IBM begins cancer suit defense, yields points

02/01/2004

By MARK A. DeSORBO

SANTA CLARA, Calif.—The plaintiffs in the cleanroom cancer suit against IBM Corp. have rested their case, and at press time, Big Blue was ready to present a defense that will challenge testimony from former company nurse, Audrey Misako Crouch, who said it was an unwritten policy among the computer giant's medical staff to never utter chemicals as the cause of worker ailments.

IBM's defense presentation was scheduled to begin Jan. 22 and last two weeks. Lawyers will also cross-examine an ex-IBM manager who testified that to prevent "mass hysteria," there is an unwritten company policy discouraging them from talking to workers about possible chemical poisoning.

The plaintiffs, who will have an opportunity to call rebuttal witnesses, surprisingly declined to present additional testimony on the results of a computational fluid dynamics simulations of IBM cleanrooms where two plaintiffs, Alida Hernandez and James Moore, worked. Both were employed at IBM's disk drive and printed circuit board manufacturing facility in San Jose starting in the late 1960s and into theearly 1970s. Hernandez and Moore allege that exposure to chemicals at IBM later caused their cancers.

"We are going to bring the focus of the case back to where it belongs: on these two specific plaintiffs," IBM attorney Robert Weber told the Mercury News of San Jose. "We will demonstrate the total lack of merit to any claim that the doctors and nurses of IBM committed fraud on their fellow employees."

The elimination of the cleanroom simulation accounts may be a small, but significant victory for IBM, as its attorneys put plaintiff witness Robert Morris through six days of tedious cross-examination in an effort to minimize the data, saying it did not accurately represent the IBM cleanrooms in which Hernandez and Moore worked.

Morris, a cleanroom ventilation expert who testified that IBM did not supply cleanrooms with fresh air, was hired by the plaintiffs to help create virtual reality models of cleanrooms to simulate airflow and working conditions.

Another witness for the plaintiffs, Scott Reynolds, an expert in computational fluid dynamics, would have also endured relentless cross-examination. Defense attorneys, however, agreed to not bring in their experts to refute the virtual reality models on the condition that the lawyers for the plaintiffs did not present what would have been rather damaging testimony.

"This is a very political thing," says Reynolds, an engineer at Binghamton, N.Y.-based Computer Aided Engineering Solutions. "They put an awful lot of effort in trying to keep me off the stand."

Reynolds and Morris were also going to provide testimony on wafer spinners in cleanrooms. The machine spins substrates at high revolutions to evenly coat such noxious chemicals as isophorone, acetone, formaldehyde, xylene, ethyl, and amyl ketone on wafer surfaces. But because exhaust ports are on the outer edge of the wafer spinner, fumes are not completely evacuated from the chamber, and Morris and Reynolds concluded that fumes—trapped in the vortex created by the spinning wafer—flow upward of right into a worker's breathing space. [See related story, page 1]

That kind of testimony, Morris says, "scared IBM. They have been trying to block that from coming in, so lawyers from both sides negotiated," says Morris, president of Flow Safe Inc., a Denville, N.J.-based manufacturer of airflow and control systems. "But what really happened is they threatened to drag it out. They said 'Hey remember what we did to Morris for six days? We'll drag it out with Reynolds even longer.' And that would have bored and confused the jury."

Still, according to reports, IBM has conceded some key points to the plaintiffs.

The company has acknowledged it recorded early health complaints, including abnormal liver tests in Hernandez's case and "profuse nasal discharge" in Moore's. IBM data sheets indicate that overexposure to acetone causes systemic liver damage. Hernandez testified she sometimes used more than a gallon of acetone a day. A note in Moore's medical record specifically links his condition to chemical solvents.

Years after the complaints were logged, Hernandez developed breast cancer and Moore developed non-Hodgkin's lymphoma. The plaintiffs argue that IBM covered up the their health condition causes. Furthermore, they contend that by sending them back to work with cancer-causing chemicals, IBM caused them to become sicker: a violation of state labor law punishable by punitive damages.

IBM has admitted it did not warn Moore or Hernandez that their health problems were linked to workplace chemicals. But the company's attorneys have maintained such warnings would have been misleading because their health problems were caused by other factors. These admissions mean that the crux of the plaintiffs' case has revolved around persuading the predominantly female jury—only one of the 12 jurors is male—that IBM must have known Hernandez and Moore were suffering from systemic chemical poisoning when they worked at the Cottle Road plant.