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A Westchester 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 Supreme Court Justice Joan B. Lefkowitz establishes tort rights for Vermont plaintiffs among those suing IBM in New York over chemicals at its plants in East Fishkill, N.Y., and Burlington, Vt. A New York appeals court 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 they came in contact with the chemicals when their fathers had sex with their pregnant mothers. Justice 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 New York, California and Minnesota have sued IBM, Union Carbide and other chemical companies over workplace safety in IBM’s plants, alleging that they or their unborn children were exposed to harmful chemicals. 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. Two plaintiffs reached undisclosed settlements with IBM as their cases approached trial, including one earlier this month. 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. Ms. 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, the Appellate Division, 2nd Department, ruled in Ruffing (Pfleging) v. Union Carbide Corp., 1 AD3d 339, that a plaintiff with a similar claim 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 2nd Department ruling, according to Lefkowitz, 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 Corp., 9011/00, Thibault can bring her claim because Vermont law trumps New York law in her case. “Under Vermont law it is for the fact-finder to decide whether an assumed duty has been proven, and not one for the court to rule upon as a matter of law,” Lefkowitz wrote. She added that “this court agrees with plaintiff that she has demonstrated the existence of a conflict in the laws of Vermont and New York on this issue, thereby requiring that Vermont law be applied.” The defendants had argued that Vermont had no law on the topic and therefore New York law should be applied. Thibault is one of 29 child plaintiffs whose fathers rather than mothers worked for IBM. Of those, 14 are children of fathers who worked in the Vermont plant. The 15 who are from New York may not be able to bring claims unless the Court of Appeals reconsiders the 2nd Department’s ruling in Pfleging. The 2nd Department has denied reargument on that ruling, and the plaintiffs are seeking leave from the Court of Appeals. Thibault was represented by Steven J. Phillips of Levy Phillips & Konigsberg. IBM was represented by Michael J. Templeton of Jones Day. Thomas E. Reidy of Ward Norris Heller & Reidy represented Shipley Company and other moving party chemical companies.

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