Product Safety Policies

Demonstrate that you take safety seriously.

In my last column, I reported the welding industry’s great success defending fume cases last year. In 2006, the industry won all six welding fume cases tried to juries. This year has proven to be much quieter for welding fume litigation. In fact, not a single welding fume case has gone to trial so far this year, despite the fact that more than a half-dozen were slated to be tried in state courts and the MDL by July. Each of the trials set for the first half of 2007 was postponed, and the next two MDL trials are now scheduled for November 2007 and January 2008.

The plaintiffs’ lack of enthusiasm to try welding fume cases is perhaps understandable in light of the industry’s recent successes. However, with more than 1,500 cases still pending in the MDL, and as many as 5,000 additional claims pending in state courts, the industry is not out of the proverbial woods. Recent studies demonstrate that over time, plaintiffs will gather more evidence in support of their claims. Two recently published studies purport to show that welders can be exposed to sufficient levels of manganese in certain confined welding situations to cause demonstrable neurological effects. These effects include tremors, loss of memory, sleep disorders and sexual dysfunction. These studies are subject to peer review and are by no means definitive science. The evidence will continue to be debated in scholarly journals and courtrooms. But as plaintiffs’ lawyers, labor organizations and consumer advocacy groups continue to fund research to establish a link between welding fume exposure and injury, the number of “plaintiff-friendly” studies can be expected to grow.

Tune Up Your Product Safety Policies
One of the best defenses you can employ in your business is to adopt a safety-conscious attitude toward the products you sell—whether the risk relates to welding fumes or any other potentially hazardous product you carry. Many distributors view product safety and the dissemination of product safety information as strictly the manufacturer’s concern. The better approach is to understand the reality that your business is just as likely to be sued as the manufacturer if a user is injured while using a product purchased from your business. The better policy to adopt is one that embraces the goal of ensuring that your customers are informed about the safe uses of the products you sell.

A good product safety policy should start with ensuring that all warnings and safety information regarding any of the products you sell are made available to your customers. Keep copies of all MSDS for any products you carry on hand for distribution to your customers or their employees. Manufacturers will furnish extra copies upon request and many make them available on the Internet. Direct questions regarding the safe use of products to manufacturer MSDS and product labeling. Keep a list of manufacturer product hotlines available to provide to your customers if they have specific questions.

Reinforce the safe use of specific products. For example, with respect to welding consumables and equipment, make it a policy to remind customers and their employees that exposure to welding fumes can be dangerous. Remind customers to use appropriate safety equipment and to avoid welding in poorly ventilated areas. Hold periodic safety clinics for your customers and have manufacturer representatives demonstrate the safe use of the products they sell. This is not only a sound risk management practice; it is good business.

While sound safety practices will not provide a complete defense against future product liability lawsuits, they will provide the foundation for a strong defense against such claims. A distributor who can demonstrate that he or she takes safety seriously and does his or her part to communicate safety precautions to customers will be much more sympathetic to a jury than a distributor who considers product safety the manufacturer’s problem.

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.