In 1978, Alida Hernandez passed out while working at IBM (IBM ) disk-drive plant in San Jose, Calif. IBM doctors sent her home for six weeks to recover and treated her for the shingles and blisters she developed during her leave. Although she worked with many chemicals at the disk-drive facility, Hernandez says IBM executives insisted that working in the plant presented "no risk," an assertion the company continues to stress to this day.
In 1993, two years after retiring, Hernandez was diagnosed with breast cancer and underwent a mastectomy. She later found out that IBM medical records showed her liver was enlarged in the 1970s, though she says the doctors had never told her that. An enlarged liver can be a sign of chemical poisoning, which can lead to cancer. "I feel betrayed," says Hernandez, now 73. "If I had been told the chemicals I was working with were making me sick, I'd have never worked for IBM."
Today, Hernandez is one of more than 250 people suing IBM because of what they allege are workplace-related health problems. The plaintiffs say repeated exposure to carcinogenic agents used to make chips and disk drives caused various cancers in hundreds of workers, as well as birth defects in about 40 families. The first lawsuit, originally filed five years ago by Hernandez and 40 others, goes to trial on Oct. 14 in San Jose.
The outcome may hinge, ironically enough, on IBM's own technological sophistication. As early as the 1970s, plaintiffs say, the computer company's doctors maintained detailed databases of workers' health-care information, including patient visits to company doctors and mortality rates. That data could become a linchpin for the plaintiffs' cases because of the heavy burden of proof for workplace-related health claims. Hernandez and others must prove not only that the chemicals used at IBM caused their cancer, but that IBM knew or must have known that workers were being affected by the chemicals. The databases could prove critical in addressing the second point, legal experts say. "Unless there is an alternative explanation as to why the increased incidents occurred, the database will be potentially troublesome," says D. Alan Rudlin, an attorney with law firm Hunton & Williams LLP and an expert on toxic tort litigation who is not involved in the case.
LACK OF EVIDENCE
IBM denies any wrongdoing. Attorneys for the company say there is no evidence linking chemicals from its plants with illnesses or abnormalities. IBM lawyers argue that cancer can be caused by many different factors, including genes and lifestyle. "We really don't believe there's any proof that these injuries were caused in the workplace," says Marcy Siskind, an IBM lawyer. "Unfortunately, cancer is a fact of life for a large percentage of the population." What's more, IBM says its computer databases were not capable of correlating chemical exposures with the health of its employees. On Sept. 30, IBM scored a small victory: A Santa Clara County Court judge dismissed the suits of two plaintiffs for lack of evidence, though he did say testimony from medical experts "is sufficient to create a triable issue" for Hernandez.
One question underlying the trial will be how paternalistic IBM's culture really has been. Seeking to provide convenient health care for its workers, Big Blue created medical centers inside its plants and offices in California and elsewhere. When employees like Hernandez got sick, they could visit company physicians. The records those doctors kept will be central to the trial. Dr. Robert J. Harrison, a professor of medicine at the University of California at San Francisco and a paid expert for the plaintiffs, says the "signs and symptoms recorded by IBM in Ms. Hernandez' IBM medical chart on numerous occasions are classic manifestations of systemic chemical poisoning...long before [she was] diagnosed with cancer."
The databases of IBM workers' medical histories were incredibly detailed. The company's ECHOES system -- short for Environmental, Chemical & Occupational Evaluation System -- comprised two databases. One tracked the substances that IBM used to build and maintain its products, including medical data measuring effects of overexposure to toxic chemicals. The other contained massive amounts of employee information, such as substances that employees used on the job as well as work and medical histories. A separate IBM system included a mortality file with death certificates of more than 30,000 IBM workers who died between 1969 and 2000. Although the ECHOES system was detailed in a scientific journal in 1982, IBM says it was never used companywide. "Its rollout was ultimately unsuccessful," say company lawyers. Today, IBM says it uses ECHOES 2 to monitor air quality and chemical levels in its plants.
The plaintiffs argue that the databases were full of alarming statistics that even a routine analysis would have uncovered. Richard W. Clapp, a professor at Boston University School of Public Health and a paid expert witness for the plaintiffs, has reviewed the mortality file. In written testimony this September, Clapp says "IBM employees were dying disproportionately of cancer at a much younger age than people in the general population." `He concludes in the testimony: "By 1975, IBM must have known their manufacturing employees have significantly increased deaths due to cancer and must have known throughout the next two decades."
This kind of evidence can have a potent effect on a jury, says Craig S. Bloomgarden, an attorney in Los Angeles with law firm Steefel, Levitt & Weiss who is not involved in the trial. "It can be used to corroborate the plaintiffs' claim that the exposure caused their injury," he says. IBM says the cancer rates among its employees have not been above average. "There's no evidence of abnormal cancer rates," says company spokesman Bill Hughes. "We have an extraordinarily strong health and safety record."
The plaintiffs also allege that IBM concealed its knowledge of the problems from the rank and file. Peter D. Lichty, an IBM doctor, said in a deposition that in 1987, IBM management was concerned that injury and illness rates in the San Jose plants were "higher than average." But the company did not inform its workers of these concerns, say plaintiffs. IBM says it never concealed information from its workers.
Despite the wealth of detail in IBM files, victory is hardly assured for Hernandez and her co-workers. They must convince a jury beyond a reasonable doubt that the specific exposures caused the injuries. If they win, it could mean hundreds of millions of dollars in damages. For Hernandez, it's not only about the money. She's thankful to be alive 10 years after her bout with breast cancer. And she hopes the case raises awareness among other workers and spurs companies to be open with their employees. "I don't want anybody to go through the hell I did," says Hernandez. Whether IBM was responsible is now up to the justice system.
By Spencer E. Ante in New York