By Michael Santarini, EE Times
December 4, 2003 (8:28 a.m. EST)
URL: http://www.eetimes.com/story/OEG20031204S0008
SANTA CLARA, Calif. — An expert witness attempted to quantify the amount of chemicals two ex-IBM employees were subjected to and an IBM attorney attempted to throw doubt into the expert's testimony, as the IBM chemical trial continued here Wednesday December 3rd.
Up until today, plaintiffs attorneys have put forward several witnesses attempting to establish that IBM exposed two ex-employees, now plaintiffs in the case, to hazardous chemicals and that IBM's medical staff hid those illnesses from those employees: Alida Hernandez, 73 and Jim Moore, 62. Today however plaintiffs called Mark Nicas, adjunct associate professor at the school of Public Health at the University of California Berkeley, in an attempt to quantify for the jury the amount of airborne chemicals Hernandez and Moore were exposed to while working at IBM's manufacturing facility on Cottle Road. To be successful in the case, plaintiffs must prove that IBM negligently concealed it exposed Hernandez and Moore to harmful chemicals, that IBM knew the two employees were becoming ill from the exposure, and that IBM hid knowledge of the illness from the employees. In addition, plaintiffs must also prove that the illness then directly led to both Hernandez and Moore contacting cancer after they left IBM. Nicas — whose resume includes an abundance of practical and academic accolades and experience in the field of industrial health including a stint at the Occupational Health and Safety Association (OSHA) — on the stand testified that he was paid as a consultant $200 an hour by plaintiffs attorneys to do research on Hernandez' and Moore's airborn exposure to chemicals. In the Hernandez part of his research, Nicas' research examined data handed over by IBM. IBM had taken 21 air samples over a period ten years from 1979-1989, placing monitors near the breathing area of disk coating workers. Nicas testified that in a full 8-hour shift, minus 45 minutes worth of breaks, Hernandez was on average exposed to air containing 35 parts per million (ppm) of acetone of), 39 ppm of xylene and 0.013 ppm of toluene. Nicas further testified that during peaks, when Hernandez was likely washing coating machines with acetone, she was likely exposed to anywhere from 250 to 1000 plus ppm of acetone. Nicas also testified that Hernandez was exposed to 0.13 ppm formaldehyde, which along with Xilene and toluene are chemical components in the coating material. For all other research Nicas did pertaining to the case, Nicas testified that he did not have adequate sampling data from IBM and had to rely on mathmatical modeling based on related data from IBM and other sources to draw conclusions about the rest of Hernandez's exposure to chemicals and Moore's exposure to chemicals, while they worked at IBM. He testified that the mathematical modeling had a variability rate of 2x to 3x actual results, which he said was an acceptable level of variation for such studies in the field. Nicas testified that based on the statistical modeling taking IBM ventilation records into account he concluded that Hernandez, while working in "disk lube" in the late 1970s, was exposed on average on a daily basis to anywhere from 43 to 118 ppm of freon and 25 ppm of isopropyl alcohol (IPA). While Hernandez worked in "single disk test" after "disk lube," Nicas concluded, that she was exposed to 8-11 ppm of freon and 6.11-17 ppm of IPA. Nicas also testified that while Moore worked in the Red Room in the late 1960s to early 1970s working in close proximity to a tank filled with Trichloral ethylene (TCE), Moore, according to Nicas' mathematical model, was exposed to 52 ppm of TCE when outside the TCE booth and was exposed five minutes a day to TCE levels of 994 ppm, when Moore was placing PCBs on rack that dunked PCBs into the TCE tank.
Nicas concluded that Moore on average was exposed to 63 ppm TCE a day, minus break time. Nicas using the mathematical model also testified that Moore, while working in the SLT coating room occasionally cleaning board coating epoxy jets, was exposed to 28 ppm of methylene chloride (MCM) and 1 ppm of Xylene on a daily basis. And, concluded Nicas, testifying on his research, Moore, while spot cleaning on the manufacturing floor in the 1980s with one half cup of IPA or freon was exposed to 6.3 ppm IPA and 4.0 ppm of freon. Nicas testified that all this research concerned only airborn exposure and did not take into account, exposure through skin contact with chemicals or contact with chemicals when chemicals get on food and are digested. He also testified that the mathematical model assumed the air coming into the room was "fresh air," not recirculated. Plaintiffs and IBM have come into odds but have yet to put forward evidence clarifying if manufacturing floor air at Cottle Road was fresh or merely recirculated. The two plaintiffs in the case, especially Hernandez, claim they commonly got the chemicals they worked with on their skin in addition to inhaling chemicals. Plaintiffs called Nicas simply to quantify the amount of airborn chemicals Moore and Hernandez were allegedly exposed to and are expected to soon produce a toxicologist expert to qualify what harm those levels of chemicals can cause people. But IBM's legal council brought in an attorney specifically to cross-examine Nicas. David DiMeglio, attorney with Jones Day, IBM's legal representation, immediately attacked the reliability of Nicas mathematical model.
DiMeglio led Nicas through a cross examination in which Nicas modified his earlier testimony, admitting that he assumed in his model that the TCE tank Moore worked with did not have a built in ventilation system. DiMeglio suggested that it did but neither side has yet answered the question definitively. Further, Nicas also admitted that for his model he assumed that ventilation ducts worked at 50 percent efficiency because Nicas did not have data on the average efficiency of air ducts. DiMeglio questioned how Nicas arrived at the 50 percent efficiency number and got Nicas to admit that the real efficiency number could have been any percentage between 0 and 100. DiMeglio also got Nicas to confirm on the stand that the study merely shows airborn exposure levels and does not examine actual absorption from inhalation-the amount chemicals Hernandez or Moore actually absorbed into their bodies on a given day's work at IBM. Nicas also testified under cross examination from DiMeglio that the mathematical modeling Nicas used for this specific case had not been validated by comparison to actual known true sampled data. Attempting to minimize any damage caused to Nicas in cross examination, Alexander asked Nicas if mathematical methods are commonly used when sufficient data isn't available-suggesting to the court that IBM either didn't provide Nicas with enough material or didn't do enough studies of worker safety. Nicas then affirmed that mathematical methods are largely accepted as reliable when insufficient sample data is not available. "When you say they are reliable, you mean they are reliable within a factor of two or three times," countered DiMeglio. Plaintiffs are expected to call another chemical expert witness tomorrow.
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