Juries Split In Latest Round Of Welding Fume Trials

For the first time since 2003, plaintiffs recently won verdicts in welding fume trials. This unwelcome news was at least partially tempered by an industry victory in the most recent welding fume trial.

Last December, a jury sitting in Cleveland awarded $20.5 million in compensatory damages to welder Jeff Tamraz and his wife. The jury did not award punitive damages. The verdict was awarded against manufacturers Lincoln Electric, Hobart Brothers, ESAB Group, BOC Group and TDY. No distributors remained in the case at the time of trial. The jury determined that the manufacturers failed to adequately warn of the dangers of being exposed to manganese contained in welding fumes. The jury concluded that Tamraz suffers from manganese-induced Parkinson’s Disease as a result of being exposed to welding fumes. The defendants are appealing the verdict due to the lack of credible scientific evidence linking manganese exposure to Parkinson’s Disease.

On March 6, a Mississippi jury awarded more than $2.4 million in compensatory and punitive damages to Robert Jowers against Lincoln Electric, ESAB and BOC Group. A fourth manufacturer, Arcos Industries, was dismissed shortly before trial. The jury found that Jowers was partially responsible for his own injuries, and the verdict was reduced by 40 percent. The defendants plan to appeal the Jowers verdict.

That same day, a jury in Louisiana returned a verdict in favor of the industry on all counts after six weeks of trial. The Andre trial involved four separate cases that were consolidated for purposes of trial. Despite the difficulty of trying four cases against four plaintiffs in a hostile jurisdiction, the jury deliberated for less than an hour before returning a verdict in favor of the industry against all four plaintiffs. Significantly, all four Andre plaintiffs had been diagnosed by attorney-paid physicians at attorney-sponsored screenings.

What does this all mean? The pair of successive losses is disappointing, and the size of the Tamraz verdict is of particular source of concern. However, there appear to be factors that may explain plaintiffs’ most recent successes that have not been present in most welding fume cases.

In both Tamraz and Jowers, the plaintiff was diagnosed by his own doctor, rather than a lawyer-paid screening physician. Plaintiffs who were diagnosed by their own doctors are a rare breed in this litigation. More than 75 percent of plaintiffs in the multi-district litigation (MDL) who submitted Notices of Diagnoses revealed that they had been diagnosed by lawyer-paid screening physicians. Furthermore, Mr. Jowers was diagnosed as suffering from manganism, a rare but recognized disease caused by exposure to large amounts of manganese. These facts appear to have been pivotal in the recent victories secured by plaintiffs. However, the ability of other plaintiffs to replicate these successes is limited because the number of cases involving non-screened plaintiffs, or a manganism diagnosis, is exceedingly small.

More important, the state of welding fume litigation should not be judged on any particular win or loss, especially when the underlying facts regarding this litigation have not changed: There is still no credible scientific evidence linking exposure to welding fumes to neurological injury, particularly to Parkinson’s Disease. Several large-scale epidemiological studies have shown that welders are no more likely to suffer from neurological diseases than non-welders.

A review of the history of this litigation demonstrates the difficulties plaintiffs face in convincing juries of the merits of their claims. Of the 23 welding fume cases tried to date, the plaintiffs have won just three cases, despite the fact that plaintiffs try cases only in the most plaintiff-friendly jurisdictions.

The trend with respect to case counts continues downward. In the MDL, there are now just 464 remaining cases that have complied with the Court’s requirement to serve Notices of Diagnoses (all other remaining cases that have not complied are subject to dismissal). At its peak, there were more than 10,000 cases pending in state and federal courts. New case filings in state and federal courts are dramatically down from peak levels.

Nevertheless, it remains imperative for the industry to keep the pressure on plaintiffs by continuing to vigorously defend each of these cases. The strategy appears to be working. After a busy 2006 which saw six cases decided by juries (all six of which were won by the defendants), Tamraz was the only case tried in 2007. More than a dozen other cases scheduled to go to trial in 2007 were continued or dismissed by plaintiffs to avoid trial. This year could prove pivotal for the future of welding fume litigation.

(Disclaimer: The information provided in this column is a service provided by GAWDA for informational purposes only and should not be considered legal advice.)

Gases and Welding Distributors Association
Meet the Author
GAWDA’s 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.