NDCA

TCE suit on track, despite setback

Costly fight ‘is worth the wait,’ advocate says

By Tom Wilber
Press & Sun-Bulletin

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ENDICOTT — Lawyers and their clients claiming damages from IBM pollution said they are disappointed after nearly four years of settlement talks proved fruitless, but they are confident they will prevail after the case goes to court.

IBM representatives would not comment on the case, but based on IBM’s final offer — less than 3 percent of plaintiffs’ claims — company lawyers also like their chances in court.

IBM offered $3 million to settle more than $100 million in health and property claims related to pollution from the company’s former microelectronics plant on North Street, effectively ending negotiations this month as plaintiffs prepare to file a lawsuit in January.

All involved in the case can expect an expensive and exhausting fight likely to last years longer as the case enters a new phase, said David Driesen, a professor at Syracuse University Law School.

Bernadette Patrick, a client and advocate who was among the first to organize affected residents after the problem was discovered in 2003, is prepared for an extensive fight.

“The bottom line is, we want some kind of resolution. Not a quick fix,” she said. “It’s not just about attorneys coming here and making a lot of noise.”

If the case is decided in a trial, those attorneys will be spending a lot of money. In toxic tort cases like this one, plaintiffs’ attorneys fund their own work and take their pay at the end from any awards their clients win.

Stephen G. Schwarz, a lawyer with the Rochester firm of Faraci & Lange, would not say how much legal teams from five law firms have collectively invested in the case since they began signing on clients in 2003. But it’s “a drop in the bucket” compared to the cost of bringing the case to trial, he said.

Driesen, who is not involved in the IBM case, added that large corporations with deep pockets can take legal strategies designed to prolong the case and wear down opponents.

“It’s pretty common for companies to throw a lot of resources (into the case) to create a lot of work for the plaintiffs,” he said.

The claims, from nearly 1,000 clients, stem from a subterranean plume of trichloroethylene (TCE) found to be creating vapors wafting into more than 480 homes and buildings near the plant. Exposure to the chemical is linked to illnesses ranging from cancer to brain damage, but the amount posing calculable risks is debatable.

In 2005, state health officials documented an unexplained elevation of certain cancers and birth defects in areas affected by pollution south and southwest of the plant.

The process that allows each side to gather information to build their cases, called discovery, can take years in a case involving the size and complexity of the IBM pollution case. During discovery, the plaintiffs will get access to IBM records and witnesses to gain a better understanding of the pollution, including how it got there, when and what IBM knew about it.

The defendants typically gather exhaustive health histories on people making claims in an effort to prove their illnesses could be caused by other things.

As this process unfolds, information may come to light that brings the two sides back to the negotiating table.

“As they get to know each other, it can narrow the gaps between their perceptions and what the case is worth,” Driesen said.

Patrick — who unknowingly lived in the polluted area as she raised a daughter who developed Hodgkin’s disease at the age of 17 — said the IBM settlement offer falls way short.

“It deserves so much more than that, and it is worth the wait,” she said.