Settlement Not The End For Welding Fume Litigation

Legal battle to continue in 2006

The settlement of the Charles Ruth case for a reported $1.5 million by defendants ESAB and Hobart Brothers does not mean that welding rod manufacturers or distributors are throwing in the towel or that plaintiffs’ lawyers will be encouraged to bring additional lawsuits because of this result. In fact, this was a strategic settlement based on the particular facts of that case and does not include or imply any admission of liability by the defendants.

Plaintiff Ruth was a welder in Pascagoula, Mississippi, for several years beginning in the late 1990s. He developed severe neurological impairment, including “masking” of the facial features and difficulties in motor skills, and claimed that these injuries were caused by exposure to the manganese in welding fumes.

Ruth’s lawsuit was one of some 5,000 that have been consolidated before a single federal court judge in Cleveland, Ohio, in the Multidistrict Litigation (“MDL”). About 10,000 cases have been filed to date in federal and state courts nationwide. Of all those cases, only ten have gone to a jury trial and only one of those trials, the Elam case in Illinois, has resulted in a verdict for the plaintiff (and that verdict for $925,000 is on appeal to the Illinois Court of Appeals).

The plaintiffs’ counsel in these cases are using the same business plan they have used in other mass tort litigation. By recruiting plaintiffs with advertising and notices at union halls, they flood the courts with thousands of cases regardless of the level of impairment of the actual plaintiffs. Then they take their “best” cases (where the plaintiff is severely injured) to trial, hoping for a large verdict to use as a benchmark to value all of the other cases where the plaintiffs have less serious injuries. The counsel then attempt to force a settlement of the lesser-impaired or non-impaired plaintiffs using these first high-dollar verdicts. Also, plaintiffs’ counsel coordinate the announcement of the initial high-dollar plaintiffs’ verdicts to affect both the insurers and the investors for the defendants.

Settlement Before Trial
Because Plaintiff Ruth has such visible injuries that would be obvious to a jury if Mr. Ruth testified at trial, the plaintiffs’ counsel scheduled his case as the first of the MDL cases to go to trial. In settling the case on the eve of trial, the plaintiff’s lawyers apparently were concerned that the Ruth case might not be strong enough to generate the kind of multi-million verdict that could push the other thousands of welding fume cases to settlement. Although a $1.5 million settlement is substantial, it is not of the magnitude that plaintiffs’ counsel had hoped for in setting that case for trial.

Several other factors led to the plaintiffs’ side settling before trial. First, the defense had argued that Mr. Ruth had Parkinson’s Disease, which the defense asserts cannot be caused by exposure to fumes in mild steel welding. But Mr. Ruth refused to undergo a PET Scan, the most reliable method of diagnosing Parkinson’s Disease.

In addition, Mr. Ruth had only begun welding in 1997, and by then the warnings on packages of welding rods were much more clear and comprehensive than in prior years. This would allow the defense to argue that the plaintiff had been adequately warned about taking care to avoid undue exposure to fumes from welding.

Third, Mr. Ruth welded at a Navy Yard for a government contractor, and therefore was subject to military specifications on product warnings. This could have an additional defense to the plaintiff’s allegation of inadequate warnings.

If their arguments were so strong, then, why did the defense settle this case? One, because Mr. Ruth would present a compelling figure on the witness stand and jury members would likely feel sympathy for him even if the evidence showing the cause of his injuries was weak. Second, counsel for the defendants technically violated the discovery order when they provided several thousand additional documents to the plaintiff’s counsel only two weeks before trial was about to begin. This could have put the plaintiff at a disadvantage going into trial, and the court had already ordered that the parties had to exchange all requested documents by January 2004. The judge was considering a motion to sanction defense counsel for this error when the case settled.

This newly “found” material had another consequence as well. The Pressler case had gone to trial in state court in Texas earlier in 2005, and the jury reached a verdict for the defendants. But plaintiff’s counsel in Pressler moved the court for a new trial given the additional documents released in the Ruth case just before that trial (and after the Pressler trial). Counsel argued that the documents, if available to Mr. Pressler, could have allowed the jury to reach a different verdict. The judge ordered a new trial in the Pressler case. (This will be the third trial in that case—the first trial resulted in a hung jury.)

Credibility and Causation
The real issue in all of these cases is the credibility of the medical evidence on what caused the plaintiffs’ injuries. There is still no credible medical study that links exposure to manganese in welding fumes to manganism or other Parkinson’s-like symptoms. Dr. Racette at Washington University in St. Louis has conducted research that suggests such a link, but he has not established that such causation exists.

In contrast, a recent study of the health records of 28,000 Danish welders and metal workers over 20 years showed no significant difference in the number of cases of manganism or other Parkinson’s-like symptoms among the welders studied than among the general population.

The Ruth case will probably not be the last settlement of these welding fume claims. Other cases might be settled for strategic reasons that apply only to that particular case, and welding supply distributors should not worry unnecessarily that one or several settlements means that the industry has lost this struggle. If the plaintiff’s bar does not foresee a series of quick and easy recoveries in their “best” cases, they might decide that the effort is not worth the results.

Gases and Welding Distributors Association
Meet the Author
Richard P. Schweitzer, Esq. president of Richard P. Schweitzer, PLLC in Washington, D.C., is GAWDA’s Government Affairs and Human Resources Legal Consultant. Members can reach him at (202) 223-3040 and at rpschweitzer@rpslegal.com.