Recent Developments In Welding Fume Litigation

Welding Fume Trials Scheduled to Resume
A recent lull in welding fume litigation will end with three cases scheduled to be tried by the end of 2008. The Byers Multidistrict Litigation (MDL) bellwether case will be tried in Cleveland in November, followed by two state court cases scheduled to be tried in Mississippi and California. The verdicts issued in those cases will be closely watched for indications as to whether recent plaintiff victories in Tamraz and Jowers were aberrations, or whether they signal that plaintiffs are gaining traction in their ability to convince jurors of the validity of welding fume claims.

Plaintiffs won two of the last three welding fume trials, including a $20.5 million verdict awarded to Jeff Tamraz in the MDL in December 2007. Juries have split in the two cases tried thus far this year, with the welding industry winning the last case to go before a jury last March. Tamraz was the only welding fume case tried in 2007. Defendants won all six welding fume cases tried by juries in 2006.

Cooley Selected Next MDL Bellwether Plaintiff
The federal judge presiding over the Welding Fume Multidistrict Litigation has chosen the Cooley case to be the next bellwether trial in the MDL. Cooley involves an Iowa welder who claims to be totally disabled by manganism he alleges was caused by his exposure to welding fumes. The Cooley case was randomly selected from a list of cases certified by plaintiffs from states other than the states of residence of previous MDL trials. Cases arising from Alabama (Byers), California (Tamraz), Mississippi (Jowers), South Carolina (Goforth) and Texas (Solis) were therefore not considered for selection. No distributors remain in the case, which is scheduled to go to trial March 4, 2009. The remaining Cooley defendants are Lincoln Electric, Hobart Brothers, BOC, ESAB and TDY.

Defendants Terminate MDL Tolling Agreement
A recent procedural move by defendants in the MDL may cause a short-term increase in new case filings, but in the long term should reduce the potential lifespan of welding fume mass tort litigation.

In 2004, in an effort to reduce the sheer volume of welding fume case filings, claimants and the welding industry jointly entered into a Tolling Agreement to govern the MDL. A Tolling Agreement essentially pauses all applicable periods of limitation and allows plaintiffs to take a “wait and see” approach, rather than having to file lawsuits to prevent their claims from becoming time barred. Over 11,000 individual claimants signed onto the Tolling Agreement, which avoided the filing and prosecution of as many as 11,000 lawsuits.

Defendants, on the other hand, benefit from tolling agreements by avoiding the cost and burden of defending additional cases, thereby freeing resources necessary to focus the defense on previously filed cases. The downside to the Tolling Agreement is that it indefinitely preserves 11,000 potential claims.

On August 19, 2008, counsel for several defendants notified plaintiffs and the MDL court that they were terminating the Tolling Agreement. The manufacturer defendants now believe that the most effective strategy is to force plaintiffs to prosecute and try their claims. The history of welding fume litigation has shown time and again that many welding fume plaintiffs prefer to dismiss their claims rather than having to try them in court. The manufacturing defendants have submitted a proposed Case Management Order setting forth a procedure for terminating the Tolling Agreement, which becomes effective December 17, 2008.

Claimants with tolled claims who choose to proceed will have to follow all of the requirements established by the MDL Court, including the filing of fact sheets and certificates of diagnoses. Furthermore, in order to name a peripheral defendant such as a distributor, claimants will have to establish actual use of a product sold by the defendant.

The manufacturer defendants believe most claimants with tolled claims will simply choose to abandon their claims and will not file suit. However, we may see a temporary increase in filings in the MDL by claimants who chose to preserve their claims.

(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
Michael Degan is GAWDA’s joint defense fund coordinating counsel for welding fume litigation and a partner with Husch Blackwell Sanders LLP. Members can reach him at 402-964-5000 and at mike.degan@huschblackwell.com.