News Is Good, But Don’t Let Guard Down

I had the pleasure of presenting at the Spring Management Conference in Tampa in April on the current state of welding fume litigation. For those who did not attend the Consultants Forum, the key message of my presentation was that distributors must remain vigilant, despite the fact that the trends remain positive for the industry. The industry is still not out of the woods, and there are new threats emerging that distributors must be aware of. 

First, the news is still good. The industry continues to win trials—having won more than 80 percent of more than 30 trials to date. Plaintiffs have won just five verdicts, and three of those verdicts have been reversed on appeal. The reversals include the Tamraz case, a $20.5 million verdict that had been the largest amount any jury has ever awarded to a welder. Additionally, the sizes of the verdicts won by plaintiffs have been relatively modest. Other than Tamraz, the jury awards have generally ranged from $1 million to $2 million. While these awards are not insubstantial, the costs of trying a single welding fume case to jury can exceed $2 million. In light of those costs, plaintiffs are not recovering enough on average to cover the costs of litigation. In sum, plaintiffs: 1) are winning few cases; 2) are winning small verdicts when they do win; and 3) are having a hard time surviving appeal. 

The industry’s success in the courtroom continues to have a discouraging effect on plaintiffs. New case filings are down dramatically from the peak years, and existing case counts continue to dwindle. Thousands of plaintiffs have decided to drop their cases rather than go to trial. Thousands of cases have been voluntarily dismissed. There are now less than 500 cases remaining in the MDL, and only a fraction of those are likely to be certified and fully worked up for trial. 

While this is certainly all good news, the threat has not yet passed. There are still more than 1,500 welding fume cases pending in state and federal courts nationwide. Any one of those could result in a watershed victory for plaintiffs and breathe new life into this litigation. Plaintiffs are constantly honing and refining their theories. Secondly, the attention and publicity that this litigation has generated will make it much more likely for welders to blame distributors and manufacturers for health problems in the future. As a result, distributors will likely see more litigation going forward. 

The nature of consumables litigation will continue to evolve. The industry will continue to see an increase in cases involving other components of welding fume (chromium, cadmium, fluoride, zinc). Distributors have been joined in recent cases claiming pulmonary siderosis from exposure to iron oxide in welding fumes. Welding has been a suspected risk factor for pulmonary siderosis since the 1960s. 

Perhaps the greatest threat on the horizon for welding products distributors is asbestos. There is no doubt that asbestos exposure can cause serious injury and disease. Asbestos manufacturers have long been insolvent, forcing plaintiffs suffering from asbestos-related injuries to seek recovery from distributors and retailers. Several verdicts have been won by welders claiming injuries from inhaling asbestos fibers when handling asbestos-coated welding rods manufactured and sold up to the early 1980s. Just last year, a Pennsylvania jury awarded a $12 million verdict to welders injured by handling asbestos rods. Additionally, welding product distributors are increasingly being sued by welders claiming asbestos exposure from safety equipment containing asbestos, such as boots, gloves and aprons. Distributors will continue to see more equipment cases, especially if plaintiffs succeed in establishing safety equipment as a viable source of exposure. 

The takeaway is that the litigation threat is not going to simply go away. Distributors need to employ long-term risk management strategies to manage and account for litigation threats over the long term. 

(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 the law firm of Husch Blackwell LLP. Members can reach him at 402-964-5000 and mike.degan@huschblackwell.com.