Podcast - The Law as a Force for Change
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small examines the devastating Farmers Export grain elevator disaster, where 18 employees died in a grain dust explosion, and explains how this case fits into the broader history of the prosecution of white collar crime. Traditionally, health and safety violations were addressed through civil lawsuits, leaving managers and similar personnel untouched by the legal system. However, the creation of the Occupational Safety and Health Administration (OSHA) in 1970 introduced criminal penalties for serious violations, signaling a shift in how such cases could be handled. Following a series of fatal explosions in the grain elevator industry, the U.S. Department of Justice launched a grand jury investigation, culminating in the indictment of executives at Farmers Export for violations of the Occupational Safety and Health Act.
Listen to more episodes of The Trial Lawyer’s Handbook here.
This podcast episode was adapted from Mr. Small's book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: In the last episode, we introduced the Farmers Export grain elevator disaster. Eighteen people were killed in a grain dust explosion that destroyed a 20-story concrete structure. There was no terrorism, no high explosives, no intent on anyone's part to kill and maim. It was an accident, pure and simple. But as Oscar Wilde famously said, “The truth is rarely pure and never simple.” If an accident was predictable, even arguably foreseeable, was it really an accident?
Murder is wrong. Everybody knows that. It’s a crime and always has been. But other things that may be wrong have not always been so clearly viewed as criminal. White collar crime – we talk about it all the time now – but it’s a relatively recent vintage. Until not so long ago, the common view was that “criminals” were ruffians, not men in suits and ties.
Health and safety was one of the slowest areas to change. Traditionally, if a health and safety case made it to court at all, it was as a civil lawsuit brought against the corporate entity or entities responsible. In most instances, that really meant the entity’s insurance company.
What this also meant was that the managers on the ground at a place like Farmers Export, the people who were most likely to have seen, to have ignored, or even to have directed the problem, and who were most likely to be able to keep it from happening again, were several layers away from any litigation. In the months or years it takes a case to wind through the system, the managers on the ground would be back at work, the incident a distant memory. As a force for change, litigation was often far too remote.
In 1970, there was a major shift. Congress passed a law creating the Occupational Safety and Health Administration, or OSHA, and introducing criminal penalties against individuals for serious violations that caused death. That meant jail for a real person, not just payments from a distant insurance company. However, as with many new laws, there were few cases brought. It was too new, too different.
Ten years later, the Department of Justice decided that the law was on the books for a reason, and it should be used carefully and judiciously. But how do you convince busy prosecutors around the country to try it? The department’s criminal division decided to create a unit of attorneys specializing in these health and safety cases to support local prosecutors in the field. One year out of law school, I became part of that unit.
Almost every case we brought was a shock to the defendants. OK, maybe someone screwed up. Maybe they should have been more careful. And certainly it was a shame that someone (or many someone's) died as a result. But no one meant to kill anyone. Is that really criminal? The DOJ and OSHA wanted to get people’s attention. In many cases, it worked.
So, when fifty-four people died within five days in the two large grain dust explosions that December, OSHA came to the DOJ and basically said, “We have a problem in the grain elevator business, and whatever we’re doing just isn’t enough.” The department and the U.S. Attorney’s Office in Houston, Texas agreed to open a grand jury investigation, with our little unit providing support.
The investigation itself was a surprise to the industry: Grain elevator employees and managers, company executives, and government regulators were being summoned to testify before a federal grand jury and questioned by DOJ attorneys. But the real astonishment came when the two top managers of the Farmers Export grain elevator were indicted — individually — for criminal violations of the OSHA Act, with potential penalties including fines and jail.
The world had changed. It was time to reassess health and safety in the grain industry in a whole new light, and maybe far beyond the grain industry as well. The law looks at each case individually, as it should. But sometimes the law, and all those involved in it, can and should be a force for change. Clearly, change was needed here. Maybe – just maybe – litigation could be an answer. We’ll talk about this case in the trial, in the next several episodes.