IBM faces cancer birth defect lawsuit after decisive win in cancer case

Friday, February 27th 2004, 12:00 am

By: News On 6

SANTA CLARA, Calif. (AP) _ Bolstered by a decisive victory over two employees who claimed IBM's workplace toxins caused cancer, attorneys for Big Blue expressed confidence in their defense of the technology giant against upcoming legal attacks, including a $100 million birth defect lawsuit.

A jury ruled unanimously Thursday that two retired workers did not develop systemic chemical poisoning at IBM, and the company did not lie to the workers about the safety of their San Jose factory.

The plaintiffs, who were diagnosed with cancer in the 1990s, were seeking millions of dollars in damages.

On Tuesday, jurors in White Plains, N.Y., are scheduled to hear the case of Heather Curtis, who began working in an IBM factory in 1980. The pregnant 22-year-old dipped silicon wafers into harsh chemicals and inhaled noxious fumes that, her attorneys say, caused her daughter to be born without knees and a deformed skull. She is seeking $100 million.

Armonk, N.Y.-based IBM settled another $40 million birth defect lawsuit in 2001 by the parents of a deformed son born blind and with severe respiratory abnormalities.

IBM officials expressed confidence that they would prevail in Curtis' case and more than 200 related lawsuits brought by former employees, who say they developed cancer or chemical poisoning while working at IBM plants.

"We'll prove that IBM's workplace did not cause any of these injuries," IBM spokesman Chris Andrews said after the company won in the lawsuit brought by San Jose workers Alida Hernandez, 73, and James Moore, 62.

About 40 of the upcoming IBM lawsuits involve birth defects in children of workers or former workers. Experts say Big Blue faces steep hurdles in those jurisdictions.

"The judge in California raised the bar very high," said Hal Shaftel, a trial attorney with New York-based Proskauer Rose. "When the case goes to New York, the standard will change. This verdict clearly does not knock out the other cases. IBM will have to fight another day."

California requires most on-the-job injury claims to be settled through the state's workers compensation system. Judge Robert Baines allowed the plaintiffs to bypass the workers comp system and enter the courtroom, based on what he considered compelling pretrial evidence.

The judge's ruling exposed IBM to millions of dollars in damages, but it increased the plaintiffs' burden of proof. To win, the plaintiffs had to show that workplace conditions caused their cancers and that IBM managers knew about the dangers and lied to the workers even after they complained of bloody noses, pink eye, blackouts and fatigue for several years.

Baines forbid the plaintiffs' attorneys from presenting to jurors some of what they thought was their most compelling evidence _ including a study that showed IBM workers developed cancer at higher rates than the general population, and a "corporate mortality file" that IBM maintained for thousands of workers.

"We had to try the case with our hands tied behind our back," said plaintiffs' attorney Richard Alexander, who hasn't decided whether to appeal.

Moore began working for IBM in the 1960s and suffers from non-Hodgkins lymphoma. His attorney asked the jury to award him $11,000 per year for the rest of his life in lost wages, $26,000 in medical expenses and possibly millions in pain and suffering.

"I trusted IBM," Moore said. "If I knew then what I know now, I would have walked off the job."

Alida Hernandez, a 14-year veteran of the San Jose plant, said during three months of courtroom testimony that IBM hoodwinked workers about the foul-smelling chemical mixtures that soaked her chest and arms. Hernandez suffered from liver damage and breast cancer that resulted in a mastectomy, and she was asking for at least $8 million.

"The only thing I can say is at least I got the word out," Hernandez said. "I hope someday California will change the law so they will tell people what they are working with, and so it won't be a silent poisoning."

Robert Weber, who represented IBM, said the plaintiffs' case was built on "smoke and mirrors." He has said that Hernandez, a diabetic who was obese during her IBM career, and Moore, a former smoker who once worked with farm pesticides and fertilizers, likely developed cancer from exposure outside of the workplace.

"IBM has been a safe place to work all along," Weber said. "Unfortunately IBM employees get sick just like how everyone else gets sick."