A Banner Year For Defendants

The welding industry added to its record of success in welding fume litigation with several trial and appellate victories last year. The welding industry won all three welding fume cases to go to trial in 2010 and obtained reversals of two welding fume verdicts, including the largest verdict ever awarded in welding fume litigation, the $20.5 million Tamraz verdict.

Last October, a federal jury denied the claims of James Clinger, a former welder who claimed that his early onset of Parkinson’s disease was caused by exposure to welding fumes. The jury found in favor of defendants Lincoln Electric and Hobart Brothers on all counts after deliberating less than 40 minutes.

The welding industry won all three welding fume cases to go to trial in 2010 and obtained reversals of two welding fume verdicts.

Clinger’s own doctors had not determined that he was suffering from any welding-related injury. Instead, Clinger called Dr. Paul Nausieda to opine that his Parkinson’s disease was related to exposure to welding fumes. Dr. Nausieda, a neurologist, has received more than $1 million from plaintiff lawyers to screen welders for welding-fume-related neurological injuries. At trial, defendants were able to effectively impeach Dr. Nausieda’s testimony due to the lack of any medical support for his theories. The defendants also confronted Dr. Nausieda with pathology reports from over 30 patients that he had diagnosed as suffering from manganism. Defendants were able to show that the pathology reports showed no medical evidence to support Dr. Nausieda’s diagnoses.

The Clinger win followed defense victories in the Mann and Arroyo trials in the Federal Welding Fume Multidistrict Litigation earlier in the year. (See “Industry Continues To Win Trials” in the Fourth Quarter issue of Welding & Gases Today). The Clinger victory brought the trial record to 26 defense wins in the 31 welding fume cases tried to date.

Plaintiffs have not fared any better in the appellate courts. Last year, the Sixth Circuit reversed the $20.5 million Tamraz verdict, while the Fifth Circuit took away a $2.4 million verdict awarded to Robert Jowers. Both cases were sent back for new trials. Tamraz will be retried on liability and damages. Jowers will be retried on damages only.

The Tamraz award was not only the largest jury verdict ever awarded in a welding fume trial, it was the subject of a 2008 feature in Mother Jones magazine damning the welding industry for allegedly subjecting welders to known safety hazards. In reversing the jury verdict, the Sixth Circuit agreed with the industry that the plaintiffs had failed to produce any competent evidence to link exposure to manganese in welding fumes and neurological injury.

Of the five verdicts plaintiffs have won in welding fume litigation in the last ten years, two have been overturned on appeal, and two more are still on appeal awaiting decisions. The industry remains hopeful that the Cooley and McLemore verdicts will likewise be reversed. Thus far, only the $1 million Elam verdict awarded in 2003 has withstood appeal.

The cascade of bad news for plaintiffs will continue to dampen enthusiasm for pursuing welding fume claims and hopefully will speed an end to this manufactured epidemic.

(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 at mike.degan@huschblackwell.com.