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A woman born with birth defects can sue IBM and chemical manufacturers for fraud even though she wasn’t born when the company allegedly lied to her mother about workplace safety, a divided New York appeals court has found. The majority of a 3-2 panel of the Appellate Division, 2d Department, said it did not matter that the woman herself could not, as a fetus, have possibly relied on allegedly deceptive statements made by International Business Machines Corp. The court said in Ruffing v. Union Carbide Corp., No. 2001-07927, that under numerous holdings in New York, fraud could exist where a false representation was made to a third party, resulting in an injury to a plaintiff. In this case, the court said, allegations that IBM told the mother that her unborn child would not be harmed by chemicals in its East Fishkill, N.Y., plant was enough to sustain a fraud claim by the child, now 22 years old. In a dissenting opinion, two judges said a trial court justice in Westchester County, N.Y., was correct to dismiss the claim, since it is impossible under state law to recover damages for defrauding an unborn child. Time bar holds Both the majority and the dissent agreed that the mother, Heather Curtis, could not herself assert fraud claims against IBM. Curtis’ negligence claims have been ruled time-barred, and the court said she could not use fraud allegations to circumvent the statute of limitations. Curtis and her daughter, Candace, are just two of more than 200 plaintiffs in New York, California and Minnesota who have sued IBM over workplace safety at its plants. More than half of those claims have been consolidated and are pending before Westchester County Supreme Court Justice Joan B. Lefkowitz, with the first trial date set for March 2004. So far, IBM and its chemical suppliers have settled one birth defect case stemming from the East Fishkill plant for an undisclosed amount, though the companies did not admit any wrongdoing. IBM and its suppliers maintain the claims against them are baseless. Curtis began working at the East Fishkill plant in 1980 and alleges that she told superiors she was pregnant. She claims she kept her job at the semiconductor plant, where she worked around chemicals, after she was assured that no harm would be done to her unborn child. Candace was born with profound defects. She has no knees and suffers from microcephaly, meaning that her skull is too small for her brain.

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