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A Westchester County, N.Y., judge has rejected a bid to reopen a suit for alleged toxic poisoning against IBM and chemical manufacturers in a ruling of first impression for New York state courts. Supreme Court Justice John P. DiBlasi ruled that a father and his child, who was born with birth defects, could not avail themselves of a federal statute to resurrect injury claims that are time-barred by New York law. The father, William Pfleging, is a former employee of IBM who alleged that his daughter’s birth defects were caused by chemicals he was exposed to at work. Pfleging alleged that his pregnant wife was in turn exposed to the chemicals when she came into contact with his clothes and when the couple had unprotected sex. Their daughter, Alyssa, now 27, was born without limbs below her elbows and knees. Pfleging’s claim is one of nearly 200 similar claims brought against IBM in DiBlasi’s courtroom since the mid-1990s. The suits were consolidated before the judge under Ruffing v. Union Carbide Corp., 4049/97. The first plaintiffs to proceed through pretrial discovery eventually settled before trial for an undisclosed amount, setting the groundwork for the remaining cases. But the claims of Pfleging and his daughter, unlike those of the first plaintiffs, were dismissed as time-barred under New York law following a motion by IBM and the other chemical supplier defendants, including Union Carbide. The Pflegings moved to have the claims reinstated, arguing that the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. � 9601, extended the time for filing. CERCLA, which was amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. � 9658, permits toxic tort claims based on exposure to hazardous substances released into the environment to accrue upon the discovery of the cause of injury. ‘ENVIRONMENT’ DEFINED But DiBlasi ruled that the Pflegings’ claims did not fall under the federal law, saying that Pfleging’s alleged poisoning was not the result of chemicals released into the environment, but in an enclosed area where he worked. “The interpretation of Section 9658(a)(1) urged by plaintiffs would, in this Court’s view, bring every release of a hazardous substance within the scope of CERCLA and thereby judicially eliminate the limitation placed upon the term ‘environment’ by Congress,” Justice DiBlasi wrote. The judge added: “No one can deny that plaintiffs at bar have, and will continue to, suffer emotionally, physically and financially as a result of the horrible defects with which Ms. Pfleging was born. But the understandable desire to provide some legal remedy for every injury cannot dissuade a court from carrying out its duties.” New York-based Levy Phillips & Konigsberg represented the Pflegings. Jones, Day, Reavis & Pogue represented IBM.

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