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On December 20, 2005, the Appellate Court of Illinois affirmed the decision of the judgment of the Madison County Circuit Court in the case of Elam v. Lincoln Electric Company, et al. in which the plaintiff was awarded one million dollars in his lawsuit against welding rod manufacturers, claiming that his exposure to the substance manganese in welding rods he used at work over a prolonged time period caused his Parkinson's disease.
After nine unsuccessful trial results in the South and Midwest, the Elam case represents the first success for plaintiff's bar in this growing area of toxic tort litigation. The origin of welding rod litigation can be traced back to a coalition of southern tobacco and asbestos attorneys who mobilized the plaintiff bar into a large multi state litigation involving welders exposed to fumes containing allegedly toxic levels of manganese.
Since the Elam verdict in Illinois, several similar lawsuits have been filed in Mississippi, Texas, Illinois, Georgia, Louisiana, and California. Plaintiffs have targeted manufacturers, as well as suppliers, distributors and trade associations. Moreover, plaintiffs have sought damages from consumers and/or users of welding products as the realm of plaintiffs includes not only welders, but individuals working in "bystander" positions such as firewatchers and welder helpers.
Such 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. Other potential health risks of exposure to welding rod fumes include certain malignancies, chronic respiratory difficulties, and reproductive problems.
Plaintiffs in prior cases have supported their claims using internal corporate communications and memoranda that demonstrate industry knowledge of the toxicity of manganese dating back to the 1930s. They have also disseminated information suggesting that defendants chose to provide vague warning labels on welding products so as to not affect sales figures.
In addition to negligence, intentional tort, and breach of warranty, plaintiffs seek to apply the "consumer expectation test" rather than the more stringent requirements imposed by a risk-benefit theory. They are also pursuing creative theories and causes of action to include premises owners and contractors to widen the scope of potential defendants.
Currently, there are approximately 4,500 welding lawsuits in Federal Court (multi-district litigation) and another 5,000 welding lawsuits in State Courts. The state cases typically involve true manganese poisoning cases with symptoms similar to Parkinson's disease. Many of the federal cases allege welding fumes caused actual Parkinson's disease. The other difference is that, while the federal cases are almost solely against welding-rod manufacturers, the state lawsuits may target owners of the job sites where they claim the exposure occurred. For example, Chevron Texaco was sued by welders who worked at its refineries.
Although the number of people exposed to welding fumes is lower than those who were exposed to asbestos, there are obvious similarities between welding-rod litigation and the early days of asbestos litigation. Of note, of the first 10 asbestos cases tried to jury, nine of them were defense verdicts. Given the aggressiveness of the plaintiff bar in California, welding-rod litigation is likely to continue to grow over the next decade.
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