Sparks flaying

All across America one can see the products yielded from welding – from the jaw-dropping skyscrapers of the country's cities, to the dairy farms of the rural Midwest, to the ports that service all our exports and imports.

The welding industry, with its gross worldwide sales of US manufactured welding rods estimated to be $5 billion, is the very definition of “big business.” Since the dawn of modern welding in the mid-1800s, it has been the essential vocation for many hard working, blue collar families. Over the last century, welding has played an integral part in the construction of such architectural and cultural wonders as San Francisco's Golden Gate Bridge, Chicago's “Cloud Gate” (better known as the “The Chicago Bean”) and Sears Tower, and even the once revered World Trade Center in New York City. Yet on a more day to day level, welding plays a key role in the mining, oil and gas extraction, primary metals, and electrical and electronic equipment industries. It is estimated that welding is the primary occupation of some 700,000 to 800,000 men and women.

Welding and health

As far back as 1837, medical studies suspected that manganese, a metal in welding rods, is a contributory culprit of symptoms of Parkinsonism. Parkinsonism, a medical umbrella term that encompasses such progressively worsening and irreversible neurodegenerative diseases as Parkinson's disease, Idiopathic (meaning the cause has not yet been established) and Manganism, a variation of Parkinson's, all of which are believed by physicians to be unique to welders. This and allegations that welders have been kept in the dark about the medical correlation between the inhalation of manganese particles in welding rod fumes and Parkinsonism, has prompted the plaintiff's bar into seeing welding fume litigation as the next trend in mass tort litigation.

Lincoln Electric Company, the leading US manufacturer of welding rods, accompanied by Fortune 500 industrial titans General Electric, Westinghouse, Union Carbide, among many others, appears to be in the crosshairs of an overtly aggressive plaintiff's bar. With immeasurably deep pockets, as well as the plaintiff's belief that manufacturers did little or nothing to inform welders of the potential dangers in using their products, has prompted a barrage of lawsuits reminiscent of asbestos lawsuits.

The crux of the plaintiff's case against welding rod manufacturers stems from readily available medical evidence in the form of scientific studies documenting that:

1 manganese is toxic to the central nervous system in levels that exceed the trace amounts normally found in the human body

2   toxicity of manganese can cause progressive, disabling neurological damage known as Parkinsonism

3  welders are susceptible to Parkinsonism because of their inhalation of welding rod fumes which contain manganese particles.

Plaintiff's bar alleges that despite this knowledge, the aforementioned manufacturers and/or employers, failed to do the one or all of the following:

•provide adequate and timely warnings in the form of precautionary labels that warned users that the products emitted potentially harmful fumes when ignited,

•provide adequate and timely instruction to users about ventilation, safety equipment, or other precautionary measures,

•properly test or investigate the health hazards associated with the use of the product, •redesign the welding rod product to protect the user from exposure to the harmful fumes. With the number of cases steadily rising as this new theory of toxic tort liability gains momentum, an obvious question to be raised is this: Why did manufacturers allow manganese to continue to be used in the mass production of welding rods?

The answer is simple: manganese is essential to the welding of metals and alloys. Despite years of trying, scientists and research analysts have failed to find a substitute for manganese. The gray-white metal, which resembles iron, is extremely hard and brittle and, in addition to making the weld fast, it prevents it from cracking. In layman terms, there just is not another substance that can do what manganese can do.

“Although thus far the target defendants in welding fume litigation have been the behemoth companies manufacturing welding rods, it is inevitable that in the future contractors who have employed welders will be susceptible to the same types of claims against them”

As a general rule of toxic tort law, whenever the manufacturer of a potentially dangerous product places that product in the stream of commerce, even though it is properly made, it is incumbent upon the manufacturer to warn potential users of the product of any dangers and hazards implicit in the use of that product. If the manufacturers of welding rods either knew of, or should have had knowledge of, any potentially perilous effects from the use of their products, they were bound by law to make this known by precautionary warning labels or accompanying literature.

According to recent empirical data, welding has been commonly regarded as the most hazardous occupation in the US. On a daily basis, welders are susceptible to such hazards as noxious gases, metal particulates, manganese particulates, sparks, fire, molten metals, extreme heat, electrical energy, ultraviolet rays, infrared rays, noise and vibration. Partly because of this and partly because of the deep pockets of the product manufacturers, it seems that plaintiff 's bar is loath to give up its fight to cash in at the expense of the welding industry.

Litigation begins

By May 2003, plaintiff counsel had been hired across the country, and several hundred welding fume cases were pending in US District Courts. Issues regarding judicial economy and efficiency were raised, and plaintiff 's counsel in these pending federal cases fi led a motion before the Judicial Panel for Multi-district Litigation (MDL). T e purpose, although perceptibly following a “strength in numbers” mentality, was “to permit the centralization in one district of all pretrial proceedings in civil actions involving one or more common questions of fact pending in different districts,” and “to eliminate potential conflicting ruling by coordinate district and appellate judges.”

On June 23, 2003 the MDL panel in Washington, D.C. ordered all welding fume cases pending in the US District Courts transferred and consolidated for pretrial and trial resolution in the United States District Court for the Northern District of Ohio (Cleveland) before the Honorable Kathleen McDonald O'Malley under the demarcation MDL-1535 Welding Rod litigation. On October 29, 2003 in Madison County, IL, in the landmark case of Elam versus A.O. Smith Co, et al., a jury delivered a riveting verdict of $1 million in favor of a career welder who claimed and later proved at trial that he suffered Parkinsonism symptoms because he breathed in manganese particulates from defendants' welding rods. The case verdict caused an immediate increase in welding fume lawsuits being filed throughout district courts in the US. Virtually all of these cases were consolidated in the MDL-1535 class action, and now there are more than 3,600 actions pending before Judge O'Malley.

The Elam case confirmed what many industry experts speculated for years: the welding industry is the target, and manganese-related lawsuits are the weapons of mass destruction. A relentless plaintiff 's bar has realized that the pool of asbestos plaintiffs is running dry and sees the welding industry as the vehicle to a monumental payday. Although the target defendants in this litigation have been the behemoth companies manufacturing welding rods, it is inevitable that contractors who have employed welders will be susceptible to the same types of claims against them.