X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A Santa Clara County, Calif., jury has found that chemicals used in IBM clean rooms didn’t sicken two former workers who later contracted cancer. The unanimous defense verdict, returned on the second day of deliberations, comes after a highly publicized, five-month trial that was expected to influence nearly 240 additional cases filed against IBM by sick workers and their families in California, New York and Minnesota. Plaintiffs’ attorney Richard Alexander had identified the two plaintiffs, Alida Hernandez and James Moore, as two of his most promising. The eleven-woman, one-man jury was given a seven-question verdict form for each plaintiff. But the jury answered just the first question, concluding that Hernandez and Moore did not suffer from on-the-job systemic chemical poisoning. Hernandez and Moore, who both worked at IBM’s San Jose facility for more than a decade, alleged their exposure to chemical mixtures on the job made them sick, but company medical staff ignored symptoms and sent them back to work, resulting in cancers years later. To win damages, the plaintiffs had to prove that they suffered from chemical exposures, that IBM knew of the illnesses but concealed the truth, and that the pair contracted cancer as a result. “It’s a great testament for the jury system,” said Robert Weber, the Jones Day partner representing IBM. “It’s very heartening they cut through the smoke. They cut through the mirrors. They did what they had to do.” An attorney for the plaintiffs, Amanda Hawes, said California law makes it too easy for companies to risk the lives of workers with no consequences. “That’s a very unfortunate fact of the legal system. It’s out of control,” said Hawes. The defense verdict wasn’t unexpected. Alexander and Hawes were relying on one cause of action to make the case. The fraud claim was the only way around the state’s workers’ compensation law, which bars most workplace tort claims against employers. In a key pretrial setback, Santa Clara Superior Court Judge Robert Baines also excluded a mortality file, maintained by IBM, that plaintiffs’ experts insisted showed that IBM workers suffered from cancers at a higher rate than the general population. The two plaintiffs also had a host of health problems, including diabetes, smoking and obesity, which defense experts said might have contributed to the development of cancers. The plaintiffs’ case relied heavily on medicals records obtained from IBM that showed Hernandez, 73, had elevated liver enzymes for several years and Moore, 62, had one incident of a “profuse nasal discharge.” Hernandez was later diagnosed with breast cancer and had a mastectomy. Moore is diagnosed with non-Hodgkin’s lymphoma. The pair testified about slogging through chemicals and then feeling nauseated, losing their sense of smell and other effects. A former IBM nurse testified that Big Blue told medical staff to look for other lifestyle explanations for the illnesses and a handful of experts — including one California OSHA doctor — told jurors it was 70 percent to 90 percent likely that work at IBM contributed to their cancers. But Weber and co-counsel Mary Ellen Powers cast doubt by examining the plaintiffs’ other health problems. Weber also called IBM medical staff and experts to testify that the chemicals the plaintiffs mainly handled — isopropyl alcohol, or rubbing alcohol, and acetone — weren’t dangerous unless ingested. Weber, a top trial lawyer at Jones Day who has represented tobacco companies, took a down-home approach with the jury, praising the San Jose community, as well as IBM doctors and staff. And he chastised Alexander for using the “litigation tactic” of attacking the reputations of IBM’s medical staff. Weber also seemed to score points with the jury when he pointed out “half-truths” that Alexander had presented to the jury. During opening statements, Alexander had shown jurors part of a 1976 IBM medical survey where plaintiff Moore had reported having allergies, dizziness and blurred vision. Alexander described them as classic symptoms of chemical poisoning. But during closing, Weber told the jury: “You have to wait for me to get up and show you the form wasn’t complete,” he told the jury. He showed them the full form. “These were symptoms from a tetanus shot in 1955,” he pointed out. The allergies, he noted, were seasonal hay fever. Weber also made the most of the narrow window open to the plaintiffs because of the workers’ compensation exclusivity issue. “It’s not a claim about a hazardous workplace,” Weber said. “It’s not a claim of alleged failure to warn or instruct employees, concealment or aggravation of a condition. It’s not about negligence.” Alexander, with Alexander Hawes & Audet, presented himself as a crusader pushing for the little guy in need of protection. Alexander stressed that Hernandez had only an eighth-grade education and didn’t know the danger she was in. Moore, he told the jury, was “not the sharpest knife in the drawer.” After the verdict was read Thursday, jurors refused to talk to reporters. But Hernandez said she accepted the verdict. “All I know is they did the best they could. That’s all I can ask for,” Hernandez said. “At least we brought it out in the open.” Hawes predicted the plaintiffs will have better luck when they proceed against IBM with a birth defects case set to begin trial in New York next week. This article originally appeared in The Recorder , a publication of American Lawyer Media.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.