Monday, October 13, 2003

Worker Trial Against IBM Toxic Chemical Exposures Begins

This will be an interesting case:
Working in I.B.M.'s plant in San Jose, Calif., in the 1970's and 1980's, Alida Hernandez thought she had the dream job, assembling computer disk drives for what was then the most prestigious company in the electronics industry.

But eventually, Ms. Hernandez said, the chemicals she worked with caused her to lose her sense of smell. "I thought it was just part of the job,'' she said. Then two years after she retired in 1991, Ms. Hernandez discovered she had breast cancer and eventually underwent a mastectomy.

James Moore worked in the San Jose disk drive factory for nearly 30 years. In his first four years there, he said, he worked with chemicals that he would later learn were toxic. In 1995, he contracted a largely incurable form of non-Hodgkins lymphoma and has undergone radiation treatment. Mr. Moore, who has retired, says he sometimes has trouble breathing.

Neither Mr. Moore nor Ms. Hernandez can say for certain how they contracted cancer, but both say they know one thing for sure: Through much of their working lives, they were exposed to chemicals on the job that at times made them feel sick, often landing them in the offices of I.B.M.'s on-site doctors who they say would treat them and send them back to work.
And there's more to come:
The suit is the first of its kind in the electronics industry to go to trial. Two hundred fifty similar cases have been filed against IBM -- primarily in New York and Vermont, where Big Blue has semiconductor-manufacturing plants, and in Minnesota.
The workers have already suffered a serious setback – even before the trial begins:
Although the trial has yet to begin, the plaintiffs' case has already suffered a serious setback: In pre-trial hearings this week, the judge granted IBM's motion to exclude its "corporate mortality file," a database of death records of 30,000 employees over a 30-year period. The plaintiffs had this database analyzed by Boston University School of Public Health epidemiologist Richard Clapp, who wrote in a declaration that IBM employees were "dying disproportionately of cancer at a much younger age" than the general population.

IBM contended that the plaintiffs' use of these records, plus an epidemiologist's analysis of them, does not follow any scientific method. “It doesn't show any relation between chemicals and disease,” said IBM spokesman Bill O'Leary.
I haven’t read the judge’s actual decision. One article with more information about this decision stated that the judge also found that “was irrelevant and would be prejudicial and confusing to the jury.”

These accounts are rather disturbing, mainly because of the judge’s lack of understanding of epidemiology. Epidemiology is the study of disease in populations. Epidemiology is not intended to show causation – e.g. that a specific chemical caused a specific disease. It only shows that certain populations may have a higher rate of certain kinds of cancers than the general (unexposed) population. Epidemiologists then attempt to find possible explanations based on previous exposures. It’s not an exact science, but it’s certainly relevant.

And the analysis would be “confusing to the jury?” Why not let the jury decide that.

This is also disturbing as long time readers of Confined Space know because it harkens back to recent warnings of the effect of the Daubert Decision.

Last June, I reviewed a report released by a group of experts in the legal and scientific community entitled Daubert: The Most Influential Supreme Court Ruling You've Never Heard Of:

Daubert was originally intended to assist judges in determining what evidence could be admitted into a trial. But as the authors explain:
The 1993 Daubert ruling directed federal judges to act as "gatekeepers" in the courtroom, using a standard that requires expert testimony to be both reliable and relevant before allowing it to be presented to juries. However, over the past 10 years, some judges have misinterpreted and broadened the reach of Daubert. Some have excluded scientific opinions when there is (or appears to be) disagreement among legitimate scientists; while others pick apart each piece of the scientific evidence presented by an expert rather than assessing the evidence as a whole, the way scientists do.
What this means is that when corporate attorneys manage to cloud the science and confuse the judges, the evidence gets labeled as “junk science” and good cases often get dismissed by the judge before they even get to a jury. Victims of toxic chemicals and drugs are the losers.

This seems to fit that analysis to a "T."

Another problem that the plaintiffs have is that workers are generally not allowed to sue their employer. Workers Compensation is generally the “exclusive remedy.”
Given this stipulation, lawyers for the workers will have to prove that I.B.M. was aware that employees were being sickened by their jobs and chose to cover it up. The case against I.B.M. is one of concealment, akin to a fraud case, rather than negligence.
Stay tuned.