Title: Chair's Message

Author:

Section/SPIG: Occupational Health and Safety

Issue Date:

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David Kotelchuck, PHD, CIH
Environmental & Occupational Health Sciences Track
Hunter College
Business: 212.481.4357
Fax: 212.481.5260
<dkotelch@hunter.cuny.edu>

I’m happy to announce that APHA, at the OHS Section’s urging, has agreed to sign an amicus curiae brief on behalf of William and Alyssa Pfleging in a New York State case against IBM and others, in which the two allege that the chemicals Mr. Pfleging was exposed to at the IBM plant in Fishkill, N.Y., caused serious birth defects to his daughter Alyssa, born in 1974. In particular the APHA brief relates only to one aspect of the case -- namely an appeal of an earlier New York State court decision which banned this suit because the allegation that the father brought harmful chemicals home on his clothing and in his seminal fluids and thereby caused harm to his daughter in utero was not a “cognizable cause of action” in New York state. That is, New York state law, the court interpreted, does not recognize that harmful chemicals in the workplace can be brought off premises and cause harm to a worker’s family members, and hence they have no right to sue in this state! Let me give a little background to the broader case and this scientifically bizarre ruling:

On March 28, 1996, seven workers from the IBM Fishkill plant in New York State filed lawsuits against IBM and four companies which supplied chemicals to the plant, alleging that their exposures caused cancers to them and severe birth defects to their children.

The New York Times led off its article about the case that day by describing how in 1988 Miriam Nicole Sanders, James Gibbons and Glenn Haight worked on an IBM production line. Four years later, Sanders was dead of cancer at age 24, Gibbons, 28, had a testicular tumor and Haight, 26, was fighting cancer.

Later about 200 others from IBM Fishkill brought suit, as well as employees and former employees from IBM plants in San Jose, Calif. and Rochester, Minn. Most are represented by the California law firm of Alexander, Hawes and Audet, as well as local counsel.

Many of the cases, especially those against the chemical companies, have been settled out of court, for undisclosed sums of money and with no admission of guilt by the defendants. For example the family of Zachary Ruffing, born blind and with other severe birth defects, and with both parents former IBM employees, settled in 2001. (NY Times, 10/13/03)

Seven years later (!), the first of these cases went to court in San Francisco, and as many of you know, the two plaintiffs in that lawsuit lost their case. Since in California, as in most states, workers compensation is the only remedy for work-related injuries and illnesses, the plaintiffs had the legally difficult task of proving that IBM knew that the chemicals they were using caused cancers and chose to cover up this information. One of the key pieces of evidence for this allegation was an epidemiological analysis of IBM’s Corporate Mortality File, in which it had recorded deaths of company employees from 1970-2000. This analysis, carried out by Dr. Richard Clapp of Boston University (a long-time APHA member), showed rates for some cancers in excess of population norms. However, the judge ruled this report inadmissible under California State law, a major blow to the plaintiffs. (See also NY Times 10/13/03 and 2/27/04.)

The next of these suits will begin soon in New York State. Here the two lead defendants are father and daughter, William and Alyssa Pfleging. The father was working in the IBM plant in Fishkill when his wife gave birth to Alyssa, who was born in 1974 without limbs below her knees or elbows.

Alyssa’s case does not involve workers compensation, of course. But other serious problems highlight the difficulties in bringing a suit against a U.S. manufacturer. In order to bring their case to court, she and her father must appeal and seek to overturn a lower court ruling that in New York State parties cannot sue based on "off-premises" exposures, such as workplace exposures, which might have affected the health of children developing in utero. This is completely out of synch with what we have long known in science, and for which there is extensive scientific evidence, that environmental and occupational exposures can and do cause harm to developing fetuses. We have referred frequently over the years in our APHA resolutions, especially in our lead resolutions, to the potential harm to the fetus caused by in utero exposures. Also we are all well aware of the extensive scientific findings, such as those by Dr. Irving Selikoff and colleagues, that asbestos dust brought home by parents working in asbestos factories can and does cause harm to their family members, including their children.

The law firms in the IBM case are asking the courts to grant them leave to contest this scientifically out-of-date decision. That is why APHA input on public health science will be of great importance at this time. It seeks effectively to help put New York state laws in synch with the current state of scientific knowledge on this issue.

This action will result in APHA involvement in what is one of the important occupational and environmental legal cases of this decade, and involves us in our area of scientific expertise. I am proud that APHA has filed a brief in this case, and applaud Dr. Georges Benjamin and his staff, especially Donald Hoppert, for taking this action, and in a timely fashion.

(NOTE: In involving itself here, APHA is not asserting that the defendants
were affected by the chemicals they used in the workplace, that will be decided
in a later case. The amicus curiae brief but simply asserts that the courts in New York state must consider in utero
exposure to toxic chemicals as a possible route of harm in such cases. There is
no doubt in my mind that the scientists working for the companies being sued
would agree that in utero exposures are a recognized route exposure to the
fetus, as virtually all scientists today would.)