The defendant failed effectively to control the hazards presented by the chemical totes in this case due to inadequate and improper packaging, labeling, and warnings, and these failures led directly to and were substantial factors in causing the incident that led to the worker’s death. The tote that the worker needed to fill had a faded, barely discernible number identifying the chemical. Moreover the warnings were torn, poorly affixed, and in very small print. This container did not have the typical statements and warnings as described in the American National Standards Institute (ANSI) standard. The container used for the filling had a number identifying a chemical, but it did not clearly identify the chemical by name. Nor did it have the statements and warnings as described in the ANSI standard.
The defendant regularly delivered one of the chemicals with color-coded, diamond-shaped placards that were blue or red in color and delivered the other with color-coded diamond placards that were black. However, on this occasion, the tote containing the caustic chemical had been marked with a black diamond-shaped placard, and nowhere on that container was the chemical identified by name. Given the worker’s extensive experience in the industry, he would have understood the danger involved in mixing the two chemicals and would have expected containers of a certain type and location to remain consistent. By shipping the caustic chemical in an inadequately and mislabeled tote that, on prior occasions contained a different chemical, the defendant increased the chance of foreseeable error and injury.
The mislabeled chemical tote directly led to and was a substantial factor in causing the incident that caused the death.
The expert specializes in industrial–organizational psychology, applied human factors, psychology and ergonomics. The expert regularly consults with business and industry clients regarding warning design and injury prevention. The expert relied on OSHA’s investigative report, witness depositions, photos and industry standards.
