BusinessReport.com

It’s not unheard of for a plant worker to sue a former employer alleging hearing loss. Gary Bezet, a senior partner at Kean Miller, says his firm has worked on a handful of such cases over the past few years.

But he says in recent months there have been “mass filings” of dozens of such suits, with more coming in. A single prominent local attorney is representing more than 100. Defendants include BASF, Vulcan Materials, Honeywell, Formosa Plastics, Rhodia and others.

How big a deal all of this will turn out to be remains to be seen. Ed Flynn, who handles health and safety issues for the Louisiana Chemical Association, an industry trade group, says LCA members aren’t talking about a new epidemic of lawsuits, but the trend is reminding some of another wave of costly suits.

“I hate to use the term ‘the next asbestos,’ but it’s going to be the next large number of lawsuits that works its way through our court system,” Bezet says.

He says the cases tend to have two to six plaintiffs each, with as many as six companies as defendants, but no one plaintiff with a claim against all six. The suits have been filed in numerous jurisdictions across south Louisiana, and Bezet says he doesn’t see a pattern as to why the plaintiffs are being grouped the way they are.

Bezet says many plaintiffs who have already been in the court system with asbestos claims are also showing up as hearing loss plaintiffs, and he expects that trend to continue.

“It’s logical that the same people who worked in these plants for years, and are alleged to have been exposed to excessive amounts of asbestos, would be a natural place to start looking for people who might have hearing loss, because the locations are the same,” he says.

The Occupational Safety and Health Administration sets workplace standards as to how much noise workers can be exposed to, and for how long. In very general terms, OSHA says a worker can safely be exposed to 90 decibels, about the level of a shouted conversation or heavy truck traffic, for eight hours per day. For 15 minutes or less, the exposure can be as high as 115 decibels, which is comparable to a loud rock band. Exposure should not exceed a peak of 140 decibels, OSHA says. Some studies, however, have shown that continual exposure at 80 to 85 decibels can cause permanent hearing loss.

But Bezet argues the negligence, or lack thereof, of the employers won’t be determined by what science says today about hearing loss. The legal standard is based on what a reasonable person should have known at the time, not years later in hindsight, he says. And he points out that hearing loss can be caused by all kinds of things outside the workplace, from hunting rifles to simple aging.

Baggett, McCall, Burgess, Watson and Gaughan, a Lake Charles-based personal injury firm, found hundreds of potential plaintiffs in south Louisiana through advertising, then hired Unglesby and Marionneaux for the Baton Rouge-area courtroom work.

About 150 of those local workers had filed as of June 17, Lewis Unglesby says. All the plaintiffs were tested for significant hearing loss and had their employment records verified. By law, workers must sue within a year of discovering they have hearing loss for the case to go forward. The filings stipulate a maximum payment of $50,000, which allows for a trial by a judge alone and saves the expense of a jury trial.

At least one other firm, Baron & Budd, has run ads in The Advocate seeking hearing-loss plaintiffs who have worked at specific paper mills and chemical plants. The Dallas-based firm, whose Baton Rouge affiliate was formerly known as LeBlanc and Waddell, did not return phone calls seeking comment.

Unglesby says some plants might well have strong defenses, and will be able to demonstrate that they carefully monitored and protected all the workers at their plants, but others likely will not. Most, if not all, of his hearing loss clients are independent contractors who’ve worked at several plants, not permanent employees of any one company.

“My personal experience of suing the plants for 30 years is that, historically, they disregard contractors,” he says. “I’ve had experience with cases, not hearing loss cases, but other cases, where the plant has rules that were really good safety rules that they never even passed on to the contractors.” He says supervisors will sometimes get contractors to do things they could never get their employees to do.

Unglesby argues the plants are reluctant to shell out for expensive engineering solutions to really solve the problems. Often in the industrial world, companies recognize they’re taking a risk with their people, and there can be a cold calculation involved in weighing the profits produced by that risk against the potential for future lawsuits, he says.

“Any time you have money and profits versus a little less money and more safety, money wins every time,” he says. “I don’t think these hearing loss cases are a big surprise to any of these folks. … I think they’ve been expecting these things to come along. They knew this was going on.”

Several companies named as defendants in recent hearing loss filings either declined to comment or did not respond to messages or e-mails left with their spokespeople.

Vulcan Materials, however, said through an attorney they had never been sued for hearing loss prior to this recent spate of lawsuits. They said they have always complied with OSHA safety standards, and have always expected the same from their contractors.