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How to Live With Danger

Credit: G. Grullón/Science

On 15 January 2009, US Airways flight 1549 ditched in the Hudson River off midtown Manhattan. All 155 passengers and crewmembers escaped alive in a heart-stopping scene: people standing on the sinking plane’s wings as boats large and small raced to the rescue. A dazzled nation hailed Captain Chesley “Sully” Sullenberger and his crew as heroes.

Shortly afterward, a commercial jet pilot told me that what stood out to him and his colleagues about the event was not the crew’s heroism but their professionalism. This did not diminish the pilots’ and flight attendants’ stellar accomplishment, he assured me. Rather, he saw their swift and effective response to a potentially calamitous situation as the highest expression of his profession’s creed and craft, which requires constant preparation and training for disaster. When properly trained for the worst, people are equipped to maximize the chances of a good outcome, this pilot said. Experience has taught him that in an emergency, training rather than emotion takes over, allowing people to calmly and immediately do what makes sense.

Data show that commercial air travel is extremely safe and getting safer, but, as the U.S. Chemical Safety Board forcefully asserted in October, the same cannot be said for academic laboratories.

The day after the brilliant evacuation, a continent away in the Grossman Burn Center in Sherman Oaks, California, 23-year-old Sheri Sangji succumbed to injuries she had sustained 18 days earlier in a lab fire at the University of California, Los Angeles (UCLA), where she worked as a staff research assistant. A criminal case has arisen from her death and is now moving toward its conclusion.

The temporal juxtaposition of these opposites underlines my pilot friend’s point and helps to illuminate what appears to be the central issue in the legal case.

Controversial charges

According to a California state investigative report that recently became public, the fire and its fatal consequence resulted from inappropriate technique and equipment and lack of protective apparel. No one claims that the lab chief, Professor Patrick Harran, or the regents of the University of California, both charged with felonies, intended for Sangji to be injured or die. The prosecution accuses them, rather, of willful violations of the law that resulted in her death. UCLA, on behalf of itself and Harran, has staunchly denied that anything criminal happened.

Information in the investigative report, and also from earlier investigations, indicates that the calamity happened because Sangji performed a dangerous task incorrectly. Then, when disaster struck and her clothing caught fire, neither she nor two postdocs who came to her aid acted effectively. Apparently she panicked and ran away from rather than toward a nearby shower. Instead of getting her under the shower and drenching her, the postdocs tried to douse the flames with a lab coat and water from a sink. There seems to be no evidence that UCLA trained any of the trio in what to do in case of a fire, or that Sangji received adequate instruction in how to safely perform the risky procedure that started the blaze.

The apparent failure of the university leadership and the lab chief to think about how to prevent and prepare for trouble -- to do what skilled air crews do every day -- had already resulted in non-criminal citations and fines for UCLA in 2009. It also appears to lie at the heart of the criminal charges that the Los Angeles district attorney (DA) brought in December 2011: three felony counts of willfully violating California's labor code with a resulting death. Specifically, the charges allege failure to provide required training and protective apparel and to make timely corrections of unsafe conditions that had already been brought to the university’s attention.

Debate over whether the DA should have brought those charges -- the first ever in an American academic lab safety case -- has filled the blogosphere. Some commenters believe that Harran is being "railroaded” for behavior no worse than what many other principal investigators do every day. Harran's defenders also challenge the charge of willfulness on the grounds that no one wanted to do Sangji any harm. Others assert that “this egregious case is one of the strongest ever referred” by California’s occupational safety authorities.

In a statement, UCLA termed the charges “outrageous. … The facts provide absolutely no basis for the appalling allegation of criminal conduct.” The university’s vice chancellor for legal affairs, Kevin Reed, told the Los Angeles Times that the fatal incident “was a tragedy, an unfathomable tragedy. It was not a crime."

Where is there a will?

The state investigative report did not find the fire “unfathomable.” Rather, it found the fire predictable given the highly flammable substance Sangji was working with and the inadequate techniques and equipment she used. That, legal experts tell me, is why the prosecutors see it as a crime.

In California law, the key word in this case -- “willful” -- does not have the familiar connotation of someone wanting to cause the outcome of an act. Instead, the word is a term of art; it has a specific technical meaning in the context of the law. According to the state penal code, acting “willfully …does not require any intent to violate the law, or to injure another.” Rather, it “implies simply a … willingness to commit the act, or make the omission referred to.”

The “omission” in this case is the failure to obey the provisions of the labor code that require the university to provide workers safety training and protective equipment appropriate to the work they are doing, and to make the mandated corrections to the unsafe conditions detected in an earlier inspection. In plain English, this means that if you have the opportunity to do what the law requires, such as to provide the training and safety equipment and to make the required corrections, and you choose not to do so regardless of anything you may think about the outcome, by definition you have committed a willful violation.

What I or any other commentator thinks does not matter. The accused are entitled to the full presumption of innocence until a court finds otherwise. And it appears that we’re going to have to wait a while longer for the process of judgment to get underway. Arraignment of both UCLA and Harran in Los Angeles County Superior Court was scheduled for 2 February, but the judge postponed the formal reading of charges and entering of pleas until 7 March at the defendants’ request, reportedly to allow the parties more time to conclude plea negotiations. Shortly after the charges were brought on 28 December, informed sources told Science Careers that a plea bargain appeared much more likely than either a trial or prison time for Harran. Some people now think that media attention paid to the investigative report, which was highly critical of Harran and UCLA, has complicated their efforts to reach a deal.

No pain, no change

The occupants of Flight 1549 are alive because the flight crew prepared for the foreseeable but highly unlikely consequences of a flock of geese flying into the plane’s engines, and the cabin crew prepared for the more foreseeable but still very unlikely need to ditch the plane in water. Sheri Sangji is dead and Harran and UCLA are facing criminal charges, according to the DA's allegations, because those responsible for the safety of her workplace did not prepare for the much more likely possibility that a flammable substance would ignite. It’s also clear that these circumstances are typical of each respective professional field: Data show that commercial air travel is extremely safe and getting safer, but, as the U.S. Chemical Safety Board forcefully asserted in October, the same cannot be said for academic laboratories.

Can academic science become more like commercial aviation when it comes to safety? The wisest of the blog comments I’ve seen about this case came from Harry Elston, editor of the Journal of Chemical Health & Safety. “People change when the pain of the change is less than the pain of staying the same,” he wrote on Chemistry World blog in January. “In the span of time since Sheri’s death, very little has changed," he continued. “Now comes the LA District Attorney who, ... with his actions has made the (potential) pain of staying the same intolerable and potentially career ending. I believe that the DA’s actions has [sic] been a wake up call for universities in California, but also for the Academy as a whole. Let’s hope they step up to the challenge.”

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