IBM CANCER LAWSUIT HEADS TO JURY
IBM CANCER LAWSUIT HEADS TO JURY
2004-02-26 at 10:19:00 am #6235
IBM Cancer Lawsuit Heads to Jury
SANTA CLARA, Calif. (Feb. 25) – In a trial that could have sweeping consequences for the semiconductor industry, lawyers have portrayed IBM Corp. as a deceitful exploiter of workers who now suffer the ravages of cancer-causing chemicals used in disk-drive factories.
But in closing arguments Tuesday, the Armonk, N.Y.-based computer giant reminded a state jury that it was a pioneer in employee health – and repeated its contention that there is no conclusive proof that work conditions were responsible for the plaintiffs’ illness.
A verdict in the 6-year-old case, brought by two retirees diagnosed with cancer in the 1990s, could come as early as this week.
Jurors in Santa Clara County Superior Court must decide whether IBM engaged in “fraudulent concealment,” then determine the amount of money, if any, the workers should receive.
The trial, which is the first of more than 200 similar lawsuits against IBM, has riveted the semiconductor industry, where hundreds of thousands of workers don “bunny suits” and use chemicals to protect microchips from airborne particles, fingerprints or other impurities in dust-free “clean rooms.”
Retiree James Moore, 62, who began working for IBM in the San Jose disk-drive plant in the 1960s and suffers from non-Hodgkins lymphoma, is suing IBM for unspecified damages. His attorney is asking jurors to award him $11,000 per year for the rest of his life in lost wages, $26,000 in medical expenses and possibly millions of dollars in pain and suffering.
Alida Hernandez, 73, a 14-year veteran of IBM’s San Jose plant, said her employer intentionally hoodwinked workers about the foul-smelling chemical mixtures that soaked her chest and arms. Hernandez, who had liver damage and breast cancer that resulted in a mastectomy, is asking for at least $8 million in disfigurement, pain and suffering and medical expenses.
“The evidence is overwhelming that Jim and Alida were injured, and IBM’s doctors knew it and never said anything to them and sent them back to work,” plaintiffs’ attorney Richard Alexander said.
Alexander cited dozens of tests where IBM doctors measured plaintiffs’ liver enzymes and blood count but never suggested that their sinus problems, hepatitis, blackouts, bloody noses, pink eye and other disorders were the symptoms of chemical poisoning.
Robert Weber, an attorney representing IBM, dismissed the notion that acetone, benzene, formaldehyde, xylene and other chemicals in IBM plants caused chemical poisoning or cancer. He said the plaintiffs’ case was “pure hokum,” and the conclusions of epidemiologists and occupational doctors who appeared as witnesses were “a mountain of speculation.”
For the plaintiffs to prevail, nine of 12 jurors must agree that on-the-job chemicals caused systemic chemical poisoning, and IBM doctors knew what the symptoms meant but concealed it from workers.
Since opening arguments in November, plaintiffs’ attorneys have argued that some disk-coating chemicals were so toxic that they stained supposedly stainless steel buckets, and IBM’s fresh air vents were located so close to the chemical exhaust ducts that workers inhaled a host of dangerous compounds.
The company has argued the relative height of the ducts mattered more than their proximity, and noted it encouraged workers to visit with staff medical experts for testing and treatment of any disorder starting in the 1960s – long before wellness checks and health fairs became common practices.
IBM is facing about 200 similar lawsuits in Silicon Valley, New York and Minnesota. About 40 of those cases, including one that will go to court March 2 in White Plains, N.Y., involve birth defects in children of IBM workers.
Because of the heart-wrenching anecdotes from cancer victims and relatives, many companies settle such cases out of court – sometimes for hundreds of millions of dollars. Several IBM chemical suppliers initially named in Moore and Hernandez’s case reached settlements last year.
But IBM, which last year sought to dismiss the case, has vowed to appeal if it loses. Alexander said the plaintiffs would consider appealing, too.
On Friday, Judge Robert Baines ruled that jurors could not award punitive damages to the plaintiffs because the plaintiffs had not proven that IBM had an overarching policy that encouraged managers and executives to conceal health information from workers.
Hal Shaftel, a partner and trial attorney with New York-based Proskauer Rose, said that small victory for IBM and the plaintiffs’ lack of a “smoking gun” – evidence of massive fraud or conspiracy among IBM executives – bodes well for Big Blue.
“IBM seems on stronger footing four months into this trial than before the trial, when there were big question marks about what would be revealed in the courtroom,” said Shaftel, who has no ties to either side. “The absence of any dramatic proof of evidence in the courtroom really undercuts the plaintiffs’ case