Up in the Air: When Uniforms are Toxic

Episode Notes

Transcript

Workers Comp Matters

Up in the Air When Uniforms are Toxic

09/27/2020

 

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Intro: This is Workers Comp Matters. Hosted by Attorney Alan S. Pierce. The only Legal Talk Network program that focuses entirely on the people and the law in workers compensation cases. Nationally recognized trial attorney, expert and author, Alan S. Pierce, is a leader committed to making a difference when workers comp matters.

 

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Atty. Alan S. Pierce: Welcome to Legal Talk Network and Workers Comp Matters. My name is Alan S. Pierce and I’m an attorney at Pierce, Pierce, & Napolitano in Salem, Massachusetts.

 

We’re bringing you another edition of this show with special guests, Attorneys- Tom Holder and Bruce Maxwell. Tom is an attorney in Georgia. He’s at the Law firm of Gerber & Holder and he specializes in workers’ compensation cases. And Attorney Bruce Maxwell, a graduate of Drake University, formerly of Georgia, who now lives in

Jacksonville and practices at the Law firm of Terrell Hogan and specializes in personal injury law, products liability, medical negligence, premises liability cases. And I’m very happy to have you both on the show, welcome.

 

Attorney Bruce Maxwell: Well, thank you very much.

 

Atty. Alan S. Pierce: And a special word from our sponsor, PInow. Find a local qualified private investigator anywhere in the United States.  Visit PInow.com to learn more.

 

Today’s show, we’re going to be discussing airline uniform cases. It’s been in the news quite a bit lately, and I believe the first cases that I heard about were about 10 years ago with Alaska Airlines, but there’s been more coverage and more damages should I say, more people complaining of uniform irregularities and symptoms coming from them.

 

Could one of you go into how you came involved with these cases. Bruce.

 

Attorney Bruce Maxwell:  I became involved in these cases about a year and a half ago. I actually have a family member who is a flight attendant with Delta Airlines. She one day just called me out of the blue and said, “Hey, I’m on these flights and my co-workers are sick and not just sick.” Like, I’ve got a cold type of thing, but really sick and have you heard anything about this? And at the time, I said, “No.” But I started looking on the internet and finding out more and more that this was a fairly significant problem. The next thing I know I’m traveling all over. I end up being on a news broadcast out of Boston. A lot of efforts have gone into this with testing, medical research, and aligning the team that we’ve put together to bring this case on behalf of these flight attendants.

 

Attorney Bruce Maxwell: Most of them are flight attendants and we do have a few below wing workers they’re called that are on the ground. But predominantly, they are flight attendants. We have a case that’s pending in federal court in Madison, Wisconsin right now where we’ve named over 1200 plaintiffs at this point. In fact, we’re getting ready to file another amended complaint adding more. So, I would say, by probably the end of next week, there will be well over 1300 people.

 

And the list keeps growing every week, we keep getting calls. Now, a lot of that has subsided of late due to you know COVID-19 concerns and the impact it’s had on the airline industry, but nonetheless, this problem still persists. Delta is still using this purple uniform. It’s the new uniform they came out with in the end of May of 2018. There was big fanfare about it, but what we’ve discerned is that, the uniforms were not properly made and they contain hazardous metals and chemicals and which have caused injury either dermal-type injuries on the skin, but also inhalation type of injuries because the substance, the minute particles can become airborne.

 

And that’s really in a nutshell how I ended up being involved in this, I’m one of three

appointed lead counsel by the federal judge. We have a firm out of L.A. One of that in New York, and we also have a local firm in Wisconsin. Our current local council actually is the president of their trial lawyer’s association.

 

So, we’ve put a good team together with this and it has been quite a large project and man, it’s still going on and we’ve got a judge who’s really keeping things moving along even in light of all this pandemic and we soon will be even filing motions for class certification on certain issues.

 

Atty. Alan S. Pierce: Wow. Have you had class action experience in the past that has helped you get to this point?

 

Attorney Bruce Maxwell: I have had some limited experience in classes. I’ve had it more so in mass torts. This case is kind of a hybrid of both because you ordinarily cannot get class certification on personal injury claims. Well, we’ve added these injury claims onto the complaint so to speak.

 

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The certifiable issues though will probably be limited to injunctive relief we’re seeking for everyone we want the uniforms to be pulled you know, especially out of the planes. And also, warranty-type issues and actual damage to their own personal property. The purple dye will leach onto undergarments and it’s even gotten onto the seatbelts and the jump seats and the planes that they have to sit in.

 

And of all things even the metal chairs in their employee lounges at their main hubs across the country. It’s really quite a bizarre issue.

 

Atty. Alan S. Pierce: And does it affect people in terms of disability from work? Does it cause people to have to be out of work for lengths of time? Do you do you know that?

 

Attorney Bruce Maxwell: Well, it has. Many of them were out of work for many months. Delta eventually accommodated their request to get into an alternative product namely, what’s called, the black and white, which is really kind of just an off-the-rack garment that they could go out and buy and be usually reimbursed for. And many of them once they’re out of the purple uniform, they feel a lot better.

 

The problem is many of them have become what’s called, “sensitized” that their autoimmune has been reduced relative to what chemical it is they’re reacting to. We know that we have discovered excess formaldehyde levels, bromine levels, and fluorine levels in the garments that we have tested. We believe what’s happening is that the dye, there was excessive dye in the fabric which is essentially coming off obviously, off the uniform onto the person, onto their skin, and then being airborne as well. And we think that’s what causally is making people ill. Either through the skin contact or through inhalation.

 

And it can be quite debilitating. I mean, we have many clients who have been out for well over a year at this point, and that it doesn’t look like they’ll be going back. It seems that the ailments tend to hit the more senior flight attendants more badly for lack of a better term. In light of what’s been going on now with COVID-19, and the economic downturn with the airline industry many of them have even elected to take

early retirement. A lot of them because they want to get away from this product and can be well, and that’s certainly something every worker should be entitled to do.

 

Atty. Alan S. Pierce: Do you have any exclusivity problems in terms of damages, in terms of filing a claim as against a manufacturer as a third-party negligence type of action, a products action? But also, have you also filed claims against the employers

and are you precluded from doing so in any way?

 

Attorney Bruce Maxwell: We have not filed suit against Delta. We believe that there would be an exclusivity bar in most states. You have to understand that we have people that are all over the country. They are largely congregated in certain major cities like, Atlanta, Minneapolis, Detroit, Salt Lake City, Los Angeles. But each of those state’s laws will come into play on the exclusivity doctrine and there are some variations there. But we have not at this juncture uncovered anything that we believe would warrant jumping over that hurdle and bringing Delta into this case at this point. But we are fairly early on into discovery here and we have not yet deposed anybody at Delta.

 

We have served subpoenas on them and we have gotten certain records in and there will be depositions forthcoming. But right now, that’s kind of up in the air. We felt that we did not have sufficient information to warrant filing them in compliance with Rule 11. Who knows what the future may hold, but it could be in fact that even Delta itself has claims against Land’s End because they are the ones that initiated the contract in Delta is the company that furnished a big chunk of these uniforms to their employees from the get-go at no cost to the employees?

 

Attorney Bruce Maxwell: So, a lot of that cost lies with Delta whether or not they’re going to pursue anything in that regard, we don’t know at this point.

 

Atty. Alan S. Pierce: And what has Delta been doing for its employees vis-à-vis medical treatment. I’ve had a few state comp cases here with Delta flight attendants. They’ve been asked if they want to, to go to a different state for treatment for 30 days and then get flown back to Massachusetts. Have you seen any of that voluntary opt-in of medical care at a big clinic?

 

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Attorney Bruce Maxwell: Yes, we have. Delta chose for example, all three Mayo facilities: one of which is here in Jacksonville. You know, the male clinic facilities are top flight. They have picked facilities that are quality care places where, “Yes, the clients can go there.” And Delta will pay them to go there. And there are several that have done so. That is an ongoing thing and Delta has graciously agreed to do that.

 

I think that perhaps more should be doing it, but with all we have going on right now, with COVID I think many, many, including those within the airline industry or even traveling so much, that is going on and it is helpful. We believe in the places they have chosen that they are good, legitimate quality healthcare organizations.

 

Now Delta though, a lot of the employees had to jump through a lot of hurdles through Sedgwick which is Delta’s third-party administrator and there seemingly are many inconsistent findings or conclusions that were reached where one employee will be treated one way yet, an employee with the same problems, the same reaction will be treated another. And that especially went on with allowing them to get into an alternative uniform.

 

So, I’ve had many, many, many, of these clients who continue to work forcing themselves to wear this uniform and suffering through their work, that aspect of things was not really handled very well in our judgment. But Delta has seemed to have come around. But I have heard of late now that they are now declining some of these requests to get into black and white. I just don’t know how many there are exactly right now with the limited number of flights that are running.

 

Atty. Alan S. Pierce: Why would they decline someone’s option to go into black and white. I mean, because it just doesn’t look like the purple and they want everyone in the uniform purple look?

 

Attorney Bruce Maxwell: I really don’t know. That would be one logical thought that there was a big, big, fanfare about this new uniform line. It was designed by Zac Posen, who’s one of the stars of that Project Runway show. And they had a big celebration at all their main hubs about the coming out of this new uniform. And they

Invested heavily not only time, but money as well.

 

So, I think that they were very, very, reluctant to let go of that image and I think that did taint judgment on allowing the flight attendants that were being rendered hill to get into black and white.

 

Atty. Alan S. Pierce: This is a good segue for the next part of our program where we talk with Attorney Tom Holder a little bit about what he’s been seeing. Tom, what you’ve been seeing in terms of the medical treatment of these injured workers? How long they’ve been out for? What types of burdens of proof problems you may have encountered in terms of causation hurdles? Why don’t we take a quick break before we move on and hear from one of our sponsors?

 

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Atty. Alan S. Pierce: And we’re back with our guests, Attorneys Bruce Maxwell from Terrell Hogan and Tom Holder from Gerber & Holder. Before the break we were talking about what elements of these cases are in the workers comp statutes in each

of the individual states where the employees may live? Tom, what have you seen? Have you had any of these cases come through your office and what types of problems with causation have you encountered?

 

Attorney Tom Holder: I first became aware of this situation through Bruce as we talked before, we’ve been friends for a long time and Bruce’s office started referring people with potential Georgia workers’ compensation claims to our office. Of course, Delta is headquartered here in Atlanta, so a lot of people came under on Georgia workers’ compensation laws.

 

The biggest problem we found well first of all, was that there were a lot of people who had skin type problems: breakouts, rashes, and things like that. And a lot of the flight attendants wanted to try to work through it. So, they weren’t really missing time from work even though they were having medical conditions.

 

On the proof side, and Bruce correct me if I’m wrong, but Delta at one point was really trying to resist that the uniforms were even causing the problems and trying to make these occupational disease cases. And as we’ve seen you know even with COVID, occupational disease cases have a very high burden of proof because it’s hard sometimes to prove that the problems the injured workers are having were caused by the job and not just from living life in general.

 

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Attorney Tom Holder: So, a lot of people, their claims were being denied.  Delta wasn’t willing to admit that they were having problems which of course is what Bruce is finding out a lot more about in his personal injury case. So, a lot of these people were long-term employees. They didn’t want to get involved with fighting Delta. They also would just have skin problems or even respiratory problems. They want to try to work through them. So, they really didn’t have lost time claims.

 

And in workers compensation, it’s very difficult to bring a medical-only claim. It’s very hard to get any type of attorney’s fees. I would consider that a long-standing flaw in the workforce compensation system at least, in Georgia, is that, it’s very difficult for an attorney to bring a medical-only claim because you get involved in a lot of discovery and a lot of fighting especially since Delta didn’t want to put itself on

the hook for all these people having problems claiming that it was from the uniform. So, from the standpoint of how much time and money would be involved to prove claims where the damages weren’t that great in terms of the lost wages, it would be very difficult for a firm like ours to get involved with.

 

Atty. Alan S. Pierce: Right. I would think that there would be some concern if an injured worker were left with a sensitivity and that person were to take that as a chronic condition throughout her life if it was never proven as work comp. Should she have the aggravation on a job in the future, it would be much more difficult, right? To prove that it was originally workers’ comp if it was never adjudicated as such, right?

 

Attorney Tom Holder: Absolutely. The other thing also, is a lot of Delta workers that I’d say, its accredited Delta’s culture is very dedicated to the company and really didn’t want to get involved in fighting Delta on these claims. You know, Bruce’s lawsuit when they’re doing you know tremendous work. As he said before, it was not really against Delta and I think Bruce you might be able to speak to this, but psychologically, I think it was a lot it’s a lot easier for the flight attendants to bring a claim against Land’s End and not blame Delta for their problems.

 

Attorney Bruce Maxwell: I think so. Yeah. They are by and large very committed

to Delta. And it’s unfortunate that so many of the badly injured ones are more older Delta population and then, these are employees that have been with the company for 20-30. I even have one client who’s flown for over 50 years. So, there is a lot of loyalty to Delta. It took quite some convincing actually to assure them that this isn’t against Delta, that we’re going after Land’s End. Finally, months of preparation, we assembled a large number of people which we felt would be needed, the initial filing on this case was over 500 people from the very start.

 

And I know that this situation has affected thousands. My office has been called over 3500 times by various people. Some deciding to not pursue it for whatever reason, but others who have. And we are still taking on more people and we get calls every week about it. Interestingly, there are some situations and even other airlines where

workers are becoming ill.

 

Southwest airlines for example, I don’t know if this is just something that’s very peculiar within the airline industry and their requirements to have for example, fire retardants, stain repellents and the ultra-permanent, press-type of look that’s required larger doses of chemicals. But a qualifier on all that is that, the testing again that we have performed shows levels that are well in excess

of the tolerable standards that unfortunately, are not U.S. standards, but rather European standards, which amazingly, we here in the U.S. after the 1970s just gave up on regulating the garment industry, which would include uniforms.

 

Attorney Bruce Maxwell: Most of that stuff in fact, all of the stuff on the Delta cases, it was made overseas: Malaysia, China, Vietnam, Indonesia, that’s where all the oversight needed to occur. And again, we’re having to face standards that are not here within our own country. We do have some OSHA regs that maybe touched on this, but nothing like over in Europe. So, we have that hindrance I would say in a way. But again, our testing and we picked just random people and random garments and we used three different labs all of which are very independent and we’ve got levels especially on the fluorine issue are very, very, high.

 

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Atty. Alan S. Pierce: What about any potential bankruptcies? I noted that tailored brands filed for bankruptcy in Texas. This is on the American Airlines matter. What if Lands’ End were to ever file for bankruptcy, would that have any impact on your case, Bruce?

 

Attorney Bruce Maxwell: Well, if Lands’ End were to do that, it certainly, I think it would, we would obviously receive a notice of stay. We would have to figure out how we can get around that automatic stay and certainly to the extent of insurance coverage, we would be able to. But I think the damages in this case and the size of it are going to greatly exceed the applicable insurance coverage.

 

So, that that could be an issue, but I don’t really see it because Land’s End is very solid. If you look up their SEC filings, they’re a pretty strong company and nothing that I’ve read even as of the last quarter filing indicates that they’re in any distress or anything to cause us concern that, knock on wood. No one knows for sure with anything these days, but I think that would be kind of a very, very, large step on their part and would potentially harm their own company doing something like that.

 

Atty. Alan S. Pierce: Would there be any other defendants that you could seek to make as part of party of this claim? You noted big manufacturers in other countries.

 

Attorney Bruce Maxwell: Well, yeah. I mean there could be, but I think the difficulty of doing that. I know on a product’s case years ago that I handled against a Japanese manufacturer, I was going to go over there and take a deposition of the 30B6 representative, and I was informed if I had gone forward with what I was doing, I would have been arrested over there.  That it would have been illegal for me as an attorney to do that over there.

 

And the only way you can do anything is to go through the U.S. embassy and follow all the Hague convention requirements which are numerous. And I even on that particular case, followed up and called the U.S. embassy in Hong Kong and I was told the soonest date I could get to take a deposition would be somewhere around I think, it was two and a half to three years later. How’s that going to do anybody any good?

 

Atty. Alan S. Pierce: Oh, my goodness. That’s just crazy. It would just be so difficult. I’m not saying it would be impossible to do, but it would be difficult and we

we don’t really feel that that there’s really going to be a need to venture out that direction because again, we do believe that Lands’ End is a pretty solid company. We’re actually hopeful that once they learn things that we know and things that we’ve done that, they may come around and realize that they have a significant problem on their hands.

 

Atty. Alan S. Pierce: Right.

 

Attorney Bruce Maxwell: And be willing to do something to correct it.

 

Atty. Alan S. Pierce: What extent are the other uniform cases having any sort of impact for you in terms of study, research? Are you able to share information with the lawyers in the other cases with the other airlines?

 

Attorney Bruce Maxwell: Yeah. The only significant case right now is the American Airlines case. We have been in touch with the lawyers in Chicago and I think the other firm is based in Dallas or Houston, one or the other. And we very much have been in contact with them. They’re out in front of us.

 

There were cases occurred a couple years before. So certainly, we’re willing to learn from that process and I did read about the fight that’s occurred over Taylor brands. I think that, Americans not going to be able to take advantage of that anyway because the Twin Hill Corporation was the manufacturer of those uniforms. My understanding is that, that corporation had nothing to do with Taylor brands. They’re not going to be able to avail themselves of the umbrella of the automatic stay through bankruptcy.

 

Atty. Alan S. Pierce: I see.

 

Attorney Bruce Maxwell: So, that that’s where things are with that. We haven’t really had any indicator that anything in that regards coming forward our direction. And we just keep pushing ahead and like I said, we’ve got some deadlines that are coming up. The court’s even given us a trial date in November 21.

 

Atty. Alan S. Pierce: Is there a deadline for folks to join the class before they’re certified? And how may they contact you? What the best way if someone thinks they’ve been impacted by this?

 

Attorney Bruce Maxwell: Right now, there’s no set deadline to be added. I would think at some point the court’s going to stop it, I think. And I think that point probably will be determined by whether or not the judge grants us class certification and we should know that in a few months but people can always contact my firm. My name again, Bruce Maxwell. I’m with Terrell Hogan. We’re in Jacksonville, Florida. Our office number here is (904) 632-2424 and I can be reached through my email

[email protected]. So, again, [email protected]. We’d be happy to talk with them about it.

 

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Atty. Alan S. Pierce: Great. I appreciate that and Tom, can you also give out your

firm contact and your number in case anyone should have a comp case that they’re

thinking might be helpful for you to help them with?

 

Attorney Tom Holder: Sure, and also, just like with Bruce, I’m the only the only attorney who’s dealing with the flight attendants on these cases since I’ve been talking to Bruce and know what’s going on. So, if any anybody is interested, they would be contacting me directly. Our phone number is (678) 802-8650. And my email address is [email protected]

 

Atty. Alan S. Pierce: Great. Thank you both for being guests on this podcast. A very informative discussion and I look forward to hearing more about your suit, Bruce. And I wish you all the luck in the world with it.

 

And Tom, go Pats, go Sox. Sorry, about that buddy. I’ll invite you up here to Fenway Park one of these days when they open it again.

 

Attorney Tom Holder: I’ve seen your I’m dad’s seats. It’s always great to go to a game in Fenway and I look forward to seeing the two of you and seeing Bruce and the great work that he’s doing on this case also.

 

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Atty. Alan S. Pierce: Absolutely.

 

Attorney Bruce Maxwell: Great, thanks so much for having us. We really appreciate it.

 

Atty. Alan S. Pierce: I’d like to thank them for personally coming on and for those of you listening, please tune in to our next show and go out and make it a day that matters. Thank you.

 

Outro:  Thanks for listening to Workers Comp Matters, today on the Legal Talk Network. Hosted by Attorney Alan S. Pierce.

 

When we try to make a difference in workers comp legal cases, for people injured at work, be sure to listen to other workers comp matters shows on the Legal Talk Network. Your only choice, for legal talk.

 

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