Industry Continues To Win Trials

The welding industry extended its streak with a win in the eighth welding fume case to go to trial in the federal Welding Fume Multidistrict Litigation (MDL). On May 27, a jury sitting in Akron, Ohio, found in favor of The Lincoln Electric Company in the trial of David Mann. Mann, a South Dakota resident, alleged that he developed manganism as a result of exposure to welding fumes during periods he was employed as a welder at the Ingalls Shipyard in the 1970s and 1980s. Mann was subsequently diagnosed with manganism by his own doctors, as well as by doctors at the Mayo Clinic. Mann claimed that Lincoln manufactured an unreasonably dangerous product and negligently failed to warn him of the risk of brain injury from exposure to manganese in welding fumes. Other welding rod manufacturers originally named in the lawsuit were dismissed before trial.

After two weeks of trial, the jury found that Lincoln did not manufacture an unreasonably dangerous product. The jury did find that Lincoln failed to adequately warn of the risks of neurological injury. However, the jury also determined that Ingalls Shipyard, Mann’s employer, was a “sophisticated user” of welding products and had a duty to properly instruct Mann regarding proper welding practices and to warn of risks attendant to welding. The jury found that any deficiency in Lincoln’s warnings was therefore excused. Lincoln was also able to show that Mann’s physical symptoms were consistent with other medical problems that Mann suffered from unrelated to welding.

Mann was the second industry win this year. In April, a jury returned a verdict in favor of Hobart Brothers in the Arroyo trial. No distributors remained as defendants in either the Mann or Arroyo cases at the time of trial. Last October, a jury awarded $5.787 million in compensatory and punitive damages to Curtis Cooley and his wife in the sixth MDL bellwether trial. However, with the Mann win, the industry has won 25 of the 30 welding fume cases that have gone to trial thus far in state and federal courts.

The wins demonstrate that plaintiffs continue to struggle to convince juries that exposure to manganese in welding fumes causes neurological injury, largely due to the lack of good science to support plaintiffs’ claims. Plaintiff lawyers have long claimed that with time, more evidence would be developed to support their claims as more scientific resources are devoted to study the problems posed by exposure to welding fumes. However, two scientific studies published last year are providing yet more support for the proposition that mild-steel welding does not cause neurological injury.

Last May, the Journal of Occupational and Environmental Hygiene published a mortality study which sought to determine whether there was a statistical relationship between occupations involving welding and mortality from Parkinson’s disease, Alzheimer’s disease and other neurodegenerative diseases. The study concluded that the data showed no association between welding occupations and death from Parkinson’s, Alzheimer’s or other neurological diseases.

Similarly, in September 2009, another peer-reviewed medical journal published by the American Medical Association, Archives of Neurology, published the results of a case-control study consisting of 519 cases and 511 controls which examined the correlation between certain occupations, including welders, and Parkinson’s disease and other neurological disorders. The study concluded that welders did not have a higher incidence of parkinsonism or Parkinson’s disease than the general population.

The trends in welding fume litigation remain positive. The industry continues to win the overwhelming majority of welding fume cases. The fact that the scientific evidence continues to support the industry indicates that the positive trend should continue.

(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 at 402-964-5000 and mike.degan@huschblackwell.com.