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Ruling Mixed in AkzoNobel Birth-Defect Suit

Tuesday, September 13, 2011

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A doctor should have been allowed to testify at trial that exposure to AkzoNobel solvents may have contributed to brain damage and birth defects in an employee’s child, the Supreme Court of the State of Washington has ruled.

However, the coating company was upheld in alleging that part of the blame was Julie Anderson’s, for not wearing a respirator on the paint mixing line while pregnant.

The complex case raises issues about employees’ personal responsibility for their safety and corporate safety culture.

Safety Compliance Targeted

Anderson went to work for AkzoNobel Coatings Inc. in 1998 and was promoted several times, but was fired after filing a safety complaint with the Washington State Department of Labor and Industries.

At the time she was fired, Anderson was the health, safety and environmental coordinator at her facility.  In addition, while it was not officially part of her job, she regularly—perhaps even daily—mixed automotive paint.

Company policy requires employees to wear respirators when mixing paint, “but there is reason to believe that this policy was not rigorously enforced and may have been actively undermined by management,” the Supreme Court wrote in its decision.

“According to Anderson (but vigorously disputed by the company), she was told by her supervisor that she ‘did not need to wear a respirator when mixing toxic paint because the air monitoring that was conducted by Akzo Nobel headquarters . . . had purportedly determined that there was no health threat.’”

‘Significant Medical Problems’

In 2000, Anderson gave birth to her son Dalton, who suffered significant birth defects, including brain damage. Anderson sued AkzoNobel, alleging that Dalton’s problems were caused by her exposure to paint fumes.

According to court documents, one of Dalton’s doctors, Dr. Chris B. Stefenelli, concluded that Dalton’s developmental malformations were likely due to his mother’s paint exposure and referred in a letter to Dalton’s “significant medical problems, very likely as a result of significant exposure to organic solvents while in utero.”

In addition, court papers say, Dr. Sohail Khattak was willing to testify that Dalton’s birth defects were caused by organic solvent exposure. Khattak had published a paper on the correlation between exposure to organic solvents in utero and birth defects while a fellow at the Motherisk Program, a division of Clinical Pharmacology and Toxicology at the University of Toronto.

Frye Test

The trial court did not allow Khattak to testify, saying there had to be “general acceptance in the relevant scientific community that a particular type of in-utero toxic exposure can cause a particular type of birth defect before expert testimony on causation is admissible. “

In its decision, the court relied on the so-called “Frye test,” used to determine the admissibility of “novel scientific evidence, especially that still in the experimental stage.”

But the Supreme Court found that the Frye test did not apply if the expert’s theory, and the methodology used to reach the opinion, were generally accepted by the relevant scientific community.

In this case, the court said, although no evidence showed a causal connection between a specific solvent and a specific medical condition, Anderson did present evidence “that tended to show it is generally accepted by the scientific community that toxic solvents like the ones to which Anderson was exposed are fat soluble, pass easily through the placenta and dissolve into the amniotic fluid inside the uterus, and may damage the developing brain of a fetus within the uterus.”

It added: “The Frye test is only implicated where the opinion offered is based upon novel science.  …  There is nothing novel about the theory that organic solvent exposure may cause brain damage and encephalopathy.”

Therefore, the court said, Khattak should have been allowed to testify.

Comparative Fault

On the other hand, the court upheld AkzoNobel on a wrongful-discharge claim filed by Anderson, saying she had failed to pursue a statutory remedy.

More significantly, the court also upheld Akzo’s use of a “comparative fault defense” at trial, based on the fact that Anderson continued to mix paint during her pregnancy, contrary to the advice of her supervisor.

Anderson had said the “comparative fault defense” discriminated against her for working while pregnant. But the King County Superior Court allowed Akzo to present the defense, and the State Supreme Court agreed.

“… Anderson contends that Akzo was negligent for exposing her to organic solvents,” the justices wrote.  However, they added, “…there was evidence that Anderson disregarded official policy to wear a respirator.”

The court concluded: “To the extent that Anderson was aware of the risk and voluntarily exposed herself to solvents that caused her harm and gave rise to her independent injury, she may be comparatively at fault. Implied unreasonable assumption of the risk is comparative negligence under our comparative fault system.”

Company Response

AkzoNobel spokesman Oskar Bosson issued this statement regarding the ruling: “While we sincerely sympathize with Ms. Anderson’s situation, it is our position that the birth defects suffered by Ms. Anderson’s child were not due to exposure to paint fumes in the work environment, and we are confident that the upcoming court case will show that.

“Since the case will now be presented in a jury trial, we cannot comment any further at this point in time.”

   

Tagged categories: AkzoNobel; Coatings manufacturers; Exposure conditions; Health and safety; Personal protective equipment; Respirators; Solvents

Comment from Julie Anderson, (2/19/2013, 3:30 PM)

This makes me CRAZY! I wore a respirator while pregnant! They did not have a change out schedule and we were not trained as to what they even were. It was before I was pregnant and all other employees that didn't wear respirators. I was only one because I was pregnant, I was (so I thought) extra careful by wearing all my safety equipment.


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