Welding Fume Litigation Out With A Whimper?

A funny thing happened on the way to the courthouse.

It started with a bang. After Larry Elam won a million-dollar verdict in one of the first welding fume suits to go to trial, plaintiff lawyers loudly proclaimed to anyone who would listen that welding fume litigation was going to be the “next asbestos.” As tens of thousands of cases were filed in the two years following Elam, others predicted that the welding industry would collapse under the onslaught of litigation. The plaintiffs bar seemed poised to take down another industry.

Rumors have been floating that the steering committee for plaintiffs has been negotiating a proposal to terminate all currently pending welding fume cases. Such an agreement would effectively end welding fume litigation as a mass tort.

Then a funny thing happened on the way to the courthouse. Rather than buying peace through settlement negotiations, the industry decided to stand its ground. In the absence of credible scientific evidence linking welding fume exposure to neurological injury, or any data supporting the existence of an epidemic of welding fume injuries, the industry chose to force plaintiffs to prove their claims in court. Jury after jury rejected claims that exposure to fumes emitted during mild steel welding caused injury. In fact, plaintiffs have eked out just five wins in more than thirty trials. Of the five jury verdicts awarded to welders, four have been reversed, with a fourth still on appeal.

Industrial Jury Trial Win/Loss Record 2005-2011Last year, for the first time since the Elam verdict, not a single welding fume case went to trial. At the same time, case counts continued to dwindle as hundreds more cases were voluntarily dismissed last year. The total number of active cases remaining in the federal MDL is less than 100, with approximately 1,500 cases still on file in state courts nationally.

There are three cases set to go to trial in the first half of 2012. However, rumors have been floating for several months that the steering committee for plaintiffs has been negotiating a proposal to terminate all currently pending welding fume cases. Such an agreement, if accepted by sufficient numbers of plaintiffs, would effectively end welding fume litigation as a mass tort. Even in the absence of such a resolution, the trends continue to point to a dwindling end. This year should prove decisive.

(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 mike.degan@huschblackwell.com.

You may also like ...