Following break, case heats up again

01/01/2004

BY HANK HOGAN

SANTA CLARA, Calif.—After slogging through more than a month of expert testimony and sometimes dramatic legal proceedings, jurors in the ongoing trial against the IBM Corp. (Armonk, N.Y.) and several chemical companies took a two-week break for Christmas.

They might well need it. The trial is expected to begin again with the New Year and continue for some time.

At issue is the contention by the plaintiffs and former IBM employees James Moore and Alida Hernandez that long-term exposure to chemicals, such as acetone, used in cleanroom processing lead to cancer. And in IBM's case, the plaintiffs claim that the company knew of the problem and sent workers back in an unsafe environment anyway.

This is the first case to reach trial in a list that numbers in the hundreds. All allege that exposure to chemicals in IBM cleanrooms in Silicon Valley, Minnesota, and New York caused various cancers and other health problems. As such, semiconductor and chemical industries are watching the trial closely.

IBM has refused requests for interviews, saying its hearts and prayers are with IBM employees and their families, who are battling cancer. The company also continually reiterates that there is "no scientific evidence linking cancer to chemical use in any IBM work environment."

"We stand by our original statement, which is these cases are certainly tragic but there's no scientific evidence to support the claims," states IBM spokeswoman Kendra Collins.

In an attempt to prove their point, the plaintiffs have put various experts and former IBM employees on the stand. All are intended to show that the company knew of employee complaints and abnormal health test results. The company also knew, allege the plaintiffs, that the chemicals being used in the disk-drive cleanroom could cause chemical poisoning and cancer. Interestingly, under California law, IBM is not responsible for the initial problem, only for knowingly continuing the exposure.

A doctor specializing in toxicology told jurors that Moore and Hernandez had suffered "systemic chemical poisoning" while working at IBM's San Jose plant. Toxicologist Daniel Teitelbaum, who previously has consulted for both the U.S. Occupational and Safety and Health Administration and IBM, testified that his review of the plaintiffs' medical records showed that Hernandez and Moore had received doses of toxins strong enough to trigger illness. Hernandez had breast cancer and Moore is being treated for non-Hodgkins lymphoma.

A Boston University epidemiologist says cancers among IBM workers are well above national averages.

"For brain cancer, four times higher. For multiple myeloma, even higher than that, six times higher, but that's a very rare cause of death," Richard Clapp said in an interview with CBS' 60 Minutes II aired Dec. 10. "For breast cancer, twice as high as would have been expected in the general population.

The plaintiffs' lawyers, the firm Alexander, Hawes & Audet LLP of San Jose, also used some showmanship to try and persuade the jury. In a somewhat controversial move, plaintiff's attorney Richard Alexander held up a large color photo of Alida Hernandez and her mastectomy scars. In published statements, Amanda Hawes, a partner in the law firm, said that this was done to show the jury in a clear way just what the injury is that's at the center of the trial.

"The fact is that carcinogens were used at IBM for a long period of time and the workers were never told," Alexander said in the 60 Minutes II segment. "IBM did it because it knew that if it told the truth to its workers, at the levels of exposure that these people worked with, that they would lose their workforce."

At the time of this report, an attorney for IBM asked for a mistrial after a juror indicated she had seen a 60 Minutes II report featuring allegations that the computer company knowingly poisoned workers in its cleanrooms.

After spending several hours questioning the jurors and listening to attorneys from both sides, Santa Clara County Superior Court Judge Robert Baines allowed the trial to proceed.