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Court Says OSHA Standards Don’t Stop State Prosecution

October 17, 1990

ALBANY, N.Y. (AP) _ New York’s highest court has ruled that criminal charges can be brought against employers who put workers in danger.

The Court of Appeals cited the Karen Silkwood radiation case Tuesday in upholding the assault convictions of two operators of a now-defunct Brooklyn thermometer factory. It was believed to be the first time in New York state that businessmen were prosecuted for endangering workers with toxic chemicals.

″It’s a great day for New York state workers and a big step forward for the cause of work site safety,″ said New York City Comptroller Elizabeth Holtzman, who prosecuted the case in 1987 as Brooklyn district attorney.

William and Edward Pymm, former executives of the Pymm Thermometer Corp., had argued that federal workplace safety standards shield them from prosecution.

But the court ruled that criminal laws and safety standards cannot be used to pre-empt each other.

The state’s interest in enacting criminal laws to punish people for ″intolerable and morally repugnant″ conduct is different from the federal government’s interest in enacting workplace standards, Chief Judge Sol Wachtler said.

The court cited the U.S. Supreme Court’s ruling in the case of Karen Silkwood, a lab analyst at the Kerr-McGee Cimarron plutonium plant in Oklahoma. Silkwood died in a car accident while driving to meet a reporter to discuss her plutonium contamination. The movie ″Silkwood″ recounted her story.

The Supreme Court had ruled in Silkwood’s case that the federal government’s interest in nuclear safety did not prevent an Oklahoma jury from awarding damages to her family in 1979 for the radiation damage she suffered.

″The case now before us presents similar concerns,″ Wachtler said.

The Pymm Thermometer Corp.; the Pak Glass Machinery Corp., which serviced machines used by Pymm, and their operators were prosecuted in the case.

William Pymm’s lawyer, Albert Brackley, refused comment Tuesday. Edward Pymm’s lawyer and both brothers did not return telephone calls.

Pymm Thermometer was cited several times during the 1970s for failing to protect employees from mercury contamination, which can cause permanent neurological damage.

A 1985 Occupational Safety and Health Administration inspection revealed that the company was operating a clandestine basement operation in which glass thermometers were crushed to reclaim mercury, he said. Worker Vidal Rodriguez suffered neurological damage from mercury poisoning, according to court papers.

William and Edward Pymm were convicted of conspiracy, assault and other charges. But the trial judge overturned the jury’s verdict, ruling that state prosecution was pre-empted by OSHA rules.

The Appellate Division reinstated the conviction. The Court of Appeals upheld the conviction.

″I am gratified that the Court of Appeals has permitted the state to prosecute this behavior as the egregious crime that it was, without regard to whether it occurred in the workplace or the streets,″ Attorney General Robert Abrams said.

″The brain damage suffered by this worker is as devastating as any injury inflicted by a knife or gun.″

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