Industry Wins California Fume Trial

The first case to go to trial in the California coordinated welding fume litigation resulted in a significant win for the welding industry. On February 11, after a four-week trial, an Alameda County jury returned a verdict for defendants Lincoln Electric, ESAB Group and Hobart Brothers. Plaintiff Elbert Thomas claimed that he suffers from manganism resulting from exposure to welding fumes, but the jury unanimously rejected his claims, saying he suffers from Parkinson’s disease (PD) unrelated to welding fume exposure. The jury also concluded that defective warning labels could not have caused any injury because Thomas admitted that he had not read the labels.

The Thomas jury, however, found by a 10-2 majority that the warnings utilized by the defendants were inadequate to warn of the dangers posed by exposure to welding fumes. The jury also found by the same majority that the defendants knew or should have known of the dangers posed by welding fumes. The findings underscore the challenges defendants have in disproving liability based on the state of imperfect or incomplete knowledge in the past. It is far less challenging for plaintiff lawyers to prove what the defendants “knew” or “should have known” in hindsight, and juries often struggle with the distinction. Nevertheless, the jury unanimously found that the plaintiff failed to prove that his exposure to welding fumes caused any injury and declined to award damages.

The Thomas verdict was welcomed as further proof that juries remain reluctant to award damages in welding fume lawsuits—even in plaintiff-friendly jurisdictions. The Thomas jury joins juries in Arkansas, Illinois, Louisiana, Mississippi, Ohio and Texas that have rejected damage claims brought by welders claiming injury as a result of exposure to welding fumes. The welding industry has now won 22 of the 26 welding fume cases that have gone to trial.

Several thousand other cases have been voluntarily dismissed as plaintiff lawyers have reluctantly concluded that welding fume cases do not represent easy money. Nevertheless, several thousand cases remain on state and federal dockets nationwide. Additionally, the recent repeal of the tolling agreement has added more than 1,100 cases to the MDL docket. The jury findings that the warnings were inadequate in the Thomas trial demonstrates that the industry must continue to vigorously defend each trial and deprive the plaintiff bar the victories they desperately need.

Study Suggests Manganese-PD Link
Welding product litigation continues to drive attention to scientific research concerning PD, especially when it has possible relation to welding fumes. A study conducted by researchers from the University of Pennsylvania School of Medicine, Purdue University and The University of Alabama discovered a possible link between genetic and environmental causes of PD. The study, published in the journal Nature Genetics last February, found that certain yeast genes, which approximate human genes associated with PD, displayed a hypersensitivity to manganese. The study was funded in part by a National Institutes of Health grant and is currently under review. The study’s author concludes that further testing on actual human genes is needed before drawing any conclusions on whether a similar effect occurs in humans. Nevertheless, the findings are being touted by some in the plaintiff’s bar as scientific “proof” of a link between PD and welding fumes. Plaintiffs can be expected to misconstrue the study as a possible genetic explanation as to why some welders exposed to manganese in welding fumes suffer injury, while others do not.

Scruggs Sentenced Again
Richard “Dickie” Scruggs pled guilty February 10 to bribery charges. Scruggs, already serving five years in jail for attempting to bribe a Mississippi judge, was sentenced to a concurrent seven-year jail term for admitting to attempting to entice another Mississippi judge to rule in his favor in a dispute over attorney fees in an asbestos case by promising to influence his appointment to the federal bench. If Scruggs qualifies for good time credit and avoids being sentenced on any more bribery charges, he may be released sometime in early 2015. Scruggs and attorney Don Barrett were among the principal movers behind the explosion of welding fume lawsuits in 2004.

(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.