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SHOOK, HARDY& BACO N REPORT ON RECENT ETS AND IAQ DEVELOPMENTS July 9, 1993 Tv r. ..r N ~ ~ © W SHB ~

REPORT ON RECENT ETS AND IAQ DEVELOPMENTS - IN THIS ISSUE - IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS • Federal court deadline apptnaehes for OSHA to outline rulemaking options, p. 1. • Surgeon General supports ETS warning labels, p. 2. • Los Angeles bans smoking in all restaurants, p. 2. ETS-RELATED LITIGATION AGAINST CIGARETTE MANUFACTURERS • Hearing on venue motions postponed in ISSUE 51 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS • No smoking for South Australian taxi drivers, p. 10. • Ministry of Ptrblic Health in Kuwait bans smoking in health care facilities, p. 10. • Workplace restrictions are proposed in. Finland, p. 10. ETS/1AQ LITIGATION NOT INVOLVING CIGARETPE MANUFACTURERS • Child custody case filed in Australia, p. 111. Blrtncharcr; p, 3. ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE M.'\NUFACTURERS. • Child custody suic in New Jersey, p. 4. • Carper suit Howell may be consolidated with, others, p_ 5. LEGAL ISSUES AND DEVELOP4-lEAITS • Dauberr"junk science" unanimous Supreme Court decision, p. 5. OTHER DEVELOPMENTS/MEDIA COVERAGE • Smokers form new policical parry in Australia, p. 12. • Australian, restaurant closes following, imposition of smoking ban, p: 12. • British Telecom tightens its smoking accommod'ation, policy, p. 12.. • "Anti-Fragrance Lobby Seeks to Clear the Air," p. 13. OTHER' DEVELOPMENTS • Anderson labs tests mattress emissions on mice, p: 6. • ALA releases IAQ survey results, p. 6. SCIENTIFIC/TECHNICAL ITEMS • "Recent Developments in the Epidemiology N 11r of Lung Cancer," p 7 ..r ~ • "Risk Factors for Cardiovascular Disease in ~ Non-Smokers," p. 7. ~ • "Passive Exposure to Tobacco Smoke and ~ " ~ Respiratory Symptoms in Adults, p. 8. ~ • Four new studies relating to childhood respiratory conditions, p. 8. Ir' +~

1 - TABLE OF CONTENTS - Issue 51 July 9, 1993 IN THE UNITED STATES REGULATORY AND LEGISLATIVE MATTERS U.S. OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION'(O'SHA), [Il] Agency Official Says ETS Rulcmaking Decision Imminent .....................................................1 [I2] OSHA Considers Workplace Warnings About ETS Exposure ................................................. 1' 103m CONGRESs (3) House Opens Debate on BiIIIWiih Smoking Resrrictions....................................................•.-• 1! [4) Joint Resolution on Disabilities Introduced ................................:..............•....•--.•-•••••••••.•••••••••2 U.S.. SURGEON GENERAL [5) Surgeon General Supports ETS Warning Labels ......................................................................2 [6J ETS-Related'State and Local Legislation ..................................................................................2 ETS-RELATED LITIGATION!AGAII*JST CIGARETTE MANUFACTURERS [7) Blanchard Hearing on Venue Motions Postponed ............................................................-••.•• 3 [8] Voth: Responses are Filed by Brown & Williamson ......................................................•••••••---. 4 ETSIIAQ LITiGATION NOT INVOLVING CIGARETTE MANUFACTURERS CHILD CUSTODY [9] Montufor v. Navrot (Superior Court, Camden, New Jersey) (motion filed June 1!993) ............. 4 WORKPIACE: PERSONAL INJURY [10] Stupak v. Prndcnticl Insurance Co. No. 93L 007115 (CircuitCourt, Cook County, Illinois) (filed June, 1993) .--•-•••••••••-••.••••••••••••••-••••••••••••.-••••••• •4' WORKPLACE: COLLECTiVE BARGAINING [ 11 ] Civil Servicr Employees Ass'n, Inc., Local 1000, AFSCM'E, AFL-CIO v. Public Employment Relations Board 1!993 N.Y:,App. Div. LEXIS 6599 (Supreme Court of New York) (d'ecided June 24„ 1993) ........................................... .-•••••••.-..-•4 IAQ: CARPET EMISSIONS [12) Hosurll u Shaw Industries Inc., 93-CV-2068 (U.S. District Court, Eastern District, Pennsylvania) (filed April' 19, 1993) ...........................--...............................---......................... 5 WORKPLACE:IA.QLSICK BUIIDING. SYNDROME [i13] Bloomquist v. Wapello County (Iowa Supreme Court) (decided April 21, 1993) ....................... 5 PRISONER CASE [14) Perdue v. Leis (Hamilton County Common Pleas Court, Ohio) (decided June 1993) .............. 5 LEGAL ISSUES AND DEVELOPMENTS [15] Daubert v. Marrell Dow Pharmacruticals: Inc., No: 92-102 (U!S. Supreme Court) (decided June 28,,1993) .................................................................................................... ...... 5 OTHER DEVELOPMENTS [16] Mattress Emissions Allegedly Injure Mice ................................................................................6 [17]; MEDIA COVERAGE Few Regard 1AQas Serious Health Problem ............................................................................6 [18] "Smoking Ban," CNN Sonya Live, July 1„1'993 ................... ............................................... ....6. SCIENTIFIC/TECHNICAL ITEMS LUNG CANCER [19] "Recent Developmencs in the Epidemiology of Lung Cancer," G.C. Kabat, Seminars in Surgical'Oncology 9: 73-79, 1993 [See Appendix A] ..............................................7 [20] "A Case-Concro]Study of Childhood and Adolescent Household Passive Smoking and the Risk of Female Lung Cancer," Wang, F.L., Love, E.J., and Dai„X.D., Abstracts of the 1993 Annual Meeting of'the Society for Epidemiologic Research, Keystone, Colorado, Abstract No. 301, 1993 (See Appendix A] .............................................. 7

Contents Continued, Issue 51 CARDIOVASCULAR ISSUES [21] Rirk Factors For Cardibvascular Diseare in Non-smo!<erf; D:F. Weetman and D. Wood (eds.). Basel, Karger, 1993 .......................................................................................7 RESPIRATORY DISEASES AND CONDITIONS - ADULTS [22] "Passive Exposure to Tobacco Smoke and Respiratory Symptoms in Adults," P. Leuenberger, J. Schwartz, U. Ackermann-Liebrich, and Sapaldia Team, Anrrrican Review ofRespiratory Disease 147(4 Part 2): A368, 1993 [See Appendix A] ............... 8 [23] -Effect of 3 Hours Passive Smoke Exposure in the Evening on Airway Tone and Responsiveness Until the Next Morning in Mild Asthmatics," D. Nowak, R. Jorres, A. Schmidt, and H. Ivlagnussen, Amarican Rcvinu ofRespiratory Disease 147 (4 Part 2): A214, 1993 [See Appendix A] ................................................................................8 RESPIRATORY DISEASES AND CONDITIONS - CHILDREN. [24]I "ABO Groups and Passive Smoking Exposure Influence Lung Function in Children and Adolescents," G.M. Corbo, F. Forastiere, N. Agabiti, R. Pistelli; V. Dell'Orco, P:,Angeloni, M.L. Aebischer, M. Purpura, C.A. Perucci, and'G. Ciappi, American Review ofRcspiratory Disease 147(4 Part 2): A214', 1993 [See Appendix A] .............................. 8 [25]1 "Middle Ear Diseases in Relation to Acopy and Nasal Metachromacic Cells in Infaney,"' K. Innder, M.P. Borres, and'B. Bjorkscen, InrcrnarionalJournalofPtdiatric0' torhirtolaryngology 26: I-9; 11993 [See Appendix A) ........... .......................................................8' [26]', "A Longitudinal Study of Parental Smoking and Childien's Pulmonary Functiom from 6 to 18 Years," X. Wang, D. Wypij, D. Gold, D.W. Dockery, F:E. Speizer, J.H'. Ware, and B.G. Ferris„American Reviruw ofRsspirato.J Uisrasc 147' (4 Parc 2): A2d 3', 1993 [See Appendix A] ................................................................................9, [27) "Analysis of Potential'Confounding Variables in Epidemiologic Studies ofPi rental/Household Smoking and Respiratory Health in PreschoollChildren," P. Wicorsch and R.J. Wicorseh, IndoorEnvironment2:,71-91, 1993 [See Appendix A] ...................................... 9 OTHER CANCER [28] "Maternal Active and Passive Smoking During Pregnancy and' the Risk of Childhood Brain Tumor (BT)." G. Filippini, M. Farinotci;,G. Lovicu4 S. Pteston-Marcin, and P_ Boyle, Ncuroingy 43('4): A331 (680P), 1993 [See Appendix A] ..................................... 9 ETS EXPOSURE AND MONITORING [29] "N'inety-Day Inhalation Study in Rats„Using Aged'and Diluted Sid'estream Smoke from~a Reference Cigarette:,DNA Adducts and Alveolar Macrophage Cytogcnetics," C.K. Lee, B.G. Brown, E.A, Reed„C.R.E. Coggins, D.J. Doolittle, and A.W. Hayes, Fundamentalcnd'Applied Toxicology 20: 393-401, 1993 [See Appendix A]I.............................. 9 [30] "EnvironmentallTobacco Smoke Exposure of Young,Children as Assessed Using a Passive Diffusion Device for Nicotine," R. Williams, A. Collier, and J. Lewtar, Indoor Environment 2: 98-104, 1993 (See Appendix A]I...----.....•....•.....••.••••••-•••••.•-•••-•••••••-••••••9 INDOOR AIR QUALITY [31]', "Indoor Air Pollution from Combustion Sources in Developing Countries," G.B. Leslie and V. Haraprasad, Indbor Environment 2: 4-13, 1993 [See Appendix A] .................................9 [32]I "Airborne Carcinogens," JL Lewtas, Pharmacology d ToxicoGrgy72 (Suppl. 1): S55-S63, 1993 [See Appendix A]i .........................................................................10, [33] "Health Effects from Adverse Indoor Air Quality: An Evaluative Approach Using Toxicolbgical Principles," M'.J'_ Reasor and Iv1,R. Montgomery, Indoor Environment 2: 1 18-121 „ 1993 [See Appendix A] ....................................................... 10 [34] "Airborne8ndotoxin and Sick Building Syndrome," K.B. Tecuw, C.M_J.E. Vandenbroucke- Grauls, and J. Verhoef, Pediatric Research 33(4 Part 2): 420A. 1993 [See Appendix A) .......... 10 IN EUROPE & AROUND THE WORLD REGULATORY AND LEGISLATIVE MATTERS AUSTRALIA [1351 Taxi Drivers Face Smoking Ban ............................................................................................ 10 CANADA [36] Calgary Smoking Bylaw Goes into Effect ............................................................................... 10

Contents Continued, Issue 51 Kuwwrr [371 Public Health Ministry Bans Smoking in Hospitals ............................................................... 10 FINIAND [3S] MAr..+rsiA [39]' Health Minister Proposes Increased Workplace Smoking Restrictions ................................... 10 Kuala Lumpur to Enforce Smoking Ban ................................................................................ 11' SOUTH~ AFRICA [401 Parliament Approves Smoking Ban ........................................................................................ 1 1 UlVITED K7NGDOM [41] MP Seeks Smoking Restrictions in Palace of Westminster .....................................•..•••.•-••••••. 11 [42] Taxi'Smoking Ban Proposal to be Introduced ........................••.-•-•.---••••-•••.-.--.••••••~.-•••.••••--••• 11 ETS-RELATED LITIGATION INVOLVING CIGARETTE MANUFACTURERS AUSTRALIA [431 TIA v. Stephen Woodward (Supreme Court, Equiry Division, New South Wales)~ (filed April 15, 1993) .............................................................................. 11 ETS/IAQ LITIGATION NOT INVOLVING CIGA.RE'ITE MANUFACTURERS AusTxw3:1w [44} Father Seeks Order to PrevenrEx-wife's Smoking ....................................................... .......... 11 OTHER DEVELOPMENTS AUSTRAC.IA [45] Smokers Form New PoliticallParry ........................................................................................ 12 [46] Nonsmoking Pub Forced to Rescind Ban .............................................................................. 12 [47] I [4$]1 Restaurant Clbses After Imposing Smoking Ban .................................................................... 12 Tobacco Lobby Plans Media Campaign on Smoking Bans .................................................... 12 [49) Health Unit to Publish Pamphlet on ETS and Asthma .......................................................... 12 CANADA [50], Smoking Restrictions Create Market for Reusable Cigarettes ................................................. 12 UNITED I'CINGDOM [51] British Telecom Imposes Workplace Smoking Restrictions ................................................... 1 MEDIA COVERAGE CANADA [52] "AntilFragrance Lobby Seeks to Clear the Air," P. Orwen,. The Toronto Star, June 22, 1993 .................. .................................................... ...................... 13 APPENDIX A .................................................................................................... .............................Article Summaries APPENDIX B .... ........ ................................................................................................... ......................................California A.B. 13, A.B. 996

JULY 9, 1993 1 REPORT ON RECENT ETS AND IAQ DEVELOPMENTS IN THE UNITED STATES REGULATORY AND LEGISLATIVE IviATTERS U.S. OCCUPATIONAL SAFETY AND HEALTH ADMm1ISTRATlON (O'SHA). [;1]' Agency Official Says ETS Rulemaking Decision Imminent According to a press report, a senior OSHA official has said that the agency will decide how to proceed on regulating ETS in the workplace in time to meet a July 119, 1993, federal court deadline. The deadline arose in ASH'v: Department of Labor, No. 92-1661 (U.S. Court of Appeals, D.C. Circuit) (filed December 22, 1992), when the court granted ASH''s request forr a 60-day abeyance to give OSHA an opportuniry to outline rulemaking,options for the incoming Secretary of Labor. For a discussion of the court's order in~ the case see issue 48 of this Report, May 28', 1993'. Frank Frodyma, OSHA's acting deputy director for policy, reportedly stated that Labor Secretary Robert Reich will make a decision on the issue soon. Accord- ing to unnamed administration officials, Reich "has the guts" to push for tough new measures to restrict smoking. It has also been reported that EPA Adminis- trator Carol Browner will soon be issuing recommen- dations for restricting workplace smoking. See The Reuter Business Report, J',une 23, 1993. [2] OSHA Considers Workplace Warnings About ETS Eitposure According to a press report, OSHA is considering, as part of an overall agency rulemaking on ETS, a provision that would require employers to issue warnings to workers about the purported health risks associated with ETS. The warning would apparently notify workers about the alleged hazards detailed in the EPA Risk Assessment on ETS. Speaking at a June 23, 1993, meeting of the Interagency Committee on Smoking and Health, Frank Frodyma, acting director for OSHA policy, reportedly stated that enforcement options under consideration by OSHA indude requiring employer health warnings and issuing citations under the general duty dause of the Occupa- tional Safety and Health Act. According to Frodyma, the agency is continuing to review the comments submitted to OSHA in response to its request for information on indoor air, and Labor Secretary Robert Reich~has not yet decided whether to initiate a separate rulemaking for ETS. Surgeon General Antonia Novello, who also attended the meeting,,evidentlyagreed'that employers should warn workers about the alleged risks of ETS exposure in the workplace. See BNA Daily LaborReport, June 24, 1993. 103D CONGRESS [3] House Opens Debate on Bill With Smoking Restrictions On June 29, 1993, the House reportedly opened debate on an appropriations bill which wc`"d require that "none of the funds in this Act shall be available to pay administrative expenses of WIC [Women, Infants,, and Children] clinics except those that have an an- nounced policy of prohibiting smoking witliin~ the space used to carry out the program." (H.R. 2493). See Associated Press, J une 29„ 1993. The measure passed the House and was received in the Senate on Jlune 30, 1'993, where it was read twice and referred to the Committee on Appropriations. WIC is a federally funded special supplemental food program authorized under the Child Nutrition Act of 1966: The program helps pregnant and nursing women, their infants and children up to the age of five with nutrition~and immunizations. To the extent that WIC is a federalNy funded health program involving children under~ the age of 18, smoking would be restricted M WIC facilities serving such children under Senator Frank Lautenberg''s (D-NJ) PRO-KIDS (S. 261) legislation which is still pending in committee. For a discussion of the provisions of S. 261, see issue 40 of this Report, February 4, 1993. 2024702319

2 [4] joint Resolution on Disabilities Introduced On June 22, 1993, Senator Daniel Inouye (D- Hawaii)i introduced a joint resolution that would, designate September 29, 1993 and September 28,. 1994, as "National Barrier AwarenessDays."'Although the measure does not specify whether those with purported ETS sensitivity are to be considered dis- abled, it, does note that some 43 million Americans have an identifiable disability and that 80~percent of Americans will experience some form of disability during tlieir lives. The measure has been referred' to the Committee on Judiciary. U.S. SURGEON! GENERAL [5] Surgeon General Supports ETS Warning Labels Outgoing Surgeon General Antonia Novello has reponedlysaid~that her office could decide to include warning labels about the purported dangers of ETS exposure on cigarette packs. Novello will soon be replaced by Arkansas Health Commissioner Joycelyn~ Elders if Elders is confirmed by the Senate. But Novello apparently pledged to continue her anti- tobacco activities once she leaves her post. According to a press report, Novellb supports legislation currently being considered by Congress that would ban smoking in all, federal buildings (H.R. 881), and she stated, chat the Clinton administration is considering whether it will issue an executive order to ban smoking in all executive branch buildings. See The Reuter Business Report, June 23, 1993. [,6]I ETS-Related State andLocal Legislation - California According to news reports, the Senate Health and Human Services Committee defeated A.B. 13 in its first hearing on June 30, 1993. The measure would have prohibited smoking in workplaces, restaurants, malls and other public places, warehouses and other industrial facilities, hotels, motels, and airports and other transportation facilities. The bill's sponsor, Terry Friedman (D-Encino), plans to bring the bill back to the Senate committee for a second vote later in July. Friedman reportedly argued that evidence linking ETS to cancer leaves businesses vulnerable to workers' compensation~ claims. Opponents of the bill worried that a smoking ban wouU harm~ the state''s convention ETS/IAQ REPORT, ISSUE 51 and tourism industry, and would be difficult or impossible to enforce. A rival bill, A.B. 996 also had been scheduled to be heard' by the Senate Health and Human Services Committee, but the bill's sponsor, Curtis Tucker, allegedly asked for a week's delay "because he didn't feel' like presenting it." See The San Francisco Chronicle and Sacramento Bee, July 1, 1993. A BNA chart comparing the provisions of A. B. 13 and A.B. 996 is attached as Appendix B. In a related' matter, the League of California! cities announced its opposition to A.B. 996, claiming that the bill's prevention of cities' enacting new or stricter antismoking controls represents state intrusion, in the cities"abiliry to respond; to the interests of its citizens. The league's president was quoted as saying, "The league does not object to a statewide smoking standard as long as it does non preempt the ability of cities to enact stricter measures." League studies allegedly show that since December 1992, 60 cities and counties have adopted or are considering adopting locali smoking, ordinances. The league claims that more than 40 of these would be preempted; if A.B. 996 passes, and has announced its support for A.B. 13. See Business Wire, June 28„ 1993. * Local Governments in California On June 24, 1993, Los Angeles Mayor Tom Bradley signed into law a bill that prohibits smoking in all indoor restaurants. Outdoor eating areas, private clubs,, bars, separate bars in restaurants,,and nightclubs are exempt. The law will go into effect in 30 days. Accord- ing to news reports, those in favor of the ban pointed! to~the EPA Risk Assessment on ETS in supporro of rhei'r efforts. See Los Angeles Times; The New York Times, and~ The Christian Science Monitor, June 25, 1993, and Morning Edition, The Los Angeles Times,, and The San Diego Union-Tribune, June 24, 1993. The status of the new law is uncertain because the State Legislature is considering A.B. 996 that would, if passed's override local antismoking laws passed' after April 1, 1993, and impose a single statewide standard for smoking in public places. Meanwhile, a newly-formed group of Los Angeles restaurant and hotel operators, the Los Angeles H'ospi- taliry Coalitions has launched a petition drive in opposition to the city's new smoking ban. The coali-

JULY 9, 1993 tion fears losing business to restaurants and hotels in nearby cities that have fewer smoking restrictions. The coalition is asking diners to sign petitions in restaurants all over Los Angeles in an effort to gather the needed 58,275 signatures by a July 24 city charter-imposed deadline. The coalition supports A.B. 996 which would override the Los Angeles ordinance and allow restaurant owners to designate smoking areas. See Los Angeles Tirrus, July 3, 1993. Elsewhere, in the adjacent city of Long Beach, the City Council, is reportedly considering a proposal to strengthen the current ordinance that prohibits smoking in municipal buildings and most! offices to include restaurants and other public places. The proposal would also require outdoor restaurants and bars to reserve 75 percent of their areas for nonsmok- ers. The council' has referred the proposal to its Legisla- tive Committee for further review- The matter will come before the full council again in a month. The measure is similar to an antismoking ordinance that won unanimous approval from the city council in 1991. It woul'd have prohibited'smoking in restaurants as of January 4 1994, but the law never took effect due to a successful petition drive. The council replaced the ordinance with the less restrictive version now in effect. See Los Angeles Times, July 1, 1993. Also in California, Mayor Robert D. Breton of Mission Viejo has reportedly proposed a measure to prohibit smoking im restaurants and workplaces. OnNy bars, outdoor patio~areas and nightdubs would be exempt. Breton was quoted as saying, "With ~ greater awareness of scientifically proven data on the negative impact of secondhand smoke ... the public just won't stand for (smoking) in public areas." See LosAngeles Times, June 26, 1993. • Local Governments in Maryland The Howard County Council failed to override the County Executive's veto of a measure that would have prohibited smoking in most public places. City Councilman C. Vernon Gray planned to revive the ordinance by introducing,a similar bill. A public hearing,is tentatively sched'uled'for July 19, 1993, with a full council vote scheduled' for July 22. The Restau- rant Association of Maryland opposes the legislation, arguing that the county should wait for statewide restrictions to be enacted. See The Washington Post, June 24, 1993. 3 • Local Governments in Michigan According to a news report, on June 17, 1993, the Wayne County Commissioner introduced an ordi. nance to prohibit smoking at Wayne County Detroit Metropolitan Airport except in designated enclosed areas. The Commissioner was quoted' to say that "enviconmental and medical research overwhelmingly demonstrates that exposure to secondhand smoke poses significant health risks. ...°' Hearings will be held on the proposed ordinance, and, if approved by the commissioners, could take effect by mid-July. See PR Newswire, June 16, 1993. • Local Governments in Nbrth Carolina The North Carolina Restaurant Association says it will challenge the authority of the Wake County Health Board to impose smoking restrictions in theaters, malls and workplaces, according to a press report. An attorney for the association is reported to say that it will go to court over the matter. The health board voted 9-1 in a special meeting, allegedly to adopt new laws before a possible state law was enacted preventing local governments from regulating smoking. That legislation has passed the House and is pending in the Senate. The Board of Health~ reportedly said~ it acted to protect public health and: that their hand was strength- ened~by the EPA Risk Assessment on~ETS. SeeAssoci- ated Press;June 24, 1993. ETS-RELATED LITIGATION AGAINST CIGARETTE MAh1UFACTURERS [7] Blancharzi Hearing on Venue Motions Post- poned Argument scheduled for July 1, 1993, on defendants' motions to transfer venue and motions to strike was postponed. The matters are now scheduled for argu- ment on September 13, 1'993. Three of the 14 plaintifl's in this case presently allege injury from exposure to ETS. Raye Blanchard and Tamara Reedi mother and daughter, both daim damages for unspecified "illness and disease" allegedly resulting from exposure to ETS fromcigarettes smoked by Raye's deceased husband, Thomas, and~by Raye herself, who daims she smoked "for about ten years." The third ETS plaintiff, Pamela Kastrin Stephens, claims unspecified

4 "lung and respiratory diseases" allegedly caused by exposure to ETS from cigarettes smoked by her deceased Father. The named defendants are purported to be the six major U.S. cigarette manufarnuers, The Tobacco Institute, the Council for Tobacco Research, and a number of wholesalers and retailers. Blancharr>; et al' v. RJ. Rcynoldr Tobacco Company, etaC (District Court, Galveston County,,Texas) i(filed July 31, 1992). [8] Yoth. Responses are Filed by Brown & Williamson On July 5, 1993, Brown & Williamson filed its responses to plaintiffs request for leave to amend his complaint and request for preliminary injunctive relief. No hearing dates have yet been scheduled on those matters. Brown & Williamson's motion to dismiss, filed, June 14, is on the court's calendar for July 26 but is not scheduled for oral argument. Frank Voth, who is incarcerated in the Oregon State Penitentiary, alleges that his civil rights have been violated' as a result of his exposure to ETS. He claims that he has "incurred permanent health damage and is at risk of death" as a result of ETS exposure. Defen- dants in Voth are purported to be Forsyth Tobacco Products, R.J. Reynolds and Brown & Williamson. i/oxli v. Forsytb Tobacco Products, et aL (Uhited States District Court, Oregon) (filed April 27, 1993). ETS/IAQ LITIGATION NOT INVOLVING CIGARETTE MANUFACTURERS CHILD CUSTODY [9] Montufor v. Navrot (Superior Court, Camden, New Jersey) (motion filed June 1993) The divorced father of a 10-year-old boy has reportr edly filed a motion in a New Jersey Superior Court seeking to have his ex-wife's home declared smoke free. According to a press report, Francis Montufor says m his motion that his ex-wife and her new husband are habitual chain smokers and that the smoke in their home is a health hazard to their son. The motion alsoo apparently alleges that other family members who spend' "virtualty all their time" in her home, are alsoo chain smokers. ETS/IAQ REPORT, ISSUE 51 Margaret Navrot, the boy's mother, has custody of the child, with the exception of alternate weekends and Monday nights. She claimed in a newspaper interview that she and her husband had actually quit smoking and that her family members do not spend all their time in her home. Acc.ording to Montufor's attorney; the boy has not complaine& about the cigarette smoke. A hearing has reportedly been scheduled on the motion for July 23,. 1993. See The Phil'a~lelphia Inquirer, June 30, 1993: WORTCPLACE: PERSONAL INJURY [10] Stupak v. Prudential Insurance Co. No. 93L. 007115 (Circuit Court, Cook County, Illinois) (filed June, 1993) A former Prudential insurance salesman has filed a lawsuit against the company seeking $30,000 in compensatory and $1 million~ in punitive damages for emotional distress he allegedly suffered when his demands for a smoke-free work environment were ignored. Gregory Stupak claims he was under a doctor's orders to avoid ETS following an angioplasry procedure, that he was harassed when he complained about the smoke, and'that he was forced to enter therapy with a psychologist because of the situation. Stupak contends the off ce in which, he worked was fille6with "excessive cigarette smoke"' in spite of smoking restrictions and! that his requests for a transfer to a smoke-free office were refused. Stupak is making claims for intentional and negligentt infliction of emotionall distress and for wrongfull discharge. He daims that he was placed on disability by his psychologist and was terminated "apparently because of hisdisabiliry."'Stupak is represented' by David A. Axelrad and Associates. WORKPLACE: COLLECTIVE BARGAINING [111 Civil Service Employees Ass'n, Inc., Loca! 1000, AFSCME, AFL-CIO v., Public Employment Relations Board, 1993 N.Y. App. Div. LEXIS 6599 (Supreme Court of New York)' (decided June 24, 1993) The New York Supreme Court has upheld a smoking ban instituted by the Department of Health in its Roswell Park Memorial Institute facility in Erie

JULY 9, 1993 County, New York. The union petitioner had filed an improper practice charge against the employer in 1988, after negotiations over a smoking policy reached an impasse and the employer adopted a totall ban on smoking in all indoor areas, entrances and in the employer's vehicles. The court determined that on the basis of the union contract and subsequently approved smoking guidellnes,, the union had waived its right to negotiate smoking policies. IAQ CARPET EMISSIONS [ 12] Howell v. Shaw Ind'ustries, Inc., 93-CV-2068 (U.S. District Court, Eastern District, Pennsyl- vania) (filed April 19, 1993) On June 2, 1993, the plaintiffs in this class action filed a motion to consolidate two other identical actions and coordinate pretrial proceedings. The action invo}ves alleged injuries from toxic carpet emissions. Tle other cases, which were also filed in the U.S. District Court for the Eastern District of Pennsylvania, are Lay v. Arnutrong World Industries; Inc. and McBride v. Galaxy Carpet Mi11s,. Inc.. Howell defendants World Carpets,, Inc. and The Carpet andi Rug Institute have filed memoranda in, opposition~ to the plaintiffs' motion to consolidate. Also in Howel4 a stipulation extending the rime to answer the complaint until'June 11, 1993, has been filed, but as of June 21,,tkie defendants had not yet filed their answers. On~ Jktne 4 all of the defendants filed motions to transfer venue and to dismiss the complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. On June 116 The Carpet and Rug Institute filed a motion to stay discovery pending disposition of the defendants' motions. For a discussion of the plaintiffs"allegations, see issue 46 of this Report, Apri130; 1993. WORKPLACE: IAQISIQC BULDING SYNDROME. [13] Bloomquist v. Wapello County (Iowa Supreme Court) (decided Apri121, 1993) The Iowa Supreme Court has upheldd a jury's verdict awarding damages to state and county employees who suffered injury as a result of exposure to the pesticide, Dursbans which was allegedly sprayed improperly in their workplace to control a flea problem while ventilation was below acceptable standards. The trial court had granted 5 the defendants' motions for judgment not witltistanding the verdict on the grounds that (i) the plaintiffs had failed to present epidemiologicallevidence to prove causation; (ii) the defendants did not owe a duty of care to the plaintiffs; and (iii) there was insufficient evidence that future nursing and related expenses would be incurred. In its most significant determination, the Supreme Court held that epidemiological evidence is not required to establish causation in a "toxic tort" case. The court xknowledged that such evidence may not be available or reliable with respect to particular substances. "In our view," the court stated, "while epidemiological evidence is helpful, it should not be held to be an absolute require- ment in esrablishing causation." The court also observed that the "[a]'ncestors of Dursban have long been known and were in fact used to exterminate prisoners in Nazi Germany." The case was reversed in~ pan, affirnied in part and remanded for reinstatement of the verdicts and to resolve an issue regarding a settlement with one of the defendants. PRISONER CASE [14] Perdue v. Leis (Hamilton County Common Pleas Court, Ohio) (decided June 1993) A trial court judge has reportedly dismissed the lawsuit filed by a prisoner~ who sought to overturnia jail smoking ban on constitutional grounds. Former prisoner Robert Perdue apparently filed the action when a smoking ban went into effect in the Hamilton County Justice Center in Ohio. According to a press report, the judge ruled that there is no constitutional right for a person to smoke, the case was moot because Perdue was no longer in jail, and the sheriff has the authority to make rules for the jaili. See United Press Internationar; June 23, 1993. LEGAL ISSUES AND DEVELOPMENTS [,15] Daubert v. Merrell D+ow Pharmaceuticals, Ine., No. 92-102 (U.S. Supreme Court) (decided June 28, 1993) A unanimous U.S. Supreme Court has decided that the "general acceptance" test for the admissibility of