By: June D. Bell

CASE TYPE: personal injury

CASE CITE: In re San Jose IBM Workers Litigation(Hernandez and Moore), No. 1-98-CV-772093(Santa Clara Co., Calif., Super. Ct.)

FOR THE DEFENSE: Robert C. Weber of theCleveland office of Jones Day; Mary EllenPowers and J.C. McElveen of the Washingtonoffice; David J. DiMeglio and Gary W.Nugent of the Los Angeles office; and SharylA. Reisman of the New York office

PLAINTIFFS’ LAWYERS: Richard Alexander,Amanda Hawes and Ryan Hagan of the SanJose, Calif., office of Alexander, Hawes &Audet; and Joseph E. Russell and Susanne N.Scovern of the San Francisco office

ALIDA HERNANDEZ developed breast cancer. James Moore was afflicted with non-Hodgkin’slymphoma. They had both worked at Inter-national Business Machines Corp.’s San Jose,Calif., disk-drive manufacturing plant, and theyboth faulted their employer for their illnesses.

Hernandez and Moore claimed that theysuffered “systemic chemical poisoning” afterexposure to toxic chemicals at the IBM factory.Their employer knew those substances weredangerous, they alleged, but deliberately didn’ttell workers.

When their “toxic tort” case came to trial last

year, Jones Day defense attorneysRobert C. Weber and Mary EllenPowers knew another 50 cases werewaiting in the wings. They expectedthis verdict to be a bellwether, andthey weren’t disappointed.

“The plaintiffs made this into atest of the industry,” said Weber, apartner in the Cleveland office.“They wanted to put the micro-electronics industry on trial.”

He and Powers crafted a defensethat emphasized IBM health careworkers’ integrity while highlightinginconsistencies by comparing theplaintiffs’ testimony to their medical records.

In an unusual move in a personalinjury case, the two plaintiffs werethe first to testify. They spent abouttwo weeks on the stand, including alengthy redirect. “Our strategy,”Weber said, “was to show thesepeople respect but to challenge theirstory whenever possible.”

Careful cross-examination and later defensewitnesses helped show that the plaintiffs had onlyshort-lived and minimal exposure to chemicalsthey blamed for their illnesses.

During the five-month trial, the defense stuckwith what Weber called “an obsessiveconsistency” to a few key themes. Among themwas his encouragement to jurors that they be“patient listeners”: Follow the plaintiffs’ case, butrealize the picture isn’t complete without thedefense’s perspective.

Plaintiffs’ attorney Richard Alexander of Ale-xander, Hawes & Audet of San Jose suggested thejury award each plaintiff compensatory damages

in the high seven figures. He couldn’trequest punitives because the judgehad issued a directed verdict on thatclaim before closing arguments.

After less than two days of deliberations, on Feb. 26, 2004, thejury sided with the defense. Threedays later, the judge ordered all of theCalifornia parties into mediation,and the remaining cases settledquickly, Powers said.

Alexander, the plaintiffs’ attorney,described the California trial as “aslam-dunk loser from the start” and“virtually impossible” to win.

“There was no way the plaintiffcould win,” Alexander asserted. “Youcannot sue an employer for injuriesin the workplace [unless you canshow willful intent to injure].” It is“virtually impossible” to prove a caselike this one in California, he asserted.Alexander said he took the case totrial because “[w]e wanted IBM andthe chemical defendants to know we

were prepared to try all our cases against IBM.”Meanwhile, scores of IBM workers’ cases

alleging failure to warn and strict productsliability that were filed in New York state, where IBM made semiconductor chips, havebeen dismissed. But suits brought bynonemployees and independent contractors arestill pending.

TOP DEFENSE WINS OF 2004

CHOOSING THE TOP 10DEFENSE WINSIN CHOOSING THE best defense wins of 2004,The National Law Journal considered the obstaclesthat defense attorneys encountered, such as plaintiff-friendly venues, the amount of damagesat stake and if similar cases to be tried would be affected.

This was the first year that the NLJ consid-ered bench verdicts. Nearly 100 submissions fromacross the country were received by the NLJ, anddozens of defense counsel were interviewed andsolicited for defense wins that merited considera-tion. The list was painstakingly whittled to the10 cases presented in this section.

Sticking to themes with ‘obsessive consistency’

© ALM PROPERTIES INC. WWW.NLJ.COM MONDAY, MARCH 28, 2005

BELLWETHER: Weber,top, and Powers knew50 cases awaited.

NLJ

Reprinted with permission from the March 28, 2005 edition of THE NATIONAL LAW JOURNAL. © 2005ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information, contact American Lawyer Media, ReprintDepartment at 800-888-8300 x6111. #005-04-05-0008

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10 high-stakes cases show that the best offense is a good defense