Posted on Mon, Oct. 13, 2003
article on-line
JURY SELECTION STARTS TUESDAY IN S.J. WORKERS' CANCER CASES
By Therese Poletti
Mercury News
Jury selection is scheduled to begin Tuesday in the first major case to put the electronics manufacturing industry on trial for concealing knowledge of harmful working conditions in its early clean rooms.
Computer behemoth IBM is being sued in Santa Clara County Superior Court by two former workers, Alida Hernandez and James Moore, who contend they got cancer from systemic chemical poisoning, after being exposed to hazardous chemicals in the disk-drive-manufacturing clean room in the company's Cottle Road plant in San Jose.
Because of the potentially enormous liability that might eventually extend to other electronics manufacturers who had similar operations, the case is being watched carefully across the chip industry.
The suit is the first of its kind in the electronics industry to go to trial. Two hundred fifty similar cases have been filed against IBM -- primarily in New York and Vermont, where Big Blue has semiconductor-manufacturing plants, and in Minnesota. The San Jose case also includes suits filed by Hernandez and Moore and two other former IBM workers against chemical companies Shell Oil, Union Carbide and Dexter Chemical.
``This is, by far, the largest case of its kind,'' said Ted Smith, executive director of the Silicon Valley Toxics Coalition. ``IBM was one of the first companies in this business, so they were, frankly, making a lot of the early mistakes.''
Armonk, N.Y.-based IBM was a pioneer in almost all areas of electronics. It opened its first San Jose research facility in 1952, eventually moving it to Cottle Road.
This case and the other lawsuits against IBM will be the first to possibly determine if many of the industry's pioneering researchers and assembly line workers -- many of whom had direct contact with hazardous chemicals such as arsenic, Freon, acetone, benzene and others -- were guinea pigs for a burgeoning industry.
``If you were exposed to something that takes 30 years to fester, you might not have a clue until many years later,'' said Bill Meyer, a co-founder of the Chelsie Group, a San Jose-based worker-safety advocacy group.
Meyer said that in the 1970s and 1980s, there was a sort of macho mentality among some plant workers. ``There was this whole mentality of the old cowboy.''
IBM's cases are the first to go to trial, but they are not the only ones pending against the electronics industry. National Semiconductor of Santa Clara also has been sued by employees who allege they got cancer from working in National's chip-making plants. That case, which was filed 3 1/2 years ago and is now a class action, is in the discovery phase. National Semiconductor has said it believes the case against it is without merit.
IBM says it has done nothing wrong, and that these cases should be heard by the Workers Compensation Board. It also has argued that there is no legal or scientific evidence to prove that these workers got cancer because of their work at IBM. Last week, it asked the 6th District Court of Appeal to rule on whether there was enough evidence to try the cases of Hernandez, who has breast cancer, and Moore, who has non-Hodgkin's lymphoma.
To win a court case, the plaintiffs must prove that IBM knew that its workers were suffering from chemical poisoning and concealed that fact from them.
Attorneys who try these so-called ``toxic tort'' lawsuits said the burden of proof on the plaintiffs is tough.
``To prove that fraudulent claim, you have to prove the plaintiff has an occupational disease, then you have to prove that the employer knew that he had the occupational disease, and that the employer received a diagnosis of the occupational disease, and that the employer concealed the disease from the employee,'' said Raphael Metzger of the Metzger Law Group in Long Beach.
Metzger has a case in which his client, Theodore Lewis, a former contractor, is suing IBM and his employer, alleging that he got mycobacterium lung disease from working near a cooling tower that emitted toxins at Cottle Road in San Jose.
Richard Alexander and Amanda Hawes are the two lead counsels at Alexander, Hawes & Audet in San Jose, which represents the plaintiffs in the case that starts Tuesday.
``All these toxic tort cases are very hard to prove. But Richard and Mandy are very experienced toxic tort lawyers and they can do it,'' Metzger said.
IBM is represented by Jones Day, the firm that represented R.J. Reynolds Tobacco in the smoking-related class-action suits.
Although the trial has yet to begin, the plaintiffs' case has already suffered a serious setback: In pre-trial hearings this week, the judge granted IBM's motion to exclude its ``corporate mortality file,'' a database of death records of 30,000 employees over a 30-year period. The plaintiffs had this database analyzed by Boston University School of Public Health epidemiologist Richard Clapp, who wrote in a declaration that IBM employees were ``dying disproportionately of cancer at a much younger age'' than the general population.
IBM contended that the plaintiffs' use of these records, plus an epidemiologist's analysis of them, does not follow any scientific method. ``It doesn't show any relation between chemicals and disease,'' said IBM spokesman Bill O'Leary.
The trial is expected to last for at least two months. It has been moved from San Jose to the Santa Clara courthouse on Homestead Road to provide more space for all the parties involved. The evidence will range from detailed medical testimony to architectural analysis of the Cottle Road facilities.
If IBM loses, it would set a precedent for the other cases filed against it, and could open the floodgates for other similar lawsuits. The company has already settled one toxics case in New York.
``If these trials really do end up in findings that the exposure caused these kinds of health problems, then I do think there will be enormous financial pressures on these companies, saying let's stop stalling and fix the problem,'' said Smith of the Silicon Valley Toxics Coalition.
Copyright 2003 - San Jose Mercury News
