Do fumes from welding metal cause nerve damage, and did industry cover up that possible connection? The dispute over these questions is shaping up as the next mass tort battle.
Some 10,000 welders have filed lawsuits in courts around the country in a clash that pits legal veterans of the tobacco and asbestos wars against marquee names from the defense bar. The litigation has spread to some two dozen companies, most of which make welding materials. Others, such as Caterpillar Inc. (CAT), are distributors of welding supplies, while some inherited and divested small pieces of the market years ago, such as Viacom Inc. (VIA).
On June 27 the industry won a key early victory when a federal jury found that because welding suppliers had put warnings on their products, they shouldn't be held responsible for a worker's illness. That case, brought by Ernesto G. Solis, 57, a former welder at a Corpus Christi (Tex.) Navy base, is one of about 4,000 claims consolidated in U.S. District Court in Cleveland, and it could influence how others play out.
Federal Judge Kathleen M. O'Malley is holding a series of trials -- Solis was the first -- to establish guidelines for what evidence and legal procedures should be allowed in future cases. While O'Malley's decisions aren't binding, they are likely to be influential.
John Beisner, a lawyer who represented Lincoln Electric Co. and other defendants in the Solis case, says jurors concluded that the product warning labels were a good-faith effort to protect workers. The defense also argued that there isn't conclusive scientific evidence that inhaling welding fumes causes symptoms similar to those of Parkinson's disease, as plaintiffs contend.
Beisner, a partner with O'Melveny & Myers and a leading proponent of reining in mass personal injury suits, sees a broader message: After recent revelations of fraudulently generated suits involving silica and asbestos, plaintiffs' lawyers can no longer count on rounding up batches of allegedly sick workers in hopes of scaring companies into settling. "The industry has forced them to try cases, to put up or shut up," says Beisner.
But the plaintiffs' lawyers, Richard F. Scruggs and Don Barrett, who led the charge against Big Tobacco a decade ago, say the fight is far from over. They are betting that manganese poisoning from welding fumes is a hidden epidemic that has caused thousands of workers to become ill with paralyzing tremors. They say they have stronger cases in the pipeline concerning plaintiffs with more severe symptoms than Solis, who exhibited a tremor in his right hand.
LOOKING FOR VICTORY
The plaintiffs' team has amassed corporate memos, letters, and meeting minutes dating to the 1930s that they say show an industry more concerned with profits than worker safety. The argument didn't sway the Solis jury. But lawyers say they are still uncovering evidence that the companies minimized the risks of welding even as they provided warnings beginning in the late 1960s.
Welding rods, which are composed of steel coated with manganese and other noxious metals, are melted at high heat to fuse or harden components at construction sites, on ships, and in factories. Welders wear helmets to shield their face from heat and sparks, but that doesn't protect them from toxic fumes. Manganese is linked to tremors and paralysis, but debate persists over what degree of exposure causes serious illness.
Welders began suing in the mid-1990s. Defendants have won cases in state courts prior to Scruggs and Barrett taking on the cause. But industry settled the first Cleveland test case, paying more than $1.6 million. The next case was dismissed after defendants captured the victim on video doing chores he had said he couldn't do because of his tremors.
So far there is scant evidence that welding is the next asbestos. But Barrett says he continues to uncover evidence of misconduct. "We have blockbuster information," he says, while admitting that the litigation is growing expensive. "We need to win some verdicts."
By Lorraine Woellert