Latest Plaintiff Verdict Appealed To Sixth Circuit

The difficulty plaintiffs have encountered in trying to convince jurors to award damages in welding fume cases has been well documented in this space. But it is not just jurors that plaintiffs are failing to persuade. Welding fume plaintiffs are not faring any better with appellate court judges.

Since the Elam verdict was affirmed by the Illinois Supreme Court in 2005, appellate courts have overturned each of the jury verdicts awarded since, with a fifth verdict currently on appeal. Appellate courts successively reversed the $20.5 million Tamraz verdict, the $2.4 million Jowers verdict and the $1.8 million McClemore verdict.

The last jury verdict awarded to a plaintiff in welding fume litigation has now been appealed to the United States Court of Appeals for the Sixth Circuit, following lengthy post-trial litigation. Curtis Cooley, a welder from Iowa, was awarded a total of $5.7 million in the sixth bellwether trial in the consolidated MDL in 2009. The jury concluded that the defendants had failed to adequately warn Cooley of the specific dangers associated with manganese exposure, despite the fact that the industry has been warning welders of the dangers of welding in poorly ventilated areas for decades. The verdict included an award of $787,000 in compensatory damages and $5 million in punitive damages against The Lincoln Electric Co., ESAB Group Inc., Hobart Brothers Co. and Linde.

The failure to warn claim, though familiar in welding fume litigation, is especially frustrating for the industry, considering that scientists to this day have been unable to definitively establish that exposure to manganese in welding fumes during typical mild steel welding conditions can cause serious neurological injury. Nevertheless, the jury in Cooley found that the warnings were inadequate, based largely on the testimony of Robert Cunitz, plaintiff’s warning expert.

On appeal, the defendants assert that the trial court committed reversible error in at least three respects. First, defendants contend that Cunitz should never have been allowed to testify. Defendants argue that because Cunitz failed to design or test alternative warnings which would have been more effective, the court should have granted defendants’ motion to bar his testimony. Under the Daubert test that applies in federal court proceedings, the testimony of a warning expert is inadmissible if not supported by a tested alternative warning. Similarly, defendants argue that the jury should not have been instructed on failure to warn under Iowa law because Cooley failed to show that an alternative warning would have prevented or reduced injury.

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Lastly, defendants argue that punitive damages are not allowable under Iowa law where: 1) there is a “reasonable debate” over whether to warn about a theoretical risk; 2) there is no “clear connection” between the injury and the specific exposure; or 3) where a defendant’s warnings conform with industry or government standards. Defendants argue that the trial court clearly erred in allowing punitive damages because all three grounds for excluding punitive damages were present. Defendants contend that the evidence clearly established that a reasonable debate exists in the scientific community regarding whether exposure to manganese in welding fume can cause injury, and whether it is necessary to warn of the risk. Defendants also argue that the evidence demonstrated that the defendants adhered to industry standards.

The Cooley case has not yet been set for oral argument, and it is unclear how the Sixth Circuit will ultimately rule. However, if the current trend holds and the Sixth Circuit reverses for any one of the reasons cited above, Cooley would become the fourth consecutive reversal on appeal. If Cooley is reversed, it will mean that plaintiffs will have won only one verdict that has withstood appeal, despite dozens of
trials over the last nine 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 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 402-964-5000 and