Distributors Exposed To Asbestos Claims

A recently filed lawsuit demonstrates that distributors of welding products will continue to be exposed to product liability risks relating to welding consumables. Joe Taylor, a former welder and boilermaker, filed suit in California last March against several defendants, including manufacturers and distributors of asbestos-coated welding rods. Taylor alleges that he contracted asbestosis and lung cancer as a result of long-term exposure to asbestos, including his use of asbestos-coated welding rods. Taylor claims he was exposed to asbestos dust while handling asbestos-coated rods in preparation for use, rather than from exposure to welding fumes.

The Taylor case is the latest of several lawsuits involving rods containing asbestos. In 2004, a New York jury awarded $6.7 million to two welders after finding that the welders had contracted lung cancer and mesothelioma as a result of exposure to asbestos-coated welding rods.

For decades, several common varieties of welding rods were coated with a mixture containing up to 15 percent asbestos. Although manufacturers stopped selling rods containing asbestos in the early 1980s, thousands of welders used asbestos-coated rods for years. Due to the latent nature of asbestos-related injury, welders and persons exposed to asbestos-coated welding rods can be expected to continue to bring claims for years to come. Among the diseases associated with asbestos exposure are asbestosis, mesothelioma and lung cancer. Unlike manganese and Parkinson’s disease, the causal link between asbestos and certain diseases is well established.

Plaintiffs who have had no occupational exposure to asbestos are also bringing claims on the theory that they were exposed to asbestos fibers on clothing and materials carried by others. Thus, the spouses and children of exposed workers are increasingly bringing injury claims. In fact, Taylor claims that his exposure to asbestos began as a child. Both of Taylor’s parents worked at Kaiser Shipyard during WWII, where his father worked as a welding instructor.

Asbestos litigation is the longest, most expensive mass tort in the history of the United States. The data suggest that the lawsuits will not abate anytime soon. While new asbestos lawsuits are down from peak levels in 2002, there were approximately 5,000 new asbestos claims filed last year alone. Approximately 40 asbestos claims were tried by juries in 2008, and the average jury award was approximately $7 million. The total cost of asbestos litigation will likely top a staggering $200 billion in this country alone.

It is likely that the welding industry will see an increase in litigation involving asbestos-coated welding rods. The rate at which people are diagnosed with asbestos-related diseases is expected to increase through the next decade. Federal legislation introduced in 2005 to attempt to control the costs of asbestos litigation has stalled, and the current administration is unlikely to champion the cause. One of the unfortunate side effects of the welding fume litigation explosion is that welders are much more attuned to litigation. As a result, welders will be more likely to seek compensation through legal channels in connection with an illness or injury.

Unfortunately, there is nothing you can do to limit liability for products sold by your company in the past. The best distributors can do is to be prepared. Retrieve all insurance policies that were in force at any time during the history of your business. Asbestos cases typically allege exposure over decades, often going back as far as 40 or 50 years. Most current policies exclude coverage for asbestos-related claims. However, older policies may provide coverage. Consider establishing a reserve to cover the costs of defending claims. Negotiate agreements with welding rod manufacturers to defend and indemnify your company in the event you are sued for selling an asbestos-coated rod. While none of these options will provide complete protection, save perhaps the latter, you will at least be prepared to respond in the event a summons arrives at your door.

(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

Michael Degan 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 402-964-5000 and mike.degan@huschblackwell.com.