Trends, Trials And Appeals

This year should prove to be another pivotal year in welding fume litigation. With a number of cases set to go to trial and several appeals likely to be decided, the events of this year could decide whether welding fume litigation as a mass tort fades away quickly or lingers on for years or even decades.

Trends
Recent years have seen a significant reduction in new case filings, and case counts are down significantly from the peaks seen in the years after welding fume litigation exploded in 2003. However, caseloads appear to have stabilized. Currently, there are approximately 700 cases pending in the federal consolidated multidistrict litigation, and several thousand more remaining in state courts. At the current rate of trials, it would take years to work off the remaining backlog of cases. Therefore, it is imperative for the industry to continue winning in order to encourage more voluntary dismissals and deter new case filings.

Trials
In 2006, the industry won all six claims that went to trial. This forced the plaintiff bar to radically reevaluate their cases and strategy, which resulted in the dismissal of thousands of claims. As a result, there was just one welding fume trial in 2007, followed by four trials in 2008. Last year, three welding fume cases went to trial. In 2009, the industry won two verdicts, and welder Curtis Cooley won a $5.7 million verdict in the third trial.

Plaintiffs have now weeded out their weakest cases and have honed their strategy. As a result, plaintiffs have fared much better in the cases that have gone to juries since 2006. Through the end of 2006, plaintiffs had won only one of 16 jury trials. Since 2006, plaintiffs have won half of the eight cases that have gone to juries.

The recent wins enjoyed by plaintiffs do not herald a sea change in welding fume litigation. Instead, it is due to the fact that plaintiffs are trying cases brought by truly sick welders diagnosed by their own physicians. These cases are the most difficult for the industry to defend. But they are also few in number. In fact, despite years of welding fume litigation, plaintiffs still have difficulty finding good cases to take to trial. This was recently demonstrated by the dismissal of the Ray case in the MDL, which was dismissed after photographs of the supposedly disabled plaintiff competing in a powerboat race came to light.

Furthermore, the recent successes enjoyed by plaintiffs is tempered by the relatively modest size of the judgments awarded, especially when the costs of litigating these cases is factored in. Even when awarding punitive damages, juries have not been awarding plaintiffs the big numbers plaintiffs hoped for. Of the five verdicts awarded to plaintiffs, three were under $2.5 million, one was for $5.7 million, and the fifth was for $20.5 million. Plaintiffs have demonstrated in motions for fees and costs filed in welding fume cases that it costs upwards of $2.2 million dollars to bring these cases to trial. Plaintiffs will simply be unable to continue pursuing these hard-fought cases if juries continue to return modest judgments.

Appeals
Appeals from jury verdicts awarded in the Tamraz and Jowers cases will likely be decided this year. How these appeals are decided could broadly and dramatically affect the future of welding fume litigation. In addition to either affirming or reversing the verdicts, the United States Court of Appeals for the Fifth Circuit will for the first time have an opportunity to review and weigh in on key issues and rulings made by the court in the consolidated welding fume litigation, including such key issues as the admissibility of expert testimony and the affirmative defenses available to the industry. If the Court of Appeals were to reverse the trial court on these issues, the plaintiffs could be dealt a fatal blow for the remaining cases in the MDL. On the other hand, a decision to affirm the verdicts would not have such a dramatic effect, since the industry has been trying cases pursuant to these rulings for years.

(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
Mike 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.