  10 Things You Need to Know About Welding Rod Litigation1. Origin A coalition of southern tobacco and asbestos attorneys have mobilized the plaintiff bar into a large multi state litigation involving welders exposed to fumes containing allegedly toxic levels of manganese. After nine unsuccessful trial results in the South and Midwest, a one million dollar verdict was recently obtained in Madison County, Illinois. 2. Expanding Litigation Since the Elam verdict in Illinois, scores of lawsuits have been filed in Mississippi, Texas, Illinois, Georgia, Louisiana and now California. The next significant trial is scheduled to proceed later this month in Texas and should provide much information to litigants in California as to the plaintiff's ability to prove the causal link between manganese exposure and damage to the central nerve system and brain. 3. Who Are the Defendants and Plaintiffs Plaintiffs have cast a wide net and are expected to sue not only manufacturers in California, but also suppliers, distributors, trade associations, designers and consumers/users of welding products. We are also seeing that plaintiffs are not just welders, but also workers in related "bystander" positions like firewatchers and welder helpers involved in pipefitting, sheet metal and boilermaker work. With 521,000 current welders in the United States (excluding retirees and bystanders), the list of "exposed" potential plaintiffs has caused commentators to compare this litigation to asbestos and tobacco. 4. Likely Venue: AlamedaCounty Recent local state court rulings indicate that the California plaintiff bar will attempt to consolidate groups of plaintiffs in Alameda County. Plaintiffs have been successful in their attempts coordinate large numbers of plaintiff cases in states like Ohio where Judge Kathleen O'Malley oversees close to 500 cases with over 4,000 plaintiffs in the Multi-District Litigation in federal court. 5. Smoking Guns? The well organized plaintiff bar has unearthed internal corporate communications and memoranda that demonstrate industry knowledge of the toxicity of manganese dating back to the 1930s. Plaintiffs also are disseminating information suggesting that target defendants chose to provide vague warning labels on welding products so as to not affect sales figures. Plaintiffs argue that these ineffective warnings continued despite the growing amount of science regarding the links between manganese and permanent brain damage in welders. 6. Manganism v. Parkinson's Disease Plaintiffs have been successful in demonstrating a causal link between welding rod fume exposure and manganism, a disease of the central nervous system with symptoms similar to those of Parkinson's disease, including slurred speech, trembling hands and an unsteady gait. Additional medical dangers of welding rod fume exposure include certain malignancies, chronic respiratory difficulties and reproductive problems. Our medical and legal research indicates that the plaintiffs will have a more difficult time in relating manganese exposure to Parkinson's Disease, which was an early attempt by the plaintiff bar. 7. Experienced Counsel: Scientific Challenges Burnham Brown has been at the forefront of litigating and authoring treatises on the federal and state law limitations on the reliability and admissibility of scientific studies and opinions relating to allegedly toxic products or substances. We are currently evaluating the studies and medical literature used by plaintiffs in other states to determine if the science plaintiffs have relied on will suffice in California jurisdictions. 8. Insurance Coverage Issues California welding rod litigation will undoubtedly raise numerous first impression legal issues involving insurance coverage. Burnham Brown's insurance coverage department is well situated to evaluate how traditional insurance coverage doctrines such as trigger of coverage and various applicable policy exclusions will play out in California. 9. Strict Liability The first California filings give insight as to the theories of liability that will be pursued by plaintiffs here. In addition to traditional negligence, intentional tort and breach of warranty causes of action, plaintiffs will attempt to have the "consumer expectation test" (a much more lenient standard based on a product's design violating minimum consumer safety assumptions) as opposed to the more stringent requirements imposed by a plaintiff theory that the risk of danger inherent in design outweighed the benefits of the design. 10. Conspiracy Theories: Premises Owners/Contractors Plaintiffs are also pursuing imaginative legal theories based on industry conspiracies to conceal dangers of manganese and causes of action to include premises owners and contractors in an attempt to widen the scope of defendants and available insurance dollars. The aggressiveness of the plaintiff bar here in California makes it wise for all industry participants to be well prepared to face this new threat.
November 2004
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