Lawyers are set to begin
arguments this week in a landmark legal case that seeks to hold IBM
responsible for alleged toxic chemical poisoning of employees at its
manufacturing plants.
Alida Hernandez and James Moore, former IBM employees who suffered
debilitating cancers after working in the company's hard-drive making
facilities, charge that Big Blue should have known and should have
warned them of the dangers of chemical exposure that was routine in
their jobs. The case, which should see opening arguments go before a
jury in California Superior Court in San Jose on Tuesday, is the first
of more than 200 similar lawsuits against IBM to come to trial.
The case's outcome will likely influence many of
those other cases and also similar lawsuits filed against other
chipmakers, National Semiconductor among them. In addition, a verdict
against IBM could pave the way for the filing of additional cases.
While many of the processes and chemicals in the lawsuit have now been
phased out, a loss for IBM would be a huge blow for high-tech's public
image as a clean, health-conscious industry.
"There is a can of worms here, which this
could open up and spread around," Roger Kay, an IDC analyst who
follows the semiconductor industry, said. "What it does is
potentially open up a whole host of lawsuits against not just IBM but
other companies that have same kind of business. There are plenty of
other targets if this gets any traction."
At issue in the case is not whether the IBM
employees were actually harmed by working in the hard-drive
manufacturing plants, but the narrower issue of whether IBM should
have warned them that they were being exposed to potentially harmful
combinations of chemicals.
Workers compensation laws are fairly narrowly
drawn, requiring the defendants to prove that IBM must have known that
there was a problem in the case of the individual workers.
An IBM representative declined to comment on the
specifics of the case, but the company has argued in court that it did
not hide critical health issues from employees. The industry as a
whole has contested critics' assertions that semiconductors workers
have a higher rate of cancer than the general population.
"Protecting the health and safety of our
workers is one of our highest priorities," said Molly Tuttle, a
spokeswoman for the Semiconductor Industry Association, a trade group
representing large chipmakers. "Based on scientific studies, we
have seen no evidence linking semiconductor industry to cancer."
Following the recommendations of an
industry-appointed Scientific Advisory Council, a study of internal
corporate data is being performed by Johns Hopkins University to look
at whether enough data exists to do an epidemiological study of
cancers among semiconductor employees, Tuttle added. The university
will report early in 2004, after which the actual cancer study would
be performed if enough data is indeed available.
IBM has been doing its own study since 1997 and
has commissioned researchers at the University of Alabama at
Birmingham to study its records and to interview employees to try to
see if any connection between working environments, particular
chemicals and cancers exist. The results of that study are expected to
go to a peer review process next year, according to the Armonk, New
York-based company.
Longtime critics of the semiconductor industry's
manufacturing process hope that the trial pushes companies a little
harder.
"An awful lot of people are looking to this
not as the end of the story, but as the beginning of a process that is
going to shed some light on the extent of the occupational health
problem in this industry," Ted Smith, executive director of the
Silicon Valley Toxics Coalition, said. "What we're hoping is that
not just IBM, but other high-tech companies, begin to take their
occupational health obligations more seriously than they already
have."
Daily dose of toxics
In the absence of hard industrywide data,
Hernandez' and Moore's case is focused on specifics, telling stories
of continual exposure to chemicals recognised as toxic, chemical
poisoning, and a lack of response from IBM. Their attorneys contend
that because the former employees mixed and used the chemicals
repeatedly over a long period of time, the risks to their health were
enhanced, even though each use of the chemicals was at levels deemed
acceptable by regulators.
Hernandez, now a 73-year-old breast cancer
survivor, was employed at IBM's San Jose facility for more than a
dozen years, working with "disk coating" chemicals and
additional chemicals used to clean machinery. Over time, she testified
in court documents, she often spilled these chemicals on herself and
used acetone to clean her hands, as instructed by her employers.
During this period, she visited the IBM Medical
Clinic for various conditions, including conjunctivitis, blackouts and
sleep disturbances. She was also told her liver was functioning
abnormally, she said.
"At no time was I ever informed by anyone
at IBM that (these problems) were manifestations of systemic chemical
poisoning," Hernandez said in her court declaration. "I was
just sent back to work--which made me believe that my ailments were
not caused by my work conditions. In fact I was told that I was at 'no
risk.'"
Moore, the second plaintiff, said he also worked
with dangerous chemicals used to clean parts, bind components or
provide a protective coating. Like Hernandez, he began experiencing
blackouts, eye trouble and other unusual symptoms. Staffers at the IBM
Medical Clinic never indicated they could be a result of his work, he
said.
In 1995, Moore was diagnosed with non-Hodgkin's
lymphoma, an often-fatal cancer that affects the body's immune system.
The plaintiffs' attorneys also cite the
testimony of a former IBM supervisor who detailed the company's
extraordinarily rigorous policies of gathering information about
employees and told of a standard response that IBM managers were
required to give employees with health concerns.
"As ordered, I told inquiring employees
that 'there are no data available that IBM employees suffer death from
chemical exposure, nor has there ever been a proven case of chemical
exposure to any IBM employee," former IBM manager Beth Diesner-Gee
said in documents filed with the court. "On several occasions,
upper-level management who came to speak to my employees conveyed to
me their discomfort at having to deliver that standard company line to
workers who were so obviously and sincerely concerned for their health
and the health of their children."
Evidence or not?
The Hernandez and Moore trial, which is expected
to last several months, represents a kind of grab-bag pick from the
more than 200 plaintiffs suing IBM over chemical exposures. Superior
Court Judge Robert Baines asked IBM and plaintiffs to each pick two
complaints through which the issues could be tested. The two people
picked by IBM have had their cases dismissed, while Hernandez and
Moore--the cases picked by anti-IBM forces--are going forward this
week.
Pretrial skirmishing has already knocked out a
key part of the plaintiffs' evidence. Attorneys for Hernandez and
Moore had sought to use an IBM database containing records of employee
deaths, contending that expert analysis of the data showed that the
employees had a higher cancer rate than did the broader population.
IBM moved to have the database taken out of the
evidence pool, saying that the database had been kept solely for
death-benefit purposes, was based on death certificates submitted by
employees' survivors, and contained no information at all about where
the deceased employees had worked or whether they might have been
exposed to chemicals at all. The judge agreed, and ordered the
database kept out of the trial.
The plaintiffs have moved to appeal that ruling,
but they will enter the opening arguments this week without that
database as evidence. Instead, their key weapons are the plaintiffs
themselves, and the effect their stories will have on juries.
"There has been a true conspiracy of
silence between chemical companies and the industry," said
Richard Alexander, the Silicon Valley attorney who is representing
Hernandez and Moore. "This has been a profound fraud."
