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Plaintiffs seeking damages for alleged toxic chemical poisoning at an East Fishkill, N.Y., semiconductor factory will have to show they were exposed to a harmful level of the substances, a Westchester County, N.Y., Supreme Court judge ruled last week. The decision is expected to set the ground rules for nearly 200 claims against International Business Machines and chemical manufacturers. The ruling was handed down in a case where two workers said that on-the-job exposure to chemicals resulted in birth defects to their son in the mid-1980s. In Ruffing v. Union Carbide Corp., 4049/97, Justice John P. DiBlasi rejected the plaintiffs’ assertion that proof of the birth defects themselves should support the conclusion that there has been exposure to a harmful level of the chemical, as in asbestos liability cases. “[I]njury, no matter how horrible in dimension, cannot substitute for evidence that another is responsible for its cause,” DiBlasi wrote. “Thus, notwithstanding the emotional weight behind their arguments, plaintiffs cannot be granted an exception from the proof standards that apply to all others harmed in the manner that is alleged in this case.” Soon after DiBlasi announced that he would apply the general standard of proof, the parties reached a settlement without disclosing the terms. A spokeswoman for IBM said in a statement that the company “firmly believes, based upon state-of-the-art science, that it had no liability in this case and that it did not act wrongfully in any manner.” The Ruffing case had been scheduled to go to trial this month and was the “bellwether” case in a series of actions brought against IBM and the makers of chemicals used in its plant. IBM has sold the plant, which is now operated by Philips Semiconductors. FUTURE CASES While the Ruffing case is supposed to set the ground rules for subsequent cases, the factual setting for the nearly 200 companion cases may be different enough to limit the applicability of DiBlasi’s ruling. For instance, in many cases there is more precise monitoring of the level of chemical exposure, said Steven J. Phillips, of the Manhattan firm Levy, Phillips & Konigsberg. Phillips was counsel to the plaintiffs in the Ruffing case and also represents other IBM plant workers. In cases where exposure is more precisely tracked, the standard laid down by DiBlasi should not create difficulties for plaintiffs, Phillips said. Furthermore, Phillips said that DiBlasi’s decision, by providing a road map for proof of damages, is helpful to plaintiffs in future cases, even though it rejected the standard of proof accepted in asbestos litigation. Plaintiffs now know as a matter of law that they must bring in experts to construct mathematical models showing exposure levels, or that there must be evidence of chemical odors or other factors demonstrating the presence of an injurious level of chemical exposure. “From my perspective, this decision is ultimately helpful,” Phillips said, despite rejection of the asbestos standard of proof. FACTS IN ‘RUFFING’ The mother and father of Zachary Ruffing had jobs in the “mask room” of the East Fishkill semiconductor factory. They said they were exposed to unhealthy levels of 16 toxic chemicals. The exposure, plaintiffs said, caused birth defects in their son. Zachary Ruffing, now 15 years old, was born blind and with facial deformities that his parents say came as a result of the chemical exposure. Justice DiBlasi said that the court would not “dilute” standards of proof in the case as an emotional reaction to the boy’s injuries. “No one, parent or not, could view the effects of these birth defects and fail to be moved,” DiBlasi wrote. “But the life that Zachary will experience cannot be determinative of the many difficult issues that are involved in this litigation.” The plaintiffs wanted a standard similar to that used in asbestos litigation. But, DiBlasi observed, those cases involved a “signature” disease whose only known cause is asbestos exposure. In the Ruffing case, there was no evidence on the record to support the conclusion that any of Zachary’s defects is a signature disease that could result only from exposure to the chemicals found at the East Fishkill plant. “Absent such a distinctive relationship, there may be any number of other reasons why Zachary suffers from these birth defects,” DiBlasi wrote. “Thus, his case is unlike an asbestos exposure action, but is indistinguishable from any other toxic tort lawsuit which is governed by the generally recognized standard of exposure level evidence.” DiBlasi said that as in any toxic tort case, the plaintiffs in Ruffing would have to prove that the level of exposure to the chemicals was high enough to cause harm to humans. There are 45 birth defect cases currently before the Westchester County Supreme Court arising out of workplace exposure to chemicals at the East Fishkill plant, Phillips said. There are also more than 150 cases brought by plaintiffs who say they contracted cancer as a result of their chemical exposure. DiBlasi’s decision is relevant to all of the cases, not only the birth defect claims. ‘CHEMICAL SOUP’ It is not known which suit will be next in line for trial, and thus step into the role of the bellwether case on the remaining outstanding issues. While the Ruffing case may lead to further case settlements, each claim will proceed on its unique facts. A motion left undecided by DiBlasi, but sure to be renewed in a future case, preserves another theory of liability against IBM, Phillips said. Even if there is not a harmful level of any single toxic chemical, IBM may still be liable for creating a workplace environment where there was exposure to a mixture of chemicals — a “chemical soup” — that could cause injury, plaintiffs say. Under such a theory, no one chemical manufacturer would be liable for damages, but IBM would be liable for a poisoned workplace environment, Phillips explained. After the Ruffing case, the “chemical soup” theory advanced by some plaintiffs is still outstanding and must be decided. IBM’s lead counsel are Michael J. Templeton, of the New York office of Jones, Day, Reavis & Pogue, and Mary Ellen Powers of the firm’s Washington, D.C., office. IBM said that neither the company nor the lawyers would have any further comment.

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