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A New York trial judge has ruled that a teenager with birth defects can sue IBM in New York under the laws of Vermont, where the young woman’s father worked in an IBM factory and allegedly contaminated his pregnant wife with chemicals. The ruling by Westchester County Supreme Court Justice Joan B. Lefkowitz establishes tort rights for Vermont plaintiffs among those suing International Business Machines Corp. in New York over chemicals at its plants in East Fishkill, N.Y., and Burlington, Vt. A New York appeals court had ruled earlier that children of fathers who worked in IBM’s New York plant cannot sue IBM alleging that they were subjected to toxic chemicals in utero. The children had claimed that they came in contact with the chemicals when their fathers had sex with their pregnant mothers. Lefkowitz said that the Vermont plaintiffs will be able to bring such claims because Vermont tort law differs from New York’s. More than 200 plaintiffs in California, Minnesota and New York have sued IBM, Union Carbide Corp. and other chemical companies over workplace safety in IBM’s plants, alleging that they or their unborn children were exposed to harmful chemicals. [NLJ, Feb. 9]. Sixty of the plaintiffs, whose cases were filed in New York, are children of former workers who allege they were born with birth defects as a result of their parents’ exposure. The latest ruling by Lefkowitz, who is presiding over all the suits, came in the case of Ashley Thibault, 16, whose father, Jon, worked for IBM in Vermont from 1984 to 1987, when she was born. Thibault suffers from severe brain damage and cannot care for herself. Her suit alleges she was exposed to toxic chemicals as a fetus when her parents had sex and when her mother laundered her father’s clothes. Last November, New York’s intermediate Appellate Division ruled in Ruffing (Pfleging) v. Union Carbide Corp., 1 A.D.3d 339, that a plaintiff with a claim similar to Thibault’s could not sue IBM. The court said that she could not state a cognizable claim under New York common law negligence or strict products liability. The appellate ruling, Lefkowitz said, means that New York law does not support a “male-mediated off-site exposure of a fetus to a toxic substance.” Nonetheless, she ruled in Kardas (Thibault) v. Union Carbide, No. 9011/00, Thibault can bring her claim because Vermont law trumps New York law in her case.

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