Introduction All too often safety professionals are asked to work as part of a legal proceeding without a full understanding of what is actually involved. Such was the case for me when I began my work as a designated Expert. Looking back, I can see that my initial exuberance to venture into areas where I was not appropriately prepared was similar to allowing employees to engage in activities for which they are not properly prepared and in which they are not properly trained. So how does one go about becoming successful in the legal field? The answer is the same as other areas in which we work as Safety Professionals in helping to ensure that those we work with are adequately prepared to do their jobs. We first need to have adequate training on the issues involved in doing the work. The training programs should ensure that you have a full understanding of the role of the expert witness, the hazards involved in the process of working in the field, and procedures that can be used to help you gain confidence and success as you work. The training that you get can be formal and include reading books and articles on the topics, taking classes such as those offered at the ASSE Professional Development Conferences (PDC), and thorough a review of case studies such as those presented later in this paper. Regardless of how it is done, this is not an area where one can simply jump into, and through a process of trial and error, somehow achieve success. This paper will provide an overview of the steps that can be used and will provide some case studies showing how the techniques developed by the author have led to success in this field.

Introduction As a society we generally do not condone or accept vigilantes. The emphasis in modern society is that people will instead resort to the law. On the criminal side there are the police and other law enforcement agencies with a duty to address the criminal wrongs perpetrated against a person, group, company, etc. On the civil side persons must enforce for themselves by way of civil actions. These civil lawsuits can be in regards to almost anything. Examples include such things as odors emanating from the neighboring facility, dissatisfaction with an equipment purchase you made or with the services provided by a safety consultant you retained, or a workplace injury. The litigation process is filled with rules and processes. A mistake in some of these rules/processes can result in the loss of a case. One of the most basic (and longest) processes of civil litigation, and also perhaps the most important, is that of discovery. One of the methods of discovery is that of an oral deposition.

Introduction For over 28 years the author has worked in areas of increasing responsibility leading to the management of global environmental, health, and safety programs ranging in the billions of dollars in domestic and international contracts. While this paper focuses on the topic of selling safety, the underlying foundation of selling yourself applies to any level position within any organization. Additionally, this paper predominately focuses on simplifying the common terms used in one of the three most recognized motivators for safety program buy-in, specifically, financial impact. The other two motivators for safety program buy-in not discussed here are legal and social responsibility. Are the answers to the following elusive questions potentially simple? In short, yes! Why is it that your ideas are not implemented? Why is it that the organization is willing to take a risk on regulatory compliance issues? Why is it that you are not invited to the "important" meetings"? Why is it that others are achieving the promotions, yet you are not?

Introduction The world of workers' compensation is far more complex than many think. Some who have not really dealt with the process perceive it as some simply "paper pushing" of standard forms. While workers' compensation systems are often form-driven, and extremely time-sensitive, they are far from simplistic. Indeed, as workers' compensation is a statutory creature, the formal law, in terms of statutes and regulations, is generally far more complex than many areas of tort liability, such as auto torts, premises liability, and product liability. Compounding the complexity of workers' compensation is the fact that the laws and procedures vary tremendously from state to state. There are, however, certain fundamental common underlying concepts, and best practices, which will be discussed below. Finally, the uninitiated may initially have a difficult time conversing with those immersed in the workers' compensation system, as it has its own lingo, and is replete with a lexicon of acronyms and abbreviations with which one must become familiar, in order to meaningfully participate in the claims process. The process for adjudicating workers' compensation claims may be far more streamlined than that used for tort actions, which often involves full discovery and jury trials. In Maryland, for example, initial adjudication is in the form of an administrative hearing before the Workers' Compensation Commission, and there is virtually no discovery, other than the exchange of medical reports, required. Accordingly, such hearings can be "trial by ambush," with either side presenting documents, and testimony of witnesses of which the opposing party was completely unaware. Moreover, the Maryland administrative hearings are conducted in an abbreviated and relatively informal fashion. Nonetheless, the Commissioners' rulings are binding. Moreover, while one can take an appeal from an adverse decision, such an appeal does not "stay" an award, and one must continue paying. In fact, even if the employer/insurer is successful in having the decision reversed on appeal, reimbursement cannot be sought from the claimant. While some have varying views and concepts as to the complexity of the workers' compensation system, and its fairness, anyone who has ever looked at risk data or a related financial statement understands the significance of it. The cost of workers' compensation insurance is staggering, and continues to rise steadily. Moreover, there are even greater amounts of costs arising out of work-related injuries, including the loss of productivity, the amount of time spent dealing with the claims and injured employees, the loss of good will in the employer/employee relationship, and so forth.

Introduction In today's world where litigation aims to cure all our unresolved ills, the Safety and Health practitioner finds themselves entangled in a tenacious web of conflicts between plaintiff and defendant. The plaintiff typically being the injured worker, or a member of the worker's family. The defendant then being the employer, a contractor to the employer, or specific management and staff employees of the employer who may have allegedly been instrumental in creating the circumstances under which the employee was injured. Being well prepared to handle this entanglement, in a calm and professional manner, requires the safety and health professional to be well aware of the complexities in the legal arena and the rules which govern behavior and success. You can't do the dance if you don't know the steps. Similarly, you can't perform your best in the legal setting unless you have somewhat of an understanding of how the system works and how procedural rules apply. A survival course which prepares you to at least "tread water" in a legal sea of strange words and behaviors is one which will familiarize you with the nomenclature and procedures which are practiced in courts throughout the nation in essentially the same way. Who is likely to be sued? Why sue the safety or health professional, or even name them in a legal action? This becomes all too clear when one reads the deposition transcripts of safety engineers or industrial hygiene personnel who have been individually named in law suits. The safety and health professional will not typically have "deep pockets", nor will they be adorned with many worthwhile monetary assets which can be claimed in a judgment, then why name them in a law suit? The primary, and often most productive discovery1 advantage, is that the safety and health professionals generally know "where all the skeletons are buried". Who better to ask, than the safety or health professional, why the safety program failed to protect and guard the floor opening through which the employee fell, or why were the asbestos containing gaskets installed and removed with little concern for respiratory protection? Safety and health professionals need not be the "in-house" specialist but can be a wide spectrum of safety and health practitioner situations from in-house employee or contractor employee to paid consultant. Where does the injured employee find remedy? When a worker is injured or exposed, we generally look to Workers' Compensation as the primary remedy protecting the employee and the employer. Should the Workers Compensation insurers deny a claim, or insufficiently provide care for the injured worker, the worker typically seeks redress from other avenues of recovery. The multitude of lawyers and law firms vying for the chance to "help" are plastered over the TV channels on a 24 hour basis. One need only peruse the "yellow pages" of your local phone book to see page after page of ads for lawyers anxious to come to the rescue of an injured worker. "If you've been injured at work, we'll sue your employer, and get you a "big bucks" settlement in order to ease your pain and suffering, and it won't cost you a cent!" And so begins the headache of a protracted litigation process which will surely ensnarl you as the Safety and Health professional, who either should have kept it from happening, or who knows all the reasons why it did happen. The conference presentation can only deal briefly with the various stages of the litigation process which are related to the industrial workplace and how these processes should be handl

Introduction Safety, at its highest level, positively changes skills, habits, attitudes, decisions, and actions at work and at home. In today's safety environment, almost everyone acknowledges both the importance of changing behavior and just how difficult this can be to accomplish. Many currently think of the alternatives for changing behavior as limited to focusing on observation and feedback, improving the safety culture, and/or incenting safety performance. These alternatives do not have to be exclusive of each other; in fact, they are often complementary. But even if they are taken all together, we may be neglecting a critical tool: inspiring people to make changes for themselves. It is time that safety advocates recognize this deficiency and strive to become skilled at inspiring behavioral change. This paper presents two positive strategies to simultaneously improve safe behaviors, change the safety culture, increase involvement and buy-in, and prevent injuries. Limitations to Conventional Approaches for Changing Behavior In Behavior Change Versus Culture Change: Divergent Approaches to Managing Workplace Safety, David M. DeJoy does an excellent job of contrasting the strengths and weaknesses of a system focused on behavioral change as opposed to one that emphasizes cultural change. DeJoy asserts that these approaches are "largely complementary" and that the strengths of one match up well with the weaknesses of the other. While our worldwide experience with hundreds of companies supports much of DeJoy's conclusions, we have encountered several other key limitations of these approaches. This paper will summarize those limitations and introduce additional, corresponding approaches that address those limitations. We will also briefly discuss the limitations of incentives in order to help us clarify the value of other alternatives. . What are a few of the limitations to using post observation feedback as a consequence in order to shape behavior? 1. Frequency of feedback For over 20 years we have worked both domestically and internationally with organizations striving to improve their safety performance. Many of these companies have implemented a behavioral observation process, and a high percentage of these have had significant success as a result. Still, almost all of these clients report that one limit to the effectiveness of their process is the low ratio of observations for each employee. In other words, observations are too few and far between. Even if the critical behaviors are pinpointed and clearly defined, the quality of the observations are excellent, and the total number of observations is high, their effectiveness is limited if the average employee is only observed a few times a month. This frequency is too limited to extinguish a behavior that may have inherently self-reinforcing consequences, such as a shortcut that saves the worker significant time. To put this in context, just imagine trying to change a long-term habit (like smoking, overeating, watching too much TV, etc.) based on just getting feedback once or twice a month. We probably would not expect this method to be too successful.

Learn what the Safety professional needs to know to be classified as an expert witness in court. This session will prepare you for the newest decision of the court ruling under Daubert v. Merrell Dow Pharmaceuticals The Supreme Court's decision in Daubert lends itself to brisk summary. For many years, the admissibility of expert scientific evidence was governed by a common law rule of thumb known as the Frye test , after a 1923 decision by the District of Columbia Court of Appeals in which it was first articulated. Under the Frye test, expert scientific evidence was admissible only if the principles on which it was based had gained "general acceptance" in the scientific community. Despite its widespread adoption by the courts, this "general acceptance" standard was viewed by many as unduly restrictive, because it sometimes operated to bar testimony based on intellectually credible but somewhat novel scientific approaches. In Daubert , the Supreme Court was asked to decide whether the Frye test had been superceded by the adoption, in 1973, of the Federal Rules of Evidence . After all, Fed. R. Evid. 702 , the rule broadly governing the admissibility of expert testimony, did not even mention "general acceptance," but simply provided: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The majority opinion in Daubert , authored by Justice Blackmun, held that Rule 702 did indeed supplant Frye . This did not mean, however, that all expert testimony purporting to be scientific was now to be admissible without further ado. Rule 702 did require, after all, that the testimony actually be founded on "scientific knowledge." This implied, according to the Court, that the testimony must be grounded in the methods and procedures of science -- a.k.a. "the scientific method." Evidence thus grounded, said the Court, would possess the requisite scientific validity to establish evidentiary reliability. The Court also noted Rule 702's requirement that expert testimony assist the trier of fact . This, according to Daubert , was primarily a question of relevance or "fit." The testimony must be sufficiently tied to the facts of the case, the Court held, to aid in the resolution of an issue in dispute. The Court explicitly refused to adopt any "definitive checklist or test" for determining the reliability of expert scientific testimony, and emphasized the need for flexibility. The Court did list several factors, however, that it thought would commonly be pertinent whether the theories and techniques employed by the scientific expert have been tested whether they have been subjected to peer review and publication whether the techniques employed by the expert have a known error rate whether they are subject to standards governing their application whether the theories and techniques employed by the expert enjoy widespread acceptance.

During 1999 and 2000 Corning Incorporated underwent massive changes in the size, nature and complexity of the businesses in which it operated. Gone were the days of its flagship Consumer Products operations with such familiar household names as Corning Ware, Pyrex, Corelle and others. Gone was its position as the leader in the area of clinical laboratories and testing facilities where MetPath and Bessalar were dominant in their sectors. The Company shrunk from approximately $6,000,000 in sales to under $3,000,000 as the first step toward s positioning itself as a player, and then a leader, in the area of Optical Networks. It had completed but another massive change in its organization and the product line that it offers in the marketplace. From its start in 1851 it has continued to build upon its core strengths and technologies to continue to meet the ever-changing demands of the marketplace. From the days when Corning invented the glass envelope for Thomas Edison's light bulb, to its invention of the processes for mass producing television bulbs, to the days in 1970 when it invented the first optical fibers capable of transmitting digital signals over a large distance, it has always prided itself in its people and its strength in technology. And as recently as 1994, when we received the National Award for Technology and in 1995 when our Telecommunications Products Division received the Malcolm Baldridge National Quality Award. At our core, we have a set of endearing values that serve to guide our actions. These are: Quality Integrity Performance: Leadership Innovation Independence The Individual Beyond these we have defined behaviors for how we operate, amongst ourselves, and with our customers. This operating environment contains our expectations regarding: Customer focused Results oriented Forward looking Entrepreneurial Rigorous: Open Engaging Enabling Over time these have become ingrained into our culture and a body of knowledge, as well as a sense of history, has built up around each one. As we look to our future we focus on our shared strategic vision "Corning's business strategy at the most basic level is to focus on attractive global markets where Corning's leadership in materials and process technology will allow us to achieve and sustain competitive advantage and superior growth over time." --Roger G. Ackerman Chairman & CEO With this to frame our future, we will look to our growth platforms in telecommunications, information display, advanced life sciences, semiconductor materials and environmental products. With our core strength in science and technology we have every reason to believe that the next 150 years will be just as rewarding as the last 150. As we begin to discuss our experiences in Global Safety Management, I want to frame it with some statistics. In the last 18 months we have completed 14 major acquisitions. Spending over $6,000,000, resulting in adding 80 plus locations to the 40 we had previously. Employee base increased to 44,000 expected revenues in the next year are some $10,000,000.

When an organization experiences a loss or near-miss, its safety professionals and lawyers often disagree on the proper approach to investigation and report writing. This tension results from 1) perceived antagonism in the goals each profession strives to accomplish; 2) misunderstandings about the meaning of words commonly used by both; and 3) unfamiliarity with tools available to help both meet the organization's needs. Among the safety professional's foremost objectives is the prevention of future losses through thorough investigation of accidents. Competent accident investigation [hereafter "AI"] requires a) probing for all relevant facts; b) analyzing the facts to discern underlying basic or root causes; c) recommending appropriate remedial actions; and d) documenting accurate and complete findings to promote information sharing and to ensure follow-up. The lawyer's primary objective is to help the organization conduct its affairs so as to avert undue legal responsibility. Philosophically speaking, the two professions strive diligently to attain the same goal: helping the organization to avoid loss. The perceived conflict emerges when they differ on the best method to reach that goal. When the organization's personnel conduct effective AI, they are likely to uncover facts and draw conclusions about accident causation that reflect unfavorably upon the organization. This is to be expected, since accidents usually occur when the organization's safety systems do not adequately control the risk exposures that lead to accidents. If the organization's personnel search out and document those failures in the interest of prevention of future similar events, lawyers fear that parties outside the organization might use those findings against the organization in litigation involving the accident in question or in litigation involving similar occurrences. What lawyers fear is the specter of "discovery." Once a lawsuit has been filed, the parties to it are entitled to engage in discovery, during which they obtain factual information about the case from each other to prepare for trial. "Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation." 1 Discovery methods include taking depositions of witnesses, requesting other parties to answer written questions and produce documents or things, and transmitting "requests for admission." 2 Loosely defined, an "admission" is a written or verbal statement by a party or its agent or employee that might tend to hurt that party's position. 3 Discovery furthers the free flow of information and avoids "trial by ambush." Lawyers fear that their organizations will invest substantial resources in diligent investigation and documentation of accidents to advance well-conceived safety improvements only to create "smoking guns" in AI reports that can later be used against them. 4 Many lawyers deem it a wiser course to limit the scope of investigations or to discourage investigators from recording their conclusions about the inadequacy of the organization's controls, despite the impairment to effective remedial action and information sharing within the organization imposed by such limitations.