Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.
You can download that paper here:
No more than 5% of the lawyers in Oregon are selected for this honor each year.
Super Lawyers selects attorneys using peer nominations and evaluations, combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement:
Scott Brooksby recently co-authored the article, “What Can Be Done About Pilot Depression, Suicide, and Other Flight Crew Mental Health Issues?” in a newsletter published by the American Bar Association, Mass Torts Litigation Section on November 9, 2017.
Mental health problems are nearing epidemic levels in the
developed world. According to the Centers for Disease Control
(CDC), suicide is the tenth leading cause of death and claims over
43,000 lives per year. Not surprisingly, if it is an issue in the
mainstream, you can bet it is a problem in the cockpit. It is true
that pilot mental fitness-and its connection to human factors
analysis-has always been a critical aspect of aviation safety, but
recent events suggest it is becoming even more important to
examine ways to identify mental health problems that may affect
pilot performance and safety in the cockpit. As Jet Blue founder
and former chief executive officer David Neeleman suggested,
“nobody ever thought about having to protect the passengers from
In truth, most pilots would readily acknowledge that while the use
of medications to help mitigate the effects of mental illnesses has
been a hot button issue in aviation for some time, actual
evaluation of mental and emotional fitness in connection with
medical certification and continuing monitoring for symptoms has
not been a priority for the Federal Aviation Administration (FAA) or
flight surgeons. In addition, the reliance on self-reporting by pilots
as part of the medical certification process, as well as the
confidentiality that protects doctors from disclosure, has created a
dangerous dynamic in the cockpit that can make it difficult for
aviation authorities and commercial carriers to vet and identify
these dangers before it is too late. Add to these factors, the
compelling incentive for pilots to hide mental health issues for fear
of losing their jobs and you have little chance of ever identifying
the problem, let alone getting pilots the help they need.
This article explores these pressing issues and whether it is realistic to think that merely asking a pilot during a flight physical how he or she feels, or how is the family, or whether any issues are troubling you, etc., will trigger a response that will reveal a mental deficiency.
Scott Brooksby’s article, “The Danger of Bird and Animal Strikes in Aviation: What Can Be Done?” was featured in the October edition of the International Air and Transportation Safety Bar Association’s Air & Transportation Law Reporter. Bird strikes pose an increasing danger to commercial, military and general aviation and have resulted in hundreds of deaths and serious injuries to passengers and crew, and hundreds of millions of dollars in damage to aircraft. Bird strikes are the second leading cause of death in aviation accidents. Scott’s article explores what can be done to help alleviate and address these dangers.
Scott Brooksby wrote the following article, which was published in the American Bar Association’s Mass Torts Summer newsletter:
By Scott Brooksby – June 21, 2016
Foreign aviation disasters very often result in litigation in the United States. Many cases arising from foreign crashes brought by foreign plaintiffs against foreign defendants are dismissed based on forum non conveniens. However, a recent case decided under the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), 28 U.S.C. § 1369, illustrates the exacting standard for establishing general personal jurisdiction in foreign aviation disasters when plaintiffs seek to litigate in the United States, even when national service of process is permitted. Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015).
The Montreal Convention
Before considering the MMTJA in the context of an aviation disaster, it is important to recall that claims against air carriers, in contrast to claims against manufacturers, are governed by the Montreal Convention. The Montreal Convention of 1999 was ratified by the United States in September 2003 and went into effect in November 2003. It limits the forums in which foreign plaintiffs can file lawsuits against air carriers. The Montreal Convention is a successor to the Warsaw Convention of 1929 and, in addition to important new provisions, consolidates and clarifies prior provisions of the Warsaw Convention. Convention for the Unification of Certain Rules for International Carriage by Air, opened for Signature at Montreal on 28 May 1999, ICAO Doc. No. 4698 [hereinafter Montreal Convention].
The Montreal Convention applies to “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention, supra, art. 1 § 1. When the Montreal Convention governs, damages provided under the convention are the only remedy available to foreign plaintiffs against a carrier. In El Al Israel Airlines v. Tseng, 525 U.S. 155 (1999), the Court held that personal injury claims arising from aircraft operations within the scope of the convention are not allowed unless permitted under the terms of the convention. Id. at 176. In light of the holding in Tseng, other federal courts have held that the damages available under the convention are the sole cause of action. See, e.g., Ugaz v. Am. Airlines, 576 F. Supp. 2d 1354 (S.D. Fla. 2008).
For purposes of forum non conveniens motions, Article 33 of the Montreal Convention provides that there are five forums in which a plaintiff may bring claims against a carrier:
1. the domicile of the carrier;
2. the principal place of business of the carrier;
3. the place where the airline ticket was purchased;
4. the place of destination; and,
5. in personal injury cases, the principal and permanent place of residence of the plaintiff
The so-called fifth jurisdiction, the plaintiff’s principal and permanent place of residence, was added by the Montreal Convention and expanded on the Warsaw Convention provisions governing proper forums. Under the Montreal Convention, the principal and permanent residence is the “one fixed and permanent abode of the passenger at the time of the accident.” Montreal Convention, supra, art. 33 § 3(b).
Under the fifth jurisdiction principle, a plaintiff may bring the lawsuit for personal injuries in the forum in which he or she has his or her principal and permanent place of residence, and to or from which the carrier operates flights, and in which the carrier leases or owns commercial premises by itself or by another carrier with which it has a commercial agreement. A “commercial agreement” means an agreement made between carriers and related to joint service of passengers by air. Montreal Convention, supra, art. 33 § 3(a).
The MMTJA and Foreign Aviation Disasters
Although the Warsaw and Montreal Conventions addressed many aspect of air crash litigation, they did not specifically address U.S. federal court handling of mass disaster litigation, and they addressed only aviation-related cases against carriers. In 2002, the MMTJA was enacted to create greater efficiency in disaster cases in the federal system. The MMTJA grants district courts original jurisdiction where minimal jurisdictional requirements are met and where the cases arise out of a “single accident, where at least 75 natural persons have died in the accident at a discrete location[.]” 28 U.S.C. § 1369(a). The permissible lawsuits include both wrongful death and personal injury.
The first case arising under the MMTJA was the Station nightclub fire in West Warwick, Rhode Island, on November 20, 2003, in which 100 people were killed and 230 injured. Lawsuits were filed throughout New England in state and federal courts. Passa v. Derderian, 308 F. Supp. 2d 43 (D.R.I. 2004).
The MMTJA widely broadens federal jurisdiction in mass disaster cases and provides that the district courts will have original jurisdiction wher
(1) a defendant resides in a State and a substantial part of the accident took place in another State or other location, regardless of whether that defendant is also a resident of the State where a substantial part of the accident took place;
(2) any two defendants reside in different States, regardless of whether such defendants are also residents of the same State or States; or
(3) substantial parts of the accident took place in different States.
28 U.S.C. § 1369(a)(1)–(3).
Under the MMTJA, “minimal diversity” exists between adverse parties if any party is a citizen of a state and any adverse party is a citizen of another state or a foreign state. Corporations are deemed to be a citizen of any state in which it is incorporated, or has its principal place of business, and is deemed to be a resident of any state in which it is licensed to do business or is doing business. 28 U.S.C. § 1369(c)(1)–(2). The district courts must abstain from hearing any action in which the “substantial majority” of all plaintiffs are citizens of a single state in which the primary defendants are also citizens, and from hearing any claims that are governed primarily by state law. 28 U.S.C. § 1369 (b)(1)–(2). Therefore, the MMTJA provisions providing for removal are much broader than the diversity jurisdiction requirements under 28 U.S.C. § 1332.
Siswanto v. Airbus S.A.S., 2015 WL 9489952 (N.D. Ill. Dec. 30, 2015), arose from the December 28, 2014, crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore. During flight, a rudder system malfunctioned. Subsequent miscommunication between the pilots and a crew member’s removal of a circuit breaker disengaged the autopilot and caused the plane to roll and enter a prolonged stall before crashing into the Java Sea. All 155 passengers and 7 crewmembers were killed. The investigation was handled by the Indonesia National Transportation Safety Committee, which released its final report on December 1, 2015. Komite Nasional Keselamatan Transportasi, Republic of Indonesia, Final Aircraft Accident Investigative Report (2015).
The heirs and personal representatives of the deceased brought product liability and negligence claims against several defendants, including Airbus. Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause. The plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’s extensive contacts with the United States as a whole.
The court reasoned that because the case was brought under the MMTJA, Federal Rule of Civil Procedure 4(k)(l)(C) and the MMTJA enabled the court to consider Airbus’s contacts with the United States as a whole, and not just with the state of Illinois. However, nothing in the statutes overrode Airbus’s constitutional due process protections governing the court’s exercise of personal jurisdiction. Siswanto, 2015 WL 9489952, at *1.
Early in its jurisdictional analysis, the court noted that despite the geographic expansion of service and, in turn, the initial scope of personal jurisdiction, Rule 4(k)(1)(C) and section 1697 do not override the controlling constitutional limitations of the court’s exercise of general or specific personal jurisdiction imposed by the Fifth Amendment’s Due Process Clause. Siswanto, 2015 WL 9489952, at *2 (citing KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730–31 (7th Cir. 2013)). The court noted that the traditional “minimum contacts” test from International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945),still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process. Siswanto, 2015 WL 9489952, at *2.
Judge Blakey reasoned that when defendants are domiciled in the United States, the due process analysis under a nationwide service of process is straightforward. Because domestic companies and individuals “almost by definition” have minimum contacts with the United States, there may be general personal jurisdiction in any federal court in the country.Id. at *3.
The court noted that because Airbus is not a domestic company, the plaintiffs must show its contacts with the United States are sufficient to support either general or specific jurisdiction, and that general personal jurisdiction required “continuous and systematic general business contacts” such that Airbus is “essentially at home in the forum,” here, the United States as a whole, and not just the state of Illinois. Id. at *4 (citing Abelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012)). The court concluded that, under Abelesz, the court’s inquiry is not whether Airbus’s contacts with the forum are simply “extensive in the aggregate.” Id. at *3 (internal citations omitted).
There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the five previous years, Airbus had not maintained any offices or employees or owned or rented property in the United States. All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the United States undertook this work. The A320-216 had been issued a type certificate by the European Safety Agency but not by the Federal Aviation Administration (FAA). The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States, and the aircraft had never been flown in the United States. Id. at *2.
The plaintiffs argued that four categories of contacts between Airbus and the United States warranted the court’s exercise of general personal jurisdiction. First, the plaintiffs pointed to aircraft sales in the United States, which amounted to 811 aircraft, or 6.73 percent of Airbus’s sales. The court rejected this argument, ruling that none of the sales gave rise to the crash, and noted that the Supreme Court has instructed that imputing general personal jurisdiction from a defendant’s sales in the forum, even if sizable, would stretch general personal jurisdiction beyond its reach. Id. at *4 (citing Daimler AG v. Bauman, 134 S. Ct. 746, 760–62 (2014)).
Second, the plaintiffs argued that Airbus spends 42 percent of its aircraft-related procurement in the United States. The court also rejected this argument, stating that mere purchases, “even if occurring at regular intervals,” do not establish general personal jurisdiction when the underlying cause of action is not related to those purchases. Id. (citingHelicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 418 (1984)); accordDaimler, 134 S. Ct. at 757.
Third, the plaintiffs argued that contacts from Airbus’s “separately incorporated” subsidiaries should be imputed to Airbus because they maintained a physical presence in the United States. The court rejected this argument on the basis that the general rule is that jurisdiction contacts of a subsidiary are not imputed to the parent. Id. (citing Abelesz, 692 F.3d at 658–59 (internal citations omitted)).
Fourth, the plaintiffs cited a 2006 article showing that the FAA certified another aircraft model, the Airbus A380. The court also rejected this argument, finding that the isolated fact of the certification of another model aircraft had no special significance as far as personal jurisdiction is concerned. Id.
Having rejected the plaintiffs’ jurisdictional arguments, Judge Blakey turned to the plaintiffs’ alternative argument that venue in the Northern District of Illinois was proper because at least one other defendant, Motorola, resided in that district. The court rejected that argument, noting that establishing venue does not establish jurisdiction and that there was no legal basis for the court to conflate jurisdiction and venue. Id. at *6.
Thus, on December 30, 2015, the court granted Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. In doing so, the court rejected the plaintiffs’ argument that dismissing Airbus would set the dangerous precedent of effectively exempting Airbus from the MMTJA. The court reasoned that “[a]lthough Airbus’ contacts with the United States may have been extensive, plaintiffs have fallen far short of showing the de factorelocation that the Supreme Court has required for a foreign corporate defendant to satisfy general personal jurisdiction.” Id. at *5 (emphasis in original).
The significance of Siswanto and the MMTJA is that jurisdiction is analyzed on a nationwide basis, and not merely on a state-by-state basis or by looking at any particular state. Airbus’s contacts with Illinois or any other individual state are not discussed. Therefore, under the MMTJA, the court could have found that if Airbus was subject to jurisdiction in any state, jurisdiction would have been proper in Illinois as the state where the MMTJA case against Airbus was pending. Even under the statute’s broad jurisdictional sweep, encompassing the United States as a whole, a major non-American aircraft manufacturer was not in Siswanto, and may well not be in future cases, subject to personal jurisdiction anywhere in the country
On June 1, 2016, Scott Brooksby was featured as a speaker and moderator on a panel entitled “Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation”, at the American Bar Association’s 22nd Annual National Institute on Aviation Litigation, at the University Club of New York in New York, New York.
Scott and the other distinguished panelists provided an overview of emerging security issues for airlines, airports, manufacturers, and governments with respect to bird and animal strikes, laser strikes, and wheel well stowaways. Each pose the danger of catastrophic mass torts. The topics discussed included the following issues:
• Bird strikes are the second-leading cause of death in aviation, with more than 400 deaths globally. Learn about required airport wildlife management plans and mitigation techniques, and how airports and the government can address liability risks.
• Flight crews are increasingly targets of inexpensive, and increasingly powerful hand-held green lasers. More than 7,000 laser strikes were reported to the FAA in 2015. This panel will discuss efforts by prosecutors pursuing criminal charges, and liability issues arising from laser strikes.
• Pigs, snakes and turkeys are just some of the pets, or emotional support animals, that airlines are confronting. The safety of other passengers, who may be the victims of physical injury of property damage, present liability issues for airports and airlines.
• The number of wheel well stowaway incidents are rising which poses security risks for airports and airlines, and it is not inconceivable that the stowaway with destructive intent could cause a catastrophic mass tort.
Scott Brooksby was a featured speaker on a panel discussing District Litigation after Air France 447. Scott was invited to speak at the 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts for the Bar Association of San Francisco. The conference took place in San Francisco, California on May 27, 2016.
Scott and other distinguished panelists discussed the interesting substantive, procedural, and strategic considerations for airlines and other types of manufacturers seeking dismissal in forum non conveniens motions, and for passengers and other plaintiffs seeking to defeat FNC motions in multi-district litigation. Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France 447, the panel discussed key aspects of establishing personal jurisdiction over foreign corporate defendants. The panel discussed the complex issues associated with international treaties, choice-of-law, the meaning of an “unavailable forum” and challenging jurisdiction and venue considerations that arise when both U.S. and foreign individuals
Moderator: Ann C. Taylor, Locke Lord LLP, Chicago, IL
Panelists: Scott Brooksby, Olson Brooksby, Portland, OR Thad Dameris, Arnold & Porter, Houston, TX
Steve Koh, Perkins Coie LLP, Seattle, WA
Steve Marks, Podhurst Orseck, P.A., Miami, FL
From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:
Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.
According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.
Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.
According to Boeing, the relevant wildlife-strike facts include:
1. More than 219 people have been killed as a result of bird strikes since 1988.
2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.
3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.
4. About 5,000 bird strikes were reported by the Air Force in 2012.
5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.
6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.
Factors Contributing to the Rise in Bird Strikes
1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.
2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.
3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.
4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.
In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight. As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:
1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.
2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.
3. Discouraging nesting and grazing.
4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.
5. Firing pyrotechnics and propane cannons.
Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.
Apparently at least 150 people died in the French Alps when a German flight from Barcelona to Dusseldorf crashed this week. According to Slate.com, this is the fifth crash in the last year to result in the death of more than 100 people.
Although it seems like it’s becoming less and less safe to fly, the Aviation Safety Network reports that last year was the safest year on record for the total number of airplane crashes.
Airplane crashes, particularly when they involve a large plane full of people, are high-profile and they are obviously scary. However, airplane travel continues to be one of the safest modes of transportation. According to Slate.com, “If you look at crashes per number of flights as estimated by the International Civil Aviation Organization, 0.0001 percent of flights have crashed in the past 10, years resulting in one death for every 38,549 flights.”
Olson Brooksby practices a wide variety of aviation law. We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners. Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.
Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience. Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters. Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court. The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths. Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section. Mr. Brooksby has also been featured as a speaker and a moderator at the American Bar Association’s Aviation Litigation National Institute in New York, New York.
From Scott Brooksby’s article, “Secondary Processes Don’t Translate to Secondary Risks“, published in FF Journal, a metal fabricating and forming trade magazine, which includes recommendations for reducing worker injuries for steel and metal manufacturers:
Global demand for steel continues to increase, with mills and production facilities focused on production processes and ramping up output. With the urgency to increase production, however, risk of serious workplace injuries often is under-recognized in secondary processes—most notably, quality control testing operations.
Through our experience, we’ve identified simple and affordable steps mill management can take to reduce the incidence of major injuries and associated liabilities that occur at an inordinate rate in quality control testing processes of metals manufacturing.
A recent example took place at a steel mill that processes around 30,000 samples per year, operating a customized, decades-old conveyor system.
On the main production line at this mill, tail samples are cut from steel plate. The samples, slabs about 1 1⁄2-in.-thick, 8-ft.-long and weighing more than a ton, are sidled to a conveyor system leading to the sample-burning room. There, the sample tail is cut into smaller pieces to be shipped to a lab for testing. Electronic and manual controls are in place to prevent slabs from posing a danger to workers. When the system operates as it should, samples are restrained by a series of gates, arriving at a final gate that secures the slab as a laser torch cuts the tail sample into pieces, each weighing about 500 lbs.
One day, the final metal gate remained shut as the penultimate gate opened, freeing the sample slab to collide with the sample still in the clutch of the final gate. The sample tail flipped into the air, striking a temporary employee before destroying the machinery’s electronic control system.
A co-worker prevented further injury and damage by deactivating the equipment with a retrofitted electronic emergency override. Claims against the mill were resolved at significant financial expense.
What lessons can heavy industry draw from this incident to prevent similar events from occurring?
Immediately examine equipment involved in secondary processes—such as QC test sampling—and put requisite safeguards into place. It’s common for management to concentrate on production line safety and operations. All the more reason to exhibit prudence by reviewing conditions in areas such as sample burning, and take steps such as safety engineering studies to identify issues and develop options to retrofit or augment existing safety devices.
For example, conveyor equipment in sample-burning lines often is customized, and can lack safety elements incorporated in standardized, production line equipment. In this case, an engineering study on the sample conveyor may have identified a safety retrofit as simple as horizontal spacers spanning across the conveyor to prevent a sample tail from careening off the conveyor.
Document safety or process improvements. Virtually every steel, metal or component manufacturing facility has old equipment in use. In most cases, it has been upgraded or retrofitted for operation with the safety of the worker and the workplace as priority concerns. We recognize that documentation on its own won’t prevent injury.
At the same time, we’ve seen how dramatically lack of production environment safety retrofit documentations can impact the size of settlements and verdicts in manufacturing workplace personal injury cases. Safety retrofits have value in and of themselves. But strictly from a standpoint of managing financial risk, it’s crucial to document safety retrofits, retain these documents indefinitely and maintain them in strict compliance with formal document destruction policies.
Review workforce management and training practices in “first assignment” areas such as test-sample burning. As with the case of our real-world example, secondary processes often are areas where less-experienced or temporary workers are first put to work in steel production facilities. Facility management is wise to recognize this as a potential risk, put in place precautions, staff these areas appropriately and sufficiently train inexperienced workers who may not be conscious of dangers inherent in quality control sampling.