IBM Cleared in San Jose Cancer Liability Suit

kbeech writes "A jury In San Jose returned a unanimous verdict in favor of IBM in a case where plaintiffs claimed the company kept medical information on their condition from them." Slashdot hasn't covered this well, but evidence in the lawsuit has suggested that employees were heavily exposed to chemicals and that IBM was aware that their employees got cancer at higher rates than the general population.

Comments

It seems harsh

[Space cowboy]

... if they truly were exposed with the company knowing about it, that they were denied some compensation for that. It seems the judge did them no favours by allowing them to take their case outside the California employees system, because the burden of proof is much higher in a "normal" court (as well as the damages...)

I wonder, if they'd stayed put, would they have won something rather than nothing... I always think it's easy to make a snap judgement based on your feelings for the parties involved though - if they were found against, you have to assume that they couldn't prove it... Harsh, though.

Simon

Re:It seems harsh

[wol]

If they stayed in the workers compensation system, they would definitely have received some compensation. They elected, instead, to try the lotto and, apparently, the jury did not agree with them.

Re:It seems harsh

[Space cowboy]

Er, you take my comments out of context then proceed to go on a rant about something that I didn't say (!)

I wrote:

It seems harsh if they were exposed with the company knowing about it, that they were denied some compensation for that

Note the emboldened bit that you conveniently removed and replaced with ellipsis, to completely change the sense of what I said. The point was that IBM allegedly knew the effects of the chemicals on the workers, but let them work in those conditions anyway.

Later I said if they were found against, you have to assume that they couldn't prove it and I always think it's easy to make a snap judgement based on your feelings for the parties involved though - In other words, the court had the full facts, and it's dangerous for outsiders to make emotional decisions without being in possession of those facts.

Jeez.

Simon

In other news...

[enrico_suave]

Willy wonka cleared of liability/wrong doing in the Gloop, Beauregarde, and Teevee vs IBM suit.

e.

Conundrum

[dada21]

This situation is a hard one for AnCaps like myself to resolve.

While it seems like IBM may have had some knowledge of statistsically higher death rates among these workers, there is also the belief that I hold that every worker are responsible to find out what risks a certain job holds.

Employers and employees really are on equal ground more than the general media wants you to believe. Both parties gain a profit from the jobs performed. If an employee wants to perform a job at a certain income, why is it the employer's role to let them know of any risks beforehand, unless the employee explicitly requests a risk assessment?

Cancer is such an odd condition. I honestly believe cancer isn't directly caused by one simple situation. So many variables can go into it. Smoking may cause cancer, but I believe smoking doesn't -- it is only a risk factor. Did these employees all eat regularly at a certain facility? Did they all live near factories that may have also contributed to the enhanced risk?

I read all the articles, and I'm fairly sure I agree with the jury that IBM should not be held liable. On the other hand, if employees asked in advance about the risks involved, and IBM blatantly lied, then they should be held guilty.

One thing is clear: the lesson learned is that you should always ask your employer in advance of any health risks involved in future work, and get their reply in writing.

Re:Conundrum

[B'Trey]

It seems to me that if I hire you to go into harm's way, it is my responsibility to warn you of any dangers of which I am aware. I'm not familiar with the details of this case, so I am not saying that IBM should have been culpable. It's quite possible that the correct verdict was reached in this particular case.

However, in the general situation, this touches on similar issues to informed consent and implied warranty of fitness.

If I blind fold you and lead you down the street, then lead you into heavy traffic without telling you, am I not at least partly at fault for your injuries when you get hit? What if I manufacture a car, you buy one and the gas tank blows up as you're driving down the road? Am I in the clear because you failed to ask if the car was dangerous?

I believe you have the right to do pretty much anything you want so long as you do not violate the property or person of another. Putting someone in harm's way without informing them of that fact is a form of assault, as my actions may lead directly to harm to you, and you have not knowingly consented to accept the danger of the situation.

Re:Conundrum

[dada21]

Yes, Joe Worker is on equal ground with any employer. Joe Worker can refuse that job. If Mike Worker believes the job is a good one, he'll do it. If Joe Worker, Mike Worker, and Peter Worker all decide that the job risks aren't worth the rewards, and Big Business Inc can't find anyone to accept that job, the laws of supply and demand come into play as they always do. The Supply of workers at that pay is low, the Demand for those workers, if high, will dictate that the Price to pay for this work goes up. It will continue to rise until someone accepts it. On the other hand, Big Business Inc may use the laws of supply and demand by lowering the risk of the job and take safety precautions which may entice the market of available workers to accept the new safer job at a certain rate.

It is actually simple, not asinine.

Re:Conundrum

[DavidBrown]

You will be interested to know that your view is the traditional view of the legal system. The appellate court opinions that I read while in law school concerning this subject were chock full of grandiose statements about the freedom of labor, and that if an employee wanted his employer to pay for his injuries then the employee could negotiate this right for himself as part of the labor contract. This, while perfectly sound on a libertarian/ancapper level, will not work in practice, because no employer would provide this "benefit" when there were plenty of workers out there who would take the job despite the risks. Workplace injuries therefore resulted in disabled workers with no money and no means of receiving compensation for their injuries and lost income.

The result of the courts' failure (rightfully or wrongfully, you decide) to deal with this issue is the worker's compensation insurance system created by the state legislatures. Ordinarily, an injured worker has only one recourse - a worker's comp. claim.

The IBM workers' case, however, was for "fraudulent concealment". The theory of their claim is that IBM knew of the risks and either negligently or intentionally failed to inform their workers of these risks. If the claim is true, then IBM would rightfully be liable - and I don't think that this would violate the precepts of ancappers - it's one thing to agree to accept certain risks associated with employment, but when the employer conceals these risks, the worker's acceptance is uninformed and is, from a legal standpoint, more or less void.

Apparently some key evidence (the IBM "mortality file") was deemed inadmissible. As an attorney, I am curious as to why this evidence was not admitted, and whether or not the plaintiffs will appeal because of it.

What are acceptable levels?

[KingOfBLASH]

I was listening to a radio piece on NPR about this yesterday. Apparently one of IBMs' arguments was that they adhered to OSHA guidelines -- none of the compounds workers were exposed to were thought to be as toxic as they were, so the acceptable levels of exposure are really much lower then what was thought at the time.

Re:What are acceptable levels?

[KingOfBLASH]

You know if you read OSHA guidelines they're pretty stringent. Many, many, many of the "classic" experiments in chemistry can't be repeated these days because of a slight toxicity in the chemicals involved. The question becomes, how do you tell if something is bad for you? Answer, see who dies. If the exposure guidelines still result in cancer / death over a long period, lower the exposures. It's kind of sad actually, in that field all the rules are written in blood.

Re:What are acceptable levels?

[B'Trey]

I assume that you're talking about thalidomide, which was a safe, effective drug for everyone except pregnant women. The irony is that it was frequently prescribed to combat nasuea and insomnia caused by pregnancy. It's now approved in the US (it was never approved here in the 50s, when all the problems occurred in Europe), and is being used effectively for treatment of certain effects of leprosy, with a number of other potential uses being researched.

Convincing vs suggestive evidence

[JimJinkins]

"but evidence in the lawsuit has suggested that employees were heavily exposed to chemicals and that IBM was aware that their employees got cancer at higher rates than the general population."

The plaintiff's evidence was suggestive. The defendent's (IBM's) evidence was convincing.

Perhaps Slashdot was right to not cover this case very well.

I'm turning Democratic

[ObviousGuy]

I used to be a diehard Republican with pro-business ideas, but when decisions like this are handed down, I have to question whether a laissez faire policy is really the best thing for companies as well as employees.

It seems obvious that if IBM knew that these chemicals were causing higher cancer rates among its employees that it ought to be found complicit in their illnesses and be required to pay for their treatment and rehabilitation as well as compensatory damages. Unfortunately, the prosecution was not able to prove to the jury that this was the case.

However, in such a case the victims are simply out of luck. Should they, through no fault of their own be destined to spend many thousands of their own dollars for cancer treatment when they are in the least capable position of paying of any of the parties involved? IBM failed to provide, through simple negligence, a safe working environment and now people are suffering as a result.

I don't think that ignorance of the problem can be a usable excuse in cases such as this. It is IBM who through their ignorance caused this damage. I feel that it is their responsibility to pay.

With apologies to the Vapors, I think I'm turning Democratic.

Re:I'm turning Democratic

[dada21]

It is not the employer's responsibility in a free market to provide a "safe working environment." It is the employer's responsibility to offer an environment, a job, and a pay that an employee is willing tow work in, perform, and decide is a decent rate to accept.

In a free market, no one forces anyone to work any job in any environment against their will. If you feel the job is unsafe, don't work at that rate in that environment. If you are unsure of the chemicals you have in your environment, consult independent authorities on the subject and see if there are health risks.

Employees profit from accepting a certain job in a certain environment at a certain pay scale. They make the call. If no one wanted to do said job in said facility at said rate, then the employer would follow supply and demand rules in employment and either make the pay more, the environment safer, or a combination of the two.

Re:I'm turning Democratic

[aeryn_sunn]

Uh, perhaps you overlooked the "Commerce Clause"?...and if I recall, your thinking that the federal government cannot regulate business, i.e. OHSA, has been soundly rejected..The Lochner era , Lochner v. New York, 198 U.S. 45, economic substantive due process under the guise of "freedom to contract" that was used to limit the government from regulating employers, has been thoroughly rejected.

Therefore, your comment about the Constitution is completely incorrect...perhaps you might need to also see Marbury v. Madison to understand that it is up to the Supreme Court to interpret the Constitution...

Regardless, from your previous comments on some illusion that employers and employees have equal bargaining power is also way off base...do you honestly think employers are going to spend any money that they are not forced to spend to make a workplace safe? to not pollute? to provide certain minimum benefits? Not when profits are at stake...history is littered with instances of employer malfeasance...ever read "The Jungle"? Ever read about the "Alton" documents where the Railroads knew asbestos was getting their employees sick in the earlier 1920s but still did not let the workers know this?

I would go as far and say that the belief that employers and employees are equal is naive and not just delusional...do you think if IBM told all prospective...or even would tell all prospective workers that if they worked in that plant, their risk of cancer doubles that IBM would be able to find any workers? Hell no...IBM just like all employers play down any risks and say "trust us" it is ok...

Your "Let the market decide" mantra should not be the end all be all...there are limits...if there were not any limits, AT&T would be your only phone carrier, I would not be using a Mac but using windows and we would all be filling up our gas tanks at Standard Oil gas stations...

I wonder...

[physicsboy500]

If this is a biased article... It seems that they do a wonderful job at telling one side of the story yet there must have been evidence clearing IBM of responsibility for the matter.

Those workers were under incredibly harsh conditions, but they never seemed to prove that IBM's chemicals actually did cause the diseases... Just a thought

Is IBM now spearheading a...

[GeneralEmergency]

...new Open Sores Initiative?

Sorry, couldn't restrain myself.

Let's see

[Gr8Apes]

The main folks in the suit are 60+ years old....

They claim they "frequently had hard drive coating chemicals soak through her bunny suit and stain her skin and was forced to hold her breath to avoid inhaling strong odors emitted by chemicals she used daily"

Umm, I don't know about you, but if I was effectively swimming in chemicals, I do believe I might have a few stronger words to my company than "oh, I'm ok, let's go back to swimming in chemicals". Especially considering all the news 30+ years ago about the effects of chemicals on people and the environment in general (DDT, Agent Orange, that morning sickness drug thiamolide(sp?)).

That's sort of like oil field workers or railroad workers suing because they lost a finger, hand, or limb because the company "didn't tell them" that the work was dangerous.

Evidently the could not prove the company was malicious in its actions towards them, which to me is the only criteria in this case that could have convinced me that IBM should have lost. Let's hear it for a just verdict, for once, even if it seems the "little folks" got the short end of the stick (they didn't, they just didn't get to soak the company imho).

Cancer, yay!

[lukewarmfusion]

Everything causes cancer nowadays

*sigh*

Your reasoning is really bad

[Gr8Apes]

If I, as a company, in good faith comply with all known legal requirements, and take as many steps as possible for worker safety, should I be held liable years later when something turns out to have been bad for my workers?

Take micro waves. They weren't known to cause problems, and initially micro wave ovens showed up everywhere in convenience stores. Then, low and behold, pace makers were found to be affected. Now, before that finding, should anyone injured by this mechanism be able to sue and hold liable whomever was involved, no matter how tenuously, for an unknown side-effect? I say no. This case's verdict confirms this concept, and to me is a just verdict.

A counter example is the tabacco industry, which withheld information on the extent of the damaging properties of its products from the general populace while continuing to strongly market its products. This is malicious negligence (IANAL FYI) and to my sense of justice should carry a penalty. And look, they were penalized, and this is another example of justice being served.

Lastly, I don't think these verdicts are necessarily pro-business, or anti-business, but merely necessary verdicts to enable people and companies to do business in this country. If every injured party was able to reap big verdicts over every little "injustice" or injury, then our business climate would be so terrible that no company would stay in the US for fear of being sued out of existance for something they could not have foreseen.

Take asbestos for instance, there was a product that no one knew would cause the problems it did later. In my opinion, I think the verdicts have been too far reaching, even hitting companies that bought bankrupt companies for their equipment (wish I still had a link to that story, was on cnn about 4 or 5 months ago). That's too far imo.

Re:Messed Up

[Savage-Rabbit]

I don't mean to be hard-hearted here but if I was working with chemicals that ate through my gloves I would:

A) Demand to know what chemicals they are.
B) Demand to know their possible effects on my health.
C) Demand a better quality hazardous enviroment equipment (Including ventilated headgear) that is proof against the stuff.
D) Report the company or even quit if all of the above was not fulfilled.

It is easy to talk about people not wanting to lose their jobs but surely keeping their health must be preferable to any period of unemployment, drop in pay or whatever else caused them not to complain.

The US

[ekephart]

needs a 'loser pays' system - at least so some proportion. Society has become so litigious that if IBM had lost here, everyone and their mother whom had ever worked in semiconductors would sue IBM, Intel, AMD, VIA, etc. I hate to think that this prospect was a factor in the decision, or in any case of its kind. Sadly, firms will often settle rather than take even a very small risk at trial for fear that a loss would prompt a flood of very expensive suits.

Age of defendents a factor?

[xanthines-R-yummy]

I don't know the details of all 200 lawsuits but the ones mentioned in the SFgate site says the 2 guys are 60 and 70 something. That's a very susceptible age to have cancer in general, I believe. If anything, they are pretty close to the average lifespan in the US anyway for men. However, I think that IBM should offer some sort of compensation as responsible corporation if not for the very minimal effect of avoiding a publicized lawsuit (condidtions of most settlements seem to be sealed.)

Now if there are a bunch of 20-30 year-old workers coming down with cancer, that might be pretty fishy.

My IBM experience

[Anonymous Coward]

I used to work at IBM Essex VT facility in the Fab doing robotic maintenance. The truth of the matter is that we were exposed to all kinds of horrible chemicals. For instance I one started coughing up blood because a machine had exploded (literally) and there was a cloud of pure HLC in the core. Could I have sued IBM because of this. absolutely NOT!!!!

The thing that gets them off the hook is that their procedure for dealing with any chemicals is all OSHA approved and the equipment to comply is available. The problem is that it is not possible to do your job when in all the gear. If I am supposed to don a SCBA unit, chemical gloves and chemical suit ever time we detected a small TCS leak in a machine I would never get my job done. Also it is a real pain the ass to try and fix small precision robotics while wearing all that shit.

How can you sue a company because you refuse to comply with safety procedures. You can't. The catch 22 is IBM knows you won't follow procedure and doesn't expect you to. They expect you to get the job done fast and right. If you can't do that because you follow procedure to a T you WILL be fired. (at least in IBM Essex)

That's my rant. IBM sucks. They are both the best employer (in terms of pay and benefits) and the worst employer (in terms of actually caring about their employees) I have ever worked for.

AC AKA Low Pressure ASM EPI tech.

Re:My IBM experience

[Quimo]

Isn't is part of the Employers Duties to make sure that you Have, Know how to properly use and actually make use of the proper safety equipment at all times.

I seem to remember cases being dealt with where the employer was found to not have rigorusly enforced the safety policy and requirements. An employee got hurt while not wearing his safety equipment (eye protection I think it was.) The employee had been through the you must wear your safety equipment speech with managment many times (they had it on record.) However as the policy was that any employee caught not wearing there safety equipment 3 times within a year would be immediatly dismissed. (Union or no this was within there rights.) As he was not dismissed they where found at fault.

By my take on that if IBM does not enforce the safety requirements they are at fault for any injuries within the workplace.

Re:My IBM experience

[ChaosDiscord]

How can you sue a company because you refuse to comply with safety procedures. You can't. The catch 22 is IBM knows you won't follow procedure and doesn't expect you to. They expect you to get the job done fast and right. If you can't do that because you follow procedure to a T you WILL be fired. (at least in IBM Essex)

So you're saying IBM refuses to let you comply with safety procedures (because if you do, you'll be fired). That's a perfectly reason to sue IBM. Claiming that you refused to follow procedures is silly. Next we'll be hearing arguments that we can't prosecute mobsters because I chose to give them my money. If you'll lose your job if you don't do certain things than the company is responsible for those actions.

Why were the records kept ot of the trial?

[penultimatepost]

He said he was disappointed with the judge's refusal to let him present some evidence, including a "corporate mortality file" that IBM maintained on its workers and a study showing that IBM workers had higher rates of cancer than the population at large.

Does anyone know why these record were kept out of the proceedings?

And a jury found them not liable...

[jordandeamattson]

Love the editorial in the lead to this discussion.

Let's be clear: evidence was presented by both sides, and a jury of peers from Silicon Valley, found that IBM was not liable.

As someone who has followed this case closely, I have to agree with the decision rendered by the jury.

Of course, if you want to put on your tin-foil hat, you will find all kinds of conspiracies in this baby.

Worker's Comp

[darkmeridian]

Worker's compensation schemes guarantee a payout that slides on a scale: three weeks for losing a finger, etc. In return, the employer is strictly liable for worker's injuries on the job. It doesn't matter whether the injury was the employer's fault, he has to pay for it. However, these compensations seem normatively inadequate when it comes to long-term health illnesses such as work-related cancers and the like.

Workers can get out of the comp system and into tort law for intentional or reckless actions by the employer. If the boss shoots an employee, for example, the death is not to be paid for by the worker's comp system. They seem to be arguing recklessness here. (The article, which I read, by the way, does not say.) This means that management knew of the risk of great bodily harm to the employees and ignored the risk.

Re:Worker's Comp

[Anonymous Coward]

Just to clarify further; the employer usually does not pay directly for workers comp. They get an insurance policy; just like they would to insure the facilities, employee medical coverage, etc... It's when the insurer refuses to pay, disputes coverage, doesn't pay enough, etc... that the lawsuits start happening.

Re:Messed Up

[Rick.C]

When my son was in high school he got a job at a local windows company (no, the other kind - with glass). After the glazing had been applied, his job was to clean them up with a solvent and make them pretty for shipping. The company issued rubber gloves, but as with IBM, the solvent went right through the gloves.

At quitting time the first day, he told them he was quitting and wouldn't be back. They were surprized - that he had lasted the whole day. Most of the ten new recruits had quit at lunchtime.

He had blisters on his fingers for a week.

No worry for the company though - they had a new batch of recruits signed up to start the next day.

Fortunately my son was in a position where he didn't need the job. Other workers with families to feed can't just walk away.

Catch 22

[stoolpigeon]

In the Navy I was asked to do a bunch of painting in an enclosed compartment. I went to the safety office to get an appropriate resperator. They said - "We don't have the right equipment to fit you for one. So you can't have one." I said, "So since we can't be sure the fit will be perfect I have to do the work with no protection at all?" The answer- "Yes." Brilliant.