Despite Courtroom Successes, Fume Litigation Remains A Real Threat

What’s ahead in 2008? Hopefully, the good news that has been reported in this space regarding welding fume litigation will continue. The industry’s cumulative trial record is now 16 wins and just one loss. The lone plaintiff victory was nearly four years ago, and since then, juries have on every occasion rejected plaintiffs’ claims that exposure to welding fumes caused serious neurological injuries. These successes can be attributed to several factors, including the lack of medical and scientific evidence to support these claims, the lack of large numbers of truly sick plaintiffs and, perhaps most important, the rigorous and effective defense mounted by the industry.

The number of welding fume cases pending in state and federal courts is less than half of what the number of active cases was just last year.

These industry successes have had a dramatic effect on the state of this litigation. New case filings are down significantly, and plaintiffs have dismissed existing cases in droves. As a result, the number of welding fume cases pending in state and federal courts is less than half of what the number of active cases was just last year. In a true sign of despair, plaintiffs have grown reluctant to try welding fumes cases. As of October, not a single welding fume case had yet gone to trial in 2007, despite the fact that more than a dozen trials were scheduled through the first three quarters of 2007. Rather than trying cases, plaintiffs have repeatedly sought trial continuances and, in some instances, even moved to dismiss cases to avoid trial. While it is unrealistic to expect the industry to win every trial, there is real hope that the industry can extend its winning record and discourage plaintiffs from continuing to pursue these questionable claims.

While all this is certainly good news, the welding industry is not out of the proverbial woods yet. Continued success will depend upon maintaining the vigorous defense of these claims. The industry has enjoyed almost unparalleled success defending this mass tort by choosing to stand and fight these claims, rather than seeking to buy peace through settlements. But even if the industry’s success continues and this mass tort trails off, the industry can expect to see higher numbers of claims than previously experienced. The plaintiffs’ bar has expended substantial sums examining the industry and has a ready stable of welder plaintiffs to pursue claims. Plaintiffs can be expected to change tactics and strategies. In fact, recently filed lawsuits have alleged injury due to exposure to other components of welding fumes, including hexavalent chromium, nickel and even fluoride.

For a distributor named a defendant in a fume case, the costs of defending the case alone can be substantial, even ruinous. Because insurance coverage for welding fume claims arising in 2004 or after is no longer available, distributors may not have insurance for future claims. Distributors will have to look to manufacturer indemnification or participation in the NationWeld RRG, which offers coverage for costs of defending fume claims up to $500,000. NationWeld was established by GAWDA members for the purpose of providing protection against welding fume liability, especially the costs of defending welding fume claims. There are currently 36 participating members in NationWeld. Wally Brant, GAWDA member and a founding member of NationWeld, says there is plenty of room for more. There is safety in numbers, and with greater participation, Wally says NationWeld will be able to procure reinsurance, which will not only improve capital to pay claims, it will reduce premium cost.

I urge members to consider participating in NationWeld. After all, the good news that welding fume cases are being fought and won means little to a distributor facing mounting legal bills that he or she cannot afford.


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.