DCHAS-L Archives, Aug 28 2013 - Re: [DCHAS-L] Judge denies three Harran defense motions

-----Original Message-----
From: Beth Shepard <Beth.Shepard**At_Symbol_Here**SIAL.COM>
To: DCHAS-L <DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU>
Sent: Wed, Aug 28, 2013 9:29 am
Subject: Re: [DCHAS-L] Judge denies three Harran defense motions

Good morning--

The C&EN article indicated that the court ruling was that the PI was considered the employer, because he was the hiring/firing authority for this position.

The woman who died was an employee, not a student.

Industry has also had to develop systems for standardized training & records documenting that training. One of the major areas covered under the ISO standards are operating procedures (OPs) & records documenting the training of employees on those OPs relevant to their position. As ISO certification has become more of a customer expectation, the training systems have become more robust. There must be an independent audit every year to maintain an ISO certification.

In this case, in my opinion, there should have been general lab safety training (locations of the emergency equipment & how to use them), OPs on handling pyrophoric materials, fire/emergency procedures, PPE, exposure procedures, etc., rather than on the specific experiment being performed.

Depending on your preferences, you could use a 4-stage training form (trainer & trainee sign & date the stage; procedure explained, demonstrated, performed with supervision, able to perform procedure without supervision). or you could have a training session (verbal, on-line, outside produced), then have a written test or a practical test. In this case, you'd have the the training documents, the training attendance form & the test to document the training that had been done.

Based upon my perspective as someone trained in industry culture, rather than academia, no one should be working in a lab alone. While I accept the reality stated by others on this list, I really feel that when high hazard materials are being handled (pyrophoric, highly toxic, explosive, etc.) there should be someone else in the room. In this particular case, if help had been in the room, rather than next door or down the hall, the end result may have been different.

Beth

Sigma-Aldrich
Beth Shepard / Technical Compliance Specialist

From: Beth Welmaker <bwelmaker**At_Symbol_Here**VGTIFL.ORG>
To: DCHAS-L**At_Symbol_Here**med.cornell.edu
Date: 08/28/2013 07:38 AM
Subject: Re: [DCHAS-L] Judge denies three Harran defense motions
Sent by: DCHAS-L Discussion List <dchas-l**At_Symbol_Here**med.cornell.edu>

I too am concerned about the documentation of training and it was pointed out to me that the student has documentation in her lab notebook of doing this experiment before. I realize this is not the documentation lawyers are looking for but it does cause me to reflect on how would my institute be able to document training on every protocol and procedure? And would one if my PIs feel a researcher in his lab required documented training on an experiment previously performed? I feel the bigger issue is the flame retardant lab coat but I don't know if the university required them and the PI ignored the requirement? That could be deemed willful. I think this is a terrible accident and the whole situation saddens me. Beth Welmaker On Aug 28, 2013, at 7:56 AM, "James Keating" <jameskeating1944**At_Symbol_Here**GMAIL.COM> wrote: > RE: > Employer vs. Supervisor according to 29 U.S.C. > > In as much as California is an agreement state, the Federal OSH Act. 29 U.S.C. authorizes the State of California to pass additional legislation that at least meets all the criteria established in the Federal statute and permits to add more restrictive requirements and more severe penalties. > > In this case the defendant will be prosecuted under state law and the California Criminal Code will apply. > > Even absent the statutory authority of 29 U.S.C. - the U. S. Constitution specifies that each state has internal sovereignty. Therefore, California may pass laws that define criminality within their state as long as the law does not violate the individuals rights under the U.S. Constitution. > > My assumption is that the State of California considers a manager or supervisor to be the same as the employer, from a legal stand point. > > Jim Keating > EHS Manager/Radiation Safety Officer > > -----Original Message----- > From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Dave Einolf > Sent: Tuesday, August 27, 2013 7:54 PM > To: DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU > Subject: Re: [DCHAS-L] Judge denies three Harran defense motions > > Yes. The University settled and the State didn't press charges, after their agreement. > > Dave > > On Aug 27, 2013, at 3:47 PM, Russell Vernon <russell.vernon**At_Symbol_Here**UCR.EDU> wrote: > >> The statute you cite seems to hold the employer criminally responsible - not the supervisor. Do I read that accurately? >> >> Russell Vernon, Ph.D. >> Director >> Environmental Health & Safety >> University of California, Riverside >> 900 University Ave >> Riverside, CA 92521 >>www.ehs.ucr.edu>> russell.vernon**At_Symbol_Here**ucr.edu >> Direct (951) 827-5119 >> Admin (951) 827-5528 >> Fax (951) 827-5122 >> >> Taking a trip overseas? >> Access Location Intelligence:https://ermsp.ucop..edu/uctripand enter your UC Net ID >> >> >> -----Original Message----- >> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Dave Einolf >> Sent: Tuesday, August 27, 2013 2:18 PM >> To: DCHAS-L**At_Symbol_Here**MED.CORNELL..EDU >> Subject: Re: [DCHAS-L] Judge denies three Harran defense motions >> >> Russ: >> >> Criminal violations of OSHA requirements is part of the federal statute. >> Every state has criminal OSHA violations: >> >> Title 29 U.S.C. =A7 666(e) provides criminal penalties for any employer who willfully violates a safety standard prescribed pursuant to the Occupational Safety and Health Act, where that violation causes the death of any employee. Four elements must be proved in order to establish a criminal violation of 29 U.S.C. =A7 666(e). The government must prove that: (1) the defendant is an employer engaged in a business affecting commerce; (2) the employer violated a "standard, rule or order" promulgated pursuant to 29 U.S.C. =A7 665, or any regulation prescribed under the Act; (3) the violation was willful, and (4) the violation caused the death of an employee. >> >> Regards, >> >> Dave >> >> DAVE EINOLF >> Managing Director >> Endeavour EHS, LLC >> 4207 SE Woodstock Blvd, Suite 321 >> Portland OR 97206-6267 >>www.endeavourehs.com >> >> 971.678.8111 (w) >> 912.717.1533 (fax) >> dave**At_Symbol_Here**endeavourehs.com >> >> >> >> >> >> >> -----Original Message----- >> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Russell Vernon >> Sent: Tuesday, August 27, 2013 7:41 AM >> To: DCHAS-L**At_Symbol_Here**MED.CORNELL..EDU >> Subject: Re: [DCHAS-L] Judge denies three Harran defense motions >> >> Assuming this case ends up with a conviction that stands on appeal, I expect a large brain drain out of California... >> We have the ONLY state of which I am aware with a law that criminalizes failure to follow occupational health & safety code... >> >> -Russ >> >> Russell Vernon, Ph.D. >> Director >> Environmental Health & Safety >> University of California, Riverside >> 900 University Ave >> Riverside, CA 92521 >>www.ehs.ucr.edu>> russell.vernon**At_Symbol_Here**ucr.edu >> Direct (951) 827-5119 >> Admin (951) 827-5528 >> Fax (951) 827-5122 >> >> Taking a trip overseas? >> Access Location Intelligence:https://ermsp.ucop..edu/uctripand enter your UC Net ID >> >> >> -----Original Message----- >> From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Ralph B. Stuart >> Sent: Tuesday, August 27, 2013 4:27 AM >> To: DCHAS-L**At_Symbol_Here**MED.CORNELL..EDU >> Subject: [DCHAS-L] Judge denies three Harran defense motions >> >>http://cenblog.org/the-safety-zone/>> >> A Los Angeles County Superior Court judge today denied three defense motions that could have dismissed a criminal case against University of California, Los Angeles, chemistry professor Patrick Harran. With the rulings going against the defense, the case moves closer to trial. The judge set the next court date for Oct. 3. Harran could go to trial within 60 days of that date. >> >> Harran faces four felony charges of violating the state labor code. The charges stem from the death of research assistant Sheharbano (Sheri) Sangji after a 2008 fire in Harran's lab. In November and December, 2012, Judge Lisa B. Lench heard testimony in a preliminary hearing on the case. She ruled in April that there was sufficient evidence to send the case to trial. >> After the preliminary hearing, the case was sent to Judge George G. Lomeli for trial. >> >> Before today's hearing, Harran's attorneys submitted three motions: one asking the judge for a so-called Franks hearing, another called a demurrer, and a third to dismiss the charges based on lack of probable cause. The district attorney's office replied to each motion, and the defense then responded in writing to those replies. >> >> More at the site above... >> >> - Ralph >> >> Ralph Stuart CIH >> Chemical Hygiene Officer >> Department of Environmental Health and Safety Cornell University >> >> rstuart**At_Symbol_Here**cornell.edu
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