Ex-workers' case wrapping up
Benjamin Pimentel, Chronicle Staff Writer
Monday, January 19, 2004
The IBM toxics trial enters a new phase this week as Big Blue gets its chance to present to jurors its answer to charges that the company knowingly exposed two workers to cancer-causing chemicals.
Attorneys for ex-employees Alida Hernandez and Jim Moore are expected to rest their case Tuesday, more than two months after the civil trial began in the courtroom of Santa Clara Superior Court Judge Robert Baines.
"We're home free," said lawyer Richard Alexander, who represents Hernandez and Moore. "Was there systemic poisoning? Absolutely no doubt for both of them. When you put it all together, it is documented in the records, so IBM can't say it didn't know. IBM knew."
But lawyer Robert Weber, who represents IBM, described the plaintiffs' case as weak and misleading.
"I don't believe they put on one witness that withstood cross-examination, " he said. "There's been a lot of ball hiding, a lot of dissembling and I think the jury is seeing through it. ... It's time to get the case back where it belongs -- which is the specific facts and the specific circumstances about these specific people."
Hernandez and Moore both testified that they routinely worked with highly toxic chemicals, such as Freon, acetone and isopropyl alcohol during their years of service at IBM's former disk drive plant in San Jose.
Two other former workers, including ex-IBM nurse Audrey Crouch, testified that the company had instructed them not to link worker health complaints to the solvents used in manufacturing.
Last week, the chief of the state body in charge of investigating worker health issues said he believes the plaintiffs' illnesses were caused by their work at IBM.
Still, the plaintiffs face a high hurdle.
Typically, employees who get injured can get compensation from negligent employers through a workers' compensation process.
But Hernandez and Moore, both of whom were diagnosed with cancer, must prove that Big Blue was guilty of fraud, which is a tougher case to make.
At issue in the trial is whether they became sick because of their work at the factory and whether IBM knew about their illnesses -- through tests and diagnoses performed by its medical staff -- but did not disclose to the plaintiffs the link between their health problems and their jobs. The plaintiffs are seeking unspecified damages.
Striving to keep the case focused, the judge disallowed a former IBM manager from testifying because she did not directly deal with Moore and Hernandez.
IBM attorneys repeatedly complained that Alexander, the plaintiffs' lawyer, often went beyond the scope of the case. The trial may be the first of many involving former IBM employees who worked at that plant.
The case is being closely monitored by advocacy groups, including the Silicon Valley Toxics Coalition, that accuse technology companies of negligently exposing their workers and communities to toxic chemicals.
"The plaintiffs want to spend their time trying to make a case against electronics manufacturing, and IBM and the industry in general," Weber said. "They used that stale stable of activist warhorses that all come from the Silicon Valley Toxics Coalition."
Referring to Amanda Hawes, a longtime activist and her husband, Ted Smith, who is executive director of the Silicon Valley coalition, he added: "It's Ms. Hawes and her husband's crew and fellow travelers. They've been at this for years. They're using this case as an advocacy piece to air their views."
Weber said the case is "a textbook example of why businesses are troubled by the climate in California."
"If I can talk to the governor about anything, it is that if California wants to know why it's not creating as many jobs as they like, all they have to do is look at this case," he said.
"It should not have gone to trial. No company should be forced to spend time, money and effort simply because a lawyer files a creative piece of paper in trying to get around the workers' comp system. This wouldn't happen in other states -- and it shouldn't happen here."
But Alexander argued that the case has shown the limitations of current laws and regulations when it comes to protecting workers.
He cited the testimony of Dr. Robert Harrison, the chief of the state's occupational health surveillance program, who said levels of permissible exposure for many toxic chemicals set by industry exceed levels set by the medical community in connection with preventing cancer.
"They mislead innocent, unsophisticated people into believing that there's a permissible exposure level that will protect them against cancer, when that is not true," Alexander said.
"These workers never had an advocate, and they had no bargaining power," he said. "There was no one there to advocate for them."
E-mail Benjamin Pimentel at bpimentel@sfchronicle.com.
©2004 San Francisco Chronicle
