November 3, 2003 12:42 PM PST

Cancer victims go to court against IBM

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Lawyers are set to begin arguments this week in a landmark legal case that seeks to hold IBM responsible for alleged toxic chemical poisoning of employees at its manufacturing plants.

Alida Hernandez and James Moore, former IBM employees who suffered debilitating cancers after working in the company's hard-drive making facilities, charge that Big Blue should have known and should have warned them of the dangers of chemical exposure that was routine in their jobs. The case, which should see opening arguments go before a jury in California Superior Court in San Jose on Tuesday, is the first of more than 200 similar lawsuits against IBM to come to trial.

The case's outcome will likely influence many of those other cases and also similar lawsuits filed against other chipmakers, National Semiconductor among them. In addition, a verdict against IBM could pave the way for the filing of additional cases. While many of the processes and chemicals in the lawsuit have now been phased out, a loss for IBM would be a huge blow for high tech's public image as a clean, health-conscious industry.

"There is a can of worms here, which this could open up and spread around," said Roger Kay, an IDC analyst who follows the semiconductor industry. "What it does is potentially open up a whole host of lawsuits against not just IBM but other companies that have the same kind of business. There are plenty of other targets if this gets any traction."

At issue in the case is not whether the IBM employees were actually harmed by working in the hard-drive manufacturing plants, but the narrower matter of whether IBM should have warned them that they were being exposed to potentially harmful combinations of chemicals.

Workers compensation laws tend to be narrowly drawn, meaning that the defendants have to prove that IBM must have known that there was a problem in the case of the individual workers.

An IBM representative declined to comment on the specifics of the case, but the company has argued in court that it did not hide critical health issues from employees. The industry as a whole has contested critics' assertions that semiconductor workers have a higher rate of cancer than the general population.

"Protecting the health and safety of our workers is one of our highest priorities," said Molly Tuttle, a spokeswoman for the Semiconductor Industry Association, a trade group representing large chipmakers. "Based on scientific studies, we have seen no evidence linking semiconductor industry to cancer."

Following the recommendations of an industry-appointed Scientific Advisory Council, a study of internal corporate data is being performed by Johns Hopkins University to look at whether enough data exists to do an epidemiological study of cancers among semiconductor employees, Tuttle added. The university will report early in 2004, after which the actual cancer study would be performed if enough data is indeed available.

IBM has been doing its own study since 1997 and has commissioned researchers at the University of Alabama at Birmingham to study its records and to interview employees to see whether any connection exists involving working environments, particular chemicals and cancers. The results of that study are expected to go to a peer review process next year, according to the Armonk, N.Y.-based company.

Longtime critics of the semiconductor industry's manufacturing process hope that the trial pushes companies a little harder.

"An awful lot of people are looking to this not as the end of the story, but as the beginning of a process that is going to shed some light on the extent of the occupational health problem in this industry," said Ted Smith, executive director of the Silicon Valley Toxics Coalition. "What we're hoping is that not just IBM, but other high-tech companies, begin to take their occupational health obligations more seriously than they already have."

Daily dose of toxins?
In the absence of hard industrywide data, Hernandez and Moore's case is focused on specifics, telling stories of continual exposure to chemicals recognized as toxic, chemical poisoning, and a lack of response from IBM. Their attorneys contend that because the former employees mixed and used the chemicals repeatedly over a long period of time, the risks to their health were enhanced, even though each use of the chemicals was at levels deemed acceptable by regulators.

Hernandez, now a 73-year-old breast cancer survivor, was employed at IBM's San Jose facility for more than a dozen years, working with "disk coating" chemicals and additional chemicals used to clean machinery. Over time, she testified in court documents, she often spilled these chemicals on herself and used acetone to clean her hands, as instructed by her employers.

During this period, she visited the IBM Medical Clinic for various conditions, including conjunctivitis, blackouts and sleep disturbances. She was also told her liver was functioning abnormally, she said.

"At no time was I ever informed by anyone at IBM that (these problems) were manifestations of systemic chemical poisoning," Hernandez said in her court declaration. "I was just sent back to work--which made me believe that my ailments were not caused by my work conditions. In fact I was told that I was at 'no risk.'"

Moore, the second plaintiff, said he also worked with dangerous chemicals used to clean parts, bind components or provide a protective coating. Like Hernandez, he began experiencing blackouts, eye trouble and other unusual symptoms. Staffers at the IBM Medical Clinic never indicated they could be a result of his work, he said.

In 1995, Moore was diagnosed with non-Hodgkin's lymphoma, an often-fatal cancer that affects the body's immune system.

The plaintiffs' attorneys also cite the testimony of a former IBM supervisor who detailed the company's rigorous policies of gathering information about employees and told of a standard response that IBM managers were required to give employees with health concerns.

"As ordered, I told inquiring employees that 'there are no data available that IBM employees suffer death from chemical exposure, nor has there ever been a proven case of chemical exposure to any IBM employee," former IBM manager Beth Diesner-Gee said in documents filed with the court. "On several occasions, upper-level management who came to speak to my employees conveyed to me their discomfort at having to deliver that standard company line to workers who were so obviously and sincerely concerned for their health and the health of their children."

A battle over evidence
The Hernandez and Moore trial, which is expected to last several months, represents a kind of grab-bag pick from the more than 200 plaintiffs suing IBM over chemical exposures. Superior Court Judge Robert Baines asked IBM and plaintiffs to each pick two complaints through which the issues could be tested. The two people picked by IBM have had their cases dismissed, while Hernandez and Moore--the cases picked by IBM opponents--are going forward this week.

Pretrial skirmishing has already knocked out a key part of the plaintiffs' evidence. Attorneys for Hernandez and Moore had sought to use an IBM database containing records of employee deaths, contending that expert analysis of the data showed that the employees had a higher cancer rate than did the broader population.

IBM moved to have the database taken out of the evidence pool, saying that the database had been kept solely for death-benefit purposes, was based on death certificates submitted by employees' survivors, and contained no information at all about where the deceased employees had worked or whether they might have been exposed to chemicals at all. The judge agreed, and ordered the database kept out of the trial.

The plaintiffs have moved to appeal that ruling, but they will enter the opening arguments this week without that database as evidence. Instead, their key weapons are the plaintiffs themselves, and the effect their stories will have on juries.

"There has been a true conspiracy of silence between chemical companies and the industry," said Richard Alexander, the Silicon Valley attorney who is representing Hernandez and Moore. "This has been a profound fraud."

 

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