Plaintiff Shifts Welding Fume Strategy

As the industry continues to chalk up victories, and as evidence continues to mount that there is no credible evidence to support claims that exposure to manganese in welding fumes can cause serious neurological injury, case counts continue to drop. Perhaps the surest sign that plaintiffs are on the ropes is the fact that through three quarters of the year, not a single welding fume case has been tried in 2011. This year may prove to be the first year without a welding fume trial since the Elam verdict in 2003 (although a half-dozen cases are scheduled to go to trial in 2012).

In yet another sign of desperation, a plaintiff in the MDL recently shifted strategy on the eve of trial. Richard Street was diagnosed over 18 years ago as suffering from Parkinson’s disease (PD). Since then, Street has been treated by at least eight neurologists, each having diagnosed Street as suffering from PD. Street’s treating neurologists acknowledge that PD is idiopathic. In other words, there is no known cause for Street’s PD.

Street filed suit in 2006 alleging that he suffers from nonspecific neurological injuries as a result of his exposure to manganese in welding fumes. His suit was supported by the diagnoses of two attorney-sponsored screening doctors, not by any of his treating neurologists. Predictably, both of the screening doctors diagnosed Street as suffering from diseases attributable to exposure to welding fumes. Dr. Paul Nausieda opined after a brief screening that Street suffers from manganism, not PD.

Manganism is a rare, but recognized disease caused by prolonged exposure to very high levels of manganese. Most documented cases of manganism involve manganese miners subjected to manganese dust on a daily basis for years. Plaintiffs have routinely claimed that due to similarities in the symptoms caused by the two diseases, welders are often misdiagnosed as suffering from PD, when in fact, they suffer from manganism. However, manganism affects a different area of the brain and presents different symptoms than PD. A careful examination can differentiate between the two diseases. The defense often attack plaintiff claims by demonstrating that the plaintiff suffers from PD, not manganism, since there is no known cause for PD.

In the Street case, eight of his treating neurologists rejected the possibility that he really suffers from manganism when presented with Nausieda’s diagnosis. Each ruled out a misdiagnosis and confirmed that Street suffers from PD. Rather than dismiss his case, Street simply changed his theory. On the eve of trial, Street announced that he was going to present his case on an unproven theory of Dr. Juan Sanchez-Ramos. Sanchez-Ramos was one of the two screening doctors who initially screened Street. Sanchez-Ramos determined that Street suffers from PD, which he believes was caused by his exposure to manganese in welding fumes. Since his findings conflicted with those of Nausieda, Street did not disclose Sanchez-Ramos as a testifying expert until after he switched theories.

Street’s shift in strategy is remarkable, considering that medical science has been unable to determine any cause of PD over the last 125 years of study and research. A finding in a court of law that manganese exposure causes PD would therefore exceed known science. Nor is Sanchez-Ramos’ opinion grounded in any original research. Instead, his opinion is based upon his “meta-analysis” and review of the existing research, from which he finds a “weak” association between welders and PD. However, Sanchez-Ramos conceded that he has no idea what level of manganese exposure is necessary to allegedly cause PD, nor the level of Street’s manganese exposure.

Defendants have moved to strike the testimony of Sanchez-Ramos as “junk science” under the Daubert rule. The court has set a hearing to decide whether Sanchez-Ramos can present his theories to the jury in the Street trial. While Street’s novel theory has all the markings of a “Hail Mary” pass, whether Sanchez-Ramos is allowed to testify may prove significant. If Street is barred from presenting the opinions of Sanchez-Ramos, the attempt to do so will prove to be simply another failed effort of plaintiffs to gain traction in welding fume litigation. On the other hand, if Street is allowed to present the testimony of Sanchez-Ramos at trial, plaintiffs will open another avenue of attack and may yet breathe new life into their claims. Stay tuned.

(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.