SAN JOSE, California — In the photograph, a frozen moment of optimism, Yvette Flores is smiling.
It’s the summer of 1979. Yvette, in a flower-patterned dress, is 22 years old and five months pregnant. To her right is her husband, David, a big man wearing tinted aviator glasses, a T-shirt and an inscrutable expression. They have no idea what’s coming.
Mark Rueda Flores was delivered at the Kaiser Permanente Santa Clara Medical Center on December 3, 1979. There were many problems from the start: His eyes were crossed. His testicles had failed to descend. His hips were dislocated. He was unable to suck on a breast or bottle. His head was covered with large blood blisters, known as hematomas.
By the time Mark was 4, it was clear that he was profoundly disabled. He was still crawling. He wasn’t talking normally. “The words were coming out like a foreign language,” Yvette said.
In December, Mark turned 35. He is six feet tall. Before he had gall bladder surgery last summer he weighed nearly 400 pounds. He speaks mostly in monosyllables, often repeating the last word or phrase his mother says. He watches Sesame Street on a loop and likes trains, forklifts and Chuck E. Cheese. Not long ago, he learned to draw a circle.
For the first 29 years of Mark’s life, Yvette had no reason to suspect his condition was the product of anything other than misfortune. Had she not heard a radio ad 6 ½ years ago, she might believe that still.
The ad was sponsored by a law firm. As Yvette remembers it, the announcer asked, “Have you worked in the electronics industry? Do you have a child with these defects?” Yvette: “I go, ‘Yeah, yeah.’ ” She wrote down the phone number and called a few days later.
Risks to workers and their offspring
When it comes to protection against toxic hazards, workers in America are treated differently — that is to say, more callously — than the general public. This legal disparity allows someone who toils inside a factory to face higher risks of cancer and other maladies than someone who lives just beyond the plant fence.
The damage, it turns out, isn’t confined to the workers themselves. Building on science more than a century old, recent studies have found ties between parental exposures and childhood afflictions such as brain tumors, malformations and learning disabilities. A bicoastal consortium of toxic-tort lawyers has begun targeting electronics manufacturers, blaming chemical-intensive processes for skeletal abnormalities, developmental delays, heart defects and other problems in workers’ children.
The little-publicized litigation comes on the heels of hundreds of lawsuits filed against IBM Corporation and its chemical suppliers in the late 1990s on behalf of cancer-stricken workers and their injured offspring. It raises questions about the control of teratogens — substances, such as lead, which can interfere with tightly sequenced fetal development — in the workplace.
Across all industries, air samples testing positive for lead by the Occupational Safety and Health Administration from 1984 through 2013 exceeded the exposure limit 40 percent of the time, a Center for Public Integrity analysis shows. Just how many workers have been exposed to unsafe levels of lead in electronics manufacturing is unclear because the sampling was so much more limited.
“There are not enough government protections for the types of exposures that occur,” said Tracey Woodruff, director of the Program on Reproductive Health and the Environment at the University of California, San Francisco. “OSHA’s not even really dealing with cancer, so this is another order down.”
Indeed, OSHA itself says that many of its exposure limits for dangerous substances don’t offer sufficient protection for workers. Parsing 30 years of agency data, the Center found that when air samples across all industries tested positive for teratogenic mercury vapor, they were above the legal limit less than 1 percent of the time. But a third of the samples topped the much stricter limit recommended by the National Institute for Occupational Safety and Health.
The placenta was long thought to provide a barrier against most toxic insults to the fetus. Scientists now understand that “it’s nowhere close to a closed system,” said Emilie Rissman, who heads the biological sciences department at North Carolina State University. “It has to get nutrition from the mom and has to get rid of waste, so there is some exchange that has to happen. In the same way that nutrients and oxygen get to the fetus, other things in the mom can come in.”
A father’s exposures also can cause trouble, Rissman said, given that an embryo gets its DNA from both parents. Mutagenic chemicals like dioxins can affect the ability of sperm to fertilize eggs and also can alter genetic material, leading to embryo loss or disease in babies.
‘I never questioned anything’
Mark Flores’ mother was born Yvette Yturralde in Carlsbad, New Mexico, on May 27, 1957. Her family moved to San Jose when she was 2. Her father, Santana, was a plasterer. Her mother, Velma, was a seasonal cannery worker. She had two brothers and one sister.
By the time she was 18, in 1975, Yvette was a few credits short of completing high school. She enrolled in a program that helped her get a GED diploma and find a job. She landed at a company called Spectra-Physics, which made lasers at a plant in Mountain View, northwest of San Jose in what was becoming known as Silicon Valley.
For 4 ½ years, eight to 10 hours a day, five or six days a week, Yvette worked in a small, stuffy room in Building 5, fusing together glass tubes at a precise angle. A man worked behind her.
Yvette sat at her assembly station with a spray gun, applying a greenish adhesive to the glass tubes and using a blow torch to cure it. A fan turned weakly above her. “It was like no air was coming in there,” she said. When it got too bad, she’d flee to the larger glass-blowing area in Building 5 for relief.
Yvette mixed the adhesive in a beaker using powder from a box and liquid chemicals. “I was never told to cover myself up or anything when I did that,” she said. She would learn many years later that she was being exposed to lead and the solvent methanol, both of which can sabotage a fetus. At the time, she said, “I never questioned anything.”
In 1978, the year before she gave birth to Mark, Yvette had a miscarriage in the women’s restroom at Spectra-Physics. “I had severe cramping. … I went in there and I was bleeding and I just remember being in such excruciating pain.” None of her managers ever followed up to ask if she was all right, she said. She recalls going back to work two days later.
Early evidence of fetal harm
Decades before Yvette Flores became pregnant a second time, researchers knew that a parent’s exposure could impair, and perhaps kill, an unborn child.
In a 1911 lecture to the Eugenics Education Society in London, Sir Thomas Oliver, a physician, spoke of his hard-won success “in securing the emancipation of female labour from the dangerous processes of lead-making …. Lead hits hard the reproductive powers of man and woman, but especially of woman.”
In the 1950s came alarming reports out of Minamata Bay, Japan, where a chemical manufacturer had dumped an estimated 27 tons of methyl mercury over nearly four decades, contaminating fish, a staple of the local diet. More than 900 people died of mercury poisoning and some 2 million suffered neurological damage or permanent disability. Babies born to mothers who had eaten the tainted fish also developed symptoms, akin to cerebral palsy, of what became known as Minamata disease.
Around the same time, thousands of children worldwide whose mothers who had taken the drug Thalidomide for morning sickness during pregnancy were born with limb deformities.
Over the course of a year, beginning in June 1975, the children of three men who worked in the same building at a GAF Corporation chemical plant in Rensselaer, New York, were born with heart ailments. Suspicion fell on a herbicide, oryzalin, which was made in the building. Federal health investigators later confirmed what they called an “unusual cluster of birth defects” at the plant but stopped short of blaming oryzalin.
One of the GAF babies, Brian Purcell, died at five days old. “Nobody expects to lose a child that quick,” said Brian’s father, Doug, now retired. “He was delivered by C-section, and once his heart problems developed they moved him to another hospital. We never got a chance to say goodbye.” He and his wife had no more children.
In early 1979, just before Mark Flores was conceived, newspapers including The Washington Post and The Wall Street Journal carried a story out of Willow Island, West Virginia. Female workers of childbearing age at an American Cyanamid chemical plant said the company had pressured them to undergo sterilization so they could continue to work around lead in the plant’s pigments division. Those who refused were told they’d be reassigned to lesser-paying jobs or fired. Five women went through with the procedure.
Yvette knew none of this, logging her hours in Building 5 to the very end of her pregnancy with Mark. Had she suspected her work could hurt him, “I would have run out of that place,” she said. “I would have worked in fast food.”
As Mark grew, his parents came to anticipate his quirks and deficiencies. He’d take off running and have to be chased down. He could ride a tricycle but couldn’t stop. He could be coaxed into talking only with an offer of food and began putting on weight. His father, David, a truck driver, once told Yvette, “I would give my right eye, my arm, anything, just to go for a minute into his brain and see what he’s thinking.”
Yvette and David insisted that Mark get out in the world. This policy led to some uncomfortable, occasionally unnerving, encounters. People would stare rudely. When Mark was 12, he accidentally bumped into a woman at a crowded Target store. The woman’s husband, convinced that Mark had acted intentionally, became enraged and was preparing to punch him when Yvette stepped in.
The episode appears to have traumatized Mark. As Yvette was recounting it last summer, Mark, sitting next to her on the sofa in their mobile home, snapped out of his torpor and began crying. “Mom, I’m sorry,” he said, putting his head on Yvette’s left shoulder. She assured him it wasn’t his fault. “Mama takes care of you. It’s you and me, right?”
Mark was especially close to his father, whom people called Güero — Spanish slang for someone who’s light-skinned. After David died in a motorcycle accident on December 23, 2007, Mark was beside himself and began ransacking the house. “He was very physical because he couldn’t verbalize,” Yvette said.
He found solace at the Multiple Intelligence Training Center, an adult day care center founded by one of his former teachers. He joined the other clients in dancing, singing and gardening. On holidays, Yvette has him draw pictures for his father. “He does 75 pages of circles. I say, ‘OK, put them by your bed and the angels will come and pick them up and take them to your daddy up there in heaven.’”
From canneries to Silicon Valley
The revelatory radio ad Yvette heard in December 2008 was sponsored by Waters & Kraus, a personal-injury law firm based in Dallas. After answering a series of questions, she was contacted by Amanda Hawes, a lawyer in San Jose.
Hawes, who prefers to be called Mandy, is gaunt and barely five feet tall. She talks fast and says she has a photographic memory.
A native of Bergen County, New Jersey, Hawes graduated from Harvard Law School in 1968 and moved to the Bay Area, where she joined the San Francisco Neighborhood Legal Assistance Foundation. She started off representing people of limited income, mostly immigrant pensioners, who were being evicted from residential hotels in the city’s Yerba Buena district in the name of redevelopment. A settlement with the city put them in decent, affordable housing.
In the early 1970s Hawes moved to the Legal Aid Society of Alameda County in the East Bay, where she began representing women, most of them Hispanic or African-American, who performed grueling, low-paying seasonal work at fruit and vegetable canneries throughout Northern California. “Most of the year-round jobs were for the white guys,” Hawes said. “Women’s labor was always welcome if it was a shitty job that no one else wanted.” It was typical for women in the canneries to work 12-hour shifts in hot, noisy conditions with no overtime; some experienced sexual harassment of the crudest sort, an invitation to “get into the camper with the supervisor,” as Hawes put it, in exchange for a marginally better job. Hawes helped scores of them file discrimination claims with the Equal Employment Opportunity Commission and win back pay.
As the canneries began to relocate to California’s Central Valley and Mexico, the electronics industry was booming in the Santa Clara Valley south of San Francisco. Companies that made the brains of computers and other devices — semiconductors, circuit boards, disk drives — were in need of what Hawes calls “cheap, malleable labor.” Women who’d been pitting apricots soon were spin-coating chemically complex and highly reactive “photoresist” mixtures onto silicon wafers, cleaning them with solvents, baking them, dipping them in acids. The clamor of the conveyor belt was replaced by the calm of the so-called clean room, where the primary goal was to protect the product against any particle contamination, from dust to dandruff, by using equipment made expressly for this purpose. The workers themselves were largely an afterthought, breathing re-circulated air that, unbeknownst to them, was laced with chemicals.
In 1977, Hawes went into private practice in San Jose and began representing female electronics workers. Her first three clients in this field had worked in an R&D laboratory at Signetics, a semiconductor manufacturer in Sunnyvale. They’d been reassigned to the cafeteria and given essentially nothing to do after complaining of being made sick by acids, solvents and heavy metals. They were fired after the company said it couldn’t find work for them. Hawes filed workers’ compensation claims and a lawsuit on their behalf; all were settled.
Investigators with the National Institute for Occupational Safety and Health — NIOSH — visited the Signetics building on several occasions in 1979. They interviewed five employees who complained of severe and lingering headaches, tightness of the chest, metallic tastes in their mouths and nosebleeds. The investigators concluded that “a significant occupationally related health problem exists at the Signetics Sunnyvale facility” and suggested that the company improve ventilation.
In 1981, the California Department of Industrial Relations published the results of a survey of workers in semiconductor chip manufacturing. The survey revealed a range of cancer-causing chemicals used in the industry — including arsenic, chromium, asbestos, beryllium and nickel. The same year, 65,000 customers of the Great Oaks Water Company in south San Jose learned that their drinking water supply had been contaminated with trichloroethylene and other solvents that had leaked from underground storage tanks at plants owned by IBM and Fairchild Semiconductor. Two epidemiological studies later confirmed what some residents had suspected: There were increased rates of miscarriage — also known as spontaneous abortion — among women who’d drunk the water, and of congenital malformations, such as holes in the heart, among children exposed in the womb.
The tainted-groundwater incident “started to change the landscape,” Hawes said. People stopped thinking of companies like IBM, whose landscaped grounds looked like college campuses, as benign neighbors. “The chemicals don’t really end up in the product, so where do they go? Well, they either end up as hazardous waste that you’ve got to do something about, they evaporate into the air, they go into the water or they go into workers’ bodies.”
In 1988, researchers with the University of Massachusetts published a study that found elevated miscarriage rates among workers in clean rooms and other departments at a Digital Equipment Corporation factory in Hudson, Massachusetts. The authors cautioned that the study population was small and recommended that it be repeated with a larger number of workers and better exposure data. They offered no conclusions about possible triggers for the miscarriages, though they noted that a group of solvents called ethylene glycol ethers, used in photoresist, had been flagged as teratogens in animal experiments and also had been seen to cause atrophy of the testicles, behavioral abnormalities and bone marrow depression. Workers’ exposures to these chemicals appeared to be “well below federal industrial standards,” suggesting that such standards might be too weak.
The Digital study led to two bigger ones in the 1990s: one commissioned by IBM and the other by the Semiconductor Industry Association, a trade group. Both drew a connection between miscarriage and exposure to ethylene glycol ethers. Katharine Hammond, now a professor of environmental health sciences at the University of California, Berkeley, worked on the SIA study, which involved 14 companies. Hammond went into the project convinced that “we’re not going to find anything,” she said. Instead, she and her co-investigators documented a nearly twofold risk of spontaneous abortion among women who’d been exposed to selected solvents, and a nearly threefold risk among those exposed to the highest levels of ethylene glycol ethers.
Even the highest exposures were only fractions of federal limits, which had been established to protect workers from acute effects — headaches, nausea — and not carcinogenic or reproductive ones. “Teratogens are very poorly understood,” Hammond said. “I don’t see employers necessarily being evil in these cases. I think they do care. It’s just that we have a huge ignorance here.”
The industry responded to the findings by phasing out ethylene glycol ethers, leaving the impression that the problem had been addressed. No follow-up studies were done to see if the miscarriage rates declined. No one looked at birth defects.
In 1970, Dr. Joseph LaDou opened a medical practice in Sunnyvale, 12 miles northwest of San Jose. Many of his patients worked in the electronics industry. “From the outset I saw an extraordinary number of injuries and a high rate of occupational illness,” said LaDou, now retired. Workers, he said, would be overcome by fumes and vapors and be “standing in the parking lot” in a state of fear when he arrived on the scene. There were many cases of asthma and bronchitis. Some workers had solvent exposures so intense that they arrived at his office “in the first stage of anesthesia. They were driving drunk from solvent fumes.”
LaDou, a former professor of medicine at the University of California, San Francisco, and former editor of the International Journal of Occupational and Environmental Health, said he began pressing companies to tell him which chemicals they were using and to share any exposure data they had. “I was completely, totally blocked by the industry,” he said.
The excessive secrecy continues today, LaDou said: “People have just gotten tired of not being told what the companies use.”
In a written statement to the Center, the Semiconductor Industry Association said its members have “a legitimate business need to protect proprietary chemical formulations as confidential business information.” Federal regulations require companies to provide workers with safety data sheets listing ingredients in their products, the SIA said, though some “trade secret” ingredients are exempt from such disclosure.
In addition to eliminating ethylene glycol ethers, the industry began using “enclosed processes that reduce routine exposures to process chemicals including potential reproductive [and] developmental toxins,” the SIA said. Its members adopted “policies that offered pregnant employees (and those trying to become pregnant) the choice to opt out of working in the [fabrication-room] environment during these time periods.”
The group said it didn’t pursue birth-defect studies because companies had taken protective measures and because of “the complexity of studying birth defects and the limited number of exposed study participants.”
‘It was a catastrophe’
In the late 1990s, IBM workers who believed they had developed cancer or their children had suffered defects because of chemical exposures began filing legal claims. An expert hired by the plaintiffs, epidemiologist Richard Clapp of Boston University, reviewed an internal IBM “corporate mortality file” unearthed during discovery. Analyzing nearly 32,000 worker deaths between 1969 and 2001, Clapp found significant excesses of brain, kidney and pancreatic cancer, along with melanoma, in male manufacturing workers. Female workers had higher-than-expected numbers of deaths from kidney cancer, lymphoma and leukemia. Clapp detailed his results in a 2006 paper whose publication IBM tried to block.
“Initially, it was a group of guys with testicular cancer, a ridiculously large number, just an improbable cluster,” said Steven Phillips, a toxic-tort specialist in New York who worked on the cases with Hawes and other lawyers. “It was rapidly turning into birth-defect litigation, because as we started investigating, all these birth defects came jumping out. They were so severe and unusual, and there were so many of them. It was a catastrophe.”
One case against IBM was filed on behalf of Kate and Kelly Daley, twins born in 1979 with a rare skin disease called epidermolysis bullosa, or EB, which caused a whole-body blistering requiring constant care and countless surgeries. Their father, Chris, was a technician who delivered chemicals and disposed of waste at the IBM plant in East Fishkill, New York. He’d started at IBM in 1971.
“He would spill things on him during the day,” said his wife, Nancy. “Early in his career he would bring those clothes home and they would go into the [washer] with the rest of the laundry.”
The Daley twins’ affliction would punish them physically and emotionally until their deaths 13 days apart in 2006, though they managed to graduate from college and become eloquent writers and speakers. “If you ask a burn victim what it’s like to be burned — that’s the level of suffering they experienced their entire lives,” their mother said. “Each one could take up to eight hours for wound care. EB became their job.”
In 2003, Chris Daley was diagnosed with non-Hodgkin lymphoma, a blood cancer associated with exposure to benzene and other organic solvents. He sued IBM’s chemical suppliers; like other workers, he was barred by the New York workers’ compensation statute from suing his employer. He died not quite a year after his daughters.
The twins’ lawsuit against IBM and their father’s case against the suppliers were resolved under terms that are confidential.
Only two of the IBM cases went before a jury. The plaintiffs were Jim Moore, who was dying of non-Hodgkin lymphoma, and Alida Hernandez, who’d had breast cancer; both had worked at the company’s disk drive plant in San Jose. Hawes, who helped represent them, was able to overcome the workers’ comp bar in California by claiming IBM had fraudulently concealed the chemical sources of Moore’s and Hernandez’s illnesses, causing their conditions to worsen.
The four-month trial ended in February 2004, the jury siding with IBM. Hawes blamed the defeat on the judge’s refusal to allow jurors to consider crucial evidence, notably the corporate mortality file. An IBM lawyer called the verdict “a slam dunk” for the company.
Moore died not long after the trial. Hernandez, who worked for IBM from the late 1970s to the early 1990s, is convinced she lost a breast because of the company’s failure to warn her about chemicals. “There were lots of women who were losing their babies, lots of young men who were getting sterile,” she said. “They kept it all quiet.” Her comp claim against IBM and lawsuits against the chemical suppliers were settled out of court.
IBM spokesman Todd Martin said in a written statement that the company “is committed to the safe operation of all its facilities, as well as to the health and well-being of our employees.” IBM, Martin wrote, “has been transparent in addressing” matters raised by the 1990s litigation “and the quality of our operations and health and safety programs are well documented.”
Martin did not respond to a question about a 2014 NIOSH study that found a higher-than-expected number of deaths from non-Hodgkin lymphoma and other cancers, and more frequent occurrence of testicular cancer, among 34,494 workers employed at an IBM plant in Endicott, New York, from 1969 to 2001.
He also did not respond to a request to disclose the names of chemicals used at IBM facilities today.
New claims on behalf of children
All the IBM litigation was resolved by the mid-2000s. Then, a few years later, came another round of lawsuits with a different set of defendants. Lawyers who had brought the IBM cases began representing workers at other electronics companies who’d had children with severe developmental or structural defects.
Dozens of claims have been filed against Motorola Solutions, successor to Motorola Inc., which at one time operated a series of semiconductor manufacturing plants in the Phoenix area and Austin. The complaints allege an array of defects among workers’ progeny: spina bifida, leaking heart valves, cerebral palsy, club foot, blindness, seizures. They maintain that Motorola officials allowed workers to be exposed to ethylene glycol ethers — despite having been “personally warned” by a federal health investigator in 1981 that the chemicals were reproductive hazards — and that the company tracked the “incidence of adverse reproductive outcomes among the offspring of its employees.” Workers also were exposed to solvents such as benzene, heavy metals such as arsenic and many other toxic substances, the complaints charge.
“What we have seen is a pattern of the industry as a whole ignoring the rights and safety of their employees and their employees’ unborn children for the sake of profit,” said one of the plaintiff’s’ lawyers, David Bricker of Los Angeles. “We have families who are living in poverty because everything they have goes toward caring for a profoundly injured child.”
Co-counsel Phillips said that while ethylene glycol ethers were phased out by U.S. semiconductor manufacturers in the 1990s, “the use of [other] crappy solvents and these heavy metals is continuing ….If you’re standing over one of these goddamned vats, dipping [components] all day long, you’re getting a snoot full — I mean, huge levels, gigantic levels.” The so-called bunny suits worn by the workers “are designed to keep your noxious body parts, like dandruff or eyelashes, off the product,” Phillips said. “In no way do they keep the vapors from getting into your lungs.”
In a written statement, Motorola Solutions spokeswoman Tama McWhinney said the company does not comment on pending litigation and has not been in the semiconductor business for more than a decade. In a court filing, it denied the allegations in the lawsuits, saying “it is Motorola’s policy to conduct all its operations in a responsible manner free from recognized hazards.”
A legal case stalls — and is revived
Mandy Hawes approached the Mark Flores case in 2009 as she had many others of its ilk. She knew she’d have to track down Yvette’s ex-colleagues, dredge up internal documents — assuming they hadn’t been lost or destroyed — and depose uncooperative or forgetful defense witnesses. The odds of success weren’t good, given that Yvette had worked in the stuffy room at Spectra-Physics 30 years earlier. “I thought, ‘How are we gonna figure this out?’ ” Hawes said.
She went forward with a lawsuit, reasoning that Mark’s mental disability likely came from something his mother worked with while she was pregnant. Mark’s brother and sister, both younger than he, were normal; they’d been conceived years after Yvette left Spectra-Physics at the end of 1979. Hawes was especially curious about the green powder Yvette had mixed with the liquid chemicals and used, day after day, to fuse small pieces of beveled glass onto the tips of laser tubes, the guts of barcode scanners that were beginning to be installed at grocery stores.
Early in her investigation, Hawes sent a request to the company for any air sampling data taken, or written descriptions of chemicals used, during the four-plus years Yvette was there. “All we got was, ‘Well, we can confirm she worked here as a laser assembler,’ ” Hawes said. Her attempts to find former co-workers proved fruitless, and the case stalled. Lawyers for Spectra-Physics asked the court to throw it out.
Then, in 2013, two breakthroughs: A woman named Dora Jimenez, who’d worked with Yvette in Building 5, called her to say she’d been contacted by a defense investigator. Yvette asked Jimenez if she’d be willing to speak with Hawes, and she agreed. Jimenez gave a deposition and was a strong witness, Hawes said. “She remembered that shitty little room where Yvette worked. She remembered the extent of safety training was being told not to touch something so hot it would burn your fingers.”
A representative of Newport Corporation, a successor company to Spectra-Physics, also proved unexpectedly helpful. In a deposition, David Marshall, like an earlier defense witness, used the word “frit” to describe the green powder Yvette had handled. Hawes already had a 1985 company document showing frit contained more than 1 percent lead oxide, a teratogen, but found it to be of little value. Marshall produced another document from 2007 that put the proportion at less than 75 percent. “Well, that’s kind of different from ‘more than 1 percent,’” Hawes said. Accounting for its other constituents, like silicon dioxide, and doing some simple math, she concluded that frit was about 62 percent lead oxide.
Marshall also confirmed the use of organic solvents, mainly methanol, in Yvette’s former work area.
Hawes knew she had something at this point. Lead’s savage effects on fetuses were well documented, and solvents, as she put it, had their own “affinity for brain tissue.”
Still, she needed to connect Yvette’s exposures with Mark’s problems. This was where the medical experts came in.
Among them was Dr. Cynthia Bearer, chief of the Division of Neonatology at the University of Maryland School of Medicine. In a May 2013 declaration, Bearer explained that fetuses are “exquisitely sensitive to environmental toxicants” such as lead and methanol, and that fetal harm could occur even when workplace exposure levels were well below legal limits. In Yvette’s case, methanol levels regularly were above the limit, Bearer wrote, citing exposure estimates from another expert; the hematomas on Mark’s oversized head at birth, she wrote, were classic signs of methanol poisoning.
While Mark has many burdens — poor vision, skeletal anomalies, undescended testicles — his “most disabling feature is his extensive cognitive impairment,” Bearer wrote. “He is and will always be totally dependent on a small group of trusted family members and service providers for help in all aspects of daily living, from feeding, dressing, undressing, bathing, urinating and defecating to crossing a street, finding words to express needs, and protecting himself from strangers.”
The doctor wrote that in utero lead exposure could produce these very deficits and that Yvette’s body was a “toxic warehouse before Mark was conceived, upon conception and throughout Mark’s gestation because of the release of stored lead from her bones into her blood stream and across the placenta into Mark’s blood stream and the amniotic fluid in which he was contained.”
There was no evidence of a genetic flaw, Bearer wrote. “To attribute all of Mark’s problems to a purely genetic cause requires a suspension of disbelief that Yvette Flores’ exposure to lead and methanol had any impact or played any part in the severe damage apparent in Mark from birth onward.”
A defense expert, pediatric geneticist Gregory Enns with the Stanford School of Medicine, disagreed. “I think that Mr. Flores has a genetic condition,” Enns testified in an April 2013 deposition. “I do not think that any environmental exposures explain any of his condition.” Mark, he speculated, might have fallen victim to a de novo mutation — i.e., “something spontaneous” — carried by one or both of his parents but not expressed in the genes of either. In short, bad luck.
Under questioning by Hawes, Enns said that he and his Stanford colleagues tracked their patients’ symptoms, diagnoses, inheritance patterns and ethnicities, but not their parents’ occupations. Could he estimate how many worked in electronics, with its attendant metals and solvents, or agriculture, where pesticide exposures were common? ”You can ask me about any profession,” Enns told Hawes, “and I wouldn’t know.”
The Flores case was settled out of court in July 2013, shortly before trial was to begin. Hawes declined to disclose the details.
Calls and emails to Newport Corporation and its lawyers in the Flores case were not returned. In a court filing prior to the settlement of the case, the company asserted that Mark’s condition was “not known to be caused by chemical exposure” and was, “more likely than not, the result of genetic or other factors.”
‘He’s taught me patience’
As a result of his gall bladder surgery and some dietary changes, Mark Flores’ weight has dropped to 218 pounds, according to his mother. The legal settlement enabled her to buy a dark-gray Toyota Tundra pickup truck, and she’s in the market for a three-wheeled bike Mark can ride. Longer term, she wants to move from their mobile home in south San Jose into a house. “I want a big backyard for Mark,” said Yvette, whose own health is frail. “That’s my dream.”
Yvette, who admits to feeling exhausted and depressed at times, nonetheless says that caring for Mark has been a blessing. “He notices the small things that we all tend to forget sometimes,” she said. “He’s taught me patience.”
As Yvette eyes the future, scientists and regulators are making incremental progress on the sorts of workplace poisons that debilitated Mark.
NIOSH researchers are collaborating with others in government to add questions about occupational exposures to large studies of birth outcomes and children’s health, and to analyze occupational data already captured.
“There’s a lot of work happening, but there’s still a long way to go,” NIOSH epidemiologist Carissa Rocheleau said. “While we can easily detect the dramatic examples like Thalidomide, subtle impairments in children as they are developing might not be easy to detect.”
The state of California, acting on evidence that lead is harmful at far lower levels than once believed, is nearing the end of a five-year process to tighten its occupational lead standard — and not by a little.
The state’s, and the federal government’s, current limits for lead are 50 micrograms per cubic meter of air and 30 per deciliter in a worker’s blood. California is moving to change those to 10 and 10 — the strictest in the nation. Recent studies have shown “significant health outcomes” at even those low numbers, said Steve Smith, manager of the Research and Standards Health Unit in the state’s Division of Occupational Safety and Health. Among them: high blood pressure, heart disease, decreased brain function and reproductive effects.
Hawes, who has been representing women in workplace litigation for more than 40 years, is unsympathetic to employers who try to blame conditions like Mark Flores’ on happenstance. By the late 1970s, she said, it would have been almost impossible for managers at companies like Spectra-Physics not to know that lead could injure fetuses; OSHA recognized the threat and began working on a well-publicized lead standard in 1975. The following year, The New York Times reported that General Motors Corporation in Canada had “ordered that no women of childbearing age work at its battery plant because of the danger.” In 1978, OSHA director Eula Bingham warned in a memorandum that infants who survived “the lead intoxication of their parents may be mentally retarded or physically disabled.”
Mark Flores was conceived the year after that.
Jamie Smith Hopkins and Maryam Jameel contributed to this story.
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