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A group of former IBM employees moved a step closer to trial in California on Friday on allegations that exposure to “clean room” chemicals caused them to contract cancer and other deadly diseases. During a hearing Friday in Santa Clara, Calif., state Superior Court Judge Robert Baines set a January 2003 trial date for as many as six of the workers, and set a discovery schedule in the complex case involving several chemical companies. A month ago, Baines denied a defense request to require a Kelly- Frye admissibility hearing before allowing the plaintiffs’ expert witnesses to testify. The Kelly- Frye hearing, which was strongly opposed by lawyers for the plaintiffs, would have required the judge to decide if the experts were using reasonable science in linking chemicals used at IBM manufacturing facilities with the diseases allegedly contracted by the workers. Richard Alexander, one of the lawyers representing the plaintiffs, said he was glad a date had been set and that jurors, rather than the judge, would decide the credibility of expert witnesses. “We are going to drag them kicking and screaming into the courtroom. I want them to talk to a jury,” said Alexander, a partner with Alexander, Hawes & Audet in San Jose, Calif. In the San Jose case and a similar action filed in New York, nearly 300 former IBM employees and family members allege IBM and its chemical suppliers exposed workers to a toxic brew of chemicals beginning in the 1960s and failed to adequately warn and protect them. None of the New York or California cases has made it to trial yet. At Friday’s hearing, Baines rejected Alexander’s request that the 48 workers proceed in one trial with multiple juries impaneled to hear and decide different testimony. Instead, the judge proposed selecting four to six workers who have been diagnosed with two or three diseases most frequently listed in the complaints. The most common diseases include non-Hodgkin’s lymphoma and breast, ovarian, testicular and brain cancer. “I am concerned about jury confusion and possible prejudice. I realize these are modest numbers,” Baines said. “The ‘try as many as you can approach’ is often not the best approach,” Baines later added. Attorneys also wrangled about the discovery schedule. Defense attorneys wanted to push forward with fact discovery for all 48 workers. “You can’t settle a case if you don’t know what the facts are,” IBM attorney Dean Allison, a partner with Jones, Day, Reavis & Pogue, told the judge. Alexander asked that discovery for the next several months focus on the first group of workers scheduled for trial. Baines took the issue under submission.Seven suits alleging injuries from chemical exposure at IBM facilities have been filed in Santa Clara since 1998, with the first six coordinated for case management purposes in In Re San Jose IBM Workers Litigation, 772093, under orders issued before Baines took over the case. Case management orders issued in the case set out steps for identifying the alleged toxins and disease processes of the plaintiffs and their exposure history. Defense attorneys argued that the orders required plaintiffs’ experts to meet the Kelly- Frye test before testifying, but Baines disagreed, writing in an April 15 order that the plaintiffs’ expert witnesses did not need to be subjected to pre-screening. “Plaintiffs’ experts are offering opinions arrived at through inference, deduction and extrapolation from the available scientific information. None claims to have a new machine, device or process that conclusively establishes the disease causing potential of the listed chemicals,” Baines wrote. “Given the numerous alleged shortcomings of plaintiffs’ experts, all of which defendants certainly will explore at trial, there is no reasonable chance our jury will be ‘blindsided’ by plaintiffs’ expert testimony.”

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