Workers Lose Cancer Lawsuit Against IBM

Two workers, Alida Hernandez, 73, and James Moore, 62, lost a lawsuit they filed against IBM, blaming their cancer on chemical exposures while working at the company. The former IBM employees

blamed chemicals they used to make computer components between the 1960s and 1980s for causing them to develop cancer. They sued IBM under a provision of California law that allows workers to collect punitive damages if they can prove an employer fraudulently concealed information and exacerbated an injury.

After less than two days of deliberation, the jury unanimously concluded the plaintiffs had failed to meet their first legal hurdle: proving they had suffered from systemic chemical poisoning as a result of their jobs.

The jurors declined to comment on their verdict

IBM attorney Robert Weber called the verdict "a slam dunk" that vindicated the company's medical team. "It's hard to be cleared any better than a 12-nothing verdict in less than two days after a five-month trial," he said.

This was the first of 200 lawsuits against the company, including a $100 million birth defect lawsuit beginning next week. The judge has earlier thrown out "testimony about a corporate mortality database that purportedly showed that IBM workers died of cancer at higher rates than the general population and at younger ages."

IBM and other high tech companies in Silcon Valley have a long history of environmental and workplace pollution problems.

Of all U.S. counties, Santa Clara has the most sites, 23, on the National Priorities List, commonly known as the Superfund list. Of those, 19 were contaminated by tech companies.

Normally workers can't sue their employers after suffering injuries or illnesses from on-the-job exposures. There are exceptions to that rule if it can be proven that the employer fraudulently concealed information. But this case points up the problem of proving that any specific cancer is caused by specific exposures. Although experts testified about the link the workers' exposure to their cancers, IBM attorney's cast sufficient doubt in jurors' minds.

Throughout the trial, IBM's attorneys argued that the alleged injury of "systemic chemical poisoning" was not a real diagnosis and was not reflected in the records maintained by IBM's medical department.

Those records only show one instance, in March 1967, in which Moore was treated for "profuse nasal discharge" after exposure to chemicals. IBM's attorneys maintained that his other symptoms -- blackouts, runny nose and headaches -- could have been caused by seasonal allergies.

IBM attorneys maintained that Hernandez's health problems, which first manifested in abnormal liver tests, were caused by her weight, diabetes and use of medications.

The computer company also sought to minimize the quantity of chemicals that Hernandez and Moore used on the job. During Weber's closing argument, he told the jury that Hernandez had been exposed to a potent mix of disk-coating chemicals for less time than they had spent listening to testimony.

So what we have is a situation where neither workers compensation, nor (at least until now) lawsuits provide effective tools to stop employers from poisoning workers. OSHA is also fairly ineffective in preventing chemical exposures because most of its standards are over 30 years old and don't take into account the effect of exposure to multiple chemicals.

Ultimately, the solution lies in preventing the use of these chemicals in the first place through a system that stops considering chemicals to be innocent before proven guilty. This is the essence of the REACH proposal being considered by the European Union, which I've written about here before, as well as here, here, here , here and here.

Previous Confined Space articles about the trial here and here.

Update: Worker Comp Insider has an article on the trial here.