Industry Gains Momentum Defending Welding Fume Suits

The verdicts are in—and the news is good.

Over the last several years, the plaintiffs’ bar spent millions advertising the myth that exposure to manganese contained in welding fumes causes brain damage. As a result, tens of thousands of lawsuits were filed against manufacturers and distributors of welding consumables—despite the lack of any credible scientific proof linking welding fume exposure to neurological injury. Plaintiff lawyers boasted to anyone who would listen that welding fume litigation was poised to become the next big mass tort since asbestos.

The verdicts are now in. Last year the industry won all six welding fume cases tried to juries, including wins in plaintiff-friendly jurisdictions such as Madison County, Illinois, and Galveston, Texas. Defendants have now prevailed in 16 of the 17 welding fume cases tried as of the writing of this article. Plaintiffs have not won a single verdict since Elam in 2003. Again and again, juries have rejected plaintiffs’ efforts to link welding and welding fume exposure to serious injury.

The mounting trial losses are having an effect. After three consecutive years of mass filings, the number of new welding fume cases filed last year was down dramatically. Additionally, plaintiffs have been dismissing existing claims by the thousands. In the MDL alone, plaintiffs moved to dismiss more than 3,100 cases in 2006, resulting in a 36 percent reduction in the number of pending cases. Thousands more state court cases have also been dismissed during the last 12 months.

There is nothing like a string of defense verdicts to throw cold water on the “next big mass tort” notion. But a closer look at the developments over the last year reveals larger, fundamental problems for welding fume plaintiffs beyond the current win/loss record—problems that perhaps explain why several prominent welding fume lawyers are dropping their cases and heading for greener pastures.

First, there is simply no credible scientific evidence linking exposure to manganese in welding fumes to Parkinson’s disease or parkinsonism. While it has long been established that exposure to very large quantities of manganese can cause manganism, there is no evidence linking manganese exposure to Parkinson’s disease. Furthermore, research has shown the levels of manganese welders are exposed to during welding are far below the established exposure limits shown to cause adverse effects in animals.

Second, there is simply no evidence of widespread neurological disease among welders. Two recent epidemiological studies confirmed earlier findings that welders and persons exposed to welding fumes do not have a higher incidence of Parkinson’s disease, parkinsonism or neurological injury than workers in other occupations. The studies compared the medical histories of more than 50,000 welders to a larger sample of 500,000 workers over several decades. If welding fumes are as dangerous as plaintiffs claim, where are all the sick welders?

As more light has been shed on plaintiffs’ injury claims through discovery, serious questions have arisen regarding the legitimacy of many claims:

  • Three of the first five “bellwether” cases chosen by plaintiffs for early trial in the MDL were voluntarily dismissed after defendants discovered that the plaintiffs had misrepresented their claims. Of the thousands of cases to choose from in the MDL, are these cases representative of the best cases plaintiffs have?
  • The MDL judge selected 100 cases for intensive fact discovery. Shortly thereafter, plaintiffs dismissed 40 of the cases chosen for intensive discovery. How credible are these claims if they cannot withstand scrutiny?
  • An analysis of fact sheets filed in the MDL shows that more than 70 percent of plaintiffs have never sought medical treatment for their alleged injury. How sick can these claimants be if they have never sought treatment?

What does this all mean? Litigation over welding fumes will continue, probably for several more years, and plaintiffs can be expected to win verdicts. But unless plaintiffs can find a way to prove that exposure to welding fumes causes actual injury, the overall trend the industry saw in 2006 can be expected to continue. Let’s hope that it does.

Gases and Welding Distributors Association
Meet the Author
GAWDA Joint Defense Fund Coordinating Counsel Mike Degan is a partner with Blackwell Sanders Peper Martin LLP, in Omaha, Nebraska. Members can reach him at (402) 964-5000 and at mdegan@blackwellsanders.com.