Water Pollution Claim Proceeds Against IBM

, New York Law Journal

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A judge properly declined to dismiss a negligence claim against IBM for allegedly polluting groundwater in the Binghamton area between 1935 and the late 1980s, an upstate appeals court has ruled.

The Appellate Division, Third Department's decision in Ivory v. International Business Machines, 516276, affirmed a finding by Broome County Supreme Court Justice Ferris Lebous that the negligence claim withstood a pretrial challenge by IBM.

The cases of two homeowners, Thomas and Timothy Ivory and Grace Odom, have been severed from a 1,000-plaintiff class action and will be tried first. No trial date has been set. At issue are health problems plaintiffs who owned homes near the plant operated until 2002 by IBM, blame on exposure to the solvent trichloroethylene, or TCE.

While IBM's experts maintain that the company complied with industry standards of care involving chemical solvents, the appeals judges said the plaintiffs' submissions suggest otherwise, especially to people unschooled in science.

"Despite the statements and conclusions of defendant's experts, the record does not contain an explanation as to how a large pool of solvents developed beneath defendant's facility," Justice William McCarthy (See Profile) wrote.

The appeals court also backed Lebous' dismissal of claims for exposure to TCE by the Ivorys and Odoms at locations other than their homes and claims for medical monitoring by plaintiffs who have not become ill. The Court of Appeals held recently in Caronia v. Philip Morris USA, 2013 NY Slip Op 08372, that medical monitoring is an element of damages that may be recovered only after plaintiffs have proven a physical injury (NYLJ, Dec. 18).

Presiding Justice Karen Peters (See Profile) and Justices Leslie Stein (See Profile) and Elizabeth Garry (See Profile) joined in the ruling.

Mary Ellen Powers of Jones Day in Manhattan argued for IBM.

Attorneys for Faraci Lange in Rochester; Levene, Gouldin & Thompson in Vestal; Williams Cuker & Berezofsky in Philadelphia; and Weitz & Luxenberg in Manhattan are representing the plaintiffs.

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