Distributors Should Not Let Guard Down

The industry saw mixed results in the welding fume cases that went to trial in 2009. The year began well with a pair of industry wins in difficult jurisdictions. In February, the industry won the Thomas trial, the first case to go to trial in California. In August, a West Virginia jury rejected the claims of welder John Belcher following a ten-day trial. The Belcher case was the first welding fume trial in West Virginia, a historically plaintiff-friendly jurisdiction. In both cases, the jury refused to find that the plaintiff suffered injuries caused by exposure to welding fumes.

But last October, a Cleveland jury in the federal consolidated welding fume litigation awarded $5.7 million to Curtis Cooley, an Iowa welder. The verdict included $5 million in punitive damages and was the second largest amount ever awarded by a jury in a welding fume case. The Cooley jury found that defendants Lincoln Electric, ESAB, Hobart and BOC failed to adequately warn of the risk of permanent neurological injury as a result of exposure to fumes emitted during normal use of welding rods. Cooley was diagnosed as suffering from “manganese neurotoxicity”—a novel and loosely defined group of symptoms not widely recognized in the medical community. The defendants plan to appeal.

Overall, the trends in welding fume litigation remain largely positive for the industry. With the Cooley verdict, plaintiffs have won just 5 of 24 trials. Three of those verdicts are still subject to reversal on appeal. More importantly, the number of welding fume cases continues to decline. There are now less than 5,000 cases on file nationwide, down from a peak of more than 14,000.

However, the Cooley verdict is a reminder that the industry is still not out of the woods. Plaintiffs will continue to hone their approach and can be expected to win a higher percentage of trials going forward. Even if the number of cases continues to dwindle, distributors will remain exposed to suits brought by sick welders claiming disease or industry as a result of various “syndromes” they will attempt to link to welding fumes. Such syndromes will be easier for plaintiffs to win because they avoid the difficulty of having to prove a specific, recognized disease or condition. The plaintiff’s bar continues to focus on shipyards and other industrial workplaces to troll for plaintiffs. As indicated in my last column, asbestos suits naming welding rod manufacturers and distributors are on the rise. (Editor’s Note: You can read the September 2009 column at www.WeldingandGasesToday.org.)

Distributors must remain focused on shoring up their risk exposure to what may be a long-term threat. A single lawsuit can expose a distributor to huge legal bills and potentially crushing liability. To counter this risk, distributors should close the coverage gap that has existed since insurers began excluding welding fume liability in 2004. Talk to your insurer about obtaining the right protection for your business.

Distributors should also revisit the issue of vendor indemnification. It is common for manufacturers to indemnify distributors for liability risks associated with the distribution of their products. Distributors should seek to obtain blanket indemnification from welding rod and wire manufacturers. Finally, distributors should begin funding a reserve to at least cover the costs of retaining counsel and defending suit in the event that an uncovered liability arises. In the current litigious environment, it is not a question of whether your business will be involved in litigation, but when. Make sure your business is prepared.

(Disclaimer: The information contained in this article is provided as a service by GAWDA for informational purposes only and should not be construed or relied upon as legal advice. Consult your lawyer regarding the legal rights, liabilities and laws applicable to you and your business.)

Gases and Welding Distributors Association
Meet the Author
Michael S. 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 mike.degan@huschblackwell.com.