if a company discovers that a very, very common and cheap chemical, (sugar, for example) has some really interesting and heretofore unknown attributes–and the company wants to sell it for whatever they can get for it—well, they SURE don’t want to blurt out the magic ingredient in a material safety data sheet.  And, OSHA, apparently, agreed.  Result: some MSDS sheets are not particularly helpful.  The company simply claims the magic chemical is “proprietary.”   And that’s what you might see on the MSDS.

During my days with OSHA I approached this problem like this, informing the employer that he could choose the easy way or the hard way. (a) Easy way (tell us what the ingredient is and if it’s no big deal, we’ll keep quiet about it). or (b) hard way (don’t tell us and we’ll analyze it and publish the results on a billboard somewhere.)

In my mind, it wasn’t an idle threat. All of the lab directors I knew were chemists who were really interested in finding out what chemicals made up a commercial product.  We all knew the protocol—take about 20 ml of the chemical, wash with chloroform, extract whatever comes off and run it through a gas chromatograph/mass spec.  Sooner than later we’d get a list of chemicals.

Now, one would expect that things have changed for the better since then, but unfortunately that may not be true.  Back to my attorney friend.

I suggested he find an American Industrial Hygiene Certified Lab to analyze the sample. Then, ask for a GC/Mass Spec analysis. Now a gas chromatograph has a number of different detectors, and, the judicial use of these detectors can determine what chemicals are involved.

So he took it to the lab in his hometown–a big lab, actually, that normally checks the water supply for this sizable Western city.  We expected to know the answer within days.  Didn’t happen.  Instead, apparently since the the lab had an EPA contract, it ran the samples using their Haz Waste protocol.

In other words, since the language was EPA/Haz Waste, then they ran the sample(s) using this protocol.  It came up with a lot of NDs (none detected).  I phoned the lab director and asked him why he ran a haz waste protocol on something that was clearly not haz waste. His response: “The lady wanted to know if there was anything hazardous in the sample.”  Here, the laboratory apparently confused “hazardous” with “hazardous waste.”  Error number one. 

I then asked why he didn’t check for any of the ingredients that were listed on the bottle (as a standard check). His reply: “No one asked me to do that.”

And yes, he still charged $900 to the attorney for his “work.”  During the 30 minute discussion with the lab director, I found that he was one of these guys who started talking before the question was completed.  No wonder he didn’t get it right.  He probably wasn’t listening to a thing his customer said to him.

He also had no idea what the AIHA certification was all about.  In fact, he had never heard of such a thing.

Bottom line, if you want to analyze a chemical, FIRST ask the lab if they are AIHA certified. Not all labs are. 

Next, ask if the director has a chemistry degree. 

Third, ask if he uses EXTRACTION METHODS before analyzing chemicals.

Actually, your best bet is to simply ask an Industrial Hygienist to vet the lab before you send them any samples or write them any checks.  Not all laboratories are created equal.  Some only look for the chemicals that happen to be in their protocol pack.  If the chem isn’t listed, don’t expect them to find it.  Or even look for it.  The really horrible thing about this is, this outfit analyzed the drinking water for the entire city. 

Argh.

Transparency International has recently published a list of countries ranked from least corrupt to most corrupt.  As someone who has done work in several of countries which they consider, er, MORE corrupt than most, I can assure you that the list is worth reading.  Some of the rankings come as a surprise.  The U.S. is behind Hong Kong and ahead of Belgium?  What’s the world coming to?

Human Error researcher James Reason claimed that human beings can consciously process, at most, about five different things at one time.  Unconsciously, they rely on learned behavior.  One example: driving down the road on a clear day with few distractions.  That’s learned.  Then the cell phone rings.  That’s new, and that’s ONE new item.  Suppose the driver has programmed the phone to produce a special ring that is associated with a certain caller.  If that particular ring sounds, then the driver knows it’s that caller.  That’s when the conscious links to that caller come into play.  That’s the second thing added to the agenda that the consciousness has to deal with.  If the links are extensive and associated with problems (i.e. the driver’s accountant, parole officer, etc) then the space in the “consciousness clipboard” begins to fill up rapidly. 

Now, suppose this happens to be a new cell phone (the driver lost the other one because a clip failed and also because he had gained weight forcing the cell phone FROM his belt and onto the floor.  Or ground.  Somewhere.  Bottom line, he isn’t sure how to use it.  Worse, the phone is a little Sanyo model with the camera button on the right edge–so when he knows that when retrieves it from his belt he runs the risk of hitting the button, taking a picture of the floorboard of his car—and losing the connection.

Conscious things to consider: Three. 

Now, he’s driving down the road at 88 miles per second, one hand on the steering wheel, one holding the phone.  Before he’s even started the conversation 60% of his available conscious attention has already been used up.

Then, he begins the conversation–one that will likely take up at LEAST another 20%–and probably more.  In fact, if the caller presents the driver with only two problems to solve, that’s probably more than he will be able to deal with properly.

In heavy rush hour traffic plugging along at 20 miles per hour (Goodyear Blimp speed) it probably won’t cause much of a problem–beyond a fender-bender.  At sixty miles an hour, funny things can happen. 

For one thing, that unnamed entity of the subconscious driving the car might think the driver is running late and want to solve the problem by speeding up a bit.  Or a lot. 

I haven’t done a survey (scientific or not) to determine this, but where I live it seems the ones driving the fastest, are the ones using cell phones.  I once saw a guy blast through a Starbucks parking lot at around 30 mph–narrowly missing cars and people–and he was talking on a cell phone.

If you object to the “5 things” limit (”surely I can multitask better than that!”) drive on over to the nearest four-way stop that involves dual lanes of traffic.  That is, intersecting streets EACH with four lanes of traffic (two in each direction.) Here, the driver is presented with eight things to evaluate. See how easy it is to keep track of everything?  Notice if any of the drivers jumped their place in line?

I think Reason’s work explains a lot about safety and about how accidents happen.  The conscious clipboard just fills up.  Forget Root Cause Analysis, just count the threads being processed. 

More on this later.