IBM cleanroom cancer, birth defect challenges are far from over
04/01/2004
BY MARK A. DeSORBO
ARMONK, N.Y.—The score is tied up; IBM Corp. has two and so do the plaintiffs, but the ongoing cleanroom cancer and birth-defect blame game is far from over, with more than 200 cases around country that have yet to be heard by a judge and jury.
In early March, a $100 million lawsuit blaming Candace Curtis' birth defects on her mother's working conditions at an IBM plant in E. Fishkill, N.Y. was settled just as jury selection was about to begin. The terms were not disclosed. Three years ago, IBM settled a birth-defects lawsuit with the family of Zachary Ruffing, who was born blind. Both his parents worked at the E. Fishkill plant in the 1980s.
While IBM continues to deny responsibility for Curtis' injuries, Curtis, 22, has alleged that she is developmentally disabled because her mother inhaled noxious fumes while processing silicon wafers in toxic chemicals at the E. Fishkill facility. Curtis was also born without kneecaps and with a deformed skull.
IBM maintains that settling the Curtis and Ruffing cases out of court were not losses or admissions of guilt. Meanwhile, a jury in Santa Clara, Calif., in late February denied two former IBM employees what could have cost Big Blue millions of dollars in damages.
James Moore, 62, and Alida Hernandez, 73, who were diagnosed with cancer in the 1990s, say IBM kept air ducts closed and failed to remove fumes from chemicals used at the San Jose, Calif. disk drive plant, where they worked during the late 1960s and early 1970s. Hernandez and Moore alleged that exposure to chemicals there later caused their cancers.
"If I knew then what I know now, I would have walked off the job," Moore reportedly said, following the verdict.
Personal injury becomes issue
In a series of e-mail blasts to undisclosed recipients, lawyers for the California plaintiffs say the New York birth defect and California cleanroom cancer cases against IBM have one commonality, personal injury, and those cases contrasted only when it came to what evidence was presented to jurors.
William DeProspo, of the law firm of DeProspo, Petrizzo and Longo (Goshen, N.Y.), and Richard Alexander, Alexander-Hawes, indicate that under California law, they were precluded from discussing negligence and negligence-related issues.
The New York case, however, was a negligence and traditional fraud case, which was free of the narrow restraints imposed by California's Labor Code exception to the exclusivity of workers-compensation.
The reason, Alexander says, is simple: "Different states, different laws."
"In California, the plaintiffs had to proceed down a narrow alley," says DeProspo. "In New York, there is an open field for presenting evidence."
Some of the evidence that was admissible in New York but not in California includes a failure to warn that chemicals used in semiconductor and microelectronics manufacturing are known to cause cancer, birth defects and miscarriages. For example, following the IBM-Fairchild pollution of the Great Oaks Water Company in San Jose, the State of California's study of the families living in the plume showed the miscarriage rate was three times the state average.
Another piece of evidence omitted from the California case was testimony on defectively designed exhaust and hood systems "that actually pollute the work place," and poorly maintained exhaust hoods.
That evidence was supposed to be presented by Robert Morris, president of Flow Safe Inc., a Denville, N.J.-based maker of airflow and control systems, and Scott Reynolds, an expert in computational fluid dynamics.
Both plaintiff witnesses say that no fresh air was provided to cleanrooms, and that along with inadequate exhaust systems and fume hood design, spin coaters forced plumes of chemicals into worker breathing space, exacerbating poor air quality. And Hernandez, a 14-year veteran of the San Jose plant, said that during the three months of courtroom testimony, IBM misled workers about chemicals that soaked her chest and arms.
"The plaintiffs put forward their two strongest cases, and the jury ruled in favor of IBM," says IBM spokesman Chris Andrews. "Now the plaintiffs have to bring arguments to a judge as to why the remaining cases should proceed. They have no merit and should also be dismissed."
Andrews also argues that lawyers for the plaintiffs are attempting to draw two sets of claims—cancer and birth defects—together. "There are two different sets of circumstances," he says, "and to try to make a connection is just another leap on their part." Meanwhile, IBM is gearing up for two other cases, involving the families of Alyssa Pfleging and Ashley Thibault. Both families allege exposure to toxic chemicals at IBM plants in New York caused Alyssa's and Ashley's birth defects.
In two separate rulings by two New York Supreme Court judges, however, it has been determined that exposure to chemicals both before and after conception are not viable causes of action in the Pflegin and Thibault cases.
"That will be our grounds to request the cases be dismissed," Andrews says of the rulings handed down by Judge Joan Lefkowitz and Judge Robert Baines. "We empathize with any of our current and former employees and their family members who suffer from injury or illness, but that does not mean that the IBM workplace was the cause of those injuries or illnesses."
EH&S worries escalate
Allegations of fraud and negligence stemming from cancer and birth defect claims have sparked heated debate while also uncovering an environmental health and safety issue that has cleanroom workers worried and an industry on the ropes. (See Special Report, page 12.)
At the time of this report, a letter to the editor of CleanRooms from Leon Hertzson seemingly corroborated studies conducted by Morris and Reynolds that were targeted as evidence for the plaintiffs. (See cleanexchange, page 6.)
Hertzon, founder and chief executive of Long Island, N.Y.-based Clean Room Engineering and Clean Room Products, indicated that IBM and other semiconductor fabricators failed, and today, still fail to "understand that positive pressure differentials could not and still will not deal with vapor migration principles."
SIA moves ahead with epidemiological study
WASHINGTON—The Semiconductor Industry Association (SIA; www.sia-online.org) says it will proceed with a retrospective epidemiological study to investigate whether wafer fabrication workers in the U.S. chip industry have experienced higher rates of cancer than non-fabrication workers.
"After a thorough examination of records from SIA member companies—which were provided with full cooperation—we concluded that there is sufficient, reliable and relevant data to conduct a scientifically valid retrospective study of cancer risks in the semiconductor industry," Genevieve Matanoski, MD, Dr. PH, principal investigator of the Johns Hopkins University team, said in a statement.
The decision follows the completion of a study by a team from Johns Hopkins University Bloomberg School of Public Health (JHU) to determine whether it is scientifically feasible to conduct a meaningful retrospective cancer study among U.S. chip fabrication employees. Planning for the study will begin immediately.
"This study is another step in this industry's long history of addressing the health and safety of its employees," George Scalise, president of SIA. "This industry has always looked for ways to improve the manufacturing processes that lower environmental impacts and improve the health and safety conditions for our employees. The industry is encouraged with the scientific process that it has pursued in investigating this important issue, and is committed to a study that will use good science to provide sound insight."
The JHU report was commissioned by the SIA as part of its ongoing initiatives to help ensure a safe working environment for employees who manufacture semiconductors. In 1999, the SIA commissioned a Scientific Advisory Committee, an independent panel of workplace health experts, to evaluate the potential for increased cancer risks among workers within the U.S. semiconductor industry. The committee recommended that the industry investigate whether sufficient historical data exists to conduct a scientifically valid retrospective epidemiological study. JHU was selected for this project. The SIA will keep the public posted of these and other project milestones on its Web site.